JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Dharpuram, Erode District, reversing the Judgment and Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on the file of the Subordinate Court, Dharapuram, Erode District, respectively).

Common Judgment

1. Challenge in the second appeals Nos.1087 & 1088 of 2008 are directed against the common judgment and decree dated 04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Dharapuram, Erode District, reversing the common Judgment and Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on the file of the Subordinate Court, Dharapuram, Erode District, respectively.

2. At the time of admission of the second appeals, the following substantial questions of law were formulated for consideration:

"a. Has not the lower Appellate Court committed an error of law in decreeing the appeal, since the intention of the settlor, contests of the Ex.1 would clearly prove that it is only a Will, but not settlement?

b. Has not the lower Appellate Court committed an error of law in decreeing the appeal without appreciating the written statement filed by the deceased Ponnusamy Gounder and even assuming his settlement, the given contents not been acted upon, since there is no acceptance and the offer has been withdrawn before the same.?

3. Considering the factual matrix involved in the second appeals and the substantial questions of law projected by the appellant, the only point that arises for consideration is, whether the settlement deed dated 23.12.1996 marked as Ex.A1 in the trial Court is really a settlement deed as put forth by the plaintiff or only a Will as put forth by the defendant.

4. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

5. The defendant is the sister of the plaintiff. The plaintiff and the defendant are the children of Ponnusamy Gounder.

6. The suit in O.S.No.355 of 2003 has been laid by the plaintiff seeking for the reliefs of declaration and permanent injunction in respect of the suit property based on the settlement deed dated 23.12.1996 said to have been executed in her favour by her father viz., Ponnusamy Gounder, since deceased and put forth the case that the defendant is attempting to interfere with her peaceful possession and enjoyment of the same without any basis.

7. Per contra, the defendant would put forth the case that the document dated 23.12.1996 said to have been executed by the deceased Ponnusamy Gounder in favour of the plaintiff is not a settlement deed, but it is only a Will and therefore, according to the defendant, the abovesaid instrument has been subsequently cancelled by the deceased Ponnusamy Gounder by way of the cancellation deed dated 05.02.2003 marked as Ex.B2 and further, according to the defendant, Ponnusamy Gounder had settled his properties including the property in issue in his favour by way of the settlement deed dated 26.02.2003 marked as Ex.B3 and accordingly, on the basis of Ex.B3 settlement deed, the suit in O.S.No.65 of 2004 has been laid by the defendant against the plaintiff for the reliefs of declaration and possession.

8. The suits laid by the plaintiff as well as the defendant were jointly tried by the trial Court and common evidence has been recorded in both the suits i.e. in O.S.No.355 of 2003 preferred by the plaintiff.

9. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to A8 were marked. On the side of the defendant, DWs1 to 6 were examined and Exs.B1 to B18 were marked.

10. On a consideration of the oral and documentary evidence adduced in the matter and the submissions put forth by the respective parties, the trial Court was pleased to dismiss the plaintiff's suit in O.S.No.355