The 1961 partition deed, once accepted, overrides earlier settlement claims, establishing statutory sanctity and barring challenges due to lack of timely action.

JUDGMENT :

K. GOVINDARAJAN THILAKAVADI, J.

1. The above second appeal arises out of the judgment and decree dated 24.01.2020 passed in A.S. No.43 of 2018, on the file of the 1^st Additional District Judge Coimbatore, reversing the Judgment and decree dated 28.02.2018 passed in O.S.No.1248 of 2010, on the file of the II Additional Subordinate Judge, Coimbatore.

2. The case of the plaintiff is that Sangappa Gounder and Kuppanda Gounder are brothers. Kuppanda Gounder had no children whereas Sangappa Gounder had 2 sons namely, Ramsamy Gounder and Ayee Gounder. The plaintiffs are the legal heirs of Ayee Gounder and the defendants are the legal heirs of Ramasamy Gounder. The said Kuppanda Gounder executed two settlement deeds dated 07.08.1933 settling 2 acres out of 6.02 acres and 7 anganam out of 14 anganam house in favour of Ayee Gounder and his proposed wife Tmt. Rangammal. After the death of Ayee Gounder, his brother Ramasamy Gounder arranged for a partition under the partition deed dated 12.04.1961 between himself and Ponnusamy / 1^st plaintiff for himself and as a guardian for his brother minor Chinnasamy. In the said partition, Ramasamy Gounder was allotted 'A' schedule property. Ponnusamy and his minor brother Chinnasamy were allotted 'B' schedule property. The plaintiffs 2 to 4 were not made as parties in the partition deed dated 12.04.1961, and is no reference about the settlement deed dated 07.08.1933 in the said partition deed dated 12.04.1961. Under such circumstances, the plaintiffs came to know about the said settlement deed only in December 2009. Hence, the plaintiffs.

3. The claim of the plaintiff was resisted by the defendant stating that neither the defendants 1 and 2 nor their father Ramasamy Gounder had knowledge about the settlement deed dated 07.08.1933. The 1^st plaintiff had not disclosed the said settlement deed dated 07.08.1933 at the time of entering into the partition deed dated 12.04.1961. The recitals in the partition deed dated 12.04.1961 would reveal that there was an oral partition about 6 to 7 years prior to the said partition. Both the parties to the partition deed dated 12.04.1961 had improved the land and also dealt with their respective shares. Hence, the suit is liable to be dismissed.

4. Based on the above pleadings, the trial court framed necessary issues. The 1^st Plaintiff was examined as PW1 and 12 documents were marked. Two witnesses were examined on the side of the Defendant and 17 documents were marked. The trial court based on the materials on record, decreed the suit in favour of the plaintiff, against which, the defendant preferred the appeal suit. The first appellate court reversed the findings of the Trial Court, hence the second appeal has been preferred by the Plaintiffs.

5. Challenging the above judgment and decree passed in A.S. No. 43/2018, this Second Appeal is preferred by the plaintiffs.

6.This second appeal is admitted on the following substantial questions of law:

“i. Whether the Courts below were right in upholding the validity of Ex.A2 partition deed, more so, when the minor son of Ayee Gounder namely Chinnasamy Gounder was represented by bis brother as a guardian, even though his mother, the natural guardian, was alive?

ii. Whether the Courts below were right in upholding Ex.A2, in the absence of the daughters of Ayee Gounder having been made parties to the said document?’’

7. Mr.N.Manokaran, the learned counsel for the appellants would submit that admittedly, Kuppanda Gounder had half share in item 1(6.02 acres) and item 2 (14 anganam house). He had no children, therefo