The High Court's jurisdiction in second appeals is limited to substantial questions of law, and it cannot overturn concurrent findings of fact unless shown to be perverse.

JUDGMENT :

K. Murali Shankar, J.

The Second Appeal is directed against the judgment and decree made in A.S.No.5 of 2022, dated 23.09.2022, on the file of the Additional District Court, Kuzhithurai, confirming the judgment and decree passed in O.S.No.1 of 2005, dated 20.11.2021, on the file of the Subordinate Court, Kuzhithurai.

2. The appellants are the defendants. Pending Second Appeal, the first appellant died and her Legal Representatives were impleaded as the appellants 3 to 5. The respondent/plaintiff filed a suit in O.S.No.1 of 2005, before the Subordinate Court, Kuzhithurai, claiming the relief of declaration that “A” schedule property belongs to him and for recovery of possession of “B” schedule property situated in “A” schedule property.

3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

4. The case of the plaintiff in short is as follows:

The suit properties and other properties originally belonged to one Uthuman Pillai and another and after the death of Uthuman Pillai, his legal heirs entered into a partition deed dated 26.11.1997 whereunder “A” schedule property therein was allotted to one Shahul Hameed, S/o Uthuman Pillai. Since then, he was in possession and enjoyment of the same. The plaintiff purchased “A” schedule property from the said Shahul Hameed for a valid consideration of Rs.4,80,000/- by virtue of a sale deed dated 15.03.2004. The second defendant is the daughter of the said Shahul Hameed and the first defendant is the daughter of the second defendant. The second defendant by colluding with the first defendant executed a sham and collusive gift deed dated 25.09.2003 in respect of “B” schedule property in favour of the first defendant and filed a false and vexatious suit against the plaintiff in O.S.No.506 of 2004. The second defendant has no right to execute any gift deed in favour of the first defendant and the first defendant will not acquire any right over the “B” schedule property. Moreover, the second defendant filed an unnumbered suit against her father and the same was rejected holding that the second defendant has no right in the property. Hence, the plaintiff was constrained to file the above suit claiming declaration and for recovery of possession.

5. The defence of the defendants 1 and 2 in brief is as follows:

The second defendant's father Shahul Hameed orally gifted the suit “B” schedule property in favour of the second defendant on 17.05.1990 and put her in possession of the same. The said gift was accepted by the second defendant and the same was acted upon. The second defendant along with her husband has been running a tea shop in the building available in “B” schedule property. While so, the second defendant executed a settlement deed dated 25.09.2003 in favour of the first defendant in respect of “B” schedule property and put her in possession. The settlement deed was also accepted by the first defendant and acted upon and it has become final and irrevocable. The defendants are not aware of the sale deed in favour of the plaintiff. If any sale deed as alleged was brought into existence including “B” schedule property, it would be a fraudulent creation of the plaintiff knowing well about the possession of the defendants. The second defendant bonafidely believes that her father Shahul Hameed would not have executed such a document to the detriments of the second defendant in such a way including plaint “B” schedule property. The sale deed relied on by the plaintiff is a sham document and it was not supported by consideration and therefore, it is void so far as “B” schedule property is concerned. The second defendant was in possession and enjoyment of “B” schedule property since 17.05.1990. The plaintiff has no manner of right, title and possession over plaint “B” schedule property. Hence the suit is liable to be dismissed.

6. It is the further defence of the defendants 1 and 2 raised through the additional writ