A settlement deed executed by a person lacking mental capacity is void, and a partition suit can proceed without a formal challenge to such a deed if evidence supports its invalidity.

JUDGMENT

1. Appellant is the sole defendant, and the respondents are the plaintiffs in O.S.NO.760/2011 filed before the Munsiff’s Court, Kollam, on 27/10/2011 for partition and incidental reliefs. The parties are siblings. The plaintiffs, who are three in number, filed the suit for partition of the plaint schedule property having 48 cents belonged to the father of the plaintiffs and the defendant, Late Sri.Duncan Fernandez as per Ext.A1 Release Deed of the year 1981, among the plaintiffs and the defendant by allotting 24/150 shares each rd to the Plaintiffs 1 and 2 and 51/150 shares each to the 3 plaintiff and the defendant.

2. Sri.Duncan Fernandez died on 05/02/1989. His wife Smt.Annabel Fernandez, who is the mother of the plaintiffs and the defendant, died on 30/11/2004. Apart from the plaintiffs and the defendants, Sri. Duncan Fernandez and Smt.Annabel Fernandez had another son Sri.Wilfred Fernandez who had died on 28/06/1996. On the death of Duncan Fernandez, Annabel Fernandez was entitled to get 50/150 share and each of the 5 children was entitled to get 20/150 share over the property of Duncan Fernandez. On the death of Gilfred Fernadez, Annabel Fernandez and the remaining 4 children is entitled to get 4/150 share each out of 20/150 share of Wilfred Fernandez. Smt.Annabel Fernandez executed Ext.A4 Sale Deed of the year 2003 rd conveying her share (54/150) to the 3 Plaintiff and the defendant equally. Thus, as on the date of filing the suit, the plaintiffs 1 and 2 are entitled to get 24/150 shares each and the 3rd plaintiff and the defendant are entitled to get 51/150 shares each out of the plaint schedule property.

3.The defendant filed a Written Statement dated 12/03/2012 admitting that the plaint schedule property originally belonged to Duncan Fernandez but disputing the partition contending, inter alia, that the plaintiffs 1 and 2 had fraudulently created a Settlement Deed No.2243/1984 as if it is created by Duncan Fernandez in favour of them settling the plaint schedule property in favour of them. Duncan rd Fernandez and the 3 plaintiff had filed O.S.No.133/1985 before the Sub Court, Kollam for setting aside the said settlement Deed in which the plaintiffs 1 & 2 herein were the defendants 1 & 2. The plaintiffs in the said suit contended that the said Settlement Deed is a fraudulent document and it has no legal validity and that Duncan Fernandez was laid up and he had not voluntarily executed the said Settlement Deed. The defendants therein, who are the plaintiffs 1 & 2 herein, contended that the settlement Deed is legally valid, and they have absolute title over the plaint schedule property. The said suit was seriously contested and the suit was decreed in terms of the Plaint on 11/01/1991. (Certified copy of the Judgment in O.S.No.133/1985 was marked in evidence before the First Appellate Court as Ext.B8). The plaintiffs 1&2 herein filed A.S.No.598/1991 in this Court and the same was dismissed as per Ext.B6 judgment dated 03/02/1998. The Second Appeal filed by plaintiffs 1& 2 herein in this Court as A.F.A No.22/1999 was dismissed for non-prosecution as per Ext.A3 judgment dated 02/02/2012 as the advocate for the appellants submitted that they are not interested in prosecuting the appeal. The suit is barred by res judicata on account of the decision in O.S.No.133/1985 and barred under Order 2 Rule 2 CPC. The suit is barred by ouster and limitation. On 16/12/1986, Duncan Fernandez, after recovering from illness, voluntarily executed Ext.B3 settlement giving the plaint schedule rd property to the 3 plaintiff and the defendant. At that time, Duncan Fernandez was enjoying good health, and he was rd capable of understanding things properly. The 3 plaintiff and the defendant effected mutation on the basis of Ext.B3 Settlement and they have been paying land tax since 1986. The plaintiffs have suppressed these material facts and filed the suit colluding with each other. Since there are several other properties, the suit is barr