JUDGMENT

The plaintiff, who was successful before the trial court in O.S.No.16 of 2006, which he has laid for partition and certain other reliefs, but had experienced partial reversal before the First Appellate Court, is the appellant herein.

2.1 Since the facts fall within a narrow compass for this Court to adjudicate, they are bullet-pointed:

● There are 6 items of properties scheduled in the plaint in relation to which partition is sought. These properties belong to a certain Ramasamy Nadar. He also stated to have possessed many other items of properties some of which are stated to be ancestral properties in his hands.

● Ramasamy Nadar had 2 sons, the plaintiff and the first defendant.

The defendants 2 and 3 are the sons of the first defendant and grand-

sons of Ramasamy Nadar.

● While so, on 12.06.1975, under Ext.A.1, partition deed, Ramasamy Nadar and his two sons have divided the properties. In this partition deed, Ramasamy Nadar was allotted 'A' schedule property. The dispute is all about the estate of Ramasamy Nadar and does not involve the other two schedules in Ext.A.1 allotted to the plaintiff and the first defendant.

● 'A' schedule to Ext.A-1 deals with six items of immovable properties. Of them the third item of property is given by Ramasamy Nadar to his own relatives. Item 4 property therein was purchased by him under Exts.B5 and B-6. Items 5 and 6 properties allotted to Ramasamy Nadar were respectively in the occupation of the plaintiff and the first defendant. They have since sold them with the concurrence of their father, what now remains is items 1,2, and 4. They respectively are described as items 1 to 3 in the plaint. So far as item 4 in the plaint is concerned, it is not the subject matter of the partition. It is a residential property built on a site belonging to the community and it was built by Ramasamy Nadar. Items 5 and 6 in the suit were purchased by Ramsamy Nadar subsequent to the partition Vide Exts. B-10 and B-11 respectively.

● This would mean that plaint items 1 to 3 alone were traceable to Ext.A1, Item No.4 in the suit is not the subject matter of Ext.A1, but is available for partition and Item Nos.5 and 6 in the suit were post Ext.A1 purchased by Ramasamy Nadar.

● While things stood thus, on 25.10.1999, Ramasamy Nadar executed Ext.A.2 Will in favour of his grand-sons namely, the defendants 2 and 3. It is a registered Will. Later, on 20.04.2001, Vide Ext.A.3, Ramasamy Nadar cancelled this Will. Couple of years after the cancellation of Will, Ramasamy Nadar is stated to have executed a settlement deed Vide Ext.A.4=Ext.B.2, dated 26.03.2004 in favour of the defendants 2 and 3. The settlement deed deals with the plaint items 2,3,5 and 6.

On 19.11.2005, Ramasamy Nadar died and within a year his children are before the court with this suit.

2.2 The plaintiff contends that Ext.A.4 settlement deed is void and his grounds are:

● In Ext.A-1 partition deed Ramasamy Nadar has imposed a restriction upon himself on his power of alienation which stipulates that after his demise the properties allotted to him should go to his wife for life, and thereafter to his two sons, the plaintiff and the first defendant herein. This condition binds him from doing anything contrary to its letter and spirit.

b) In Ext.A.3, which Ramasamy Nadar had executed for cancelling Ext.A.2 Will, he has recited that he was not loved or cared by the second defendant, the legatees under the Will. Therefore, Ramasamy Nadar executing Ext.A.4 settlement deed thereafter is improbable;

c) That at the time when Ext.A.4 was executed, Ramasamy Nadar was in his advanced age, and was not in a sound state of mental disposition. This was exploited by the defendants to bring into existence Ext.A.4=Ext.B.2, settlement deed.

The plaintiff therefore seeks a declaration that Ext.A.4=Ext.B.2, settlement deed is void and seeks a consequent partition of all the 6 items of properties.

3. The first defendant has filed the written statement which was adopted by the defenda