JUDGMENT

(1) This Appeal is preferred by defendants 2 and 3 in O.S.No.305/2013 on the file of the learned First Additional District Judge, Salem.

(2) The 1st respondent in this appeal as plaintiff filed the Suit in O.S.No.305/2013 on the file of the District Court, Salem for partition of his one half share in the Suit property by metes and bounds and for injunction restraining the 1st defendant and their men in any manner alienating or encumbering the Suit property.

(3) The Suit property is described as an extent of 0.91 acres (91 cents)

in S.No.55/2B out of the total extent of 1.61.5 hectares (4 acres), with reference to specific boundaries.

(4) It is the case of the 1st respondent in the plaint that the Suit property namely the entire extent of 91 cents belonged to the 1st defendant, by virtue of a registered Sale Deed dated 31.08.1992. It is the further case of the plaintiff that the 1st defendant was in absolute possession of the property and that he has also constructed a rice mill and a terraced house in the Suit property by availing loan from Edappadi Co-operative House Building Society.

(5) Though, it is admitted that the 1st defendant had executed a General Power of Attorney in favour of the 2nd defendant on 17.04.2002 to manage the property, it is the specific case of plaintiff that the 1st defendant suspecting the 2nd defendant had later executed a Settlement Deed in respect of half share of the Suit property in favour of plaintiff by means of a Settlement Deed dated 18.10.2002. It is on the basis of the Settlement Deed that was executed the plaintiff came forward to prefer the Suit for partition of half share.

(6) It is admitted during the course of evidence that out of 91 cents, the Settlement Deed was in respect of undivided 45 cents. Incidentally, in the plaint it is also admitted that the 2nd defendant based on the Power of Attorney Deed in his favour, had subsequently executed a Sale Deed dated 09.07.2012, in favour of the 3rd defendant namely, the wife of the 2nd defendant in respect of the entire Suit property.

(7) It is stated that the Power of Attorney Deed executed in favour of the 2nd defendant is null and void and not binding on the plaintiff in so far as the property covered under the Settlement Deed in favour of the plaintiff. Stating that the Power of Attorney Deed became invalid after the father himself executed the Settlement Deed, it is contended that the plaintiff need not pray for setting aside the Sale Deed. The Suit was contested by the appellants on many grounds. It is the case of the appellant that the 2nd defendant entered into an agreement to purchase the Suit property and that in order to construct a rice mill, it is stated that the 2nd defendant availed the loan in the name of 1st defendant as he was working in MALCO, Mettur as it would be easy to get the loan from the Co-operative Bank in the name of first defendant.

(8) It is the further case of the appellants that the 2nd defendant alone repaid the entire loan in instalments. The 1st appellant also has pleaded the improvements he has made to the Suit property. It is the case of the appellants that the 1st defendant gave the General Power of Attorney on 17.04.2002 in favour of the 2nd defendant only because the father had recognized the ownership of property by the

2nd defendant.

(9) It is the case of appellants that the Settlement Deed in favour of plaintiff is not a true one and that it was not disclosed. The appellant also described the settlement as a fraudulent one. A specific issue was also raised by the appellants in the Written Statement that the Suit without the relief of declaration is not at all maintainable and that the plaintiff has come forward with the Suit for partition without a cause of action and suppressing the real fact.

(10) Before the Trial Court the plaintiff examined himself as PW1 and filed Ex.A1 to A6. Apart from examining the 1st defendant as DW1 the appellants were examined as DW2 to DW4 apart from marking Ex.B1 to B