J U D G M E N T

The unsuccessful plaintiffs is the appellants herein. For the sake of convenience, parties are referred to as per the ranking before the trial Court.

2. The appellants / plaintiffs filed O.S.No.220 of 1995 before the Additional District Munsif Court, Ulundurpet for declaration of title over the suit property. After the life time of her mother Valliammai, the suit was decreed. In the appeal preferred by the first defendant in A.S.No.9/1997 before the Additional District Judge, Villupuram, the learned Judge has allowed the appeal and hence the second appeal.

3. At the time of admission, the following substantial question of law was framed:-

“Whether the first appellate Court was right in finding that the deed of settlement, viz., Ex.A3 was not acted upon?”

4. Heard the learned for the appellants / plaintiffs. None appeared for the first respondent. R2 given up before the trial Court.

5. The case of the plaintiffs in brief is that:

(i) The suit 1st item was purchased by the grandfather of the plaintiffs by name Narayana Padayachi by registered sale deed dated 30.11.1954 and the 2nd item was purchased on 27.03.1957 and thus properties are the self acquired properties of Narayana Padayach. He executed a settlement deed on 09.05.1961 in favour of the mother of the plaintiffs which was accepted and it was irrevocable document. In the said settlement there was a condition that it should be enjoyed by the plaintiffs mother for her life time and after her life it should be enjoyed by the male issues of Perumal Padayachi and Mummoorthy Padayachi who are the sons of Narayana Padayachi.

(ii) It is the further case that contrary to the settlement, Narayana Padayachi along with the settlee Valliammai conveyed the property to the

1st defendant on 14.05.1966 by registered sale deed which is not valid and binding on the plaintiffs. The plaintiffs have filed this suit for declaration for that they have absolute right to suit property after the life time of their mother Valliammai.

6. The second defendant, who is one of the sons of Narayana Padayachi namely Mummoorthy Padayachi remained ex-parte. The purchaser of the property, the first defendant Sarangapani Gounder filed written statement and the gist of the same, that are necessary are:

The suit properties are the joint family properties of Narayana Padayachi and his two sons Perumal Padayachi and Mummoorthy Padayachi. The settlement deed was not accepted and acted upon by Valliammai and it has not come into force. Since there were family debts and in order to discharge them, out of necessity, Narayana Padayachi and his two sons along with Valliammai sold the suit items to this 1st defendant for a sale consideration of Rs.1,000/- by registered sale deed.

7. It is seen from records that the trial Court has held that Ex.A3 settlement deed executed by Narayana Padayachi in favour of Valliammai is accepted and acted upon and hence the sale in favour of the first defendant by all the family members is not binding on the plaintiffs who are vested remainders.

8. Before the lower appellate Court, the point that has been taken up for considerations is:

Whether, the suit properties are joint family properties or self acquired properties of Narayana Padayachi viz., the grandfather of the plaintiffs and Ex.A3 settlement is accepted and acted upon.

9. On appreciation of the oral and documentary evidence, the lower appellate Court has come to the conclusion that the settlement deed is not accepted or acted upon and one of the sons of the settlor Narayana Padayachi namely Mummoorthy Padayachi (second defendant herein) was cultivating the land and also exercising his ownership by giving the property to third party under a mortgage by relying upon Ex.B2.

Accordingly, allowed the appeal and thereby non suited the plaintiffs.

10. Heard the submissions of the appellant counsel on the above substantial question of law.

i) The suit property; there are two items in the suit property. As per pleading, first item was p