A sale deed executed without consideration is void, and the burden of proof lies on the claimant to establish ownership and title, which must be supported by evidence.

JUDGMENT :

R.N.Manjula, J.

The first defendant is the appellant. The suit has been filed by the plaintiff for declaration and permanent injunction in respect of the suit schedules 'A', 'B' and 'C' along with future damages and recovery of possession in favour of the second plaintiff.

2. The trial Court has decreed the suit as prayed for. The defendants 1 to 4 have filed their counter-claim in respect of 'C' Schedule property and the same has been dismissed. The plaintiffs are required to file a separate petition to claim the future damages. The appeal preferred by the first defendant before the first appellate Court was also by confirming the judgment and decree of the trial Court. Now the first defendant has filed the second appeal by challenging the judgment of the first appellate Court.

3. The short facts pleaded in the plaint by the plaintiffs in brief:-

The plaintiffs 1 and 3 are the sons of one Nataraja Mudaliar through his legally wedded wife Pattu Ammal. The second plaintiff is the daughter of the first plaintiff. The Nataraja Mudaliar has been living with one Dhanalakshmi by having physical relationship outside of his marriage and the first defendant is the son born through the Dhanalakshmi. The second defendant is the younger brother of the plaintiff's mother Pattu Ammal.

3.2. The property in Survey No. 123/B/1 measuring 36 feet East to West and 96 feet South to North in Kumarappanaickenpettai belonged to the Nataraja Mudaliar. The suit property has been set out in three schedules under 'A', 'B' and 'C'. The Nataraja Mudaliar has executed a mortgage deed on 26.10.1957 in favour of one Chidambara Chettiar for raising money to celebrate the marriage of his daughter. He was also cultivating some agricultural lands which belonged to one Devanathaswamy Devasthanam, Thiruvahindrapuram under an agreement of lease. The Devasthanam has obtained a decree in S.C. No.99/1957 on the file of the District Munsif's Court, Cuddalore for arrears of lease.

3.3. As Nataraja Mudaliar had incurred heavy debts due to his improper way of living. He apprehended that the house site, i.e., the suit property would be lost to his creditors and hence, he created a sham and nominal sale deed dated in favour of the second defendant dated 04.01.1970. No transfer of title had taken place in pursuant to the said sale deed. Though the recitals of the sale deed states to discharge an existing mortgage, the second defendant did not discharge the same and the debt has been discharged only by the plaintiffs. The possession was also never handed over to the second defendant and it continued to be in possession of Nataraja Mudaliar. The plaintiffs and their predecessors are therefore prescribed title to the property and they continued to be in possession. To avoid the claim in the suit property either by the second plaintiff or any other person claiming under him a panchayat was convened on 06.03.1981. In the said panchayat, the second defendant has admitted that the sale deed dated 04.01.1970 was a sham and nominal one. The terms of the panchayat was reduced to writing and signed by Nataraja Mudaliar and the second defendant and it has been attested by the panchayatdars.

3.4. Later Nataraja Mudaliar bequeathed his properties into three schedules, viz., 'A' to 'C' schedules to the plaintiffs respectively by executing a Will dated 20.04.1981 and that was the last Will of the Nataraja Mudaliar and the same was executed when he was in sound state of mind. The Nataraja Mudaliar died on 25.12.1983 and the Will has taken effect. In the Will, the testator has stated that he had already benefited his son through Dhanalakshmi by purchasing the house site in Kumarappanaickenpettai village in their names.

3.5. After the demise of the Nataraja Mudaliar, the first plaintiff took the western moiety of the property, which is shown as 'A' schedule in the plaint. The portion of the property enjoyed by the Nataraja Mudaliar has been shown in the 'B' schedule property. The third plaint