JUDGMENT

The defendants in O.S.No.490 of 2006, who had suffered decree for declaration of title and injunction at the hands of the Courts below have come up with this second appeal.

2. The suit in O.S.No.490 of 2006 was filed by the plaintiffs contending that the suit properties originally belonged to the first defendant having been allotted to her at the partition that took place on 27.12.1984 and by virtue of purchase under sale deed No.3244 of 1969. According to the plaintiffs the first defendant, who is their mother has settled the said properties on them under the registered instrument of settlement, dated 18.06.1996. In and by the settlement deed, the mother had reserved herself the right of residence in the property dudring her life time, while settling the same in favour of the plaintiffs. It is also claimed that the plaintiffs were employed at various places and were residing out side Tirunelveli.

3. Using the absence of the plaintiffs, the defendants 2 and 3, who are the sisters of the plaintiffs and daughters of the first defendant, prevailed upon the first defendant to cancel the settlement deed dated 18.02.1996 on 30.03.2006. On the same date, they also extracted a settlement deed from the first defendant settling the properties on themselves. Contending that the cancellation as well as the settlement deed dated 30.03.2006 are not valid, the plaintiffs laid the above suit for the reliefs as aforesaid.

4. The suit was resisted by the defendants denying the claim that the suit first item was allotted to the first defendant under the partition. They also claimed the said partition was not acted upon. The settlement deed dated 18.06.1996 was attacked on the ground that it is invalid because it was registered at Parasala in Kerala by including a property situated within the Sub Registrar District of Parasala, which was not owned by the first defendant. The documents was termed as fraud on registration. It is also claimed that the first defendant has validly cancelled the instrument of settlement. As such she is entitled to execute the settlement on 30.03.2006.

5. At trial, the first plaintiff was examined as P.W.1 and one Soman was examined as P.W.2. Exs.A1 to A12 were marked. Though the first defendant was examined as D.W.1, her evidence were struck off because she was not available for cross examination. The second and third defendants were examined as D.Ws.2 and 3 respectively.

Exs.B1 and B2 were marked on the side of the defendants.

6. The Courts below upon consideration of the evidence on record concluded that the partition dated 29.12.1984 was acted upon and the settlement deed dated 18.06.1996 is a valid document and it cannot be concluded that it is a result of fraud on registration. Consequently, the Courts below found that the cancellation deed dated 30.03.2006 is invalid. Once the cancellation deed dated 30.03.2006 was held to be invalid, it was found that the first defendant had no right to execute the settlement deed marked as Ex.A5 on the same date. The Courts below also took into account the mutation of revenue records in the name of the plaintiffs under Exs.A3 and A4. Having come to the above conclusion, the Courts below decreed the suit as prayed for. Aggrieved, the defendants have come up with this second appeal.

7. Soon after filing of this appeal, the mother, namely the first appellant died and one of the sisters namely the second appellant was transposed as 5th respondent in the appeal. Therefore, it is only the third appellant, who is now prosecuting the appeal. It is seen from the records that the appeal was not admitted.

8. I have heard Mr.Anand C.Rajesh, learned counsel for the appellants, Mr.A.Chidamabram, learned counsel for Mr.R.Manimaran, for the respondents 1 to 4 and Mr.T.Selvan, learned counsel for the fifth respondent.

9. The learned counsel for the appellants would contend that the Courts below were not right in upholding the validity of the settlement deed dated 18.06.1996 as the same amounte