C O M M O N J U D G M E N T

The Second Appeal in S.A.No.1630 of 2008 has been filed as against the judgment and decree dated 28.02.2007 in A.S.No.1 of 2007 on the file of the District Court, The Nilgiris at Udhagamandalam, and the Second Appeal in S.A.No.1631 of 2008 has been filed as against the judgment and decree dated 28.02.2007 in A.S.No.19 of 2006 on the file of the District Court, The Nilgiris at Udhagamandalam, decreeing the suit declaring that the plaintiffs are entitled to the decree for future mesne profits, which will be assessed in a separate proceedings under Order XX Rule 12 of C.P.C. Both the Second Appeals arise out of the judgment and decree dated 03.08.2006 in O.S.No.14 of 2004 on the file of the Subordinate Court, The Nilgiris at Udhagamandalam.

2. The defendants 2, 3 & 7 to 10 are the appellants, plaintiffs and defendants 4 to 6 and 11 to 13 are the respondents in S.A.No.1630 of 2008. The second and third defendants in the suit are the appellants and plaintiffs are the respondents in S.A.No.1631 of 2008.

3. For the sake of convenience, the parties will be referred to according to their respective ranking as before the Trial Court.

4. Since both the Second Appeals arise out of the common judgment and decree passed by the Lower Appellate Court, both the Second Appeals are disposed of by this common judgment.

The brief facts, which gave rise to these Second Appeals, are that:

5. According to the plaintiffs, the plaintiffs are the daughters of the first defendant and Late Sennaiyammal, who admittedly, is the first wife of the first defendant. The first defendant lost his son Muthan in an accident and since the first defendant wanted a male heir, he married the third defendant as his second wife. The second defendant is the son born through the second wife.

6. According to the plaintiffs, Sennaiyammal belonged to an affluent family and from the periodical amounts given by her brothers, she used to save money and using the money saved, she purchased the item no.2 of the suit properties to an extent of 0.30 acres under sale deed dated 05.12.1966 in Ex.A1. Further, since the first defendant married the third defendant as his second wife, to avoid future disputes, the first defendant executed a registered gift deed dated 09.10.1967 in Ex.A2 by gifting the item nos.1, 3 and 4 of the suit properties to an extent of 2.03 acres in favour of his first wife Sennaiyammal. In all, an extent of 2.33 acres belonged to Sennaiyammal and the said Sennaiyammal had executed the gift deed dated 25.08.1995 in Ex.A5 in favour of the plaintiffs. Pursuant to the gift deed, the same was acted upon and the possession of the properties was handed over to the plaintiffs and the plaintiffs became the owners of the suit properties and were in possession and enjoyment of the same.

7. According to the plaintiffs, the second defendant prevailed upon the said Sennaiyammal to revoke the gift deed dated 25.08.1995 and the plaintiffs' mother Sennaiyammal executed a revocation of gift deed on 01.12.1995 in Ex.B1. According to the plaintiffs, once the gift deed has been executed by Sennaiyammal in favour of the plaintiffs and the gift deed has been acted upon, she did not have any right to cancel or revoke the gift deed unilaterally. Hence, the gift deed dated 01.12.1995 in Ex.B1 is void and will not bind the plaintiffs.

8. Further, according to the plaintiffs, the first and second defendants have entered into the suit properties and cut several silver oak shade trees and they have incurred damages to the tune of Rs.1,50,862/-. In view of the disputes made by the defendants, after issuance of the notices, the plaintiffs came up with the suit for declaration of title, delivery of possession and for damages for a sum of Rs.1,50,862/-. 9. The first defendant resisted the suit by filing the written statement contending that his first wife Sennaiyammal was only a binamidhar; she did not have any independent income and she was a housewife; as such the said gift d