BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.09.2021 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN S.A.(MD)No.118 of 2008 and M.P.(MD)Nos.1 of 2009 & 1 of 2011 &

C.M.P.(MD)No.8252 of 2019

1. Kukiliya (Died) ... Appellant / Appellant /

1st Defendant

2. L.Vasanthakumari

3. K.Monikumar

4. K.Subramoniam (Appellants 2 to 4 are brought on record as LRs. of the deceased sole appellant vide Order dated 26.08.2021 made in C.M.P.(MD)No.6207 of 2021)

... Appellants Vs.

1. Rani @ Azhakammai ... 1^st Respondent/1^st Respondent/

Plaintiff

2. Rajeswari (Died)

3. Palachi ... Respondents 2 & 3/Respondents 2 & 3/

Defendants 2 & 3

4. Rajarathinam

5. Nagarajan

6. Shankar

7. Meena

8. Kannan

9. Soundarrajan

10.Gopi (Respondents 4 to 10 are brought on record as LRs. of the deceased 2nd Respondent vide order dated 26.08.2021 made in M.P.(MD)No.1 of 2012)

... Respondents 4 to 10 Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree passed in A.S.No.55 of 2005 on the file of the District Court, Kanyakumari at Nagercoil, dated 20.03.2007 confirming the Judgment and Decree passed in O.S.No.27 of 2004 on the file of the I Additional Sub Court, Kanyakumari at Nagercoil, dated

08.04.2005.

For Appellant : Mr.M.P.Senthil For R-1 : Mr.K.P.Narayanakumar For R-5,R-6 &

R-8 to R-10 : Ms.A.Amala For R-3 : No appearance.

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J U D G M E N T

The first defendant in O.S.No.27 of 2004 on the file of the I Additional Sub Court, Nagercoil, filed this second appeal.

2. During the pendency of the second appeal, the first defendant passed away and his legal heirs have come on record. The first respondent herein, namely, Rani @ Azhakammai filed the said suit seeking partition and separate possession of 1/4^th share in the plaint schedule property by metes and bounds. She also wanted the decree made in O.S.No.382 of 1982 on the file of the District Munsif, Nagercoil, to be set aside and the settlement deed dated 04.12.1974 executed in favour of the first appellant to be set aside.

3. The case of the first respondent/plaintiff was that the suit property belonged to her father Sankarachinthamani. Sankarachinthamani was a much married man. The mother of the parties herein, namely, Ponnammal was his fifth wife. Sankarachinthamani passed away in the year 1957. Ponnammal passed away on 05.04.1981. According to the plaintiff, Ponnammal died intestate. During her lifetime, she is said to have executed a settlement deed dated 04.12.1974(Ex.A.2 = Ex.B.1) in favour of the appellant Kukiliya. The specific case of the plaintiff was that in the suit property which measures 7 cents and 134 sq.ft., Ponnammal had undivided share of 2 cents and 308 sq.ft. She could not have therefore settled the entire suit property in favour of Kukiliya. On that ground, the plaintiff wanted to invalidate the said settlement deed dated 04.12.1974. Since on the strength of the said settlement deed, Kukiliya had obtained recovery of possession in respect of the suit property against his sister Palachi by filing O.S.No.382 of 1982, the plaintiff wanted to have the decree also to be set aside. The third defendant Palachi remained ex-parte. The second respondent sailed with the plaintiff. Kukiliya alone resisted the suit. Based on the rival pleadings, the trial Court framed the necessary issues. The plaintiff/first respondent herein examined herself as P.W.1 and marked Ex.A.1 to Ex.A.5. The first defendant Kukiliya examined himself as D.W.1 and marked Ex.B.1 to Ex.B.45. After a consideration of the evidence on record, the trial Court by judgment and decree dated 08.04.2005 passed preliminary decree allotting 1/4^th share in favour of the plaintiff. It was silent on the other reliefs sought by the plaintiff. Aggrieved by the same, the first defendant filed A.S.No.55 of 2005 before the District Court, Kanyakumari. By judgment and decree dated 20.03.2007, the first appellate Court confirmed the decision of the trial Court and dismissed the appeal.

Challenging the same, this second appeal came to be f