IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 01.02.2021

PRONOUNCED ON : 15.02.2021

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN

S.A.Nos.1087 & 1088 of 2008

P.Boopathy

...

Appellant in both

second appeals

Vs.

C.Mahalakshmi

...

Respondent in both

second appeals

Prayer in both second appeals :- Second Appeal has been filed

under Section 100 of CPC against the Judgement and Decree dated

04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the

Additional District and Sessions Judge, Fast Track Court No.III,

Dharpuram, Erode District, reversing the Judgment and Decree

dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on

the file of the Subordinate Court, Dharapuram, Erode District,

respectively.

For Appellant in

: Mr.S.Parthasarathy

both second appeals

Respondent in

: set exparte

both second appeals

dt 01/02/2021

COMMON JUDGMENT

Challenge in the second appeals Nos.1087 & 1088 of 2008 are

directed against the common judgment and decree dated 04.01.2008

passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional

District and Sessions Judge, Fast Track Court No.III,

Dharapuram, Erode District, reversing the common Judgment and

Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of

2004 on the file of the Subordinate Court, Dharapuram, Erode

District, respectively.

2.At the time of admission of the second appeals, the

following substantial questions of law were formulated for

consideration:

"a.Has not the lower Appellate Court

committed an error of law in decreeing the

appeal, since the intention of the

https://hcservices.ecourts.gov.in/hcservices/

settlor, contests of the Ex.1 would

clearly prove that it is only a Will, but

not settlement?

b.Has not the lower Appellate Court

committed an error of law in decreeing the

appeal without appreciating the written

statement filed by the deceased Ponnusamy

Gounder and even assuming his settlement,

the given contents not been acted upon,

since there is no acceptance and the offer

has been withdrawn before the same.?

3.Considering the factual matrix involved in the second

appeals and the substantial questions of law projected by the

appellant, the only point that arises for consideration is,

whether the settlement deed dated 23.12.1996 marked as Ex.A1 in

the trial Court is really a settlement deed as put forth by the

plaintiff or only a Will as put forth by the defendant.

4.For the sake of convenience, the parties are referred to

as per their rankings in the trial Court.

5.The defendant is the sister of the plaintiff. The

plaintiff and the defendant are the children of Ponnusamy

Gounder.

6.The suit in O.S.No.355 of 2003 has been laid by the

plaintiff seeking for the reliefs of declaration and permanent

injunction in respect of the suit property based on the

settlement deed dated 23.12.1996 said to have been executed in

her favour by her father viz., Ponnusamy Gounder, since deceased

and put forth the case that the defendant is attempting to

interfere with her peaceful possession and enjoyment of the same

without any basis.

7.Per contra, the defendant would put forth the case that

the document dated 23.12.1996 said to have been executed by the

deceased Ponnusamy Gounder in favour of the plaintiff is not a

settlement deed, but it is only a Will and therefore, according

to the defendant, the abovesaid instrument has been subsequently

cancelled by the deceased Ponnusamy Gounder by way of the

cancellation deed dated 05.02.2003 marked as Ex.B2 and further,

according to the defendant, Ponnusamy Gounder had settled his

properties including the property in issue in his favour by way

of the settlement deed dated 26.02.2003 marked as Ex.B3 and

accordingly, on the basis of Ex.B3 settlement deed, the suit in

O.S.No.65 of 2004 has been laid by the defendant against the

plaintiff for the reliefs of declar