A deed of settlement must be acted upon to be valid; unilateral cancellation is valid if the deed is unexecuted.

JUDGMENT

This Second Appeal is filed challenging the judgment and decree passed in A.S.No.8 of 2016 dated 24.04.2017 on the file of Subordinate Court, Pollachi, reversing the judgment and decree dated 25.04.2016 in O.S.No.96 of 2000 on the file of District Munsif Court, Pollachi.

2. The plaintiff, in a suit for declaration of title and with the further reliefs of cancellation of settlement deed in favour of the plaintiff's brother and cancellation of the sale deed, executed by the brother in favour of the third party purchaser, is the appellant herein. The parties are described as per their litigative status in the suit. The brief facts that are necessary for adjudicating the present Second Appeal are as hereunder:-

3. The plaintiff is the daughter of the second defendant. It is the case of the plaintiff that her mother executed a settlement deed in her favour on

03.01.1990 and same was also duly registered and in terms of the settlement deed, the plaintiff has become the absolute owner and she was in possession and enjoyment of the suit property. It is her specific case that the third defendant, her brother, signed as a witness to the said settlement deed and therefore, he is fully aware of the said settlement.

4. According to the plaintiff, the settlement deed is irrevocable and possession of the property was also delivered by the second defendant to the plaintiff on the date of the settlement deed. However, without any right to revoke the settlement deed, the second defendant, behind the back of the plaintiff, cancelled the settlement deed on 03.10.1996. On the very same day, she executed a fresh settlement deed in favour of her brother/third defendant.

5. Subsequently, the third defendant has sold the suit property in favour of the first defendant under a registered sale deed dated 06.10.1997. In this backdrop, the plaintiff instituted the suit for the relief of declaration which has been set out herein above.

6. The first defendant/purchaser filed a written statement, stating that the suit was barred by limitation; the settlement deed was never acted upon; the plaintiff was never put in possession pursuant to the settlement deed and therefore, there was no valid gift as contemplated under the provisions of the Transfer of Property Act, 1882 . Further, the first defendant, having purchased the suit property from the third defendant, is a bonafide purchaser and she has been in possession and enjoyment of the suit property ever since from the date of her purchase.

7. Pending the suit, the plaintiff amended the plaint and sought for recovery of possession from the first defendant. Though the said application for amendment was resisted by the first defendant, the application was allowed and this Court, in revision proceedings, while confirming the amendment, reserved the right of the first defendant to raise all the contentions available in law, in the suit. Thereafter, the first defendant has also filed an additional written statement.

8. The trial Court decreed the suit on the ground that the settlement deed was irrevocable and therefore, the settlement deed executed by the mother/second defendant was not binding on the plaintiff and consequently, the settlement deed in favour of the third defendant and the sale deed in favour of the first defendant were set aside.

9. On appeal by the first defendant, the first appellate Court has reversed the findings of the trial Court and held that the settlement deed was not acted upon and therefore, the plaintiff could not claim any right or title under the settlement deed dated 03.01.1990 and therefore, the first appellate Court upheld the cancellation of settlement deed and also upheld the sale deed in favour of the first defendant. Aggrieved by the reversal findings, rendered by the first appellate Court, the plaintiff has filed the present Second Appeal.

10. On 02.11.2017, the Second Appeal was admitted on the following substantial questions of law:-

i) Whether the judgment and decree of the l