Unregistered gift settlement inadmissible without proof of original's loss and acceptance; registered gift to second wife valid with possession; unilateral cancellation void; sale deed recitals prove self-acquisition over unsubstantiated joint family claim.

JUDGMENT :

R.POORNIMA, J.

This Appeal had been filed by the 2nd defendant, challenging the judgment and decree dated 31.10.2023, passed in O.S.No.222 of 2021, on the file of the learned Additional District and Sessions Court, Periyakulam, Theni.

2. The present appellant is the 2nd defendant. The plaintiff, sister of the defendants filed a suit for partition and separate possession of the suit schedule property.

3. The case of the plaintiff is that one Thiru.K.Pannai Sethuraman, who is the father of the plaintiff, an Advocate by profession married one Tmt.S.Rajeswari. Out of the said wedlock, the plaintiff, 2^nd defendant and one Vasanthi were born. The defendant 3 and 4 are the children to Vasanthi, since deceased. Smt.Rajeshwari, wife of Pannai Sethuraman predeceased her husband on 17.01.1981. Subsequently, Thiru.Pannai Sethuraman, married one Leelavathy on 01.07.1981 and out of the said wedlock, the 1^st defendant, Alagu Deepa was born.

4. The plaintiff contends that after the death of his first wife, Rajeshwari, his father approached his father-in-law, Thiru.Sivalingam Chettiar, seeking financial assistance for the purchase of agricultural lands. In response, the said Sivalingam Chettiar mortgaged his properties situated at Devadanapatti Village under a registered Mortgage Deed bearing No.3172 of 1981 dated 14.09.1981 and raised a sum of Rs.20,000/-, which has been marked as Ex.A1. The said amount was handed over to Pannai Sethuraman.

5. Out of the said funds, Pannai Sethuraman purchased four items of agricultural lands comprised in various survey numbers situated at Kamakapatti Village, Genguvarpatti Firka, Periyakulam Taluk, Theni District, under four separate sale deeds bearing Nos.3193, 3194, 3195, and 3196, all dated 14.09.1981, which are marked as Exs.A2 to A5. Since the properties were acquired from and out of the funds provided by the plaintiff’s grandfather, namely Sivalingam Chettiar, the said properties are claimed to be joint family properties.

6. Subsequently, Thiru.Pannai Sethuraman executed an unregistered Gift Settlement Deed dated 30.06.1982 in favour of the plaintiff, the first defendant, and her sister Vasanthi in respect of the suit schedule properties. It is further stated that the plaintiff and defendants 2 to 4 alone are the descendants of Sivalingam Chettiar, whereas the first defendant has no relationship whatsoever with him. This fact is said to be evidenced by an undertaking dated 30.06.1982 executed by Thiru.Pannai Sethuraman in his own handwriting in the presence of witnesses. As the original of the said undertaking is lost or untraceable, a copy has been produced and marked as Ex.A6. Thiru.Pannai Sethuraman died on 19.06.2021. It is stated that all other properties belonging to him had already been settled in favour of his children, except the suit schedule properties, which were left out. Hence, the present suit has been filed by the plaintiff seeking partition and separate possession of the suit schedule properties.

7. According to the plaintiff, he is entitled to a 1/3^rd share in the suit properties, and defendants 2 to 4 are each entitled to 1/3^rd share. Accordingly, the suit has been filed for partition and separate possession.

8. Defendants 2 to 4 have filed written statements supporting the claim of the plaintiff. The first defendant alone has contested the suit.

9. The 1st defendant, in her written statement, has denied the contention of the plaintiff that the suit properties were purchased out of financial assistance obtained by Thiru.Sivalingam Chettiyar by mortgaging his property on 14.09.1981. According to the 1st defendant, Thiru. Pannai Sethuraman was a practicing Advocate and had also served as a Member of the Legislative Assembly from 1977 to 1980. He was a well-established and affluent person who had been purchasing several properties since 1955 and was a reputed advocate at Periyakulam. Hence, there was no necessity for him to borrow money from any person for the purchase of the suit sche