1. Challenging the Judgment and Decree passed by the learned Principal District Judge, Dharmapuri in O.S.No.53 of 2010, the defendants 3 to 5 have come up with this Appeal Suit.

2. As per the plaint averments, the suit properties and other properties originally belonged to the plaintiff's grand mother Chinnathayammal by virtue of the sale deed, dated 05.06.1935 and 16.02.1936. In the partition effected between the sons of Chinnathayammal viz., D.C.Kandasamy, D.C.Ponnurangam, D.C.Arumugam (D1) and D.C.Lakshmanan, dated 19.02.1955, the 'C' Schedule property was allotted to the 1 st defendant who is the father of the plaintiff, the defendants 2, 6 to 8. The wife of the 1 st defendant died during the year 2003. The defendants 3 to 5 are the legal heirs of the deceased son D.A.Azhagappan.

3. According to the plaintiff, the 1 st defendant executed a Will, dated 10.05.1983 in favour of his grandchildren born through his daughters Kalyani and Chitra pertaining to the land at Vellaegoundan palayam in S.No.517/1, measuring 792 square feet. However, he cancelled the same on 13.07.2004. Subsequently, on 30.03.1983, the 1 st defendant executed a settlement deed in favour of his daughters, D.A. Aruna and Kalamani/the 2 nd defendant pertaining to property at Chinnasamy street. On 22.08.1986, the 1 st defendant executed a Settlement Deed, in favour of his daughter D.A.Chitra (7 th defendant) pertaining to the land measuring about 2 ½ cents at Virupatchipuram Village in S.No.434. While so, the defendants 3 to 5, the legal heirs of the deceased son of the 1 st defendant by name Azhagappan filed a suit for partition against the plaintiff, the 1 st defendant and his other legal heirs in O.S.No.219 of 1989 before the Sub Court, Dharmapuri which ended in a compromise decree and the properties were allotted to the defendants 3 to 5 in S.No.304/2d. The 3 rd defendant sold the same to one Valarmathi by way of two sale deeds, dated 17.02.2003 and 20.05.2003. The plaintiff made contribution out of his income earned from his contract work in Adidravidar Welfare Department and stone quarry to the first defendant and helped in constructing shops, buildings in the suit property. The plaintiff has also spent more than Rs.1,50,000/- for the treatment of the 1 st defendant. After the death of his mother, since the 1 st defendant gave properties by way of Settlement Deeds to others, except the plaintiff, the 1 st defendant executed a Settlement Deed on 29.11.2007 in favour of the plaintiff with regard to the suit properties. The plaintiff accepted the same and the suit properties are in possession and enjoyment of the plaintiff. The 1 st defendant also executed a Settlement Deed, dated 02.01.2008 in favour of the plaintiff in respect of ¼ share of the property purchased by him jointly on 12.03.1956. The plaintiff accepted the same and he is in possession and enjoyment of the same.

4. The plaintiff settled the properties which were given to him by way of Settlement Deed, dated 29.11.2007 and 02.01.2008 in favour of his wife on 29.06.2010 and the same were resettled to the plaintiff on 29.07.2010. Having grudge over the growth of plaintiff, the 2 nd and 3 rd defendants by taking advantage of the age and unsound state of mind, instigated the 1 st defendant to cancel the settlement deed, dated 29.11.2007 and the 1 st defendant cancelled the same on 26.08.2010. The cancellation deed, according to the plaintiff, is not valid in law and will not bind him. The 1 st defendant is not entitled to revoke or cancel the Settlement Deed which was executed by him. The 1 st defendant at the instigation of the defendants 2 to 5 executed three Sale Deeds in favour of the defendants 2, 4 and 5 in the suit 'C' Schedule Property and the same is not valid. The 1 st defendant has no right to execute the Sale Deeds, the Cancellation Deed and the Sale Deeds would not bind the plaintiff as he has right over the suit properties.

5. The 1 st defendant has not reserved his right to cancel the Settlement Deed, dated 29.11.2007 as per Section 126 of the Transfer of Property Act. Since the defendants 2 to 5 attempted to get Patta by suppressing the true facts, the plaintiff issued notice to the Tahsildar, Dharmapuri on 04.09.2010. Notice was also issued on 21.09.2010 to the 3 rd defendant and other officer of Survey Department and the same were received by the concerned persons. According to the plaintiff, the defendants 2 to 5 are attempting to sell the 'C' Schedule property to the third parties based on the Sale Deeds executed by the 1 st defendant. Hence, the plaintiff filed the suit for declaring his title over the suit property, to declare the cancellation deed, dated 26.06.2010 as invalid and to declare the three sale deeds, dated 26.08.2010 as not valid, and permanent injunction restraining the defendants from alienating the suit properties to third parties.

6. Brief averments of the written statement filed by the first defendant and adopted by the defendants 3 to 5 are as follows:-

The Suit property belonged to the 1 st defendant ancestrally. It is true that the properties of Chinnathayammal were partitioned among the sons of the said Chinnathayammal on 19.02.1955 and the 'C' Schedule properties were allotted to the 1 st defendant. It is false to state that the 1 st defendant and his brothers purchased 2.65 acre of land on 12.03.1956 and the lands were in joint possession and enjoyment. The 1 st defendant executed two settlement deeds, dated 30.03.1983 and 22.03.1986 in favour of the defendants. According to the defendants, the plaintiff has created the gift deed in favour of his wife, viz., S.Chitra, on 29.06.2010 and thereafter as the plaintiff acted against the wishes of the first defendant, the first defendant has cancelled the so called gift deed, dated 29.11.2007. After due cancellation of gift deed, the deceased first defendant has executed a proper settlement deed in favour of the defendants 2, 4 and 5. Therefore, according to defendants, the plaintiff has no right over the suit property and he is not entitled to claim any relief as sought for.

7. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as PW1 and two other witnesses were examined as PW2 and PW3. Exs.P1 to P38 were marked. On the side of the defendants, the deceased first defendant was examined as DW1 and the fifth defendant was examined as DW2. Settlement Deed dated 13.11.2009 was marked as Ex.D1.

8. During trial, the trial Court has framed the following issues:

1. Whether the plaintiff is entitled to get the decree for declaration and permanent injunction in respect of suit schedule properties

2. Whether the plaintiff is entitled to get declaration decree with respect to the Gift Cancellation Deed, dated 26.08.2010

3. Whether the plaintiff is entitled to get declaration decree in respect of sale deed dated 26.08.2010

4. Whether the plaintiff is entitled to get declaration decree in respect of sale deed dated 26.08.2010, which was executed by 1 st defendant in favour of 4 th defendant

5. Whether the plaintiff is entitled to get declaration decree in respect of sale deed which was executed by the 1 st defendant in favour of 5th defendant dated 26.08.2010

6. Whether the 'C' Schedule properties are self acquired properties of the 1 st defendant

7. Whether the 1 st defendant has executed the sale deed in favour of D.A.Kalyani by way of sale deed dated 19.12.2008 and 25.08.2010 in respect of suit survey No.517/1

8. Whether the 1 st defendant has executed sale deed in favour of 3 rd and 4 th defendants in respect of S.No.434/1 with due consideration

9. Whether the settlement deed, dated 2.1.2008 which was executed by the 1 st defendant in favour of the plaintiff is sham and nominal and it is not in force

10. To what other relief the plaintiff is entitled to

9. The learned trial Judge on appreciation of the facts and circumstances of the case and also oral and documentary evidence held that the first defendant was the absolute owner of the suit property and he has every right to deal with the same. The trial Court has also taken note of the fact that during his life time, the first defendant has alienated various portions of the property in favour of his children and one such property is the subject matter of the Gift Deed executed in favour of the plaintiff. Therefore, the trial Court has concluded that the first defendant has right to execute the Gift Deed in favour of the plaintiff. By referring to the deposition of the deceased first defendant, the trial Court has concluded that the Gift Deed in question executed in favour of the plaintiff has been validly executed and pursuant to which, the plaintiff had derived absolute right and title in respect of the same. While so, the first defendant was forced and coerced to cancel the Gift Deed and on the same day executed the settlement deeds in favour of his daughters. By taking note of the above facts, the trial Court concluded that the cancellation of Gift Deed by the first defendant is not proper. Accordingly, the plaintiff is entitled to the relief as sought for by him and hence the trial Court passed the Judgment in favour of the plaintiff. Challenging the Judgment and Decree, the present appeal has been preferred by the defendants 3 to 5 who are wife and daughters of the deceased son of the first defendant.

10. The learned counsel for the appellants would submit that the trial Court has failed to see that the plaintiff has not established that pursuant to the Gift Deed executed in his favour by the first defendant he had accrued an unassailable right in the suit property. It is his contention that the Gift Deed executed in favour of the plaintiff has not been acted upon. The Gift deed was executed on 29.11.2007 and within three years it was validly cancelled by executing a Deed of cancellation on 26.08.2010. The first defendant has also stepped into the witness box and justified the execution of deed of cancellation dated 26.08.2010. Furthermore, already a suit for partition is pending in respect of the subject matter of the property in O.S.No.6 of 2012. While so, the decree ought not to have been passed by the trial Court in the suit filed by the plaintiff. In such circumstances, the trial Court ought to have directed the plaintiff to establish his right, if any in O.S.No.6 of 2012 or a joint trial ought to have been conducted in the present suit in O.S.No.53 of 2010 and O.S.No.6 of 2012. The trial Court without doing so, has passed the decree in the suit filed by the plaintiff. Therefore, the decree will have a barring in the suit in O.S.No.6 of 2012. The reasoning assigned by the trial Court with respect to the manner in which O.S.No.6 of 2012 was filed is legally not tenable. As much as the competent Civil Court is ceased of the case in O.S.No.6 of 2012, when a suit for partition is pending in O.S.No.6 of 2012, granting a decree in the present suit at the instance of the plaintiff is not proper.

11. The learned counsel for the appellants also invited attention of this Court to the deposition of DW1 (deceased first defendant) in which he has categorically stated that the Cancellation Deed, dated 26.08.2010 has been executed by him voluntarily without any coercion and duress by the defendants 3 to 5. The learned counsel would also contend that the Cancellation Deed was executed on 26.08.2010 and on the same day he has executed Settlement Deeds in favour of the defendants 3 to 5 without receipt of any consideration. In other words, it is his deposition that he had voluntarily without any duress or force executed the Settlement Deeds in favour of the defendants 3 to 5. While so, the Gift Deed, dated 29.11.2007 in favour of the plaintiff will no longer have any force. The trial Court without taking note of the above, has erroneously passed the decree of declaration in favour of the plaintiff and seeks for interference by this Court.

12. The learned counsel for the Respondent/plaintiff would submit that the first defendant had executed the Gift deed, dated 29.11.2007 in his favour. Apart from that, already on 30.03.1983, the first defendant had executed two gift deeds in favour of his sisters. That apart on 22.08.1986, a land in Virupatchipuram Village was settled in favour of D.A.Chitra one of the sisters of the appellant. Further on 24.07.1990, a compromise decree was passed in O.S.No.219 of 1989 on the file of the Subordinate Judge, Dharmapuri in which the defendants 3, 4 and 5 were given certain properties of the first defendant. It is in those circumstances, the gift deed, dated 29.11.2007 came to be executed in favour of the plaintiff. Pursuant to the same, the plaintiff has come into possession of the property as a absolute owner on the strength of the Gift Deed, dated 29.11.2007. The plaintiff in turn had executed a settlement deed, dated 29.06.2010 in favour of his wife S.Chitra under Ex.A14. Therefore, it cannot be said that the gift deed dated 29.11.2007 has not been acted upon by the plaintiff. Thus the plaintiff had derived accrued right and title interest in respect of the suit property on the strength of the gift deed, dated 29.11.2007. While so, the first defendant without any prior notice has executed the deed of cancellation dated 26.08.2010 and on the same date, he has executed settlement deeds in favour of the defendants 3 to 5. This would amply make it clear that the deed of cancellation, dated 26.08.2010 has been preceded by coercion, duress and force at the instance of the defendants 3 to 5. It is well settled that when a property has been settled in favour of a person and such person derived accrued right over it, such conveyance shall not be cancelled without putting notice on the person who derived a right over the property. In the present case, the first defendant had suddenly executed the deed of cancellation without taking note of the fact the right accrued in favour of the plaintiff. Furthermore, after the institution of the instant suit by the plaintiff, to wreck vengeance, the third defendant has filed a suit in O.S.No.6 of 2012 for partition. In this context, the trial Court has rendered a finding that the filing of the suit in O.S.No.6 of 2012 is not bonafide and on the other hand, it is malafide. In paragraph No.16 of the Judgement, the trial Court had discussed on the filing of O.S.No.6 of 2012 and concluded that such a suit was filed only to harass the plaintiff from enjoying the suit property. A specific finding was rendered by the trial Court that the first defendant had executed various conveyances in favour of his children conveying various portions of the land. However, the third defendant without questioning those settlements has filed the suit in O.S.No.6 of 2012 only in respect of the property settled in favour of the plaintiff. Therefore the trial Court has held that the suit in O.S.No.6 of 2012 will not be a bar or impediment for passing a decree in the present suit. Hence, the learned counsel for the Respondent/plaintiff submits that such a well considered decree and Judgment passed by the trial Court needs no interference and accordingly prayed for dismissal of the appeal.

13. I have heard Mr.K.Goviganesan, learned counsel for the appellants and Mr. S.C. Viswanth, learned counsel appearing for the contesting first respondent/plaintiff. In spite of service of notice, the respondents 2 to 5 did not appear either in person or through pleader.

14. The points arise for consideration in this appeal are as follows:

(i) Whether the Deed of Cancellation dated 26.08.2010, cancelling the gift deed dated 29.11.2007 is proper

(ii)Whether the settlement deed dated 29.11.2007 has been acted upon and whether the plaintiff had derived an accrued right in the suit property

(iii)Whether the suit in O.S. No. 6 of 2012 filed by the defendants 3 to 5 will be a bar for passing a decree in the present suit

15. The relationship between the parties has not been disputed. The deceased first defendant D.C. Arumugam had six children and they are (1) the second defendant (2) the plaintiff (3) D.A.Azhagappan (since deceased) (4) D.A. Aruna (5) D.A.Chitra (6) D.A. Kalyani. The appellants herein are wife and children of the deceased son, D.A.Azhagappan.

16. The suit property originally belonged to Chinnathayammal, mother of the first defendant. Chinnathayammal had four children and they are D.C. Kandasamy, D.C. Ponnurangam, D.C. Arumugam and D.C. Lakshmanan. The properties of Chinnathayammal were partitioned among her four children by means of deed of partition dated 12.03.1956. Earlier, the first defendant had executed a Will dated 10.05.1983 in favour of his grand children born through his daughters viz., D.A.Kalyani and D.A.Chitra. However, he cancelled the Will on 13.07.2004. This is not in dispute.

17. On 30.03.1983, the first defendant executed two gift deeds, one in favour of D.A.Aruna, his daughter. Similarly on the same day, on 30.03.1983, the first defendant executed yet another gift deed in favour of his daughter D.A.Kalyani. Subsequently, on 28.08.1986, a land measuring 2½ cents in Survey No.434 in Virupatchipuram Village was settled in favour of his daughter D.A.Chitra. The execution of these deeds are not in dispute. While so, on 29.11.2007, the first defendant had executed the gift deed in favour of the plaintiff. According to the plaintiff, the gift deed was acted upon, as a result of which, he had executed a settlement deed, dated 29.06.2010 in favour of his wife S.Chitra and it was registered as document No.3332 of 2010 on the file of Sub Registrar's Office, West Dharmapuri. This settlement deed dated 29.07.2010 remains unchallenged as on date by the defendants 3 to 5. However, on 26.08.2010, the first defendant had executed the instant cancellation deed, cancelling the settlement deed dated 29.11.2007. By the time, when the deed of cancellation dated 26.08.2010 was executed, a portion of property was owned by S.Chitra, wife of plaintiff by virtue of the Settlement deed, dated 29.07.2010 executed by the plaintiff. Thus it is evident that the first defendant had executed various deeds in favour of his daughters as well as the plaintiff. It is to be noted that the settlement deed, dated 29.11.2007 came to be cancelled after a period of three years on 26.08.2010. By this time, the plaintiff had derived fullest title, interest and right over the said property. While so, the first defendant purportedly, at the instance of the family members executed the cancellation deed dated 26.08.2010. On the same date, the first defendant had executed three other deeds namely Exs.P16, P17 and P18. There is no reasons adduced by the first defendant as to why the settlement deed in favour of the plaintiff was cancelled and on the same date, the property covered thereunder were settled under Ex.P16, P17 and P18 in favour of the defendants 2, 4 and 5.

18. On perusal of the sale deeds under Exs.P16, P17 and P18, it can be inferred that there is no reasons assigned by the first defendant for cancelling the settlement deed in favour of the plaintiff and executing those sale deeds in favour of the defendants 2, 4 and 5. In any event, before cancelling the gift deed, dated 29.11.2010 on 26.08.2010, the first defendant did not put the plaintiff on notice, showing his intention to cancel the gift deed executed in his favour. This is essential because, on that date, a portion of the property was in possession and ownership of S.Chitra, wife of the plaintiff.

19. It is well settled that the deed of conveyance, executed in favour of the person shall not be cancelled without putting the person on notice. Therefore, this Court is of the view that the deed of cancellation dated 26.08.2010 is not valid and it will not bind the plaintiff in any manner.

20. On behalf of the defendants, it was vehemently contended that the third defendant has already filed a suit in O.S.No.6 of 2012. While so, the decree passed in the present suit will have an adverse impact and barring in the trial in the said suit. In this regard, the trial Court has given reasoning as to why the suit in O.S.No.6 of 2012 will not bind the plaintiff. It is evident that even at the time of chief examination of the first defendant, he was 89 years old. The trial Court has rendered a specific finding that the appellants/defendants have taken advantage of the advanced age of the first defendant and forced him to execute the deed of cancellation and on the same day made him to execute the sale deeds under Exs.P16, 17 and 18. The trial Court has also admonished the attitude of the defendants 3 to 5 in paragraph no.16 of the Judgment by stating that only to harass the plaintiff the suit in O.S.No.6 of 2012 came to be filed. In paragraph No.20, the trial Court while referring to the compromise decree dated 24.07.1990 passed in O.S.No.219 of 1989 on the file of the learned Subordinate Judge, Dharmapuri, by which certain properties were allotted to the defendants 3, 4 and 5 who are the daughter in laws and grand children of the deceased first defendant, proceeded further to render a finding that the suit in O.S.No.6 of 2012 itself is barred by period of limitation because, at the time when the partition was effected among the first defendant and his brothers, Vennila and Rajeswari, the defendants 5 and 4 respectively are aged about 9 and 7. They remained silent without asserting the right over the property which fell to the share of the first defendant for a prolonged period. After a period of 12 years, the instant suit for partition was filed in O.S.No.6 of 2012. The trial Court in Paragraph No.20 has stated as follows:

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21. Therefore, the trial Court has rendered a specific reason to conclude that the suit in O.S.No.6 of 2012 has got nothing to do with the present suit. Therefore, the argument advanced on behalf of the appellants in this regard has to be rejected. Accordingly, the three points framed for determination in this appeal are answered in favour of the plaintiff and against the defendants in the suit.

22. In the result, the Judgment and decree dated 31.10.2014 passed in O.S.No.53 of 2010 on the file of the Principal District Judge, Dharmapuri is confirmed. The Appeal suit fails and it is accordingly dismissed. No costs.