(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, as against the Judgment and Decree of the III Additional Judge, City Civil Court, Chennai in A.S.No.557 of 2010 dated 27.09.2011 confirming the Judgment and Decree of the XII Assistant Judge, City Civil Court, Chennai in O.S.No.4485 of 2008 dated 22.06.2010.)

The Second appeal has been preferred as against the decree and judgment passed by the III Additional Judge, City Civil Court, Chennai in A.S.No.557 of 2010 dated 27.09.2011. The appellant herein is the Plaintiff before the trial Court, who filed a Suit in O.S. No.4485 of 2008 on the file of the XII Assistant Judge, City Civil Court, Chennai for the reliefs of declaration to declare that the Deed of Cancellation dated 12.11.2007 cancelling the Deed of Settlement dated 28.06.2007 and to declare the decree and judgment passed in O.S. No.6447 of 2007 as null and void. The said suit was dismissed by the trial Court on 22.06.2010. Aggrieved by the said decree and judgment, the Plaintiff has preferred an appeal in A.S. No.557 of 2010 on the file of the III Additional Judge, City Civil Court, Chennai. The First Appellate Court also dismissed the appeal on 27.09.2011 by confirming the decree and judgment passed by the trial Court. Aggrieved by the said decree and judgment, this second appeal has been preferred by the appellant / Plaintiff.

2. The case of the Plaintiff before the trial Court is that the Suit property was settled by the 1st defendant in favour of the Plaintiff through Settlement Deed dated 28.06.2007 and the original documents in respect of the property settled in favour of the Plaintiff have also been handed over to the Plaintiff by the 1st defendant. The Plaintiff mortgaged the settled property to the 3rd defendant through a Mortgage Deed dated 14.11.2007. While so, the Plaintiff received a letter dated 18.01.2008 from the 1st defendant claiming original documents. Thereafter, the Plaintiff approached the 1st defendant, wherein the Plaintiff was informed by the 1st defendant that the 2nd defendant filed a Suit in O.S. No.6447 of 2007 on the file of the II Additional City Civil Court, Chenani claiming ½ hare in the Suit schedule property and thereafter, the Plaintiff sent a suitable reply dated 28.01.2008. The defendants 1 and 2, entered into a compromise without notice to the Plaintiff and obtained fraudulent decree. The said judgment and decree was obtained by the 2nd defendant by playing fraud and colluding with the 1st defendant. Thereafter, the Plaintiff received a letter dated 15.04.2008 from the defendants 1 and 2 claiming original documents and other connected records pertaining to the Deed of Settlement dated 28.06.2007 and also directing the Plaintiff to cancel the mortgage. Thereafter, the Plaintiff came to know about the revocation of Settlement Deed dated 12.11.2007. The said cancellation of Settlement Deed is without knowledge of the Plaintiff and the Settlement Deed was already acted upon and the possession was also handed over to the Plaintiff, thereby, the said Cancellation of Settlement Deed dated 12.11.2007 cancelling the Settlement Deed dated 28.06.2007 is null and void. Therefore, the Plaintiff filed the Suit.

3. The case of the defendants before the trial Court is that the Suit property was originally purchased by the 1st defendant through a Sale Deed dated 29.01.1981. However, the sale price was paid by both the defendants 1 and 2. After purchase of the property, the defendants 1 and 2 constructed a house by spending equally. There was an oral partition between the defendants 1 and 2 and one person has to executed Release Deed in favour of other and the same was reduced into writing on 17.01.1994. From 2006 onwards, the behaviour of the 1st defendant was not cordial towards the 2nd defendant due to the intervention of the Plaintiff. On 27.08.2007, the 1st defendant gave a cheque amounting to Rs.1,50,000/- and asked the 2nd defendant to get away from the property. Thereafter, the 2nd defendant has filed a Suit in O.S. No.6447 of 2007 on the file of the II Additional Judge, City Civil Court, Chenani against the 1st defendant for partition of the Suit property. Immediately the 1st defendant approached the Plaintiff, who took him to his Advocate and appointed the Advocate to appear on behalf of the 1st defendant. After some time, the 1st defendant realised the evil intention of the Plaintiff and immediately sent a letter dated 05.11.2007 to the Plaintiff and informed to him that he proposed to cancel the Settlement Deed. Thereafter, the 1st defendant cancelled the Settlement Deed dated 12.11.2007 and thereafter, the defendants 1 and 2 had entered into compromise. Thereafter, the 1st defendant sent a letter dated 18.01.2008 to the Plaintiff calling upon him to return the parental deeds of the Suit property and he gave a false reply dated 28.01.2008. The document executed by the 1st defendant is not a Settlement and it is a Will. Therefore, during his life time, he cancelled the same. Therefore, the Suit is liable to be dismissed.

4. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                          Issues:

                          (i) Whether the decree in O.S. No.6447 of 2007 was obtained by the parties therein by fraud and collusion?

                          (ii) Whether the cancellation of the Settlement is valid?

                          (iii) Whether the Plaintiff is entitled to declaration as prayed?

                          (iv) To what other reliefs, the Plaintiff is entitled?

5. Before the trial court, on the side of the plaintiff, P.W.1 was examined and marked exhibits, Ex.A.1 to A8. On the side of the defendant, D.W.1 was examined and exhibits Ex.B.1 has been marked. The trial court, after evaluating the oral and documentary evidences adduced on both sides and perusing the records, dismissed the Suit on 22.06.2010. Aggrieved by the said decree and judgment, the Plaintiff has preferred an appeal in A.S. No.557 of 2010 on the file of the III Additional Judge, City Civil Court on various grounds.

                          5.1. The First Appellate Court has framed the points for determination as ti Whether the appeal is to be allowed or not?

6. After hearing both sides and perusing the records, the First Appellate Court dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved by the said decree and judgment, the present second appeal has been preferred by the appellant / Plaintiff.

7. For the sake of convenience and brevity, the parties herein are referred as plaintiff and defendant, as referred before the trial Court.

8. The learned counsel appearing for the appellant would submit that the appellant is the Plaintiff, who filed the Suit for declaration to declare that the Deed of Cancellation dated 12.11.2007 cancelling the Deed of Settlement dated 28.06.2007 and the decree and judgment passed in O.S. No.6447 of 2007 as null and void. Originally the Suit property belonged to the 1st defendant and he settled the property in favour of the Plaintiff through a Settlement Deed dated 28.06.2007 and thereafter, he mortgaged the property on 14.11.2007. Thereafter, the 2nd defendant filed a Suit as against the 1st defendant and obtained a collusive decree by way of compromise and the Settlement Deed also cancelled unilaterally without the knowledge of the Plaintiff on 12.11.2007. The Settlement Deed dated 28.06.2007 was accepted by the Plaintiff and the same was acted upon and the original documents handed over to the Plaintiff at the time of execution of Settlement Deed. Therefore, without knowledge of the Plaintiff, the 1st defendant has cancelled the Settlement Deed. Therefore, he filed the Suit.

                          8.1. In order to prove the case of the Plaintiff, P.W.1 was examined and marked exhibits, Ex.A.1 to A8. On the side of the defendant, D.W.1 was examined and exhibits Ex.B.1 has been marked. The Plaintiff side evidences have categorically proved the case of the Plaintiff. However, the Courts below failed to consider the evidences in a proper and perspective manner and erroneously dismissed the Suit. The Courts below failed to consider that the 1st defendant executed a Settlement Deed and the possession was also given to the Plaintiff. The possession of the Plaintiff, without clause for revocation of Settlement Deed, cannot be revoked. While so, the Courts below erroneously rendered findings that the Settlement Deed is not a Settlement Deed, but it is only a Will. There are no averments to consider the Settlement Deed as a Will. Merely upholding the particular words in the documents and without considering the entire document, the Courts below have come to a conclusion that the Settlement Deed executed by the 1st defendant in favour of the Plaintiff Settlement Deed, but it is only a Will. Therefore, the decree and passed by the Courts below are liable to be set aside.

9. The learned counsel appearing for the respondent would submit that the respondents are the defendants in the main Suit. Originally the property belonged to the 1st defendant and the defendants 1 and 2 are brothers and they were residing jointly. They purchased the property jointly by spending money. However, the Sale Deed was obtained in the name of the 1st defendant. Therefore, the 2nd defendant filed a Suit for partition in O.S. No.4485 of 2008 and thereafter, they entered into the compromise. In the meantime, the 1st defendant executed a Deed, and the said Deed is not a Settlement Deed and it is only a Will and thereafter, the said document was cancelled through a Deed of Cancellation dated 12.11.2007. The said cancellation was also informed to the Plaintiff and after cancellation of Settlement Deed, the Plaintiff mortgaged the property in favour of his wife, the 3rd defendant. Therefore, the Plaintiff has not approached the Court with clean hands and the Plaintiff is not entitled to any relief. The Plaintiff has not filed the Suit for declaration in respect of the property covered under the Settlement Deed. Therefore, the Courts below have correctly appreciated the facts and law in a proper and perspective manner and held that the Settlement Deed executed by the 1st defendant in favour of the Plaintiff dated 28.06.2007 is not a Settlement Deed and it is only a Will. Though the caption has been mentioned as ‘Settlement Deed’, the recitals in the said document show that it is only a Will. The intention of the 1st defendant is to give the property after his life time, and the possession was also will come to the Plaintiff only after the demise of the 1st defendant, thereby, the Courts below have treated the said document as a Will. Therefore, the Courts below have rendered concurrent findings and the same need not be interfered with by this Court and there are no substantial questions of law involved in this case and thereby, the second appeal is liable to be dismissed.

10. This Court heard both sides and perused the entire materials available on record.

11. In this case, the Plaintiff has filed the Suit for the reliefs of declaration to declare that the Deed of Cancellation dated 12.11.2007 cancelling the Deed of Settlement dated 28.06.2007 and to declare the decree and judgment passed in O.S. No.6447 of 2007 as null and void alleging that the 1st defendant executed a Settlement Deed dated 28.06.2007 and on the date of settlement itself, the possession was given to the Plaintiff and the original documents pertaining to the property were also handed over to him and thereafter, he mortgaged the property to the 3rd defendant on 14.11.2007 and thereafter, the defendants 1 and 2 have filed a Suit in O.S. No.6447 of 2007 on the file of the II Additional City Civil Court, Chennai and during the course of the said proceedings, they both entered into a compromise and the property already settled in favour of the Plaintiff was divided between the defendants 1 and 2 without the knowledge of the Plaintiff. Therefore, the Suit is a collusive Suit. In the meantime, the Settlement Deed was also cancelled through a Deed of Cancellation dated 12.11.2007 without the knowledge of the Plaintiff unilaterally and therefore, the said cancellation deed dated 12.11.2007 and the decree and judgment passed by the II Additional City Civil Court, Chennai in O.S. No.6447 of 2007 are null and void and they do not bind upon the Plaintiff.

The contention of the defendants 1 and 2 is that originally the property was purchased in the name of the 1st defendant, but money was contributed by both of them as they are brothers. Thereafter the 1st defendant executed a Settlement Deed dated 28.06.2007. The said document is only captioned as ‘Settlement Deed’ but the intention of the 1st defendant is only to give the property to the Plaintiff through a Will. Thereafter, the 2nd defendant filed a Suit in O.S. No.6447 of 2007 on the file of the II Additional City Civil Court, Chennai for partition and in that Suit, both the parties had entered into compromise. In the meantime, the Settlement Deed executed by the 1st defendant in favour of the Plaintiff, was cancelled through a Cancellation Deed dated 12.11.2007. Therefore, the Plaintiff has no right over the property. Thereby, prayed to dismiss the Suit.

12. In order to prove the case of the Plaintiff, P.W.1 was examined and marked exhibits, Ex.A.1 to A8. On the side of the defendant, D.W.1 was examined and exhibits Ex.B.1 has been marked. In this case, there is no dispute that the Sale Deed stands in the name of the 1st defendant and he initially settled the property in favour of the Plaintiff on 28.06.2007 and thereafter, he revoked the said Settlement Deed through a Deed of Cancellation dated 12.11.2007. In the meantime, the 2nd defendant filed a Suit in O.S. No.6447 of 2007 and the said Suit was entered into compromise between the defendants 1 and 2. The main contention of the Plaintiff is that the 1st defendant executed a Settlement Deed in favour of the Plaintiff and on the date of deed itself, possession of the property was handed over to the Plaintiff. The original documents were also handed over to him. Therefore, the said Settlement Deed was acted upon. The defendants denied the nature of document and according to them, though it was captioned as ‘Settlement Deed’, the intention of the 1st defendant was to give the property only after his life time and the same stands as ‘Will’. Therefore, the Court has to decide that whether it is a ‘Will’ or a ‘Settlement Deed’.

13. The said Settlement deed has been marked as Ex.A.1 and on a perusal of Ex.A.1, it reveals that there are recitals that after the life time of the ‘Settlor’, the property premises shall pass to the ‘Settlee’. Further there are recitals that ‘the Settlor is desirous of settling his property in order to avoid disputes after his life time’, ‘during the life time of the Settlor, the Settlor and Settlee are empowered to raise a loan or mortgage in and over the property’ and there are further recitals that after the life time of the Settlor, the Settlee herein shall possess the property absolutely with all powers of alienation. Therefore, the above said recitals would show that the possession has also to pass after the life time of the Settlor. Therefore, the above said recitals would show that it is a ‘Will’. Though the caption has been mentioned as ‘Settlement Deed’, the recitals of the document and the intention of the Settlor, would shows that the said document is only a Will. In this context, the Courts below have correctly interpreted the document and rendered concurrent findings that the said document is not a ‘Settlement Deed’ and it is only a ‘Will’. Therefore, the above said concurrent findings need not be interfered with by this Court, since the recitals of the documents clearly would show the character of the Will. Once the document is a ‘Will’ and not a ‘Deed of Settlement’, the 1st defendant has power to cancel the Will at any time. Therefore, the ‘Deed of Cancellation’ dated 12.11.2007 is valid. Further if the document is a Settlement Deed, then the possession has to be granted to the Plaintiff. Even as per the recitals of Will, the possession of the property will be given to the Plaintiff, only after the life time of the Settlor. There are no recitals about the handing over the documents of the property and PW1 himself admitted that the original documents have not been given at the time of settling the property. Therefore, the evidence of PW1 shows that the document dated 28.06.2007 is not a Settlement Deed and it is only a Will and thereby, the 1st defendant can cancel the Will at any time during his life time, thereby, he cancelled the same. Therefore, the Plaintiff is not entitled to any relief in respect of cancellation deed.

14. As far as the Suit in O.S. No.6447 of 2007 is concerned, according to the Plaintiff, the property wass settled to him as per the Settlement Deed dated 28.06.2007, already this Court decided that the said document dated 28.06.2007 is not a Settlement deed, it is only a Will. Therefore, the 1st defendant can deal with the property as per his wish during his life time. The 1st defendant himself admitted that though the sale deed dated 29.01.1981 was obtained in favour of him, the sale price was jointly contributed along with his brother and therefore, the 2nd defendant filed a Suit. They partitioned the properties by way of compromise decree. Therefore, there is no ground to set aside the decree on the ground of fraud and no element of fraud has been proved by the Plaintiff. Therefore, the Plaintiff is not entitled to any relief in respect of cancellation deed as well as the decree and judgment passed by the trial Court in O.S. No.6447 of 2007. The Courts below have correctly appreciated the facts and law and rendered concurrent findings.

15. The learned counsel appearing for the appellant has relied upon the following judgments:

                          (i) N.P. Saseendran v. N.P. Ponnamma reported in 2025 INSC 388.

                          (ii) Sasikala and others v. The Revenue Divisional Officer cum Sub-Collector, Devakottai, Sivagangai reported in CDJ 2022 MHC 5653.

                          15.1. On a careful perusal of the above said judgments, it is clear that once settlement deed is executed, the same cannot be revoked unilaterally and also it is clear that nature of document has to be decided based on the recitals of the document and not on the heading of the document. Also it is clear that a Will must first be read as a whole, and if various parts of it appear to conflict with each other, they ought to be harmoniously construed. In the even that this cannot be done, then if there is an absolute bequest in an earlier part of the Will, which cannot be reconciled with a subsequent bequest of the same property in a latter part of the Will, the subsequent portion of the Will, will have to be declared as invalid.

16. In the case on hand, the alleged Settlement Deed shows the intention of the Settlor is to give the property after his life time and the possession was also would come to the Settlee after the life time of the Settlor and in order to avoid disputes after his life time, the settlor settled his property. Therefore, the recitals of the document would show the intention of the Settlor that he wish to give the property after his life time, which means the said document is only a ‘Will’ and is not a ‘Settlement Deed’. Therefore, the judgments relied upon the learned counsel for the appellant are no way helpful to decide the case in favour of the appellant.

17. This Court perused the entire materials including the grounds of appeal. There is no substantial question of law involved in this case.

18. In view of the above discussions, this Court is of the opinion that the second appeal has no merits and deserves to be dismissed.

19. Accordingly, the Second Appeal stands dismissed. There shall be no order as to costs.