(Prayer: Second Appeal is filed under Section 100 CPC, 1908 to set aside the decree and judgment dated 24.01.2020 passed in A.S. No.43 of 2018, on the file of the 1st Additional District Judge Coimbatore, reversing the Judgment and decree dated 28.02.2018 passed in O.S.No.1248 of 2010, on the file of the II Additional Subordinate Judge, Coimbatore.)

1. The above second appeal arises out of the judgment and decree dated 24.01.2020 passed in A.S. No.43 of 2018, on the file of the 1st Additional District Judge Coimbatore, reversing the Judgment and decree dated 28.02.2018 passed in O.S.No.1248 of 2010, on the file of the II Additional Subordinate Judge, Coimbatore.

2. The case of the plaintiff is that Sangappa Gounder and Kuppanda Gounder are brothers. Kuppanda Gounder had no children whereas Sangappa Gounder had 2 sons namely, Ramsamy Gounder and Ayee Gounder. The plaintiffs are the legal heirs of Ayee Gounder and the defendants are the legal heirs of Ramasamy Gounder. The said Kuppanda Gounder executed two settlement deeds dated 07.08.1933 settling 2 acres out of 6.02 acres and 7 anganam out of 14 anganam house in favour of Ayee Gounder and his proposed wife Tmt. Rangammal. After the death of Ayee Gounder, his brother Ramasamy Gounder arranged for a partition under the partition deed dated 12.04.1961 between himself and Ponnusamy / 1st plaintiff for himself and as a guardian for his brother minor Chinnasamy. In the said partition, Ramasamy Gounder was allotted 'A' schedule property. Ponnusamy and his minor brother Chinnasamy were allotted 'B' schedule property. The plaintiffs 2 to 4 were not made as parties in the partition deed dated 12.04.1961, and is no reference about the settlement deed dated 07.08.1933 in the said partition deed dated 12.04.1961. Under such circumstances, the plaintiffs came to know about the said settlement deed only in December 2009. Hence, the plaintiffs.

3. The claim of the plaintiff was resisted by the defendant stating that neither the defendants 1 and 2 nor their father Ramasamy Gounder had knowledge about the settlement deed dated 07.08.1933. The 1st plaintiff had not disclosed the said settlement deed dated 07.08.1933 at the time of entering into the partition deed dated 12.04.1961. The recitals in the partition deed dated 12.04.1961 would reveal that there was an oral partition about 6 to 7 years prior to the said partition. Both the parties to the partition deed dated 12.04.1961 had improved the land and also dealt with their respective shares. Hence, the suit is liable to be dismissed.

4. Based on the above pleadings, the trial court framed necessary issues. The 1st Plaintiff was examined as PW1 and 12 documents were marked. Two witnesses were examined on the side of the Defendant and 17 documents were marked. The trial court based on the materials on record, decreed the suit in favour of the plaintiff, against which, the defendant preferred the appeal suit. The first appellate court reversed the findings of the Trial Court, hence the second appeal has been preferred by the Plaintiffs.

5. Challenging the above judgment and decree passed in A.S. No.43/2018, this Second Appeal is preferred by the plaintiffs.

6.This second appeal is admitted on the following substantial questions of law:

                   “i. Whether the Courts below were right in upholding the validity of Ex.A2 partition deed, more so, when the minor son of Ayee Gounder namely Chinnasamy Gounder was represented by bis brother as a guardian, even though his mother, the natural guardian, was alive?

                   ii. Whether the Courts below were right in upholding Ex.A2, in the absence of the daughters of Ayee Gounder having been made parties to the said document?’’

7. Mr.N.Manokaran, the learned counsel for the appellants would submit that admittedly, Kuppanda Gounder had half share in item 1(6.02 acres) and item 2 (14 anganam house). He had no children, therefore, he had executed Ex.A1 settlement deed dated 07.08.1933 in favour of Ayee Gounder in respect of 2 acres out of 6.02 acres and 7 anganam out of 14 anganam house. Recitals in Ex.A1 clearly indicate that the physical possession has been handed over to the settlee/ Ayee Gounder. During the lifetime of Ayee Gounder, his brother Ramasamy Gounder (father of D1 and D2) did not dispute the settlement deed/ Ex.A1. Under such circumstances, excluding the extent settled under Ex.A1, the remaining extents were alone available for partition on 12.04.1961 (Ex.A2). But after the death of Ayee Gounder in the year 1958, the father of the defendants 1 and 2 had managed to include Ex.A1 properties in Ex.A2 partition deed dated 12.04.1961, detrimental to the interest of the plaintiffs.

8. The learned Counsel for the appellant submits that the stand taken by the Respondents that Ex.A1 settlement deed was not acted upon, is unsustainable for various reasons. Firstly, the defendants have pleaded that neither they nor their father Ramasamy Gounder were aware of Ex.A1 settlement deed dated 07.08.1933, therefore, the defendants were unable to explain their stand. In fact, there was no issue framed with regard to acceptance of Ex.A1 in the suit or a point for determination was raised in the appeal suit. The plea of non acceptance of Ex.A1 is misconceived in view of the legal position settled in :-

                   (i) Renikuntla Rajamma vs. Sarvanamma reported in 2024(9) SCC 445 16.

                   (ii) S.Ganesh vs. Barathirajan reported in 2009(5) CTC 558 10.

                   (iii) K.Jaya vs. Padma reported in MANU/TN/6017/2023, the Hon'ble Division Bench in K.Jaya case held as under:

                   "The action of the civil Court declaring the document invalid on the ground that there is no acceptance is in our opinion totally uncalled for. There was no issue framed in the suit regarding the acceptance or otherwise of the settlement. In fact in the written statement filed, the defendant has specifically pleaded that her father had told her even before execution of the settlement deed that he is going to execute a settlement deed and that she had accepted the same. The document also reads that possession was handed over to the defendant at the time when the settlement was executed. Therefore, the District Court was not right in concluding that the settlement deed is invalid for want of acceptance. We are therefore unable to sustain the judgement of the trial court"

9. The Learned Counsel for the Appellants further submitted that, Ex.A2 partition deed dated 12.04.1961 is void ab initio, as, the 1st plaintiff, aged 21 years then, had allegedly represented his minor brother Chinnasamy, aged 9 years, after the death of their father Ayee Gounder. Admittedly, their mother Tmt. Chinnammal, wife of Ayee Gounder was very much alive. While so, the 1st plaintiff cannot legally act as a guardian for his minor brother Chinnasamy under the Hindu Minority and Guardianship Act, 1956. Section 4 (b) defines "Guardian", Section 4 (c) defines "Natural Guardian" means any of the guardian mentioned in Section 6. Section 6 reads that the natural guardian of a Hindu minor in the case of a boy is "the father", and after him "the mother". Nowhere the Act empowers the brother to act as a natural guardian. Whereas, the Learned First Appellate Court has held contrary to sections 4 and 6 of the Act as under:

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10. The learned counsel further contends that the above reasoning is against law and that the 1st plaintiff can never be a guardian for his minor brother Chinnasamy when his mother Chinnammal was alive. The fact remains that while the parties can afford to remain negligent, the Court cannot. Therefore, Ex.A2 is per se a void document. If a document is void, it need not be challenged in the Court of Law as held in Prem Singh v. Birbal (2006 (5) SCC 353) which read as hereunder:

                   "16. When a document is valid, no question arises of its cancellation.When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity 25. In Balvant N. Viswamitra v. Yadav Sadashiv Muled this Court opined that a void decree can be challenged even in execution or a collateral proceeding holding: (SCC p. 712, para 9)

                   "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null' and 'void. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings"

11. While so, the defendants 1 and 2 claim that Ex.A2 partition is fair, genuine and bonafide. Admittedly, the plaintiffs 2 to 4/ daughters and none of the wives of late Ayee Gounder were parties to the partition deed. Except the 1st plaintiff, aged 21, none others had signed Ex.A2. In fact, the 1st plaintiff and his minor brother Chinnasamy were under a fiduciary relationship with Ramasamy Gounder, who was in a position of active confidence, therefore, the burden of proving fair play in the transaction lies on him as per Section 111 of the Indian Evidence Act, 1872, and not for the plaintiffs to prove negative. To support his contention, he has relied upon the judgment in Krishna Mohan Kul vs. Pratima Maity- 2004 (9) SCC 468- Para 12.

12. The Learned Counsel for the Appellant further contends that the Plaintiffs 2 to 4/Daughters are entitled to get share as per Ex.A1 settlement deed. Under Ex.A1 settlement deed dated 07.08.1933, late Kuppanda Gounder had settled 2 acres out of 6.02 acres and 7 anganam out of 14 anganam house in the name of Ayee Gounder. The properties settled under Ex.A1 are the separate properties of Ayee Gounder, in which his daughters/ plaintiffs 2 to 4 and equally his wives are legally entitled to get equal shares along with the 1st plaintiff Ponnusamy and late Chinnasamy (P5 and P6 are his legal heirs) as per Section 8 (a) of the Hindu Succession Act, 1956, because they are Class I heirs as per the Schedule. Unfortunately, the Ld. First Appellate Court has proceeded as if all the properties are ancestral, and the plaintiffs 2 to 4 were not coparceners. In the absence of any pleadings for "blending" in the written statement, such a conclusion would take away the property rights of the daughters as Class I heir for their father Ayee Gounder.

13. He further submitted that Ex.B1 partition 21.11.1981 cannot operate as Estoppel as held by the Appellate Court as the plaintiffs got 2 acres in item 1 and 7 anganam house in item 2 under Ex.A1 settlement deed. Whereas, without reference to Ex.A1 settlement deed, Ex.A2 partition came into existence, in which, the entire properties was divided without reference to plaintiffs 2 to 4. Where upon, Ex.B1 partition deed dated 21.11.1989 was entered into between the 1st plaintiff and his son. Hence, he would contend that, it does not mean that the right under Ex.A1 has been given up or the plaintiffs are estopped from disputing Ex.A2. The disputed partition deed/ Ex.A2 executed without reference to Ex.A1 settlement deed has no impact on the property right of the plaintiffs, which is now recognized as not only a Constitutional right but also a statutory right. Therefore it is trite law that there can be no estoppel against a statute. To support his contention, he has relied upon the judgment reported in 2022 (19) SCC 388.

14. The Appellant Counsel further submits that Ex.A1 settlement deed dated 07.08.1933 is 90 years old document, which is presumed to be valid as per Section 90 of the Evidence Act. In fact, the father of the defendants 1 and 2 are guilty of misleading the plaintiffs without disclosing their entitlement under Ex.A1. He further contends that the Learned First Appellate Court has not even framed Points for Determination as mandated under Order 41 Rule 31 CPC, except framing the question "Whether this Appeal has to be allowed". Hence the judgement of the First Appellate Court is liable to be reversed. To support his contention, he has relied upon the judgments in :

                   i. Prem Singh Vs. Birbal & Others reported in 2006 (5) SCC 353

                   ii. Renikuntla Rajamma Vs. K.Sarwanamma reported in 2014 (9) SCC 445

                   iii. Krishna Mohan Kul & Another Vs. Pratima Maity & Ors reported in 2004 (9) SCC 468

                   iv. S.Ganesh Vs. Bharathirajan reported in 2009 (5) CTC 558.

15. On the other hand, Mr.D.Muthukumar, learned counsel for the respondent would submit that the Settlement Deed dated 07.08.1933, executed by Kuppanda Gounder in favour of Ayee Gounder and Rangammal, has not been proved to have been acted upon at any point of time. The Appellant has failed to produce a single document to establish possession, enjoyment, or mutation in the name of the alleged donees. Mere registration of a document does not ipso facto transfer title, unless, accompanied by delivery of possession and acceptance by the donee. The learned counsel for the respondent contends that in the absence of subsequent acts of ownership or mutation clearly indicates that Ex.Al remained a dormant document without legal effect. The contention that such deed operated as an independent source of title is wholly misconceived and contrary to the conduct of the parties spanning over several decades.

16. The learned counsel for the respondent submits that the Appellant has not produced any record to show that the 1933 Settlement Deed (Exhibit A1) was ever acted upon. No patta, chitta, adangal, or tax receipts stand in the name of the donees, nor any revenue mutation is shown to have taken place. In the absence of such material, the claim of possession or enjoyment is wholly unsubstantiated. A settlement deed, though registered, is not operative unless accepted and followed by possession. The conduct of the parties from 1933 to 1961 unmistakably shows that the property remained joint and undivided. Thus, Exhibit A1 cannot displace the binding partition that took place subsequently.

17. He further submitted that Ex.A2 the Partition Deed dated 12.04.1961, was executed consciously by the 1st Plaintiff along with his minor brother, represented through their mother. The 1st Plaintiff, being 21 years of age, was legally competent to contract and he voluntarily participated in the said partition, which was acted upon and accepted by all family members. The Respondent Counsel further submits that the plea that the 1st Plaintiff was unaware of Exhibit A1 or that the same was suppressed is an afterthought. The very fact that he subsequently executed Exhibit B1 in the year 1989 in his own capacity, demonstrates his complete acceptance of the 1961 partition arrangement. The partition deed having been validly executed, acted upon, and enjoyed for decades, cannot now be reopened after the passage of more than fifty years.

18. The learned Counsel for the respondents submitted that the contention of the Appellant that he came to know about Exhibit Al only in December 2009 is palpably false and intended solely to overcome the bar of limitation. The 1st Plaintiff, being a signatory to the 1961 partition deed and later executing another deed in 1989, was fully aware of the property and its transactions. The plea of "date of knowledge" under the Limitation Act is inapplicable when the person challenging the instrument was himself a party to it. The claim, therefore, is hopelessly barred by limitation. Having remained silent for over five decades and having derived benefits under the partition, the Appellant is estopped in equity and law from asserting any fresh claim on the basis of an unacted settlement deed.

19. The learned counsel further submitted that the appellant has miserably failed to identify the suit schedule property with certainty. The boundaries, measurements, and extents described in Exhibit Al do not tally with those in Exhibit A2 or the suit schedule. The claim for one acre out of two acres allegedly forming part of four acres covered by Exhibit Al is vague, speculative, and incapable of enforcement. In the absence of specific identification or demarcation, no relief of possession or injunction can be granted. The uncertainty as to the subject-matter of the suit itself is fatal to the maintainability of the claim.

20. The learned counsel further submitted that the Appellant has not sought any declaratory relief regarding ownership or title under the 1933 settlement deed. Without a prayer for declaration, the consequential relief of possession and mandatory injunction cannot be maintained. The Appellant's pleadings themselves disclose uncertainty regarding the existence and location of the alleged property. The courts below rightly held that the suit is defective in its frame and fails on the fundamental ground of lack of title and identity of the property. It is submitted that, the lower appellate court has rendered its findings based on cogent appreciation of oral and documentary evidence. The conclusions reached are supported by law and facts, and no perversity or misapplication of legal principles has been demonstrated by the Appellant. The absence of specific points for determination in the lower appellate court judgment does not vitiate the decision when the reasoning and findings sufficiently address the issues raised. The decree passed is legally sustainable and calls for no interference. To support his contention, he has relied upon the judgment in the case of Sri Mahesh Vs Sangram and Others reported in 2025 SCC Online SC 12.

21.Heard on both sides and records perused.

22. The specific contention of the learned counsel for the appellants/plaintiffs is that, the plaintiffs are entitled for a share in the suit properties on the basis of Ex.A1 settlement deed dated 07.08.1933 executed by Kuppanda Gounder in favour of Ayee Gounder in respect of 2 acres out of 6.02 acres and 7 anganam out of 14 anganam house. It was denied by the defendants stating that Ex.A1 settlement deed was never acted upon and the claim of the plaintiffs is barred by limitation and estoppel. However, neither the trial Court nor the First Appellate Court have framed necessary issue or point for consideration in this regard. Since the First Appellate Court has addressed the above issue and rendered findings in this regard, the absence of specific points for determination in the first Appellate Court judgment does not vitiate the decision of the first Appellate Court. The entire claim of the plaintiffs revolves around the alleged settlement deed dated 07.08.1933 marked as Ex.A1. The plaintiffs submits that Ex.A1 settlement deed executed by Kuppanda Gounder in favour of Ayee Gounder and Rangammal, since he had no children and the recitals in Ex.A1 clearly indicate that the physical possession has been handed over to the settlee/Ayee Gounder. During the life time of Ayee gounder, his brother Ramasamy Gounder, father of the defendants 1 & 2 did not dispute the settlement deed. Under such circumstances, the properties mentioned in Ex.A1 settlement deed were not available for partition took place on 12.04.1961 under Ex.A2. While so, the father of the defendants 1 & 2 manage to include Ex.A1 properties in Ex.A2 partition deed, after the demise of Ayee Gounder in the year 1958, detrimental to the interest of the plaintiffs. However, the plaintiffs failed to prove that the alleged settlement deed was acted upon at any point of time. No single document was produced to establish possession, enjoyment, or mutation in the name of Ayee Gounder and Rangammal. As rightly pointed out by the learned counsel for the respondents/defendants, mere registration of documents does not ipso facto transfer title unless it is accepted by the donee accompanied by delivery of possession. No patta, chitta, adangal, or tax receipts stands in the name of the donees, nor any revenue mutation is shown to have taken place. In the absence of such material, the claim of possession or enjoyment of the donees is wholly unsubstantiated. It would only indicate that Ex.A1 settlement deed was not given effect. Further, there was a partition on 12.04.1961 under Ex.A2 partition deed in which the 1st plaintiff along with his minor brother took part. Subsequently, the 1st plaintiff executed another partition deed in the year 1989 under Ex.B.1 with respect of the properties allotted to him under Ex.A2 partition deed. This would goes to show that he had accepted the partition which took place in the year 1961. Though the plaintiffs would contend that they came to know about Ex.A1 settlement deed only in December 2009 cannot rest their claim based on the above document for the reason that, the 1st plaintiff being a signatory in Ex.A2 partition deed and later executed another partition deed in 1989 between his family members. Having remained silent for over five decades and having derived benefits under the partition, the plaintiffs are estopped in equity and law from asserting any fresh claim on the basis of the said settlement deed. The partition deed having been validly executed, acted upon and enjoyed for decades, cannot now be reopened after the passage of more than 50 years.

23.The next contention of the plaintiffs is that, Ex.A2 partition deed is not valid, since the minor son of Ayee Gounder namely Chinnasamy Gounder was represented by his brother as a guardian, even though his mother, the natural guardian was alive. It is well settled that the natural guardian could not dispose of the share of the minor in the joint family property. But, in the present case, the mother being a widow cannot pursue a share as a lineage under Section 8 of the Act by claiming through her husband as class I legal heir, and the law prevailing at the time of 1961, enables the brother to stand as guardian and to represent the minor, as there is no conflict of interest and the interest of the minor was not deprived.

24.The further contention of the plaintiffs is that, the daughters of Ayee Gounder were not made as parties in Ex.A2 partition deed and therefore, the same is not valid. It is not in dispute that the properties were ancestral in nature on the date of Ex.A2 partition deed (12.04.1961) and therefore, the daughters of Ayee Gounder cannot be construed as coparceners and they did not have right to ancestral property by birth in the year 1961, under the Hindu Succession Act of 1956, until the Hindu Succession (Amendment) Act of 2005 came into force and only when the properties were available for partition. As rightly pointed out by the learned counsel for the respondents/defendants, where rights have crystallized through the acts of parties and decades of enjoyment have ensued, the Courts are slow to unsettle or reopen such arrangement unless the underline instrument is specifically challenged and invalidated. A partition deed which has been accepted and acted upon for over half a century acquires a presumption of correctness and finality. Mere allegations cannot undo the settled legal effect of such a document. Moreover, long standing possession, mutation and subsequent arrangements flowing from an earlier partition reinforce its binding nature, cannot be permitted to reopen the partition unless it is an invalid document. In the present case, no such challenge has been made against Ex.A2 partition deed. Further, after the life time of Ramasamy Gounder his heirs namely the defendants 1 & 2 have executed a partition deed under Ex.B3 on 18.10.2018 dividing the properties allotted to their father under Ex.A2 partition deed. It is therefore, evident that the parties and their descendants have continuously enjoyed their respective shares derived from Ex.A2 partition deed and have created further sub partitions duly recorded and acted upon. Therefore, the rights settled under the 1961 partition deed followed by the 1989 partition deed, cannot be reopened merely because subsequent heirs wish to revisit settled matters. The plaintiffs have absolutely no subsisting right or claim over the suit properties. Their reliance upon Ex.A1 settlement deed is misconceived and untenable. Furthermore, mere assertions of late knowledge about Ex.A1 settlement deed do not ipso facto extend limitation. The pleadings must clearly disclose the circumstances preventing discovery despite the exercise of due diligence. In the absence of such averments, the plea of postponed limitation stands excluded. The statutory requirement of due diligence is a substantive threshold which must be satisfied to displace the ordinary rule that limitation begins to run from the date of execution of the instrument. In the present case, by execution of Ex.A2 partition deed, the plea of date of knowledge is devoid of any legal basis. A barred right to challenge a partition cannot be revived by subsequent heirs. Therefore, an unchallenged partition deed, after expiry of limitation, gain statutory sanctity and it cannot be disturbed unless the deed itself is set aside through a competent legal challenge.

25.In view of the above discussion, this second appeal is devoid of merits. No perversity or infirmity found in the findings of the first appellate Court. All the substantial questions of law are answered against the appellants.

26.In the result,

(i) The second appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

(ii) The decree and judgment dated 24.01.2020 passed in A.S. No.43 of 2018, on the file of the 1st Additional District Judge Coimbatore, is upheld.