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The said Settlement Deed is not true, valid, genuine, and not executed by the father voluntarily while he was in a sound disposing state of mind. The first respondent had obtained the Settlement Deed by fraud, undue influence and coercion. It may even be a forged document. The father of the appellant and the respondents was aged about 90 years. At the time of his death he was sick and he had poor eye sight. He died within 36 days from the date of Settlement Deed. There is no reason to disinherit the appellant and the second respondent in respect of a valuable property in Chennai. The first respondent had undue influence over the deceased Mr.Sengodan as he was staying with him. The Settlement Deed is void. The first respondent cannot derive any title under the said Settlement Deed. That apart the second item of the suit schedule property is not the self acquired property of late Mr.Sengodan. He had purchased the property from out of the income from the joint family properties. Therefore, the appellant prayed for partition of the suit property.

7.Mr.R.Thiagarajan, learned counsel representing Mr.P.R.Balasubramanian for the first respondent submitted that the suit for partition is not maintainable in respect of the disputed property as it was not available for partition. The appellant has not prayed for a declaration that the Settlement Deed is void. In the absence of the same,any challenge made to a Settlement Deed cannot be accepted as there is no plea and foundation in that regard. 

                                        (ii)    Whether the first respondent has proved the
                                  settlement deed in accordance with law?

              Point (i)
11. The learned counsel for the first respondent submitted that the suit for partition is not maintainable since, the disputed property is not available for partition. The learned counsel submitted that unless the settlement deed is declared to be void or voidable in terms of Section 31 of Specific Relief Act the suit for partition is not maintainable. On the other hand, the learned Senior Counsel for the appellant submitted that the prayer for declaration would arise only if the appellant was a party to the document. He relied upon the judgment of https://www.mhc.tn.gov.in/judis the Division Bench of this Court in A.S.No.226 of 2013 dated 19.03.2021 A.Suresh vs. Minor Pravishna and others to show that the prayer for setting aside document will arise only when a person suing to invalidate the document is a party to the instrument. If the person suing is not a party to the instrument then such a person need not seek to set aside or cancel the instrument before seeking partition. The Judgment of the Division Bench of this Court has quoted with approval, the Judgment of the learned Single Judge in S.A.No.691 of 2014 R.Shanmugan vs. R.Rangarajan. The relevant portions of the Judgment of the learned single Judge and that of the Division Bench has already been extracted by us. Since the observation of the learned Judge has been quoted with approval by the coordinate bench of this Court, we are in respectful agreement with the said view. Hence, we hold that the appellant need not have specifically prayed for setting aside the settlement Deed while seeking partition. Hence, point (i) is answered in favour of the appellant.
''122. “Gift” defined.—“Gift” is the transfer of https://www.mhc.tn.gov.in/judis certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.'' The learned Senior Counsel submitted that though in the Settlement deed the donor namely the deceased has stated that he had handed over the possession of the property to the first respondent and handed over the documents, the first respondent in his evidence would state that he was not aware of the execution of the settlement deed and also state that he came to know only after his retirement. The learned Senior Counsel for the appellant read to us another portion of the evidence wherein the first respondent had stated that he accepted the settlement on 21/5/2007 itself. We find that there is inconsistency in the evidence of first respondent as regards to the acceptance of the gift deed. However, we are of the view that acceptance of the gift deed has to be inferred from the overall facts and circumstances of the case. On the one hand, it is the case of the appellant that the settlement deed was executed under the influence of the first respondent and on the other hand has pleaded that it was not accepted. That apart, the appellant had not pleaded that the first respondent did not accept the settlement deed either in https://www.mhc.tn.gov.in/judis the plaint or in the reply to the written statement. The appellant's stand that the settlement deed was not voluntary and was executed due to fraud, coercion undue influence etc., are inconsistent with the stand now taken with regard to acceptance. That is the reason why there is no pleading to that effect. The appellant had only stated that the settlement deed was executed at the instance of the first respondent. It is seen that first respondent is in possession of second item of the suit property settled on him and further the settlement deed is in possession of the first respondent. In this regard it will be useful to refer to the observations of the Hon'ble Supreme Court in Daulat Singh v. State of Rajasthan reported (2021) 3 SCC 459, wherein it has been held as follows:-