Madras High Court
Elayaperumal vs Marutha Muthu on 19 February, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 07.02.2018 PRONOUNCED ON : 19.02.2018 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.1404 of 2003 1.Elayaperumal 2.Periyasamy ... Appellants Vs. Marutha Muthu ... Respondent Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 09.06.2003 made in A.S.No.137 of 2001 on the file of the Principal District Court, Villupuram, reversing the Judgment and Decree dated 08.03.2001 made in O.S.No.1275 of 1995 on the file of the Principal District Munsif Court, Ulundurpet. For Appellants : Mr.T.Gandhi For Respondent : Mr.S.Krishnasamy for Mr.Malath Devapriyan JUDGMENT
This second appeal is directed against the Judgement and Decree dated 09.06.2003 passed in A.S.No.137 of 2001 on the file of the Principal District Court, Villupuram, reversing the Judgment and Decree dated 08.03.2001 passed in O.S.No.1275 of 1995 on the file of the Principal District Munsif Court, Ulundurpet.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for declaration and permanent injunction.
4. The case of the plaintiff, in brief, is that the suit property originally belonged to Karumbayee ammal by way of purchase under a registered sale deed dated 26.02.1938 and Karumbayee ammal was in possession and enjoyment of the suit property and she is the paternal grandmother of the plaintiff and out of love and affection towards the plaintiff, Karumbayee ammal settled the suit property in favour of the plaintiff when he was a minor represented by his father Kaliyaperumal by way of a registered settlement deed dated 23.03.1978 and accordingly, delivered possession of the suit property to the plaintiff represented by his guardian and the plaintiff's guardian, on his behalf, accepted the settlement deed and continued to be in possession and enjoyment of the suit property by obtaining patta and paying kist and the plaintiff, on attaining majority, continued to be in possession and enjoyment of the property by obtaining patta in his name and accordingly, patta has been changed in the name of the plaintiff from old patta No.118 to the new patta No.1039 and except the plaintiff, no one including the defendants are entitled to the suit property and the defendant had not been in possession and enjoyment of the suit property at any point of time. The first defendant is the paternal uncle of the plaintiff and the second defendant is the son of the first defendant. The defendants claiming that they have title to the suit property and attempted to interfere with the possession and enjoyment of the plaintiff in respect of the suit property without any authority and hence, the plaintiff has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that the suit is not maintainable either in law or on facts. It is true that the suit property originally belonged to Karumbayee ammal by way of her purchase under a registered sale deed dated 26.02.1938. However, it is false to state that Karumbayee ammal, out of love and affection towards the plaintiff, settled the suit property in favour of the plaintiff, when he was a minor, represented by his guardian and that, the settlement deed had been accepted by the guardian on behalf of the plaintiff and been in possession and enjoyment of the suit property by obtaining patta, paying kist etc., and it is false to state that the plaintiff, on attaining majority, continued to remain in possession and enjoyment of the suit property by converting the patta in his name and that, the defendants attempted to interfere with his possession and enjoyment claiming that they have title to the suit property. Karumbayee ammal had two sons viz., the plaintiff's father Kaliya Perumal and the first defendant and accordingly, Karumbayee ammal and her two sons above stated were enjoying the suit property as well as the other properties belonging to the family and accordingly, Karumbayee ammal, on account of her ill-health, decided to settle the properties stand in her name in favour of her sons and accordingly, settled the suit property by way of a registered settlement deed dated 23.03.1979. However, the plaintiff's father cunningly deceived Karumbayee ammal, stealthily obtained the above settlement deed in the name of his son and only subsequent to the execution of the settlement deed, it has come to the knowledge of Karumbayee ammal that the plaintiff's father had obtained the settlement in respect of the entire property in favour of his son and accordingly, when the plaintiff's father attempted to sell the suit property in favour of the third party, on coming to know of the same, Karumbayee ammal by way of a cancellation deed dated 31.05.1979 cancelled the above said settlement deed and accordingly, settled the half share in the suit property in favour of the second defendant by way of a registered settlement deed dated 01.06.1979 and accordingly, pursuant to the settlement deed dated 01.06.1979, it is only the second defendant, who had been in possession and enjoyment of the suit property and half share in the Well, electric motor, pumb set etc., and accordingly, the second defendant also took steps to change the patta in his name and presented necessary requisition to the concerned authorities and coming to know of the same, the plaintiff stalled the said proceedings and however, the defendants continue to pay the kist in respect of the suit property and the half share in the suit property is only in the possession and enjoyment of the second defendant and the plaintiff is not in the possession and enjoyment of the suit property as claimed in the plaint and hence, the plaintiff is not entitled to obtain the reliefs sought for and the suit laid by the plaintiff is liable to be dismissed.
6. In support of the plaintiff's case, PWs1 & 2 were examined and Exs.A1 to A5 were marked. On the side of the defendants, Dws1 to 3 were examined and Exs.B1 to 13 were marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the suit. On appeal, the first appellate Court, on an appreciation of the materials placed on record, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff, decreed the suit as prayed for. Impugning the same, the present second appeal has been laid.
8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:
(i) Whether on the facts and in the circumstances of the case, the lower appellate Court was right in holding that the respondent is entitled to get declaration and permanent injunction in respect of the suit schedule property based on Ex.A1 gift deed even though it was not accepted by the settlee and was not acted upon as accepted by PW1 in his evidence?
(ii) Whether the lower appellate Court was right in holding that Ex.B6 which is the revocation of gift deed and Ex.B1 which is the subsequent gift deed are not valid?
(iii) Whether the lower appellate Court can pass a judgment and decree allowing appeal, without consider Exs.B2 to 5, exs.B8 to 13, which are chitta and kist receipts from the year 1980 to 2001?
9. It is not in dispute that the suit property originally belonged to Karumbayee ammal, who is the mother of the plaintiff's father Kaliya Perumal and the first defendant. Now, according to the plaintiff, Karumbayee ammal had settled the suit property in his favour, when he was a minor, on account of her love and affection towards him and the certified copy of the said settlement deed has been marked as Ex.A1 and the same has been accepted by the plaintiff's guardian i.e his father and pursuant to the same, it is only the plaintiff, who has been in possession and enjoyment of the suit property through his father by obtaining patta and paying kist and further, according to the plaintiff, on his attaining majority, he had changed the patta in his name and continued to remain in possession and enjoyment of the suit property and inasmuch as the defendants, without any authority, attempted to interfere with his possession and enjoyment, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
10. Per contra, it is the case of the defendants that Karumbayee ammal, during her ill-health, intended to settle the suit property in favour of her sons equally. However, the plaintiff's father cunningly had obtained the settlement deed marked as Ex.A1 in favour of his son stealthily and later, on coming to know of the same, according to the defendants, Karumbayee ammal cancelled the settlement deed by way of a revocation deed dated 31.05.1979 marked as Ex.B6 and by way of a settlement deed dated 01.06.1979 settled the half share in the suit property in favour of the second defendant, which has come to be marked as Ex.B1 and thus, according to the defendants, it is only the second defendant, who has been in possession and enjoyment of the half share in the suit property settled in his favour by way of Ex.B1 by paying kist etc., and also took steps to change the patta in his name, but, due to the intervention of the plaintiff, the same had been stalled and in any event, according to the defendants, inasmuch as they are in possession and enjoyment of the half share in the suit property and the plaintiff is not in possession and enjoyment of the suit property in entirety as claimed and as the settlement deed relied upon by the plaintiff had been cancelled by the original owner Karumbayee ammal by way of Ex.B6, it is contended by the defendants that the plaintiff is not entitled to obtain the reliefs sought for.
11. To establish that the settlement deed marked as Ex.A1 had been executed in favour of the plaintiff by Karumbayee ammal, the plaintiff has examined one of the attestors to the said document as PW2 and PW2, Irusamuthu, in his evidence, has clearly deposed that Karumbayee ammal had executed Ex.A1 settlement deed in favour of the plaintiff, when he was a minor and that, he had attested the said document alongwith one Nallan and pursuant to the execution of the settlement deed, he has also stated that Karumbayee ammal had entrusted the suit property to the plaintiff and accordingly, the plaintiff had been enjoying the suit property through his father and therefore, from the evidence of PW2, it is seen that the plaintiff has clearly established that Karumbayee ammal had settled the suit property by way of Ex.A1 only in favour of the plaintiff, when he was a minor, represented by his guardian Kaliya Perumal. No doubt, PW2 is the maternal grandfather of the plaintiff. However, the fact remains that when he has clearly deposed about the execution of the settlement deed Ex.A1 by Karumbayee ammal in favour of the plaintiff and when nothing has been culled out from him, during the course of cross examination to discredit his evidence in any manner and as rightly determined by the first appellate Court, the factum of the execution of the settlement deed by Karumbayee ammal in favour of the plaintiff has been clearly established by the plaintiff through the evidence of PW2. That apart, as rightly found by the first appellate Court, the factum of the alleged cancellation of the settlement deed Ex.A1 by Karumbayee ammal by way of Ex.B6 also would go to establish that inasmuch as Karumbayee ammal had settled the property in favour of minor plaintiff under Ex.A1, it is now pleaded by the defendants that subsequently, Karumbayee ammal had chosen to cancel the same by way of Ex.B6.
12. As regards the case of the defendants that the plaintiff's father had stealthily obtained the settlement deed Ex.A1 from Karumbayee ammal in favour of his son, it is found that there is no material forthcoming on the part of the defendants. That apart, Karumbayee ammal in the alleged revocation deed marked as Ex.B6 has not whispered that the plaintiff's father had obtained the settlement deed Ex.A1 as alleged in the written statement and on the other hand, she had chosen to revoke the settlement deed only on the footing that inasmuch as the plaintiff's father attempted to alienate the suit property and as the minor plaintiff was in her custody, according to her, she had chosen to revoke the settlement deed Ex.A1. Therefore, from the recitals found in Ex.B6, it is found clearly that the settlement deed Ex.A1 had not been obtained by the plaintiff's father stealthily from Karumbayee ammal by way of misrepresentation, fraud etc., and in such view of the matter, it is found that the above defence projected by the defendants has been made only for the purpose of the case without any basis.
13. Now, according to the plaintiff, Karumbayee ammal, after settling the suit property in his favour by way of Ex.A1, ceases to have any right over the suit property thereafter and therefore, it is contended by him that the revocation deed marked as Ex.B6 would have no legal force and hence, Ex.B6 is invalid and therefore, the further case of the defendants that the subsequent settlement deed said to have been executed by Karumbayee ammal in favour of the second defendant marked as Ex.B1 also would not have any legal sanctity and therefore, it is contended on behalf of the plaintiff that the defendants, particularly, the second defendant cannot lay any claim in respect of the suit property by way of Ex.B1 settlement deed and the above contentions put forth by the plaintiff seems acceptable.
14. On a perusal of Ex.A1 settlement deed, it is found that by way of the said document, Karumbayee ammal had settled the property and also pursuant to the same, delivered possession of the suit property in favour of the plaintiff as per the recitals contained therein and also did not reserve any right of revocation of the settlement deed with her and also declared that even if she choses to revoke the settlement deed, the same would be invalid and that apart, when it is further seen that pursuant to Ex.A1 settlement deed, the plaintiff has established that he had taken possession of the suit property and been enjoying the same as the full owner thereof by obtaining patta and payment of kist, which documents have come to be marked as Exs.A2 to 5 and accordingly, when it is seen that Ex.A1 settlement deed had been accepted by the plaintiff through his father and the same had come to be acted upon, in the light of the above position, the case of the defendants that Karumbayee ammal had, subsequently, cancelled the settlement deed Ex.A1 by way of the revocation marked as Ex.B6 as such cannot be countenanced in any manner. Accordingly, it is found that considering the legal position with reference to the same, the first appellate Court rightly relied upon the decisions reported in 1990 (1) Law Weekly page 599 (Sarojini ammal and 5 others V. Krishnaveni Ammal alias Baby Ammal and 3 others), 1997 (1) MLJ page 45 (J.Kuppuswami Mudali and others V.Mahalingam) and 1998 (1) Law Weekly page 22 (Pattu Ammal alias Krishnammal V. Balasekar and 2 others) and held that once the settlement deed had been accepted and acted upon as in our present case and when it is further seen that the plaintiff, without any ambiguity, had established that it is only he, who has been in possession and enjoyment of the suit property, pursuant to the settlement deed Ex.A1, it is found that Karumbayee ammal would have no legal authority to cancel the settlement deed thereafter and in such view of the matter, the case of the defendants that Karumbayee ammal had legally cancelled the settlement deed Ex.A1 by way of the revocation deed marked as Ex.B6 and thereafter, settled the half share in the suit property in favour of the second defendant by way of Ex.B1 cannot at all be accepted in any manner as per law.
15. The factum that the plaintiff has established clearly without any ioto of doubt that the settlement deed Ex.A1 had been accepted and acted upon as above discussed and when the defendants have failed to establish that following Ex.A1, Karumbayee ammal had any legal right over the suit property as such, it is found that Exs.B6 & B1 cannot be accorded any legal sanctity and in such view of the matter, I do not find any error in the determination of the first appellate Court that Exs.B6 and B1 would not have any legal authority as such and therefore, it is found that as rightly determined by the first appellate Court, it is only the plaintiff, who has title to the suit property and been in possession and enjoyment of the suit property pursuant to the settlement deed Ex.A1 and in such view of the matter, the defendants, without any authority, are not entitled to to disturb his possession and enjoyment.
16. The case of the defendants that following the attitude of the plaintiff's father to alienate the suit property in favour of the third parties, Karumbayee ammal had chosen to cancel the settlement deed Ex.A1 and therefore, the revocation deed is proper and valid and consequently, the settlement deed marked as Ex.B1 also should be declared as valid document cannot be countenanced, when it is found that Ex.A1 settlement deed on being accepted and acted upon, Karumbayee ammal ceases to have any right over the suit property and in such view of the matter, the position of law as above rightly determined by the first appellate Court in the light of the legal pronouncements, it is found that though Exs.B6 & B1 may be true documents, but, they cannot be declared as valid documents and binding upon the plaintiff and in such view of the matter, no interference is called for in the upholding of the plaintiff's title to the suit property by the first appellate Court.
17. However, it is argued by the defendants' counsel that the defendants have filed various documents to show that they have also been paying kist in respect of the suit property and by way of the same, the Court should hold that the defendants, in particular, the second defendant has half share in the suit property by way of Ex.B1. However, merely from the production of the kist receipts by the defendants marked as Exs.B2 to 5 & 9 to 13, we cannot conclude safely that the defendants, in particular, the second defendant has a valid title to the suit property pursuant to Ex.B1 and when the title deed projected by the defendants is found to be an invalid document as such and as above discussed, it is found that the defendants cannot lay any claim of right over the suit property legally.
18. In support of his contention, the counsel for the plaintiff relied upon the decision reported in 2018-1-L.W.476 (R.Manikandan Vs. Arulmighu Koodamudayar Ayyanar Koil through its Executive Officer, Kalayarkurichi Village, sivakasi Taluk, Virudhunagar District). The principles of law outlined in the above said decision are taken into consideration and followed as applicable to the case at hand.
19. In the light of the above position, considering the evidence of PWs1 & 2 in toto, it is seen that the first appellate Court was right in accepting the case of the plaintiff and granting the reliefs sought for in favour of the plaintiff pursuant to Ex.A1. When the plaintiff has clearly established that the said settlement deed had been accepted and acted upon and accordingly, the first appellate Court had rightly held that the revocation deed Ex.B6 and the settlement deed Ex.B1 would not have any legal sanctity and accordingly, the first appellate Court had rightly not placed reliance upon the kist receipts projected by the defendants as well as the other revenue documents and in such view of the matter, the substantial questions of law formulated in the second appeal are answered against the defendants and in favour of the plaintiff.
In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No 19.02.2018
Internet : Yes / No
sms
To
1.The Principal District Court, Villupuram.
2. The Principal District Munsif Court, Ulundurpet.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN, J.
sms
Pre-Delivery Judgment made
in S.A.No.1404 of 2003
19.02.2018