Madras High Court
Ramachandran And Jalaja vs Baby, Vatchala, Gowri, Kannan, Sampath ... on 26 March, 2003
JUDGMENT K. Gnanaprakasam, J.
1. The defendants in O.S.No.299 of 1984 on the file of District Munsif, Attur are the appellants before this Court.
2. The suit is one for declaration of the plaintiffs' title to the suit property and for recovery of possession.
3. The case of the plaintiffs in brief is as follows:
The first plaintiff, Munusamy Naidu (since deceased) was the absolute owner of the suit property and out of pressure and coercion, the first plaintiff executed a settlement deed dated 14.05.1980 in favour of the first defendant and the same was cancelled by the first plaintiff on 15.05.1980 itself. The suit property is the house property and possession was not handed over by the first plaintiff to the first defendant.
4. The circumstance under which the first plaintiff had executed the settlement deed is that the first plaintiff came to Attur from Kallakurichi as he had a quarrel with his family and stayed with the first defendant who is none else than his brother's son. The first defendant consoled him and suggested that if the first plaintiff executes a deed of settlement in his favour, it would pave way for re-union of the family members and after such re-union, the deed may be cancelled. It is also stated that the settlement deed was procured as the first plaintiff was under confused state of mind, and only in the said circumstance he had executed the settlement deed in favour of the first defendant. Soon after the execution of the settlement deed, the first plaintiff came to know that the first defendant played a trick upon him and, therefore, the very next day he cancelled the same and intimated the same to the first defendant which was acknowledged by the first defendant on 21.05.1980 itself.
5. The first plaintiff also issued a notice on 11.11.1983 calling upon the first defendant to surrender possession of the suit property. But, instead of complying with the demand of the first plaintiff, the first defendant has created a sham and nominal sale deed in favour of the second defendant on 13.06.1983 and the second defendant knew about the quarrel between the first plaintiff and his family members. Notice was issued to both the defendants and as they have not complied with, the said Munusamy Naidu filed the suit.
6. During the pendency of the suit, Munusamy Naidu died on 29.08.1985 and hence plaintiffs 2 to 7 were brought on record as heirs and legal representatives of the said Munusamy Naidu.
7. The first defendant filed a written statement and the same was adopted by the second defendant. It is contended in the written statement that the first plaintiff is not an ordinary illiterate person as picturised in the plaint. But, on the other hand, he is a bus operator having more than sufficient means and knowledge and contact with the other people and he could not be deceived easily as stated by the plaintiffs. The first plaintiff had executed the settlement deed on 14.05.1980, out of love and affection on the first defendant. The settlement deed was executed when he was in good and sound state of mind and not otherwise and only in the said circumstance, he did not reserve any right to revoke or cancel the settlement deed. As the settlement deed is an unconditional and irrevocable valid deed, it cannot be cancelled and the cancellation is also not valid under law. It is also stated that in pursuance of the settlement deed, possession was given to the first defendant and he got transfer of the names in the Municipal records and patta also has been transferred. The defendants also denied the family dispute as stated by the plaintiffs. As the first defendant became the absolute owner, he had sold the property to the second defendant and the said sale is a valid one and the second defendant is also a bona fide purchaser for valuable consideration of the property.
8. On the above said pleadings, the trial Court has framed the following issues:
i)Whether the settlement deed is valid?
ii)Whether the cancellation of the settlement is valid and binding upon the first defendant?
iii)Whether the second defendant is a bona fide purchaser of the property for valuable consideration?
iv)Whether the plaintiffs are entitled for declaration and recovery of possession?
9. The second plaintiff was examined as P.W.1 and marked Exs.A.1 to A.8. The defendants were examined as D.Ws.1 and 2 and marked Exs.B.1 to B.10.
10. The trial Court, after taking into consideration both the oral and documentary evidence, come to the conclusion that the settlement deed executed by the first plaintiff in favour of the first defendant is valid and the cancellation of the same is not valid and binding upon the first defendant and dismissed the suit.
11. Aggrieved by the said judgment and decree of the trial Court, the plaintiffs filed A.S.No.110 of 1999 before the learned District Judge, Salem, who in turn, set aside the judgment and decree of the trial Court and allowed the appeal. Against which the present second appeal is filed by the defendants.
12. Heard learned Advocate for the appellants and the respondents.
13. Learned Advocate for the appellants would contend that the first plaintiff had executed the settlement deed out of his own will, love and affection on the first defendant. There is no provision in the settlement deed to cancel the same and in the absence of the same, the first plaintiff had no right to cancel the settlement deed and the cancellation is not valid.
14. In the said context, it would be useful to refer Section 122 of the Transfer of Property Act which defines the gift as under:
"122. "Gift" defined.---"Gift" is the transfer of certain movable or immovable 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.
15. According to the first defendant, the gift was made voluntarily and without any consideration and the same was also accepted by the donee, the first defendant and by which process the gift is completed.
16. Section 126 of the Transfer of Property Act deals with,when gift may be suspended or revoked:
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be recoverable wholly or in part at the mere will of the donor is void wholly or in part, as the came may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
None of the conditions set forth in Section 126 of the said Act is available to the first plaintiff and, therefore, the cancellation of the settlement deed made by him is not valid. It is also further submitted that in pursuant to the said settlement deed, the settlor put the settlee, namely, the first defendant in possession of the suit property and he had also taken possession and made improvements in the property.
17. On the contrary, learned Advocate appearing for the respondents/plaintiffs would contend that the first plaintiff after having had quarrel with his family members, came down to the first defendant's house and in such situation, taking undue advantage, the first defendant induced the first plaintiff to execute the settlement deed so that the family members of the first plaintiff would come round and it would pave way for the re-union of the family and only in the said circumstance, the first plaintiff had executed the settlement deed. It is also pointed out that the first plaintiff's wife who was examined as P.W.1 has deposed to that effect. P.W.1 the wife of the donor came in search of the donor and found him in the house of his brother Govindasamy and her husband had informed the circumstance under which the first defendant had obtained the settlement deed and they also came to know that the first defendant was planning to sell the suit property and immediately they made arrangements to cancel the settlement deed and also canceled it, the very next day.
18. It is also argued that though the settlement was executed, the same was not accepted and possession was not given to the first defendant and only in 1983, when the plaintiffs were away, the first defendant brake open the lock and entered into the property. It is also further submitted that the donor came and stayed in the house of the first defendant and only at that juncture, the first defendant had obtained the settlement deed and none of the family members of the first plaintiff knew about the settlement deed and as the first plaintiff was in a most depressed condition with regard to the quarrel in the family, the first defendant took advantage of the same and also coerced and compelled the first plaintiff to execute the settlement deed and he had also fallen a prey to the same.
19. Now we have to consider two points,
i) whether the settlement deed executed by the first plaintiff in favour of the first defendant is true and valid or otherwise it was executed by undue influence (pressure) and coercion?
ii)Whether the deed of cancellation made by the first plaintiff is valid?
20. The term 'undue influence' is defined under Section 16 of the Indian Contract Act 1872 which states as follows:
16.Undue influence defined.
(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another- -
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
21. It is the case of the respondents/plaintiffs that the first plaintiff came to the house of the first defendant only after having had a quarrel in the family and, therefore, he was not having sound state of mind and at that juncture, and in view of the close relationship between the first plaintiff and the first defendant, that is, the first defendant is none else than his brother's son, he was in a position to dominate the will of the first plaintiff and in the given circumstance, he induced the first plaintiff to execute the settlement deed and that, too, on the sweet quoted words that on the execution of the said settlement deed, the family members will come down and they will be united. It is stated that the first plaintiff was completely in the hands of the first defendant and only in the said circumstance, the first defendant got the settlement deed in his favour.
22. Though the plea of undue influence is found and mainly on the basis of the relationship that mere proof of relationship, however near, it may not be sufficient for the Court to assume that one relation was in a position to dominate the will of the other.
23. It is also pointed out that even if any advise is given, it may be influenced but not undue influence. But the circumstances under which the settlement deed came to be executed by the first plaintiff in favour of the first defendant, as explained by the plaintiffs, appears to be more reasonable and convincing. It is also seen that when the first plaintiff's family members came and insearch of the first plaintiff, and they found him in his brother's home, and also came to know about the settlement deed.
24. The proximity between the execution of the settlement deed and the cancellation of the said deed is very much stressed and relied upon by the plaintiff and the first defendant would have misrepresented and misguided the first plaintiff to execute the settlement deed and when the first plaintiff came to know about the trick played by the first defendant, he might have cancelled the settlement deed. One more circumstance, pointed out by the plaintiffs in this case is, that the suit was filed, while the donor himself was alive. It is further submitted that the circumstance under which the settlement deed was obtained by the first defendant was spoken to by the first plaintiff to his wife, the second plaintiff, who gave evidence as P.W.1 and the said statement is also relevant as per Section 32 of the Indian Evidence Act 1872.
Section 32 is as follows:
Statements written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant in the following cases:
(7) Or in document relating to transaction mentioned in section 13, clause (a): When the statement is contained in any deed, Will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
25. It is pointed out on behalf of the respondents/plaintiffs that the settlement deed was procured in the manner as contended by them and only in said circumstance it was canceled and, therefore, the cancellation made by the first plaintiff is valid.
26. Learned Advocate for the appellants/defendants would contend that the first plaintiff was a knowledgeable person and he had executed the settlement deed in favour of the first defendant out of his own will and love and affection and the same was accepted by the first defendant and, therefore, the valid requirements of the settlement as defined under Section 22 of the Transfer Property Act have been fulfilled and, therefore, it cannot be questioned.
27. Secondly, it is also submitted that the settlement deed does not provide for any revocation or cancellation as contemplated under Section 126 of the Transfer of Property Act and in the absence of the same, the cancellation made by first plaintiff is not valid.
28. The appellant also relied upon the case of Murikipudi Ankamma v, T.Narasaya and others reported in A.I.R.(34) 1947 Madras 127 wherein it was held as follows:
"In the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. For if a man will improvidently bind himself up by a voluntary deed, and to reserve a liberty to himself by a power of revocation, the Court will not loose the fetters he has put upon him".
Another decision in the case of R.Kumarasamy Kounder v. V.Ezhumalai Kounder wherein this Court has held as follows:
"Gift once accepted by or on behalf of donee cannot thereafter be revoked under any circumstances"
In the decision J.Kuppuswami Mudali and others v. Mahalingam, (P.Sathasivam,J.,) has held as follows:
"...it is a valid settlement we have to find out whether the settlee has accepted the said document. It is also a settled law that in settlement once the settlee accepts the transfer it is presumed that the said document has been acted upon irrespective of the fact whether the settlee has obtained possession immediately or not. A reading of the entire document Ex.A.1 as pointed out by the two decisions referred to earlier leads to an irresistible conclusion that the power of transfer by the settlee alone has been postponed. As a matter of fact the said Govinda Mudali has not written anything in the said document. Hence the contrary conclusion reached by the trial Court cannot be sustained. On the other hand the lower appellate Court correctly construed Ex.A.1. When there is no provision or reservation in the settlement deed by the settler, namely, Govinda Mudali it is presumed that he has no right to cancel the said settlement deed at a later date. If that is so the cancellation of Ex.A.1 under Ex.B.8 cannot be sustained".
Even the Courts have gone to the extent of stating that gift cannot be revoked for failure of donee to maintain donor in Tila Bewa v. Mana Bewa .
The very same view was taken in the case of Venkatasubiah v. Subbamma reported in A.I.R.1956 A.P.195.
In (S.Thiagarajan v. Saraswathy Kittu and 6 others), (R.Balasubramanian,J.,) has held as follows:
"In this context I perused Ex.A.1 settlement deed. It is a very simple settlement deed executed out of sheer love and affection which the second defendant had towards her daughter/plaintiff. No reservation had been made in this settlement deed for revocation of the same on the happening of any specific event, which was not within the control of the second respondent. Therefore, this ground to have the settlement deed revoked, is not available at all".
29. By placing reliance on the aforesaid decisions it is submitted by learned counsel for the appellants that in the absence of any reservation in the settlement, the donor had no right to cancel and the very cancellation is not valid.
30. In our case, the first plaintiff donor had executed a settlement deed Ex.A.2 in favour of the first defendant who is his brother's son, out of sheer love and affection.
31. The recitals in Ex.A.2 is as follows:
KDrhkp Mfpa ehd; vGjpitj;j jhd brl;oy;bkz;L gj;jpuk;. vdf;F Rahh;$[pjkha; ghj;jpag;gl;L vd; RthjPdj;jpy; mDgtj;jpy; ,Ue;JtUk; brhj;ij U:.4725/00 kjpg;g[s;sij eP vd; cld; gpwe;j mz;zhh; kfd; MdgoahYk; ehd; cdf;F rpwpa jfg;gdhh; MdgoahYk; cd; kPJ vdf;F ,Uf;Fk; mgpkhdj;jpdhYk; vd;dplk; eP brhj;J Mjut[ bra;J itf;fntz;Lbkd;W nfl;Lf; bfhz;ljw;fpz';fp ehDk; xg;g[f;bfhz;L ,d;W jhd brl;oy;bkz;l;?I cd; ngUf;F vGjp itj;J fPH;fz;l brhj;ija[k; cd; RthjPdk; bra;J brhLj;Js;nsd;/ //// ,e;j jhd brl;oy;bkz;il khw;wwnth uj;J bra;aanth ehd; cl;gl vt;tpj mjpfhuKk; chpika[k; fpilahJ/ ,e;jg;go ehd; vGjp itj;j jhd brl;oy;bkz;L gj;jpuk;/
32. The recitals in Ex.A2 are so categorical that out of love and affection which the donor had with the donee, he had executed the settlement deed and also specifically stated that he had given possession of the property and the donee had also taken possession of the same. Above all it is also stated that the donor had no right to revoke the settlement deed in any circumstance. It is, therefore, clear that the donor had not reserved any right to cancel and in the absence of the same, the cancellation deed executed by the donor under Ex.A3 is not valid in law. Though certain circumstances are in favour of the donor, but pleadings and evidence are wanting to establish their case that the settlement deed was obtained by fraud and undue influence or by coercion. That only in the said circumstance, I come to the conclusion that the lower appellate Court was not correct in coming to the conclusion that the settlement deed was procured by the first respondent by misrepresentation and, therefore, it is not valid. Equally the observation of the lower appellate Court that the deed of cancellation Ex.A3 executed by the first plaintiff is valid,is not correct as the donor had not reserved any clause for cancellation of the deed and in the absence of the same the very cancellation is not valid in law.
33. For the said reasons I come to the conclusion tat the settlement executed by the donor in favour of the donee is valid and the cancellation made by the donor is not valid under law.
34. One more aspect in this case has been lost sight of by the Courts below. The first plaintiff having executed settlement deed in favour of the first defendant, the suit filed by the plaintiffs for declaration that he is entitled to the property, without making a prayer to set aside the document (is not valid) which is being questioned.
35. When a party makes such prayer he must first obtain cancellation or the setting aside the document before getting any further relief. This view is taken by this Court in Vellaya Konar v. Ramasamy Konar (ILR 1940 MADRAS 73), wherein it was held that when a person seeks to establish title which cannot be established without removing a decree or instruments to which he himself a party then what will be the ground with which he traces is suit its character must be suit for cancellation of a decree of instrument . In the said view of the matter, the suit as framed by the petitioner is not maintainable.
36. In the result, the second appeal is allowed and the judgment and decree of the lower appellate Court is set aside and the judgment and decree of the trial Court is restored. No costs.