Madras High Court
S.Nagalakshmi vs S.Vijayakumar on 10 February, 2020
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
S.A.No.111 of 2020
IN THE HIGH COURT OF sJUDICATURE AT MADRAS
Dated: 10.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
S.A.No.111 of 2020 &
C.M.P.No.2365 of 2020
1.S.Nagalakshmi
2.S.Palani
3.Maheswari
4.S.Devaraj .. Appellants
Versus
1.S.Vijayakumar
2.The Sub Registrar,
Office of the Sub Registrar,
Kodambakkam,
Chennai - 600 026. .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code
against the Judgment and Decree passed by the learned XVII Additional City
Civil Judge, Chennai in A.S.No.418 of 2018, dated 25.03.2019, confirming
the Judgment and Decree passed by the learned II Assistant City Civil Judge
at Chennai in O.S.No.1917 of 2016, on the file of the learned City Civil
Judge, Chennai, dated 01.03.2018.
For Appellants : Mr.T.Murugamanickam
Senior Counsel
For Mr.K.M.Venugopal
For Respondents : Mr.Arun Anbumani
For Mr.K.Manikannan for R-1
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S.A.No.111 of 2020
JUDGMENT
The suit in O.S.No.1917 of 2016 was instituted by the first respondent for declaration to declare that the unilateral cancellation of settlement deed, dated 17.02.2010 as null and void and to declare that the settlement deed, dated 15.05.2014 as null and void, unenforceable in law; for permanent injunction restraining the defendants, their men and agents from alienating or encumbering the suit property and for permanent injunction restraining the defendants, their men and agents from interfering with the plaintiff's possession and enjoyment over the suit property and for costs.
2. The case of the plaintiff is that the property measuring about 1743 sq.ft comprised in T.S.No.36, Puliyur Village, Egmore-Nungambakkam Taluk bearing Door No.20/10, Gangai Amman Koil 2nd Street, Vadapalani was originally purchased by his mother Devaki Ammal, through sale deed, dated 22.03.1980. Since then, the plaintiff's parents, the plaintiff and his family members were in possession and enjoyment of the property.
3. It is the further case of the plaintiff that his mother Devaki Ammal settled the suit property measuring an extent of 900 sq.ft in favour of the plaintiff by a registered settlement deed, dated 11.09.2007 and on the same day, another settlement deed was executed in favour of the first http://www.judis.nic.in 2 / 17 S.A.No.111 of 2020 defendant, by settling the remaining portion existing in the northern side measuring about 693 sq.ft together with the remaining half share in the common passage. In the above settlement deeds, the plaintiff's mother had reserved and retained life interest for her and her husband and the same was accepted by the plaintiff. The plaintiff's father and mother died on 18.09.2013 and 10.02.2016 respectively.
4. It is further stated that during her life time, the plaintiff had taken care of his mother. The plaintiff constructed a building admeasuring about 600 sq.ft with his own funds. While so, on the very next day of the funeral of Devaki Ammal, the defendants approached the plaintiff and demanded for partition of the suit property and started quarreling with him. Then only, the plaintiff became aware of the fact that his mother Devaki Ammal had unilaterally cancelled the settlement deed executed in favour of the plaintiff by a cancellation deed, dated 17.02.2010 and execution of another settlement deed in favour of the first defendant, dated 15.05.2014. It is alleged that the unilateral cancellation of the registered settlement deed, dated 17.02.2010 was under coercion and undue influence of the defendants.
5. In the written statement filed by the defendants 1 to 4, the allegations and averments made in the plaint were denied and refuted. It is http://www.judis.nic.in 3 / 17 S.A.No.111 of 2020 stated that it is true that Devaki Ammal executed a conditional settlement deed on 11.09.2007, by settling the suit property on the southern side in favour of the plaintiff and northern side in favour of the defendants. In both the settlement deeds, a specific condition was imposed creating life estate in favour of the mother Devaki Ammal and after her life time in favour of the father of the plaintiff and defendants, viz., P.Shankar. During the life time of the deceased Shankar, after the execution of the above settlement deed in favour of the plaintiff, there was difference of opinion among the children of the deceased Devaki Ammal and there was a dispute over the enjoyment of the property.
6. It is further alleged that the plaintiff had not taken proper care and had not given proper maintenance to his mother Devaki Ammal. Therefore, after having dissatisfied with the behaviour of the plaintiff, the mother Devaki Ammal cancelled the settlement deed executed in favour of the plaintiff. It is further stated that only the third defendant maintained Devaki Ammal till her death and the construction was put up by Devaki Ammal and by none else. The limitation period of three years had been lapsed to file the suit from the date of cancellation of settlement deed in the year 2010. Therefore, on the ground of limitation, the suit is liable to be rejected in limini.
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7. On the basis of the above pleadings, the trial Court framed necessary issues. On the side of the plaintiff, the plaintiff examined himself as P.W.1 and Exs.A1 to A12 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B1 to B10 were marked.
8. After considering the oral and documentary evidence, the trial Court decreed the suit. On appeal, the first appellate Court, confirmed the decision of the trial Court. Aggrieved over the same the present appeal has been filed.
9. Mr.T.Murugamanickam, learned Senior Counsel, representing Mr.K.M.Venugopal, learned counsel for the appellant submitted that the Courts below ought to have seen that Ex.A2 was a conditional settlement, permitting possession with the donor and therefore, it is an incomplete gift, where title remains with the donor. Therefore, the donor was within her right to cancel the gift, more specifically the widowed mother was not taken care of by her son, the plaintiff. He further added that the Courts below failed to consider that the suit was barred by law of limitation, hence, the conclusion that the suit was well within the limitation is erroneous.
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10. It is the submission of the learned counsel that the Courts below by following the decision in Renikuntla Rajamma Vs. K.Sarwanamma [(2014) 9 SCC 445] decided in favour of the plaintiff, but in the subsequent decision, in similar facts, the Hon'ble Supreme Court in S.Sarojini Amma with Velayudhan Pillai Sreekumar [2018 (6) CTC 108], held that the conditional gift was an incomplete gift of the property and prayed for interference of this Court.
11. Per contra, Mr.Arun Anbumani, learned counsel, representing Mr.K.Manikannan, learned counsel for the first respondent / plaintiff would contend that the recital in the settlement deed would make it clear that the settlement deed was complete and it was acted upon. The learned counsel by placing reliance on the decision of Hon'ble Apex Court in Namburi Basava Subrahamanyam Vs. Alapathi Hyma Vathi and others [(1996) 9 SCC 388] and Renikuntla Rajamma Vs. K.Sarwanamma [(2014) 9 SCC 445] would argue that the executant while divesting her title over the property could create a life estate for her enjoyment of the property would devolve on the settlee with absolute rights on the settlor's demise and delivery of possession to the donee is not essential condition for execution of valid gift. It is further urged that there is no substantial question of law arises for consideration in this case, in view of the judgment in Seenivasan Vs. Pandiyaraja [2017 SCC OnLine Mad 8644].
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12. In the case on hand, it is the case of the plaintiff that his mother Devaki Ammal purchased a house property bearing Door No.20/10 in Gangai Amman Koil Street, Vadapalani, Chennai, admeasuring an extent of 1743 sq.ft, through a registered sale deed, dated 22.03.1980. Ever since, the plaintiff's family had been in possession and enjoyment of the same. The said Devaki Ammal had settled the suit property to an extent of 900 sq.ft in southern portion together with the half share of the common passage measuring about 75 sq.ft in favour of the plaintiff, through a settlement deed, dated 11.09.2007. To substantiate the same, Ex.A1-sale deed, dated 22.03.1980 and Ex.A2 settlement deed, dated 11.09.2007 were marked. A perusal of Ex.A3 shows that the remaining 693 sq.ft and the half share in the common passage measuring about 75 sq.ft came to be settled in favour of the first defendant.
13. It is the case of the plaintiff that under Ex.A4 cancellation of settlement Deed, dated 17.02.2010, the settlement deed was unilaterally cancelled and she settled the property in favour of the first defendant. The relationship of the parties are not in dispute. The plaintiff would contend that Ex.A2 is an irrevocable settlement deed and hence, the cancellation under Ex.A4 is void. It is the case of the defendants that as a life estate holder, the settlor was within her power to execute Ex.A4-cancellation of http://www.judis.nic.in 7 / 17 S.A.No.111 of 2020 settlement deed, dated 17.02.2010. It is also argued that the suit is barred by limitation.
14. It is found from the evidence of D.W.1 to D.W.4 that even after cancellation of Ex.A4 cancellation of settlement deed, Devaki Ammal was receiving rent till her life time and Ex.A4 was executed without issuing any notice to the plaintiff. The settlor made her intention to settle the suit property in favour of the plaintiff, however, she had retained her right to receive the rent from the suit property till her life time and the lift time of her husband. It is not disputed that the settlor's husband predeceased her. The recital in Ex.A2 further reveals that it is an irrevocable deed of settlement and no power was retained by the settlor Devaki Ammal to cancel the same unilaterally.
15. The Hon'ble Apex Court in S.Sarojini Amma Vs. Velayudha Pillai Sreekumar (supra) observed as follows:-
"16. In Reninkuntla Rajamma v. K. Sarwanamma MANU/SC/0612/2014 : (2014) 9 SCC 445 a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the donee but later revoked.
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17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance.
18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.
19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the Petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the Appellant to the Respondent and the Appellant was within her right in http://www.judis.nic.in 9 / 17 S.A.No.111 of 2020 cancelling the deed. The judgment and order of the High Court cannot, therefore, be sustained."
In the above decision, the deed of transfer was executed for consideration and it was subject to condition that the donee would look after the petitioner and her husband, and that the gift deed would take effect after the death of the donor. In those facts, the Hon'ble Apex Court has held that the gift was incomplete and hence, the petitioner within her right to cancel the deed. It is further observed that they were in agreement with decision in Renikuntla Rajamma (supra). In the said case, the Hon'ble Apex Court held that the fact that the donor had reserved the right to enjoy the property during her life time did not affect the validity of the Deed and the same is valid. Therefore, in my opinion, the decision does not advance the case of the appellants and it is distinguishable on facts.
16. The learned Counsel for the respondents has cited the following judgments in support of his contentions that the settlor while divesting her right / title to the suit property could create a life estate for her enjoyment and that delivery of possession is not an essential pre- requisite for making a valid gift of immovable property.
(i) Namburi Basava Subrahamanyam Vs. Alapathi Hyma Vathi and others [(1996) 9 SCC 388] http://www.judis.nic.in 10 / 17 S.A.No.111 of 2020
5. The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on settlor's demise. A reading of the documents together with the Schedule would give an indication that she had created right and interest in praesenti in favour of her daughter Vimlavathy in respect of the properties mentioned in the schedule with a life estate for her enjoyment during her life time. Thus, it could be construed rightly as a settlement deed but not as a will. Having divested self thereunder, right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter Hymavathy. The trial Court and the learned single Judge rightly negatived the claim. The Division Bench was not, therefore, correct in law in interfering with the decree of the trial Court."
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(ii) Renikuntla Rajamma Vs. K.Sarwanamma [(2014) 9 SCC 445] "16. The matter can be viewed from yet another angle. Section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected" used by Parliament in so far as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by delivery". The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.
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18. We are in respectful agreement with the statement of law contained in the above passage. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. As noticed earlier, Section 123 does not make the delivery of possession of the gifted property essential for validity of a gift. It is true that the attention of this Court does not appear to have been drawn to the earlier decision rendered in Naramadaben Maganlal Thakker (supra) where this Court had on a reading of the recital of the gift deed and the cancellation deed held that the gift was not complete. This Court had in that case found that the donee had not accepted the gift thereby making the gift incomplete. This Court, further, held that the donor cancelled the gift within a month of the gift and subsequently executed a Will in favour of the Appellant on a proper construction of the deed and the deed cancelling the same this Court held that the gift in favour of the donee was conditional and that there was no acceptance of the same by the donee. The gift deed conferred limited right upon the donee and was to become operative after the death of the donee. This is evident from the following passage from the said judgment:
'7. It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is http://www.judis.nic.in 13 / 17 S.A.No.111 of 2020 whether the gift in question had become complete Under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the Respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the Respondent-donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits. It would thus be seen that the donor had executed a conditional gift deed and retained the possession and enjoyment of the property during his lifetime.'
17. In the matter on hand, admittedly Ex.A2 settlement deed is irrevocable and the settlor had divested her right in the suit property, but created only life interest. Therefore, in my considered opinion, the decisions relied on by the learned counsel for the respondents, referred supra, would squarely apply to the case on hand.
18. The Courts below, having appreciated the evidence, in proper perspective and by applying law, held that plaintiff is entitled for relief sought for in the suit. I do not find any illegality or perversity in the findings of the Courts below.
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19. In fine, the Second Appeal fails and the same is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
10.02.2020 Index : Yes/No Internet: Yes/No Speaking order/ Non-Speaking order rns http://www.judis.nic.in 15 / 17 S.A.No.111 of 2020 To
1. The XVII Additional City Civil Judge, Chennai.
2.The II Assistant City Civil Judge, Chennai.
3.The Sub Registrar, Office of the Sub Registrar, Kodambakkam, Chennai - 600 026.
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