Madras High Court
Dandapani Mudaliar (Died) vs Venkataraya Mudaliar @ Thalinjan ... on 3 August, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2012 CORAM: THE HON'BLE MR.JUSTICE T.RAJA Second Appeal No.1812 of 2000 Dandapani Mudaliar (Died) D.Lakshmi D.Murugavel D.Kadirvel D.Sundararajan D.Jagada D.Vijaya (Appellants 2 to 7 brought on record as L.Rs. of the deceased sole appellant vide order dated 14.7.2011 made in C.M.P.No.11861/2003). ... Appellants Versus Venkataraya Mudaliar @ Thalinjan (Died) R.Selva Ganapathi R.I.Velmurugan Smt.Uma Mageswari (Respondents 2 to 5 brought on record as LRs. of the deceased sole Respondent vide order dated 13.7.2012 made in C.M.P.No.449/2012 and c.M.P.No.14268 of 2004 in S.A.No.1812/2000) ... Respondents Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 18.7.2000 made in A.S.No.66 of 1998 on the file of Principal District Judge, Pondicherry, confirming the judgment and decree dated 30.6.1998 made in O.S.No.1881 of 1996 on the file of the III Additional District Munsif, Pondicherry. For Appellants .. Mr.R.Rajaraman For Respondents .. Mr.A.Muthukumar for Mr.M.Murugesan for R2 to R5. JUDGMENT
The present Second Appeal has been brought by the Defendant against whom both the Courts below decreed the suit by agreeing with the case of the Plaintiff.
2. Brief facts leading to the present Second Appeal is given as under:-
It is a fight between the father and his son. The father was the Plaintiff before the trial Court, the appellant was the Defendant. The Plaintiff/father being the owner of the suit property covered in the donation deed dated 9.7.1954, donated the same to the Defendant/Appellant, by specifically mentioning a recital in the said donation deed that he should take care of the Plaintiff/father and his wife in their old age and also to take care of the welfare of the grand daughters and sons of the Defendant/Appellant. At the time of executing the donation deed the Defendant/Appellant was a minor and after attaining majority the Plaintiff/Respondent averred in the plaint that till 1979 the Defendant/Appellant was maintaining the Plaintiff and his wife and after 1979, he neglected to maintain them. Besides that he was trying to alienate the suit property to third-party and he is also a man of leading luxurious life. The Plaintiff/Respondent also advised the Defendant not to alienate the suit property, but he failed to heed the request of the Plaintiff/Respondent and further attempted to sell the suit property. Therefore, the Plaintiff apprehending that the suit property would be completely obliterated by the Defendant without leaving anything to his children and as the Defendant also miserably failed to take care of the Plaintiff and his wife, finally he was compelled to revoke the Notarial deed dated 9.7.1954 executed by him in favour of the defendant, by way of registered revocation deed dated 7.7.1980. Even after the execution of the revocation deed revoking the donation deed, when the defendant/Appellant was informed by the Plaintiff/Respondent herein, again he did not care for the same and further attempted to alienate the suit property, as a result the father Plaintiff/Respondent issued a notice dated 27.05.1996 calling upon his son the Appellant/Defendant to desist from further alienating the suit property. Again finding no response, the Plaintiff was constrained to file the suit seeking for a declaration that the revocation deed dated 7.7.1980 executed by the Plaintiff is legally enforceable one and it binds the Defendant, and for a consequential relief of permanent injunction restraining the Defendant and his men, agents and servants from interfering with the peaceful possession and enjoyment of the suit property.
3. Opposing the said prayer, the Plaintiff's son Defendant filed a detailed written statement pleading that the suit filed by the Plaintiff was not maintainable either by law or on facts for the reason that the suit was not properly valued by the Plaintiff since the value of the property was more than 8.00 Lakhs. On that basis, it was further pleaded that the trial Court had no pecuniary jurisdiction to try the suit. The further case of the Defendant was that he had been living in the suit property as an absolute owner by virtue of Notarial Deed executed by his father on 9.7.1954, hence the subsequent Deed of Revocation dated 7.7.1980 has not at all enforceable in law as it has no binding effect. Further it was also pleaded that the Notarial Deed being irrevocable in nature, the cancellation deed /revocation deed would not bind the Defendant. Again it was pleaded that after the execution of the donation deed namely Notarial Deed dated 9.7.1954 the Defendant having acquired absolute right and enjoyment over the suit property and he has been paying charges towards Electricity and Water connection for the suit property to the competent authority, hence, no prayer for injunction could be granted against the Defendant as he was also staying as one of the co-owners.
4. In view of the claim and denial made by both the parties, the trial Court took up the matter for trial by framing the following issues:-
i.Is it true that there is no cause of action for the suit?
ii.Is it true that the correct Court Fee is not affixed by properly valued the suit?
iii. Is it true that the suit is not maintainable?
iv. Whether the plaintiff is entitled for the relief sought for?
v.Whether the plaintiff is entitled for judgment and decree as prayed for?
vi. To what relief if any the parties are entitled to?
5. On the side of the Plaintiff, the Plaintiff was examined as P.W.1 and in support of his case Ex.A1 and Ex.A2 were marked. Similarly on the side of the Defendant, the Defendant was examined as D.W.1, but he failed to mark any documents.
6. While dealing with the first issue, as to whether there is cause of action for filing the suit, the trial Court answering the issue against the Defendant, held that the suit was maintainable by giving its reason that as stated in the plaint filed by the Plaintiff/Respondent herein, for filing the suit against the Defendant, there were cause of actions on 6.6.1985, 9.7.1985, 7.7.1980 and 10th August, 1990, since the plaintiff had executed a donation deed on 9.7.1954 and executed a Revocation Deed on 7.7.1980 and also issued notice dated 10th August 1990 calling upon the Defendant not to alienate the suit property. In spite of the notice, when the Defendant failed to respond and further created apprehension in the mind of the Plaintiff it was held that there was cause of action for the Plaintiff for filing the suit.
7. In respect of the second issue as to whether the suit was properly valued and sufficient Court Fee was paid, the trial Court also gave its finding that the suit was properly valued and sufficient Court Fee was affixed.
8. Similarly while coming to the main issue, namely, as to whether the Plaintiff is entitled for the relief sought for, the learned trial Court after tracing the history of the parties after the donation deed dated 9.7.1954 executed by the father/Plaintiff in favour of his son/Defendant also mentioned that the Plaintiff being the father, out of love and affection towards his son, had executed a donation deed on 9.7.1954 with an impression that the Defendant would look after his father and his mother till their life time by maintaining the property, but to his dismay when the Defendant neglected to maintain the Plaintiff and his wife and curiously also attempted to alienate the suit property to third party in order to lead luxurious life, after repeated request from the father/Plaintiff when the Defendant refused to listen to the advise from his father/Plaintiff, the Plaintiff decided finally to revoke the donation deed. Consequently, on 7.7.1980, he executed a registered revocation deed. Even after the execution of revocation deed when the Defendant was attempting to alienate the suit property, the Plaintiff was constrained to file the present suit for the above mentioned prayer. However, during his examination, the Defendant deposed before the trial Court that he had no objection for granting permanent injunction restraining him from alienating the suit property. Since the Defendant had conceded for granting permanent injunction against him as per his deposition, the trial Court has rightly granted permanent injunction against the Defendant. In view of the above reasons, the trial Court decreed the suit for declaration declaring that the revocation deed dated 7.7.1980 executed by the Plaintiff is legally enforceable one and consequently granted permanent injunction restraining the Defendant and his men, agents and servants or any person acting under him from interfering with the peaceful possession and enjoyment of the suit property.
9. Aggrieved by the same, the Defendant filed an Appeal before the learned Principal District Judge, at Pondicherry. The learned Appellate Court after facing the new plea from the Defendant/Appellant herein, that the Notarial deed registered under the French Law cannot be revoked under the Indian Law, inasmuch as the donation in favour of the Appellant having been executed under French Law as Notarial, the same has become irrevocable, the learned Appellate Court by relying upon the provisions of Article 955 of the French Civil Code, it held that as per the said Article 955, the donation can be revoked by the donor for the following reasons:-
i.If the donee has made an attempt against the life of the donor;
ii.if he has been guilty of treating the donor with cruelty, or of committing a serious criminal offence against him, or of seriously insulting him;
iii. If he has refused him the necessaries of life.
In view of the above provisions as the donation was made by the father/Plaintiff to the Defendant/Appellant anticipating his son would take care of him and his wife, but when the donor after some time realized that his son Defendant/Appellant failed to take care of them and also attempted to alienate the suit property, in the light of the provisions of Article 955 of French Civil Code which permits the revocation of the donation made on 9.7.1954, upheld the revocation deed.
10. Aggrieved by the same, the Defendant has filed the Second Appeal and this Court at the time of admission, framed the following substantial questions of law:-
i.Whether the Courts below were right in holding that the plaintiff was entitled to unilaterally revoke the deed of donation dated 9.7.1954 without filing a suit for the same especially after the extension of the Transfer of Property Act to the Union Territory of Pondicherry?
ii.Whether the Courts below were right in holding that the irrevocable Notarial donation deed can be cancelled by the plaintiff by a registered document under Indian Limitation Act?
11. The learned counsel appearing for the appellant while presenting his arguments on the substantial questions of law would submit that both the Courts below were in errors by holding that the plaintiff was entitled to unilaterally revoke the donation deed dated 9.7.1954 without filing a suit for the same especially after the extension of the Transfer of Property Act to the Union Territory of Pondicherry. On elaborating his argument, it was further contended that after the extension of the Indian Laws by the Pondicherry Extension of Laws Act which came into force with effect from 24.05.1968 by giving effect to various Indian Laws with extension to Pondicherry, the Indian Limitation Act also came into force in the Union Territory of Pondicherry from 1.3.1995, therefore, the suit filed on 1.11.1996 is hit by the Limitation Act, which prescribes only three years for filing a suit to give effect to the revocation deed dated 7.7.1980. On that basis he further contended that the trial Court and the Appellate Court losing the judicial sight on the material plea raised before both the Courts below by the Defendant, wrongly allowed the prayer sought for by the Plaintiff/ Respondent, therefore, the same are to be set aside by this Court.
12. In his further submission the learned counsel for the Appellant would submit that even if it is presumed that the Plaintiff/Respondent is entitled to revoke the donation deed by executing another cancellation deed dated 7.7.1980, if at all the Plaintiff/Respondent was aggrieved by any act on the part of the Defendant in alienating the suit property to give effect to the revocation deed dated 7.7.1980, the present suit should have been filed within three years from 7.7.1980. In any event, as the suit was filed on 1.11.1996, it was barred by limitation. Therefore, the concurrent findings are being contrary to the limitation prescribed, the same are required to be interfered by this Court. Finally, he contended that the very purpose of executing the revocation deed dated 7.7.1980, that too, after 26 years from the date of execution of donation deed dated 9.7.1954, has been completely fulfilled in view of the subsequent events, namely, the Plaintiff and the Defendant both of them passed away, therefore, the question of alienating the suit property by the Defendant the son of the Plaintiff cannot be further questioned or challenged as the suit property has already gone to the hands of the Legal Representatives of the Defendant. Therefore, by further agitating the matter before this Court no one would be benefited. On this basis he prayed for closing this matter by setting aside the impugned judgment.
13. In reply to these submissions, the learned counsel appearing for the Respondent would submit that it is not a case where the Plaintiff has executed the revocation deed dated 7.7.1980 i.e. 26 years from the date of executing the donation deed, though in the donation deed dated 9.7.1954 the father with the big hope had gifted the property in favour of his son the Defendant with a specific recital made therein that the Defendant namely his son should take care of his father and mother till his last breath, the Defendant though took care of his parents till 1979, he miserably failed to take care of his parents after 1979 and thereby the Defendant has given a definite cause of action for the Plaintiff to take a decision to cancel the deed of donation. Since Article 955 of French Civil Code also gives exceptional circumstances to revoke any donation deed if the donee commits any breach of the conditions mentioned therein like failure to take care of the parents or if he has committed a serious criminal offence or seriously insulting him or he has refused him the necessities of life, the donor is always at liberty to reconsider the continuance of the deed of donation. As per the reasons mentioned above when the Defendant has deliberately neglected to maintain his father and mother and also further attempted to alienate the suit property in order to lead a lavish and luxurious life, the donor, namely, the Plaintiff, as rightly allowed by Article 955 of the French Civil Code, executed the deed of revocation dated 7.7.1980 and this has been rightly found in favour of the Plaintiff by both the Courts below by giving concurrent finding, therefore, he pleaded, no interference is sought for from this Court.
14. In replying to the other issues namely on the plea of limitation it was further pleaded that the substantive right of the donor to cancel the donation deed subsists for 30 years under the French Law as per Article 2262 of the French Civil Code. The said accrued right is protected and preserved under Section 4(2)(b) of Pondicherry Extension of Laws Act. Therefore, the Plaintiff is always entitled to revoke the donation deed within a period of 30 years from the date of its execution. Accordingly, he has executed the revocation deed dated 7.7.1980. Sadly even after the execution of the cancellation/revocation deed when the Defendant again heedless of the consequences suffered by the Defendant that his donation deed was already cancelled/revoked, again attempted to make alienation of the suit property, the Plaintiff-father finally resolved to file the suit to give effect to the cancellation deed. In fact, there is no need for the Plaintiff to file a suit to nullify the document dated 9.7.1954 as the same was already cancelled by revocation deed dated 7.7.1980. I fully agree with his submissions as they carry merit and substance for more than two reasons. Firstly, when the donation deed was cancelled by executing the registered cancellation deed dated 7.7.1980, the same was also informed to the Defendant. Unfortunately, the correctness of cancellation deed has not been challenged by the Defendant till now. Having allowed the same to exist, it goes without saying that the Appellant/Defendant has accepted the revocation of the donation deed. Secondly, before filing the suit when notice was given to the Appellant/Defendant not to alienate the suit property, the Appellant/Defendant thought it fit to take up this limitation point before the trial Court. To find out the legality of revocation of the donation deed it is apt to extract the provision 955 and 956 of the French Civil Code which runs as hereunder:-
955. A donation inter vivos cannot be revoked for ingratitude, except in the following cases:- (1) If the donee has made an attempt against the life of the donar; (2) if he has been guilty of treating the donor with cruelty, or of committing a serious criminal (q) offence against him, or of seriously insulting (r) him (3) if he has refused him the necessaries of life.
956. If a donation is revoked either because the conditions on which it was given have not been performed, or for ingratitude, the revocation does not take place ipso facto; the donation has to be declared revoked by the Court. (C.10467, 1184). Article 2265 of the French Civil Code, which are given as under:-
2265. A person who acquires an immovable in good faith, and under an instrument which is on the face of it (m) capable of giving a title, obtains a title by prescription to the land in ten years, if the district of the Court of Appeal, in which the owner lives is the same district as that in which the land lies, and in twenty years if the true owner lives outside such district. (C.550, 939, 2266 and following).
15. Mere reading of the above provision particularly Article 2265 of the French Civil Code makes the legal position clear that the plaintiff can revoke the donation deed within the period of 30 years from the date of execution and therefore, the revocation deed registered on 7.7.1980 is quite within the time. The learned Appellate Court has rightly considered this as well. Further, in the present case, as rightly held by the learned first Appellate Court, the institution of Notaries having ceased to exist now, the contention that the donation deed dated 9.7.1954 cannot be cancelled by a mere a document registered under Indian Law, but can be done only by a Notarial deed also is liable to be rejected for the reason that the donation deed was executed on 26.7.1954 when the French Law was in force in the Union Territory of Pondicherry. Later on, after merger of Pondicherry with Indian Union, by introduction of Pondicherry (Extension of Laws) Act, the institution of Notaries had become extinguished, therefore the suit document namely revocation deed dated 7.7.1980 was executed when there was no Notarie system in Pondicherry, because subsequent to the Extension of Indian Laws, it is impossible to get Notarial deed validly executed under French Law canceling another Notarial Deed. While dealing with this issue, the learned first Appellate Court perfectly reached a conclusion on its issue that a solemn duty lies upon the court to strike a harmonious balance between the two systems of law, namely, French system and Indian system during the transition period to see that no substantive rights of parties suffers or denied due to change in law. On this basis, it has rightly found that the accrued substantive rights of parties are preserved under Section 4(2)(b) of the Extension of Laws Act, 1968. When a law or provision requires a person to do an act and by change of law or absence of law such performance becomes impossible a person cannot be denied of his substantive rights on the grounds that the same was not performed. The Legal Maxim lex non cogit ad impossibilia (The law does not compel a man to do that which he cannot possibly perform) would apply. In the light of the above principle, when the entire system was abolished, the Plaintiff/Respondent has rightly executed a document dated 7.7.1980 by way of due registration. Therefore, the document dated 7.7.1980 was rightly held valid on the principles of substantive compliance. Surprisingly, as rightly found by the trial Court the Defendant while standing in the witness box, has deposed during his examination that he had no objection for passing permanent injunction against himself for alienating the suit property. Such a categorical admission made by the Defendant/Appellant herein itself clearly speaks that the Defendant while standing in the witness box before the trial Court during the course of judicial proceedings, has admitted from his own mouth the controversy raised by his father as a Plaintiff that the Defendant should be injuncted from alienating the suit property pursuant to the deed of cancellation. In this context, it is useful to refer to the judgment of mine reported in 2012-4-L.W. 124 (Dharmapuri Handlooms Weavers Co-operative Production & Sales Ltd., rep. by its Special Officer vs. S.Lakshmi W/o C.M.Sivanandam, Bharahipuram, Dharmapuri-5) in which I have held as follows:-
In this context it is useful to extract Section 58 of the Indian Evidence Act, as under:-
58. Facts admitted need not be proved.
No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions A mere reading of the above Section clearly shows that the facts admitted need not be proved. Further it is also relevant to extract Order XII Rule 6 C.P.C., which states that admissions of fact either in the pleadings or otherwise whether orally or in writing can be relied upon to pass a judgment by admitting the admission made by the defendant. Order XII Rule 6 C.P.C. is given hereunder:
6 Judgment on admissions:- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any state of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. A reading of the above also goes to show that Order XII Rule 6 C.P.C., as amended enables the Court to give a judgment, not only on the application of a party but on its own motion. Hence, it is clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it ex debito justitiae, a Latin term, meaning a debt of justice. Thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right, on the principle that admission is the best piece of evidence against the person making such admission.
In the light of the above provision, if this Court takes judicial note of the admission made by the Appellant, the said admission of the Appellant/defendant will certainly enable this Court to approve the judgment of both the Courts below. Accordingly, the substantial question of laws are answered against the Appellant.
16. Before concluding it may be mentioned that when the suit was filed by the Plaintiff/Respondent herein-father of the Defendant and the Defendant himself in the witness box before the trial Court has made an admission that the injunction could be granted against him and on the basis of his own admission made by the Defendant when both the Courts below had decreed the suit, it is too late for the Defendant/Appellant to raise law of Limitation.
17. Therefore, I find no infirmity and flaw in the impugned judgment passed by both the Courts below. Accordingly, by confirming the concurrent findings of both the Courts below, the Second Appeal is dismissed. However, there is no order as to costs.
gr.
To The Principal District Judge, Pondicherry.
III Additional District Munsif Pondicherry