Madras High Court
S.Palani vs S.Bharathi Dasan (Deceased) on 12 January, 2016
Author: G.Chockalingam
Bench: G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.01.2016
(Judgment Reserved on 11.09.2015)
CORAM:
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
T.O.S.No.22 of 2007 and Tr.C.S.No.449 of 2008
S.Palani .. Plaintiff in T.O.S.No.22 of 2007
Vs.
1. S.Bharathi Dasan (deceased)
2. K.Senthamaraikannan
3. Smt.Kannagi
4. Smt.Saroja
(Amended and defendants 2 to 4 shown
as per order dated 03.08.2011
in A.No.3388 of 20011 in T.O.S.No.22 of 2007)
5. Smt.Rekha
6. Vijailokesh
S/o late S.Bharathi Dasan,
Minor, represented by his next friend,
natural guardian mother Smt.Rekha
(D5 and D6 impleaded as legal heirs of deceased
first defendant, as per order dated 28.09.2012
in A.No.4288 of 2012 in T.O.S.No.22 of 2007)
.. Defendants in T.O.S.No.22 of 2007
1. S.Bharathi Dasan (deceased)
2. Smt.Rekha
3. Vijailokesh
S/o late S.Bharathi Dasan,
Minor, represented by his
next friend, natural guardian
mother Smt.Rekha
(plaintiffs 2 and 3 are brought on record
as legal heirs of deceased sole plaintiff
Bharathi Dasan, as per order dated 28.09.2012
in A.No.4289 of 2012 in Tr.C.S.No.449 of 2008)
.. Plaintiffs in Tr.C.S.No.449 of 2008
Vs.
S.Palani .. Defendant in Tr.C.S.No.449 of 2008
T.O.S.No.22 of 2007 numbered on conversion of O.P.No.607 of 2007, filed under Sections 232 and 276 of the Indian Succession Act, 1925 and Order 25 Rule 5 of the Madras High Court Original Side Rules, praying that Letters of Administration with a Will annexed, may be granted to the plaintiff as the legatee under the Will of the deceased K.Saraswathy, having effect limited to the State of Tamil Nadu.
Tr.C.S.No.449 of 2008 numbered on transfer of O.S.No.782 of 2006 from the file of the City Civil Court, Chennai and the amended plaint filed under Order 7 Rule 1 of the Civil Procedure Code, praying:
(a) to pass a decree declaring that cancellation deed executed by Smt.Saraswathy Ammal on 15.07.2005, vide Doc.No.3011/05 S.R.O. is not valid in law, inoperative and null and void;
(b) to pass a decree for partition and separate possession of plaintiff's half share in suit property at No.21, Bharti Street, Choolaimedu, Chennai-94, fully described in the schedule, by dividing it by metes and bounds and deliver it to the plaintiff, and
(c) for costs of the suit.
For plaintiff in T.O.S.No.22 of 2007
and for defendant in Tr.C.S.No.449 of 2008 : Mr.V.Srinivasa Babu
For defendants 2 to 4 in T.O.S.No.22 of 2007
and for plaintiffs in Tr.C.S.No.449 of 2008 : Mr.V.Manohar
COMMON JUDGMENT
T.O.S.No.22 of 2007 is numbered on conversion of O.P.No.607 of 2007, praying that Letters of Administration with a Will annexed, may be granted to the plaintiff as the legatee under the Will of the deceased Saraswathy, having effect limited to the State of Tamil Nadu.
2. The case of the plaintiff in T.OS.No.22 of 2007 is that Tmt.Saraswathy died on 01.10.2005 and she was ordinarily residing at New No.21 (15), Bharathiyar Street, Murugappa Nagar, Choolaimedu, Chennai-600 094. The deceased, at the time of her death, left immovable property within the limits of the jurisdiction of this Court. The writing hereto annexed, now shown to the plaintiff and marked with letter "A" is the last Will and testament of Tmt.Saraswathy, W/o Senthararaikannan, the mother of the plaintiff herein. It is the further case of the plaintiff that the said Will was duly executed by the deceased at Choolaimedu, Chennai on 10.08.2005 in the presence of witnesses, whose names appear at the foot thereof. Under the said Will, dated 10.08.2005, the deceased has not appointed any executor in the Will. The testatrix signed in all the pages of the Will. The plaintiff communicated the message about the Will executed by the deceased Tmt.Saraswathy to the second defendant herein, but he has not communicated to the remaining three defendants about the Will of the deceased. The plaintiff undertakes to duly administer the property and credits of the said Saraswahy, deceased, in any way concerning her Will by paying first her debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this Court with the Will annexed and also to render to this Court true account of the property and credits within one year. It is the further case of the plaintiff that the amount of assets which are likely to come into the plaintiff's hands, does not exceed in the aggregate sum of Rs.10,60,000/-. The plaintiff has impleaded all the next of kin and other persons interested to be impleaded. It is the further case of the plaintiff that the deceased has left behind the following heirs at the time of her death:
(i) K.Senthamaraikannan (husband) (second defendant);
(ii) S.Bharathi Dasan (son) (first defendant);
(iii) Tmt.Kannagi (daughter) (third defendant);
(iv) S.Palani (son); (plaintiff) and
(v) Tmt.Saroja (daughter) (fourth defendant).
It is the further case of the plaintiff that no application has been made to any District Court, to delegate or to any other High Court for the probate of any Will of the deceased or Letters of Administration with or without the Will annexed of her property and credits. It is further stated by the plaintiff that the said late Tmt.Saraswathy bequeathed her immovable assets situated in Choolaimedu, Chennai, to the plaintiff herein. Hence, the plaintiff prays for the above said relief in T.O.S.No.22 of 2007.
3. The first defendant in T.O.S.No.22 of 2007 has filed written statement stating that the suit is neither maintainable in law nor on facts. The prayer of the plaintiff for the grant of Letters of Administration of the Will alleged to have been executed by Smt.Saraswathy Ammal is neither valid in law nor on facts. The first defendant denies the execution and genuineness of the Will. The plaintiff has come out with false and forged Will. The first defendant further states that his mother Smt.Saraswathy Ammal executed an irrevocable settlement deed on 22.07.2002 in his favour and plaintiff in equal shares in respect of the property bearing Door No.21, Bharathiyar Street, Chennai-600 094, vide Registered Doc.No.2753/03. The recitals in the deed clearly contained that the possession had been handed over to the settlees. It is further stated by the first defendant that the settlor authorised the the plaintiff and the first defendant to change patta, electricity and Corporation taxes in their names. The first defendant being the eldest son and out of love and affection and respect towards her, did not effect transfer during her lifetime. It is further stated that the plaintiff grew inimical towards the first defendant and he became very greedy and wanted to knock of the whole property for himself. He wanted to drive him away from the suit premises. Therefore, the first defendant filed suit in O.S.No.4269 of 2005 before the City Civil Court, Chennai for permanent injunction restraining the defendants therein from interfering with his peaceful possession. During the pendency of the suit, they made mother to cancel the settlement on 15.07.2005, vide Regd.Doc.No.3011/05 at the SRO., Kodambakkam. The reason given in the cancelled deed is that she wanted to administer the property on her own. Already, she was ailing and there is no question of administering the property. It is further stated that on 10.08.2005, a fraudulent Will is alleged to have been executed, giving life estate to the first defendant and absolute estate to the plaintiff. She passed away on 01.10.2005. It is further stated by the first defendant that he filed a suit in O.S.No.782 of 2006 on the file of the City Civil Court, Chennai, for partition against the plaintiff, claiming half share and separate possession of the suit property. The first defendant further states that his mother was ailing and bed-ridden. The plaintiff hatched a plan to bring about forged and fraudulent Will. Taking undue influence of her illness, the plaintiff would have obtained her signature. In any event, Smt.Saraswathy was not entitled to execute the Will, since she had already settled the property in favour of the first defendant and to the plaintiff in equal shares. It is further stated that the settlement is in force. As long as the settlement has not been cancelled by the Court of law, the settlement is very much subsisting and his mother had no right to cancel the settlement deed or execute the Will. It is further stated that the settlement is irrevocable and the signature in the alleged Will had been obtained by the plaintiff by undue influence. The purported Will in respect of which Letters of Administration is sought by the plaintiff, was not validly executed and is inadmissible in law and hence, he prayed that the suit may be dismissed.
4. The second, third and fourth defendants in T.O.S.No.22 of 2007 have filed written statement stating that the settlement deed, dated 22.07.2002 executed by Saraswathy Ammal, was never acted upon and the plaintiff and the defendants 1 and 2 were residing in the property bearing Old Door No.15, New Door No.21, Bharathiyar Street, Choolaimedu, Chennai-600 094, as family members. It is undisputed fact that the plaintiff's mother Saraswathy Ammal was the absolute owner of the house property. In the settlement deed, dated 22.07.2002, she had reserved life interest in her favour and in favour of her husband, the second defendant herein and after their lifetime, equal shares are given in favour of the plaintiff and the first defendant. The first defendant failed and neglected to take care of his mother Saraswathy Ammal and father, the second defendant herein and was dancing to the tune of his wife and father-in-law and gone to the extent of giving criminal complaint against his parents and thereafter filing suit in O.S.No.4269 of 2005 on the file of the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the suit property and had ultimately resulted in cancellation of the settlement deed, dated 22.07.2002 by Smt.Saraswathy Ammal. It is further stated that since the first defendant developed hostile attitude towards his parents and his brother, the plaintiff, his mother Saraswathy Ammal voluntarily registered a cancellation deed on 15.07.2005, vide Doc.No.3011/2005 at SRO, Kodambakkam. The settlement deed dated 22.07.2002 was never acted upon and the recitals in the document are only in papers. The original settlement deed dated 22.07.2002 was never handed over to the first defendant. The changing of name in favour of the beneficiaries in the said deed in the Revenue records of Chennai Corporation with regard to property tax assessment, never took place. The patta also stands in the name of Smt.Saraswathy Ammal. As such, there was no mutation whatsoever effected in the name of the settlee under the settlement deed, dated 22.07.2002 and the first defendant as one among the family members, was in occupation of the first floor. In view of the care taken by the plaintiff towards his parents at their old age, the said Saraswathy Ammal, out of love and affection shown towards the plaintiff, had voluntarily executed a Will, dated 10.08.2005 registered as Doc.No.107/2005 on the file of the SRO, Kodambakkam, bequeathing the property at Old Door No.15, New Door No.21, Block No.10, T.S.No.88, measuring an extent of 1840 Sq.Ft. at Bharathiar Street, Choolaimedu, Chennai-600 094, in favour of the plaintiff with life interest to the second defendant, while she was in sound and disposing state of mind, without any undue influence. In the said Will, the plaintiff's mother clearly explained about the first defendant's conduct of not looking after the needs of the mother Saraswathy Ammal and the father Senthamarai Kannan, which had resulted in the cancellation of the settlement deed. It is further stated that the pleadings in the plaint filed in O.S.No.4269 of 2005 filed by the first defendant, clearly establishes the fact about the hostile attitude shown towards his parents and the plaintiff. The allegations made by the first defendant in his written statement in paragraph 4 are false and misleading. The averments contained in paragraph 5 of the written statement filed by the first defendant, clearly show the hostile attitude developed by the first defendant towards his parents and the plaintiff. The defendants 2 to 4 deny the allegations contained in paragraph 6 of the written statement filed by the first defendant. It is further stated that all the original documents including the settlement deed, dated 22.07.2002 pertaining to the property, was retained by her and the Revenue Records were never changed. The mother herself came to the Registrar Office at Kodambakkam for execution of the Will. The Will executed by Smt.Saraswathy Ammal, dated 10.08.2005 is genuine and it is her ultimate wish to name the beneficiary. The defendants 2 to 4 deny the allegations made in paragraph 7 of the written statement filed by the first defendant. It is further stated that the Will was not executed on fraud or on compulsion and was executed only on sound mind of Smt.Saraswathy Ammal and the defendants 2 to 4 have no objection in granting Letters of Administration in favour of the plaintiff.
5. Tr.C.S.No.449 of 2008 numbered on transfer of O.S.No.782 of 2006 from the file of the City Civil Court, Chennai and the amended plaint is filed by the plaintiff praying, (a) to pass a decree declaring that cancellation deed executed by Smt.Saraswathy Ammal on 15.07.2005, vide Doc.No.3011/05 S.R.O. is not valid in law, inoperative and null and void; (b) to pass a decree for partition and separate possession of plaintiff's half share in suit property at No.21, Bharti Street, Choolaimedu, Chennai-94, fully described in the schedule, by dividing it by metes and bounds and deliver it to the plaintiff, and (c) for costs of the suit.
6. The case of the plaintiff in the amended plaint in Tr.C.S.No.449 of 2008 is as follows:-
(a) The suit property belonged to the deceased first plaintiff's mother Saraswathy Ammal and the defendant is his brother. On 22.07.2002, Smt.Saraswathy Ammal settled the suit property in favour of the plaintiff and the defendant in equal shares, vide Reg.Document No.2753/2002. The recitals clearly contained that the possession had been handed over to the settlees. The settlor had authorised the plaintiff and defendant to change patta, electricity and Corporation taxes in their names. The deceased first plaintiff is the eldest son. Though the deceased first plaintiff was entitled to transfer patta, electricity connection, etc., he did not take any steps to effect transfer during her lifetime, since he loved and respected her very much. In pursuance of the settlement deed, the deceased first plaintiff was put in possession of the suit property in the first floor and thus the settlement deed had been acted upon.
(b) From the very beginning, the defendant has been inimical towards the deceased first plaintiff and he wanted to grab the property and created misunderstanding between the deceased first plaintiff and his father. They joined together and wanted to dispossess the deceased first plaintiff. The deceased first plaintiff filed O.S.No.4269 of 2005 on the file of the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with his possession and an ad-interim injunction was granted by Court. The deceased first plaintiff also impleaded his mother as a party in the suit.
(c) His mother Saraswathy Ammal passed away on 01.10.2005. After her death, by virtue of the settlement deed, dated 22.07.2002, the deceased first plaintiff and the defendant have become the absolute owners of the property. The deceased first plaintiff demanded partition of his half share in the suit property. The defendant declined to effect partition and informed the deceased first plaintiff that settlement deed executed by Smt.Saraswathy Ammal had been cancelled, which was surprise and shock to the deceased first plaintiff. The deceased first plaintiff applied for certified copy of the said cancellation deed and found that it was cancelled on 15.07.2005, vide Regd.Document No.3011/2005.
(d) The cancelled document is illegal, void ab-initio and not binding on the deceased first plaintiff. His mother Saraswathy Ammal would not have cancelled the deed. It is the hand work of the defendant. The settlement deed can be cancelled only by Court of law and not by a registered instrument. The settlement deed can be cancelled by Court of law only on the ground of fraud, threat, mis-representation and coercion. In the said cancellation deed, it is mentioned that she wanted to administer the property by herself. After the death of Saraswathy Ammal on 01.10.2005, in January 2006, the deceased first plaintiff demanded partition and on 19.01.2006, he issued a legal notice and subsequently filed the suit for the reliefs stated supra.
7. The defendant in Tr.C.S.No.449 of 2008 filed written statement stating as follows:
(a) The suit is bad in law for non-joinder of necessary parties. The defendant is the brother of the deceased first plaintiff. It is denied that Smt.Saraswathy Ammal settled the suit property in favour of the plaintiff and the defendant. It is false that the possession had been handed over to them. There is no such settlement deed in force as per the established principles of law. It is denied that the settlor as alleged by the deceased first plaintiff had authorised the deceased first plaintiff and the defendant to change patta, electricity and Corporation tax in their names. The deceased first plaintiff did not take any steps to effect transfer during her lifetime. If it was true that a settlement deed was in force, then the deceased first plaintiff would have acted upon it and made transfers. It is denied that the deceased first plaintiff had been put in possession in the first floor of the suit property.
(b) The deceased first plaintiff was a dancing doll who danced according to the tunes of his wife and father-in-law and he has not given respect or showed love towards his parents. The deceased first plaintiff never looked after his mother and the defendant only looked after his mother, father and his sisters. The defendant denies that the deceased first plaintiff became the absolute owner of the property and demanded partition. The deceased first plaintiff is acquainted with the fact that there was a Will duly executed on 10.08.2005 by the mother in favour of the defendant. Hence, the deceased first plaintiff quarrelled with his mother, father, his sisters and the defendant and made false allegations against them and lodged complaint with the Police. They advised the deceased first plaintiff not to quarrel with his parents and they did not proceed further with the deceased first plaintiff's complaint.
(c) The defendant denies the statement of the deceased first plaintiff in the plaint that the cancelled document is illegal, void ab-initio and not binding on him. The deceased first plaintiff has not come before this Court with clean hands. The deceased first plaintiff was defrauding the Government against the interest and welfare and development of the people of Tamil Nadu by under-valuing the suit property and had not paid correct Court fee. The plaintiffs are not entitled to the reliefs sought for and the defendant prayed for dismissal of the above suit.
8. This Court, by order dated 03.10.2013, framed the following issues for consideration in the respective suits:
T.O.S.No.22 of 2007:
(1) Whether the Registered Will dated 10.08.2005 executed by late Mrs.Saraswathy Ammal is valid in law ?
(2) Whether the settlement deed dated 22.07.2002 executed by late Mrs.Saraswathy Ammal had been acted upon or not ?
(3) Whether the settlor retaining life interest in the settlement deed dated 22.07.2002 can be construed as settlement or Will ?
(4) Whether the deed of cancellation of settlement, dated 15.07.2005 executed by late Mrs.Saraswathy Ammal is a valid document ?
(5) Whether the partition suit filed by the defendants in Tr.C.S.No.449 of 2008 is liable for partition or not, in view of execution of registered Will, dated 22.07.2005 by late Mrs.Saraswathy Ammal in favour of the plaintiff ?
(6) Whether the plaintiff is entitled for Letters of Administration with the Will annexed or not ? and (7) To what other reliefs, the plaintiff is entitled to ?
Tr.C.S.No.449 of 2008:
(1) Whether the settlement deed dated 22.07.2002 executed by late Mrs.Saraswathy Ammal had been acted upon or not ?
(2) Whether the settlor retaining life interest in the settlement deed dated 22.07.2002 can be construed as settlement or Will ?
(3) Whether the deed of cancellation of settlement, dated 15.07.2005 executed by late Mrs.Saraswathy Ammal is a valid document ?
(4) Whether the suit property is liable to be partition or not, in view of execution of registered Will, dated 10.08.2005 by late Mrs.Saraswathy Ammal in favour of the defendant ?
(5) To what other reliefs, the plaintiff is entitled to ?
9. During the course of joint trial in both the suits, on the side of the plaintiffs, the plaintiff in T.O.S.No.22 of 2007 examined himself as P.W.1 (Palani) and P.W.2 R.Kannan and P.W.3 G.K.Settu, were examined and Exs.P-1 to P-6 were marked. On the side of the defendants, the fifth defendant in T.O.S.No.22 of 2007 was examined as D.W.1 (Rekha) and Exs.D-1 to D-3 were marked.
10. For the purpose of convenience, the parties are referred to as they are ranked in T.O.S.No.22 of 2007.
11. It is admitted by both sides that the suit property belongs to Saraswathy Ammal. Further, it is admitted by both sides that Saraswathy Ammal is the wife of the second defendant/K.Senthamaraikannan. The plaintiff-S.Palani and the first defendant-S.Bharathi Dasan are the sons of Saraswathy Ammal and the defendants 3 and 4 are the daughters of Saraswathy Ammal. Saraswathy Ammal died on 01.10.2005. Further, it is admitted by both sides that the plaintiff and the defendants 1 to 4 are the only legal heirs of late Saraswathy Ammal. The deceased Saraswathy Ammal has settled the suit property in favour of her legal heirs viz., the plaintiff and the first defendant and executed a Settlement Deed in Document No.2753 of 2002, on 22.07.2002. Saraswathy Ammal subsequently cancelled the above said Settlement Deed by way of registered Document No.3011 of 2005, on 15.07.2005. The certified copies of the Settlement Deed and Cancellation Deed are marked as Ex.D-1 and Ex.D-2. It is admitted by both sides that during the pendency of the suit, the first defendant viz., Bharathi Dasan died and D.5/Rekha and D.6/Vijailokesh were impleaded as legal heirs of the deceased first defendant/Bharathi Dasan.
12. Learned counsel for the plaintiff contended that since the suit property absolutely belongs to Saraswathy Ammal, she has executed a Settlement Deed on 22.07.2002, which is marked as Ex.P-1 = Ex.D-1. Even though it is termed as a Settlement Deed, it is only a Will. Subsequently, the first defendant/Bharathi Dasan is not having good relationship with his mother Saraswathy Ammal and he filed a suit in O.S.No.4269 of 2005 before the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with his peaceful possession. True copy of the plaint in O.S.No.4269 of 2005 is marked as Ex.P-4 and the certified copy of the judgment and decree dated 21.11.2007 passed in the above suit is marked as Ex.P-5. Since the first defendant/Bharathi Dasan is not having good relationship with his mother Saraswathy Ammal, she cancelled the Settlement Deed Ex.P-1 = Ex.D-1 on 15.07.2005 and the cancellation Deed is marked as Ex.P-2 = Ex.D-2 and subsequently, when Saraswathy Ammal was in sound and disposing state of mind, she executed a Will on 10.08.2005 in the presence of witnesses. The Original Will is marked as Ex.P-3. Under the said Will-Ex.P-3, Saraswathy Ammal bequeathed the suit property to the plaintiff/S.Palani and therefore, he is entitled to the suit property. The plaintiff/S.Palani has filed a petition in O.P.No.607 of 2007 for the grant of Letters of Administration with a Will annexed and the said petition was converted and numbered as T.O.S.No.22 of 2007. Subsequently, Saraswathy Ammal died on 01.10.2005 and the original Death Certificate of Saraswathy Ammal is marked as Ex.P-6. Hence, the learned counsel for the plaintiff prayed that T.O.S.No.22 of 2007 may be allowed and Tr.C.S.No.449 of 2008 may be dismissed.
13. In support of his submissions, learned counsel for the plaintiff relied on the following decisions:
(a) 2015 (2) CTC 365 (Sellayi (deceased) Vs. Valliammal @ Pappu):
"45. The underlined contents of the document under Ex.A2, which is styled as Settlement Deed, imbibes the character of both the documents, viz., Will and Settlement Deed. A document can have only one character and such character can be decided on the basis of the contents of the said document and on that basis, the nomenclature of that document will be decided.
... ..
49. At a time, no document can have two characters. Either it should be a Will or Settlement Deed. No document can be called, simultaneously, as Will or Settlement Deed, even if it be called as both, it cannot be given effect to. In such circumstances, this Court is of the view that since Ex.A2 contains the character of both the two documents, viz., Will and Settlement Deed, it should be held as invalid as it cannot be given effect to."
(b) 1997 (2) SCC 255 (Narmadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker):
"5. Section 122 of the Transfer of Property Act, 1882 (for short, "the TP Act") defines "gift" to mean the transfer of certain existing moveable 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.
6. Acceptance by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving."
(c) ILR (1997) 1 Madras 1156 (Chandma Bibi Vs. Shiek Mohamed Sahib):
"27. Learned counsel for the appellant submitted that there is delivery of possession which makes the gift complete. He also said that the 4th defendant has accepted the gift. It is true that there is a recital in Ex.A-1 that possession was handed over to the 4th defendant and her husband. It is also true that there is a presumption that when there is a statement or declaration by the donor that the property has been delivered, it binds the persons claiming under them. But that is only a presumption which could be rebutted by other evidence. By taking Ex.B-4 and B-1 and the subsequent conduct of the plaintiff and the 4th defendant, it is clear that possession was not handed over, and the recitals in Ex.A-1 remain only in paper and not in reality. Even if possession was handed over, that is only for the purpose of taking the income, which will not confer any right on the plaintiff."
14. Learned counsel for the respondents/defendants contended that even though the entire suit property belongs to Saraswathy Ammal, during her life time, she settled the suit property and she executed a Settlement Deed on 22.07.2002 and as per the Settlement Deed, Saraswathy Ammal has no right to revoke the Settlement Deed unilaterally and the suit property absolutely belongs to the settles of the Settlement Deed. The cancellation deed subsequently executed by the Saraswathy Ammal unilaterally without the consent of others is absolutely not at all maintainable and she has no power to cancel the Settlement Deed already executed. It is further contended by the learned counsel for the defendants that since the suit property already settled, Saraswathy Ammal has no right to execute another Will for the same property in favour of the plaintiff or anybody. Since the deceased Saraswathy Ammal has no right or interest over the suit property after the execution of the Settlement Deed, no right could be conveyed to the plaintiff or he cannot derive any title to the suit property in pursuance of the Will-Ex.P-3. Further, the Saraswathy Ammal has no right or interest over the suit property after the execution of the Settlement Deed and she has no power to execute the Will and the Will cannot be probated as prayed for in the suit in T.O.S.No.22 of 2007. Hence, the Will is properly attested is not at all relevant, since the Saraswathy Ammal has no right or interest over the suit property. The unilateral cancellation of the suit property by Saraswathy Ammal is not valid in the eye of law. As per the Settlement Deed, the plaintiff/S.Palani and the first defendant/S.Bharathi Dasan have got 1/2 share in the suit property. Hence, the learned counsel for the defendants prayed that T.O.S.No.22 of 2007 may be dismissed and Tr.C.S.No.449 of 2008 may be decreed as prayed for.
15. In support of his submissions, learned counsel for the defendants relied on the following decisions:
(a) 1974 (2) SCC 600 (Surender Pal Vs. Saraswathi Arora):
"7. The propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H.Venkatachala Iyengar Vs. B.B.Thimmajamma - 1959 Supp (1) SCR 426 : AIR 1959 SC 443 : 1959 SCJ 507 and Rani Purnima Devi Vs. Kumar Khagendra Narayan Dev - 1962 (3) SCR 195 : AIR 1962 SC 567 : 1962 (1) SCJ 725. In the latter case this Court, after referring to the principles stated in the former case emphasised that where these are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga Vs. Jamsetjee Hormusjee Kanga (AIR 1924 PC 28 : 80 IC 777 : 26 BLJ 579) support the above proposition. Mr.Ammer Ali observed at p.33:
"It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case."
In the light of what has been stated if the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga's case at p.33:
"A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition."
... ... ...
14. Apart from general considerations emerging from the nature of a Will and the circumstances which not infrequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the Will and his or her family. Inferences arising from relationships between a testator and a legatee are certainly so dependent upon the peculiarities of the society or community to which the testator and the legatee belong, their habits and customs, their values, their mores, their ways of thinking and feeling, their susceptibilities to particular kinds of pressures, influences,or inducements that it seems very difficult to reduce them to a general rule applicable at all times and everywhere so as to raise a presumption of undue influence from a particular type of relationship. The only kinds of relationship giving rise to such presumptions are those contemplated in Section 111 of the Evidence Act. Any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114 of the Evidence Act. Such presumptions of fact are really optional inferences from proof of a frequently recurring set of facts which make a particular inference from such facts reasonable and natural. If a particular situation arising from a set of facts, which may raise a presumption elsewhere, is exceptional or unusual here, there could be no question here of applying a presumption arising from a common or natural course of events. A suggested inference of undue influence would then be a matter of proof on the particular facts of the case before the Court. This, we think is the correct legal position here."
(b) 1964 (1) SCR 270 = AIR 1963 SC 1279 (Ladli Parshad Jaiswal Vs. The Karnal Distillery Co. Ltd., Karnal and others):
"25. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-s, (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub-section (3) has manifestly a limited application: the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift."
(c) 1959 Supp (1) SCR 426 = AIR 1959 SC 443 (H.Venkatachala Iyengar Vs. B.N.Thimmajamma):
"38. It is in the light of these circumstances that the direct evidence about the execution of the will has to be considered. The evidence of P.W.1 is really inconclusive on the point about the execution of the will. Apart from the fact that he had no clear recollection as to what happened on the day when he attested the will , this witness has frankly stated that he could not state definitely whether the whole of the document was read over to the testatrix before he put the attesting signature; and it was naturally of very great importance in this case to produce satisfactory evidence that the will was read out to the testatrix and she understood the nature and effect of its contents. On this point even if P.W.1 is believed it does not help the appellant's case. The evidence of P.W.2 cannot carry much weight because his main story that he was present at the time when the will was written is wholly inconsistent with the evidence of P.Ws.3, 4 and 7. That leaves the evidence of the scribe and the appellant himself. The scribe (P.W.3) is a near relation of Kalbagal and even he does not at all support the appellant's case about previous instruction because, according to him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellant's case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P.W.7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr.Iyengar that the evidence of Kalbagal (P.W.4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No.5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P.W.4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagal's evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.
39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath Chatterji Vs. Jahnavi Charn Mukerji, (1928) ILR 56 Cal. 390. In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr.Justice B.B.Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will."
(d) 2009 (3) SCC 687 (Bharpur Singh Vs. Shamsher Singh):
"14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.
15. This Court in H.Venkatachala Iyengar Vs. B.N.Thimmajamma (AIR 1959 SC 443) opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that: (AIR p.451, para 19) one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
16. In H.Venkatachala case (H.Venkatachala Iyengar Vs. B.N.Thimmajamma-AIR 1959 SC 443), it was also held that the propounder of will must prove:
(i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and
(iii) if a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.
It was moreover held: (H.Venkatachala case - H.Venkatachala Iyengar Vs. B.N.Thimmajamma-AIR 1959 SC 443), (AIR p.452 para 20) "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
... ... ...
18. The respondent was a mortgagee of the lands belonging to the testatrix. He is also said to be the tenant in respect of some of the properties of the testatrix. It has not been shown that she was an educated lady. She had put her left thumb impression. In the aforementioned situation, the question, which should have been posed, was as to whether she could have an independent advice in the matter. For the purpose of proof of will, it would be necessary to consider what was the fact situation prevailing in the year 1962. Even assuming the subsequent event, viz., the appellants had not been looking after their mother as has been inferred from the fact that they received the news of her death only six days after her death took place, is true, the same, in our opinion, would be of not much significance.
... ...
20. This Court in Anil Kak Vs. Sharada Raje (2008 (7) SCC 695) opined that court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances play an important role, holding: (SCC p.714, paras 52-55) "52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
... ....
23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testators mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the Will.
(vi) The testator used to sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
(e) 1982 (1) SCC 20 (Indu Bala Bose Vs. Manindra Chandra Bose):
"7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S.63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. (See Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529, H.Venkatachala Iyengar Vs. B.N.Thimmajamma, 1959 Suppl (1) SCR 426 : AIR 1959 SC 443 : 1959 SCJ 507; Rani Purnima Devi Vs. Kumar Khagendra Narayan Dev, 1962 (3) SCR 195 : AIR 1962 SC 567 : 1962 (1) SCJ 725).
8. Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
(f) 2006 (13) SCC 433 (Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao):
"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D.Shende Vs. Tarabai Shedage - 2002 (2) SCC 85 and Sridevi Vs. Jayaraja Shetty - 2005 (2) SCC 784). Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances :
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
(See H.Venkatachala Iyengar Vs. B.N.Thimmajamma - AIR 1959 SC 443 and Management Committee, T.K.Ghosh's Academy Vs. T.C.Palit - 1974 (2) SCC 354 : AIR 1974 SC 1495).
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B.Venkatamuni Vs. C.J.Ayodhya Ram Singh ( 2006 (13) SCC 449 : 2006 (11) SCALE 148), wherein this Court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved.
... ....
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The Court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the Judge even if there exist circumstances of grave suspicion. (See Venkatachala Iyengar (H.Venkatachala Iyengar Vs. B.N.Thimmajamma - AIR 1959 SC 443)."
(g) 2008 (14) SCC 754 (Babu Singh Vs. Ram Sahai):
"12. Indisputably, a Will is to be attested by two witnesses in terms of Section 63(1)(c) of the Succession Act, 1925. Indisputably, the requirement of Section 68 of the Evidence Act, 1872 (the Act) is required to be complied with for proving a will. Section 63(1)(c) of the Succession Act mandates attestation by two witnesses. Thus, not only must the execution of Will be proved, but actually execution must be attested by at least two witnesses. Attestation of execution of Will must be in conformity with the provisions of Section 3 of the Transfer of Property Act.
13. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested.
14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words "at least" have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon.
15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus therefor would be on the objector and not on the offender. (See Savithri Vs. Karthyayani Amma - 2007 (11) SCC 621 : JT 2007 (12) SC 248)."
(h) 1998 (4) SCC 384 (Gurdial Kaur Vs. Kartar Kaur):
"4. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."
(i) 1968 (3) SCR 473 : AIR 1968 SC 1332 (Gorantla Thataiah Vs. Thotakura Venkata Subbaiah):
"7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiah's death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue."
(j) 2011 (2) CTC 1 (Full Bench of Madras High Court) (Latif Estate Line India Ltd. Vs. Hadeeja Ammal):
"59. After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion:
(i) A Deed of Cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a Deed of Cancellation cannot be accepted for registration.
(ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a Deed of Cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor.
(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a Deed of Cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained with the transferor.
(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of Sale Deed on the ground inter alia of fraud or any other valid reasons."
(k) 2015 (2) CTC 465 (B.K.Rangachari Vs. L.V.Mohan):
"10. From the above Judgments, it is clear that the Settlement Deed cannot be cancelled unless either one of the elements of fraud, misrepresentation, undue influence or coercion is present. Such revocation is also possible only through a Civil Court. In S.Ganesan Vs. Bharathirajan (2009 (5) CTC 558), relying upon the Judgment of the Apex Court reported in K.Balakrishnan Vs. K.Kamalam (2004 (1) CTC 145 (SC)), this Court has held that the Settlement Deed would not be invalidated on the ground that possession was not handed over to the donee or because donee failed to mutate the records. The Judgment is squarely applicable to the present facts of the case. In the present case, though the Plaintiffs' could not establish that they were in possession, the fact that the Revenue record was mutated in the name of the 3rd Plaintiff vide Exhibit A2, would only imply that the 3rd Plaintiff had acted upon the Settlement Deed and was in possession till atleast 1994. The documents produced by the Defendant are of the year 1996. The Defendant has only pleaded that the settlement document is a sham document. He has not pleaded that the document was obtained by fraud, misrepresentation, undue influence or coercion. No evidence was produced to that effect. Upon perusal of the Settlement Deed marked as Exhibit A1, it is clear that the Settlement Deed was irrevocable under any circumstances, voluntary and out of abundant love and affection the Defendant had on his father. However, in the Cancellation Deed, the Defendant had claimed that he had executed the settlement without any intention to enforce it. Such a plea does not fall within the ambit of Section 126 of the Transfer of Property Act which reads as under:
"126. 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 revocable wholly or in part, at the mere will of the donor, is valid wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want of 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."
Upon perusal of the Sale Deed marked as Ex.B1, it is clear from the entry in the last page that the sale consideration was paid only by the 3rd Plaintiff for the purchase of the property. The Entry reads as under:
@vd; Kd; U:/1.500-? U:gha; Mapuj;J IE}W kl;Lk; vGjp th';Fk; nkhfDf;fhf bt';flhrygjp ma;auhy; vGjpf; bfhLg;gtUf;Fr; brYj;jg;gl;lJ/@ The Defendant at the time of purchase of the property would have been only about 23 years in the year 1976 as per the age specified in the Plaint in O.S.No.225/1993. Therefore, when he executed the Settlement Deed in 1981, he was 28 years of age and was of sound mind. In the Settlement Deed, it has been categorically mentioned by the Defendant that the 3rd Plaintiff has made several contributions to him. Having executed the Settlement Deed voluntarily, the Defendant cannot be permitted to plead that the Settlement Deed executed by him was without any intention and is only a sham document. Both the Courts below have failed to look into the aspect. Similarly, the Courts below have also ignored the settled proposition of law that the Settlement Deed cannot be revoked unilaterally and that too except with the intervention of the Civil Court. The Courts have also failed to give any finding regarding the same warranting interference by this Court."
(l) 2008 (1) CTC 284 (Rajagurusamy.P. Vs. The Sub-Registrar):
"9. Now, the contention put forth by the learned Additional Government Pleader, is that Sec.32-A of the Registration Act was amended only on 28.6.2006; that it could not be given retrospective effect, but only prospective effect, and under the circumstances, the registration of the cancellation deed by the first respondent on 25.8.2005, which was prior to the amendment, cannot now be challenged. This contention, though attractive at the first instance, cannot be countenanced in law for the reason that though the amendment has been made on 28.6.2006, this Court is of the considered opinion that once there was an agreement entered into between the parties, and it has also been registered on 23.5.2005, now it has been unilaterally cancelled at the instance of one party even without notice, which would suffice to quash the same. If a bilateral agreement which was placed by the parties for registration, is allowed to be cancelled by way of registration of another document namely deed of cancellation, even without the other party being put on notice, will be not only against the principles of law, but also against the principles of natural justice. Under the circumstances, such an act cannot have a sanction in law. Hence, the cancellation of the agreement dated 23.5.2005, by the first respondent, Sub Registry, has got to be necessarily quashed. Accordingly, it is quashed, and this Writ Petition is ordered. No costs. Consequently, connected M.P. is closed."
(m) 2009 (4) CTC 627 (Division Bench of Madras High Court) (A.S.Elangode Vs. A.Palanichamy):
"10. In this context, we may also refer to Section 32-A of the Indian Registration Act providing that all such deeds shall be signed by the vendor as well as the purchaser and the same shall also bear the finger prints and photographs. Section 34 of the Act also needs a reference, whereby the Registering Authority is mandated to hold an enquiry in respect of the validity of the document presented for registration. Having regard to the above provisions, in our opinion, a registered sale deed, if sought to be cancelled, registration of such deed must be at the instance of both the parties viz., bilaterally and not unilaterally. Section 34-A of the Act, whereby the Registering Authority is to enquire whether or not such document was executed by the persons by whom it purports to have been executed. A sale is essentially an executed contract between two parties on mutual agreed conditions. Question is as to whether such contract can be unilaterally rescinded, particularly, in a case of sale deed. In this context, we may refer to Section 62 of the Indian Contract Act, 1872 which provides that contract which need not be performed. By that provision, any novation, rescission and alteration of a contract can be made only bilaterally. A deed of cancellation will amount to rescission of contract and if the issue in question is viewed from the application of Section 62 of the Indian Contract Act, any rescission must be only bilaterally. See City Bank N.A. Vs. Standard Chartered Bank and others, 2004 (2) CTC 374 (SC) : 2004 (1) SCC 12.
11. Much reliance was placed to the Full Bench judgment of Andhra Pradesh High Court in Yanala Malleshwari and Others Vs. Ananthula Sayamma and Others, 2007 (1) CTC 97 (F.B.)(A.P.), wherein it was held that the cancellation of agreement of sale unilaterally by one party to the agreement is valid. Pursuant to the judgment, the Government of Andhra Pradesh introduced Rule 26(k) to the Andhra Pradesh Registration Rules by means of amendment dated 29.11.2006, which reads as follows:
"(i) The Registering Officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyance on sale before him that such cancellation deeds are executed by all executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that the Registering Officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyance on sale before him if the cancellation deed is executed by a Civil Judges or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registrable by any provision of law.
(ii) Save in the manner provided for above, no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation of registration."
12. The said Rule 26(k) was challenged before the Andhra Pradesh High Court in Kalitha Narasimha Vs. The State Government of A.P., rep. by its Principal Secretary, W.P.No.3741/2007 by contending that the same is ultra vires of the provisions of the Registration Act, 1908 and is contrary to the judgment of the Full Bench in Yanala Malleshwari and Others case. The Division Bench of the Andhra Pradesh High Court, by order dated 13.3.2007, while upholding the said Rule, has held as follows:
"In our opinion, the impugned Rule does not in any manner violate the ratio of the majority judgment of the Full Bench. Rather, as mentioned above, it is a statutory embodiment of one of the rules of natural justice and is intended to certain unnecessary litigation emanating from the ex parte registration of cancellation deeds."
13. As indicated in the above judgment, the Principles of Natural Justice are also to be adhered to by the Registering Officer while dealing with a deed of cancellation of sale. If a unilateral cancellation deed is allowed to be registered, without the knowledge and consent of the other party to the earlier contract, as held by the Division Bench of the Andhra Pradesh High Court, such registration would cause violence to the Principles of Natural Justice and lead to unnecessary litigation emanating therefrom."
(n) 2014 (3) CTC 113 (D.V.Loganathan Vs. The Sub-Registrar):
"6. In fact the registration of cancellation of the Settlement Deed is against the Public Policy as it was not open to the Sub-Registrar to register the cancellation of the Deed, when the Settlement Deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the Settlement Deed, he could have very well approached the Civil Court to set it aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub-Registrar. The Cancellation Deed and its registration, therefore, being without jurisdiction, is liable to be set aside. In fact in the above unreported Judgment dated 1.3.2012 made in W.P.No.17983 of 2011 (cited supra), the learned Single Judge of this Court has held as follows:
"10. On consideration, I find that this Writ Petition deserves to succeed, as per Section 156 of Transfer of Property Act, except for the condition stipulated therein, the Gift Deed is irrevocable. It is not disputed that the none of the condition entitling revoking of Gift Deed exists in this case, as the Gift Deed was irrevocable and unconditional, it was not open to Respondent No.2 to register the Cancellation Deed being opposed to the public policy. The impugned Order of registration, therefore, cannot be sustained in law, in view of the decision of the Hon'ble Full Bench of this Court and decision of the Hon'ble Kerala High Court in Latif Estate Line India Limited Vs. Hadeeja Ammal."
For the reasons stated above the registration of impugned Deed of Cancellation therefore, cannot be sustained in law being against public policy."
16. It is admitted by both sides that Saraswathy Ammal is the absolute owner of the suit property. Further, it is admitted that Saraswathy Ammal had voluntarily executed a Settlement Deed-Ex.P-1 = Ex.D-1, on 22.07.2002. It is useful to extract the Settlement Deed-Ex.P-1 = Ex.D-1, which reads as follows:-
"jhdbrl;oy;bkz;;l; gj;jpuk;; 2002-Mk; tUlk;. $%iy khjk; 22-e; njjp. brd;id - 600 094, ghujpahh; bjU. fjt[ bek;gh; - 15 vd;w tpyhrj;jpy; trpf;Fk; jpUthsh;/ bre;jhkiuf; fz;zd; mth;fspd; ghhpahs; jpUkjp/v!; ru!;tjp mk;khs; Mfpa (a) (ehd;) (1) vdJ Fkhuh;fs; Rkhh; 31 taJs;s jpU/v!;/ghujpjhrd; - (1), kw;Wk; Rkhh; 28 taJs;s jpU/v!;/gHdp - (2) Mfpa c';fs; ,UtUf;Fk;; brd;id - 600 094, r{isnkL. ghujpahh; bjU. KUfg;gh efh;. fjt[ bek;gh;/15 vd;w tpyhrj;jpy; trpf;Fk; jpU/ bre;jhkiuf; fz;zd; mth;fspd; ghhpahs; Rkhh; 49 taJs;s jpUkjp/v!; ru!;tjp mk;khs; Mfpa ehd; vd; KGkd rk;kjj;JlDk;. ahUila Jhz;LjYkpd;wpa[k;. jphpfuz Rj;jpaha; Ra g[j;jpa[ld; vGjpf;bfhLf;Fk; jhdbrl;oy;bkz;l; gj;jpuk; ahbjdpy; .............. .2. ,jd;fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jhdJ brd;id khtl;lk;. vGk;g{h; - E';fk;ghf;fk; tl;lk;. bek;gh;/109, "g[ypa{h; fpuhkk;". giHa fjt[ bek;gh;/15, g[jpa fjt[ bek;gh;/21 ghujpahh; bjU. r{isnkL. brd;id - 600 094, o/v!;/bek;gh;/88. gpshf; bek;gh;/ 10. gl;lhg;go o/v!;/bek;gh;/88/43 tp!;jPuzk; gj;jpug;go 1840 rJuo. gl;lhg;go 1847 rJuof;bfhz;l brhj;jpid ehd; vd;Dila fc&;lhh;$pj Rag;gzj;ijf;bfhz;L 19.06.1980 Mk; njjpapy;. nfhlk;ghf;fk; rhh;gjpthsh; mYtyfj;jpy; 1-k; g[j;jfk;. 738 tJ thy;a{k;. 423 Kjy; 428 tiuapyhd gf;f';fs; 1980 - Mk; tUlj;jpa 2622 - Mk; Mtzbek;guhf gjpt[ .............. .3. bra;ag;gl;l fpiuag; gj;jpug;gof;F jpU/f/Rg;igah mth;fsplkpUe;J Rj;jtpf;fpiuak; bgw;Wk;. md;WKjy; ehDk; nkw;go brhj;jpid vd;Dila RthjPdk; bra;Jf;bfhz;L mjpy; tPl;oid mikj;Jf;bfhz;Lk;. kpd; ,izg;g[ tifawhf;fis Vw;gLj;jpf;bfhz;Lk; rh;t mf;F chpikfSld; rh;t tpy;y';f Rj;jpaha; Mz;lDgtpj;Jf;bfhz;L tUfpd;nwd;/ nkw;go vd;dhy; fpiuak; bgwg;gl;L rh;tmf;F chpikfSld; Mz;lDgtpj;J tUfpd;w gj;jpug;go 1840 rJuo gl;lhg;go 1847 rJuof;bfhz;l brhj;jpid eP';fs; ,UtUk; vd;Dila kfd;fs; vd;fpd;w fhuzj;jpdhYk;. c';fs; nky; vdf;Fs;s md;gpdhYk; Mrhghrj;jpdhYk;. .............. .4. c';fs; ,UtUf;Fk; xU ey;yJ bra;a ntz;Lk; vd;w ey;byz;zj;jpdhYk;. gpw;fhyj;jpy; c';fSf;F cjt[k; tifapy; xU Vw;ghL bra;antz;Lk; vd;w fhuzj;jpdhYk; U:gha;.2,00,000/- (vGj;jhy; U:gha; ,uz;L yl;rk; kl;Lk;) kjpg;g[k;. bgWkhdKk; jhsj;jFe;j ,jd;fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jpid ,d;W njjpapy; c';fs; ,Uthpd; bgahpy; jhdbrl;oy;bkz;l; gj;jpuk; vGjp itj;Jk;. c';fs; ,Uthpd; RthjPdj;jpy; xg;gilj;Jk; tpl;nld;/ .............. .5. Mifahy; eP';fs; ,UtUk; (d) ,jd;fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jpid c';fs; ,Uthpd; RthjPdk; bra;Jf;bfhz;Lk;. brhj;jpw;Fhpa khefuhl;rp fl;ol thp tifawhf;fisa[k;. kpd; ,izg;g[ tifawhf;fisa[k;. gl;lhita[k;. FoePh; & fHpt[ePh; ,izg;g[ thp tifawhf;fisa[k; c';fs; ,Uthpd; bgahpy; khw;wpg; bgw;Wf;bfhz;L mDgtpj;Jf;bfhz;Lte;Jk;. (b) vd;Dila $Ptpj fhyj;jpw;Fg;gpwF. c';fSila ,c&;lk;nghy; c';fs; ,Uthpd; g[j;jpu bgsj;jpu ghuk;ghpakha; tpj;bjhj;jp jhdhjp tpdpkpatpf;fpiua';fSf;F nahf;fpakha; rh;t mf;F chpikfSld; rh;t tpy;y';f Rj;jpaha; vd;bwd;iwf;Fk; Mz;lDgtpj;Jf;bfhs;s ntz;oaJ/ .............. .6. mg;go eP';fs; ,UtUk; ,jd;fPH; brhj;Jtptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jpid c';fs; ,Uthpd; RthjPdk; bra;Jf;bfhz;L rh;t mf;F chpikfSld; Mz;lDgtpj;Jf;bfhs;tjpy; vdf;Fk;. vd;Dila ,ju thhpRfSf;Fk;. re;jjpapdUf;Fk;. kw;Wk; cs;s vtUf;Fk; vt;tpjkhd brhe;jKk;. rk;ge;jKk;. ghfmf;F ghj;aija[k;. gpd;bjhlh;r;rpfSk;. chpikf;bfhz;lhLk; mjpfhuKk; VJk; ,y;iy vd;W ,jd; K:yk; cWjp mspf;fpd;nwd;/ .............. .7. ,jd;fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jpd; kPJ ahbjhU fyd;tpy;y';fk;. rh;f;fhh; rptpy;. fphpkpdy; jhth tHf;Ffs;. kid mst[ jfuhW. Fj;jif Kd; jhdk;. mlkhdk; VJkpd;wp rh;t kf;F Rj;jpahfnt cs;sJ vd;Wk; ,jd;; K:yk; cWjp mspf;fpd;nwd;/ ,d;WKjy; ,jd;fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;jpw;F jpU/v!;/ghujpjhrd; - (1) kw;Wk; jpU/v!;/gHdp - (2) Mfpa eP';fs; ,UtUnk g{uz KG chpikahsh;fs; vd;Wk; ,jd; K:yk; cWjp mspf;fpd;nwd;/ .............. (c) .8. ,e;j brl;oy;bkz;l; gj;jpuj;ij vf;fhuzj;ijf;bfhz;Lk; ve;j rkaj;jpYk; uj;J bra;akhl;nld; vd;Wk; ,jd; K:yk; cWjp mspf;fpd;nwd;/ ,e;jg;gof;F ehd; vd; KGkd rk;kjj;Jld; rk;kjpj;J vGjpf;bfhLf;Fk; jhdbrl;oy;bkz;l; gj;jpuk;/"
17. The husband of late Saraswathi Ammal viz., Senthamarai Kannan, who is the second defendant, is one of the attesting witness to the above Settlement Deed. On a reading of the entire Settlement Deed-Ex.P-1 = Ex.D-1 executed by late Saraswathi Ammal, it is very clear that Saraswathi Ammal, on the date of settlement itself, transferred the title of the property and handed over possession to the settles i.e., two sons viz., S.Barathi Dasan and S.Palani. Saraswathy Ammal has also specifically mentioned her willingness to transfer the patta in favour of the settles. Further, she has specifically admitted that she will not cancel the Settlement Deed after the execution of the Settlement Deed. Even though the learned counsel for the plaintiff contended that after the execution of the Settlement Deed, the plaintiff transferred the patta in the name of Bharathi Dasan and he has also paid tax receipts, he has not produced any documents before this Court. Further, the first defendant/Bhartahi Dasan, after the execution of the Settlement Deed, filed a suit before the City Civil Court in O.S.No.4269 of 2005 praying for a decree for permanent injunction restraining the defendants therein, their men or agents from interfering with the peaceful possession of the plaintiff at premisses No.No.21, Bharathiar Street, Murugappa Nagar, Choolaimedu, Chennai, except in accordance with law and for costs and other reliefs. In the plaint, the first defendant/S.Bharathi Dasan has specifically averred that he is residing in the suit property and since there is some misunderstanding between himself and his parents, the defendants bodily threatened him and therefore, he filed the said suit in O.S.No.4269 of 2005 for permanent injunction not to evict except in due process of law. The above suit was contested by the defendants in the suit and judgment was delivered in the said suit on 21.11.2007 and the certified copy of the judgment and decree passed in O.S.No.4269 of 2005 is marked as Ex.P-5. The operative portion of the judgment and decree passed in O.S.No.4269 of 2005 reads as follows:-
"10. Issue No.2.
In view of the findings on Issue No.1, the plaintiff is not entitled a relief for permanent injunction against co-owner in respect of the suit property, but he is entitled to continue to enjoy the property as a co-owner. Hence, I answered this issue accordingly.
11. In the result, the suit is allowed partly with the direction the plaintiff is permitted to enjoy the suit property as a co-owner."
18. As against the judgment and decree passed in O.S.No.4269 of 2005, no appeal was preferred by either parties and the said judgment has become final. It is an admitted fact that as per the Settlement Deed-Ex.P-1 = Ex.D-1, the plaintiff/S.Palani and the first defendant/S.Bharathi Dasan are the settles of the suit property and they are equally entitled to the suit property. Hence, as per the above judgment, the right of the first defendant/S.Bharathi Dasan is recognised by the Competent Court that he is entitled to enjoy the suit property as a co-owner. Hence, the judgment passed in the above suit in O.S.No.4269 of 2005 confirmed the right of the first defendant/S.Bharathi Dasan as a co-owner in the suit property and in pursuance of the Settlement Deed executed by Saraswathi Ammal, the first defendant/S.Bharathi Dasan has got right for 1/2 share in the suit property. Further, co-owner is Palani, who is the plaintiff in T.O.S.No.22 of 2007. In view of the above fact, the Settlement Deed-Ex.P-1 = Ex.D-1 is acted upon and the right of the first defendant/S.Bharathi Dasan is declared by the Competent Court as a co-owner to the suit property.
19. Learned counsel for the plaintiff would contend that even though the nomenclature of the document Ex.P-1 = Ex.D-1 is termed as a Settlement Deed, it is only construed as a Will. After the execution of the above Settlement Deed- Ex.P-1 = Ex.D-1, the same was cancelled on 15.07.2005 by way of registered document No.3011 of 2005, which is marked as Ex.P-2 = Ex.D-2. This Court already construed the above said document Ex.P-1 = Ex.D-1 as Settlement Deed and in pursuance of the Settlement Deed, title of the property was transferred to the settles and the settles are allowed to transfer the patta. The settlor has given consent to transfer the patta and permitted the settles to pay the tax receipt to the Government. Further, the above right was recognised in O.S.No.4269 of 2005 and the first defendant/S.Bharathi Dasan recognised as a co-owner to the suit property. On the date of settlement itself, title of property was transferred. Hence, in any way, the document Ex.P-1 = Ex.D-1 cannot be termed as a Will.
20. It is useful to extract the terms of the document Ex.P-2 = Ex. D-2 which reads as follows:-
"jhd brl;oy;bkz;l; uj;Jg;; gj;jpuk;
2005-k; tUlk;. $%iy khjk;. 15-Mk; njjp. brd;id - 600 094. ghujpahh; bjU. fjt[ bek;gh; 15-y; trpf;Fk; jpU/ bre;jhkiuf; fz;zd; mth;fspd; ghhpahs; jpUkjp/v!;/ru!;tjp mk;khs; Mfpa ehd; brhj;J tptuj;jpy; fz;l vdf;F brhe;jkhd brhj;ij fle;j 22.07.2002-k; njjpapy;; brd;id - 600 094. ghujpahh; bjU. fjt[ be/15-y; trpj;J tUk; jpU/bre;jhkiuf; fz;zd; mth;fspd; Fkhuuh;fs; Rkhh; 34 taJs;s jpU/v!;/ghujpjhrd; kw;Wk; Rkhh; 31 taJs;s jpU/v!;/ gHdp - 2 Mfpa ,uz;L ngUf;Fk; xU brl;oy;bkd;l; gj;jpuk; K:yk; vGjpf; bfhLj;J. mg;gj;jpuk; nfhlk;ghf;fk; rhh;gjpthsh; mYtyfj;jpy; 1 g[j;jfk;. 2002-k; Mz;od; 2753 vz;/ brl;oy;bkz;l; gj;jpukhf gjpthfpa[s;sJ/ ,jdoapy; bra;J tptuj;jpy; fz;l brhj;ij ehnd guhkhpj;J ghJfhf;f Kot[ bra;Js;sjhYk;. ,jdoapy; brhj;J tptuj;jpy; fz;l brhj;ij ,e;j jhdr; brl;oy;bkz;l; uj;J gj;jpuk; K:yk; 2002-k; Mz;od; 2753-k; vz;/ gj;jpuj;ij uj;J bra;fpnwd;/ nkw;go gj;jpuj;jpy; nkYk; vdJ $Ptpj fhyj;jpw;Fg;gpwF vdf; Fwpg;gplg;gl;Ls;sJ/ ,dp. 2002-k; Mz;od; 2753-k; vz;/ brl;oy;bkz;l; gj;jpuk; mkYf;F tuhJ/ ,e;jg;gof;F ehd; kdg;g{h;tkha; rk;kjpj;J vGjpf;bfhLj;j jhdr;brl;oy;bkz;l; uj;Jg; gj;jpuk;"
21. This Court is also of the considered view that the Settlement Deed already came into force and even as per the Settlement Deed, Saraswathi Ammal has no power to revoke the Settlement Deed unilaterally, since the right or title to the property already conveyed to the settles in Ex.P-1 = Ex.D-1. The decision of this Court reported in 2014(3) CTC 113 (D.V.Loganathan Vs. The Sub-Registrar, Office of the Sub-Registrar, Pallavaram, Chennai and another) relied on by the learned counsel for the defendants is squarely applicable to the facts of the present case. Once the Settlement Deed is executed by the settlor to the settles, if at all the party, who has executed the document, is aggrieved by any reason, he could have very well approached the Civil Court to set aside the same. But certainly, he could not unilaterally cancel the Settlement Deed by getting the deed of cancellation registered with the Sub-Registrar. Hence, the Cancellation Deed and registration without jurisdiction is liable to be set aside.
22. In this case, the deceased Saraswathi Ammal has executed a Settlement Deed in favour of the settles i.e., the first defendant/S.Bharathi Dasan and the plaintiff/S.Palani and transferred the title and possession of the property to the settles on the date of execution of the document itself and it was subsequently confirmed by the Court in O.S.No.4269 of 2005 and the first defendant/S.Bharathi Dasan is declared as a co-owner to the suit property. The unilateral cancellation of Settlement Deed by the deceased Saraswathi Ammal is not at all maintainable, since Saraswathi Ammal has no right to cancel the Settlement Deed already executed. Hence, the argument of the learned counsel for the defendants that the cancellation of Settlement Deed executed by the deceased Saraswathi Ammal on 15.07.2005 vide Document No.3011 of 2005 i.e., Ex.P-2 = Ex.D-2 is not valid in law and liable to be set aside is acceptable one. Hence, the Cancellation Deed-Ex.P-2 = Ex.D-2 is set aside and it is declared as not valid in the eye of law and null and void.
23. In pursuance of the Settlement Deed-Ex.P-1 = Ex.D-1, after the execution of the Settlement Deed, the deceased Saraswathi Ammal has no right or interest over the suit property except the right to enjoy the suit property till her life time. Since she has no right or interest in the suit property, the execution of Will-Ex.P-3 by Saraswathi Ammal in the presence of witnesses and registration of Will, will not give any right to the plaintiff/S.Palani and the plaintiff/S.Palani cannot acquire any right or interest over the suit property in pursuance of the Ex.P-3-Will. Even though Ex.P-3-Will was executed by the deceased Saraswathi Ammal in the presence of attesting witnesses and registered before the concerned Sub-Registrar, the said Will is not valid, since Saraswathi Ammal has no right or interest over the suit property.
24. Since Saraswathi Ammal has no right or interest in the suit property to execute the Will, this Court is of the considered view that the prayer sought for by the plaintiff/S.Palani that the Will has to be probated and Letters of Administration has to be issued cannot be granted. The plaintiff's evidence is not at all acceptable and the defendants evidence is acceptable.
Issue Nos.1 to 6 in T.O.S.No.22 of 2007 and Issue Nos.1 to 4 in Tr.C.S.No.449 of 2008
25. In view of the above stated discussions, this Court is of the considered view that the Settlement Deed-Ex.P-1 = Ex.D-1, dated 22.07.2002 executed by the deceased Saraswathi Ammal is termed only as a settlement and it cannot be construed as a Will and the above said Settlement Deed Ex.P-1 = Ex.D-1 executed by Saraswathi Ammal had already acted upon. Issue Nos.2 and 3 in T.O.S.No.22 of 2007 and issue Nos.1 and 2 in Tr.C.S.No.449 of 2008 are answered accordingly.
26. Since the deceased Saraswathi Ammal had already settled the suit property in favour of her sons viz., S.Bharathi Dasan and S.Palani, they are equally entitled to 1/2 of the share in the suit property. Since after the death of the first defendant/S.Bharathi Dasan, the plaintiffs 2 and 3 in Tr.C.S.No.449 of 2008 were impleaded as his legal heirs, they are entitled to preliminary decree for partition of their 1/2 share in the suit property.
27. Since Saraswathi Ammal has no right to cancel the Settlement Deed already executed, and further no right to execute the Will, the cancellation of Settlement Deed and the Will executed by Saraswathi Ammal is not valid in law. Issue Nos.1, 4 and 5 in T.O.S.No.22 of 2007 and Issue Nos.3 and 4 in Tr.C.S.No.449 of 2008 are answered accordingly. Since the Will executed by the deceased Saraswathi Ammal is not valid in the eye of law, the plaintiff in T.O.S.No.22 of 2007 is not entitled for grant of Letters of Administration with a Will annexed. Issue No.6 in T.O.S.No.22 of 2007 is answered accordingly. In view of the answering of the above issues, the suit filed by the plaintiff in T.O.S.No.22 of 2007 is liable to be dismissed and the suit filed by the plaintiffs in Tr.C.S.No.449 of 2008 is liable to be decreed as prayed for. Issue No.7 in T.O.S.No.22 of 2007 and Issue No.5 in Tr.C.S.No.449 of 2008 are answered accordingly.
28. In the result, T.O.S.No.22 of 2007 is dismissed. Considering the relationship of both parties, they are directed to bear their own costs.
29. In the result, Tr.C.S.No.449 of 2008 is decreed as prayed for. Considering the relationship of both parties, they are directed to bear their own costs.
12.01.2016 (1/2)
Index : Yes
Internet : Yes
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Witnesses examined on the side of plaintiff:-
P.W.1 - Mr.S.Palani (plaintiff in T.O.S.No.22 of 2007)
P.W.2 - Mr.R.Kannan
P.W.3 - Mr.G.K.Settu
List of documents marked on the side of plaintiff:-
Exhibit No.
Date
Description of the exhibit
P.1
22.07.2002
Certified copy of the settlement deed
P.2
15.07.2005
Certified copy of the cancellation deed
P.3
10.08.2005
Original Will
P.4
11.07.2005
True copy of the plaint filed in O.S.No.4269 of 2005
P.5
21.11.2007
Certified copy of the judgment and decree passed in O.S.No.4269 of 2005
P.6
24.10.2005
Original Death Certificate of Saraswathy Ammal
Witnesses examined on the side of defendants:-
D.W.1 - Mrs.Rekha (fifth defendant in T.O.S.No.22 of 2007)
Documents marked on the side of defendants:-
Exhibit No.
Date
Description of the exhibit
D.1
22.07.2002
Certified copy of settlement deed, registered as Doc.No.2753/2002.
D.2
15.07.2005
Certified copy of cancellation deed, registered as Doc.No.3011/2005
D.3
19.12.2005
Copy of legal notice issued to the plaintiff in T.O.S.No.22 of 2007
12.01.2016 (2/2)
Index : Yes
Internet : Yes
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G.CHOCKALINGAM, J.
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Judgment in T.O.S.No.22 of 2007
and
Tr.C.S.No.449 of 2008
12.01.2016