Madras High Court
K.Valliammal vs K.Krishnamurthy on 2 June, 2014
Author: M. Duraiswamy
Bench: M. Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.06.2014 C O R A M THE HONOURABLE MR. JUSTICE M. DURAISWAMY Second Appeal Nos.262 & 263 of 2013 & M.P.Nos. 1 and 1 of 2013 1.K.Valliammal 2.P.Umapathy .. Appellants in both S.As v. K.Krishnamurthy Respondent in both S.As Second Appeal No.262/2013 is filed under section 100 C.P.C. against the judgment and decree dated 14.02.2013 made in A.S.No.152 of 2009 on the file of XVI Additional City Civil Judge, Chennai reversing the Judgment and Decree dated 28.02.2008 made in O.S.No.7906 of 2006 on the file of VIII Assistant City Civil Judge, Chennai. Second Appeal No.263/2013 is filed under section 100 C.P.C. against the judgment and decree dated 14.02.2013 made in A.S.No.153 of 2009 on the file of XVI Additional City Civil Judge, Chennai reversing the Judgment and Decree dated 28.02.2008 made in O.S.No.8875 of 2006 on the file of VIII Assistant City Civil Judge, Chennai. For Appellant : Mr.V.Raghavachari For Respondent : Mr.R.Ramaganeshan J U D G M E N T
Second Appeal No.262/2013 arises against the judgment and decree passed in A.S.No.152 of 2009 on the file of XVI Additional Judge, City Civil Court, Chennai reversing the Judgment and Decree passed in O.S.No.7906 of 2006 on the file of VIII Assistant Judge, City Civil Court, Chennai. The first appellant was the plaintiff, the second appellant, who had purchased the suit property from the first appellant, was impleaded as second respondent before the lower appellant court and the respondent was the defendant in the suit. The plaintiff filed the suit in O.S.No.7906 of 2006 for permanent injunction.
2. Second Appeal No.263/2013 arises against the judgment and decree passed in A.S.No.153 of 2009 on the file of XVI Additional Judge, City Civil Court, Chennai reversing the Judgment and Decree passed in O.S.No.8875 of 2006 on the file of VIII Assistant Judge, City Civil Court, Chennai. The first defendant is the first appellant and the second appellant, who had purchased the suit property from the first appellant, was impleaded as the second respondent before the lower appellant court, the first respondent was the plaintiff and the second respondent was the second defendant in the suit. The plaintiff filed the suit in O.S.No.8875 of 2006 to declare the deed of cancellation of settlement dated 22.09.2006 executed by the first defendant cancelling the earlier settlement deed dated 2.7.1971 executed by the first defendant as illegal, null and void and not binding upon the plaintiff, for consequential injunction and for mandatory injunction to direct the second defendant to cancel the entries pertaining to the deed of cancellation dated 22.09.2008.
3. The trial court disposed of both the suits by conducting simultaneous trial and by common judgment. The lower appellate court disposed of both the appeals by common judgment. Hence, both the second appeals are taken up together and decided by this common judgment.
4. The brief case of the appellants are as follows:-
(i) According to the first appellant, she purchased an extent of 8< cents by a sale deed dated 7.8.1965. On 21.09.1966, she executed a settlement deed in favour of her sister Alamelu Ammal settling 1405 sq.ft out of the said property. The first appellant has been in possession and enjoyment of the remaining extent of 2218 sq. ft. and had constructed a house measruing an extent of 900 sq.ft. in the year 1966 out of her own funds. On 2.7.1971, she had executed a Will titled as settlement deed in favour of the first respondent in respect of the property which was in her possession and occupation. In the said document, the first appellant imposed certain conditions on the first respondent. Further, she has not given any right to him to sell or mortgage or to create any encumbrance over the property during his life time and further directed the first respondent to maintain the property by paying all the necessary charges to the concerned authorities.
(ii) According to the first appellant, the first respondent never took possession of the property all these years and he did not comply with the conditions imposed upon him while executing the Will titled as settlement deed dated 2.7.1971. Though the document was titled as settlement deed, the contents found in the said document would show that it is only a Will. The first appellant borrowed loan from several persons. She is aged and has no independent income for maintaining herself and her property. The first respondent also totally deserted the first appellant. The first appellant has been in continuous possession and enjoyment of the suit property by paying house tax, water and drainage charges and electricity charges assessed in her name. The first appellant is the absolute owner of the suit property. On 22.09.2006, she executed a deed of cancellation of settlement cancelling the settlement deed dated 2.7.1971.
(iii) The first appellant received a legal notice from the first respondent calling upon her to vacate the house property and he claimed right over the property. The first respondent also threatened the first appellant to vacate the suit property and also tried to enter into the property under force and also took away some documents and other articles from the first appellant's house.
(iv) The first appellant took the first respondent as foster son at his age of six years. The first respondent never constructed any building in the suit schedule property and inducted any tenants in the property. The first respondent attempted the life of the first appellant by strangulating her neck. The first appellant lodged a police complaint against the first respondent. The first appellant is having valuable right to dispose of her property as per her wishes and the first respondent has no right to interfere with her legal right over the suit property. The first respondent never invited the first appellant to live with him after the demise of her husband and had not taken any care of her health and completely deserted her and had not taken any steps to comply with the conditions imposed in the Will dated 2.7.1971.
(v) According to the first appellant, paying gift tax and filing returns will not confer any title over the property, since the first respondent has not taken possession of the property. The first appellant not only inducted various tenants in the suit property and she dictated the terms and conditions in the rental agreements and she only collected the rent from the tenants. In these circumstances, the first appellant prayed for a decree in O.S.No.7906 of 2006 and dismissal of the suit in O.S.N0.8875 of 2006.
5. The brief case of the first respondent is as follows:-
(i) According to the first respondent, on 22.9.2006, the first appellant executed a deed of cancellation of the settlement deed dated 2.7.1971 executed by her in his favour. According to the first respondent, he is the foster son of the first appellant and he was taken as the foster son by the first appellant and her husband when he was only six months old. He was all along living with them till the year 1981. He got married as their own son in the year 1971 and he only performed the last rites and rituals of his foster father when he died on 10.3.2000.
(ii) According to the first respondent, he entered the field of construction activities and he became one among the popular Contractors in Chennai. He put up superstructure in the suit property. On 2.7.1971, the first appellant executed a settlement deed in his favour. The said property was actually given to him only as a gift in consideration of his marriage, since his father-in-law was hesitating to give his daughter to him as he was only the first appellant's foster son and therefore, he wanted some security for her daughter to agree for the marriage. Therefore, the foster parents agreed to execute a settlement deed in his favour. The marriage was performed on 2.9.1971. The settlement deed is irrevocable and the said property devolved upon the male and family descendants of the first respondent after his life time. The first appellant did not even reserve any life interest for her in the said property as she was owning several properties at that time. The first respondent's foster father, who had no interest in the said property, had also signed the settlement deed as a witness in token of his concurrence. Thus, the suit property vested with the first respondent with no right of alienation and the right of alienation of the suit property purely vests with his children. Therefore, the suit property was transferred from the hands of the first appellant in the year 1971 itself and she had lost all the interest in the suit property, hence she has no right to revoke the same. The first respondent accepted the settlement and took symbolic possession of the property and she was also residing in the property till the year 1981. The settlement deed was assessed to gift tax and the gift tax was paid on 18.1.1973 and the income derived from the said property was also assessed to income tax by the first respondent. Except the portion occupied by the foster mother, the other portions were leased out to various tenants and the tenancy agreements were entered into only by the first respondent.
(iii) According to the first respondent, after his marriage in the year 1971, he wanted to go to a specious bungalow at Royapettah, Chennai and therefore, he wanted to take his foster parents also to the said premises but his foster mother, the first appellant, refused to accompany him in spite of his repeated requests, since she has some sentiments attached to reside in the said property. Thereafter, the first respondent used to go to the said premises to look after his foster mother and to collect the rent and also allowed the first appellant to collect the rent derived from the property to maintain herself and the property by paying property tax etc.
(iv) According to the first respondent, he never intended to make the first appellant to vacate the premises only on account of the true affection towards his foster parents. For the same reason he did not mutate the revenue records pertaining to the suit property and he wanted to change it only after the life time of the foster parents. Taking advantage of this fact, some body had approached the first appellant and offered to purchase the property for very low price and induced the first appellant to part away the suit property. The first appellant seems to have accepted to sell the property knowing fully well that she has no iota of right over the said property. The proposed purchaser really wanted to make use of the first appellant's innocence and get large quantum of wrongful gain by that contract. The first respondent came to know about the transaction in the second week of September 2006 when he met his foster mother to invite her for his 'Shastiyaptha Poorthi Ceremony' on 30.09.2006 at Thirukkadaiyur. He also informed his foster mother that she has no right to do so. The first appellant was silent and she did not divulge any information about it to him. Therefore, by way of abundant caution, the first respondent sent a lawyer's notice on 18.09.2006 calling upon her to vacate the premises in order to avoid any illegal alienation of the suit property. The said notice was received by her on 20.09.2006. Immediately after the receipt of the notice, she executed a deed of cancellation of the settlement deed on 22.09.2006 and caused a reply notice to him on 22.09.2006. On 6.10.2006, he informed that he is going to occupy a portion vacated by a tenant. On 7.10.2006, he went to the suit property along with his family members and his relatives and occupied a portion vacated by the tenant. The first appellant lodged a police complaint against the first respondent that he attempted to strangulate her and to throw her out of the premises.
(v) While so, the first respondent received a notice in I.A. No. 17927 of 2006 in O.S.No.7906 of 2006 on the file of VIII Assistant Judge, City Civil Court, Chennai restraining him from interfering with the possession of the first appellant. The settlement deed dated 2.7.1971 cannot be cancelled arbitrarily by the first appellant after a lapse of more than 35 years. Taking advantage of the illegal cancellation, the first appellant is attempting to alienate the suit property to a third party. In these circumstances, the first respondent prayed for dismissal of the suit in O.S.No.7906 of 2006 and for a decree as prayed for in O.S.No.8875 of 2006.
6. The trial court disposed of both the suits by common judgment by conducting simultaneous trial. In O.S.No.7906 of 2006, the witnesses on the side of the first appellant were examined as P.W.1 to P.W.4 and 33 documents Exs.A1 to A33 were marked, the first respondent was examined as D.W.1 and 7 documents, Exs.B1 and B7 were marked. In O.S.No.8875 of 2006, the first respondent was examined as P.W.1 and 23 documents Exs.A1 to A23 were marked and the first appellant was examined as D.W.1 and 7 documents , Exs.B1 and B7 were marked.
7. The trial court after taking into consideration, the oral and documentary evidences of both sides, decreed the suit filed by the appellant in O.S.No.7906 of 2006 and dismissed the suit filed by the first respondent in O.S.No. 8875 of 2006. Aggrieved over the judgment and decrees of the trial court, the first respondent preferred appeals in A.S.Nos.152 and 153 of 2009 on the file of XVI Additional Judge, City Civil Court, Chennai and the lower appellate court reversed the judgment and decrees of the trail court and allowed both the appeals. By the common Judgment, the lower appellant court dismissed the suit in O.S.No.7906 of 2006 and decreed the suit in O.S.No. 8875 of 2006. Aggrieved over the judgment and decrees of the lower appellate court, the appellants have filed the above second appeals.
8. Heard Mr.V.Raghavachari learned counsel appearing for the appellants and Mr.R.Ramaganeshan, learned counsel appearing for the first respondent.
9. The appellants have raised the following substantial questions of law in the above Second Appeals:-
i. Whether Ex.A6 (O.S.No.8875/2006) settlement deed is duly executed without dny fraud or misrepresentation?
ii.Whether Ex.A6 (O.S.No.8875/2006) is Will or Settlement?
iii.If this court comes to the conclusion that Ex.A6 (O.S.No.8875/2006) is settlement deed, and the next question would be whether the said settlement deed was acted upon or not?
iv.Whether the document Ex.A6 (O.S.No.8875/2006) can be declared as settlement deed in the absence of any transferring of vesting right over the suit schedule property neither to the respondent nor to his children?
v.Whether the lower appellate court is right in holding that even without any prima facie documents to prove possession over the suit schedule property by the respondent passing decree in favour of the respondent without taking note of Ex.A1 to Ex.A33 (O.S.No.7906/2006) and evidence of P.W.1 to P.W.4 which are all the tremendous evidence to show prima facie possession of appellants?
vi.Whether the lower appellate court is right in concluding the document under Ex.A6 is settlement deed when no absolute instant disposition and transfer of interest in the property's conferred upon any one?
10. Mr.V.Raghavachari learned counsel appearing for the appellants contended that Ex.A6 document dated 2.7.1971 can be construed only as a Will and it cannot be construed as a settlement deed, therefore, the first appellant had every right to revoke the Will by Ex.A13 cancellation deed dated 22.09.2006. Further, the learned counsel submitted that since by Ex.A6 settlement deed the property has not vested in praesenti in favour of the first respondent, even without being cancelled, it is only an inchoate document. Further, the learned counsel submitted that Ex.A6 document was not acted upon. The learned counsel also submitted that the first respondent failed to establish his possession over the suit property. In these circumstances, the learned counsel submitted that the lower appellate court ought not have reversed the judgment and decrees of the trial court. In support of his contention, the learned counsel for the appellant relied upon the following judgments:-
(i) 2010(2) MWN (Civil) 405 (4) CTC 465 (Maruthayairmal (deceased) and others v. Pushpam and others. In the said judgment, I had an occasion to decide the disputed document as a Will for the reason that if any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said document is only a testamentary and not a settlement. In that case, in Ex.A-1 document, the executant had stated that he will be in possession and enjoyment of the property till his life time without in any way encumbering the same, that on his death, the beneficiaries were to possess and to enjoy their respective portions in the property as the absolute owners thereof. Since there is no vesting of right in praesenti, I held that Ex.A1 document can be construed only as a Will and not as a settlement.
(ii) 2013(1) CTC 318 ( Kail Naicker and others v. Jaganathan and others) wherein this court held that acceptance of gift is the prerequisite for a valid gift. If a gift deed was not acted upon and validly accepted by donee and after execution of the gift deed, donor had cancelled the gift deed by cancellation deed and same was acted upon, the non-acceptance of gift by donee would make gift invalid.
(iii) 2003(1) MLJ 229 ( Arthur Mary Ammal v. Aruldoss Pilla (deceased) and others) wherein, a Division Bench of this court held that when the arrangement was intended to come into operation only after the life time of the parents and when there was neither transfer in praesenti nor taking over of possession, consequently, the document can only be construed as a Will.
(iv) 2003(3) MLJ 223 (Ramu Gounder and others v. K.Radhakrishnan) wherein this court held that if right in praesenti is not given, the document should be construed as a Will.
(v) 1997 (1) MLJ 169 (Poongavanam v. Perumal Pillai and another) wherein this court held that the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the beneficiary only on the death of the executant.
(vi) AIR 1994 Orissa 113 (Sri Kishore Ray Thakur Bije v. Basanti Kumar Das and others) wherein Orissa High Court held that if a plaintiff is an illiterate or paradanasin lady and alleges fraud and fails to establish fraud, yet the defendant must establish the fact that the plaintiff executed the document after the document was read over and explained to her and after she understood the contents thereof.
(vii) 2005 (110 SCC 234 ( Kokilambal and others v. N.Raman) wherein the Apex Court held that while deciding the issue with regard to settlement one has to closely scrutinise the settlement deed, whether the intention of the settlor was to divest the property in his life time or to divest the property contingently on the happening of a certain event.
(viii) 2007 (1) TCJ 614 (K.Loganathan v. Punniakotti Naicaker and another) wherein this court held that if a property was allotted to the plaintiff by settlement deed but if the same was not acted upon, in such a case, the partition effected between the family members cancelling the settlement deed is valid.
11. Countering the submissions made by the learned counsel appearing on behalf of the appellant, learned counsel appearing on behalf of the first respondent submitted that the first appellant had cancelled Ex.A6 settlement deed dated 2.7.1971 after a lapse of 35 years under Ex.A13 cancellation deed dated 22.9.2006, therefore, the lower appellate court had rightly reversed the judgment and decrees of the trial court and held in favour of the first respondent. Further, the learned counsel submitted that Ex.A6 settlement deed cannot be construed as a Will for the reason that the executant, viz., the first appellant, having retained no right in the suit property during her life time and the recital would make it clear that her right and title in the suit property was transferred in favour of the beneficiaries even on the date of the execution of the document itself. Since the document came into effect immediately on the date of execution of the document, it can only be construed as a settlement deed. The learned counsel also submitted that in Ex.A6 settlement deed, the first appellant has stated that the document is irrevocable document. Further, the learned counsel submitted that the first appellant has not explained the reasons for not cancelling the document at the earliest point of time. She has not explained the reasons for the delay of 35 years to cancel Ex.A6 settlement deed. In these circumstances, the learned counsel submitted that the lower appellate court has rightly decreed the suit filed by the first respondent and dismissed the suit filed by the first appellant. In support of his contention, the learned counsel for the respondent relied upon the following judgments:-
(i) 1997 (1) CTC 256 (J.Kuppuswami Mudali and others v. Mahalingam) wherein this court held that when a property is settled under a registered settlement deed and the settlee accepting the transfer by the settlement deed is presumed to be acted upon once settlee accepts transfer, the delivery of possession is not necessary. Further, held that the settlement cannot be cancelled once deed of settlement is acted upon.
(ii) 2009 (5) CTC 558 (S.Ganesan v. Bhrathirajan) wherein this court held that unilateral cancellation of settlement deed is void. Further, 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 records in his favour.
(iii) 2007 (1) CTC 660 (Ananthi v. Poonammal @ Vijayalakshmi) wherein this court held that title to the property cannot be established by Municipal Extracts and Tax receipts. The factum of adoption can be established by school leaving certificate and certain invitations relating to adopted daughter in respect of the estate of the adoptive father.
(iv) AIR 1933 MADRAS 492 (Ignatia Brito and others v. T.P. Rego and others) wherein a Division Bench of this court held that a primary test of whether any particular document is a Will or not is whether or not it is revocable. If it is irrevocable then it cannot be a Will. Another test is that of whether a document confers an immediate right to property. Where a document is not a Will under both these tests and is registered as a settlement deed when as a Will, it would not have required registration, the provision for unborn children and the appointment of the wife of the executant to perform functions such as might be performed by an executrix under a Will, will not change the deed fo settlement into Will.
(v) 1979 (2) MLJ Reports 88 (Ramaswami Naidu v. M.s.Velappan and others ) wherein a Division Bench of this court held that if any instrument expressly made is not revocable, the said document should be construed as settlement deed.
(vi) 2005(5) CTC 33 (Dhanalakshmi and others v. S.Thangavelu) wherein this court held that when a document contemplates instant disposition and the said document convey specifically, clearly and absolutely such instant disposition and transfer of interest in property in praesenti in favour of the beneficiary under the document, clearly establishes it is only a settlement and cannot be construed as a Will.
(vii) AIR 1956 AP 195 (M.Venkatasubbiah v. M.Subbamma and others) wherein Andhra Pradesh High Court held that even if there is a condition that the donee should maintain the donor and if he fails to maintain the donor, the gift deed cannot be revoked for neglecting to maintain the donor.
12. On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and taking into consideration the judgments relied upon by the learned counsel on either side, it could be seen that the issues involved in these two second appeals are whether Ex.A6 document is a settlement deed or a Will and whether the document was acted upon and whether there was any transfer of right in praesenti in favour of the donee. It is not in dispute that the suit property originally belonged to the first appellant and her husband is one Kupusamy. According to the first appellant, since they were issueless, they took the first respondent as their foster son at his age of six years. The first appellant's husband, Kupusamy died on 10.3.2000. The first appellant executed Ex.A6 settlement deed dated 2.7.1971 in favour of the first respondent in respect of the suit property. Thereafter, under Ex.A13 cancellation deed dated 22.9.2006, the first appellant cancelled Ex.A6 settlement deed executed in favour of the first respondent. The said document was executed after 35 years from the date of execution of Ex.A6 document. Since the first appellant contended that Ex.A6 document is only a Will and it cannot be construed as settlement deed, it would be appropriate to extract the relevant portion in Ex.A6 document which reads as follows:-
cd;id rpW tajpypUe;J tsh;g;g[ kfdhf tsh;j;J tUfpwgoahYk; ePa[k; vd; brhy;iya[k; vd; gh;j;jh gP/Fg;g[rhkp ehaf;fh; brhy;iya[k; jl;lhky; ele;J bfhz;L tUfpw goahYk;. vdf;Fk; vd; gh;j;jh gP/Fg;g[rhkp ehaf;fUf;Fk; ahbjhU re;jjpfSk; ,y;yhjjpdhy;. cd;idna kfdhf tsh;j;J tUfpwgoahYk;. cd; nghpy; cs;s vdf;Fs;s md;gpdhYk; gphpaj;jpdhYk;. ePa[k;. vd; nghpYk;. vd; gh;j;jh gP/Fg;g[rhkp ehaf;fh; nghpYk; itj;Js;s md;gpdhYk;. gphpaj;jpdhYk;. ehd; ey;y epiyikapy; ,Uf;Fk; nghnj cdf;F !;jpukhd Mjut[ bra;J itf;f ntz;Lk; vd;W jPh;khdpj;J vd; gh;j;jh gP/Fg;g[rhkp ehaf;fiua[k; fye;J ngrp. Kotpy; ehd; moapy; bc&oa{ypy; tpthpj;jpUf;fpd;w jsk; nghl;l fl;Lf;nfhg;g[ tPL kidapd; kjpg;g[ U:/20.000/- vGj;jhy; U:gha; ,Ugjhapuk; kjpg;g[s;s brhj;ij ehd; cdf;F ,e;jr; brl;oy;bkz;Lg; gj;jpuk; K:yk; fPH;fz;l fz;oc&d;fSf;Ff; fl;Lg;gl;L Mz;L mDgtpj;Jf;bfhs;s ntz;oaJ:-
1.moapy; fz;l brhj;jpy; tUk; tUkhdj;jpy; rh;f;fhh; thpfs;. hpg;ngh;fs; nghf kpFjp epw;Fk; tUk;gona ePna cd; $Ptpjk; cs;s tiuapy; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/
2.moapy; fz;l tPL kidia cd; $Ptpaj;jpw;Fs; vt;tpj guhjPd';fs; bra;a cdf;F mjpfhuk; fpilahJ/
3.cd; $Ptpaj;jpw;Fg; gpwF cdf;f Vw;gLk; Mz; bgz; re;jjpfs; moapy; fz;l tPL. kidiaf; ifg;gw;wpf; bfhz;L g[j;jpu bgsj;jpu ghuk;ghpakha; jhdhjp tpdpka tpf;fpiua';fSf;F chpaijaha; rh;t Rf ghj;jpaij[ald; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/
4.ehd; ,dp ,e;jr; brl;oy;bkz;Lg; gj;jpuj;ij uj;J bra;tjw;F vdf;F mjpfhuk; fpilant fpilahJ/
5.vd; gh;j;jh gP/Fg;[grhkp eha;f;fiu ,e;jg; gj;jpuj;jpy; rhl;rpf; ifbahg;gk; th';fp bfhLj;jpUf;fpnwd;/ ,e;jg;gof;F ehd; vd; kdg;g{h;tkha;r; rk;kjpj;J moapy; fz;l rhl;rpfs; Kd;dpiyapy; vGjpf; bfhLj;j tPL kid brl;oy;bkz;Lg; gj;jpuk;/
13. Ex.A6 document dated 2.7.1971 was cancelled by Ex.A13 settlement cancellation deed dated 22.9.2006. Hence, it would be useful to extract the recitals found in Ex.A13 cancellation deed, which reads as follows:-
brd;id-600 016. Mye;J}h;. jpUts;S:h; efh; bkapd; nuhL. fjt[ vz; 12. vd;w tpyhrj;jpy; trpf;Fk; jpU/ P.Fg;g[rhkp eha;f;fh; mth;fspd; tsh;g;g[ kfd; jpU.K.fpUc&;zK:h;j;jp mth;fs; bgaUf;F. fPnH bc&oa{ypy; fz;l brhj;ijf; Fwpj;J ehd; fle;j 02/07/1971 njjpad;W xU brl;oy;bkz;l; gj;jpuk; vGjpf; bfhLj;J nkw;go brl;oy;bkz;l; gj;jpukhdJ. nfhlk;ghf;fk; rhh;gjpthsh; mYtyfj;jpy; 1 g[j;jfk; 265 bjhFjp. 315 Kjy; 318 tiu cs;s gf;f';fspd; go 1971k; tUlj;jpa gj;jpu vz;/1986-1971 Mfg; gjp[t bra;ag;ggl;Ls;sJ/ nkw;go vd;Dila tsh;g;g[ Fkhuh; jpU.K.fpUc&;zK:h;j;jp bgahpy; vGjpf; bfhLj;j brl;oy;bkz;l; gj;jpuj;ij ,e;j uj;Jg; gj;jpuj;jpd; K:yk; uj;J bra;fpnwd;/ nkw;go bc&oa{ypy; fz;l brhj;jhdJ vd;Dila RthjPdj;jpYk; mDgtj;jpYk; ,Ue;J tUtjhYk;. nkw;go brhj;jpw;Fz;lhd thp tifawhf;fis ehnd vd;Dila bgahpy; ,Jehs; tiu brYj;jp tUtjhYk; fPnH bc&oa{ypy; fz;l brhj;ij nkw;go vd;Dila tsh;g;g[ Fkhuh; jpU.K.fpUc&;zK:h;j;jp vd;gtUf;F ,Jehs; tiu RthjPdk; bfhLf;ftpy;iy/ ,dpKjw;bfhz;L vd;dhy; vGjpf; bfhLj;J gjpt[ bra;ag;gl;l brl;oy;bkz;l; gj;jpu vz;/1986-1971 bry;yj;jf;fjpy;iy/
14. After cancelling the settlement under Ex.A13 cancellation deed dated 22.09.2006, the first appellant filed the suit in O.S.No.7906 of 2006 against the first respondent for permanent injunction restraining him from interfering with her peaceful possession. On the other hand, the first respondent filed a suit in O.S.NO.8875 of 2006 to declare the cancellation deed dated 22.09.2006 and for other consequential reliefs. Both the suits were tried simultaneously. Oral and documentary evidences were let in by the respective parties separately in both the suits. The first appellant was examined as P.W.1 in O.S. No.7906 of 2006 and the first respondent was examined as P.W.1 in O.S. No.8875 of 2006 The trial court dismissed the suit filed by the first respondent and decreed the suit filed by the first appellant. Aggrieved over the same, the first respondent preferred two appeals in A.S.Nos. 152 and 153 of 2009 on the file of XVI Additional Judge, City Civil Court, Chennai. During the pendency of the appeals, the first appellant sold the suit property to the second appellant, who got himself impleaded in the appeals, before the lower appellate court.
15. It is not in dispute that the first respondent is also the brother-in-law of the first appellant i.e., the first respondent is the brother of the first appellant's husband viz., Kuppusamy. Though the first appellant disputed that the first respondent is their foster son, the first respondent by producing the following documents established that he is the foster son of first appellant and his husband Kuppusamy Naicker:-
(a)Ex.A1 - Secondary School Leaving Certificate wherein, his father's name was mentioned as Kuppusamy Naicker;
(b)Ex.A4 - Invitation for Puberty function of first respondent's daughter wherein, first respondent's daughter was referred as grand daughter of Kuppusamy Naicaker and Valliammal (first appellant);
(c)Ex.A5- Marriage Invitation of first respondent's daughter wherein, she was referred as grand daughter of Kuppusamy Naicker;
(d)Ex.A6 settlement deed dated 2.7.1971 wherein, the first respondent was referred as foster son. The said document was executed by the first appellant and attested by her husband Kuppusamy Naicker;
(e)Ex.A7 Marriage Invitation of the first respondent wherein, the first respondent's name was mentioned as son of Kuppusamy Naicker;
(f)Ex.A13 Cancellation deed wherein, the first appellant has mentioned the first respondent as her foster son.
The first appellant having referred the first respondent as her foster son in her own registered documents, viz., Ex.A6 and A3, she cannot now turn around and take a different stand. Therefore, from the above said documents it is clear that the first respondent is the foster son of the first appellant and her husband Kuppusamy Naicker.
16. The first appellant contended that by misrepresentation Ex.A6 document was obtained as settlement deed whereas her intention was only to execute a Will in favour of the first respondent. But, contrary to this stand of the first appellant, she had stated in Ex.A14 reply notice dated 27.9.2006, that she had executed a settlement deed in favour of the first respondent. The said Ex.A14 notice was sent on behalf of the first appellant to the first respondent. When the first appellant had admitted the execution of the settlement deed in Ex.A14 reply notice, she has taken a contrary stand in the suit alleging that it was only a Will and not a settlement. It cannot be disputed that the nomenclature of the document is not material but, the intention of the settlor alone is material to find out whether the document is a settlement deed or a Will. From the recitals found in Ex.A6 document, it is clear that the first appellant had settled the property in favour of the first respondent giving life interest to him and absolute right to his children. She had not withhold the transfer of right till her life time. The settlement deed came into effect on the date of execution of the document itself. If the first appellant had postponed the transfer of right in the suit properties till her life time then the document can be construed as a Will. In the case on hand, she had transferred the property on the date of execution of the settlement deed itself. That apart, she had also stated that the settlement deed is irrevocable. The only restriction imposed on the setlee viz., the first respondent, was that no power of alienation was given to the first respondent. Such a condition imposed in the settlement deed is legally valid. If the settlor retains his right to enjoy the property till his life time then the document can be construed as a Will. In the case on hand, the first respondent has not retained any right to enjoy the property till her life time. Even in Ex.A13 cancellation deed, the first appellant has stated that Ex.A6 document is only a settlement deed and nowhere she has stated that Ex.A6 is a Will.
17. Taking into consideration of all these aspects, I am of the view that Ex.A6 document is a settlement deed and it cannot be construed as a Will.
18. In order to prove that the settlement deed was acted upon, the first respondent produced Ex.A2 income tax returns filed by him. Ex.A8 is the gift tax assessment order dated 15.12.1972 passed by the Income Tax Department. Under Ex.A9, first respondent had also paid the gift tax in the year 1973. The first respondent contended that he resided in the suit property along with his wife, foster parents from the year 1971 and thereafter, he moved to Royapettah to a newly constructed house and he also invited his foster parents to come over to Royapettah. But, they refused to move to Royapettah. They wanted to live in the suit property, therefore, he allowed his foster parents to reside in the suit property. He further contended that he has not changed the house tax assessment in his name due to some sentiments and he wanted to mutate the records after the life time of the first appellant. Ex.A3 is the invitation of the House Warming Ceremony of Royapettah House. The House Warming was done on 26.4.1982. The lower appellate court, taking into all these aspects, rightly found that the contention of the first respondent that he resided along with his foster parents in the suit house and shifted his residence to a new house appears to be true.
19. When the first respondent was able to establish that he is the foster son of the first appellant and Kuppusamy Naicker, the first appellant in order to avoid Ex.A6 settlement deed appears to have changed her mind and gone to the extent of denying the relationship.
20. It is settled position that if the document is disputed on the ground of misrepresentation, fraud or coercion, the burden is on the person who alleges misrepresentation, fraud or coercion. In the case on hand, the first respondent had proved the due execution of Ex.A6 settlement deed. But the first appellant failed to prove that the document was executed by misrepresentation by any acceptable evidence. In fact, in Exs.A13 and A14, she has clearly admitted the execution of Ex.A6 settlement deed. In these circumstances, the lower appellate court has rightly found that the first respondent had proved the settlement deed. The lower appellate court also rightly rejected the contention of the first appellant that under Schedule I and Article 58 Tamil Nadu Stamp Manual, which provides for concession in stamp duty for the documents executed in between the family members, since foster son has not been included, no settlement deed can be executed in favour of the foster son. The said contention of the first appellant cannot stand for the reason the said provision is available only for availing the concession in paying the stamp duty and it will not bar the settlor from settling the property in favour of any other person.
21. As already stated, there is no condition stated in the settlement deed to maintain the settlor and the gift is not an onerous gift. Therefore, the question of acceptance is of least consequences. Though the first appellant contended that she was paying the property tax and other charges, she has not produced those documents to prove the said contention.
22. The first appellant having executed Ex.A6 settlement deed on 2.7.1971 and executed Ex.A13 cancellation deed on 22.9.2006 i.e., after 35 years from the date of Ex.A6 settlement deed, the reason for not taking immediate steps to cancel the settlement deed was not explained by the first appellant in any manner. Having executed Ex.A6 settlement deed in the year 1971, she has no right to revoke the settlement deed by Ex.A13 cancellation deed. It is settled position that a subsequent purchaser cannot have better title or right than his vendor. In the case on hand, the first appellant had sold the suit property to the second appellant during the pendency of the appeals before the lower appellate court. However, no document was produced by the second appellant to show that he was put in possession of the property. When there is a clear dispute with regard to the title in respect of the suit property, the appellants should have filed a suit for declaration. Since the first appellant had lost her title way back in the year 1971 itself, she cannot sell the property to the second appellant and in such circumstances, the second appellant shall not derive any title in respect of the suit property.
23. For the purpose of court fees and jurisdiction, the relief sought for to declare that the cancellation deed is null and void, by Ex.A6 settlement, the title was transferred in favour of the first respondent. Since the first appellant had cancelled, Ex.A6 settlement deed unilaterally by Ex.A13 cancellation deed, the relief happens to be incapable of valuation, therefore, the lower appellate court has rightly found that the valuation adopted by the first respondent is just and proper.
24. Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned counsel appearing for the appellants, since the facts and circumstances of the case on hand differ, the said ratios are not applicable to the present case. The ratios laid down in the judgments relied upon by the learned counsel appearing for the first respondent squarely applies to the facts and circumstances of the present case.
25. The lower appellate court after taking into consideration the oral and documentary evidences, rightly reversed the judgment and decrees of the trial court.
26. In these circumstances, I find no ground much less any substantial question of law to interfere with the judgment and decrees of the lower appellate court. The second appeals are liable to be dismissed. Accordingly, the same are dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
02.06.2014
Index : Yes
Internet : Yes
rj
To
1.The XVI Additional Judge,
City Civil Judge,
Chennai reversing .
2. The VIII Assistant Judge,
City Civil Court,
Chennai.
M. DURAISWAMY J.
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Judgment in
S.A.Nos.262 & 263 of 2013 &
M.P.Nos. 1 and 1 of 2013
02.06.2014