Madras High Court
R.Nagu vs R.Kuppammal (Deceased) on 30 July, 2018
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.07.2018
CORAM:
THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN
C.S.No. 815 of 2010
R.Nagu ... Plaintiff
Vs.
1.R.Kuppammal (Deceased)
2.R.Egappan
3.J.Yamuna
4.V.Mala
5.S.Varalakshmi
(plaintiff and defendants 2 to 5 are already on
record, Recorded as legal heirs of the deceased
first defendant as the order
dated 25.02.2013 on memo) .. Defendants
Plaint filed under Order VII Rule 1 of C.P.C and Order IV rule 1 of the original side rules, to pass decree and judgment and decree against the defendants:- (a) for declaration that the plaintiff is the absolute owner of the suit property more particularly described in the schedule hereunder given; (b) consequential declaration that the Deed of cancellation of settlement deed dated 31.03.2010, Registered as document No.915 of 2010, on the file of S.R.O.Royapuram, canceling the settlement deed dated 06.07.2006, Registered as document No.1948/2006, on the file of S.R.O. Royapuram is null and void abinitio; (c) Consequential declaration that the fresh settlement deed dated 31.03.2010, registered as document No.922/2010, on the file of S.R.O. Royapuram executed by the first defendant in favour of the defendants 2 to 5 and the plaintiff is null and void ab initio; (d) for a permanent injunction restraining the defendants, their men, agents, servants or anyone acting on their behalf in any manner dealing or interfering with the peaceful possession and enjoyment either by creating encumbering or by transferring the right or otherwise of the suit property more particularly described in the schedule to the plaint hereunder given and e) to pay the costs of the suit.
For Plaintiff : Mr.Saishankar
For Defendants : No appearance
JUDGMENT
The suit has been filed by the plaintiff seeking the following reliefs;
(a) for declaration to declare that the plaintiff is the absolute owner of the suit property more particularly described in the schedule to the plaint (b) for a consequential declaration to declare that the Deed of cancellation of settlement deed dated 31.03.2010, Registered as document No.915 of 2010, on the file of S.R.O.Royapuram, canceling the settlement deed dated 06.07.2006, Registered as document No.1948/2006, on the file of S.R.O. Royapuram is null and void ab initio; (c) for a consequential declaration to declare that the fresh settlement deed dated 31.03.2010, registered as document No.922/2010, on the file of S.R.O. Royapuram executed by the first defendant in favour of the defendants 2 to 5 and the plaintiff is null and void ab initio; (d) for a permanent injunction restraining the defendants, their men, agents, servants or anyone acting on their behalf in any manner dealing or interfering with the peaceful possession and enjoyment either by creating encumbering or by transferring the right or otherwise of the suit property more particularly described in the schedule to the plaint hereunder given; and to for costs.
2. The case of the plaintiff in brief is as follows:
2.1. The suit property originally belongs to 1st defendant, mother of the plaintiff. The 1st defendant purchased the said property on 16.12.1977, by a registered sale deed. The plaintiff and defendants 2 to 5 are brother and sisters. The 1st defendant has settled the above property in favour of the plaintiff by a settlement deed dated 06.07.2006, which has been registered in the office of the Sub-Registrar of Royapuram, Chennai. Thereafter, the possession was also delivered to the plaintiff and she has been in possession and enjoyment of the suit property. The plaintiff who became an absolute owner of the said property also transferred patta in her name and paying corporation tax etc., The 2nd defendant, being the brother of the plaintiff was permitted to reside in a portion of the suit property.
2.2. The 1st defendant at the instigation of other defendants, revoked the said settlement deed executed in favour of the plaintiff on 31.03.2010 unilaterally. The settlement deed has been cancelled on the ground that the Settlee is not acting as per settlement deed. Since, there is no pre-condition stated in the settlement deed, the 1st defendant has no right to cancel the settlement deed. Hence, the cancellation deed is to be declared as a Sham and nominal document and the cancellation is not valid.
2.3. The plaintiff further submits that after cancellation of settlement deed, the 1st defendant has executed the settlement deed on 31.03.2010 in favour of the defendants 2 to 5 and also in the name of plaintiff which was also registered. When the cancellation of settlement deed is void of ab initio and the subsequent settlement deed is also non-est in law. Based on the settlement deed the defendants 2 to 5 are taking steps to encumber the suit property, hence, she sought for injunction restraining the defendants from dealing with the said property in any manner. The plaintiff came to know about the cancellation of settlement deed only recently and immediately she filed the present suit.
The Written statement filed by the Defendants:-
3. The defendants have filed a written statement denying the allegations contained in the plaint. According to the defendants, the suit property was owned and possessed by the first defendant and she developed it with the help of her husband Rajabather. The suit property was never in possession of the plaintiff but in possession of the first defendant and her son R.Egappan, the second defendant herein. The first defendant and her husband have contributed for the marriage of the plaintiff and incurred the expenses thereof. At the insistence of the plaintiff, first defendant had earlier executed a settlement deed on 06.07.2006 reluctantly. While so, in the month of March 2008, the first defendant fell ill and only at that time, the first defendant revealed the defendants about the execution of the settlement deed in favour of the plaintiff due to coercion and force. The settlement deed was thereafter cancelled by means of a Deed of Cancellation dated 31.03.2010 and a fresh settlement deed was executed in favour of the plaintiff and defendants 2 to 5. The deed of cancellation was executed by the first defendant voluntarily to ensure that all her children get equal share in the suit property. The defendants therefore prayed for dismissal of the suit.
4. The following issues are framed for consideration in this suit:-
1. Whether the 1st defendant is right in unilaterally canceling the settlement deed dated 06.07.2006 by way of cancellation settlement deed dated 31.03.2010?
2. Whether the fresh settlement deed dated 31.03.2010 executed by 1st defendant in favour of defendants 2 to 5 as well as the plaintiff, is valid?
3. Whether the title of the suit schedule property is transferred to the plaintiff by way of settlement deed dated 06.07.2006 and the plaintiff has become the absolute owner of the suit schedule property?
4. Whether the plaintiff is entitled for declaration of title as absolute owner of the suit schedule property?
5. Whether the unilateral cancellation of settlement deed dated 06.07.2006 by way of cancellation settlement deed dated 31.03.2010 is liable to be set aside?
6. Whether the fresh settlement deed dated 31.03.2010 executed by 1st defendant in favour of defendants 2 to 5 as well as the plaintiff is liable to be set aside?
7. Whether the plaintiff is entitled for permanent injunction?
8. To what other relief, the parties are entitled to?
5. During Trial, the defendants did not come forward to defend the suit. Therefore, on 04.06.2018, the defendants were called absent and set ex-parte.
6. On behalf of the plaintiff, the plaintiff examined herself as PW-1 and marked Exhibits P1 to P7. Ex.P1 is the certified copy of the settlement deed dated 06.07.2006 executed by the first defendant in favour of the plaintiff. Ex.P2 is the photo copy of the quit rental receipt dated 18.11.2008 in the name of the plaintiff, Ex.P3 is the photo copy of the patta in the name of the plaintiff dated 18.11.2008, Ex.P4 is the certified copy of the cancellation of settlement deed dated 31.03.2009 vide Doc.No.915/2010 executed by first defendant against plaintiff, Ex.P5 is the certified copy of the settlement deed dated 31.03.2010 executed by the first defendant in favour of defendants 2,3,4 and 5, Ex.P6 is the original legal notice dated 08.06.2010 issued by plaintiff to the defendants and the original return cover of the legal notice was marked as Ex.P7.
7. Considering the oral and documentary evidence adduced by the plaintiff this Court is of the view that the plaintiff has proved her claim and she is entitled for a decree as prayed for. Resultantly, the suit is decreed as prayed for, with costs.
30.07.2018 mm List of the witnesses examined on the side of the plaintiff:
PW1 - R.Nagu List of the witnesses examined on the side of the defendants:
Nil List of Exhibits marked on the side of the plaintiff:
Sl. No. Exhibits Description Dated 1 Ex.P1 The certified copy of the settlement deed executed by the first defendant in favour of the plaintiff. 06.07.2006 2 Ex.P2 The photo copy of the quit rental receipt in the name of the plaintiff. 18.11.2008 3 Ex.P3 The photo copy of the patta in the name of the plaintiff.
18.11.2008 4 Ex.P4 The certified copy of the cancellation of settlement deed vide Doc.No.915/2010 executed by first defendant against plaintiff. 31.03.2009 5 Ex.P5 The certified copy of the settlement deed executed by the first defendant in favour of defendants 2,3,4 and 5. 31.03.2010 6 Ex.P6 The original legal notice issued by plaintiff to the defendants. 08.06.2010 7 Ex.P7 The original return cover of the legal notice.
List of Exhibits marked on the side of the defendants:
Nil 30.07.2018 mm Index : Yes/ No Internet : Yes/ No Speaking Order/ Non-speaking Order V.BHARATHIDASAN.J mm C.S.No. 815 of 2010 30.07.2018