Madras High Court
Arumugam vs Boopalan on 15 February, 2022
Author: S.S.Sundar
Bench: S.S.Sundar
SA.No.69/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.69/2022 and CMP.No.1642/2022
[Virtual Mode]
Purushothaman (died)
1.Arumugam
2.Rajathi
3.Indira
4.Rajalakshmi
5.Minor. P.Janani
6.Minor. P.Praveenkumar
.. Appellants/Defendants
Vs.
Boopalan .. Respondent/Plaintiff
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree dated 19.03.2019, passed in
AS.No.31/2018, on the file of the learned I Additional District and
Sessions Judge, Cuddalore, confirming the judgment and decree dated
23.10.2017, passed in O.S.No.143/2012, on the file of the learned II
Additional Subordinate Judge, Cuddalore.
For Appellants : Mr.R.Chakkaravarthy
JUDGMENT
(1) The appellants are the defendants in the Suit in O.S.No.143/2012 before the learned II Additional Subordinate Judge, Cuddalore. The https://www.mhc.tn.gov.in/judis 1 Page of 10 SA.No.69/2022 respondent as plaintiff filed the Suit in O.S.No.143/2012 for declaration of title and for recovery of possession. (2) The case of the respondent herein in the plaint is that the Suit property belonged to the 1st defendant who is none else than the grandfather of plaintiff as the plaintiff is the son of daughter of the 1st defendant. There is no dispute with regard to relationship. (3) It is the case of plaintiff that the 1st defendant executed a Settlement Deed dated 05.10.1995 in favour of the plaintiff conveying his absolute title over the Suit property in favour of the plaintiff. It is stated that the Suit property was a vacant site and that the Settlement Deed was accepted and acted upon. It is also stated that the plaintiff was a minor and his father represented him and took possession of the property as his guardian. It is stated that plaintiff's sister was given in marriage to 2nd defendant. It is admitted that the defendants were given permission to occupy the land in the Suit property. It is the case of plaintiff that after the Settlement Deed was executed out of love and affection and voluntarily by the 1st defendant, the plaintiff came to know about the revocation of the Settlement Deed by a Revocation Deed dated https://www.mhc.tn.gov.in/judis 2 Page of 10 SA.No.69/2022 27.03.2007, which according to the plaintiff is a manipulation by fraudulent and deceitful means. It is stated that the 1st defendant was bedridden and unable to comprehend things. The plaintiff also contended that the defendants 2 and 3 gone further by faking a Settlement Deed on 29.05.2007 which is void and invalid. The Suit was filed originally as a pauper O.P, on 04.07.2007 and later numbered as O.S.No.143/2012.
(4) Stating that the Settlement Deed executed cannot be cancelled or revoked, the plaintiff has come forward with the Suit for declaration of title based on the earlier Settlement Deed executed by the 1st defendant in favour of plaintiff and for recovery of possession. During pendency of pauper petition in O.P.No.77/2007, 1st defendant died and other defendants were impleaded as legal heirs.
(5) The Suit was contested by the 4th defendant. The other defendants have not filed any Written Statement but adopted the Written Statement of 4th defendant. The 4th defendant disputed the execution of the Settlement Deed dated 05.10.1995. Strangely, the 4th defendant denied the genuineness of the earlier Settlement Deed https://www.mhc.tn.gov.in/judis 3 Page of 10 SA.No.69/2022 executed by the 1st defendant in favour of the plaintiff on 05.10.1995.
(6) It is the case of the 4th defendant that the previous Settlement Deed was fraudulently obtained on 05.10.1995, from the father namely, 1st defendant and hence the 1st defendant executed the deed revocation of the previous Settlement Deed in 1995 on 27.03.2007 and subsequently, executed another Settlement Deed in favour of 2nd and 3rd defendants which was duly registered on 29.05.2007. Though the 4th defendant raised a plea that the Suit property is the Joint Family Property and not the exclusive property of 1st defendant and hence the Settlement Deed in favour of plaintiff is invalid, the Trial Court held that the Suit property is the absolute property of 1st defendant.
(7) With regard to the genuineness of the Settlement Deed executed by the 1st defendant in favour of the plaintiff under Ex.A1, the Trial Court held that the Settlement Deed under Ex.A1 is genuine and valid and binding on the defendants. The Trial Court also found that the Settlement Deed produced by plaintiff contains recitals regarding possession being handed over to the donee to https://www.mhc.tn.gov.in/judis 4 Page of 10 SA.No.69/2022 hold that Settlement Deed was accepted and acted upon. The Trial Court further held that the 1st defendant has no right to revoke the deed of settlement and to give the property under subsequent Settlement Deed after the 1st Settlement Deed in favour of the plaintiff. Since the cancellation of Settlement Deed is invalid and such cancellation is contrary to Section 126 of the Transfer of Property Act, the Trial Court also held that the revocation Deed dated 27.03.2007 under Ex.A2 is not legally valid and binding on the plaintiff.
(8) Though the appellants have contended that they have acquired title to the property by adverse possession the Trial Court after appreciation of evidence found that the defendants have not proved that they have prescribed title by adverse possession. After finding all the issues in favour of the plaintiff, the Suit was decreed as prayed for. Aggrieved by the judgment and decree of the Trial Court, the defendants 2,3,4 and 6 preferred the Appeal in AS.No.31/2018 before the learned I Additional District and Sessions Judge, Cuddalore. The Lower Appellate Court also confirmed the judgment and decree of the Trial Court. As against https://www.mhc.tn.gov.in/judis 5 Page of 10 SA.No.69/2022 the concurrent findings of Courts below the above Second Appeal is preferred.
(9) The learned counsel appearing for the appellants is unable to demonstrate before this Court how the finding of the Courts below are perverse or unsustainable.
(10) This is a case where the Settlement Deed executed by the 1st defendant in favour of the plaintiff is proved. Though the defence was raised in the present Suit questioning the genuineness of the Settlement Deed under Ex.A1, the Courts below have rendered a specific finding as to the truth, validity and execution of the Ex.A1 Settlement Deed in favour of the plaintiff by the 1st defendant. The plea that the 1st defendant is not the absolute owner of the property and that the property belongs to the Joint Family of defendants 1 to 4 was also negatived by the Courts below. The Courts below, specifically found that the Settlement Deed under Ex.A1 was accepted and acted upon. The Settlement Deed specifically refers to possession being handed over to donee. The Suit property was a vacant site when the Settlement Deed was executed. When the Settlement Deed under Ex.A1 was executed voluntarily out of love https://www.mhc.tn.gov.in/judis 6 Page of 10 SA.No.69/2022 and affection, it is admitted that the same was unilaterally cancelled by Deed of Revocation subsequently. The unilateral cancellation of the Settlement Deed is prima facie illegal as it has been repeatedly held by this Court.
(11) The only provision which enable the settlor to revoke the Deed of Settlement is Section 126 of the Transfer of the Property Act. Even after considering the provision of Section 126 of the Transfer of Property Act, the Courts below held that unilateral revocation of Settlement Deed under Ex.A1 is invalid. The 4th defendant has also pleaded that the Settlement Deed in favour of defendants 3 and 4 subsequently is valid. The 1st defendant has transferred title by the first Settlement Deed. When the 1st defendant has no right after the execution of valid Settlement Deed, the subsequent deed of revocation of settlement or the second settlement cannot be valid and binding on the plaintiff.
(12) The plea of adverse possession set up by the 4th defendant was also considered by the Courts below. It was found that the appellants have not proved their possession continuously over the prescribed period. In the present case, the plea of adverse possession is not https://www.mhc.tn.gov.in/judis 7 Page of 10 SA.No.69/2022 established before the Courts below. The plea of adverse possession should be proved in the manner known to law and the burden lies on the appellants to prove adverse possession. The original Settlement Deed dated 05.10.1995 is proved in the manner known to law and was handed over to the plaintiff. Possession was also handed over as per recitals of the Deed of Settlement. (13) When the Settlement Deed was revoked by the 1st defendant after referring to the earlier Settlement Deed, there is no reference in the document revoking the Settlement Deed disowning or describing the document as invalid for any reason. Hence, it can be presumed that the 1st defendant donor had acknowledged the execution of Ex.A1 Settlement Deed.
(14) Hence, there is no necessity to examine attesting witness as contemplated under Section 68 of Indian Evidence Act. The only argument of the appellant's counsel relying upon Section 68 of Evidence Act has no merit. The Court below have applied the principles of law correctly on the basis of facts admitted and borne out from records. This Court is unable to appreciate any substance in any of the questions of law raised by the appellants in the https://www.mhc.tn.gov.in/judis 8 Page of 10 SA.No.69/2022 Grounds of Appeal. In other words, the questions of law raised before this Court have no substance in view of the findings of the Trial Court on every issue and the findings of the Lower Appellate Court by considering all the grounds raised by the appellants. The Courts below have concurrently held against the defendants on all issues which are on facts. The learned counsel appearing for the appellants is unable to demonstrate before this Court how the findings of the Courts below are perverse or improper. Though it is alleged that the Appellate Court did not frame points for determination, it is seen that every relevant issue is considered by Lower Appellate Court with reference to pleadings and evidence. (15) It is not the case of the appellants that the Court below have failed to consider or appreciate any important evidence which would tilt the balance. In view of the conclusion reached above, this Court is of the view that the Second Appeal has no merits. (16) In the result, the Second Appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is closed.
15.02.2022 cda Internet : Yes https://www.mhc.tn.gov.in/judis 9 Page of 10 SA.No.69/2022 S.S.SUNDAR, J., cda To
1.The I Additional District and Sessions Court, Cuddalore.
2.The II Additional Subordinate Court, Cuddalore.
3.The Section Officer, VR Records, High Court, Chennai.
SA.No.69/2022
15.02.2022 https://www.mhc.tn.gov.in/judis 10 Page of 10