Madras High Court
Palnisamy Gounder And Swaminathan vs Periammal on 28 February, 2003
Equivalent citations: AIR 2003 (NOC) 353 (MAD), 2003 A I H C 2306, (2003) 2 MAD LW 605, (2003) 2 CURCC 217
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The appellants are the defendants. The respondent filed a suit for division of all the four items of the suit properties into two equal half shares and put the plaintiff in separate possession of one such share.
2. Though the suit was dismissed by the Trial Court, the lower Appellate Court allowed the appeal and decreed the suit. Hence, this second appeal by the defendants.
3. The case of the plaintiff is this:
"Periammal, the plaintiff is the elder sister of Palanichamy, the first defendant. Her parents - Appachi Gounder and Chinnammal have got four children - Periammal, the plaintiff, Muthayee Ammal, Ammani Ammal are the daughters and the first defendant Palanisamy Gounder is the only son. While her father was alive, he executed two settlement deeds in respect of suit items dated 29.6.1978 and 5.7.1978 in favour of the plaintiff. Prior to this, her father sent two notices Exs.A1 and A3 dated 22.6.1978 and 24.6.1978 to the first defendant and got himself severed from the family. Item No. 1 of the suit properties was purchased by Appachi Gounder, the father on 15.5.1944 and a house which is item No. 2 was constructed by him in the year 1959. Item Nos. 3 and 4 are the joint family properties. After the severance in status, Appachi Gounder executed the above mentioned settlement deeds in favour of the plaintiff under Exs.A5 and A6 and delivered possession of the suit properties to the plaintiff. Since the plaintiff would be entitled to half share in the properties, she filed the suit for partition."
4. The case of the first defendant is as follows:
"Item No. 1 was purchased on 15.5.1944 by Appachi Gounder, the father and a house was constructed in item No. 2 in the year 1959. Appachi Gounder executed a settlement deed Ex.A11 dated 21.8.1959 gifting his self-acquired properties, namely items 1 and 2 to his wife Chinnammal and after her life, to the second defendant, the son of the first defendant. The said document was given effect to and acted upon. From then onwards, the second defendant and Chinnammal had been in possession. Since Chinnammal was aged, the cultivation work was done on her behalf by the defendants 1 and 2. However, behind their back, Appachi Gounder cancelled the said settlement deed executed in favour of Chinnammal, the wife and second defendant and thereafter executed two settlement deeds Exs.A5 and A6 in favour of the plaintiff. Those documents are not valid, since Appachi Gounder had no power to revoke the gift deed Ex.A11 dated 21.8.1959. Further, Exs.A5 and A6 were not given effect to, since the possession of the suit properties have been with the defendants. This was intimated through Ex.B2 dated 20.6.1979 by way of reply to the plaintiff for her notice Ex.B1 dated 13.6.1979. Further, the suit has been filed beyond the period of 12 years."
5. During trial, necessary issues were framed. The Trial Court while dismissing the suit would hold that Ex.A11 has been given effect to and as such, Appachi Gounder, the father had no right to cancel the said deed under Ex.A12 in view of the fact that power of revocation has not been given and further, the suit was filed after 12 years after receipt of reply notice Ex.B2 sent by the defendants.
6. The lower Appellate Court reversed the said finding holding that Ex.A11 has not been given effect to and that through notices Exs.A1 and A3, there was disruption of family status and as such, the plaintiff would be entitled to the reliefs as prayed for.
7. Challenging the above reversing judgment, this second appeal has been filed.
8. At the time of admission, this Court formulated the following substantial questions of law:
1) Whether the lower appellate Court is right in holding that the plaintiff is entitled to suit properties on the basis of Ex.A5 and Ex.A6 settlement deeds, when admittedly the properties originally belonged to the joint family consisting of the defendants and their ancestor, and further, the plaintiff having not come to the court within 12 years from the date of Ex.A1.
2) Whether the revocation of the settlement deed under Ex.A12 is valid in law?
3) Whether the suit as laid by the plaintiff is barred by limitation?
9. On service of notice, the counsel for the respondent entered appearance and as requested by the counsel for both parties, the matter was taken up for final disposal.
10. Mr. S.V. Jayaraman, the learned senior counsel representing Mr. N. Manokaran, appearing for the appellants, in elaboration of the substantial questions of law, would make the following contentions:
A) Ex.A11 is not a conditional gift and there is no power of revocation retained by the settlor. Therefore, the cancellation of settlement deed under Ex.A12 is invalid. Consequently, subsequent settlement deed Ex.A5 in respect of items 1 and 2 is also invalid.
B) As regards the other items, the plaintiff is basing her claim on the basis of Ex.A6 settlement deed. Admittedly, the property is a joint family property. No settlement deed can be executed in respect of joint family property. Therefore, the claim that there was a division in status by virtue of notices issued by Appachi Gounder under Exs.A1 and A3 has no basis, especially when P.W.1 herself would admit that she only gave instruction to Lawyer to issue those notices.
C) Ex.A6 has not been validly proved. As per Section 68 of the Evidence Act, one of the attestors to the settlement deed has to be examined. Though P.W.3 grandson of the attestor, who allegedly died, has been examined, he admitted that there was no other records to show his grandfather's handwriting. As such, his evidence will not satisfy Section 68.
D) The plaintiff claims that the properties were settled in 1978 under Exs.A5 and A6. It has been belatedly admitted that Ex.A11, the gift deed has been cancelled through Ex.A12 and then sent a notice on 13.6.1979 under Ex.B1 claiming partition and received reply notice Ex.B2 dated 20.6.1979 sent by the defendants denying the right of plaintiff and the alleged joint possession and enjoyment. These things in relation to Exs.A11, A12, B1 and B2 have not been mentioned in the plaint and as such, the plaintiff did not come with clean hands.
(E) Even though the reply notice Ex.B2 denying her right was received in June, 1979 by the plaintiff, she filed the present suit only in 1995, after about 17 years which is barred by limitation.
11. The reply arguments by the counsel for the respondent are as follows:
(I) Through Exs.A1 and A3, Appachi Gounder issued notice to the first defendant and got himself severed. Only after severance in status, Appachi Gounder executed Exs.A5 and A6 in favour of the plaintiff and delivered possession of the suit properties to her. Therefore, Exs.A5 and A6 are valid documents which have been acted upon.
(II) The settlement deed Ex.A11 had never been acted upon. Ex.A11 cannot be construed as a settlement deed, since no vesting had been taken place. The only beneficiary Chinnammal did not object to the cancellation of the deed Ex.A11, but she endorsed the cancellation by attesting Ex.A12. The first defendant had never taken care of his father. Appachi Gounder and his wife Chinnammal were taken care of only by the plaintiff.
(III) The evidence of D.W.1, the first defendant and D.W.3, the second defendant are totally inconsistent. As per Exs.A11, A5 and A6, the first defendant had been uncharitable to his father. D.W.1 stated that Appachi Gounder was senile on the date of execution of Exs.A5 and A6. But, this was not proved.
(IV) Plaintiff has been in possession for over two decades to the knowledge of the defendants. The same had not been challenged within the period of limitation. Hence, there is no merit in the appeal.
12. To substantiate their respective contentions, both the counsel would cite several authorities.
13. I have carefully considered the rival contentions and also gone through the records and the judgments of the Courts below.
14. At the outset, this Court has to be reminded of the scope of Section 100 C.P.C., while dealing with the second appeal. As held by the Supreme Court in ARUMUGHAM v. SUNDARAMBAL , the second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court.
15. In KONDIBA DAGADU KADAM v. SAVITRIBAI SOPAN GUJAR (1999 II M.L.J.105), the Supreme Court has observed that the High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence.
16. It is also held by the Supreme Court in SANTHOSH HAZARI v. PURUSHOTTAM TIWARI (2000(1) CTC 505) that the judgment of the first appellate Court should reflect conscious application of mind and the Court should record its findings supported by reasons on all the issues along with the contentions put forth for decision and that the appellate Court should not interfere with the finding of the trial Court on question of fact unless there is special feature about evidence of particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where credibility lies.
17. Following the said decisions, this Court in RANGANATHA PILLAI v. ANANDAN (2000(1) M.L.J.535) and MUTHURAMALINGAM v. PRIYA (2000(1) M.L.J.464) has observed that when factual findings were rendered on the basis of the materials by the last court of fact being the first appellate court, this Court would not interfere with those findings sitting in second appeal by invoking Sec. 100 C.P.C., especially when it is not established that those findings are perverse.
18. In the light of the above principles, this Court has to see whether the findings given by the lower appellate Court disturbing the factual findings of the trial court are based upon the evidence available on record or the same are perverse so as to have the proper application of Section 100 C.P.C.
19. We shall first see the findings of the lower Appellate Court:
(i) Though in Ex.A11, no power of revocation has been given, there is no independent evidence to show that Ex.A11 has been acted upon and Chinnammal took over the possession of the properties and enjoyed the same and that the second defendant came into possession on behalf of Chinnammal.
(ii) Under Section 126 of the Transfer of Property Act, the gift deed can be cancelled provided both agreed. All the revenue documents are continued to be in the name of Appachi Gounder. Though the house tax receipts are in the name of the first defendant, no document was produced to show that Chinnammal took possession. Chinnammal signed as a witness in the cancellation deed Ex.A12 and also Exs.A5 and A6 settling the properties in favour of the plaintiff.
(iii) Even before that, Exs.A1 and A3 notices were sent by the plaintiff's father to the first defendant severing his connection in the family.
(iv) The Trial Court's finding that the instruction to send notices Exs.A1 and A3 was only by the plaintiff is wrong. She stated that she gave instruction to Lawyer to send Ex.B1 notice and not Exs.A1 and A3. Exs.A5 and A6 have been properly proved through P.W.2, the officer in the Sub Registrar Office and P.W.3, grandson of one of the attestors.
(v) Under Article 65 of the Limitation Act, the twelve years period is only for declaration and recovery of possession. But, the plaintiff filed the suit only on the basis of Exs.A5 and A6. Therefore, the suit cannot be said to have been filed beyond the period of limitation. Since Exs.A5 and A6 have been executed by the father in favour of the plaintiff, the other sisters have no right. In the light of the cancellation deed Ex.A12 and the settlement deeds Exs.A5 and A6, the plaintiff would be entitled to the relief as prayed for.
20. On a careful scrutiny of the entire records and on proper consideration of the arguments advanced by the counsel for the parties, this Court is constrained to come to conclusion that the findings given by the lower appellate Court are not only wrong, but also perverse, since the reasonings for those findings were not given taking into consideration the settled principles of law and were given ignoring the available evidence on record and disturbing the well reasoned judgment of the trial Court. The reasons are given in the following paragraphs for arriving at such conclusion.
21. The first question is whether Ex.A11, the settlement deed executed in favour of Chinnammal for her lifetime and then to the male heirs of the first defendant has been validly cancelled or not. While submitting that Ex.A11 has not been given effect to, it is pointed out by the counsel for the plaintiff that Appachi Gounder, the father cancelled Ex.A11 through Ex.A12 with the consent of Chinnammal, beneficiary and as such, it has to be construed that the settlement deed was validly cancelled.
22. It is a settled position of law as laid down in MENAKSHIAMMAL v. RAMASAMY MUDALIAR (1998 (3) M.L.J. 390),SAROJINI AMMAL v. KRISHNAVENI AMMAL ALIAS BABY AMMAL (1990(1)L.W.599),JAYALAKSHMI v. KARLIAPERUMAL (1995(98) L.W.167) and BALASUBRAMANIA PATTAR v. KANDASAMY PATHAT (1999 II M.L.J.367) that once a gift is accepted and in the absence of power of revocation, the settlement cannot be revoked as provided under Section 126 of the Transfer of Property Act.
23. Once the settlement deed is accepted by the settlees, then the settlement is complete. In the absence of power of revocation reserved for the settler, the gift deed cannot be revoked. It is permissible for the Court to draw a presumption of acceptance from the conduct of the parties and from the factual materials. This is a presumption of fact. Merely because there was no formal parting with, it cannot be said that it is a factor to be counted against acceptance of the settlement, even though when the parties being the husband and wife and were found to be living together. The physical delivery of the property gifted is not contemplated. What is contemplated is the acceptance by donee or on behalf of the donee.
24. In the light of the above principles, if we look at the facts, it is clear that in Ex.A11, no power of revocation has been given. There is no dispute that the wordings contained in Ex.A11 would not provide any condition for the gift and on the other hand, there is recital referring to the handing over of the possession. As such, once it is established that the gift is accepted by the settlee, the gift deed cannot be revoked. Ex.A11 dated 21.8.1959 would show the following recitals:
@,jdoapy; fz;lJk; vdf;F fPH;f;fz;l Rahh;$pjkha; ghj;jpag;gl;lJkhd: U:/1500 kjpg;g[s;s g{kpiaa[k; tPl;ila[k; ,e;j brl;oy;bkz;L K:ykha; vGjpf; bfhLj;J ,jdoapy; fz;l brhj;ija[k; cd; RthjPdKk; tpLfpnwd;/ ,dp ,jdoapy;fz;l brhj;ij/ ePna rh;t Rje;jpukha; mDgtpj;Jf;bfhs;s ntz;oaJ/ cd; $Pt jpirf;Fg;gpd; ,jdoapy; fz;l brhj;J vd;Dila kfd; gHdpntyg;g ft[z;lDila Mz; thhpRfSf;F kl;Lk; nruj;jf;fJ/ ////// ckf;F ,e;j brl;oy;bkz;L K:ykha; vGjpf; bfhLj;J brhj;ija[k; cd; RthjPdj;jpYk; tpl;oUf;fpnwd;/@ Thus, it is clear that the wordings would indicate that it was a gift without any condition and the possession was handed over to Chinnammal, the settlee, on the date of execution of the deed Ex.A11, i.e. on 21.8.1959.
25. The cancellation deed Ex.A12 was executed in the year 1978 i.e. on 5.6.1978. Strangely, the recital in Ex.A12 would show that the gift deed Ex.A11 was cancelled through Ex.A12 on the reason that the condition contemplated under the gift deed was not complied with by Chinnammal, the settlee. The following is the extract:
@b!l;oy;bkz;Lgo vdf;F ,&;lkpy;yhjgoahYk; vd; eyid cj;njrpj;Jk; vdf;F md;dt!;jpuk; bfhLj;J fhg;ghw;Wtjhf thf;fspj;jgo elf;fhjgoahYk; vd; nghpy; Kd;dpUe;J gphpak; tu tu ,g;nghJ ,y;yhky; ,Ug;gjhYk; vd; $Pt jpir tiu vd;id rhptu fhg;ghw;wkhl;lhs; vd;W vdf;F bjhptjhy; i& b!l;oy;bkz;il ,g;gj;jpuk; K:yk; uj;J bra;jpUf;fpnwd;/@
26. Thus, these recitals would show that the gift deed Ex.A1 which is a conditional one was cancelled through Ex.A12. Actually, Ex.A11 is not a conditional gift. Though in Ex.A12, in the further recital, it is stated that the settlement deed executed in the year 1959 has not been given effect to, the reading of the entire recital in Ex.A12 would show that the cancellation was mainly on the reason that the promise given by the settlee Chinnammal was not kept up. Furthermore, if such a settlement deed has not been given effect to, there is no necessity for execution of A12.
27. The peculiar feature in this case is that Ex.A12 was attested by Chinnammal herself, the wife of the settlor. It is not understandable as to why the settlee has to attest the document for cancelling the settlement deed in favour of the settlor, when settlor made accusation against the settlee stating that she did not maintain him properly and as such, the condition in the gift deed Ex.A11 was not complied with. The lower appellate Court has not considered this evidence at all. Under those circumstances, it has to be held that Ex.A11 is not conditional gift deed and the same had been acted upon by handing over possession of items 1 and 2 in favour of Chinnammal, the settlee and that the cancellation through Ex.A12 is not permissible under law.
28. In respect of items 3 and 4, the lower appellate Court relied upon Exs.A1 and A3 notices sent by the plaintiff's father to the first defendant severing his connection in the family. Unfortunately, P.W.1, the plaintiff had admitted in her evidence that for issuing Exs.A1 and A3, she only gave instructions to the Lawyer. Contrary to the evidence, the lower appellate Court gave a finding that P.W.1 did not refer to Exs.A1 and A3, but she only referred to Ex.B1. This is factually wrong. If we look at the evidence of P.W.1, it is clear that she referred to Exs.A1 and A3 only in respect of which she gave instructions. The relevant portion is this:
"vdf;F brl;oy;bkz;l; vGjp itg;gjw;FKd; tHf;fwp"h; mwptpg;g[ bfhLf;fg;gl;lJ/ tHf;fwp"h; mwptpg;g[ bfhLj;jnghJ vdf;F tHf;fwp"h; jpU/nfrtd;/ ehd; jfty;fs; brhy;ypj; jhd; tHf;fwp"h; mwptpg;g[ mDg;gpdhh;/ th/rh/M/1 kw;Wk; th/rh/M/3 ,tw;wpw;F jfty;fs; bfhLj;jJ ehd; jhd;/@;
The above admission would clearly indicate that the categorical stand taken by the plaintiff as P.W.1 is that the Lawyer sent notices Exs.A1 and A3 on behalf of Appachi Gounder severing his status in the family only on the instruction of P.W.1, the plaintiff.
29. As laid down in MUDIGOWDA v. RAMACHANDRA , it is established law that for disruption of joint family status, a definite and unambiguous indication of intention by one member of the joint family to separate himself from the family and to enjoy his share in severalty must be expressed and intimated to his co-sharers. In order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If the expression of intention is a mere pretence or a sham, there is no separation of the joint family status in the eye of law.
30. A perusal of Exs.A1 and A3 would show such indication is absent. Further, it was not established that the notices Exs.A1 and A3 were sent only on the instructions of Appachi Gounder. On the other hand, P.W.1, as noted above, herself admitted in her cross-examination that the same were sent by the Lawyer intimating the severance of status in the family to the first defendant only on her instructions. Therefore, the important requirement for severing the family status has not been satisfied. In such circumstances, Appachi Gounder, the father would not be entitled to execute Exs.A5 and A6 settlement deeds in favour of the plaintiff as they are joint family properties of Appachi Gounder and the first defendant.
31. The plaintiff admitted having issued notice Ex.B1 to the defendant and received the reply Ex.B2. Having received Ex.B2, the reply notice sent by the defendants denying her right of half share in the year 1979, she must have approached the Court to establish her claim within the period of limitation. Admittedly, the suit has been filed in 1995, i.e. after 17 years. As such, it has not been filed within 12 years, the period of limitation. Furthermore, there is no material produced by the plaintiff to show that the properties were in joint possession of the plaintiff as well as the defendants subsequent to Exs.A5 and A6. On the other hand, the defendants sent reply Ex.B2 on 20.6.1979 itself stating that the suit properties were in their possession denying the claim of the plaintiff, i.e. the joint possession. The evidence of D.Ws.1 and 2 also would support Ex.B2.
32. In the absence of the materials to prove the continuous joint possession and in the light of the suppression of Exs.B1 and B2 in the plaint and in the reply statement filed in the Court, it is not open to the plaintiff, at this stage, to claim joint possession. In fact, the trial Court has considered the evidence and discussed threadbare and given a factual finding that Ex.A11 has been acted upon and subsequent cancellation deed is not valid and it was not established that the family status has been severed through the proper evidence and as such, Exs.A5 and A6 also had become invalid. The lower appellate Court did not at all consider the reasons given by the trial Court for factual findings and instead, gave a finding in favour of the plaintiff against the evidence available on record ignoring the settled principles of law.
33. Therefore, the substantial questions of law formulated by this Court have been answered in favour of the appellants/defendants. The judgment and decree passed by the lower appellate Court are set aside and the judgment and decree passed by the trial Court dismissing the suit are restored. Thus, the second appeal is allowed. No costs. Consequently, C.M.P. Nos. 1790 and 1791 of 2002 are closed.