Madras High Court
R.Balakrishnan … vs Mrs.V.M.Sumathy on 1 August, 2023
Author: R.Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
O.S.A. Nos.318 and 324 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
O.S.A. Nos.318 and 324 of 2022
and C.M.P.Nos.22411 and 23216 of 2022
R.Balakrishnan … Appellant in O.S.A.No.318 of 2022
R.Boopathy … Appellant in O.S.A.No.324 of 2022
Vs.
1.Mrs.V.M.Sumathy
2.Mr.R.Boopathy
3.Mrs.Soundarammal … Respondents in O.S.A.No.318 of 2022
1.Mr.V.M.Sumathy
2.Mr.R.Balakrishnan
3.Mrs.Soundarammal ... Respondents in O.S.A.No.324 of 2022
Common Prayer: Original Side Appeals filed under Order XXXVI Rule 1 of the
Original Side Rules read with Clause 15 of Letters Patent against the fair and decreetal
order dated 08.11.2022 in Appln.No.4540 of 2021 in E.P.176 of 2018 in C.S.No.793 of
2007.
For Appellants : Mr.T.C.S.Raja Chockalingam
in both O.S.As. for Mr.R.C.Srinivasan
For Respondents 1 & 3 : Mr.N.Nagu Sah
in both O.S.As.
1/20
https://www.mhc.tn.gov.in/judis
O.S.A. Nos.318 and 324 of 2022
COMMON JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.) These two appeals are filed challenging the order of the learned Judge dated 08.11.2022 passed in Appln.No.4540 of 2021 whereby the appellants herein were directed to vacate and hand over possession of the suit schedule property on or before 31.12.2022, failing which, the learned Master should pass necessary orders in E.P.No.176 of 2018, and to ensure that the appellants do indeed vacate the premises and adhere to the compromise, which was entered into before the Lok Adalat.
1.1. The above order of the learned Judge is challenged by Mr.R.Balakrishnan and Mr.R.Boopathy in the present appeals viz., O.S.A.Nos.318 and 324 respectively. For ease of reference, we shall refer to them as the appellants 1 and 2 individually and as appellants collectively. Mrs.V.M.Sumathy, sister of the appellants is the 1st Respondent in both the appeals, while Mrs.Soundarammal, mother of the parties is the 3rd respondent in both the appeals and are thus referred to as 1st and 3rd respondents respectively.
2. Brief facts:
a) A suit in C.S.No.793 of 2007 was filed by Mr.R.Boopathy against his mother 2/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 Mrs.Soundarammal, brother Mr.R.Balakrishnan and sister Mrs.V.M.Sumathy seeking partition and separate possession of two items of the properties described in the Schedule to the Plaint.
b) The matter was referred to Lok Adalat, in which, the issues were settled between the appellants and the respondents herein and a compromise was made by the parties to the suit in the presence of their counsels on 06.02.2008. Pursuant thereto, terms of settlement were drawn among the parties to the suit, whereby the appellants herein agreed to take equally Item No.2 of the suit schedule property, while the mother and sister i.e., respondents 1 and 3 herein agreed to take Item No.1 of the suit schedule property.
c) Pursuant to the above settlement / compromise arrived at among the parties, the appellants sold the property, which was allotted / settled to them i.e., Item 2 of the suit schedule property vide the terms of settlement entered into before the Lok Adalat. The sale consideration in respect of Item 2 of the suit schedule property was apparently shared between the two brothers.
d) Thereafter, a settlement deed was executed on 04.05.2018 by the mother /3rd respondent herein whereby the joint share in the suit schedule property allotted in favour of the 3rd respondent was settled in favour of the daughter i.e., the 1 st respondent herein. Consequent to the said settlement, the half share in Item 1 of suit 3/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 schedule property, which was originally allotted vide compromise deed dated 06.02.2008 to the 3rd respondent, was settled in favour of the 1st respondent with full power of alienation subject to the life estate to the settlor i.e., the 3rd respondent herein.
e) Admittedly, the 1st appellant is occupying the first floor of Item I of the suit schedule property allotted to the 1st and 3rd respondents, while the 2nd appellant herein is occupying the ground floor shop portion and second floor residential portion of Item No.1 of the suit schedule property.
f) Despite the decree passed based on the compromise entered into before the Lok Adalat, the appellants, after agreeing to vacate and deliver vacant possession of Item 1 of the suit schedule property, are continuing to remain in occupation of the same.
g) Hence, Execution Petition in E.P.No.176 of 2018 was filed by the 1 st respondent herein against the appellants to deliver the possession of the suit schedule property in their occupation. Pending the same, the first appellant preferred the applications in A.Nos.4717, 4358 and 4359 of 2019 in E.P.No.176 of 2018 praying to examine the parties to the settlement deed dated 04.05.2018, decide the questions relating to the execution of the said settlement deed and to stay the EP proceedings till the disposal of the application filed by him under section 47 of the Civil Procedure Code.
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h) The above execution petition was resisted by the appellants on the premise that the 3rd respondent i.e., the mother assured the appellants herein that she would execute a Will in respect of undivided half share, which was allotted to her, vide compromise deed dated 06.02.2008.
i) The appellants herein further submitted that the 1st respondent was suffering from mental ailment and the 3rd respondent was illiterate and thus, questioned the validity / legality of the settlement deed dated 04.05.2018, whereby the joint share of the 3rd respondent /mother was settled in favour of the 1st respondent herein, as being void.
j) The learned Master however, rejected the contention of the appellants on the premise that the execution petition was not filed on the basis of the Settlement Deed dated 04.05.2018, but instead on the strength of the compromise entered into between the parties in C.S.No.793 of 2007. Further, the 3rd respondent, having been allotted half share in the Item 1 of suit schedule property, is at liberty to dispose of the same in any manner that she intends / desires; and that the appellants would have no right or title over the undivided share, which was allotted in favour of the 3 rd respondent nor is it open to them to question the settlement deed which was admittedly executed by the 3rd respondent in favour of the 1st respondent herein. The claim / allegation that the 1 st 5/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 respondent was not of sound mind, was found to be not supported by any evidence either oral or documentary and thus rejected. The learned Master also found that the appellants having not questioned / challenged the settlement deed, their contention in the Execution Petition, was ill founded and unsustainable. The case of tenancy that was set up by the appellants, was also rejected. Accordingly, all the applications filed by the first appellant came to be dismissed, vide a common order dated 30.07.2019.
k) Subsequently, an application in A.No.5634 of 2019 was filed by the first appellant herein before the learned Judge, praying for stay of the common order dated 30.07.2019 passed by the learned Master in A.Nos.4717, 4358 and 4359 of 2019 in E.P.No.176 of 2018. The said application was rejected by the learned Judge by order dated 20.09.2019 on the finding that in terms of the compromise in C.S.793 of 2007, the appellants do not have any right, title or interest over Item No.1 of the suit schedule property, which was allotted to the 1st and 3rd respondents and affirmed the order of the learned Master.
l) A further appeal in O.S.A.289 of 2019 was preferred by the first appellant against the order of the learned Judge dated 20.09.2019 on the premise that the contesting respondent is of unsound mind/ mentally deranged and thus, the order of the learned Judge warrants interference. The Division Bench found that there were two aspects, one related to the scope of Section 47 of the Code of Civil Procedure 6/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 (hereinafter referred to as "CPC") and the other is the pendency of the suit in O.S.No.2015 of 2019 on the file of City Civil Court initiated by the first appellant questioning the settlement deed dated 04.05.2018. Since the Execution Petition is still pending and the appellants intend to adjudicate on the veracity of the settlement deed executed by the mother, who is still alive, the Division Bench dismissed the appeal on 06.01.2020 leaving all the issues open to be decided in the Execution Petition.
m) After dismissal of the above appeal, the first appellant preferred the application in A.No.2604 of 2021 to stay the execution proceedings in E.P.No.176 of 2018 till the disposal of the suit in O.S.No.2015 of 2019 pending on the file of the XII Assistant City Civil Court, Chennai. The said application came to be dismissed by the learned Master on 24.09.2021. While so, it was observed that the first respondent herein cannot maintain E.P., as a joint decree holder for the half share allotted to the third respondent; that, there is no impediment for the third respondent to proceed for half share, which was allotted to her in the decree; and hence, the E.P. was partly dismissed with regard to half share of the third respondent.
n) Challenging the above order dated 24.09.2021, in respect of the dismissal of the E.P., relating to the third respondent's undivided half share in the schedule mentioned property, the respondents 1 and 3 herein, filed the application /Appeal in A.No.4540 of 2021 in E.P.No.176 of 2018 and the learned Judge vide order dated 7/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 08.11.2022, allowed the said application.
3. Order of the learned Judge:
The learned Judge proceeded to allow the application filed by the respondents 1 and 3 herein inter alia for the following reasons:
a) That the appellants having enjoyed the benefit in terms of the settlement / compromise deed, it would not lie in the mouth of the appellants to question the mental faculty of the 1st respondent.
b) That no documentary evidence was let in to prove that the 1st respondent was of unsound mind. Unless a competent Medical Board examines the 1 st respondent and declares her to be of unsound mind, any amount of assertion on her mental faculty is of no avail and the assertion cannot take the place of proof.
c) That the mother / 3rd respondent herein had executed a settlement deed in favour of the 1st respondent and also affirmed the execution of the same.
d) That the Lok Adalat award and settlement deed having merged / become part of the decree, cannot be questioned in any Court of law, unless fraud is alleged. If any 8/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 allegation of fraud was to be accepted resulting in the settlement deed void, the appellants cannot be permitted to retain any benefit out of the void settlement deed and ought to therefore pay/ share the consideration received towards sale of Item 2 of the suit schedule property allotted to them in terms of the settlement deed.
e) That the settlement deed dated 04.05.2018 was between the mother, 3rd respondent herein and the daughter, 1st respondent herein and thus, the appellants who are not parties to the same, would have no locus standi to question the settlement deed, moreso, when the 3rd respondent/ mother has categorically stated that she had signed and executed the settlement deed knowing fully the contents of the document.
f) On the basis of the above findings, the appellants were directed to vacate and hand over the vacant possession of Item 1 of suit schedule property on or before 31.12.2022, failing which, the learned Master should pass necessary orders in E.P.No.176 of 2018, which shall be heard again on 30.11.2022. The learned Master was further directed to issue necessary orders to ensure that the appellants herein do indeed vacate the premises and adhere to the compromise which they had entered into before the Lok adalat.9/20
https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022
4. The above order of the learned Judge is challenged by the appellants herein, who are the second defendant and plaintiff in C.S.No.793 of 2007 respectively.
5. Case of the Appellants:
a) That the learned Judge erred in placing reliance upon the affidavit purportedly executed by the 1st respondent, though she is of unsound mind and thus incapable of understanding and forming a rational judgment particularly in matters of importance.
Similarly, the 3rd respondent i.e., mother of the 1st respondent was also unaware of the content of the affidavit purportedly executed by her.
b) That the learned Judge erred in not summoning the Execution Petitioner i.e., the 1st respondent herein so as to evaluate/ decide her mental faculty, though it was vehemently contended that the Execution Petitioner has been severely affected by mental illness for the past 10 years.
c) That the learned Judge failed to appreciate that the Execution petitioner / 1st respondent herein has been suffering from serious mental illness for the past 10 years and thus incapable of accepting the gift offered vide settlement deed dated 04.05.2018, which came to be executed, after 10 years (i.e.,) after the Lok Adalat/compromise Decree came to be passed on 06.02.2008.
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d). That the learned Judge failed to appreciate that the alleged execution of settlement deed and the factum of the mental capacity of the Execution Petitioner i.e., the 1st Respondent that she was of sound mental health, were not proved before the learned Master.
e) The learned Judge erred in deciding the application in Appln.No. 4540 of 2021 in a casual manner without considering the substantial questions involved in respect of the alleged execution of the settlement deed.
6. Case of the Respondents:
a) That the order of the learned Judge does not warrant any interference and the appeal is a gross abuse of process of this Court only to deprive the respondents of their legitimate right to the suit schedule property.
b) That the attempt made by the appellants to allege the 1st respondent of being mentally unsound and the mother being illiterate and thereby declare the settlement deed as being void, is clearly baseless and imaginary.
c) That the contention of the appellants does not deserve any consideration inasmuch as the appellants have claimed / enjoyed the benefit of the compromise decree made on the basis of the Settlement deed by selling, realising and sharing the consideration of Item 2 of the Suit Schedule Property, which was allotted to them.11/20
https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022
7. Heard both sides. Perused the material on record.
8. The claim of the appellants that the 1st respondent is of unsound mind, is made on the basis of mere assertion and not backed by any evidence. It may be relevant to note that mere allegation/ assertion of a person being unsound mind, is inadequate for the Court to proceed on the said basis. The Mental Health Care Act, 2017 provides for the method for determining mental illness. Section 3 of the said Act is relevant and it reads as under:-
“3. (1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organization) as may be notified by the Central Government.
(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,–– (a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person; (b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.
(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness.
(5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.” 12/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 8.1. It is also important to note under that as per the Tamil Nadu Court of Wards Act, 1902 (hereinafter referred to as "the Wards Act"), if a proprietor is of unsound mind and incapable of managing the property in terms of the Wards Act, it prescribes the procedure to be followed in respect of assumption, superintendence and management of the Wards and their property. It is thus clear that the attempt made by the appellants to suggest that the 1st Respondent is of unsound mind and therefore, stands disqualified to manage her property that has been allocated to her in terms of Lok Adalat Award and forming part of a decree of this Court and the property settled /executed by the 3rd respondent / mother in favour of the 1st respondent V.M.Sumathy, on the basis of mere assertion in the circumstances, is only meant to bypass or circumvent the Mental Health Care Act and the Wards Act, which is impermissible and liable to be rejected.
Burden of proving insanity under the Contract Act:
9. It must also be borne in mind that there is a presumption in terms of the sanity of person and the burden is on the person, who alleges unsoundness of mind, to prove it with cogent and adequate evidence. Section 12 of the Contract Act, 1872, may also have some bearing and it provides that a person is said to be of a sound mind for the purpose of making a contract, if at the time he makes is capable of understanding it and 13/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 of forming a rational judgment as to its effect upon his interests. In this regard, it may be relevant to refer to the judgments of the Patna High Court:
i) Indar Singh v. Parmeshwardhari Singh, 1957 SCC OnLine Pat 56:
“8. He has relied on U Aung Ya v. Ma E Mai, AIR 1932 Rang 24 (A), Kanhaiyalal Tannalal v. Harsingh, Laxman, AIR 1944 Nag 232 (B) and Mahomed Yakub v. Abdul Quddus, 4 Pat LT 17 : (AIR 1923 Pat 187) (C). The principle of law enunciated in all these cases is the same. Mahomed Yakub's case (C) is a Division Bench case of this Court. It lays down:— “…….the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …….. Mere weakness of mind is not sufficient……” (emphasis supplied)
ii) Mohammad Yakub and Ors. vs. Abdul Quddus and Ors. (02.08.1922 - PATNAHC) : 4 Pat LT 17 : (AIR 1923 Pat 187):
“11. Witnesses … Section 12 says that a parson is said to be of a sound mind for the purpose of making a contract it at the time he makes it he is capable of understanding it and forming a rational judgment as to its effect upon his interests; in other words, the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the parson who relies on the unsoundness of mind must prove it sufficiently to satisfy this test: Hall v. Warren (1804) 9 Ves 605 : 7 RR 306 : 32 ER 738. Mere weakness of mind is not sufficient as is laid down in the case of Durga Bakhsh Singh v. Muhammad Ali Beg(sic) 27 A 1 : 7 OC 287 : LR 31 I. A. 235 :
8 Sar PCJ 725 "
(emphasis supplied)
10. The allegation of the appellants that the 1st respondent is of unsound mind, is made on the basis of the fact that she had consulted a psychiatrist and has been allegedly prescribed psychiatric medicines, however no evidence has been let in support thereof and thus, ought to be rejected. Assuming it to be correct, mere fact of 14/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 consultation with a psychiatrist or prescription of psychiatric medicine is inadequate to show that the 1st respondent is of unsound mind. In any event, the mental well being / health / soundness, if doubted / challenged, the same ought to be determined by following the procedure as prescribed under the Tamil Nadu Court of Wards Act and the Mental Health Care Act. We find that the appellants are attempting to deny the property to the 1st respondent which she is legitimately entitled, on the basis of mere assertion without any evidence and hence, it is unacceptable and needs to be rejected.
11. We are also of the view that the present attempt made by the appellants in an Execution Petition filed pursuant to the decree made on the basis / incorporating the Lok Adalat Award, to which they have been a party and having enjoyed the benefit from the decree based on the compromise before the Lok Adalat and forming part of the decree, cannot be permitted inasmuch as it would not be open to the appellants to question the validity of the same. Any attempt to do so would be hit by the doctrine of approbate and reprobate. In this regard, it may be useful to refer to the judgment of the Hon'ble Supreme Court in Union of India v. N. Murugesan, (2022) 2 SCC 25 :
"26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits.15/20
https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party xzactually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
.........
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under : (R.N. Gosain case [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] , SCC pp. 687-88, para 10) ‘10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ‘a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage’.’ ‘On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it."
11.1. Applying the above principle to the facts of the present case, we are of the view that the appellants having elected / accepted the compromise decree and having enjoyed the benefits thereof, cannot be permitted to question the validity of the said compromise / settlement decree with regard to the portion by which Item No.1 of the 16/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 suit schedule property was settled in favour of the respondents 1 and 3.
12. Yet another reason to reject the attempt made by the appellants questioning the settlement by the 3rd respondent in respect of her joint share in Item 1 of the suit scheduled property in favour of the 1st respondent, is that one of the incidents of ownership is the right to dispose of the property in the manner which the owner intends / desires and it is thus, not open to the appellants to question the settlement deed, whereby the 3rd respondent/mother has settled her joint share in favour of the 1 st respondent. In this regard, it may be useful to refer to the following judgments:
i) Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596 at page 624:
"42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Edn., 1987, at p. 1031, it is stated that the property is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have. The term property has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land. In Dwarkadas Shrinivas case [1950 SCC 833 : 1950 SCR 869 : AIR 1951 SC 41] this Court gave extended meaning to the word property. Mines, minerals and quarries are property attracting Article 300-A. 17/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 (emphasis supplied)
ii) Laljibhai Kadvabhai Savaliya v. State of Gujarat, (2016) 9 SCC 791 :
"22. As laid down by this Court in Jilubhai Nanbhai Khachar v. State of Gujarat [1995 Supp (1) SCC 596] the term “property” in legal sense means an aggregate of rights which are guaranteed and protected by law and would extend to entirety or group of rights inhering in a person. It was observed by this Court as under :
(SCC pp. 624-25, para 42) “42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word “property” connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Edn., 1987, at p. 1031, it is stated that the property is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have. The term “property” has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land.” 12.1. It is thus clear that the 3rd respondent as the lawful owner of the joint share of Item No.1 of the Schedule Property, would also have the right to dispose of the property in the manner, which she intends / desires. The appellants would have no locus to challenge the same, moreso, in an Execution Petition. Therefore, the act of the appellants in not handing over possession of the property alloted to the 1st and 3rd Respondents under the compromise, which has since become part of the decree, is 18/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 illegal and meant to harass the 1st Respondent, which cannot be countenanced by this Court.
13. For all the above reasons, we find no reason to interfere with the order of the learned Judge. Thus, the Original Side Appeals are dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
[R.M.D., J.] [M.S.Q., J.] 01.08.2023 Speaking (or) Non-Speaking order Index: Yes/ No Neutral Citation : Yes/No shk/ mka 19/20 https://www.mhc.tn.gov.in/judis O.S.A. Nos.318 and 324 of 2022 R.MAHADEVAN, J.
and MOHAMMED SHAFFIQ, J.
shk/ mka O.S.A. Nos.318 and 324 of 2022 01.08.2023 20/20 https://www.mhc.tn.gov.in/judis