Madras High Court
K.Bhaskaran (Died) vs Tmt.B.Pramila
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
RESERVED ON: 05..04..2017
DELIVERED ON : 18..4..2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
A.S.No.9 of 2013
and MP.No.1 of 2014
and CMP.No.1776 of 2017
1.K.Bhaskaran (died)
2.Tmt.K.Vasanthi ... Appellants/defendants 1 and 5
Vs.
1.Tmt.B.Pramila
2. Ms. Srijanani ... 1st and 2nd Respondents/plaintiffs
3. M/s. C.S.C Computer Centre
Operated by G.R.Computer Centre
Represented by Mr.Thilaga
4. Thiru. Subramanian
5. Thiru. Devapandian .. respondents/defendants 2,3 & 4
Prayer:- This Appeal suit has been filed under Section 96 of CPC, against the judgment and decree of the Additional District Judge, Kancheepuram at Chengalpet and made in O.S.No. 6 of 2004.
For Appellants : Mr. AR.L.Sundaresan,
Senior Counsel for
M/s. AL. Ganthimathi
For R1 and R2 : Mr. T.V.Ramanujam,
Senior Counsel for
M/s. C.Jagadish
For R3, R4 and R5: No Appearance
J U D G M E N T
Aggrieved over the judgment and decree dated 10.10.2012 passed by the Additional District Judge, Kancheepuram at Chengalpet in O.S.No.6 of 2004, the defendants 1 and 5 have preferred the present appeal.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. The plaintiffs filed a suit in O.S.No.6 of 2004 before the learned Additional District Judge, Kancheepuram District at Chengalpet for declaration of title, delivery of possession, future damages and also for permanent injunction and costs.
4. After contest, the suit was decreed declaring the plaintiffs title over the suit schedule properties and to deliver vacant possession and to pay future damages.
5. The brief facts of the case of the plaintiffs are as follows:
(i) 1st plaintiff is the wife of the 1st defendant and 2nd plaintiff is the daughter of the 1st plaintiff and 1st defendant. 5th defendant is the mother of the 1st defendant and defendants 3 and 4 are the tenants in the suit properties. The marriage between the 1st plaintiff and the 1st defendant was solemnized on 20.02.1994 at Chennai and out of wedlock, the 2nd plaintiff was born on 07.01.1995. The 1st defendant, ever since from the date of marriage, was consuming alcohol and started indiscriminate borrowing from friends and relatives. On one such occasion, there was quarrel between the 1st defendant and his parents and at that time, the 1st defendant written a letter admitting his affair with another girl. The 1st plaintiffs parents advised the 1st defendant to lead a proper life.
(ii) While so, in the month of April 2005, the plaintiff and the 1st defendant were thrown out from the house by the 5th defendant. Therefore, the plaintiffs and the 1st defendant were living in the rented house at Adambakkam with the help of rents received from A schedule property. In such circumstances, the 1st defendant had voluntarily executed absolute and irrevocable Settlement Deeds dated 11.4.2000 settling 1/3rd undivided share each in favour of 1st plaintiff and 2nd plaintiff in respect of A schedule property. After making such settlement, the 1st plaintiff and the 1st defendant jointly mortgaged the said property and borrowed a sum of Rs.2,05,702/- for the purpose of discharging mortgage loan borrowed by the 1st defendant from M/s. Nanganallur Permanent Fund Limited. Thereafter, the 1st defendant also executed settlement in respect of remaining 1/3rd share in favour of the 1st plaintiff on 29.12.2000. Thus, the plaintiffs became absolute owner of A schedule property by leasing out the same to various tenants and collecting rent from them and discharging the debts over the suit property.
(iii) When the matter stood thus, the 1st plaintiff and 1st defendant jointly purchased a flat at Adambakkam, by raising loan from LIC for a sum of Rs.3,50,000/-, which was repayable in 15 years equated monthly installments of Rs.5,866/-, and both of them were living together in the said flat by paying monthly installments, out of the rental income from the suit property. The 1st plaintiff was paying installments from the very beginning till August 2003. She has also paid property tax to the suit property. The 1st defendant also addressed a letter dated 07.5.2001 calling upon the tenants in the suit properties to pay the rents to the plaintiffs. After receipt of such letter, the tenants were paying rent to the 1st plaintiff regularly. Some of the tenants also entered fresh lease agreement with the 1st plaintiff. Thereafter, one of the tenant i.e., M/s. Srikumaran Departmental Stores, vacated the tenanted premises in the month of July 2003, after receiving advance amount of Rs.2,00,000/- from the 1st plaintiff. The 1st plaintiff again mortgaged the suit property on 10.12.2003. The 1st plaintiff, unable to bear the cruelty by the 1st defendant, has filed an application for divorce in O.P.No.1876 of 2003. During 1st week of December 2003, the 1st defendant broke open and illegally trespassed into the B schedule property. The plaintiff also lodged a complaint to that effect. While so, the 1st plaintiff came to know that the 1st defendant had cancelled the Settlement Deeds unilaterally on 24.11.2003. Accordingly to the plaintiffs, the Cancellation Deeds are null and void. Hence the suit for declaration declaring the title to the suit properties.
6. The brief averments made in the written statement filed by the 1st defendant are as follows:
According to the 1st defendant, the suit is not maintainable. The 1st defendant denied the allegations that he was consuming alcohol and leading extravagant life. He also denied the execution of Settlement Deeds voluntarily. It is stated by the 1st defendant that the alleged letter and the Settlement Deeds were not signed by him and the same have been obtained by the 1st plaintiff while he was in an intoxicated state. It is stated that the possession has not been transferred to the plaintiffs. According to the 1st defendant, the alleged Settlement Deeds have been obtained fraudulently and the same have not been disclosed to his parents. Hence, according to the 1st defendant the alleged Settlement Deeds are vitiated by fraud, coercion and undue influence. The alleged letter of attornment dated 07.5.2001 is also denied by the 1st defendant. Thus, the 1st defendant prayed for dismissal of the suit.
7. The defendants 2 to 4, who are the tenants in the suit properties, have filed separate written statement stating that they were inducted as tenant by the 1st defendant from the year 1999 and they did not attorn tenancy in favour of the plaintiff and they continued to pay the rent only to the 1st defendant. Hence, according to the defendants 2 to 4, they are unnecessary parties to the suit.
8. The 5th defendant, who is the mother of the 1st defendant, also filed a written statement stating that Settlement Deeds said to have been executed by the 1st defendant are vitiated by coercion and fraud and that the same have not been executed out of his own will and pleasure. It was extracted from him with ulterior motive when he was not in senses. Since he was addicted to alcohol, that weakness was exploited by the 1st plaintiff in her favour. In fact, the vacant land was purchased by the 5th defendants husband Kuppusamy in the name of the 1st defendant and construction was put up by the 1st defendant and the said Kuppusamy. The 1st defendant had already executed Settlement Deed dated 04.8.2004 on his own volition in favour of the said Kuppusamy, while he was in a sound and disposing state of mind and that the said Kuppusamy was in possession and enjoyment of the same by collecting rents from the tenants. The said Kuppusamy also died on 04.8.2004. Therefore, two daughters of the said Kuppusamy are also necessary parties to the suit. According to the 5th defendant, she has 1/4th share in the suit properties. Thus, the 5th defendant prayed for dismissal of the suit.
9. Based on the above pleadings, the trial Court has framed the following issues:
1. Whether the Settlement Deeds dated 11.4.2000 and 29.12.2000 are true and valid?
2. Whether the deeds of cancellation dated 24.11.2003 are true and valid?
3. Whether the plaintiffs are entitled to decree for declaration of title and recovery of possession of plaint B schedule property?
4. Whether the plaintiffs are entitled to future damages?
5. Whether the plaintiffs are entitled to declaration of title and permanent injunction of plaint C schedule property?
6. To what relief?
10. The trial Court has also framed the following additional issues for consideration. They are:
1. Whether the suit property is the property of Kuppusamy and his son Baskaran?
2. Whether the settlement deed dated 04.8.2004 executed by Baskaran in favour of his father is valid and binding on the plaintiffs?
3. Whether the two daughters of Kuppusamy are necessary parties to the suit?
4. Whether the 5th defendant and her two daughters and the 2nd defendant are entitled to equal shares in the suit property?
11. On the side of the plaintiffs, the 1st plaintiff was examined as P.W.1 and Exs. A1 to A51 were marked. On the side of the defendants, D.W.1 to D.W.5 were examined and Exs. B1 to B18 were marked.
12. The trial Court has decreed the suit as prayed for. As against which, the present appeal came to be filed by the defendants 1 and 5.
13. The learned Senior counsel for the appellants / defendants 1 and 5 vehemently contended that the plaint pleadings itself would clearly prove the fact that the 1st defendant was never in senses from the very beginning and he was addicted to alcohol. Further, in the plaint pleadings, it is stated that the parents of the 1st plaintiff intervened and persuaded the 1st defendant to make provision for her daughter which itself would clearly show that Exs.A2, A3 and A9, Settlement Deeds dated 11.04.2000 and 29.12.2000 were obtained by playing fraud and undue influence over the 1st defendant, who was all along addicted to alcohol and, therefore, the same cannot be given much credence. The entire pleadings of the plaint and the evidence of P.W.1 would clearly show that the 1st plaintiff and her parents were only interested in grabbing the property of the 1st defendant.
14. The learned Senior counsel for the appellants/defendants 1 and 5 further submitted that immediately after settlement, the 1st plaintiff left the matrimonial home and also filed divorce petition in the year 2002. The above conduct of the 1st plaintiff would clearly probablise the case of the appellants/defendants 1 and 5 that the Settlement Deeds were not executed by the 1st defendant voluntarily in favor of the plaintiffs. It is submitted by the learned Senior Counsel that the alleged letter, Ex.A1, said to have been given by the 1st defendant itself shows that the 1st defendant was not in senses to take rational decision all along. Therefore, it is the contention of the learned Senior Counsel that the 1st plaintiff, i.e., wife of the 1st defendant, who is in fiduciary relationship with the 1st defendant and who was all along addicted to alcohol, has cleverly obtained documents not only in her favour but also in favour of her minor daughter, i.e. 2nd plaintiff. It is submitted that the entire burden lies on the plaintiffs to show that the alleged transaction was bona fide and the same was done in good faith.
15. It is the submission of the learned Senior counsel for the appellants/ defendants 1 and 5 that even though the parents of the 1st defendant is alive, no provisions, whatsoever, have been made in their favour in the alleged settlement. It is submitted that since the suit properties were constructed with the help of the father of the 1st defendant, without consulting the parents, settling the entire properties in favour of the wife and minor children is unconscionable. These facts coupled with the evidence of P.W.1 would clearly show that the alleged Settlement Deeds were the result of undue influence. The plaintiffs have not discharged her burden in proving good faith of the alleged transaction said to have been made by the 1st defendant.
16. It is main contention of the learned Senior Counsel for the appellants/defendants 1 and 5 that Deeds of Settlement were revoked by the 1st defendant in the year 2003 itself. The application filed by the plaintiffs for amendment seeking declaratory relief declaring such cancellation as null and void was dismissed by the Court and the same also reached finality. Therefore, without seeking declaration of the aforesaid cancellation of documents, the present suit filed for declaration of right in the suit properties is not maintainable. Hence, the learned Senior Counsel for the applicants/defendants 1 and 5 prayed for allowing the appeal.
17. In support of the above arguments, the learned Senior Counsel has placed reliance on the judgment of this Court reported in 2008-3-LW. 660 (SUGUNA AND ANOTHER versus VINOD G. NEHEMIAH AND OTHERS) as well as the judgment of the Hon`ble Supreme Court reported in (2004) 9 SCC 468 (KRISHNA MOHAN KUL Versus PRATIMA MAITY AND OTEHRS).
18. Countering the arguments advanced by the learned Senior Counsel for the appellants/ defendants 1 and 5, the learned Senior Counsel appearing for the respondents/plaintiffs submitted that the alleged undue influence canvassed by the learned Senior counsel appearing for the appellants/defendants 1 and 5 has not been established. In fact, in the written statement filed by the 1st defendant, except stating that the documents were not executed voluntarily and that the same have been obtained while he was in drunkenness, no material particulars, whatsoever, produced as contemplated under law to establish the plea of undue influence as alleged by the defendants 1 and 5.
19. The learned Senior Counsel appearing for the respondents/plaintiffs further submitted that since the husband was consuming alcohol, which led to some misunderstanding between the husband and wife and that itself cannot be a ground to hold that the 1st plaintiff was an active confidence and she was in a position to dominate the will of the husband. In fact, even after the settlement, the husband and wife, i.e. the 1st defendant and the 1st plaintiff, were living happily in a rented house and jointly purchased a new flat at Adambakkam, and subsequently, they also moved to the said flat purchased by them. It is submitted that one of the Settlement Deed was executed in the month of December 2000, when the husband and wife were living together. All these facts would clearly show that there was no undue influence, whatsoever, exercised over the husband of the 1st plaintiff.
20. It is the contention of the learned Senior Counsel for the respondents/plaintiffs that after three years from the date of execution of Settlement Deeds, in view of some matrimonial dispute between the 1st plaintiff and the 1st defendant, the 1st plaintiff, left the matrimonial home and also filed an application for divorce. Only after filing the said application for divorce, the Settlement Deeds executed by the 1st defendant were unilaterally cancelled without assigning any reason. The tenants also renewed the tenancy agreement in favour of the 1st plaintiff and rents were also paid to her. Hence, it is the contention of the learned Senior counsel that unilateral cancellation of the Settlement Deeds are not binding on the plaintiffs and the same are not valid in the eye of law and that the plaintiffs are, certainly, entitled for declaration of title. Therefore, it is submitted that the judgment and decree of the trial Court is well balanced and the same does not require any interference.
21. In support of his contention, the learned Senior Counsel for the respondents/plaintiffs has also placed reliance on the judgments reported in 2008 (1) MLJ 193 SC (ASOKAN V. LAKSHMIKUTTY AND OTHERS); 2014 (3) MWN (Civil) 42 (G.ARUMUGHAM V. M.RAJASEKARAN AND OTHERS); 2009 (5) CTC 558 (S.GANESAN V. BHARATHIRAJAN); 2016 (4) CTC 675 (DURAIRASAN V. D.KUPPUSWAMY); 2016 (10) SCC 767 (SATYA PAL ANAND V. STATE OF MADHYA PRADESH AND OTEHRS) and 2011 (2) CTC 1 ( LATIF ESTATE LINE INDIA LIMITED V. HADEEJA AMMAL).
22. In the light of the above submissions, now the points that arise for consideration in this appeal are :
(1) Whether the Settlement Deeds dated 11.4.2000 and 29.12.2000 were the result of undue influence and fraud?
(2) Whether the cancellation Deeds dated 24.11.2003 are not binding on the plaintiffs?
(3) Whether the plaintiffs are entitled for declaration that they are the absolute owners of the suit properties and also for consequential injunction?
Points 1 to 3:
23. It is not in dispute that the marriage of the 1st defendant and the 1st plaintiff was solemnized in the year 1994 and out of wedlock, the 2nd plaintiff was born to them in the year 1995. It is the contention of the 1st plaintiff that her husband, i.e. the 1st defendant, was consuming alcohol from the very inception and also started borrowing amounts from third parties and as a result, there was some misunderstanding between them and her parents also intervened and advised the 1st defendant to lead a life properly. When the matter stood thus, a quarrel started between the 1st defendant and his parents and in view of the same, the plaintiffs and the 1st defendant were set up a separate residence and were living together till 2003 and in the year 2000, by way of three Settlement Deeds, namely, Exs.A2, A3 and A9, the suit properties have been settled in favour of the plaintiffs. Whereas it is the contention of the 1st defendant that the Settlement Deeds were obtained while he was in drunkenness and the same have not been executed voluntarily and that the same were the result of undue influence and fraud.
24. The 1st defendant was examined as D.W.2. During the pendency of the suit, i.e. in the year 2012, the 1st defendant died. Therefore, the 5th defendant, who is the mother of the 1st defendant, has been impleaded as a party. She has also taken a similar defence that Settlement Deeds are not valid as the same have been obtained as a result of undue influence, fraud etc. When Exs. A2 and A3 dated 11.4.2000 were carefully read, it is seen that the 1st defendant had executed two separate settlement Deeds in respect of 2/3rd share in favour of the plaintiffs and under Ex.A9 dated 29.12.2000 he had executed another settlement in respect of remaining 1/3rd share in favour of the 1st plaintiff/wife. The execution of these documents are not disputed. Two of the Settlement Deeds, Exs.A2 and A3 were drafted by one Ramalingam, document writer.
25. It is the only contention of the defendants 1 and 5 that the Settlement Deeds were the result of fraud and undue influence. In the entire written statement filed by the 1st defendant, who is the executor of the alleged documents, it is stated that the alleged letter and Settlement Deeds were obtained taking advantage of drunkenness of the 1st defendant and the same were not executed voluntarily and out of free will. Except the above pleadings with regard to the alleged undue influence, no other material particulars, whatsoever, pleaded as required under Order 6 Rule 4 of CPC. Order 6 Rule 4 of CPC mandates the particulars to be pleaded, more particularly, when the party relying on the allegation of misrepresentation, fraud, breach of trust, wilful default or undue influence etc. A vague or general plea can never serve the purpose. The party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. But, as stated already in the written statement, the 1st defendant, except stating that Settlement Deeds were obtained while he was in drunkenness, no other material particulars, whatsoever, pleaded as to how he was under the control of his wife and how she was in a position to dominate his will to execute the documents.
26. It is to be noted that the Settlement Deeds Exs. A2 and A3 were executed in the month of April 2000 in respect of 1/3 share each to the plaintiffs. Thereafter, in respect of another 1/3 share, Ex.A9 Settlement Deed was executed in December 2000. As already discussed, the husband and wife lived together and in fact, they had purchased separate flat Adamabakkam by availing loan jointly from LIC. This aspect has been clearly admitted by D.W.1, executor of the documents. In his cross examination, he has admitted as follows:
.. .. ..14.07.2000 njjp ehDk; Kjy; thjpa[k; nrh;;e;J Mjk;ghf;fj;jpy; cs;s mLf;Fkho Foa[Ug;g[ U:gha; 7.00.000- fpuak; th';fpndhk;/ 23/06/2000k; njjp Kor;Nhp;y cs;s vdJ fhyp kidia K:d;W fpuak; gj;jpu';fs; K:yk; fpuak; bra;njhk;/ bkhj;j fpuaj; bjhif U:gha; 3 1-2 yl;rk;/ me;j 3 1-2 yl;rj;ijj;jhd; Mjk;gh;ffj;jpy; cs;s mLf;Fkho tP;;l;ow;F fpuaj;bjhifahf bfhLj;njhk; vd;W brhd;dhy; rhpjhd;/ ghf;fp fpuaj;bjhifahd U:gha; 3 1-2 yl;rj;jpw;F vy;/I/rp/apy; fldhf th';fpndhk; khjhkhjk; U:gha; 6000k; vy;/I/rp/ap;y; fldhf th';fpndhk;. khjhkhjk; U:gha; 6000k; vy;/I/rp/f;F brYj;j ntz;Lk;/ ,e;j jtizj;bjhifahdJ vdJ kw;Wk; Kjy; thjp Tl;L fzf;fpy; fzf;F K:ykhf brYj;jg;gl;lJ/ fhnrhiy K:yk; vy;/I/rpf;F gzk; brYj;jtpy;iy/ t';fp fzf;fpy; ,Ue;J neuoahf jtizj;bjhif vy;/I/rp/f;F fpuol;L bra;ag;gl;lJ Kor;N:hpy; brhj;J tpw;wJ/ Mjk;ghf;fj;jpy; mLf;Fkho FoapUg;g[ th';fpaJ. vy;/I/rp/ap;y; fld; th';fp mij jpUk;gp brYj;jpaJ vdf;F bjhpa[k;/ // // // //
27. From the above admission of D.W.1, it is very clear that Ex.A9 was executed only in the month of December 2000, when the husband and wife were living together in a separate house. Therefore, the contention of the defendants that entire documents were the result of undue influence cannot be countenanced. The admission, extracted above, clearly shows that the 1st defendant was very conscious in taking decision to purchase the property along with his wife jointly by availing loan and paying instalments. All these facts clearly lead to an inference that, in fact, the 1st defendant was very conscious about his action at the relevant point of time. Further, his admission also clearly shows that he had also signed a letter of attornment to the tenants and one of the tenant, viz., Kumaran Departmental stores, after the above said Settlement, entered new tenancy agreement with the 1st plaintiff and another tenant, namely, Thilakavathy also renewed lease with the 1st plaintiff on 01.5.2002. These facts would clearly show that after the settlement, fresh tenancy was created in the year 2002, and tenants also started paying rents to the 1st plaintiff.
28. Ex.A32, lease agreement is also filed by the plaintiffs. Exs.A.33 to A35, bank statements clearly show that the tenants, in fact, paid the amount to the 1st plaintiff. All these facts are known to the defendants 1 and 5 at the earliest point of time. Therefore, merely because the 1st plaintiff, in her plaint, had pleaded about the conduct of her husband, particularly, with regard to his intoxication, that itself cannot be a ground to hold that the 1st plaintiff was in active confidence or in a position to dominate the will of her husband, i.e. the 1st defendant. In fact, the nature of pleadings found in the plaint would clearly show that the 1st plaintiff was worried about the attitude of her husband in consuming alcohol. The above attitude is quite normal human conduct of every wife. Therefore, merely because, the character of her husband was pleaded in the plaint, that cannot be taken advantage by the defendants that the documents were obtained only by exercising undue influence over him.
29. As already stated, except general allegation that the Settlement Deeds were obtained while the 1st defendant was in drunkenness, no other material particulars were pleaded in the written statement. Much emphasis was made in respect of Ex.A1, letter said to have been executed by the 1st defendant admitting his affair with another girl and also expressing his remorse and repentance to the plaintiff. The contents of the letter Ex.A1, in fact, shows that by suppressing certain facts by the family members, the marriage between the 1st plaintiff and the 1st defendant was solemnised. Therefore, the same itself cannot be a ground to show that the 1st defendant was influenced by the 1st plaintiff. The manner in which this letter was filed before the Court itself shows that the 1st plaintiff has come out with true facts that has transpired in the family. Therefore, from Ex.A1, it cannot be construed that the 1st defendant was always under the control of the 1st plaintiff and her parents. In fact, the contents of the entire letter shows something fishy about the properties. In view of the conduct of her parents, the 1st defendant wanted to make some provision to his wife and children and he has also made some statement with regard to the conduct of his parents.
30. It is pertinent to point out that the 1st plaintiff also pleaded in her plaint under what circumstances Ex.A1, letter, came to be written by the 1st defendant. In the plaint, it is pleaded by the 1st plaintiff that there was quarrel between the 1st defendant and his parents and at the relevant point of time, the 1st defendant wrote the aforesaid letter. Therefore, that cannot be a ground to hold that the 1st plaintiff was all along exercising undue influence over the 1st defendant.
31. As discussed above, in the year 2000, when the Settlement Deeds came into existence, the husband and wife were, in fact, living together in a separate residence and husband had taken conscious decision even in purchasing the property and availing loan jointly. All these facts would clearly show that the contention of the defendants that the documents were vitiated by fraud and undue influence cannot be sustained. When the evidence of P.W.5, the mother of the 1st defendant, is carefully read, her evidence would strengthen the fact that Exs.A2, A3 and A9 were executed voluntarily and that there was no undue influence whatsoever, as alleged by the defendants.
32. The 5th defendant, who is the mother of the 1st defendant, was examined as D.W.3. Though in the cross examination, she has categorically admitted that only her husband know about the facts of the case, she has also admitted that the Chief examination was prepared only by her advocate and she affixed her signature alone. The relevant portion of the evidence of D.W.3 is as follows:
.. .. .. 2000j;jpy; gh!;fud; mtuJ kidtpf;Fk; FHe;ijf;Fk; brl;oy;kz;l; gj;jpuk; vGjpitj;jhh;/ 2003y; gh!;fud; me;j brl;oy;kz;l; gj;jpu';fis uj;J bra;Jtpl;lhh;/ 2004y; vd; fzth; bgaUf;F ,e;j jhth brhj;ij brl;oy;kz;l; K:ykhf vGjpitj;jhh;/ ,;ej tHf;F epYitapy; ,Uf;Fk;nghJjhd; gh!;fud; brl;oy;kz;il vGjpdhh; vd;W brhd;dhy; mJ gw;wp vdf;Fj; bjhpahJ/ gh!;fud; mtuJ kidtpf;Fk;. FHe;ijf;Fk; brl;oy;kz;l; gj;jpu;'fis vGjpa nghJ mth; v';fSld; trpf;ftpy;iy/ me;j gj;jpu';fs; vGjg;gl;l tptu';fs; vdf;Fj; bjhpahJ/ brl;oy;kz;l; gj;jpu';fis vGjtjw;F Kd; mth; ed;whf ,Ue;jhh;/ gh!;fh; jhf;fy; bra;Js;s vjph;t[iuapy; brhy;ypa[s;s r';fjpfs; gw;wp vdf;Fj; bjhpahJ/ vd; fztUf;Fj;jhd; bjhpa[k;/ // // // The evidence of the mother of the 1st defendant, extracted above, would clearly show that they were aware of the Settlement Deeds executed in favour of the plaintiffs in the year 2000. It is the specific evidence of the 5th defendant that before executing the Settlements, his son Baskaran i.e., the 1st defendant, was normal and Settlement was executed while the plaintiffs and the 1st defendant were living together. The above admission clearly fortified the fact that there was no undue influence, whatsoever, exercised over the 1st defendant.
33. It is to be noted that the matrimonial dispute between the 1st plaintiff and the 1st defendant started only in the middle of the year 2003, only when the 1st plaintiff left the matrimonial home and filed application for divorce. The revocation of Settlement Deeds, Exs.B4 to B6 were only an after thought. The reason given for cancellation in the Deeds, Exs.B4 to B6, is as follows:
Now I hereby cancel the above said Settlement Deed and the said Settlement deed is not in force and said Settlement Deed shall henceforth become NULL AND VOID Admittedly, the aforesaid Revocation Deeds were executed only on 24.11.2013, i.e., after the initiation of divorce proceedings. If really the documents, namely, Exs.A2, A3 and A9 were obtained, otherwise, as alleged by the 1st defendant, any person of ordinary prudence would assign reason for such cancellation in the Revocation Deeds. But no reason, whatsoever, assigned in the Cancellation Deeds. This fact also cannot be ignored altogether.
34. It is further to be noted that in Ex.A.49, reply notice dated 30.7.2005, issued by the 1st defendant, the allegation as regards the Settlement Deeds and attornment of tenancy has not even been denied specifically. That apart, there was no allegation with regard to the undue influence, whatsoever made in the reply notice. The above facts would clearly show that the alleged undue influence pleaded by the 1st defendant and the 5th defendant at a later point of time, is only an after thought. Only when the matrimonial relationship between the 1st plaintiff and the 1st defendant was strained and culminated into divorce proceedings, in the year 2003, for the first time, Cancellation Deeds were executed unilaterally by the 1st defendant. All these facts would clearly show that the alleged undue influence pleaded by the 1st defendant and projected by the 5th defendant is nothing but only an after thought.
35. The documents filed by the 1st plaintiff clearly established the fact that she had, in fact, discharged the mortgage loan availed by the 1st defendant under Ex.A4, Mortgage Deed. The receipt is also filed by the plaintiffs. All the original documents are also exhibited in Exs.A6 to A9. When Ex.A10, letter of attornment signed by the 1st defendant is perused, it is seen that the tenants have paid rent to the 1st plaintiff. Exs.A11 to A27, House Tax receipts, are also filed by the plaintiffs. Ex.A28 clearly shows that only the 1st plaintiff has paid a sum of Rs.2,00,000/- (Rupees two lakhs only) to one of the tenant. Ex.A29, is the fresh lease agreement entered into between the 1st plaintiff and one S.Ramamoorthy. Similarly, Ex.A32, lease agreement dated 01.5.2002 entered into between the 1st plaintiff and Mrs.Thilaga ( G.R.Computer Centre) would clearly show that the 1st plaintiff took over possession and was exercising right of ownership at the relevant point of time. Exs.A32 to A35, Bank statements, also show that the tenants paid the amount to the 1st plaintiff. Ex.A.36 is the ex parte order of divorce obtained by the 1st plaintiff.
36. All these documents in fact, would clearly show that Exs.A2, A3 and A9 were, executed by the 1st defendant in favour of the 1st plaintiff out of Love and affection. Settlement Deeds also clearly show that out of love and affection, the same were executed and, in fact, the nature of loan availed by the 1st defendant is also stated in the very same Settlement Deeds. The receipt is also filed under Ex.A5 to show that the loan amount was cleared by the 1st plaintiff.
37. Therefore, it is clear that only when the defendants were able to prove the fact that plaintiff was holding real or apparent authority over the 1st defendant or whether she stood as a fiduciary relationship with him and his mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress, then there is no difficulty in placing the burden on the 1st plaintiff to establish the fact that the Settlement Deeds were not influenced by undue influence. For placing such burden on the 1st plaintiff, the 1st defendant has to establish two essential aspects, viz., (a) that the plaintiff was actually holding real or apparent control over the 1st defendant or the 1st defendant stood in a fiduciary relation with the plaintiff besides, 1st defendant was not keeping good health and his mental capacity is affected either temporarily or permanently by reasons of age, illness, any other distress. Without establishing the above facts, the burden cannot be shifted on the side of the plaintiffs to prove that the documents were not influenced by undue influence.
38. In this case, specific particulars, as stated above, have not been pleaded by the defendants. On the other hand, the defendants have taken advantage of the pleadings of the plaintiff that the 1st defendant was taking alcohol. It is true that consuming alcohol by a husband at any age, more particularly, at young age, will be the main concern for wife. When the above facts have been pleaded by wife, i.e., the 1st plaintiff, the same cannot be taken advantage by the husband, i.e.,the 1st defendant, to contend that all the acts done by him were the result of undue influence and vitiated by fraud etc. His own evidence, as discussed above, would clearly show that he was very conscious in taking decision and he lived with his wife till 2003. His evidence also clearly shows that that before executing Settlement, he was a normal man. All these facts would clearly indicate that the alleged undue influence cannot be countenanced at all.
39. In a judgment reported in 2008 3- L.W 660 (SUGUNA AND ANOTHER VS. VINOD G. NEHEMIAH AND OTHERS), the Division Bench of this Court has held as follows.
35. Under Section 16(2)(a) of the Indian Contract Act, 1872, a person is deemed to be in a position to dominate the will of another "where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other." As per sub section (3), where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. A fiduciary relationship arises between the parties when one of them stands in a position of a trust to the other and equally when the latter reposes confidence with the other person to an extent that the influence grows out of such a confidence. In order to establish the existence of a fiduciary relationship, it is necessary to show that one party relies on the other to such an extent that there is a complete trust and confidence placed on the other, thus facilitating him to influence the former. In such a situation, if such a person in a fiduciary position wants to have a benefit in a transaction executed in his favour, it is absolutely essential that he must show that the result or the benefit had not flown out of the influence. It may be seen that the mere existence of a fiduciary relationship raises the presumption of undue influence - AIR 1961 Madras 190 (ABDUL MALICK Vs. MD.YOUSUF). Considering the presumption raised, a person standing in a fiduciary relationship to another has a duty to protect the interest given to his care. In the case on hand, when respondents-1 to 4 have questioned the settlement deed alleged to have been executed showing such a relation, the presumption under law is there against such a transaction. As per Section 16(3), onus is cast upon a person holding the position of confidence of trust show that the transaction is a fair one not brought forth by reason of the fiduciary relation and that he had not taken any advantage of his position.
40. Similarly, in (2004) 9 SCC 468 (KRISHNA MOHAN KUL ALIAS NANI CHARAN KUL AND ANOTHER v. PRATIMA MAITY AND OTHERS), the Hon`ble Supreme Court has held as follows:
13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the Court. .. .. ..
17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of a paradahnashin lady inKharbuja Kuer v. Jang Bahadur Rai are logically applicable to the case of old, invalid, infirm (physically and mentally) and illiterate persons. . ..
41. Likewise, in AIR 1967 SC 878 (SUBHAS CHANDRA DAS MUSHBI V. GANGA PRASAD DAS MUSHIB AND OTHERS), the Hon`ble Supreme Court has held as follows:
.. .. ..8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kannappa Chettiar [ 47 IA p 1 at p 3] :
It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point influence' alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue'.
9. The law in India as to undue influence as embodied in Section 16 of the Contract Act is based on the English common law as noted in the judgment of this Court in Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. [ (1964) 1 SCR 270 at 300] According toHalsbury's Laws of England, 3rd Edn., Vol. 17, p. 673 Article 1298, where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved. Article 1299 p. 674 of the same volume shows that there is no presumption of imposition or fraud merely because a donor is old or of weak character. The nature of relations from the existence of which undue influence is presumed is considered at pp. 678-81 of the same volume. The learned author notes at p. 679 that there is no presumption of undue influence in the case of a gift to a son, grandson, or son-in-law, although made during the donor's illness and a few days before his death. Generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over
10. Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal [ (1964) 1 SCR 270 at 300] above referred to.
From the above judgments, it is clear that the question whether the transaction was brought out by the exercise of undue influence must be decided upon the facts and circumstances of each case. In the given case, as discussed above, the 1st defendant was mentally stable and had taken conscious decision at the time when the Settlement Deeds were executed. Therefore, at no stretch of imagination, it can be stated that merely because husband and wife were living together, any document executed by the husband is only the result of undue influence.
42. From the records, it is clear that only after the 1st plaintiff left the matrimonial home and filed application for divorce, the Cancellation Deeds came to be executed by the 1st defendant. At the risk of repetition, it is pointed out that there was no reason, whatsoever, given in the Cancellation Deeds for cancelling the earlier documents executed. The Cancellation Deeds and Settlement Deeds were drafted by the same document writer and that itself clearly show that the same has been done only to non-suit the plaintiff with regard to the immovable properties already settled in her favour.
43. It is worthy to note that unilateral cancellation of document is not valid in the eye of law. Once the gift settlement is executed, it is needless to state that transfer of document is complete. Once the title is passed, by executing the unilateral Cancellation Deed, title cannot be retrieved back.
44. Therefore, this Court is of the view that unilateral cancellation is not at all valid in law and the same is not binding on the plaintiffs. Therefore, there is no need, whatsoever, for seeking separate declaration declaring the Cancellation Deeds are null and void. Therefore, merely because an application filed for seeking declaration to declare the Cancellation Deeds are null and void was dismissed at the earliest stage is not a ground to deny the rights of the plaintiff. The very Cancellation Deeds itself are not binding on the plaintiffs. Therefore, declaration in that aspect is not at all necessary.
45. Once the settlement executed is valid and not denied by the executor himself, the same cannot be revoked except the grounds set out under 126 of the transfer of property Act. Admittedly, in this case the Settlement Deeds of the year 2000, which are marked as Ex.A2,A3 and A9, does not show any power of Revocation. The settlor has not reserved for any power of Revocation. In the absence of any power of Revocation of Settlement Deeds, the settlement cannot be cancelled unilaterally.
46. Unless and until the power of Revocation is reserved in the documents, such unilateral revocation cannot be sustained in law. It is well settled that settlement can be revoked only if it falls within the exception under Section 126 of the Transfer of Property Act. Without bringing the case under exception provided in the Transfer of Property Act, the unilateral cancellation of the document is not permissible in law. Once the Settlement is executed, title passes to the settlee and transfer is completed, the same cannot be cancelled unilaterally by the settlor.
47. In this regard, it is useful to refer the the judgment of this Court reported in 2014 (3) CTC 113 ( V.LOGANATHAN V. THE SUB REGISTRAR), wherein this Court has held as follows:
".. .. ..6. In fact the registration of cancellation of the Settlement Deed is against the Public Policy as it was not open to the Sub Registrar to register the cancellation of the Deed, when the Settlement Deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the Settlement Deed, he could have very well approached the Civil Court to set it aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub Registrar. The Cancellation Deed and its registration, therefore, being without jurisdiction, is liable to be set aside. .. .. .."
48. Similarly, in the judgment of the Full Bench of this Court reported in 2011 (2) CTC 1, (LATIF ESTTE LINE INDIA LTD., V. HADEEJA AMMAL), the Full Bench of this Court has held that the unilateral execution of the Cancellation Deed cannot annul a registered document duly executed by him as such an act of the vendor is opposed to public policy. It is further held that a Deed of Cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a Deed of Cancellation cannot be accepted for registration.
49. In SATYA PAL ANAND V. STATE OF MADHYA PRADESH AND OTHERS ( 2016) 10 SCC 767, the Hon`ble Supreme Court has held that once the document was properly presented and registered, the cancellation of the registration of the document by competent authority cannot be done. Only Civil Court alone has power to cancel the document.
50. In the case of S.GANESAN V. BHARATHIRAJAN (2009 5 CTC 558) and DURAIRASAN V. D.KUPPUSWAMY (2016 (4) CTC 675), this Court has held that unilateral cancellation of Settlement Deed is not valid.
51. In the judgment reported in (2007) 13 SCC 210, (ASOKAN V. LAKSHMIKUTTY AND OTEHRS), the Hon`ble Apex Court has held that once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.
52. Similarly, in the latest judgment reported in 2014 9 SCC 445 (RENIKUNTLA RAJAMMA (D) BY LRS V. K.SARWANAMMA) the Hon`ble Apex Court has held that transfer of possession of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the Transfer of Property Act.
53. In view of the foregoing discussions and the ratio laid down in the above judgments, this Court is of the view that the unilateral cancellation of Deeds is not valid. Therefore, in view of the Settlement Deeds executed in Ex.A2, A3 and A9 dated 11.4.2000 and 29.12.2000, the plaintiffs became absolute owners and hence, the Cancellation Deeds of the year 2003 are not binding on the plaintiffs. Therefore, the plaintiffs are, certainly, entitled for declaration in respect of the suit properties. Accordingly these points are answered.
54. In the result, the appeal is dismissed by confirming the judgment and decree dated 10.10.2012 passed by the Additional District Judge, Kancheepuram at Chengalpattu in O.S.No.6 of 2004. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
ga 18..04..2017
To
The Additional District Jude,
Kancheepuram at Chengalpattu.
N.SATHISH KUMAR, J.
ga
Pre-delivery judgment in
A.S.No.9 of 2013
18..4..2017
http://www.judis.nic.in