Madras High Court
Kasi Gounder vs Chinnapaiya Gounder on 28 June, 2001
Equivalent citations: AIR2002MAD1, AIR 2002 MADRAS 1
JUDGMENT A. Ramamurthi, J.
1. The defendant in O.S. No. 904 of 1980 on the file of I Additional District Munsif, Tiruvannamalai has preferred the second appeal aggrieved against the Judgment and decree made in A. S. No. 133 of 1997 on the file of Additional District Judge, Tiruvannamalai reversing the judgment and decree of the trial Court dated 14-8-1997.
2. The case in brief is as follows :--The plaintiff filed a suit for declaration and recovery of possession. The suit properties originally belonged to one Manickam Ammal and she is the maternal aunt of the plaintiff and the defendant. She executed a registered settlement deed dated 21-5-1978 in favour of the plaintiff, who accepted the same and took possessions, but the original settlement deed was taken away by the defendant with the active assistance of his father. Now, the defendant openly saying in the village that he has got right over the property. In fact, the plaintiff issued a legal notice to the defendant, but he refused to receive the same. Hence, the suit.
3. The defendant resisted the suit denying the execution of the settement deed dated 21-5-1978 by Manickam Ammal. She was an illiterate and helpless widow and she had no independent advice. Taking advantage of her helpless position, the plaintiff without disclosing the true nature seems to have taken a document purporting to be a settlement deed. On coming to know of the same, she protested to the plaintiff and later revoked the settlement. Manickam Ammal out of love and affection, executed another settlement deed in favour of the defendant on 31-10-1979. Ever since the date he had been enjoying the properties. Furthermore, Manickam Ammal had raised loan from Tiruvannamalai Revenue Divisional Rural House Construction Society. Since the plaintiff is not in possession and enjoyment of the properties, no relief can be granted. Additional written statement was also filed to the effect that the earlier settlement deed dated 21-5- 1978 was only a nominal deed and the plaintiff never took possession of the same.
4. The trial Court framed 6 issues and two additional issues and on behalf of the plaintiff, P.Ws. 1 to 3 were examined and Exs. A-1 to A-4 were marked. On the side of the defendant, D.Ws. 1 and 2 were examined and Exs. B-1 to B-27 were marked. The trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S. No. 133 of 1997 on the file of Additional District Judge, Tiruvannamalai and the learned Judge after hearing the parties, allowed the appeal and set aside the Judgment and decree of the trial Court and the suit was decreed. Aggrieved against this, the defendant has come forward with the present second appeal.
5. The following substantial questions of law were raised in the memorandum of grounds of appeal by the appellant :
(1) When the plaintiff failed in establishing the execution, attestation and also handing over possession under Ex. A-4 settlement deed in accordance with law is the learned District Judge right in reversing the decree of the trial Court ?
(2) Is the learned Additional District Judge right in granting a decree when the evidence disclosed that the settlement under which the plaintiff claim was not acted upon whereas the possession was retained by the settlor by mortgaging it with the society?
(3) Is the learned Additional District Judge right in holding that the settlement deed in favour of the defendant is valid in law?
6. Heard the learned counsel of both sides.
7. The points that arise for consideration are (1) Whether the plaintiffs is entitled to the relief of declaration ?
(2) Whether the plaintiff is entitled to the relief of recovery of possession ?
8. Points : There is no dispute that the property originally belonged to one Manickam Ammal, the maternal aunt of the parties. It is the specific case of the plaintiff that Manickam Ammal executed a registered settlement deed dated 21-5-1978 in his favour and he accepted the same and took possession of the property. The defendant on the other hand contended that the settlement deed dated 21-5-1978 was not accepted and acted upon and she herself had raised loan from the society. She later cancelled the settlement deed and out of love and affection, executed another settlement deed in favour of the defendant on 31 10-1979 and since then, he is enjoying the property.
9. Learned counsel for the appellant/ defendant contended that the lower appellate Court wrongly cast the burden of proof on the defendant. P.W. 2, the attestor to Ex.A-4 clearly stated that he did not see the execution by Manickam Ammal. Ex.A-4 was never handed over to the plaintiff and on the contrary, she was in possession of the property and mortgaged the same under Ex. B-3 . The alleged acceptance of the settlement deed can be presumed only when the original is filed into the Court. The defendant had constructed the house in item 3 of the property and is residing there.
10. The first and foremost contention raised by the learned Counsel for the appellant is that Ex.A-4 has not been properly proved by the plaintiff and there is no material to come to the conclusion that the document was accepted and acted upon. It is necessary to state that after the execution of Ex.A-4, the settlement deed was subsequently revoked by the settlor and after sometime, she executed a settlement deed in favour of the defendant. It therefore follows that Ex.A-4 was executed by the settlor and thereafter only, it was cancelled subsequently. This being so, it is not necessary to go into the question about the truth and validity of Ex.A-4. However, whether the settlement deed already executed can be revoked subsequently is a matter to be considered. It has also come out in evidence that after the execution of Ex.A-4, the settlor had mortgaged the property with a co-operative society and the original document was also available only with the settlor. After the revocation only, the settlor had executed another settlement deed in favour of the defendant under Ex. B-2 dated 31-10-1979. The revocation deed was also marked as Ex. P-1.
11. When the plaintiff has come forward with a suit for declaration and recovery of possession, the burden is only upon the plaintiff to show that he has got valid title to the property and based upon the title, he is entitled to get recovery of possession. From the recital under Ex. A-4, it is clear that an absolute right was made in favour of the plaintiff, but for the reasons stated in Ex.B-1, it was cancelled. It is referred that the plaintiff had failed to maintain her and therefore, she cancelled Ex.A-4. One of the contentions raised was that since the absolute right was conferred under Ex. A- 4, she had no right whatsoever to cancel the document. P.W. 2 has been examined to prove the execution of Ex.A-4 . Reliance is also placed upon the decision reported in R. Kumaraswamy Kounder v. V. Ezhumalai Kounder that if the execution of the document is accepted the settlee need not examine anyone for proving the same.
12. Learned counsel for the appellant contended that items 1 and 2 are only vacant lands whereas in item No. 3, they have put up a superstructure some 15 years back and under the circumstances, the plaintiff is not entitled to recovery of possession. Learned counsel also pointed out the discrepancy in the evidence of plaintiff side witnesses relating to the year of construction. However, the evidence of D.W. 3 also indicates that the construction was put up only recently and there was a thatched shed prior to the filing of the suit. No doubt, in the description of the property relating to item No. 3, there is a reference about the vacant site and not any construction. However, learned counsel for the respondent/ plaintiff contended that only after the filing of the suit, there was interim injunction and thereafter only, the construction was put up by the defendant. In fact, originally the suit was filed for declaration and injunction, but thereafter only, the plaint was amended and claimed the relief of recovery of possession. When once the plaintiff is able to establish his title to the property, naturally the plaintiff is entitled to recovery of possession. The burden shifts upon the defendant to claim that he has prescribed the title of the property by adverse possession, but significantly no such plea has been taken and no evidence has also been let in.
13. Learned counsel for the appellant/ defendant also placed reliance upon the observations made in C.R. P. No. 68 of 1991 on the file of this Court. It appears that the defendant filed an application before the trial Court for an appointment of a Commissioner to inspect the property, namely, item No. 3 and to find out the existence of the superstructure. The Civil revision petition was dismissed by this Court on the ground that neither in the first written statement nor in the additional written statement, there was any plea that construction was put up in item No. 3 by the defendant and, as such, the appointment of Commissioner is not necessary. In fact, the putting up of construction in the property is admitted, but according to the defendant, it is prior to the suit whereas according to the plaintiff, it is after the suit. Considering the fact that there is no averment in the original written statement or in the aditional written statement about the superstructure, this Court came to the conclusion that no appointment of Commissioner is necessary. Simply because there is a construction in property, it cannot be presumed that it was put up even prior to the suit and as such, I am of the view that the observation in C.R. P. No. 68 of 1991 is not of any help.
14. Learned counsel for the respondent/plaintiff relied on the decision reported in N. B. Subrahmanyam v. A. Hymavathi, for the following proposition :
"Deed creating right and interest in praesenti in favour of settlee regarding properties mentioned therein with life estate for her enjoyment during her lifetime --Settlee was to acquire absolute right to enjoyment, alienation etc. On settlor's demise -- Deed is settlement deed and not will -- Settlor cannot subsequently bequeath same property in favour of other".
15. Reliance is also placed upon the decision in Govindammal v. Ammasi Kounder (1983) 3 Mad LJ 267, wherein it was held as follows :
"Section 123 of Transfer of Property Act does not contemplate handing over possession of properties when property gifted is immovable property. The contention that there was no handing over of the suit properties by the settlor P.W. 2 to plaintiffs 1 to 4 and therefore the settlements were not valid has no substance".
16. It has been held in Kuppuswami Mudali v. Mahalingam that settlement cannot be cancelled once deed of settlement is acted upon. It has also been held in Gaurju v. Tara Chand, that " unconditional gift in consideration of donee maintaining donor -- Failure of consideration -- Gift cannot be revoked" .
17. Learned counsel for the respondent also placed reliance on the decision reported in Surendra Kumar v. Nathulal that under proviso to Section 68 of Evidence Act, 1872 a registered deed of gift can be received in evidence without examining one of the attestors if the person who had executed the deed of gift has not specifically denied its execution. There is no dispute about the principles enunciated in all these decisions, but the applicability of the same depends upon the facts and circumstances in each case.
18. It is also evidently clear that the settlement deed was duly executed by Manickam Ammal in favour of the plaintiff under Ex. A-4 and when once it has been executed, she has no power to cancel the same. Even assuming that the plaintiff had failed to maintain her as contended in the revocation deed, I am of the view, it is not a ground to revoke the document. Under the circumstances, the reliance upon the subsequent settlement deed by the defendant in his favour is of no use. Hence, the lower appellate Court rightly came to the conclusion that the plaintiff has got title to the property and under the circumstance, the plaintiff is also entitled to recovery of possession.
19. Learned counsel for the appellant/ defendant contended that superstructure has been put up at a cost of Rs. 40,000/-and no provision has been made in respect of the same in the deed. If the construction was put up even prior to the filing of the suit, then it is a different matter. The evidence of the plaintiffs side witnesses indicates that the construction was put up only after the suit and as such, it is not necessary for the plaintiff to seek the relief of mandatory injunction, namely, removal of superstructure in the property and thereafter get recovery of possession. The lower appellate Court has rightly appreciated the evidence as well as the documents in its proper perspective and there is no illegality or infirmity in the finding calling for any interference and it cannot be said that the finding is perverse. Hence, the points are answered accordingly.
20. For the reasons stated above, the second appeal fails and is dismissed. No costs. Consequently, CMP No. 1855 of 1999 is also dismissed.