Muniammal and others v. Venkitammal and others — 1991 DIGILAW 931 (MAD)

Judgment :- Mishra, J. Three questions, (1) Whether Ex.A-1 had the character of a testament alone a deed of settlement of rights and interests in the property of the executrix for life her death upon the plaintiffs and the defendants 3 to 5 and the heirs and representative of the deceased daughter of the executrix (defendants 6 to 9)" in O.S.No.156 of 1978 of the court of Subordinate Judge, Coimbatore, (2) whether the deed of cancellation (Ex.A-2) is valid and legal in the sense that it cancelled the rights and interests plaintiffs and the defendants 3 to 9 in the suit and (3) whether the suit filed beyond period of three years for a declaration that Ex.A-2 is null and void is maintainable, our consideration in this Letters Patent Appeal. 2. Before we enter into the examination on the above questions, we may state briefly facts. It is the admitted case of the parties that the site or the land in dispute was name of the first defendant acquired under two documents, one dated 19.8.1931 and the other dated 3.6.1932 (Ex.B-2). According to the plaintiffs, the land was acquired the first defendant out of her own funds and the buildings thereon were also put up On 30.11.1970 as per Ex.A-1, a document purported to be a settlement deed was by her in favour of the plaintiffs and the defendants 3 to 5 in respect of the suit property. 17.3.1971, she (first defendant) executed a deed as per Ex.A-2 cancelling Ex.A 7.4.1971, the first defendant executed a fresh settlement deed in favour of the second defendant husband) in respect of the plaintiffs and thus they filed the instant suit for a declaration the alleged cancellation deed dated 17.3.1971 is null and void. Although the suit as framed sought declaration only, the plaintiffs preferred an amendment to the plaint stage of the appeal in the court below seeking for the declaration as above that they entitled to vested remainder in the plaint schedule property along with the defendants 5. as per the settlement deed (Ex.A-1). 3. Although the suit as framed sought declaration only, the plaintiffs preferred an amendment to the plaint stage of the appeal in the court below seeking for the declaration as above that they entitled to vested remainder in the plaint schedule property along with the defendants 5. as per the settlement deed (Ex.A-1). 3. A common plea has been raised on behalf of the defendants, which has been summarized in the impugned judgment as follows: "The suit site was purchased by the second defendant with his funds benami in the the 1st defendant; the construction over the suit site were put up by the second defendant; the first defendant had no right, title and interest to execute the Settlement Deed Ex.A-1 was vitiated by fraud and undue influence and is liable to be set aside; Ex.A true was in the nature of a will and hence it stood revoked by the subsequent document; suit is barred by limitation, and in any event the second defendant has perfected title to suit property by adverse possession." 4. The trial court answered the main disputes between the parties as follows: "The suit site was purchased by the second defendant with his funds benami in the name the first defendant. The construction in the suit site were put up by the second defendant. The first defendant had no title to convey or right to execute the settlement deed 30.11.1970. The settlement deed dated 30.11.1970 was vitiated by fraud and undue influence and is liable to be set aside." On the question that Ex. A-2 was brought about by threats and fraud and undue influence and hence null and void and Ex.A-1 was in the nature of a will and hence the subsequent document executed by the first defendant cannot be questioned by the plaintiffs, the Court held that the plaintiffs failed to establish that Ex.A-2 was brought about by threats force, fraud and undue influence and that Ex.A-1 was in the nature of a will and hence subsequent document executed by the first defendant cannot be questioned by the plaintiffs. The trial court also held that the second defendant had perfected title to the suit property adverse possession long prior to the year 1970. It also said that the suit filed on behalf the plaintiffs was barred by limitation. 5. The court below formulated the following four questions and answered them as follows: "1. The trial court also held that the second defendant had perfected title to the suit property adverse possession long prior to the year 1970. It also said that the suit filed on behalf the plaintiffs was barred by limitation. 5. The court below formulated the following four questions and answered them as follows: "1. Whether the suit site was acquired by the second defendant benami in the name of first defendant? 2. Whether the constructions over the suit site were put up by the second defendant? 3. Whether Ex.A-1 had the character of a testament alone, and hence it has got to ignored by virtue of the subsequent document executed by the first defendant? 4. Whether the suit as laid by the plaintiffs is barred by limitation?" While considering the first two questions, the learned Judge has said, "It is true that the burden of proving that a particular transaction is benami is on the person, who sets forth that plea. But where the controversy has been put in issue and the parties have placed their evidence in substantiation of their respective cases, then it will be the of the court to deal with the question on the basis of reasonable probabilities and legal factual inferences to be drawn from the materials exposed. The initial burden is certainly the party, who sets forth the plea of benami. The significance of the burden of proof not be carried too far after the parties have placed their evidence on the issue. It is only that context it has to be stated that the burden of proof is not a static and a proposition. The entire evidence has got to be scanned on the question in issue and import consideration of will be certainly out of place and the duty of the court is to weigh evidence and to decide the issue on a careful assessment of the totality of the evidence the basis of reasonable probabilities." On the third question above, the learned Judge has said, "...the express dispositive words used in Ex.A-1 are clinching and they do indicate that vesting should take place only after the life time of the first defendant. In my view, this be taken to be a clear indication that the docu-ment could have only the character of a If this is so, the subsequent documents executed by the first defendant, namely the original of Ex. In my view, this be taken to be a clear indication that the docu-ment could have only the character of a If this is so, the subsequent documents executed by the first defendant, namely the original of Ex. A-2, the deed of cancellation and settlement deed, dated 7.4.1971 executed by the first defendant in favour of the defendant could certainly survive and Ex.A-1 has got to be ignored."... On the fourth question, the learned Judge has said, "...As per Art;58, the plaintiffs with one prayer which they projected in their plaint ought have laid the suit within three years from that date. But that was not done. Hence, I have hold the suit as laid is barred by limitation." Disposing of the C.M.P. for amendment of the plaint, the learned Judge has said, "Obviously, the present move is to get over the hurdle of limitation by changing the As already held the plaintiffs prayer for declaration as they projected in their plaint could be granted on account of the bar of limitation. I do not think at this stage it will be just, and appropriate to allow the amendment." Regarding another petition to receive two documents as additional evidence, namely, (1) settlement deed dated 7.4.1971 executed by the first defendant in favour of the defendant, and (2) a communication from the Coimbatore Co-operative Milk Supply to the first plaintiff dated 5.11.1980, the learned Judge has said, "The averments made in the affidavit filed in support of this petition do not bring the within the ambit of 0.41, Rule 27 of the Code of Civil Procedure. I do not find any warrant admit and receive additional evidence at this stage." 6. Before we take up the questions posted before us, we may here state that the approach of the court below as to the title, whether vested in the first defendant or in the defendant, has substantially affected the consideration of the main question as determination of the character of Ex.A-1. We are compelled to state that the cases in the burden of proof loses significance are those in which specifically certain facts are required to be proved by a particular party but found proved on the evidence on whether adduced by the party upon which the burden lies or the party opposing. We are compelled to state that the cases in the burden of proof loses significance are those in which specifically certain facts are required to be proved by a particular party but found proved on the evidence on whether adduced by the party upon which the burden lies or the party opposing. significant omission in this case of the presumption of title in favour of the first defendant the suit though admittedly the two documents Exs.B-1 and B-2, dated 19.8.1931 and 1932 stand in the name of the first defendant, and acceptance straightaway of a case benami, ignoring altogether the proof of ingredients thereof, has almost determined questions against the plaintiffs. The presumption that certain properties belong to the parcenary or to a joint family arises when the properties stand in the name of a member of the family. This presumption is not available when the property is in the name a female member of the family. A male or female member of the family can claim right interest in such property only by establishing that the ostensible purchaser shown transfer document was a benamidar and or represented the interests of the real whether a husband, a brother, a friend or any other close associate. There has absolutely no attempt by either of the courts below to go into this aspect of the case ignore any claim of the second defendant until the second defendant established by evidence that the first defendant stood as a benamidar for him in the sale transactions August, 1931 or in June, 1932 (Exs.B-1 and B-2). We may here assumes in favour defendants that the first defendant was a benamidar for the second defendant. She the ostensible owner and she firstly executed Ex. A-1 so much so that she executed further document to cancel Ex.A-1 and, it is said, she executed a deed of settlement favour of the second defendant Qn 7.4.1971. These facts are not disputed. The defendant thus sought to obtain title in the property by a document of transfer by defendant. Unless she was the owner, why the second defendant wanted such a document? If the second defendant was the real owner, no such document was required at documents (Exs.B-1 and B-2) are admittedly in favour of the first defendant. The defendant thus sought to obtain title in the property by a document of transfer by defendant. Unless she was the owner, why the second defendant wanted such a document? If the second defendant was the real owner, no such document was required at documents (Exs.B-1 and B-2) are admittedly in favour of the first defendant. Sec.91 Evidence Act states, "When the terms of a contract, or of a grant, or any other disposition of property, have reduced to the form of a document, and in all cases in which any matter is required to be reduced to the form of a document, no evidence shall be given in proof of the such contract, grant or other disposition of property, or of such matter, except the itself, or secondary evidence of its contents in cases in which secondary evidence admissible under the provisions hereinbefore contained." The defendants produced Exs.B-1 and B-2. They thus establish that the title in respect of suit site in dispute vested in the first defendant. It is well-settled that a document of proves title of the vendee in the property. Plaintiffs thus proved the title of the defendant. They also corroborated Exs.B1 and B-2 by Exs.A-1 and A-2 and the admitted transaction dated 7.4.1971 of transfer of interest in the property by the first defendant the second defendant, her husband wherein she claimed that she possessed title and she had the power of disposition. The question thus was of great significance how second defendant proved that the first defendant was a benamidar and that he is the owner of the property and not his wife the first defendant. 7. Coming to Ex.A-1, one has to see what this document does? It is not unknown that absolute owner of a property decides either to leave a testament and convey in future his her right either for consideration or subject to the laws that govern such transactions. In case of a testament or a will, the conveyance is postponed until the death of the testator and devolves only when a probate is granted or letters of administration. In the latter case, however, it is more in the nature of recognition of a right and the right postponed for future date to accrue, but conveyance completed by way of a settlement or a family arrangement. In the latter case, however, it is more in the nature of recognition of a right and the right postponed for future date to accrue, but conveyance completed by way of a settlement or a family arrangement. (There is hardly any difference in the relief of declaration originally asked in the suit and the relief asked for in the amendment petition in the sense that in case validity of Ex.A-1 is upheld it will give nothing to the plaintiffs and other beneficiaries, defendants in the suit) except the vested remainder, the right which they shall get only the life time of the first defendant. The court below has treated the recitals in Ex.A the first defendant recognised who were the beneficiaries of her estate. There can be dispute that her exercise of disposition was not confined to her life alone. She held property absolutely and so she could encumber the property either absolutely or for life postpone the encumbrance to operate on a future date. That has always been the thrust we say so with respect that this view is not inconsistent with the view expressed by a of this Court Venkatachalam Chetty v. Govindasamy Naicker, (1924)46 M.L.J. 288 . why we hold that Ex.A-1 has been misconstrued as a will. It is a deed conveying interests which the first defendant possessed in the property to the plaintiffs and the defendants. The approach taken by the court below thus that Ex.A-1 has got ignored and Ex.A-1 and the settlement deed dated 7.4.1971 executed by the first defendant in favour of the second defendant would survive is thus vitiated to the extent that can survive only if the first defendant still possessed such interests in the property that could cancel the transfer in favour of the plaintiff ’ s and some of the defendants under and the settlement deed dated 7.4.1971 would survive only when Ex.A-2 is held to be. 8. Once we have found that Ex.A-1 is a valid document of transfer of interest by settlement in favour of the plaintiffs and some of the defendants, unless we find that first defendant has still got a right to cancel the transfer deed, it is obvious that cannot be found to be a valid document. A right already created under a deed of cannot be taken away by a deed of cancellation. A disposition once effected cannot withdrawn. A right already created under a deed of cannot be taken away by a deed of cancellation. A disposition once effected cannot withdrawn. Ex.A-2 for that reason alone must be found to be invalid. The invalidity of shall automatically invalidate the deed of settlement dated 7.4.1971 in favour of the defendant. 9. We must give credit to the learned counsel for the respondents that he realised course of the arguments that Art.58 of the Limitation Act shall have no application facts of this case. The error which the trial court committed in applying Art.59 Limitation Act, which is applied to suits relating to decrees and instruments was no rectified by the court below, but the error committed in applying Art.58 is obvious. falls in Part III of the Schedule to the Limitation Act. This part deals with suits relating declaration. Part V deals with suits relating to immovable property. Art.65 thereof reads for possession of immovable property or any interest therein based on title, the period limitation is twelve years. The instant suit based upon Ex.A-1 is undoubtedly a interest based on title in immovable property. The period of limitation in such a situation be 12 years and not three years. 10. The view that we have taken thus leads to the irresistible conclusion that the below erred in holding that the first defendant was a benamidar and the title in vested in the second defendant and not in the first defendant and so Ex.A-1 executed by the first defendant conveyed no property to the plaintiffs. Since the concerned immovable property and interest therein, the limitation period for the suit was years and not 3 years as held by the courts below. 11. Since we have concluded that the first defendant conveyed her title to her heirs Ex.A-1 and thus ceased to have any interest therein and she could not cancel Ex.A Ex.A-2. The plaintiffs, in our opinion, have proved their case of title and accordingly became entitled to a decree. 12. For the reasons aforesaid, the appeal has to be allowed. The judgment and decree courts below are accordingly set aside. The suit is decreed as prayed for. On the facts the circumstances of the case, parties shall bear their own costs. The appellants shall the court-fee throughout. Appeal allowed.