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2000 DIGILAW 1096 (MAD)

Muthy Velu v. G. Kannammal

2000-11-08

M.KARPAGAVINAYAGAM

body2000
Judgment :- M. KARPAGAVINAYAGAM, J. (1) HAVING aggrieved over the Judgment and Decree passed in favour of the plaintiffs/respondents, holding that the plaintiffs would be entitled to 5/8th share, the defendants/appellants have filed the present appeal. (2) ACCORDING to the plaintiffs, A-schedule property was purchased by Chandrasekaran in the year 1935 and since the date of purchase, he was in absolute possession and enjoyment. In the year 1946, the said chandrasekaran executed an irrevocable settlement deed in favour of his wife Pattammal, the mother of the defendants in respect of A-schedule property. The said Pattammal died in the year 1952 leaving the appellants and her husband as legal heirs. After the death of pattammal, the said Chandrasekaran got married to the first plaintiff, Kannammal. Through Kannammal, the other plaintiffs 2 to 5 were born. In the year 1975, the settlement deed which was executed in the year 1946 was revoked through a revocation deed executed by the said Chandrasekaran. In 1976, the said chandrasekaran died. Therefore, the plaintiffs filed the suit claiming right over 5/8th share in the suit property. (3) ACCORDING to the defendants, the settlement deed executed by Chandrasekaran in favour of Pattammal cannot be revoked, as the said deed is an irrevocable document. After the death of Pattammal, Chandrasekaran and three defendants, namely, the children of pattammal, are each entitled to 1/4th share. Therefore, the plaintiffs, if at all, are entitled to any share, each plaintiff would be entitled to have l/28th share in the properties left by the deceased Chandrasekaran. As per law, the plaintiffs 2 to 5 are entitled to have 4/ 28th share in A-schedule property. Therefore, the plaintiffs suit demanding 5/8th share in the A-schedule property is not maintainable. (4) ON the basis of the above pleadings, necessary issues were framed. During the course of trial, P. W. 2 was examined on the side of the plaintiffs and Exs. A. 1 to A. 11 were marked. On the defendants side. D. W. 1 was examined and Exs. B. 1 to B. 4 were marked. (5) THE trial Court, after considering the evidence, oral and documentary, decreed the suit as prayed for holding that the plaintiffs would be entitled to the 5/8th share. Having aggrieved over the Judgment and Decree, the present appeal has been filed. (6) MR. D. W. 1 was examined and Exs. B. 1 to B. 4 were marked. (5) THE trial Court, after considering the evidence, oral and documentary, decreed the suit as prayed for holding that the plaintiffs would be entitled to the 5/8th share. Having aggrieved over the Judgment and Decree, the present appeal has been filed. (6) MR. U. Venkatesan, learned counsel for the appellants would vehemently contend that under Section 123 of Transfer of Property act, the settlement deed cannot be revoked since the said Section provides that there must be an agreement between the parties for the suspension or revocation of the said deed on the happening of any specified event. In the present case, the settlor has clearly stated in ex. B. 2 that he would not revoke or cancel the settlement deed. Under those circumstances, in the absence of any provision mentioned for revocation in the settlement deed, the revocation deed, Ex. A. 11 would not help the plaintiffs, as it would not nullify the effect of Ex. B. 2, settlement deed, which is irrevocable. (7) ON the other hand, Mr. N. Pappiah, learned counsel for the respondents/plaintiffs would contend, in justification of the reasoning given by the trial Court, that under Section 123 of the Transfer of Property Act, the gift or settlement would be completed only when both the requirements, viz. offer and acceptance are fulfilled and in the instant case, though ex. B. 2 would show that the settlor has settled the property in favour of Pattammal, there is no material to show that the said property had been handed over to Pattammal and consequently, the said Pattammal had enjoyed the said property under her exclusive possession and therefore, in the absence of the material to show that Ex. B. 2 was acted upon, it shall be held that the plaintiffs being the legally wedded wife and children, would be entitled to 5/8th share in the suit property. (8) I have carefully considered the submissions made by the counsel on either side and gone through the judgment, of the Court below. B. 2 was acted upon, it shall be held that the plaintiffs being the legally wedded wife and children, would be entitled to 5/8th share in the suit property. (8) I have carefully considered the submissions made by the counsel on either side and gone through the judgment, of the Court below. (9) THOUGH it was originally contended that the first plaintiff was not a legally wedded wife and she was only a concubine, this argument was not seriously pursued in the light of the fact that there are sufficient materials to show that Kannammal, the first plaintiff got married to Chandrasekaran only after the-death of Pattammal in the year 1952. Admittedly, all the other plaintiffs 2 to 5 were born only after the said wedlock. But the real question that may arise for consideration in this case is whether the settlement deed which had been executed by the settlor in the year 1946 in favour of Pattammal can be said to be a valid one in the light of Ex. A. 11 revocation deed of settlement. (10) ACCORDING to the learned counsel for the appellants/defendants, Ex. A. 11 which had been executed admittedly after the death of Pattammal in the year 1975, cannot be said to be a valid document, in view of the fact that under Ex. B. 2 settlement deed. Pattammal became the absolute owner of the property and therefore, after her death, the suit property will devolve upon her children, namely, defendants and her husband Chandrasekaran. (11) THOUGH I find some force in the contention of the learned counsel for the appellant, I am of the view that the said contention would not save the appellants for the reason that there is no formiddable or solid material to show that Ex. B. 2 had been acted upon. (12) IT is seen from the evidence that even after the execution of Ex. B. 2, both Chandrasekaran and Pattammal were living together under the same roof and their children, the defendants herein, were born only thereafter therefore, there is no necessity for execution of Ex. B. 2 being the settlement deed settling the property in favour of the said Pattammal towards the maintenance. Moreover, the recital of Ex. B. 2 would not show that the A-schedule property mentioned in Ex. B. 2 was actually handed over to the said Pattammal. B. 2 being the settlement deed settling the property in favour of the said Pattammal towards the maintenance. Moreover, the recital of Ex. B. 2 would not show that the A-schedule property mentioned in Ex. B. 2 was actually handed over to the said Pattammal. (13) IN this context, it would be worthwhile to refer to some of the observations of the Supreme Court. (14) IN Baby Ammal v. Rajan Asari, the observation is as follows : "section 122 of the Transfer of Property Act defines gift executed in the manner indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee under Section 123. There must be proof of delivery and acceptance of possession of the gifted property. (15) IN yet another decision rendered by the Supreme Court in Naramadaben maganlal Thakker v. Prajiwandas Maganlal thakker and Others, the observation is as under:-"it would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is whether the gift in question had become complete, under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. (16) IN the light of the above observations, if we analyse the materials available on record, it can be safely held, as pointed out by the trial Court, that there is no material to indicate that the settlement deed Ex. B. 2 was acted upon and in pursuance of settlement deed, the said property was taken possession by the Pattammal and the same was enjoyed by her. (17) IT is true that some documents, namely Exs. B. 3 and B. 4, the Corporation tax receipts were "issued in the name of the defendants Balan and Murthy. In my view, this documents would not suffice to hold that the possession of the property was handed over by Chandrasekaran to Pattammal on the date of the settlement deed. (18) IN view of the above discussions, dehors the effect of Ex. In my view, this documents would not suffice to hold that the possession of the property was handed over by Chandrasekaran to Pattammal on the date of the settlement deed. (18) IN view of the above discussions, dehors the effect of Ex. A. 11, it can be safely held that the settlement deed Ex. B. 2 has not been given effect to and the same has not been acted upon. In these circumstances, I do not find merit in the appeal and the same is dismissed. No costs. Appeal dismissed.