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2001 DIGILAW 1247 (MAD)

Chinnammal v. M. Ramasamy Naicker and another

2001-10-17

M.CHOCKALINGAM

body2001
ORDER: This second appeal has arisen from the judgment and decree of the Court of the Subordinate Judge, Kancheepuram, made in A.S. No.21 of 1987 confirming the judgment of the learned Additional District Munsif, Kancheepuram, made in O.S. No.889 of 1980. 2. ORDER: This second appeal has arisen from the judgment and decree of the Court of the Subordinate Judge, Kancheepuram, made in A.S. No.21 of 1987 confirming the judgment of the learned Additional District Munsif, Kancheepuram, made in O.S. No.889 of 1980. 2. One Lokanayaki Ammal, filed a suit seeking for a declaration of her title to the plaint schedule property for consequential permanent injunction alleging that the house property bearing door Nos.86 and 87, Sengalaneerodai Street, Kancheepuram, originally belonged to her husband M.Kuppusamy Naicker; that he executed a registered settlement deed dated 20.3.1951 giving the said property to her absolutely, that ever since she has been in possession and enjoyment of both the houses and paying the property tax; that she and her husband were living in the said house; that in 1977, the plaintiff sold away the premises door No.87 and continued to live in house No.86; that the first defendant was the brother’s son to the plaintiff; that he was living in Peravur village; that subsequently he came to Kanchipuram about 3 years ago and started the business by living in another house in the opposite row; that in November, 1975, the plaintiff became seriously ill and he executed a registered will bequeathing the two items to her husband; that subsequently the plaintiff recovered from her illness; that in January 1977, the plaintiff’s husband became sick; that the plaintiff also was ill at that time and she was under great mental strain and anxiety in view of the illness of her husband; that the plaintiff was an illiterate lady; that the first defendant began to visit the plaintiff’s house pretending to attend on her and her husband; that the plaintiff and her husband were bed-ridden; that it was on that time, the premises No.87 was sold for medical expenses and debts; that taking advantage of the old age and sickness the first defendant manoeuvered to obtain the signature of the plaintiff in some papers without disclosing the nature of the document; that he would maintain the plaintiff and her husband and the signature were taken stating that it was the provisions stipulation and a condition for the maintenance of the plaintiff and her husband, that the nature of the document also represented that the signature was for the sale of premises No.87 to Chinnammal; that subsequently the plaintiff came to know that the first defendant played a fraud and obtained the settlement deed of the only property namely premises No.86 with conditions regarding maintenance of the plaintiff by him; that the first defendant did not even cared to maintain the plaintiff; that the plaintiff came to know about the fraudulent act of the 1st defendant when she obtained copies of document and found to her dismay that it was a settlement deed of her only property; that the settlement deed dated 27.1.1977 was void and it was vitiated by fraud and misrepresentation; that by way of abundant caution, the plaintiff had executed a revocation deed on 1.9.1977; that the said settlement deed was not binding on her and it was non-est; that there was absolutely no necessity for the plaintiff to execute a settlement of her only property to the 1st defendant especially when her husband was living with her; that the plaintiff issued a notice on 8.5.1978 to the last defendant calling upon him to desist from interfering with the plaintiff’s possession and enjoyment of the premises in door No.86 to which there was no reply; that on the other hand, the plaintiff learnt that the 1st defendant was purported to enter into an agreement of sale; Neither of the defendants have got any manner of title or possession in the suit property; the plaintiff died during the pendency of the suit; the second plaintiff who was her husband and her only legal heir has right to sue has devolved on him; that her husband Kuppusamy Naicker was her only legal heir; the 2nd plaintiff, Kuppusamy Naicker executed a registered will on 20.9.1977 in a sound and disposing state of mind bequeathing the suit property to the 3rd plaintiff; that on the death of the 2nd plaintiff, the will came into effect; that the 3rd plaintiff was entitled to the suit property and hence it has to be declared that the 3rd plaintiff is entitled to the suit property with consequential permanent injunction. 3. The first defendant contested the suit by alleging that it was false to aver that the first plaintiff became seriously ill and she executed a registered will bequeathing the two items to her husband and subsequent, the first plaintiff recovered from her illness; that the present 2nd plaintiff also was ill in 1977; that the suit property originally belonged to the 2nd plaintiff and he executed a registered settlement deed in favour of the first plaintiff was true but it was not correct that in 1977 the house bearing door No.87 was sold and they continued to live in Door No.86; that the first plaintiff became --- in 1975 and she executed a registered will in favour of her husband was false; that the alleged will was neither genuine nor came into existence; that it was not true that in 1977 the first plaintiff and her husband were unwell and the first plaintiff’s husband was bed-ridden and the premises in door No.87 was sole for medical expenses; that it is false to allege that the respondent/ defendant manoevered to obtain the signatures of the plaintiff on some papers without disclosing the nature of the documents and equally it is false to aver that the plaintiff was made to believe that the defendant would maintain her; that by fraud the defendant obtained a settlement deed; that the plaintiff came to know about the same only after obtaining the copies of the same; it was unsustainable to aver that the aid settlement deed dated 27.1.1977 was vitiated by fraud and misrepresentation and it was misconceived also; that it equally false to aver that by way of abundant caution, the 1st plaintiff executed a deed of revocation on 1.9.1977; that the defendant was the brother’s son of the 1st plaintiff. Loganayaki Ammal that she was having much love and affection on the defendant; that on 27.1.1977, the first plaintiff with love and affection executed a settlement deed in favour of the defendant; that after the life time of the first plaintiff the property should be owned and enjoyed by him; that the recitals of the documents were provided by the said recitals of the documents were provided by the said Loganayaki Ammal and there was practically no misrepresentation, fraud or any coercion; that the terms of the settlement deed were accepted the settlement was given effect to also; that the plaintiff’s husband Kuppusamy Naicker was also a consenting party to the terms of the settlement deed and he attested the document and he has also attested the registration; that there was no protest or any objection either by the husband of the plaintiff or even by her; that the settlement deed was absolute and irrevocable; that the 2nd plaintiff was well educated; that there was no misrepresentation; that in view of the settlement deed the defendant is absolutely entitled to the suit property and the first plaintiff is estopped from questioning the right, title and interest of the defendant that it is true that the defendant had entered into an agreement with the 2nd defendant for a sum of Rs.10,000 and he has also paid Rs.2,000 as advance; that the 2nd plaintiff had no right to question the agreement in favour of the 2nd defendant; that the suit is highly speculative; that the suit as framed is not maintainable; that the plaintiff should have filed a suit to set aside the settlement and the claim for declaration of title in favour of the plaintiffs, without any prayer for setting aside the suit document is misconceived and unsustainable in law and that the plaintiff is not entitled for the relief of declaration as asked for. 4. 4. The 2nd defendant filed a written statement interails stating that after the settlor had executed the settlement deed, the 2nd plaintiff have also attested the same and the settlement is binding upon the plaintiffs; that it is true that the first defendant executed and entered into an agreement with the 2nd defendant to a sum of Rs.10,000 and he also paid Rs.2,000 as advance; that the plaintiffs have no right to question the same and hence the plaintiff is not entitled for the relief asked for. 5. On the rival pleadings, the trial Court framed the issue, tried the suit and dismissed the same. Aggrieved 3rd plaintiff preferred an appeal before the Sub-Court, which was also dismissed. Aggrieved with the dismissal of the first appeal, the 3rd plaintiff has preferred this second appeal. 6. At the time of admission, the following substantial question of law was formulated by this Court for consideration. “Whether Ex.A-5 document is a will and not a settlement deed and hence validly cancelled by the 1st plaintiff?” 7. This second appeal is an outcome of the dismissal of an appeal filed by the appellant herein whose suit was dismissed by the trial Court. Both the Courts below agreeing with the contentions of the respondents have negatived the reliefs which has culminated in this second appeal. 8. This second appeal is an outcome of the dismissal of an appeal filed by the appellant herein whose suit was dismissed by the trial Court. Both the Courts below agreeing with the contentions of the respondents have negatived the reliefs which has culminated in this second appeal. 8. Arguing for the appellant, learned counsel would submit that the judgment of the First Appellate Court is void in much as it has not framed the points arising for consideration in the appeal and the points framed whether the appeal must be allowed, is no point at all for determination; that the learned Subordinate Judge failed to follow the mandatory provisions of O.20, Rule 4 and O.41, Rule 31 which require the appellate Court to frame the various points that would arise for consideration of the appeal and the reasons are to be given for such points; that the first appellate Court had discussed only the question whether Ex.A-5 is the Settlement or a Will, overlooking the other points urged at the time of the hearing of the appeal; that the learned Subordinate Judge failed to see that Ex.A-5 is not a true document as the mind of the executant did not go with the signature and the same is not valid and binding; the plaintiff was not keeping good health and afflicted with cancer which has been taken advantage of by the 1st defendant to get the document in his favour; that there was no necessity for the first plaintiff to execute Ex.A-5 in favour of the 1st defendant and the same has been obtained under false representations; that there were clinching circumstances which would clearly got to prove that Ex.A-5 has not been executed with full knowledge of its contents and hence not valid and binding; that from the moment the 1st plaintiff came to know of the true nature of Ex.A-5 she cancelled the same under Ex.A-6 which would clearly show that the 1st defendant has obtained the document under false representations; that even otherwise the terms and conditions of Ex.A-5 not having been fulfilled, the first plaintiff is well within her rights to have the same cancelled under Ex.A-6; that the first appellate Court ought to have held that as Ex.A-5 is conditional upon 1st defendant maintaining plaintiffs 1 and 2 and the condition not having been fulfilled the document could not be given effect to and has been rightly cancelled under Ex.A-6; that it is pertinent to note that the possession was not given to the 1st defendant and that the plaintiffs alone continue in possession which would clearly show that Ex.A-5 was not a settlement deed but only a will; that the cumulative reading of the various clauses in Ex.A-5 would clearly show that the document is only a will and not a Settlement Deeds that it was open to the plaintiffs to urge several points in support of her contention and the fact that Ex.A-5 should be construed in the alternative as a Will, would not in any way detract from the contention, that even if Ex.A-5 is a Settlement Deed, which is vitiated; that the Court below should have accepted the contentions put forth by the appellant and decreed the suit. 9. Vehemently opposing the contentions put forth by the appellant side, the learned counsel for the respondent would submit that the trial Court framed the necessary issues, well considered the evidence adduced by both sides and arrived at a correct conclusion that the appellant was no entitled to the relief of declaration; that the trial Court on thorough scrutiny of the evidence have found that Ex.A-5 document was a settlement deed and it has also been acted upon by handing over possession to the respondent herein. Learned Subordinate Judge only on thorough scrutiny of the evidence has confirmed the judgment of the lower Court; that only on proper appreciation of the evidence both the Courts have held that the documents was not tainted by any one of the invalid factors like fraud or misrepresentation and hence it would be futile to content that the lower Courts have not neither framed the necessary points for determination nor considered the evidence to arrive at the finding. Both the Courts have clearly pointed out that the evidence and the circumstances would clearly go to show that Ex.A-5 was executed with full knowledge of the contents and hence it was valid and binding on the plaintiffs. 10. This second appeal has been filed by the 3rd plaintiff in the suit whose first appeal before the First Appellate Court was dismissed. One Loganayaki filed a suit against the respondent herein alleging that the house property situate in door Nos.86 and 87 belonged to her husband, Kuppusamy Naicker who executed a settlement deed in her favour; that the house property in door No.87 was sold in the year 1977; that they retained, the house property in door No.86 where they were residing, that the first respondent who was her brother’s son taking advantage of the illness of the first plaintiff and her husband obtained her signature and fabricated a settlement deed which is marked as Ex.A-5 and on coming to know about the same she executed a revocation deed under Ex.A-6 and thus the settlement deed marked as Ex.A-5 was void since it was vitiated by fraud, misrepresentation and non-est; that when the first defendant was attempting to interfere with the possession and enjoyment on her property, she has filed a suit. During the pendency of the suit the first plaintiff died leaving her husband, the 2nd plaintiff as her only legal heir. During the pendency of the suit the first plaintiff died leaving her husband, the 2nd plaintiff as her only legal heir. The 2nd plaintiff executed a registered will on 20.9.1977 in favour of the 3rd plaintiff and has impleaded herself and prosecuted the suit on the death of the 2nd plaintiff. 11. The only defence that was raised by the defendant in the trial Court was that the first plaintiff executed a settlement deed Ex.A-5 in favour of the first defendant out of love and affection; that the said irrevocable settlement deed was acted upon and came into force and hence it could not be revoked. 12. From the perusal of the judgment of the trial Court, it is seen it has framed the necessary issues, tried the suit and dismissed the same. Aggrieved 3rd plaintiff has preferred an appeal before the Sub Court which confirmed the judgment of the trial Court. 13. After careful consideration of the rival submissions and the scrutiny of the available materials what are all required to be stated is that the judgment of the First Appellate Court has got to be set aside in view of the non-compliance of the mandatory provisions under O.41, Rule 31, C.P.C. The First Appellate Court instead of settling the points for determination has stated as follows: 14. After going through the judgment of the First Appellate Court, this Court may hasten to state the judgment under challenge is defective in that, the learned Subordinate Judge has not followed the above provision under O.41, Rule 31, C.P.C. The first appellate Court has not raised the points for determination as required under the aforestated mandatory provisions and not focused its attention on the specific and rival contentions which arose for decision. This Court had an occasion to consider such a situation in a case reported in Palanisami Pillai v. The Commissioner, H.R. and C.E., Madras, (1997)1 C.T.C. 562, wherein it has been held as follows: “The object of O.41, Rule 31, C.P.C., in making it incumbent upon the appellate Court to raise the points for determination and to state reason for the decision is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise for determination as also to offer the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise, if they see fit, and are so adverse, the right of second appeal conferred by Sec.100, C.P.C. On a perusal of the judgment of the learned single Judge, it appears to us that the reasons for his findings would not satisfy O.41, C.P.C. This Court being the first appellate Court, and being the final Court of facts, it is incumbent on it to consider all the evidence adduced by the parties in the case. Learned single Judge has not even turned to the side of the plaintiffs who filed voluminous documents marked as Exs.A-1 to A-33. The parties to the suit or appeal, in our opinion, have a right to know the reasons that they have led the Judge to his conclusions. The learned single Judge (Bellie, J.) has not considered any facts and circumstances and the evidence adduced both oral and documentary by both sides, but merely recorded a finding by accepting the evidence of D.Ws.1 and 2, without himself bestowing any consideration thereon. It can surely be said that this is not judgment in the eye of law. In the instant case, the judgment of the learned Subordinate Judge is exhaustive and well reasoned. The learned single Judge when he reversed the judgment, there should be enough material to whom that the Court of appeal has considered it fully and formed its own opinion. In the present judgment, there is no discussion at all about the documentary evidence filed and marked as Exs.A-1 to A-33. The learned single Judge when he reversed the judgment, there should be enough material to whom that the Court of appeal has considered it fully and formed its own opinion. In the present judgment, there is no discussion at all about the documentary evidence filed and marked as Exs.A-1 to A-33. The law imposes upon the Court of appeal the imperative duty and obligation of giving an adequate and satisfactory judgment such as is required by law and it is the duty to explain its reasons for so doing more especially when the Court of first instant has gone so fully into the facts and the reasons for the conclusions arrived at.” 15. A reading of the judgment under challenge would clearly reveal that instead of raising the necessary points for determination and deciding the same afresh by applying its mind, the First Appellate Court has much adverted on the question whether Ex.A-5 was a will or a settlement. As rightly pointed out by the learned counsel for the appellant, the first appellate Court has not considered the question whether Ex.A-5 document was acted upon or not. In the instant case, it can be well stated that the first appellate Court has not exercised the imperative duty and obligation under the mandatory provision in O.41, Rule 31, C.P.C. since it has not settled the necessary points for determination and have arrived at independent conclusion afresh on the evidence adduced by both the parties before the trial Court. 16. Hence, the Court is of the Court that due to non-compliance of the mandatory provision, the judgment and decree of the first appellate Court has got to be set aside and remitted back to the first appellate Court with a direction to follow strictly the provisions under O.41, Rule 31, C.P.C. as observed above and dispose of the appeal in accordance with law within a period of three months from the date of receipt of copy of this judgment. 17. In the result the second appeal is allowed, setting aside the judgment and decree of the first appellate Court and remitting back the matter to the first appellate Court with a direction to follow strictly the provisions under O.41, Rule 31, C.P.C. and dispose of the appeal in accordance with law. Within a period of three moths from the date of receipt of copy of this judgment. No order as to costs.