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2003 DIGILAW 1309 (MAD)

Samikannu Naidu v. Krishnamurthy Naidu

2003-08-20

M.THANIKACHALAM

body2003
Judgment :- The plaintiff is the appellant. 2. The suit property is an extent of 8 ½ cents comprised in Survey No.59/5, out of an extent of 70 cents, in which, there is a house also bearing door No.48-B. The plaintiff claiming to be the owner of the said extent, under sale deeds dated 21.3.1961 and 13.2.1982, and contending that the defendant is attempting to disturb the possession and enjoyment, has filed the suit for declaration of his title to the suit property, with a consequential relief of permanent injunction. 3. The defendant/respondent questioned the validity and binding nature of the sale deed dated 21.3.1961, contending that the vendor under this sale deed viz., Perumal Naidu has no subsisting title and therefore, he could not have validly conveyed the property to the plaintiff; that from the lawful owner of the suit property viz., the wife of the said Perumal Naidu, by name Muniyammal, he had purchased not only the suit property, but also another extent under a registered sale deed dated 30.1.1980, that in pursuance of the same, he is in possession and enjoyment of the suit property and therefore, the plaintiff having purchased the property from the person, who had no title and having not been in possession, is not entitled to either declaration or injunction. In the additional written statement, he would contend that in view of the subsequent stand taken by the plaintiff claiming title, under 13.2.1982, he has admitted the settlement deed, which divested the title of Perumal Naidu and therefore, on this ground also, the plaintiff is not entitled to succeed in the suit. 4. On the above pleadings, the parties went on trial before the Principal District Munsif, Villupuram in O.S.No.64/83. The trial Court has framed as many as nine issues, touching the settlement deed dated 22.2.1956 (Exs.B3 and B4) and the sale deed dated 30.1.1980 (Ex.B.6) and the sale deed dated 13.12.1982, (Ex.B.1). After recording the evidence of the plaintiff and one Munusamy on behalf of the plaintiff and examining the defendant as D.W.1, the trial Court has evaluated the above materials. After recording the evidence of the plaintiff and one Munusamy on behalf of the plaintiff and examining the defendant as D.W.1, the trial Court has evaluated the above materials. The Principal District Munsif, upon appreciation of the evidence, has come to the conclusion that the settlement deed executed by Perumal Naidu in favour of Muniyammal, though true, has not been acted upon and therefore, the sale deed executed by Perumal Naidu transfering the suit property in favour of the plaintiff is true, valid and binding upon the parties. He has also held, that the subsequent sale deed executed by the son and daughter of Perumal Naidu in favour of the plaintiff on 13.12.1982 is true, valid and will be binding upon the defendant also. It is the further conclusion of the trial Court, that the sale deed in favour of the defendant dated 30.1.1980 is not valid, since the minors, who are entitled to the properties under the settlement deed have subsequently avoided the sale deed by executing a sale deed in favour of the plaintiff on 13.12.1982. In this view of the matter, on the basis of Exs.A1 and B1 and finding possession of the suit property also with the plaintiff, the trial Court decreed the suit, as prayed for, with costs, on 13.9.1989. 5. The aggrieved defendant impugned the above said decree and judgment before the Sub Judge, Villupuram in A.S.No.14/90. The learned Subordinate Judge after considering the documents as well as oral evidence, came to the conclusion that as per the settlement deed, Muniyammal is entitled to enjoy the property during her life time without the power of ratification, the fact being the settlement deed has not been revoked, Perumal Naidu has no right to convey the suit property in favour of the plaintiff. It is further held by the first appellate Court that the plaintiff has failed to prove that Muniyammal was not in possession and enjoyment of the suit property, further concluding, when Muniyammal is alive, the sale deed executed by her daughter and son will not bind the parties for ever, whereas if at all, it could be a valid document during the life time of Muniyammal, since Muniyammal was the life estate holder, entitled to convey her interest, not affecting the vested remainder. In this view of the matter, setting aside the decree and judgment of the trial Court, the first appellate Court ordered the suit to be dismissed, thereby giving cause of action for the plaintiff, to prefer the second appeal. 5a) Heard the learned counsel for the appellant, Mr. G. Devadoss and the learned counsel for the respondent, Mr. S. Krishnaswamy. 6. The learned counsel for the plaintiff/appellant submitted, that the first appellate Court has committed an error in setting aside the finding of the trial Court, regarding the settlement deed, as well as failed to appreciate the subsequent sale deed taken by the plaintiff from the children of Perumal Naidu, who could confer title upon the suit property and in this view, the appeal deserves to be allowed, since the finding of the trial Court is perverse in nature, against the evidence as well as against the oral and documentary evidence. It is the further contention of the learned counsel for the appellant, that the execution of the sale deed by Muniyammal in favour of the defendant, representing the minors as guardian, that too, without obtaining permission under the Hindu Minority and Guardianship Act, is invalid, which was overlooked by the first appellate Court. On the above submission, it was urged before me that the decree and judgment of the first appellate Court should be set aside restoring the trial Court's judgment. 7. The learned counsel Mr.S. Krishnasamy appearing for the respondent/defendant submitted, that the trial Court has committed an error in concluding that the settlement deed is not acted upon and therefore, the sale deed executed by Perumal Naidu is valid, which is against law, further contending that the sale deed executed by Muniyammal in favour of the defendant should have the sanction of this Court, since the same was executed by the natural guardian representing the erstwhile minors. In this view, according to the learned counsel for the respondent/defendant, the first appellate Court is right in reversing the judgment of the trial Court, which does not warrant any interference by this Court. 8. In this view, according to the learned counsel for the respondent/defendant, the first appellate Court is right in reversing the judgment of the trial Court, which does not warrant any interference by this Court. 8. The points, mainly, that arise for consideration are whether the settlement deed executed by Perumal Naidu in favour of Muniyammal on 22.2.1956 is valid, acted upon, thereby it divested the title of the said Perumal Naidu in favour of Muniyammal and whether the sale deed executed by Perumal Naidu ignoring the settlement deed is valid and binding upon the beneficiaries under Ex.B.3. From the point of view of the defendant/respondent, the main question that arises for consideration is whether the sale deed executed by Muniyammal on 30.1.80 is valid and binding upon the vested remainders, under Ex.B6. In order to decide these points, we have to go back, start from 1956, tracing the title to the suit property and the transfers effected then and there. 9. The courts below have very much strained themselves, in order to identify the suit property, referring the boundaries mentioned in the registered documents. Whatever may be the boundaries mentioned in the documents, whether it is correct or not, now there is no dispute, between the parties, for which property they are agitating from the year 1983. The Commissioner has also localised the suit property and at present, I should say there is no dispute, regarding the identification of the property. In this view, we have to proceed further. According to parties, the suit property and other extent in Survey No.59/5, originally belonged to one Rangasamy Naidu, who had two sons, by name Govindasamy Naidu and Perumal Naidu. The defendant is the son of the said Govindasamy Naidu. Under the descendants of Perumal Naidu, the plaintiff is claiming title to the suit property. Perumal Naidu, as evidenced by Exs.B3 and B4, in order to marry one Muniyammal, gifted some properties to her on 22.2.1956, including an extent of 42 cents in Survey No.59/5, out of an extent of 70 cents, which includes the suit property also measuring an extent of 8 ½ cents. The execution of this settlement deed is not seriously questioned. After gifting the properties covered under Exs.B3 and B4, Perumal Naidu married Muniyammal, and gave birth to two children by name Indrani and Palanisamy. The execution of this settlement deed is not seriously questioned. After gifting the properties covered under Exs.B3 and B4, Perumal Naidu married Muniyammal, and gave birth to two children by name Indrani and Palanisamy. It seems there was no misunderstanding between the husband and wife and there is no evidence also that they were living apart, destroying the matrimonial institution. Therefore, it could be safely presumed, that Muniyammal and Perumal Naidu were living as husband and wife and while so, the enjoyment of the property settled under Ex.B3 may not assume importance, to decide the validity of Ex.B.4. 10. The trial Court as well as the first appellate Court has given a finding, that Ex.B.4 is the true settlement deed executed by Perumal Naidu, in favour of Muniyammal, which is not challenged. In the plaint, an attempt was made to say that the settlement deed is not true on the ground that the settlement deed was not given effect to. This contention, not only appears to be against the truth, but also the same is destroyed by the stand taken by the plaintiff in the plaint. 11. Under Ex.B3, Perumal Naidu gifted the property imposing certain conditions, which are neither onerous nor void. Ex.B4 says, as far as the inheritance is concerned, The above recitals would show, that Muniyammal was given life estate and the children of Muniyammal and Perumal Naidu have been given, the vested remainder. In case of no issue alone, absolute right is given to Muniyammal. In this case admittedly, Muniyammal had two issues and therefore, the latter clause in the settlement deed will not come into operation and there is no chance. It is also not the case of the learned counsel for the appellant, that even as per the former clause namely, that Muniyammal has to enjoy the property during her lifetime, absolute right was given, which should not be curtailed by the subsequent clause namely, in case of no issue, Muniyammal has to enjoy the property absolutely. The intention of the settlor was to preserve the property in the family, in case of off spring, if not, to give the property absolutely to the wife. Therefore, as such Muniyammal was entitled to only life estate and the vested remainder should go to her children, viz. Indrani and Palanisamy. This position is also not challenged. The intention of the settlor was to preserve the property in the family, in case of off spring, if not, to give the property absolutely to the wife. Therefore, as such Muniyammal was entitled to only life estate and the vested remainder should go to her children, viz. Indrani and Palanisamy. This position is also not challenged. On the other hand, the learned counsel for the appellant would urge, that there is no recital regarding the actual handing over of the possession of the settled property, to Muniayammal and in the absence of possession being given, it should be construed that the settlement deed was not acted upon. Considering the over all circumstances and the near relationship between the settlor and settlee, and they are living jointly, I am of the view, absence of recital regarding the handing over of the possession, will not loom large or in other words, it will not nullify the settlement deed or it will not lead to any inference, that the settlement deed was not acted upon. 12. Under the transfer of property act, Section 123 which guides how transfer should be effected, while making a gift of an immovable property, it does not specifically say that there should be delivery of possession to complete the transaction. According to Section 123 of Transfer of Property Act, for the purpose of making a valid gift of immovable property, the transfer must be effected by a registered instrument, signed by or on behalf of the donor, and attested by at least two witnesses. These ingredients are very well available in Ex.B4. Only for the purpose of making a gift of movable property, a condition is attached to complete the transaction, that delivery should follow. Therefore, the absence of recital, in the gift deed that possession was handed over to the donee, will not make this document, as sham and nominal as concluded by the trial Court. Admittedly, at the time of execution of the settlement deed, Muniyammal was not wife of the Perumal Naidu and she was not in his family also. For the proposed marriage, when Muniyammal was in her parent's house as bride, this document was executed and realising the same alone, conspicuously, recital regarding the possession is omitted and there is nothing wrong. Admittedly, at the time of execution of the settlement deed, Muniyammal was not wife of the Perumal Naidu and she was not in his family also. For the proposed marriage, when Muniyammal was in her parent's house as bride, this document was executed and realising the same alone, conspicuously, recital regarding the possession is omitted and there is nothing wrong. Further, after the marriage, both the husband and wife were living under the same room, serving the purpose of marriage and have begotten two children also. In the Hindu family, it is the usual practice that the husband used to enjoy or cultivate the property, standing in the name of the wife. Therefore, the non participation of the wife in the actual cultivation of the property or the absence of evidence regarding the income realised by the donee, will not in any way affect Ex.B4 that too, considering the relationship between the donor and the donee viz., husband and wife, at later point of time. It is not the case of Perumal Naidu, while he had conveyed the property in favour of the plaintiff under Ex.A1 dated 21.3.1961, that though he had executed the settlement deed, in favour of his wife, that was not given effect to, whereas he continued to be in possession, as owner, as he was or something like that. In the absence of any such recital, in Ex.A1, and considering the admitted execution of settlement deed, the normal presumption or the legal inference that could be drawn by the Court is, Ex.B4 is not a sham and nominal document, and it was intended to be acted upon and in fact acted upon also, which could be seen from the further evidence. If the settlement deed had not been acted upon, Muniyammal might not have had an occasion to deal with the suit property under Ex.B6, whether it is valid or not. Even before that, as seen from Ex.A5, asserting the right under the settlement deed, a notice was also issued to Govindasamy Naidu, the father of the defendant, since it appears he had purchased some property, under the settlement deed. Further, the plaintiff himself, recognising the settlement deed, purchased the property from the children of Perumal Naidu and Muniyammal, as seen from Ex.B1, whether it is a precautionary step or otherwise. Further, the plaintiff himself, recognising the settlement deed, purchased the property from the children of Perumal Naidu and Muniyammal, as seen from Ex.B1, whether it is a precautionary step or otherwise. If the plaintiff had not recognised the settlement deed or if the plaintiff was sure that the settlement deed was sham and nominal and not acted upon, there would not have been any necessity for the plaintiff to purchase the property, once again from the issues of Perumal Naidu, whose favour the vested remainder of the suit property was vested, under the settlement deed. This conduct of the plaintiff coupled with the non mentioning of the settlement deed, labeling the same as sham and nominal in Ex.B1, prompts me to say unhesitatingly and unerringly also that the settlement deed is true, valid, acted upon and it should have its force. 13. The learned counsel for the respondent/defendant relied on a decision in Thirunavukarau v. Sankariammal ( 2001 3 MLJ 464 ), wherein this Court has held that the production of the gift deed by the donee itself would show that it has been delivered to her by the donor and therefore, the question of delivery of possession of the property gifted would not assume importance for completion of the gift. It is also not recited in the settlement deed that the same would stand revoked on the happening of any specific event, whereas it is unambiguous in vesting the property to the life estate holder, as well as the children of the life estate holder. It is for the plaintiff to prove that the settlement deed was not acted upon. This proof should be established by adducing substantial evidence and the same cannot be substituted by mere pleadings, which remained as dead letters in the pleadings. On the other hand, for the reasons assigned by me supra, there is ample evidence to conclude that the settlement deed should have been acted upon and only on that basis, the subsequent transactions had taken place, whether they are legally valid or not. The established as well as the admitted position being so, I am of the opinion that the trial Court has committed an error in law in concluding that though the settlement deed is true, the same was not acted upon, thereby reinvesting the divested title with Perumal Naidu. The established as well as the admitted position being so, I am of the opinion that the trial Court has committed an error in law in concluding that though the settlement deed is true, the same was not acted upon, thereby reinvesting the divested title with Perumal Naidu. The finding of the trial Court being against law as well as against the evidence, the same was set aside by the first appellate Court, though not reasons were assigned, and the final conclusion is acceptable one. 14. In view of my findings supra, the plaintiff cannot derive title to the suit property, which is covered under the settlement deed, since Ex.A1 was executed by Perumal Naidu after the execution of the settlement deed, the fact being, at that time, he had no title. In this case, even ignoring Ex.A1, the title of the plaintiff could be accepted in view of Ex.B.1. Under the settlement deed, absolute right has been given in favour of the issues and they are Indrani and Palanisamy and no more issue. The said persons, after attaining majority, have conveyed the suit property to the plaintiff and thereby, they have supplied the valid title in favour of the plaintiff, which was incohate in pursuance of Ex.A1. In this view of the matter, even ignoring Ex.A1, I should conclude, that the plaintiff is entitled to declaration of his title to the suit property, which was unjustly denied by the first appellate Court. 15. According to the learned counsel for the appellant, Muniyammal has no right to convey the suit property in favour of the defendant, that too, without obtaining permission from the court and in this view, the defendant could not claim any valid title on the basis of Ex.B6. It is also the further contention of the learned counsel for the appellant, that the mother of minor children is not a coparcener under Hindu Law and therefore, she is not legally qualified to become the manager of a joint Hindu Family and in this view, she cannot claim to have conveyed the suit property validly, representing the minors, for the benefits of the family necessity also. This view is based upon a decision of the Apex Court in Commissioner of I.T. v. G.S. Mills (1996 (1) SC 24). This view is based upon a decision of the Apex Court in Commissioner of I.T. v. G.S. Mills (1996 (1) SC 24). It is the further contention of the learned counsel for the appellant, that natural guardian of a Hindu minor shall not encumber the property of the minor, without the previous permission of the Court under Section 8 of the Hindu Minority and Guardianship Act, 1956. In pursuance of the settlement deed, the suit property belongs to the erstwhile minors. Therefore, if a valid conveyance could be made, that could be done, only after obtaining the permission as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956. If any disposal of an immovable property, by a natural guardian in contravention of Sub Section (1) is made, the same is voidable at the instance of the minor or any person claiming under him. Admittedly, in this case, the natural guardian of minors, Muniyammal has not obtained any permission and the erstwhile minors after attaining majority, avoided the sale in favour of the defendant, by executing a sale deed in favour of the plaintiff, as discussed supra, thereby making Ex.B6 as void, at present. Therefore, on the basis of Ex.B6, the defendant cannot claim any better title, than the plaintiff, that too, to defeat the declaration. 16. As far as the possession is concerned, at this stage, I feel the plaintiff may not be entitled to, because Muniyammal is entitled to enjoy the settled property, during her life time and if she is alive, question of taking possession, depriving her right, which was conferred under the settlement deed, is not possible. A purchaser from the life estate holder, under law, would be entitled to enjoy the property, during her life time at least and in this view, I conclude that the plaintiff, though stated to be in possession of the suit property, may not be entitled to an order of injunction, against the true owner, in the sense, the persons, who are entitled to be in possession of the property, as per the settlement deed. In this view of the matter, I am constrained to negative the claim of the plaintiff, regarding the injunction, declaring the title alone. 17. In this view of the matter, I am constrained to negative the claim of the plaintiff, regarding the injunction, declaring the title alone. 17. The first appellate Court as well as the trial Court have not applied their mind properly, while analysing the documentary evidence, which are not seriously questioned and therefore, on the basis of the substantial questions of law, viz., interpreting the settlement deed, I conclude that the plaintiff is entitled to declaration and not for any other relief, allowing this appeal to the above extent. The appeal is allowed setting aside the decree and judgment of the first appellate Court, ordering to decree the suit in O.S.No.63 of 1993 on the file of the Principal District Munsif Court, Villupuram declaring the title of the plaintiff, negativing the other claims. As to costs, no order under the facts and circumstances of case.