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2004 DIGILAW 765 (MAD)

Susai and others v. Sowriammal

2004-06-16

S.ASHOK KUMAR

body2004
JUDGMENT: This second appeal has been preferred against the judgment and decree, dated 22.10.1992, made in A.S.No.164 of 1992, on the file of the Additional Sub Court, Cuddalore. 2. The brief facts of the case are as follows: The appellants are defendants in O.S.No.571 of 1984 on the file of the Additional District Munsif, Kallakurichi. The respondent/plaintiff Sowriammal filed a suit against the appellants and the gist of the plaint is that the suit property belongs to one Antony Ammal, w/o.Pitchai Sowri Gounder, that the appellants-defendants are children of Antony Ammal. The said Antony Ammal executed a gift deed in favour of the plaintiff, from then onwards the plaintiff is in possession and enjoyment of the property and is paying kist and taxes for the said property, that during the second week of September, 1984, the defendants attempted to grab the property and therefore the plaintiff filed the above suit for declaration and permanent injunction. After filing of the suit, the defendants forcibly evicted the plaintiff from the suit property and therefore the plaintiff filed an amended plaint for recovery of possession and mandatory injunction. 3. The defendants filed a written statement contending that the alleged gift/settlement deed dated 17.8.1981 is false and it is nothing but a fraud played upon the Antony Ammal, that Antony Ammal has got three sons and one daughter, while so, Antony Ammal has no necessity to execute a gift/settlement deed in favour of the plaintiff, that the plaintiff was never in possession of the suit property, that in April 1980, some dispute arose in the family of the defendants and therefore Antony Ammal executed a Muchalika on 18.4.1980 settling the property in favour of the defendants, that the Muchalika was accepted and enforced and therefore the suit filed by the plaintiff is liable to be dismissed. 4. On behalf of the plaintiff, the plaintiff and one Chinnamalai were examined as witnesses and on behalf of the defendants Soosai, the first defendant and Tmt.Antony Ammal who executed the gift deed were examined as witnesses. Both sides marked one document each. The trial Court framed six issues. After trial, the learned District Munsif came to the conclusion that the plaintiff is entitled for a declaration and mandatory injunction against the defendants and directed them to handover the property to the plaintiff. Both sides marked one document each. The trial Court framed six issues. After trial, the learned District Munsif came to the conclusion that the plaintiff is entitled for a declaration and mandatory injunction against the defendants and directed them to handover the property to the plaintiff. Aggrieved over the said judgment and decree the defendants filed A.S.No.164 of 1992 on the file of the Subordinate Court, Cuddalore. The learned Sub Judge dismissed the appeal confirming the findings of the trial Court. Aggrieved over the said judgment and decree, this second appeal has been preferred. 5. Before this Court, the learned counsel for the appellants would make the following contentions: (i) The alleged gift deed dated 17.1.1981 has been obtained by fraud and the same was never acted upon and accepted by the plaintiff. Even before 17.1.1981, on 18.4.1980, the very same Antony Ammal who executed the alleged gift mentioned supra, has executed a Muchalika in the presence of village panchayatadars in favour of the defendants and the said Muchalika amounts to a settlement of her property in favour of her own children which was acted upon and therefore the judgment of the trial Court and first appellate Court are to be reversed. 6. As regards the first contention of the learned counsel for the appellants that the gift deed was executed by playing fraud upon Antony Ammal, mother of the defendants, the learned counsel would contend that Ex.A-1, gift Deed need not be executed by Antony Ammal in favour of her sister’s daughter while she has got three sons and a daughter, her own children and there is no necessity for execution of a settlement deed in favour of the sister’s daughter. In support of the said contention, the learned counsel submits that the said Antony Ammal herself has been examined as D.W.2 and she has herself stated that a fraud was played upon her and she was not aware of what was executed by her. 7. A perusal of the evidence of Antony Ammal would show that she had misunderstanding with her daughter-in-law and therefore she was residing with her sister’s daughter, the plaintiff herein. 7. A perusal of the evidence of Antony Ammal would show that she had misunderstanding with her daughter-in-law and therefore she was residing with her sister’s daughter, the plaintiff herein. Even though in the chief examination she has stated that Ex.A-1 document was obtained by playing fraud on her, during cross examination, she has admitted her signature in Ex.A-1 and she has also admitted that she has executed a deed and registered the same in favour of her own sister’s daughter and his son-in-law Chinnappan and one Poovathai Udayar have singed as witnesses and she went to the Registrar’s office and admitted the execution of document and when she was questioned by the Registrar whether she has executed the document, she has answered in the affirmative and thus admitted the execution of the documents willfully by her. The said Antony Ammal has not stated any reason as to how P.W.1, the plaintiff cheated her in getting the document executed in his favour. If really Ex.A-1, document was obtained by playing fraud upon Antony Ammal, the said Antony Ammal after reaching her children and started living with them, she would have told her children about the execution of the document and she would have taken some action to cancel the said document. But, D.W.2 Antony Ammal has not taken any step either to cancel the document or tell the truth to her children. Therefore the contention of the learned counsel for the appellant/defendants that Ex.A-1 document is an outcome of a fraud played by the plaintiff on D.W.2 Antony Ammal is not acceptable. 8. Further, the contention of the learned counsel for the appellants is that the gift deed executed in favour of the plaintiff was never accepted or acted upon. Though the plaintiff filed the suit for injunction on the ground that she was in possession of the property according to the plaintiff, subsequently after filing of the suit, the defendants have evicted her and therefore she filed an amended plaint for delivery of possession and mandatory injunction. However the fact remains that the gift deed was handed over to the plaintiff by the executant Antony Ammal which amounts to acceptance. We have to see whether the requirements of a gift of immovable property have been fulfilled in this case as required under Sec.123 of the Transfer of Property Act. 9. However the fact remains that the gift deed was handed over to the plaintiff by the executant Antony Ammal which amounts to acceptance. We have to see whether the requirements of a gift of immovable property have been fulfilled in this case as required under Sec.123 of the Transfer of Property Act. 9. In Rasi Ammal v. Vellai Gounder, (1980)1 M.L.J. 232, this Court has held as follows: "2. Under Sec.123 of the Transfer of Property Act, a gift of immovable property should be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The second requirement is there must be acceptance of the gift by the donee. In the instant case there is no dispute regarding the compliance of the first condition. Regarding the compliance of the second condition viz., acceptance of the gift by the donee, the plaintiff herein, the appellate Court has held that there is no acceptance of the gift by the donee and even the original of Ex.A-1 was not handed over to her. Thus Ex.A-1 clearly recites that the possession of the property covered under it has been handed over to the donee, the plaintiff herein. Apart from the recitals in Ex.A-1, P.Ws.2 and 3, the attestors to Ex.A-1 have also given evidence that plaintiff has accepted the gift under Ex.A-1. Thus the twin requirements of valid execution of the gift deed and acceptance of the gift by the decree, are clearly established by the evidence on record." 10. In this case also the very same type of recitals are found and therefore it can be safely concluded that all the requirements of Sec.123 of the Transfer of Property Act are satisfied as far as Ex.A-1 document is concerned. 11. The next contention of the learned counsel for the appellants is that even much prior to Ex.A-1, the very same Antony Ammal has executed Ex.B-1, Muchalika in favour of the defendants, her three children in the presence of Panchayatadars and therefore after execution of Ex.B-1, Muchalika, the execution on of Ex.A-1 gift deed in favour of the plaintiff is not sustainable. On the face of Ex.B-1, it could be seen that it is an unregistered document. Any document which creates or declares some right in immovable property must be registered as an instrument. On the face of Ex.B-1, it could be seen that it is an unregistered document. Any document which creates or declares some right in immovable property must be registered as an instrument. Sec.17(1)(b) of the Registration Act lays down that a document for which registration is compulsory should by its own force operate or purport to operate to crate or declare some right in immovable property. If such document is not registered, Sec.47 of the Act will prevent its being admitted in evidence. An unregistered document like Ex.B-1 can be created at any point of time. There is no proof that Ex.B-1 was executed on 18.4.1980 as alleged by the defendants. Such a document can be created at any time for the purpose of defending the case. The first appellate Court has given cogent reasons as to why such document could not be accepted, especially, when the same is unregistered. I do not find any reason to interfere with the order of the trial Court and the first appellate Court. 12. In the result, the second appeal fails and the same is dismissed. No costs.