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2006 DIGILAW 3112 (MAD)

Muthusamy v. Ramathal & Others

2006-11-16

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition is filed against the judgement dated 14.3.2005, made in CMA.No:18 of 2003, by the learned I-Additional District Judge, Coimbatore, in reversing the fair and final order of the Subordinate Judge, Udumalpet in I.A.No.57 of 2003 in O.S.NO.20 of 2003, dated 27.3.2003.) The plaintiff is the revision petitioner. He filed the suit for the Relief of declaration of the plaintiff's title and for consequential permanent injunction for restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. The suit properties consist of both agricultural lands situated in different survey numbers in different villages and the house property bearing Door NO.455 in Thungavi Village and vacant site in the same village measuring 2092 Sq.ft., 2. According to the plaintiff he is the one of the sons of the first defendant and the first defendant and his wife Subbathaal are having three sons and two daughters and one of the sons and one of the daughters died leaving behind their LRs. The mother died in the year 2001 and after the death of the mother he father came to the house of the petitioner and he was made to stay in his own house and the petitioner and his family members were looking after him and his needs and while so he executed a settlement deed on 1.10.2002 in his favour in respect of the entire suit properties out of his love and affection and he was also handed over the possession of the suit properties to be enjoyed by him absolutely and since the date of the settlement deed, he has been in peaceful possession and enjoyment of the suit properties by raising crops, by paying kist, by effecting mutation of revenue records etc., On coming to know about the same, the second defendant who is one of the sisters of Muthusamy and the defendants 3 and 4 who are her sons and the other defendants 5 and 6 who are the grand children of the first defendant have colluded together and forcibly obtained the deed of cancellation of the settlement deed from the first defendant, which is followed by Police complaints against each other etc., and the first defendant along with the other defendants have also attempted to cause interference to the plaintiff's peaceful possession and enjoyment o the suit property. Therefore he filed the I.A.No:57 of 2003 under Order 39 Rule 1 and 2 CPC for granting an order of interim injunction against the defendants. 3. The said I.A., was opposed by all the defendants, mainly by the first defendant/father on the ground that the settlement deed is not voluntarily executed by him and according to him after the death of his wife he was looked after by all the daughters and sons and the grand children through the predeceased son and daughter and he intended to settle the property equally among all his legal heirs and there are properties owned by him as well by his deceased wife and as the plaintiff is the only educated son the first defendant father used to entrust all the important matters to the plaintiff. Likewise the first defendant also asked the plaintiff to make arrangement to execute a Will thereby bequeathing his properties in favour of all his legal representatives and the dependents and for the said purpose he had handed over all the documents relating to the properties and he was after one week informed by the plaintiff that due arrangement was made and thereafter he was taken to the Sub-registrar office where he was asked to execute the document and he firs defendant who was aged 90 years was under the bona fide impression that his son, the plaintiff has made arrangements to executed the Will as intended by him, executed the document believing it to be a Will and he came to know about the fraud prayed by the plaintiff upon him only after a week and on his coming to know about the same, he questioned him and insisted for making arrangements to cancel the same and on his being questioned the petitioner got him in house arrest and the the first defendant somehow escaped from his clutches and executed a deed of cancellation of settlement deed on 2.11.2002. It is also contended that at no point of time, the first defendant handed over possession of the suit properties to the plaintiff and the first defendant continues to be in the possession and enjoyment of the suit properties. 4. Before the trial court Exs.A.1 to A.19 were filed by the plaintiff and Exs.B.1 to B.12 were filed by the defendants. 4. Before the trial court Exs.A.1 to A.19 were filed by the plaintiff and Exs.B.1 to B.12 were filed by the defendants. On considering the averments and the submissions made by the respective counsels, the trial court granted the relief of ad interim injunction. Against the same, the defendants filed CMA.No:18 of 2003 before the First Additional District Judge, Coimbatore. The learned Appellate Judge reversed the findings of the trial court and set aside the order of interim injunction. Hence the plaintiff has preferred this revision. 5. From a perusal of the impugned judgment it is clear that the deceased first defendant has three sons and two daughters and one of the sons and one of the daughters pre deceased him, leaving behind their children and the first defendant is not shown to be bearing any special affection for the plaintiff or nurtured any ill-feeling against other sons and daughters. The mother died in the year 2001 by committing suicide and the Police have registered a case against the plaintiff as if he is responsible for the same. 6. Ex.A.1 alleged settlement deed by the first defendant in favour of the plaintiff was executed in the month of October 2002 and within two months thereafter, the first defendant executed Ex.B.1 cancellation deed. Because of the criminal complaints lodged by the parties against each other, there is estranged relationship between the parties. Ex.A.9 is the mortgage deed came to be executed by the plaintiff in favour of his son in law after cancellation of the settlement deed. 7. According to the plaintiff, the first defendant has no right after executing the settlement deed, whereas according to the defendants since the alleged settlement deed has been obtained by fraud, misrepresentation and having been executed by the first defendant without knowing the nature of the document, no right flows from the same in favour of the plaintiff. In such circumstances, the burden is on the plaintiff, who is the dominating person to prove that there was fair play in the transaction and he is bound to prove the voluntary nature of the execution by the first defendant who was 90 years old at the time of execution, particularly when the same is sought to exclude the other sons and daughters and legal heirs. 8. 8. Apart from that some of the reasons given by the appellate Judge are just and reasonable to lift the interim injunction granted by the trial court. EX.A.2 settlement deed is in respect of the properties belonging to both the father and the mother and after the death of the mother her son and daughter get equal share in her property and the same cannot be dealt with by the first respondent father as his own. In the settlement there is no whisper as to the misunderstanding with other sons and daughters or any special reason for settling all the properties in favour of the plaintiff. 9. At the time of execution of the alleged settlement deed the first defendant was aged 90 years and after two months he not only cancelled the same but lodged a Police complaint against the plaintiff for playing fraud upon him and for so many other allegations. The counter filed in the I.A., by the first defendant when he was alive would itself speak of the conduct of the plaintiff. In such circumstance, naturally the burden shifts on the plaintiff first to prove not only the voluntary nature of the document, but also the execution of the document with full knowledge of the nature and contents of the settlement. Taking into consideration the denial raised by the first defendant not only about the execution of the document, but also handing over possession and the nature of the properties covered by the alleged settlement deed, no prima facie case as to the possession in the hands of the plaintiff can be presumed. Balance of convenience is not in favour of the plaintiff as the execution of the alleged settlement itself, based on which, the reliefs claimed is yet to be proved. It is also pertinent to note that the first defendant had cancelled the said settlement deed which is relied upon by the plaintiff for claiming the reliefs. 10. Unless and until the burden is discharged by the plaintiff as to his exclusive right over the entire properties including his mother's properties, to the exclusion of his brothers and sisters, they being co owners, the approach of the trial court that the settlement deed has not been validly cancelled and hence the plaintiff is entitled for interim injunction is not correct. Therefore, the learned Appellate Judge rightly set aside the order of the trial court finding that the order of the trial court is legally and factually unsustainable. In the above circumstances, I do not find any error or infirmity in the well considered findings of the learned Appellate Judge. 11. In the result, the CRP is dismissed. Consequently, connected CMP is also dismissed. No costs.