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2008 DIGILAW 2796 (MAD)

Narayanasamy v. Parvathi Ammal (died) & Others

2008-08-01

R.BANUMATHI

body2008
Judgment :- Challenge in this Second Appeal is to the Judgment in A.S.No.73/1994 thereby reversing the Judgment of trial court and decreeing Plaintiffs suit for declaration and permanent injunction. Defendant is the Appellant in the Second Appeal. For convenience, parties are referred as per their array in the suit. Pending Second Appeal, Plaintiff Parvathi ammal died and her legal representatives were brought on record in the Appeal as Appellants 2 to 7. 2. Deceased Plaintiff Parvathi ammal is the sisters daughter of Dhanabagyammal and Defendant is the brothers son of said Dhanabagyammal. Case of the Plaintiff is that suit property fell to the share of Dhanabagyammal in the partition dated 09.07.1935. Dhanabagyammal executed a settlement deed (Ex.A2) dated 05.05.1965 in favour of the Plaintiff. Settlement deed was accepted and acted upon and given effect to and Plaintiff was in possession and enjoyment of the same. Plaintiff has been dealing with the property. The portion mentioned as A B C D in the plan is the suit property and B C E F is in possession of the Defendant. Plaintiff has been paying the tax. Defendant fraudulently obtained settlement deed from Dhanabagyammal by deed dated 15.09.1980 under Ex.B17 and it is an invalid document. According to the Plaintiff, she has also perfected title by adverse possession and defendant has no right in the suit property. 3. Denying possession of the Plaintiff in the suit property and alleging that the Settlement deed in her favour is not valid, Defendant has filed written statement contending that he is in possession of the suit property. According to the Defendant, Settlement deed was revoked under Ex.B18 dated 17.06.1975 and that Dhanabagyammal had executed Settlement deed Ex.B17 in his favour on 15.09.1980. 4. On the above pleadings, relevant issues were framed. Upon consideration of evidence, trial court held that Ex.A2-Settlement deed was validly cancelled under Ex.B18 and that Dhanabagyammal had settled the suit property in favour of Defendant under Ex.B17. Trial court further held that Defendant is in possession of the suit property and Ex.B17 is binding upon the Plaintiff. Finding that Plaintiff had failed to prove her possession, trial court dismissed the Plaintiffs suit. 5. Being aggrieved, Plaintiff has preferred appeal in A.S.No.73/1994. Lower Appellate court held that settlement deed executed in favour of Plaintiff is valid and given effect to. Finding that Plaintiff had failed to prove her possession, trial court dismissed the Plaintiffs suit. 5. Being aggrieved, Plaintiff has preferred appeal in A.S.No.73/1994. Lower Appellate court held that settlement deed executed in favour of Plaintiff is valid and given effect to. Pointing out that there was no recital in Ex.A2 to revoke the settlement deed, it was held that Settlor cannot revoke the earlier settlement deed. Lower Appellate court held that Ex.B17 settlement deed in favour of the Defendant is not valid. Finding that the Plaintiff is in possession and enjoyment of the suit property by letting out to her sister P.W.3 Dhanalakshmi, lower Appellate court allowed the appeal and decreeing Plaintiffs suit. 6. Aggrieved, Defendant has preferred the Second Appeal. At the time of admission, the following substantial question of law was formulated for consideration: Whether the Judgment of the lower Appellate Court is vitiated in granting injunction while the Plaintiff has not proved her adverse possession over the suit property on the date of filing of the suit? 7. Challenging the impugned Judgment of the lower Appellate court, Mr. M. Damodaran, learned counsel for the Appellant contended that Ex.A2 was not acted upon. The learned counsel for the Appellant submitted that Plaintiff had failed to prove that she had taken possession of the suit property pursuant to Ex.A2 settlement deed. It was further argued that when Ex.A2 settlement deed was not acted upon and Settlor and Defendant continued to be in possession, Settlor Dhanabagyammal revoked Ex.A2 and settled the suit property in favour of the Defendant under Ex.B17 settlement deed. The learned counsel for the Appellant further argued that lower Appellate court ignored the weight of evidence and failed to appreciate the evidence in a proper perspective and therefore, the impugned Judgment is not sustainable. 8. Taking me through the Judgment of the lower Appellate court, Mr. M.N. Muthukumar, learned counsel for the Respondents submitted that under Sec.129 of Transfer of Property Act, settlement deed cannot be revoked. The learned counsel for the Respondents submitted that when Settlor had not reserved right to revoke the settlement deed, Dhanabagyammal could not have validly revoked Ex.A2 and the Defendant could not have derived any right and title under Ex.B17 settlement deed. 9. Admittedly, suit property belonged to Dhanabagyammal and she got the same under Ex.A1 partition deed between herself and her brother Annamalai who is the father of Defendant. 9. Admittedly, suit property belonged to Dhanabagyammal and she got the same under Ex.A1 partition deed between herself and her brother Annamalai who is the father of Defendant. Dhanabagyammal executed Ex.A2 settlement deed dated 05.05.1965. Recitals in Ex.A2 settlement deed are to the effect that Plaintiff has accepted the settlement deed. As per the recitals, Plaintiff has to take care of the Settlor by giving her food and cloth. .10. Case of the Defendant is that Ex.A2 settlement deed was never acted upon and Ex.A2 is sham and nominal and that Plaintiff was never in possession and enjoyment of the suit property. Denying execution of Ex.A2 settlement deed, Defendant has contended that he continued to be in possession of the suit property along with a portion which is in his occupation. Defendant has produced tax receipts Exs.B1 to B16 and Exs.B19 to B92 in support of his contention that notwithstanding Ex.A2 he is in possession of the suit property. As rightly held by the lower Appellate court, mere production of tax receipts would not conclusively establish that Ex.A2 was not acted upon. In her evidence, Plaintiff has explained that Defendant being her maternal uncle, she used to share the property tax with him and in that way Defendant happened to be in possession of all tax receipts. Defendant being maternal uncle of the Plaintiff, quite probably Plaintiff has asked the Defendant to pay house tax for her. .11. As pointed out earlier, as per the recitals in Ex.A2 settlement deed, there is acceptance of the Settlement. Under Ex.A2 settlement deed, Dhanabagyammal had settled her absolute right as seen from the following recitals:- 12. Observing that when Settlee accepts transfer by way of settlement deed it is presumed to be acted upon and delivery of possession is not necessary. In 1997 (I) CTC 256 (J. Kuppusami Mudali and others v. Mahalingam) Justice P. Sathasivam (as his Lordship then was) held as under:- "The following decisions cited by the learned counsel for the respondent amply support the above view of mine. In Lallu Singh v. Gur Narain AIR 1992 All. 467, the Full Bench of the Allahabad High Court while interpreting Section 123 of the Transfer of Property Act has held that "delivery of possession is not necessary. In Lallu Singh v. Gur Narain AIR 1992 All. 467, the Full Bench of the Allahabad High Court while interpreting Section 123 of the Transfer of Property Act has held that "delivery of possession is not necessary. Section 123, does away with the necessity of delivery of possession even if it was required by the strict Hindu Law, in the case of a registered instrument of gift properly executed and attested" ...... A similar view has been arrived at in a decision reported in Gouranga Sahu v. Maguni Dei, AIR 1991 Ori. 151 . In Balmakund v. Bhagwan Das, 1894 Allahabad Series 185, the Division Bench has observed as follows:- "The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee. Man Bhari v. Navindh follows" .13. In AIR 1925 Nag. 199 (Bhagwan Prasad v. Hari Singh) it was observed as follows:- ."Assuming that delivery of possession was essential under the Hindu Law to complete a gift of immovable property that law had been abrogated by Section 123 of the Transfer of Property Act in cases where the instrument of gift has been registered." .14. In AIR 1975 Pat. 140 (Samrathi Devi v. Paraswaran Pandey) it is observed as follows:- ."The fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift and the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him." 15. In AIR 1962 Ori. 130 (Tila Bewa v. Mana Bewa), it is observed as follows:- "gift cannot be revoked for failure of donee to maintain donor. Similar view has been taken in AIR 1956 A.P. 195 (Venkatasubbiah v. Subbamma) that gift cannot be revoked on the ground of neglect to maintain donor. 16. In the light of the above mentioned catena of decisions and in view of the recitals in Ex.A2 settlement deed, it must be presumed to be acted upon and delivery of possession necessary. However, Plaintiff has adduced evidence showing possession was delivered to her. .17. To prove that Plaintiff was in possession of the suit property Plaintiff had examined P.W.2-Doss who is the neighbour and Plaintiffs sister Dhanalakshmi (P.W.3) who is residing in the suit property. However, Plaintiff has adduced evidence showing possession was delivered to her. .17. To prove that Plaintiff was in possession of the suit property Plaintiff had examined P.W.2-Doss who is the neighbour and Plaintiffs sister Dhanalakshmi (P.W.3) who is residing in the suit property. Upon consideration of consistent oral evidence of P.Ws.2 and 3, lower Appellate court held that P.W.3 Dhanalakshmi has been in occupation of the suit property. When the Plaintiff has adduced cogent evidence showing her possession, trial court was not justified in holding that Ex.A2 settlement deed was not acted upon and that Plaintiff was never in possession. Oral evidence would go to show that Ex.A2 settlement deed was acted upon and the Plaintiff-Settlee has been in possession. 18. To prove that Ex.A2 settlement deed was acted upon, Plaintiff has produced Ex.A3 security deed under which Plaintiff had executed mortgage deed in favour of one Thirunavukkarasu Chettiar for Rs.500/-under Ex.A3 dated 27.05.1965. The learned counsel for the Appellant has contended that though Plaintiff pleads about cancellation of Ex.A3, no documentary evidence was produced to prove discharge in Ex.A3 and that Plaintiff in her evidence has admitted that there was no "cancellation" of endorsement in Ex.A3. This contention does not merit acceptance. By careful perusal of Ex.A3, it is seen that on the reverse of Ex.A3 an endorsement dated 29.09.1980 has been made evidencing discharge of Ex.A3 mortgage. The fact that original of the mortgage deed was produced by itself would show discharge of mortgage deed. Execution of mortgage deed by Plaintiff is a clear manifestation of Plaintiffs conduct of dealing with the property settled in her favour under Ex.A2. 19. Admittedly, Plaintiff is residing in her husbands house. P.W.3 Dhanalakshmi, sister of the Plaintiff is residing in the suit property. In his evidence D.W.2 Vediappan has stated that Defendant has let out the property to Dhanalakshmi and in her capacity as tenant of the Defendant, Dhanalakshmi is residing in the suit property. In fact, Defendant himself has not stated anything about such tenancy. Pointing out the discrepancy in the evidence of D.Ws.1 and 2, lower Appellate court rightly negatived the defence plea. 20. Main contention of the Appellant is that Ex.A2 settlement deed was revoked under Ex.B18 dated 17.06.1975 and the suit property was settled in his favour under Ex.B17 dated 15.09.1980 by Dhanabagyammal. Pointing out the discrepancy in the evidence of D.Ws.1 and 2, lower Appellate court rightly negatived the defence plea. 20. Main contention of the Appellant is that Ex.A2 settlement deed was revoked under Ex.B18 dated 17.06.1975 and the suit property was settled in his favour under Ex.B17 dated 15.09.1980 by Dhanabagyammal. Case of the Defendant is that Plaintiff failed to perform her obligations as per the recitals in Ex.A2 settlement deed and she failed to maintain Dhanabagyammal, which impelled Dhanabagyammal to revoke the settlement deed. .21. In Ex.B18 revocation deed, recitals are to the effect (i) that Settlor has not handed over possession and Plaintiff did not take possession; (ii) Settlee had not paid the tax for the property; and (iii) Settlee has failed to maintain the Settlor. Now validity of Ex.B18 is under challenge. Substantial question of law falling for consideration is Whether lower Appellate court was right in saying that Settlor cannot cancel Ex.A2 settlement deed? 22. Section 126 of Transfer of Property Act deals with situation when gift may be suspended or revoked. In normal course there is no scope for revocation of a deed of gift when the deed was executed by the donor, accepted by the donee and registered by the registering authority. A deed of gift can be revoked if there is a prior condition that the gift can be revoked, or if the deed of gift has been executed under undue influence, or if donee commits fraud. (See AIR 2004 Calcutta 276 (Balai Chandra Parui v. Smt. Durga Bala Dasi and others). 23. It is well-settled that when a gift of immovable property has been accepted by the Settlee and they are in possession of the suit property, the fact that after making the gift donor felt that for want of foresight of her part to have executed the deed of gift or that the Settlee did not maintain her, it will not clothe the Settlor with the power of revocation of the settlement. .24. In AIR 1995 Himachal Pradesh 117 (Mool Raj v. Jamna Devi and others) it was held that:- ."When there is no specific condition for revocation has been made in the deed itself in the event of failure of the donee to render services to the donor or maintain the donor, the gift cannot be revoked. .25. .24. In AIR 1995 Himachal Pradesh 117 (Mool Raj v. Jamna Devi and others) it was held that:- ."When there is no specific condition for revocation has been made in the deed itself in the event of failure of the donee to render services to the donor or maintain the donor, the gift cannot be revoked. .25. A gift may be revocable on a condition subsequent not depending upon the will of the donor; or it may be revocable on grounds which would justify rescission in the case of a contract. However, it cannot be revoked for any other reason, for a gift revocable at pleasure is no gift at all. Revocation under the first paragraph of Section 126 depends upon the donor and the donee at the time of acceptance agreeing to a condition subsequent which puts an end to the gift. The condition must be made at the time, for the donor cannot impose such a condition after the gift is absolute. Such a condition must be express. In the absence of such condition, the donor has no power of revocation. Where the gift was not a conditional one and it was acted upon by handing over possession of properties to the beneficiary, subsequent cancellation was rightly held to be impermissible. 26. Referring to various decisions, lower Appellate court rightly held that Ex.A2 settlement deed was acted upon and that the same was accepted by the Plaintiff and therefore Dhanabagyammal cannot revoke the settlement deed. Once Ex.A2 settlement deed was accepted and acted upon, revocation of settlement at the will of the Settlor is impermissible. 27. Upon appreciation of oral and documentary evidence, lower Appellate court was right in reversing the Judgment of the trial court. When the Judgment of the lower Appellate court is based upon appreciation of evidence and the materials on record, the same cannot be interfered with. No substantial question of law is involved in this Second Appeal and this Second Appeal is liable to be dismissed. 28. In the result, Judgment of the lower Appellate court in A.S.Nos.73/1994 dated 14.02.1995 on the file of the Sub-Court, Tiruvannamalai (arising out of the Decree and Judgment in O.S.No.1509/1980 dated 26.07.1993 on the file of Principal District Munsif Court, Tiruvannamalai) is confirmed and the Second Appeal is dismissed. In the circumstances of the case, there is no order as to costs.