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2011 DIGILAW 3340 (MAD)

Amutha (deceased) v. Yogeswaran

2011-07-20

R.SUBBIAH

body2011
Judgment :- 1. Defendants 1 & 2, who lost before the Courts below, have filed the Second Appeal aggrieved over the judgment and decree dated 28.03.2011 passed by the learned Principal District Judge, Vellore, in A.S. No.72 of 1997, confirming the judgment and decree passed by the learned Subordinate Judge, Tirupattur, dated 05.02.1997 in O.S. No.45 of 1992. Pending Appeal, both Appellants died and as such, their Legal Representatives were brought on record as Appellants 3 & 4. 2. Respondents 1 & 2 herein were the Plaintiffs before the Trial Court and they filed the Suit as against Appellants 1 & 2 as well as the 3rd Respondent herein as Defendants for declaration of their right, title and interest to the suit properties and also vacant possession of the said properties from the Defendants. 3. The case of the Plaintiffs, in brief, is as follows: The 1st Plaintiff is the son and the 2nd Plaintiff is the wife of one late Subramani Chettiar and the suit properties are the ancestral properties of the 1st Plaintiff. There was a partition on 16.03.1985 in respect of the family properties and half share in the suit properties were allotted to the 1st Plaintiff and another half share was allotted to Subramani Chettiar. On 21.03.1986, the said Subramani Chettiar gifted his half share in the suit properties in favour of his wife, the 2nd Plaintiff under two registered Gift Deeds and the said gift was acted upon and possession was handed over to the 2nd Plaintiff. Accordingly, the mutation of names in the property tax demand register of Vaniyambadi Municipality was duly effected and thus, plaintiffs 1 & 2 have become the absolute owners of the suit properties. 4. It is the further case of Plaintiffs that before the said family partition, the suit properties, which consists of two items, were rented out to the 2nd Defendant by the said Subramani Chettiar on a monthly rent of `75/- for each item and after partition and execution of gift, the 2nd Defendant was instructed to pay the monthly rents directly to the Plaintiffs and the tenancy was attorned by the said Subramani Chettiar in favour of the Plaintiffs and he also agreed to pay the same. But the 2nd Defendant failed to pay the rent from March, 1986 and that apart, he sub-let the suit properties to the 3rd Defendant and to one Fazlur Rahman Sahib. Hence, the Plaintiffs constrained to file Rent Control proceedings and the said Fazlur Rahman vacated from the premises. In the said proceedings, since the 2nd Defendant disputed the title of the Plaintiffs with regard to the suit properties, the Rent Control Court directed the parties to approach the Civil Court. Thereafter, the Plaintiffs filed the present Suit, denying the allegation of the 2nd Defendant that Subramani Chettiar executed a Sale Agreement dated 05.11.1984 in respect of the suit properties and stated that the said Subramani Chettiar had no right to sell any portion of the suit properties. Further, the allegation that the 1st Defendant purchased half share in both items of the suit properties under Sale Deeds dated 26.11.1986 and 27.11.986 from the said Subramani Chettiar is also not correct and Defendants 1 & 2 fraudulently created the said agreements to grab half share in the suit properties. In spite of repeated demands, the 2nd Defendant did not pay the rent and deliver vacant possession and hence, the Plaintiffs sent a legal notice terminating the tenancy of the 2nd Defendant. Though the 2nd Defendant received the notice, there was no compliance. Hence, the Suit. 5. The case of the Plaintiffs was resisted by the Defendants by filing separate Written Statement and stated that the suit properties originally belonged to one Subramani (the father of the 1st Plaintiff) and his brother Arumugam and they partitioned the family properties under a registered Partition Deed dated 31.12.1978 and in which, the suit properties and some other properties fell into the share of Subramani Chettiar, who entered into an agreement of sale with the 1st Defendant in respect of two items of the suit properties on 05.11.984 for a sum of `45,000/- and the 1st Defendant paid an advance of `20,250/- on the same day and agreed to pay the balance on or before 04.05.1985. Subsequently, the 1st Defendant has paid a sum of `8,500/- on 08.02.1985, `1,250/- on 11.11.1985 and `2,000/- on 01.09.1986 and the same were endorsed in the said Sale Agreement by Subramani Chettiar himself. Subsequently, the 1st Defendant has paid a sum of `8,500/- on 08.02.1985, `1,250/- on 11.11.1985 and `2,000/- on 01.09.1986 and the same were endorsed in the said Sale Agreement by Subramani Chettiar himself. After partition on 11.03.1985 between Subramani Chettiar and his son, the 1st Plaintiff, Subramani Chettiar has got half share in both items of suit properties and Subramani Chettiar, as per terms of Sale Agreement dated 05.11.1984, executed two Sale Deeds dated 26.11.1986 and 27.11.1986 in favour of the 1st Defendant has become the absolute owner of half share in both items of the suit properties by way of two registered Sale Deeds pursuant to the Sale Agreement dated 05.11.1984. The 2nd and 3rd Defendants have recognized the 1st Defendant as owners off the half share and they have been paying half of the rent to the 1st Defendant. Two settlement Deeds executed by Subramani Chettiar in favour of the 2nd Plaintiff are not valid under law and not acted upon and possession was never given to the 2nd Plaintiff. Hence, the 2nd Plaintiff is not entitled to any share in the properties. 6. On the said pleadings, the Trial Court framed necessary issues and on the side of the Plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-19 were marked and on the side of the Defendants, D.Ws.1 to 9 were examined and Exs.B-1 to B-47 were marked. The Trial Court, after considering the entire evidence on record, both oral and documentary, had decreed the Suit and aggrieved over the same, the Defendants filed A.S.No.72 of 1977 before the Principal District Court, Vellore, wherein the Lower Appellate Court, dismissed the Appeal, confirming the judgment and decree of the Trial Court. Being aggrieved with the same, Defendants 1 & 2 filed the present Appeal. During pendency of the Appeal, both Appellants died and their Legal Representatives were brought on record as Appellants 3 & 4. 7. Being aggrieved with the same, Defendants 1 & 2 filed the present Appeal. During pendency of the Appeal, both Appellants died and their Legal Representatives were brought on record as Appellants 3 & 4. 7. At the time of admission of the Second Appeal, this Court has framed the following substantial question of law for consideration: (1) When the Second Appellant and the Third Respondent are the admitted tenants in respect of a portion of the suit property and being entitled to the benefits and protection under Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, is not the Suit seeking relief of possession against them hit by the prohibition under Section 10 of the Act and liable to be dismissed? (2) As the First Appellant was put in possession of the property in pursuance of the Agreement of Sale dated 5.11.1984 executed by late Subramanian Chettiar, she being entitled to the benefits of the Doctrine of Part Performance under Section 53(a) of the Transfer of Property Act can the Court fully justified in passing the decree for recovery of possession ignoring her claims against the Respondents herein? (3) Is it the impugned judgment bad in law in view of the fact that in pursuance of the Agreement of Sale Ex.B-1, late Subramania Chettiar received the sale consideration and registered a Sale Deed conveying the suit property to the First Appellant under Exs.B-2 & B-3 dated 27.11.1986? (4) As a bona fide purchaser for value without notice is not the First Appellant’s sale transaction referred to above protected from unlawful eviction at the instance of the Respondents? (5) Is not the alleged Settlement Deed dated 21.3.1986 in favour of the Plaintiff a make believe transaction never intended to come into force nor acted upon and hence cannot be treated as valid transfer of property, especially, since it was cancelled and set aside under Ex.B-4 by late Subramanian Chettiar? 8. Learned Counsel appearing for the Appellants submitted that Subramani Chettiar, the father of the 1st Plaintiff, was a businessman and was having office at Periyamedu and on 05.11.1984, he purchased stamp papers at Chennai and on the same day, he proceeded to Vaniyambadi and entered into an agreement with the 1st Appellant in respect of his half share in items 1 & 2 of the suit properties. Subsequently, the said Subramani Chettiar had also received the sale consideration on different dates. When the Sale Agreement was in force, at the instance of the 2nd Respondent/2nd Plaintiff, he executed two Settlement Deeds conveying his half share in respect of both shops in favour of the 2nd Plaintiff. But, subsequently, on 19.11.1986, he cancelled one of the Settlement Deeds and thereafter, based on the Agreement dated 05.11.1984, he executed two Sale Deeds in favour of the 1st Appellant/1st Defendant on 26.11.1986 and 27.11.1986, which are marked as Exs.B-2 & B-3. Therefore, the 1st Defendant is entitled for half share in the suit properties. But, the Courts below have come to a conclusion that on the date of execution of the Sale Deeds, Subramani Chettiar has lost his rights in the properties since he had executed a Settlement Deed in favour of his wife as early as 21.03.1986. 9. Attacking the said finding, the learned Counsel for the Appellants submitted that the Settlement Deed executed in favour of the Second Respondent was cancelled on 19.11.1986 and thereafter only, Subramani Chettiar had executed two Sale Deeds in favour of the 1st Defendant pursuant to the Agreement dated 05.11.1984. Under such circumstances, the courts below ought not to have decreed the Suit. 10. Per Contra, the learned Counsel for Respondents 1 & 2 submitted that the suit schedule properties consisting two items, are the ancestral properties of the 1st Plaintiff. On 16.03.1985, partition took place between the 1st Plaintiff and his father Subramani Chettiar, in which half share in items 1 & 2 properties were allotted to the 1st Plaintiff and thereafter, on 21.03.1986, Subramani Chettiar executed two Settlement Deeds in favour of his wife i.e. the 2nd Plaintiff conveying his half share in the suit properties. Under such circumstances, on the date of execution of the alleged Sale Deeds, namely, on 26.11.1986 and 27.11.1986, Subramani Chettiar has no right over the properties to convey the same to the 1st Appellant. Though it was claimed that one of the Settlement Deeds executed was cancelled, it cannot be concluded that entire Settlement Deed is not valid in law. Under such circumstances, on the date of execution of the alleged Sale Deeds, namely, on 26.11.1986 and 27.11.1986, Subramani Chettiar has no right over the properties to convey the same to the 1st Appellant. Though it was claimed that one of the Settlement Deeds executed was cancelled, it cannot be concluded that entire Settlement Deed is not valid in law. In this regard, the learned Counsel for Respondents 1 & 2 has relied upon the judgment reported in Palanisamy Gounder & Another v. Periammal, 2003 (2) LW 605 , and submitted that in the absence of power of revocation in the Settlement Deed, the same could not be revoked. Therefore, the Sale Deeds executed by Subramani Chettiar in favour of the 1st Appellant are not valid. In fact, the Courts below have properly analysed the facts and decreed the Suit. 11. Keeping the submissions of the learned Counsel on either side in mind, I have carefully gone through the materials available on record. 12. It is the case of Plaintiffs that there was a partition on 16.03.1995 in respect of the family properties, in which, half share in the suit properties was allotted to the 1st Plaintiff and another half share was allotted to Subramani Chettiar, the father of the 1st Plaintiff and the wife of the 2nd Plaintiff and subsequently, the said Subramani Chettiar had executed two Settlement Deeds both dated 21.03.1986 settling his half share in items 1 & 2 in favour of his wife. But, according to the Defendants, even before the partition and even before the execution of the Settlement Deeds by Subramani Chettiar, the said Subramani Chettiar entered into an agreement of sale with the 1st Defendant on 05.11.1984 to sell the properties and pursuant to the same, he sold the properties by way of two Sale Deeds dated 26.11.1986 and 27.11.1986, after canceling the Settlement Deeds in favour of his wife on 19.11.1986. Therefore, the entire question that has to be decided is, whether the Sale Deeds executed by Subramani Chettiar in favour of the 1st Defendant are valid in law in view of cancellation of his earlier Settlement Deeds dated 21.03.1986? 13. It could be understood from the facts that as early as in March, 1985, half share of the properties was allotted to the 1st Plaintiff and another half share was settled in favour of his wife. 13. It could be understood from the facts that as early as in March, 1985, half share of the properties was allotted to the 1st Plaintiff and another half share was settled in favour of his wife. But, on 19.11.1986, Subramani Chettiar had cancelled the Settlement Deeds and thereafter, executed two Sale Deeds in favour of the 1st Defendant. It is well settled legal principle that in the absence of any clause for revocation of Settlement Deed, the same cannot be revoked. In this regard, a reference could be placed on the judgment reported in Palanisamy Gounder & Another v. Periammal, 2003 (2) LW 605 , and the relevant paragraphs are extracted hereunder: “21. The first question is whether Ex.A11, the Settlement Deed executed in favour of Chinnammal for her lifetime and then to the male heirs of the First Defendant has been validly cancelled or not. While submitting that Ex.A11 has not been given effect to, it is pointed out by the counsel for the Plaintiff that Appachi Gounder, the father cancelled Ex.A11 through Ex.A12 with the consent of Chinnammal, beneficiary and as such, it has to be construed that the Settlement Deed was validly cancelled. 22. It is settled position of law as laid down in Menakshiammal v. Ramasamy Mudaliar, 1998 (3) MLJ 390 ; Sarojini Ammal v. Krishnaveni Ammal alias Baby Ammal, 1990 (1) LW 599 ; Jayalakshmi v. Kaliaperumal, 1995 (98) LW 167; and Balasubramania Pattar v. Kandasamy Pathat, 1999 (2) MLJ 367 , that once a gift is accepted and in the absence of power of revocation, the settlement cannot be revoked as provided under Section 126 of the Transfer of Property Act. 23. Once the Settlement Deed is accepted by the settlees, then the settlement is complete. In the absence of power of revocation reserved for the settler, the Gift Deed cannot be revoked. It is permissible for the court to draw a presumption of acceptance from the conduct of the parties and from the factual materials. This is a presumption of fact. Merely because there was no formal parting with, it cannot be said that it is a factor to be counted against acceptance of the settlement, even though when the parties being the husband and wife and were found to be living together. The physical delivery of the property gifted is not contemplated. This is a presumption of fact. Merely because there was no formal parting with, it cannot be said that it is a factor to be counted against acceptance of the settlement, even though when the parties being the husband and wife and were found to be living together. The physical delivery of the property gifted is not contemplated. What is contemplated is the acceptance by donee or on behalf of the donee”. 14. It is clear from the dictum laid down in the above judgment that once a Settlement Deed is executed by a settlee, then the Settlement Deed is completed and in the absence of power of revocation reserved for settler, the Gift Deed cannot be revoked. In the instant case, no such clause is available in the Settlement Deed dated 21.03.1986. Under such circumstances, the cancellation made by Subramani Chettiar on 19.11.1986 is not valid in the eye of law. Therefore, I am of the opinion that on the date of execution of the Sale Deeds, Subramani Chettiar had no right and he had already lost his rights in the properties. Therefore, the Sale Deeds dated 26.11.1986 and 27.11.1986 executed in favour of the 1st Defendant are not valid. Therefore, the claim of the 1st Appellant that she is having right in respect of half share in the suit properties is not acceptable. 15. The concurrent findings of the Courts below decreeing the Suit filed by Respondents 1 & 2 do not suffer form any serious or substantial error warranting interference and the Second Appeal has no merits and is bound to fail and therefore, the substantial questions of law formulated by this Court have been answered against the Appellants. For the foregoing reasons, the Second Appeal fails and it is dismissed. No cost. Consequently, connected M.P. is closed.