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2012 DIGILAW 2772 (MAD)

Gokilambal v. S. Palani

2012-07-03

T.RAJA

body2012
JUDGMENT 1. The suit was filed by the plaintiffs/respondents herein seeking to grant a decree against the first defendant, declaring that the cancellation deed, dated 29.04.1998, executed by the first defendant and registered as document No.426/1998 in the Office of the Sub-Registrar at Triplicane, as invalid in law. The learned trial Court in O.S.No.2213 of 1999, dated 29.12.2003, had decreed the suit in favour of the plaintiffs. As against that, when an appeal was preferred by the defendants, the same was dismissed by the learned first appellate Court in A.S.No.535 of 2004, dated 12.04.2005, confirming the judgment and decree passed by the learned trial Court. As against the concurrent findings of the Courts below, the present second appeal has been filed by the defendants/appellants herein. 2. Brief facts leading to the filing of the second appeal are given as under:- The first plaintiff/first respondent herein is the father of plaintiffs 2 to 4/respondents 2 to 4 herein. The first defendant/first appellant herein is the wife of Late K.Sundaraganesan. The defendants 2 to 4/appellants 2 to 4 herein are daughters of the first defendant and the first plaintiff/first respondent herein is the son of first defendant/first appellant herein. The family of the first plaintiff and defendants were having two properties, namely, 'A' and 'B' schedule properties. It is seen in the plaint that 'A' schedule property was self acquired property of first defendant/first appellant herein. Similarly, it was also claimed that the first plaintiff and the defendants had 1/5th share each in 'B' schedule property. It was also the case of the first plaintiff that he was employed as a driver and on the other hand, his sisters-defendants 2 to 4 are all well settled in their matrimonial home. However, as the suit properties belong to self acquired properties of first defendant, on the request of first defendant, by way of quid-pro-quo, the first plaintiff was requested to release his share in the 'B' schedule property and as quid-pro-quo, the first defendant intended to execute a settlement deed settling 'A' schedule property in favour of the first plaintiff. However, as the suit properties belong to self acquired properties of first defendant, on the request of first defendant, by way of quid-pro-quo, the first plaintiff was requested to release his share in the 'B' schedule property and as quid-pro-quo, the first defendant intended to execute a settlement deed settling 'A' schedule property in favour of the first plaintiff. Accordingly, the first plaintiff, by way of release deed, dated 02.02.1996, released his 1/5th share in 'B' schedule property in favour of defendants 2 to 4 and the same was registered as document No.122 of 1996 in the office of the Sub-Registrar at Triplicane and on the very same date, one another settlement deed, dated 02.02.1996, was executed in favour of the first plaintiff by her mother-first defendant, settling 'A' schedule property absolutely in favour of the first plaintiff for his life time and after his life time, the plaintiffs 2 to 4 will retain absolute right over the property and in the settlement deed, dated 02.02.1996, the first defendant, mother of the first plaintiff and the defendants 2 to 4, had expressly stated that the deed of settlement cannot be revoked and even if she does so, it will not be valid. On this basis, on execution of both release deed as well as settlement deed, 'A' schedule property has devolved on the plaintiff and the 'B' schedule property has devolved on the defendants 2 to 4. After the execution, at the instigation of defendants 2 to 4, the first defendant was forced to execute the deed of cancellation, dated 02.02.1998, without the knowledge of the plaintiffs, that too cancelling the absolute rights granted by the first defendant in favour of the plaintiffs. In view of deed of cancellation, which was done behind the back of the plaintiffs, the plaintiffs were forced to file a suit with the aforesaid prayer. 3. A detailed written statement was filed by the first defendant stating that the first plaintiff has committed fraud and suppression of facts and also made misrepresentation with regard to the averment made in the settlement deed, because by taking undue advantage of the illiteracy of the first defendant, the settlement deed was executed and therefore, the first defendant has got every right to cancel the settlement deed. It was also further averred in the written statement that a conditional settlement deed can be revoked in law. It was also further averred in the written statement that a conditional settlement deed can be revoked in law. Further, the property covered in settlement deed is fetching a rental income of more than Rs.5,000/- per month/-. The first defendant is regularly receiving the monthly rent and she has been spending this rental income for her son's family. Therefore, in no manner the first plaintiff or the other plaintiffs had ever helped the first defendant, so as to win over the love and affection of the first defendant to execute the settlement deed. After execution of the settlement deed, when the first plaintiff was not even respecting her mother and his own sisters-defendants 2 to 4, the first defendant came forward to execute the cancellation deed. Therefore, the suit challenging the correctness of the cancellation deed filed by the plaintiffs cannot be legally maintainable. On this basis, it was prayed for dismissal of the second appeal. 4. On the side of the plaintiffs, the first plaintiff himself was examined as P.W.1 and four exhibits were marked as Exs.A1 to A4. On the side of the defendants, the first defendant herself was examined as D.W.1 and one exhibit was marked as Ex.B1. On the pleadings and the materials placed, the learned trial Judge framed the following issues: i. Whether the cancellation deed, dated 29.04.1998, is legally valid in law? ii. Whether the plaintiffs are entitled to have the relief of declaration of cancellation deed? iii. Whether the plaintiffs have valid the suit property properly? iv. To what relief the plaintiffs are entitled? 5. The learned trail Judge, on appreciation of evidence produced by both sides, came to the conclusion that the first defendant while executing the settlement deed settling 'A' schedule property have specifically made a recital therein that the rental income coming from the 'A' schedule property will be enjoyed till her life time and after her life time, the first plaintiff will have limited life estate and after his life time, his children will have the absolute right over the suit property. Again, the second recital made therein also clearly shows that she will not revoke it and even if she does so, it will not be valid. Again, the second recital made therein also clearly shows that she will not revoke it and even if she does so, it will not be valid. When she has specifically made a recital in the settlement deed that she will not challenge or cancel the settlement deed and even if she does so, it will not be valid, the settlement deed cannot be cancelled behind the back of the plaintiffs. Further, on the basis of the settled legal position by this Court inRajammal vs. Pappayee Ammal (2002 (4) CTC 376 Madras) holding that once the property has been gifted to donee, that too with recital that it is irrevocable, the donor has no right to revoke the same, the learned trial Court, by accepting the case of the plaintiffs that the gift once accepted cannot be revoked the same in any circumstances, decreed the suit in favour of the plaintiffs. Aggrieved by the same, when an appeal was preferred by the defendants, the learned first appellate Court also confirmed the judgment and decree passed by the learned trail Court. As against the same, the present second appeal has been filed by the defendants. 6. Before the matter was taken up for arguments, learned counsel for the respondents mentioned before this Court that the case bundle was misplaced in the Registry and on that basis, requested this Court to give a direction to reconstruct the case bundle. As there was no objection from the other side, this Court directed the Registry to reconstruct the case papers. Subsequently, on reconstruction, this Court framed the following substantial questions of law for consideration:- "a) Whether the Courts below have appreciated the real scope of the expression of 'fraud" on the facts and circumstances of the case wherein it is the specific case of the first defendant mother that she instructed her son to prepare a document giving the suit property to all her children equally but the first plaintiff has prepared a document giving the property to himself and his children excluding the other children of the first defendant? b) Whether the Courts below have properly appreciated the law of evidence as to proof of execution of a document and mere putting of left hand thumb impression will not amount to execution without knowing the contents? b) Whether the Courts below have properly appreciated the law of evidence as to proof of execution of a document and mere putting of left hand thumb impression will not amount to execution without knowing the contents? c) Whether the Courts below have property construed the nature of the document Exhibit B1 as to whether it is a settlement deed or a Will?" 7. Learned Senior counsel appearing for the defendants/appellants herein submitted that the Courts below have committed serious mistake in decreeing the suit, when the suit is not maintainable, for the reason that the plaintiff has not produced any material evidence to satisfy the Court that the first defendant put her left hand thumb impression in Ex.B1, knowing the contents of Ex.B1. Further, the first defendant, in her evidence before the trial Court and also in her written statement, has pleaded that the settlement deed was fraudulently obtained by the plaintiffs and again, she has also specifically pleaded that she cannot read and write Tamil and as she has full belief in her son, she came to the office of the Sub Registrar and executed the documents with a faith that 'A' schedule property was given to both the first plaintiff and her three daughters with equal share and likewise, 'B' schedule property was also equally given to her son, first plaintiff and her three daughters-defendants 2 to 4. But, the first plaintiff had wrongly prepared the document dated 02.02.1996 and presented the same for registration, as if the first defendant gifting 'A' schedule property in favour of the first plaintiff and her three daughters with equal shares. Later on, when the first defendant came to know that the plaintiff had committed fraud and obtained a favourable settlement deed by taking away the entire 'A' schedule property, she had rightly executed the deed of cancellation, dated 29.04.1998, therefore, the learned trial Court ought to have raised a specific plea as to whether the settlement deed executed by the first defendant was valid or not. As this fact was not properly considered by the learned first appellate Court, the concurrent errors committed by the Courts below are liable to be interfered with by this Court. 8. As this fact was not properly considered by the learned first appellate Court, the concurrent errors committed by the Courts below are liable to be interfered with by this Court. 8. Opposing the above said argument advanced by the learned Senior counsel, in reply, learned counsel appearing for the plaintiffs/respondents herein submitted that the present second appeal is not only maintainable, but also misconceived for the reason that when the first defendant, mother of first plaintiff as well as defendants 2 to 4, has specifically pleaded in her written statement that she is an illiterate lady, therefore, she cannot read and write Tamil, the very same first defendant (an illiterate lady) could not have executed the deed of cancellation behind the back of the plaintiffs, that too in pure English, after execution of settlement deed, dated 02.02.1996. When the first defendant was able to execute the cancellation deed in English version, the Courts below have rightly come to the conclusion that the cancellation deed, dated 29.04.1998, was prepared and executed only at the instigation of her three daughters-defendants 2 to 4. Therefore, the learned trial Court and the first appellate Court have disbelieved the case of the defendants that an illiterate lady could not have executed the English version of cancellation deed and on that basis, rightly accepted the validity of the settlement deed, dated 02.02.1996, in and by which, the first defendant had retained the right to maintain the 'A' schedule property till her life time and only after her life time, she has settled the 'A' schedule property in favour of the first plaintiff and after his life time, his minor children will have absolute interest over the 'A' schedule property. 9. The argument placed before this Court by the learned counsel for the plaintiffs/respondents that the first defendant, being an illiterate woman, could not have executed the cancellation deed in English version, rightly goes against the defendants, for the reason that when the cancellation deed was executed behind the back of the plaintiffs at the instigation of defendants 2 to 4, only the defendants 2 to 4 have patently exercised their undue influence against the first defendant, therefore, the reasonings and conclusions reached therefrom by the Courts below that the cancellation deed, dated 29.04.1998, was executed at the instigation of defendants 2 to 4 cannot be found fault with. In fact, it is a settled law that the settlement deed executed cannot be simply cancelled, unless it is proved that the settlement deed was fraudulently obtained by the settlee. In the absence of giving necessary particulars of fraud, misrepresentation and undue influence played upon the donor in execution of gift, the settlement deed cannot be revoked. Because, in the present case, the first defendant, who came before the trial Court by stepping into the witness box, has specifically admitted the execution of settlement deed. Therefore, when she admitted that she only executed the settlement deed, it is not open to the defendants/appellants herein to say that the cancellation deed written in English version was rightly executed by the first defendant, after rightly understanding the content of the same, particularly, when she pleaded that she is an illiterate lady. 10. Further, when the first plaintiff and the first defendant had executed two deeds, namely, settlement deed, dated 02.02.1996, settling 'A' schedule property in favour of the first plaintiff and another release deed, dated 02.02.1996, releasing 1/5th right of the first plaintiff in favour of the defendants 2 to 4, ironically the cancellation deed, dated 29.04.1998, executed by the first defendant had not mentioned anything about the 'B' schedule property, therefore, it shows that the defendants 2 to 4 had designed to retain 'B' schedule property including the 1/5th share of the first plaintiff, without giving anything to the plaintiffs. From the above, it is clear that the defendants 2 to 4 wanted to grab not only the 'B' schedule property, but also 'A' schedule property, therefore, as rightly held by the Courts below that the cancellation deed in English version could not have been written or executed by an illiterate woman, cannot be found fault with. Therefore, this Court, finding no substance or merit in the second appeal, is inclined to dismiss the same. Accordingly, the second appeal is dismissed by answering the substantial questions of law against the appellants. Consequently, the judgment and decree passed by the Courts below are hereby confirmed. No Costs. C.M.P.No.247 of 2012 is closed.