Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1440 (MAD)

P. Venkata Raja Rao v. R. N. Krishnaveni

2013-03-26

R.KARUPPIAH

body2013
JUDGMENT : Prayer: This Civil Suit is filed under Order VII Rule 1 of CPC and under Order IV Rule 1 of Original Side Rules, for declaration and permanent injunction. 1. This Civil Suit is filed by the plaintiff for a) declaring that the plaintiff is the absolute owner of the suit property as per registered settlement deed (gift) dated 31.7.1986, subject to the life interest of the first defendant as per the recitals in the settlement deed dated 31.7.1986; b) granting a permanent injunction restraining the defendants or any persons claiming right, interest or title under them from dealing with the property in any manner c) granting the cost of the suit. 2. The case of the plaintiff as seen from the plaint is that he is son of first defendant and her husband Late R.N. Hanumantha Rao. Later (i.e.) on 17.02.2009, said R.N. Hanumantha Rao died leaving behind his wife (i.e.) first defendant, sons and daughters. According to plaintiff, Late R.N. Hanumantha Rao and his wife, first defendant had executed a registered settlement deed (gift) dated 31.07.1986 in favour of plaintiff in respect of suit property, but retaining the right of enjoyment of residence and rental income for their life. Further, it is executed without reserving any power of revocation and hence, it is irrecovable and absolute one. Therefore, the title of the suit property was transferred to the plaintiff and he is absolute owner of the said property. The first defendant suo motu revoked the above settlement deed and executed another settlement deed in favour of another son and daughter (i.e.) 4th and 6th defendants and again revoked the above settlement deed (gift) in favour of 4th defendant. In view of the attitude and action of the 1st defendant and other defendants, the plaintiff filed the suit for the reliefs as already stated. 3. The defendants 2, 3, 5 and 8 have been remained ex parte. 4. The first and sixth defendants have filed a common written statement, wherein, it is admitted the relationship of the plaintiff and defendants, but denied the contention of the plaintiff that he is the absolute owner of the property by virtue of settlement deed alleged to have been executed by the parents of the plaintiff. 4. The first and sixth defendants have filed a common written statement, wherein, it is admitted the relationship of the plaintiff and defendants, but denied the contention of the plaintiff that he is the absolute owner of the property by virtue of settlement deed alleged to have been executed by the parents of the plaintiff. According to these defendants, the first defendant is the absolute owner of the suit property having acquired the same by way of settlement deed executed dated 21.8.1980 by her husband, Late R.N. Hanumantha Rao. The first defendant sold a portion of the above said property measuring about 2796 sq.ft. to one Mr. J. Rajendran under various sale deeds and retained the remaining portion (i.e.) suit property measuring about 2004 Sq. Ft. 5. It is further averred in the written statement that the first defendant begotten six children through her husband, namely, the plaintiff, defendants 2 to 6. The plaintiff is the eldest son of the first defendant and he posed as if he is a responsible son to his parents and believing his false and pretended affection towards his parents to be sincere, the first defendant was mislead by the plaintiff’s pseudo affection, had settled the suit property in favour of the plaintiff retaining life interest in the said property for her life and also to have of her husband under the settlement deed dated 31.7.1986. Further, the above said settlement executed for the amount spent for the first defendant and for her husband. Therefore, the settlement deed was treated only as a security for money spent by the plaintiff to the first defendant and her husband. Since the said deed was not intended to be acted upon by the plaintiff right from the date of execution of the same, the plaintiff was never accepted the same. Further, the alleged settlement deed has been prepared by the plaintiff himself through his advocate and he had been instrumental in the preparation of the settlement deed. Further the possession of the suit property had never been handed over to the plaintiff and all the property tax and other civic out-goings are being paid by the first defendant and therefore, the above said settlement deed was not acted upon by the plaintiff. Further the possession of the suit property had never been handed over to the plaintiff and all the property tax and other civic out-goings are being paid by the first defendant and therefore, the above said settlement deed was not acted upon by the plaintiff. Apart from the suit property, the first defendant and her husband have no other property or any source of income to provide for other children and nothing has been reserved for the marriage of the then minor daughter. The plaintiff himself has sent various letters stating that he has no interest in the suit property and calling upon the first defendant and her husband to repay the amount and he was ready to execute revocation deed and hence the above said fact also would prove that the settlement deed was not intended to act upon, but it was only treated as a security document. Further the alleged settlement deed is in the nature of the will and it is not absolute gift and hence during the life time of first defendant, any imposed condition or restriction has no signification or binding, curtailing the rights of the first defendant. The first defendant has unfettered rights to deal with the suit property and therefore, the plaintiff has lost his right to claim the suit property. 6. It is further stated in the above said written statement that due to the conduct and indifferent attitude of the plaintiff, the first defendant had revoked the alleged settlement deed by way of a deed of revocation dated 14.9.2001. The above said revocation has been made known to the plaintiff as early as in the year 2001 itself. Legal notice to that effect of cancellation had been sent to the plaintiff through an advocate on 28.2.2003 and it was acknowledged by the plaintiff. Therefore, the suit is barred by limitation since the plaintiff has failed to challenge the revocation deed within a period of three years. 7. It is also averred in the above said written statement that the first defendant and her husband had settled the suit property in favour of the fourth and sixth defendant under two different deeds of settlement dated 11.2.2004. The above said fourth and sixth defendants have entered into a development and construction agreement on 28.2.2006 with the seventh defendant to develop and construct a new residential building after demolition of the then existing building. The above said fourth and sixth defendants have entered into a development and construction agreement on 28.2.2006 with the seventh defendant to develop and construct a new residential building after demolition of the then existing building. There was a dispute between the fourth and sixth defendants on one part and seventh defendant on another part and finally, the dispute was resolved among the parties by which the development agreement was terminated and the power of attorney given in favour of the seventh defendant was revoked and hence, the seventh defendant had joined hands with the plaintiff. Further the plaintiff had illegally sold 1/4th undivided share in the suit property to one Mr. K. Krishna Prasad Bhut by a registered sale deed dated 28.8.2008. The above said sale deed is a sham and nominal transaction and he is not a bona fide purchaser and the sale transaction is null and void ab initio and hence not binding on the defendants 1 and 6. Further on the date of execution of the sale deed, there exist a new building, the plaintiff has no right or title over the same. The fourth and sixth defendants being the owners of the suit property in respect of their portions as settled to them as per settlement deed dated 11.2.2004, but the fourth defendant is not interested in the property and not willing to accept the settlement and hence, the first defendant had revoked the settlement deed in favour of the fourth defendant by a deed of revocation of settlement dated 16.9.2009 and the above said portion now vested with the first defendant as absolute owner. Therefore, the plaintiff has no manner or right over the suit property. 8. Further, it is averred in the written statement that the first defendant along with her husband had already filed a suit in O.S. No.7311 of 2008 before the 1st Assistant City Civil Court, Madras for injunction and seeking to declare the above said sale deed dated 20.8.2008 executed by the plaintiff in favour of Krishna Prasad Bhutt as null and void and it is pending. The plaintiff has now filed the present false and vexatious suit suppressing the pendency of the above said suit and on that ground alone, the present suit is liable to be dismissed. The plaintiff has now filed the present false and vexatious suit suppressing the pendency of the above said suit and on that ground alone, the present suit is liable to be dismissed. Further the above said Krishna Prasad Bhutt is a proper and necessary party to the suit and therefore, the suit is also liable to be dismissed for non-joinder of necessary and proper party. The physical features of the suit property has been drastically changed and the suit property not exists as described by the plaintiff. But the plaintiff wants to grab the improved property by abuse of process of law and wants to enrich unjust claim. Therefore, prayed for dismissal of the suit with exemplary costs. 9. The fourth defendant filed a written statement wherein, it is stated that the plaintiff is his brother and admitted the above said settlement deed executed by his parents in favour of the plaintiff. According to this defendant, O.S.No.7311 of 2008 was filed by the parents of the plaintiff for permanent injunction not to disturb their possession, contending that they have revoked the settlement deed executed by them in favour of the plaintiff and then executed two settlement deeds in favour of this defendant and his sister, sixth defendant vide document No. 724/2004 and 725/2004 and hence, they are the owners of the property. It is further stated that the Court has to decide whether the revocation of the settlement deed is valid or not and the settlement deed executed in favour of this defendant and his sister is not valid or not. 10. The seventh defendant filed separate written statement, wherein, it is stated that the plaintiff filed the suit against his mother and others and this defendant being a building contractor and promoter, he is not necessary party. After entering into the agreement, due to disputes, he is unable to complete the construction work and further the first defendant and her husband filed a suit in O.S. No. 7311 of 2008 against the plaintiff for the relief of permanent injunction and it is pending. According to this defendant, whoever is the owner of the property, they should permit this defendant to complete the work and sell the flats according to the joint development agreement otherwise, this defendant will be put to irreparable loss. 11. According to this defendant, whoever is the owner of the property, they should permit this defendant to complete the work and sell the flats according to the joint development agreement otherwise, this defendant will be put to irreparable loss. 11. Based on the above said pleadings stated in the plaint and written statements, the following issues are framed for determination. (i) Whether the alleged settlement deed executed on 31.7.1986 by first defendant and her husband in favour of the plaintiff is a valid document? (ii) Whether the above said settlement dated 31.7.1986 has been obtained as a security document and whether it is not acted upon as alleged by the first and sixth defendants? (iii) Whether the cancellation of settlement deed dated 14.12.2001 is valid in law? (iv) Whether the suit is barred by limitation? (v) Whether the suit is liable to be dismissed for non-joinder of necessary parties, i.e. subsequent purchaser, namely, Mr. Krishna Prasad Bhutt? (vi) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? (vii) To what relief if any, the plaintiff is entitled to? 12. On the side of the plaintiff, the plaintiff alone has deposed as PW.1 and marked 10 documents as Exs. P1 to P10. On the side of the defendants, first defendant alone has deposed as DW.1 and marked 7 documents as Exs. D1 to D7 during the cross examination of PW.1. 13. Heard learned counsels appearing for the plaintiff and the contesting defendants. Perused the oral and documentary evidence adduced on either side. 14. Issue Nos.1 and 2 Admittedly, the first defendant is the wife of late R.N. Hanumantha Rao. The plaintiff, 4th defendant are sons and 3rd, 5th and 6th defendants are daughters through the first defendant and 8th defendant is the son of the above said R.N. Hanumantha Rao through his second wife. The 7th defendant impleaded in the suit on the ground that he entered into an agreement for construction with the 4th and 6th defendants. Therefore, there is no dispute in the relationship between the parties. It is also admitted that the plaintiff is the elder son of the first defendant and Late R.N. Hanumantha Rao. The 7th defendant impleaded in the suit on the ground that he entered into an agreement for construction with the 4th and 6th defendants. Therefore, there is no dispute in the relationship between the parties. It is also admitted that the plaintiff is the elder son of the first defendant and Late R.N. Hanumantha Rao. It is also not in dispute that the suit property was originally belonged to Late R.N. Hanumantha Rao and he had executed a registered settlement deed dated 21.8.1980 in favour of his wife, namely, first defendant in respect of the suit property along with other portion. Further, the first defendant sold a portion of the property measuring about 2796 Sq.ft. to third party, namely, one Rajendran under various sale deeds and retaining the remaining portion measuring about 2004 sq.ft., namely the suit property. Except the suit property, no other property is available for the first defendant. All the above said facts are not disputed. 15. In this suit, the plaintiff claims title over the suit property by virtue of the alleged registered settlement deed dated 31.7.1986 which is marked as Ex.P1 alleged to have been executed in favour of the plaintiff by the first defendant and also her husband Late R.N. Hanumantha Rao. 16. The learned counsel appearing for the plaintiff would submit that both the parents of the plaintiff, namely, the first defendant and her husband have executed a registered settlement deed in favour of the plaintiff on 31.7.1986 and in the above said settlement deed, the right of possession and also right to collect rental income alone was retained by the first defendant and her husband during their life time, but all other rights, such as power to alienate, transfer, mortgage, etc. were given to the plaintiff and therefore, as per the above said settlement deed, the plaintiff is entitled to the suit property. It is further contended that the above said settlement deed is not a conditional settlement and the parents of the plaintiff, namely, the first defendant and her husband have no right to cancel the above said settlement and therefore, the alleged cancellation of the settlement deed and subsequent deeds executed by them are not valid in law. 17. The contesting defendants have not admitted in the written statement or at the time of evidence that the above said alleged settlement deed dated 31.7.1986 is true and valid document. 17. The contesting defendants have not admitted in the written statement or at the time of evidence that the above said alleged settlement deed dated 31.7.1986 is true and valid document. Per contra, on the side of the defendants, have clearly stated in the written statement and also in the evidence that the above said settlement was executed only as a security for money spent by the plaintiff to the first defendant and her husband and above said deed is not intended to act upon and the plaintiff himself prepared the alleged settlement deed through his advocate. Further, the plaintiff has not accepted the settlement deed and the suit property had never been handed over to the plaintiff and the alleged settlement deed is in the nature of the will and it is not absolute gift and therefore, the plaintiff is not entitled to any right over the suit property on basis of the said settlement deed. 18. The learned counsel appearing for the defendants also submitted that the plaintiff was in a fiduciary relationship with the first defendant and her husband and he was in the dominating position and in such circumstances, the first defendant and her husband were misled by the plaintiff’s words and he obtained the above said settlement as a security for the amount spent by the plaintiff and also the above said deed was not acted upon. 19. Admittedly, the plaintiff has filed the suit based on the alleged settlement deed Ex.P1 dated 31.7.1986. In the said settlement deed, the relevant clauses are extracted as under: Clause 1: That in consideration of natural love and affection of the Settlors towards the Settlee and in consideration of the pious obligation that the Settlee has been showing towards the Settlors who is none else than their own son, the first and second Settlors do hereby settle, transfer and assign unto and to the use of the Settlee the schedule mentioned property with all powers of alienation, transfer and mortgage, free of encumbrance forever. Clause 2: The first Settlor and the second Settlors shall during their natural life time be entitled to the rental income and usufructs from the schedule mentioned property and shall also enjoy the schedule mentioned property during their life time but without the power of alienation and mortgage. Clause 2: The first Settlor and the second Settlors shall during their natural life time be entitled to the rental income and usufructs from the schedule mentioned property and shall also enjoy the schedule mentioned property during their life time but without the power of alienation and mortgage. Clause 3: After the life time of the Second Settlor and the First Settlor, the Settlee or his heirs or legal representatives be entitled to the absolute possessions and enjoyment of all the properties, described in the schedule hereunder. Clause 4: The first and the second Settlor shall during their life time pay all Corporation, Municipal and Revenue dues and shall also maintain the building and property more fully described in the schedule hereunder. Clause 5: The Settlors further declare besides the Settlee they have one son through the first wife of the second Settlor and one son of the second Settlor and four daughters including a minor daughter to be married. The Settlors have considerably spent on all the above said sons and daughters and also have provided for marriage of the minor daughter and are therefore, desirous of vesting the schedule property on the Settlee. Clause 6: The Settlors do hereby assure the Settlee that other than the first Settlor herein no one else has any claim, right title or interest over the settled property and the second Settlor herein has been added as party to this deed for giving better assurances to the Settlee and as abundant caution.” 20. The relevant provisions regarding the settlement deed (i.e.) gift and transfer of property by way of gift, are Sections 122 and 123 of the Transfer of property Act, which reads as under: Section 122. “Gift” defined-“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.” “Section 123. Transfer how effected.- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at atleast two witnesses. If the donee dies before acceptance, the gift is void.” “Section 123. Transfer how effected.- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at atleast two witnesses. For the purpose of making a gift of Moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. 21. In the instant case, admittedly, the plaintiff has not produced the alleged original gift deed dated 31.7.1986 along with plaint or at the time of oral evidence. The plaintiff has not stated whether the original settlement deed was handed over to the plaintiff by the first defendant or by her husband. Therefore, it is not the case of the plaintiff that the original settlement deed was handed over to the plaintiff by the settlors. Further, the plaintiff has nowhere stated in the pleadings or at the time of evidence that plaintiff accepted the alleged settlement deed Ex.P1. Therefore, the plaintiff has not proved that the alleged settlement deed executed by the first defendant and her husband was accepted by the plaintiff and on that ground alone, the above said alleged settlement deed is not valid as per the provisions, namely, Sections 122 and 123 of the Transfer of Property Act. In this regard, in support of his contentions, the learned counsel appearing for the contesting defendants, has relied on the following decisions, viz., (a) AIR (35) 1948 Patna 130 (Ram Chander Prasad and others versus Sital Prasad and others) “15. Besides, the learned Courts below have misdirected themselves in disposing of the points raised, namely, that the deed of gift was executed under undue influence. It has been found as a fact by both the Courts below that Sital was in illicit connection with the donor’s only daughter and only issue then living, and, in view of this connection, he had given up residing in his own house and was putting up with Mathura and his daughter. The daughter under the circumstances and, for the matter of fact that, her paramour Sital must be held to have been in a position to dominate his will. The daughter under the circumstances and, for the matter of fact that, her paramour Sital must be held to have been in a position to dominate his will. Furthermore, the giving away of the entire property in favour of Sital ignoring his daughter and the daughter’s daughter makes the transaction unconscionable. These two circumstances conjointly make out a presumption that this document must be held prima facie to have been brought about under undue influence. The plaintiff has done nothing, according to the findings of the Courts below, to dispel this presumption. “16. With regard to acceptance of the gift by Sital, evidenced as it is by his possession of the deed of gift can also be said not to have been satisfactorily disposed of by the learned Courts below. The acceptance is to be inferred, not from his present possession of the deed, but from the fact of the deed having been handed over to him by the donor and his having accepted the same in token of the acceptance of the gift at the relevant time and this is the fact which is relevant for the purpose.” (b) (1997) 2 SCC 255 (Naramadaben Mangalal Thacker versus Pranjivandas Maganlal Thakker and Others) “It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is: whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, It was a conditional gift. There is nor recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive.” (c) AIR 2001 Madras 392 (R.Jamuna Bai versus M.A.Anusuya and others) “Unless there is acceptance there can be no gift. In the judgment relied on by the learned counsel for the appellant in “R.Kumarasamy Gounder versus V.Ezhumalai Kounder”, there is a reference to the decision reported in venkatasubbamna v. Narayanaswami, AIR 1954 Mad. 215 . In the judgment relied on by the learned counsel for the appellant in “R.Kumarasamy Gounder versus V.Ezhumalai Kounder”, there is a reference to the decision reported in venkatasubbamna v. Narayanaswami, AIR 1954 Mad. 215 . “If there is acceptance of the gift after execution of the deed, even though the registration was postponed to a later date, the gift would become irrevocable. The fact that the deed was executed and registered would not make it irrevocable, if in fact there was no acceptance by the donee, either before registration but after execution or even after registration. What the law requires is acceptance of the gift after its execution though the deed may not be registered. Anterior negotiations or talks about the transfer of property by way of gift would not amount to acceptance of the transfer of the property by gift. Acceptance may be implied but the facts relied on to draw an inference of acceptance must be acts of positive conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence, such as standing by when the deed was executed or was registered.” This shows that mere standing by when the deed was executed or registered will not be sufficient to prove acceptance. It is true as pointed out by the learned counsel for the appellant that it was extremely probable that Arunachalam was standing beside his father Varadaiya Chetty when Ex-A1 was registered. But that alone will not amount to acceptance. The learned counsel for appellant submitted that the title deeds were with the appellant, so this should prove delivery and acceptance. Even regarding the title deeds in the plaint the appellant had averred that Varadaiya Chetty had insisted and prevailed upon the plaintiff to give the documents of title relating to the suit property. From this the learned counsel wanted to draw the conclusion that custody of the title deed would show acceptance. However, in the evidence she has stated that : IMAGE Therefore, even with regard to custody of title deeds the evidence and the pleadings are very unsatisfactory. But it must be remembered that it is Arunachalam who ought to have accepted the settlement deed for the settlement deed to come into effect. On the date of the settlement deed Ajit Kumar’s right was still depending upon Arunachalam not having any natural children of his own. But it must be remembered that it is Arunachalam who ought to have accepted the settlement deed for the settlement deed to come into effect. On the date of the settlement deed Ajit Kumar’s right was still depending upon Arunachalam not having any natural children of his own. If a son or daughter had been born to Arunachalam, then the clause in the settlement in favour of the Ajit Kumar would have no effect. Therefore, what is crucial in this case is acceptance by Arunachalam for the gift deed to come into effect. There is not an iota of evidence to show that Arunachalam had accepted the gift. In the absence or pleadings and other evidence I do not think this Court sitting in second appeal can draw inference merely from the fact that Arunachalam must have stood by at the time of the registration of Ex-A1 and arrive at the conclusion that the deed was accepted.” 22. It is clear from the law laid down in the above said decisions that if any person claims title on the basis of settlement deed, he should prove not only the settlement was duly executed and registered, but also prove that the said settlement deed was accepted by the settlee. If settlee not pleaded or not proved the above said fact of acceptance acceptance of gift, then the settlee is not entitled to claim any right under the settlement deed. 23. In the instant case, as already discussed, the plaintiff who claims title under Ex.P1 settlement deed, has not produced the original settlement deed, but also not pleaded in the plaint or not adduced evidence at the time of oral evidence that the above said settlement deed was accepted by him. Therefore, even for argument sake, taken as Ex.P1 was executed by the settlors, namely, the first defendant and her husband is true, the plaintiff is not entitled to claim any right under the said document since the plaintiff not proved the acceptance of the gift and therefore, the plaintiff is not entitled to any right under Ex.P1 settlement as rightly contended by the learned counsel for the contesting defendants. 24. 24. The learned counsel appearing for the plaintiff mainly submitted that Ex.P1 registered settlement deed was validly executed and attested by the witnesses and it was not specifically denied by the defendants and no reservation of power of revocation was mentioned in the settlement deed by the settlors and therefore, it is irrevocable document and absolute document, and hence, the plaintiff is entitled to the suit property. To substantiate his contentions, the learned counsel appearing for the plaintiff relied on several decisions, viz., (a) (2002) 3 MLJ 506 (Perumal versus Rajamanickam and another), wherein, this court has held as under in Para 10. “10. It is settled law that when a gift of immovable property has been accepted by the donees and they are in possession of the property the fact that after making the gift the donors feels that it was a folly or imprudence or want of fore sight on their part to have executed the deed of gift will not clothe them with the power of revocation of the gift. A gift cannot be revoked by the mere will of the donor. A gift once made cannot be capriciously recalled by the donor for a transfer by gift is as complete and binding on the parties when once completed, as any other form of transfer, the donor cannot set aside the gift once made on the plea that he had made a mistake.” (b) (2007) 3 MLJ 845 (Arukkani (died) and others versus Subramaniam), wherein, this Court has held as under in Para 6. “6. It is seen from the records that Exhibit A-1 settlement deed executed by Palanipandithar in favour of the plaintiff on 31.8.1970 is a registered settlement deed and it does not contain any clause enabling the settler to revoke the same. It is also seen that on the date of settlement, the settler had given possession of the property to the plaintiff, which has been found by both the Courts below.” (c) (2008) 1 MLJ 227 (N.Subramanian versus Thanjiammal and another), this Court has held as under in Para 20. “20. As stated above, the above said recitals in the cancellation deed have been accepted by Thanjiammal as true. “20. As stated above, the above said recitals in the cancellation deed have been accepted by Thanjiammal as true. A close reading of the above said recitals makes it abundantly clear that only because Thanjiammal came to know that she has no absolute right over the property settled by her in favour of Pachiammal but yet she had executed the settlement deed in respect of a property over which she had no right she had executed the cancellation deed cancelling the settlement deed dated 12.07.1990. Thus it is clear that Thanjiammal was fully aware that she was executing the settlement deed. The reason for cancellation as stated in the cancellation deed is that she had no right over the property. The Settlement deed has not been cancelled for the reason that the settlement deed was obtained from her by Pachiammal by exercising undue influence, coercion and fraud. Even in her testimony Thanjiammal has not stated that undue influence, coercion or fraud was exercised on her. Kannan - the attestor of the settlement deed who has been examined as a witness has stated that the contents of the settlement deed were read over to Thanjiammal and only after knowing the contents of the document she had put her thumb impressions. In her evidence Thanjiammal has categorically stated that there is no enmity between her and the attestor Kannan and their relationship is smooth and therefore there is absolutely no reason to disbelieve the testimony of Kannan. 25. Per contra, the learned counsel appearing for the defendants has contended that the settlors, namely, the first defendant and her husband are aged persons. As the plaintiff is their eldest son and he posed as if a responsible son to them and believing his false and pretended affection towards them, they were misled by the plaintiff’s pseudo affection and the plaintiff had betrayed them by creating the alleged settlement deed by playing fraud upon the parents. Therefore, the said settlement deed prepared without the parents’ consent and knowledge and also without allowing them to read the contents of the said deed. Therefore, the said settlement deed prepared without the parents’ consent and knowledge and also without allowing them to read the contents of the said deed. Further, the plaintiff compelled them to sign the document stating that he had given various amounts on various dates and that he required the execution of the said deed as a security and hence the first defendant and her husband settled the suit property in favour of the plaintiff only as a security for the money spent by the plaintiff for them and there was no intention to act upon. Further, the plaintiff was in a fiduciary relationship with the settlors and he was dominating capacity at the time of execution of the settlement deed and therefore, due to fraud, undue influence and mis-representation, the above said document was obtained by plaintiff. The learned counsel for the defendents further submitted that in the above circumstances, the burden of proof only lies on the plaintiff, but he fails to prove the same. Therefore, the plaintiff is not entitled to any relief. 26. To substantiate the above said contentions, the learned counsel appearing for the contesting defendants relied upon the following decisions, viz., (a) AIR 1920 PC 65 (Poosathurai Versus Kannappa Chettiar), wherein, it has been held as under: “And where the relation of influence, as above set forth, has been established, and the second thing is also made clear, viz., that the bargain is with the “influencer” and in itself unconscionable: then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practiced so as to bring about the transaction, but that the granter of the deed was scrupulously kept separately advised in the independence of a free agent.” (b) AIR 1929 PC 3 (Inche Noriah binte Mohamed Tahir versus Shaik Allie bin omar bin Abdullah Bahashuan), wherein, it has been held as under: “the decision in each of these cases seems to their Lordships to be entirely consistent with the principle of law as laid down in Allcard v. Skinner ((1888) 36 Ch.D.145). But their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted; nor are they prepared to affirm that independent legal advice, when given, does not rebut the presumption, unless it be shown that the advice was taken. It is necessary for the donee to prove that the gift was the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption.” (c) AIR 1937 Cal.492 (Abdur Rauff Versus Mt.Aymona Bibi), wherin, it has been held as under: “(1887) 36 Ch D 145 at p. 181. As their Lordships of the Judicial Committee of the Privy Council have observed, the Court, in dealing with cases of undue influence, has to consider four different questions connected with each other: (1) whether a transaction is a righteous transaction i.e. whether it is a thing which a right minded person might be expected to do; (2) whether it was improvident, that is to say, whether it shows so much improvidence as to suggest the idea that the donor was not master of himself and not in a state of mind to weigh what he was doing; (3) whether it was a matter which required legal advice; and (4) whether the intension of making the gift originated with the donor”. (d) AIR 1937 Oudh 87 (B.Raja Mohan Manucha and others Versus B.Nisar Ahmad Khan), wherein, it has been held as under: “Under Section 111, Evidence Act, whenever the good faith of a transaction between persons, one of whom stands to the other in a position of active confidence, is in question, There is a presumption against the deed and the burden of proving good faith is on the persons who hold that position of active confidence; but under S.16 (3), Contract Act, the burden of proof is thrown on the person who is in a dominating position only when the transaction appears on the face of it, or on the evidence adduced, to be unconscionable.” (e) (2004) 9 SCC 468 (Krishna Mohan Kul alias Nani Versus Pratima Maity and others), wherein the Hon’ble Supreme Court has held in para 12 as under: “12. ….When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.” (f) (2009) 1 SCC 354 (K.Laxmanan versus Thekkayil Padmini and Others), wherein the Hon’ble Supreme Court has held in Para 28 as under: “28. It is however established in the present case that the issue of validity of the execution of both the Deed of Gift and Deed of Will was taken up by the respondent/plaintiff and specifically denied in the affidavits filed in respect of the injunction applications. The parties have also gone to trial knowing fully well that execution of both these documents is under challenge. Parties knowing fully the aforesaid factual position led their evidence also to establish the legality and validity of both the documents. In that view of the matter, it cannot be said that the said document should be deemed to be admitted by the plaintiff as no replication was filed by the plaintiff.” (g) (2013) 2 MLJ 102 (P. Sivabushanam and another versus E. Sivamani and another) “15. When there are mysterious circumstances surrounding the execution of settlement deed and when the executants himself was never allowed to realize what he was doing then the so called settlement deed is void and this view is supported by the decision reported in AIR 1970 SC 1367 : (1970) 3 SCC 159 (Lakshmi Amma and Anr. V. Talengalanarayana Bhatta and Anr.) wherein it has been held as follows: “Family- undue influence – whether deed of settlement was executed in circumstances which rendered it invalid and void – deed of settlement was unnatural and unconscionable document – appellant was person of weak mind and was incapable of making his own decisions and conducting his affair – no draft was prepared With approval or under direction of appellant – no valid reason given why testator should have given everything to respondent and deprived himself of right to deal with property as owner during his life time – held, execution of document was not genuine.” 27. The learned counsel appearing for the contesting defendants submitted that the decisions relied on by the plaintiff not applicable to the facts of the present case since in the above said cases, the original settlement deeds were produced and proved acceptance of the gift deeds and also proved the possession based on the said gift deeds and in such circumstances, the revocation or cancellation of the above said gift deeds/settlements are not valid in law. But in the instant case, the plaintiff has not produced the original settlement deed itself and also contended that Ex.P1 settlement deed was not intended for transfer of the property to the plaintiff and therefore, the said settlement deed is not valid on various grounds, including it is executed for security by using undue influence and misrepresentation by the plaintiff against the settlers, namely, the parents of the plaintiff and therefore, the decisions relied upon by the plaintiff are not applicable to the present case. 28. Per contra, the learned counsel appearing for the plaintiff has submitted that since the registered settlement deed was executed in favour of the plaintiff and the executors have no right to revoke the said deed. Further in the instant case, the defendants have not pleaded or proved that the settlement was obtained by the plaintiff by using undue influence and misrepresentation. Therefore, applying the above said principles laid down in the decisions relied upon by the plaintiff, the settlement deed Ex.P1 is true and valid document. The learned counsel further submitted that the facts in all the decisions relied upon by the defendants would differ and not applicable to the facts of the present case since the said cases, the plea of undue influence, fraud or misrepresentation were pleaded and proved, but in the instant case, the contesting defendants have not specifically pleaded the undue influence, fraud or misrepresentation in the written statement and also nor proved. Therefore, the above said decisions relied upon by the defendants are not helpful to the defendants. 29. with regard to burden of proof, the relevant provisions are Section 16(3) of the Indian Contract Act and Section 111 of the Indian Evidence Act. Section 16(3) of the Indian Contract Act reads as under: “16(3). Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.” Section 111 of the Indian Evidence Act reads as under: “111. Proof of good faith in transactions where one party is in relation of active confidence.- Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.” 30. In the instant case, the main contention of the defendants is that admittedly the plaintiff is elder son of the settlers and from the admission of the plaintiff itself clearly proved that he was dominating in bringing out the transaction and therefore, as per the provisions of Section 16(3) of the Indian Contract Act and Section 111 of the Indian Evidence Act, the plaintiff has to prove that Ex.P1 settlement deed has not been brought into existence on account of domination, but the plaintiff failed to prove the above said fact and therefore, the settlement deed cannot be a valid document. Further, the learned counsel for the contesting defendants pointed out several admissions at the time of oral evidence in this case as well as Ex.D1 which is copy of deposition of the plaintiff in other suit in O.S. No. 7311 of 2001. 31. Perused the oral and documentary evidence adduced on either side. Admittedly, the plaintiff has not produced the alleged original settlement deed executed in his favour by his parents. No reason was given in the plaint or at the time of evidence. The plaintiff also admitted that the above said original settlement deeds were retained by the settlers, namely the parents of the plaintiff. In the plaint or at the time of evidence, the plaintiff has not stated any reasons that the only property available to the parents was given to only son, namely, the plaintiff excluding all other legal heirs. A careful perusal of the entire oral evidence adduced by the plaintiff, namely, PW.1 shows that the above said settlement deed alleged to have been executed by his parents is not true and valid document and also not acted upon and it was executed only as a security for the amount due from the parents of the plaintiff by using undue influence and misrepresentation as contended by the learned counsel for the defendants. 32. In the instant case, the plaintiff alone deposed as PW.1. 32. In the instant case, the plaintiff alone deposed as PW.1. At the time of cross-examination of PW.1, he categorically admitted that he had good relationship with his parents and he supported his father after his retirement. His father had most faith and confidence and affection towards plaintiff. Further, plaintiff’s deposition in another suit in O.S. No. 7311 of 2001 has been marked as Ex.D1. PW.1 has admitted several facts at the time of oral evidence in another suit and also in this suit. PW.1 has clearly admitted in his evidence that Ex.P1 was prepared by his advocate at his instance and he alone paid the advocate charges for preparation of Ex.P1 and he paid stamp duty and registration and other charges. He has further admitted that he alone made his father as a party in Ex.P1 settlement deed as his father was the original owner of the suit property. The plaintiff has further admitted that the plaintiff’s counsel came to Registrar’s office, but he does not remember who was in possession of the original Ex.P1 deed. Plaintiff further admitted that he does not have the original parent deed of the suit property. 33. From the above said oral testimony of PW.1 clearly proved that the plaintiff alone had actively participated in the execution of Ex.P1 settlement deed. Admittedly, the settlers who are the parents of the plaintiff are aged person, the plaintiff is the elder son and there are other sons and daughters. In the above said circumstances, the plaintiff himself has admitted in his evidence that the parents of the plaintiff, namely, the first defendant and her husband at the time of execution of the deed liable to pay the amount of Rs. 23,669.18 to the plaintiff. It is further admitted by the plaintiff in cross-examination that he had written Exs.D2 to D6 letters. A perusal of the said letters, it is proved that the plaintiff himself accepted to execute revocation of settlement deed on condition to repay the above said amount due to the plaintiff with interest at 24% p.a. therefore, from the above said oral evidence of PW.1 before this court also in another suit and Exs. A perusal of the said letters, it is proved that the plaintiff himself accepted to execute revocation of settlement deed on condition to repay the above said amount due to the plaintiff with interest at 24% p.a. therefore, from the above said oral evidence of PW.1 before this court also in another suit and Exs. D2 to D6 letters clearly proved that the settlement deed is not executed voluntarily by the settlers with free mind in favour of the plaintiff, but the plaintiff alone obtained the above said deed by using undue influence and mis-representation as if the above said deed is only a security for the amount as rightly contended by the learned counsel for the plaintiff. Further, DW.1 also has clearly deposed that the above said settlement deed was not executed with an intention to act upon and only for the security and the plaintiff obtained the signatures of the settlers by way of compulsion without allowing them to read the contents of the said deed. For the above said circumstances, on the side of the plaintiff, has not examined any attesting witness to prove the fact that the parents of the plaintiff had executed the above said Ex.P1 settlement deed voluntarily and with free of mind in favour of the plaintiff and not obtained by using any undue influence or misrepresentation. No reason has been stated for non-examination of any witness to prove the said fact. 34. Further, it is stated in Clause 5 of Ex.P1 settlement deed, as if settlers had considerably spent on all the sons and daughters and also had provided for marriage of minor daughter. But the plaintiff has not stated in the plaint or deposed at the time of evidence, that the parents had provided to the children as stated in the deed. Plaintiff himself admitted that the suit property alone belonged to the parents and no other property. Therefore, the averment made in the settlement are not true and incorporated by the plaintiff without knowledge of the parents of the plaintiff as rightly contended by the contesting defendants. Further recitals in Ex.P1 had disclosed that the plaintiff had discharged the mortgage and considering the previous obligation and discharge of mortgage and love and affection, the deed was executed. As per Ex.D4 mortgage loan is of Rs.17,069/-, but value in suit property if Rs.49,000/- as mentioned in Ex.P1. Further recitals in Ex.P1 had disclosed that the plaintiff had discharged the mortgage and considering the previous obligation and discharge of mortgage and love and affection, the deed was executed. As per Ex.D4 mortgage loan is of Rs.17,069/-, but value in suit property if Rs.49,000/- as mentioned in Ex.P1. Therefore, as rightly contended by the learned counsel for the defendants that the settlement deed Ex.P1 is unconscionable bargain. 35. Admittedly, Ex.P1 settlement deed dated 31.7.1986 was revoked by both the parents of the plaintiff, namely, first defendant and her husband by way of deed of revocation dated 14.9.2001. The plaintiff himself had knowledge about the cancellation in the year 2001 itself and further a legal notice was also sent to the plaintiff regarding the revocation even on 28.2.2003 and it was acknowledged by the plaintiff, but the plaintiff has not at all taken any steps to set aside the revocation deed till filing the present suit, i.e. 2009. The above said conduct of the plaintiff also proved that the above said alleged settlement deed is not executed with an intention to acted upon and also not accepted by the plaintiff and therefore, the above document is not valid document as contended by the plaintiff and it has been obtained by the plaintiff and therefore, the above document is not valid document as contended by the plaintiff and it has been obtained by the plaintiff from the first defendant and her husband as a security document by way of undue influence and misrepresentation and it is not acted upon as rightly contended by the learned counsel for the contesting defendants. 36. Learned counsel for plaintiff further submitted that the contesting defendants have not pleaded and raised the question of undue influence in written statement and specific issues also not framed and therefore, the defendants are not entitled to question the settlement deed on the ground of undue influence, misrepresentation etc. in this connection, learned counsel for the contesting defendants submitted that in Para 3 of the written statement, it was specifically mentioned about the existence of undue influence, misrepresentation but the specific words such as undue influence, misrepresentation alone omitted. Therefore, a conjoint reading of entire averments in the written statement, it is clear that the document was obtained by undue influence and misrepresentation. Further, he submitted that need not specific issue raised on question of undue influence, etc. Therefore, a conjoint reading of entire averments in the written statement, it is clear that the document was obtained by undue influence and misrepresentation. Further, he submitted that need not specific issue raised on question of undue influence, etc. To substantiate his contention, he relied upon two decisions reported in 1) 2008 (2) CTC page 433 (Suguna and another Versus Vinod G. Nehemiah and Others), wherein, it is stated in Para 20 and 38 as under: “20. It is no doubt true that there is no specific issue raised on the question of undue influence. However, the reading of the first issue raised as regards whether the settlement deed is true and valid and that whether the plaintiffs were entitled to a declaration that the settlement deed dated 15.12.2000 was illegal, invalid and sham and nominal is wide enough to include such a plea, considering the fact that the entire allegation on the validity of the deed rested on the question of undue influence…..” “38. …… It is also seen that the cash for the purchase of stamp paper for the execution of the settlement deed was also taken only by the first appellant on the cheque issued for a sum of Rs.2,00,000/- and the balance taken out from her own account. A reading of the evidence of the first appellant clearly show that she was placed in a high confidence by Neheniah, in her own words, “I was very confidential and trustworthy.” The above categorical admission in the evidence given by her clearly proves that she was in a fiduciary capacity, as such, the presumption is certainly against her…..” (2) 1969 (2) L.W.600 (Dharman and others versus Marimuthu), wherein, Para 17 reads as under: “17. The fact that the Written Statement did not contain a positive accusation of any undue influence having been played by the plaintiff upon the deceased first defendant cannot be blown out of proportion in the tenth of the very admissions contained in the plaint about certain facts which would go to show beyond doubt if at all, only the dominating position in which the plaintiff was placed viz. the first defendant rather than going to exculpate the plaintiff from the charge of having exercised such undue influence. the first defendant rather than going to exculpate the plaintiff from the charge of having exercised such undue influence. It is not the specific mention of the very word undue influence that really matters but the existence of the relevant facts in the case pleaded and proved that is only relevant and sufficient…..” 37. In the above said decisions, the Hon’ble Supreme Court has laid down principle that need not specific issue raised on the question of undue influence and also need not specifically mentioned the very word ‘undue influence’, but the existence of the relevant facts should be pleaded and proved that is only relevant and sufficient. In the instant case, admittedly, the contesting defendants have not pleaded in the specific words such as ‘undue influence or misrepresentation in the written statement. But a careful reading of Para 3, it is found that the existence of relevant facts of undue influence or misrepresentation as rightly contended by the learned counsel for the contesting defendants. 38. Therefore, the plaintiff failed to prove the settlement deed Ex.P1 is true and valid document, but the contesting defendants have proved that it has been obtained as a security and it is not acted upon and accordingly, answered the first and second issues accordingly, (i.e) in favour of the defendants. 39. Issue No. 3: As already discussed earlier regarding Issue Nos. 1 and 2, it is clearly held that Ex.P1 settlement deed dated 31.7.1986 is not true and valid document. In the above said circumstances, the above said Ex.P1 settlement deed need not be cancelled by the plaintiff. Anyhow, the plaintiff was alleged to have cancelled the settlement deed as per cancellation of Ex.P1 on 14.12.2001 only on the ground of cancellation of the above said Ex.P1 settlement deed by the way of Ex.P2 cancellation deed cannot validate Ex.P1 settlement deed. Therefore, there is no effect the cancellation of Ex.P1 settlement deed and accordingly, answered this issue accordingly. 40. Therefore, there is no effect the cancellation of Ex.P1 settlement deed and accordingly, answered this issue accordingly. 40. Issue No. 4: The learned counsel appearing for the contesting defendants would submit that Ex.P1 settlement deed was cancelled on 14.12.2001 by way of Ex.P2 deed and the above said fact was known to the plaintiff in the year 2001 itself and further, the contesting defendants also sent a legal notice to the plaintiff on 28.2.2003 under Ex.P6 and the plaintiff also sent a reply on 18.3.2003 under Ex.P8, but the suit was filed only after three years, namely, in the year 2009 and therefore, the suit is barred by limitation. Admittedly, the plaintiff has claimed right over the suit property based on Ex.P1 settlement deed executed by the first defendant and her husband. In the above said settlement deed itself, it is stated that the parents of the plaintiff are entitled to enjoy the suit property and also right of collecting rents from the tenants till their life time and also they have to pay taxes for the above said property. In Ex. P2 cancellation deed, plaintiff is a party to the document. In the above said circumstances, the plaintiff has filed this suit for declaration in respect of the suit property on the basis of Ex.P1 settlement deed. Therefore, the suit cannot be dismissed on the ground that the suit is barred by limitation as contended by the learned counsel for the contesting defendants. Accordingly, this issue is answered in favour of the plaintiff. 41. Issue No. 5: Admittedly, the suit property described in the plaint as if the plaintiff is entitled to 2004 sq. ft. together with partly built up superstructures measuring about 2600 sq.ft. But in the plaint averments, particularly in Para 1, it is mentioned that as if only in respect of 2004 sq.ft. alone, the settlement deed was executed in favour of the plaintiff and he is entitled to that extent only. But in the proof affidavit, it is stated that the plaintiff is entitled to 2004 sq. ft. As per the Ex.P1 settlement deed, it is stated as if the plaintiff is entitled to 2004 sq.ft. along with 600 sq.ft. together with built up superstructures and therefore, the plaintiff has not correctly stated the description of the suit property in the plaint and in the evidence. ft. As per the Ex.P1 settlement deed, it is stated as if the plaintiff is entitled to 2004 sq.ft. along with 600 sq.ft. together with built up superstructures and therefore, the plaintiff has not correctly stated the description of the suit property in the plaint and in the evidence. The plaintiff has admitted at the time of evidence that the plaintiff sold undivided 1/4th share of the suit property in favour of one Mr. Krishnaprasad Bhutt under a registered sale deed dated 20.8.2008 and the copy of the above said sale deed also marked through the plaintiff as Ex.D7. Therefore, the plaintiff himself admitted that undivided 1/4th share has been sold to one Mr. Krishnaprasad Bhutt. But the above said fact was not stated in the plaint, but omitted at the time of evidence and therefore, as per evidence of the plaintiff itself revealed that undivided 1/4th share was already sold and the plaintiff is not entitled to the suit property. In the above said circumstances, the suit filed for declaration of entire property is not maintainable and further, the above said purchaser, namely, Mr. Krishnaprasad Bhutt has not been impleaded as party in the suit. Therefore, the suit is not maintainable for non-joinder of the above said Mr. Krishnaprasad Bhutt as necessary party to the suit. 42. Issue No.6: Admittedly, the plaintiff filed this suit for declaration and injunction against all defendants including first defendant in respect of entire suit property. As already discussed in issue Nos.1 and 2, the plaintiff has miserably failed to prove the alleged Ex.P1 settlement deed and also held that it is not valid document. Further, as discussed in Issue No.3, the plaintiff himself admitted that during pendency of the suit, undivided 1/4th share was sold to one Krishnaprasad Bhutt, but he is not impleaded as party in this suit. Further, the plaintiff himself admitted that seventh defendant modified and newly constructed the building in the suit property but not amended the plaint and not seeking any relief regarding newly constructed building. According to plaintiff, the first defendant who is the mother of the plaintiff is entitled to be in possession of the suit property till her life time, but his suit is filed for injunction against all defendants including first defendant. According to plaintiff, the first defendant who is the mother of the plaintiff is entitled to be in possession of the suit property till her life time, but his suit is filed for injunction against all defendants including first defendant. Therefore, for all the above said reasons, the plaintiff is not entitled to any relief as pleaded in the suit and answered this Issue accordingly. 44. Issue No.7: In view of the finding regarding the above said Issues, the plaintiff is not entitled to any reliefs and therefore, the suit is to be dismissed and answered this issue accordingly. In the result, the suit is dismissed, considering the relationship between the parties, no costs.