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2013 DIGILAW 2736 (MAD)

A. Shanmugam v. D. Kanchana

2013-07-30

G.RAJASURIA

body2013
JUDGMENT :- 1. This second appeal is focussed by the defendants, inveighing the judgment and decree dated 27.09.2012 passed by the learned II Additional Subordinate Judge, Salem in A.S.No.33 of 2012 in confirming the judgment and decree dated 16.11.2011 passed by the learned I Additional District Munsif, Salem in O.S.No.620 of 2010. 2. The parties, for thesake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus: a) The plaintiff filed the suit seeking the following reliefs: to pass a decree in favour of the plaintiff and as against the defendants: a) to restrain the defendants and their men by means of permanent injunction from their in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property. b) to declare the cancellation gift settlement deed dated 15.02.2010 as null and void. c) to declare the gift settlement deed dated 08.06.2010 as null and void and for costs. (extracted as such) b) The gist and kernel of the averments in the plaint would be to the effect that the plaintiff's husband is Dhandapani. D1 and D2 are the parents of Dhandapani. D3 is the sister of Dhandapani. D1 and D2 executed the settlement deed dated 31.10.2003 in respect of the suit property in favour of Dhandapani, who in turn, executed the settlement deed in favour of his wife-Kanchana, the plaintiff. Subsequently, it so happened that cancellation deed was executed by D1 and D2 on 15.02.2010 cancelling the earlier settlement deed dated 31.10.2003 executed by them in favour of their son Dhandapani, and D1 and D2 also executed the gift settlement deed dated 08.06.2010 in respect of D3. Hence the suit so as to safe guard the right of the plaintiff. c) Per contra, the defendants filed the written statement, the warp and woof of the same would run thus: The earlier settlement deed of the year 2008 executed by D1 and D2 in favour of Dhandapani was a sham and nominal one and it was never acted upon. Wherefore, D1 and D2 cancelled the settlement deed and executed a fresh gift settlement deed in favour of D3. The plaintiff is not in possession and enjoyment of the suit property. Wherefore, D1 and D2 cancelled the settlement deed and executed a fresh gift settlement deed in favour of D3. The plaintiff is not in possession and enjoyment of the suit property. Accordingly, they prayed for the dismissal of the suit. d) Issues were set down for trial, during which, the plaintiff examined herself as PW1 along with P.Ws.2 and 3 and marked Exs.A1 to A16 and on the defendant's side, D1 examined himself as DW1 and marked Exs.B1 to B21. e) Ultimately, the trial court decreed the suit; as against which, the appeal was filed for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. f) Challenging and impugning the judgments and decrees of both the fora below, the defendants have preferred this second appeal on various grounds and also suggesting the following substantial questions of law: (i) Whether the judgment and decree of the lower appellate court confirming the judgment and decree of the trial court is sustainable when the court has not analyzed, discussed and rendered any findings independently in terms of Order 41 Rule 33 of CPC? (ii) When the settlement deed under Ex.A2 is not acted upon whether the courts below are right in decreeing the suit as prayed for? (iii) Whether the suit is maintainable for non-joinder of necessary parties? (iv) Whether the plaintiff/respondent is entitled to get a decree without a prayer to declare the cancellation deed dated 06.08.2009 is valid? (v) W hen the possession under Ex.A2 is not handed over to the settlee and there is no give and take of the property whether the courts below are right in decreeing the suit? (vi) When the respondent/plaintiff failed to prove that the appellants 1 and 2 are residing in the suit property with her permission, whether the courts below are right in decreeing the suit on the ground that Ex.A2 is acted upon and valid? (extracted as such) 4. Heard the learned counsel for the appellants/defendants. 5. At the outset itself, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 6. (extracted as such) 4. Heard the learned counsel for the appellants/defendants. 5. At the outset itself, I would like to fumigate my mind with the recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]. 6. A mere running of the eye over the aforesaid judgment would connote and denote, exemplify and demonstrate that the second appeal cannot be entertained as a matter of course unless any substantial question of law is involved. 7. The learned counsel for the appellants/defendants would pyramid his argument, which could succinctly and precisely be set out thus: (i) The parents of Dhandapani had right to cancel the earlier settlement deed, which was not acted upon. In such a case, there was no embargo in law for effecting such cancellation deed. Over and above that after cancellation of the same, they effected a settlement deed in favour of D3. (ii) The trial court granted a blanket injunction ignoring the occupation of the defendants in the suit property and such a decree has to be set aside. (iii) The first appellate court also without appreciating the facts, simply dismissed the appeal confirming the judgment and decree of the trial court. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below. 8. At this juncture, I would like to cite the following Full Bench decision of this court reported in 2011(2) CTC 1 – LATIF ESTATE LINE INDIA LTD., REP.BY ITS MANAGING DIRECTOR, MR.HABIB ABDUL LATIF V. 1.HADEEJA AMMAL 2.THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME, CHENNAI-4 AND 3.THE SUB-REGISTRAR, AMBATTUR, CHENNAI, certain excerpts from it would run thus: "59. After giving our anxious consideration on the questions raised in the instance case, we come to the following conclusion: (i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence, such a Deed of Cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of Cancellation even with the consent of the parties. Hence, such a Deed of Cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of Cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a Deed of Cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained wit the transferor. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the civl Court by obtaining a decree of cancellation of Sale Deed on the ground of inter alia of fraud or any other valid reasons." A mere running of the eye over the Full Bench decision of this court would display and demonstrate that D1 and D2 had no authority at all to cancel unilaterally the settlement deed of the year 2008 executed by them in favour of Dhandapani. W hatever might be the grievance they should have approached the court for cancellation and their act of executing such cancellation deed is non-est in the eye of law. 9. Both the courts belowau fait with law and au courant with facts correctly discarded such cancellation and held the subsequent execution of the gift settlement deed in favour of D3 as non-est in the eye of law. 10. 9. Both the courts belowau fait with law and au courant with facts correctly discarded such cancellation and held the subsequent execution of the gift settlement deed in favour of D3 as non-est in the eye of law. 10. I would like to extract here under para No.19 of the trial court's judgment, thus: “TAMIL”(emphasis supplied) A mere running of the above extract would unambiguously and unequivocally would display and demonstrate that in the @ “TAMIL” @ house", D1 and D2 are residing as a permissive occupiers and the injunction granted by the court is subject to that finding only and the injunction order cannot be construed as though with the help of injunction order, the plaintiff would straightaway throw the parents of Dhandapani out of the said @ “TAMIL” @/ 11. Wherefore, the injunction order has to be construed that the defendants should not disturb the plaintiff's peaceful possession and enjoyment over the suit property, subject to D1 and D2's occupation as permissive occupiers under the plaintiff and in such a case, absolutely there is no rhyme or reason on the part of the defendants' in filing this second appeal. 12. In the result, there is no question of law, much less substantial question of law is involved in this second appeal, warranting interference by this court. Accordingly, this second appeal is dismissed. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.