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2014 DIGILAW 1907 (MAD)

G. Arumugham v. M. Rajasekaran

2014-07-03

M.DURAISWAMY

body2014
Judgment : 1. The above Second Appeal arises against the judgment and decree passed in A.S.No.190 of 2011 on the file of the V Additional City Civil Court, Chennai, reversing the judgment and decree in O.S.No.8400 of 2008 on the file of the XII Assistant City Civil Court, Chennai. 2. The plaintiff is the appellant and the respondents were the defendants in the suit. The plaintiff filed the suit in O.S.No.8400 of 2008 to declare the Cancellation Deed dated 04.11.2008 cancelling the Settlement Deed dated 10.05.2008 in favour of the plaintiff as not binding on the plaintiff, to declare the Sale Deed dated 10.11.2008 executed by the defendants 1 to 6 in favour of the seventh defendant as null and void and not binding on the plaintiff and for permanent injunction. 3. The brief case of the plaintiff is as follows: (i) According to the plaintiff, the suit property originally belonged to the first defendant, who purchased the property on 08.08.2001. The same was registered on 24.10.2001 by the Tamil Nadu Slum Clearance Board. The first defendant, out of love and affection, executed a Settlement Deed in favour of the plaintiff on 10.05.2008 and on the same day, the first defendant handed over possession of the property as well as the original documents to the plaintiff. The plaintiff is in possession of the same till date. The defendants 2 to 5 are the daughters of the first defendant and sisters of the plaintiff. The sixth defendant is the grand-son of the first defendant, born through the deceased son of the first defendant and brother of the plaintiff and defendants 2 to 5. The first defendant is an illiterate house wife. All the marriage expenses of the defendants 2 to 5 were met only by the first defendant. The first defendant, under the threat made by the defendants 2 to 5 and against her wishes, had brought about a Cancellation Deed on 04.11.2008 and the same is not binding on the plaintiff. (ii) Subsequent to the Cancellation Deed, the defendants 2 to 6 brought about a Sale Deed on 10.11.2008 in favour of the seventh defendant, who is a Member of the Legislative Assembly. Though the actual value of the property was mentioned as Rs.33,80,000/- in the document, the property was valued at Rs.10,00,000/-. (ii) Subsequent to the Cancellation Deed, the defendants 2 to 6 brought about a Sale Deed on 10.11.2008 in favour of the seventh defendant, who is a Member of the Legislative Assembly. Though the actual value of the property was mentioned as Rs.33,80,000/- in the document, the property was valued at Rs.10,00,000/-. The Sale Deed had been brought about, in collusion with the defendants 2 to 6, with a view to grab the property. No consideration passed on under the Sale Deed dated 10.11.2008. The seventh defendant, after fully knowing about the Settlement Deed in favour of the plaintiff, had intentionally brought the Sale Deed and the same is null and void and cannot bind the plaintiff. After the Sale Deed, the seventh defendant attempted to disturb the possession of the tenants. In these circumstances, the plaintiff filed the suit. 4. The brief case of the first defendant is as follows: (i) According to the defendant, she executed the Settlement Deed dated 10.05.2008 and handed over possession and original documents to the plaintiff. On 10.02.2000, the first defendant executed a Will in favour of the plaintiff with a view to avoid any disputes among the other legal heirs. The Settlement Deed was executed on 10.05.2008 and the daughters were given ample provision during their marriage. The first defendant is not aware of the Cancellation Deed dated 04.11.2008. The first defendant had not executed any Sale Deed on 10.11.2008 in favour of the seventh defendant and did not receive any consideration. There is no necessity to sell the property to the seventh defendant. (ii) The defendants 2 to 6 in collusion with the seventh defendant brought about the Cancellation Deed dated 04.11.2008 and the Sale Deed dated 10.11.2008. The first defendant is an illiterate and was not keeping good health, which was misused by the defendants. The property is worth more than Rs.30,00,000/-, but the Sale Deed was executed for Rs.10,00,000/-, which will show that the document is a fraudulent document. On 25.11.2008, the first defendant had given a complaint to the Police Commissioner about the cheating committed by the seventh defendant. All the original documents were handed over to the plaintiff on 10.05.2008. The first defendant never handed over possession to the seventh defendant nor the original documents to him. In these circumstances, the first defendant prayed to decree the suit. 5. All the original documents were handed over to the plaintiff on 10.05.2008. The first defendant never handed over possession to the seventh defendant nor the original documents to him. In these circumstances, the first defendant prayed to decree the suit. 5. The brief case of the defendants 2 to 5 are as follows: (i) According to the defendants, they were aware of the Settlement Deed dated 10.05.2008 and due to the influence of the sixth defendant, the defendants 2 to 5 were taken to the seventh defendant and the seventh defendant was informed about the execution of the Settlement Deed dated 10.05.2008 in favour of the plaintiff and further, the defendants 2 to 5 were taken by the seventh defendant under the pretext that Settlement Deed is being cancelled as only then the defendants 2 to 5 would get right and subsequently, it was informed that another document is being done for the very same purpose of cancellation. The defendants 2 to 5 are not educated and believed the words of the seventh defendant. No consideration was given to the first defendant. (ii) The seventh defendant under the pretext of getting Power of Attorney took the defendants to the Office and the defendants 6 & 7, from the month of December 2008, threatened the defendants 2 to 5 to vacate the premises. Subsequently, they came to know about the fraudulent sale in favour of the seventh defendant. The defendants 2 to 5 were forced to sign in all the blank papers. In these circumstances, the defendants 2 to 5 also prayed to decree the suit. 6. The brief case of the sixth defendant is as follows: (i) According to the sixth defendant, the plaintiff has left the family long back and leading a separate life. He had no title or possession over the suit property. He had already relinquished his right. A Sale Agreement was entered into on 22.12.2007 between the seventh defendant and the defendants 1 to 6 for the sale of the suit property. The Sale Deed was registered on 10.11.2008. The sixth defendant had already received his consideration amount and therefore, the sale is genuine and proper. The seventh defendant is in possession of the property from the date of the sale. The Sale Deed was registered on 10.11.2008. The sixth defendant had already received his consideration amount and therefore, the sale is genuine and proper. The seventh defendant is in possession of the property from the date of the sale. (ii) The Settlement Deed was obtained by the plaintiff by fraud and coercion, taking advantage of the fact that the first defendant is an illiterate person. After knowing the same, the first defendant cancelled the Settlement Deed on 04.11.2008. The sale regarding Plot No.344 in favour of Anandhi is null and void. In these circumstances, the sixth defendant prayed for dismissal of the suit. 7. The brief case of the seventh defendant is as follows: (i) The seventh defendant entered into an Agreement of Sale to purchase the Plot Nos.344 & 345 on 22.12.2007. The Plot Nos.344 & 345 were assigned by Lease-cum-Sale Agreement to one Ganapathy in the year 1982, who was working as Constable in the Tamil Nadu Police Department, by the Slum Clearance Board. After his death, the Plot No.345 was sold to his wife, who is the first defendant in the suit. The Plot No.344 was held to be registered later in favour of Govindammal. The seventh defendant purchased the properties from the defendants 1 to 6 for a valuable consideration. Since then he is in possession of the property. He is also having the original documents with him. The seventh defendant has not misused his power and official post. He never threatened the plaintiff or his men. (ii) The Settlement Deed was obtained fraudulently by the plaintiff from the first defendant. The first defendant is an illiterate person. With a view to defeat the rights of the seventh defendant, the plaintiff has taken the first defendant and obtained the Sale Deed in his favour from the Slum Clearance Board on 23.10.2008. The Plot No.344 was said to have been sold to Anandhi for no consideration. The said Anandhi is the mother-in-law of the plaintiff's son. The Settlement Deed was not acted upon. The purchase made by the seventh defendant is true and genuine. In these circumstances, the seventh defendant prayed for dismissal of the suit. 8. The Plot No.344 was said to have been sold to Anandhi for no consideration. The said Anandhi is the mother-in-law of the plaintiff's son. The Settlement Deed was not acted upon. The purchase made by the seventh defendant is true and genuine. In these circumstances, the seventh defendant prayed for dismissal of the suit. 8. Before the trial Court, on the side of the plaintiff, he was examined as P.W.1 and 5 documents, Exs.A1 to A5 were marked and on the side of the defendants, the seventh defendant was examined as D.W.1 and 11 documents, Exs.B1 to B11 were marked. 9. The trial Court, after taking into consideration the oral and documentary evidences of both sides, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the seventh defendant preferred an appeal in A.S.No.190 of 2011 and the lower Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. Aggrieved over the judgment and decree of the lower Appellate Court, the plaintiff has filed the above Second Appeal. 10. Heard Mr.S.V.Jayaraman, learned senior counsel appearing on behalf of the appellant and Mr.T.R.Rajagopalan, learned senior counsel appearing on behalf of the first respondent. 11. At the time of admission of the Second Appeal, the following substantial questions of law arose for consideration: (i) Whether Ex.A1 Settlement Deed dated 10.05.2008 purported to have been executed by D1 in favour of the plaintiff could unilaterally be cancelled without the intervention of the Court? (ii) Whether the First Appellate Court was not right in holding that Ex.A1 Settlement Deed was not proved, despite D1 having admitted the execution in the written statement as per Section 17 of the Indian Evidence Act? (iii) Whether the First Appellate Court was right in holding that there was collusion among D1 to D6, so as to defeat the right of D7, ignoring the oral evidence of P.W.1 and D.W.1, but mainly relying upon Ex.B11 the deposition of D2 herein in a different suit in O.S.No.3073 of 2009? (iv) Whether there is any perversity or illegality in the judgment of the First Appellate Court? 12. (iv) Whether there is any perversity or illegality in the judgment of the First Appellate Court? 12. Mr.S.V.Jayaraman, learned senior counsel appearing on behalf of the appellant submitted that the lower Appellate Court ought not to have reversed the judgment and decree of the trial Court, when the plaintiff had derived title under Ex.A1 Settlement Deed dated 10.05.2008 executed by the first defendant and the same was unilaterally cancelled without the intervention of the Court by Ex.A2 Cancellation Deed dated 04.11.2008. The learned senior counsel for the appellant relied upon a judgment of a Full Bench of this Court reported in 2011 (2) CTC 1 [M/s.Latif Estate Line India Ltd., rep by its Managing Director Mr.Habib Abdul Latif Vs. Mrs.Hadeeja Ammal and others] wherein a Full Bench of this Court held that unilateral cancellation of a document is not valid. 13. Countering the submissions made by the learned senior counsel for the appellant, Mr.T.R.Rajagopalan, learned senior counsel for the first respondent submitted that the lower Appellate Court has rightly reversed the judgment and decree of the trial Court and submitted that the execution of the Sale Deed by the defendants 1 to 6 is legally valid and the Cancellation Deed executed by the first defendant, marked as Ex.A2, is also valid under law. 14. In support of his contentions, the learned senior counsel relied upon the following judgments: (i) 2004-2-L.W. 344 [Krishna Mohan Kul @ Nani Charan Kul and another Vs. Pratima Maity and Ors.] wherein the Apex Court held that the onus to prove the validity of the Deed of Settlement was on the defendant when fraud, misrepresentation 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 bonafide. 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. 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. The Apex Court also held that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. (ii) 1996-2-L.W. 600 [Dharman & 5 others Vs. Marimuthu] wherein this Court held that in the case of gift of his entire property in a cryptic document making no mention about the daughters and completely disinheriting the daughters and grand-children and bringing about an unnatural transaction, would clearly establish suspicion for such dispositions. (iii) (2013) 2 MLJ 102 [P.Sivabushanam and another Vs. E.Sivamani and another] wherein this Court held that the Settlement Deed is not revocable especially when the executant did not reserve the right to revoke. But the question of revocation would arise only when the validity of the Settlement Deed is established. Further, this Court held that when the Settlement Deed is invalid, the settlor has a right to execute the Sale Deed. Therefore, the validity of the Revocation Deed does not arise for consideration, as the Settlement Deed itself is not valid. 15. On a careful consideration of the materials available on record, the submissions made by the learned senior counsel on either side and also taking into consideration the judgments relied upon by the learned senior counsel for the first respondent, it could be seen that the suit property was allotted to the first defendant's husband Ganapathy in the year 1982 under Lease-cum-Sale Agreement by the Tamil Nadu Slum Clearance Board. He was working as Constable in the Tamil Nadu Police Department. After his death, the suit property was sold to the first defendant. Thereafter, under Ex.A1 Settlement Deed dated 10.05.2008, the first defendant settled the property in favour of her son, the plaintiff. According to the plaintiff, he was put in possession of the property pursuant to the Settlement Deed and all the original parent documents were handed over to him. 16. According to the plaintiff, the first defendant unilaterally cancelled the Settlement Deed by Ex.A2 Cancellation Deed dated 04.11.2008. According to the plaintiff, he was put in possession of the property pursuant to the Settlement Deed and all the original parent documents were handed over to him. 16. According to the plaintiff, the first defendant unilaterally cancelled the Settlement Deed by Ex.A2 Cancellation Deed dated 04.11.2008. Thereafter, under Ex.A3 Sale Deed dated 10.11.2008, the suit property was sold to the seventh defendant, who was a Member of the Legislative Assembly then. The defendants 2 to 5 are the daughters of the first defendant (i.e.) the sisters of the plaintiff, the sixth defendant is the grand-son of the first defendant through her deceased son. Under Ex.A3 Sale Deed dated 10.11.2008, the defendants 1 to 6 sold the property to the seventh defendant. According to the plaintiff, the first defendant cannot cancel the Settlement Deed unilaterally under Ex.A2 document and since she had already settled the property and put him in possession of the property and also handed over possession of the original documents, she had no right to execute the Sale Deed in favour of the seventh defendant. The plaintiff contended that all the original documents were handed over to him by the first defendant at the time of execution of Ex.A1 Settlement Deed. The defendants 1 to 5, in their written statement, have supported the case of the plaintiff and stated that by threat and coercion, they were made to execute Ex.A2 Cancellation Deed and Ex.A3 Sale Deed in favour of the seventh defendant. 17. Further, the defendants have stated that they did not hand over the original documents to the seventh defendant at the time of execution of Ex.A3 Sale Deed. The first defendant has specifically stated that she had handed over the original documents only to the plaintiff, her son. However, the seventh defendant contended that the defendants 1 to 6 have handed over all the original documents to him at the time of execution of Ex.A3 Sale Agreement. But this fact is found to be false for the reason that though he reserved his right to produce all the original documents at the time of trial before the trial Court, he has not done so. The seventh defendant produced only the certified copies of the documents at the time of trial, which were marked as Exs.B1 & B5. But this fact is found to be false for the reason that though he reserved his right to produce all the original documents at the time of trial before the trial Court, he has not done so. The seventh defendant produced only the certified copies of the documents at the time of trial, which were marked as Exs.B1 & B5. When the first defendant had executed Ex.A1 Settlement Deed in favour of the plaintiff on 10.05.2008 and handed over possession of the property as well as the original documents, it clearly shows that Ex.A1 Settlement Deed was acted upon. 18. That apart, the defendants 1 to 5 did not raise any plea that the document was executed by the first defendant under undue influence, coercion or misrepresentation. The sixth defendant supported the case of the seventh defendant. It is also pertinent to note that in Ex.A3 Sale Deed, though, the value of the property was shown as Rs.33,80,000/-the Sale Consideration was mentioned as Rs.10,00,000/-. The defendants 6 & 7 set up a case that earlier there was an Agreement of Sale dated 22.12.2007 marked as Ex.B8 for the purchase of the suit property. If the Agreement is true and genuine, the proper course open to the seventh defendant is to file a suit for specific performance of the agreement. But in the case on hand, after the execution of Ex.A1 Settlement Deed, he got Ex.A2 Cancellation Deed executed by the first defendant and also got the Sale Deed executed in his favour under Ex.A3 document. After the execution of Ex.A1 Settlement Deed, the first defendant has no right or title over the property. It is not the case of the parties that the first defendant reserved her right to revoke the document. In the absence of any clause to that effect and in the absence of any evidence to establish that the Settlement Deed was executed by undue influence, coercion or misrepresentation, the document cannot be cancelled. 19. Further, the unilateral cancellation of the Settlement Deed by the first defendant under Ex.A2 Cancellation Deed is not valid, in view of the judgment of a Full Bench of this Court reported in 2011 (2) CTC 1 [M/s.Latif Estate Line India Ltd., rep by its Managing Director Mr.Habib Abdul Latif Vs. Mrs.Hadeeja Ammal and others]. 19. Further, the unilateral cancellation of the Settlement Deed by the first defendant under Ex.A2 Cancellation Deed is not valid, in view of the judgment of a Full Bench of this Court reported in 2011 (2) CTC 1 [M/s.Latif Estate Line India Ltd., rep by its Managing Director Mr.Habib Abdul Latif Vs. Mrs.Hadeeja Ammal and others]. When the settlor viz., the first defendant and her daughters viz., defendant 2 to 5 admit the due execution of Ex.A1 Settlement Deed in favour of the plaintiff, the seventh defendant, who had purchased the property, specifically, has no right to say that the Settlement Deed was executed under undue influence, coercion and misrepresentation. So far as the Settlement Deed is concerned, the seventh defendant is a stranger and cannot speak a word against the execution of the document, when he has no right to speak about the same. 20. The ratio laid down by a Full Bench of this Court in the judgment reported in 2011 (2) CTC 1 [M/s.Latif Estate Line India Ltd., rep by its Managing Director Mr.Habib Abdul Latif Vs. Mrs.Hadeeja Ammal and others] squarely applies to the facts and circumstances of the present case. 21. The first defendant having settled the property under Ex.A1 Settlement Deed has no right to cancel the same unilaterally and execute Ex.A3 Sale Deed in favour of the seventh defendant. Therefore, Ex.A2 Cancellation Deed dated 04.11.2008 is not binding on the plaintiff and consequently, Ex.A3 Sale Deed dated 10.11.2008 is a void document and not binding on the plaintiff. The lower Appellate Court, without applying the settled proposition of law, erroneously found that the plaintiff failed to prove Ex.A1 Settlement Deed, therefore, Ex.A2 Cancellation Deed and Ex.A3 Sale Deed are valid, when the settlor herself says that there was no misrepresentation, undue influence or coercion for the execution of Ex.A1 Settlement Deed. It is not known from where the lower Appellate Court got the points for coming to such a conclusion is not known. The lower Appellate Court had gone beyond the pleadings of the defendants 1 to 5 and inserted its own reasoning for getting over Ex.A1 Settlement Deed. The reasoning given by the lower Appellate Court cannot be appreciated. Therefore, the judgment and decree of the lower Appellate Court are liable to be set aside. 22. The lower Appellate Court had gone beyond the pleadings of the defendants 1 to 5 and inserted its own reasoning for getting over Ex.A1 Settlement Deed. The reasoning given by the lower Appellate Court cannot be appreciated. Therefore, the judgment and decree of the lower Appellate Court are liable to be set aside. 22. Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned senior counsel for the first respondent, since the facts and circumstances of the present case are different, the judgments relied upon by the learned senior counsel are not applicable. M.P.No.1 of 2013: 23. The seventh defendant, who is the first respondent in the Second Appeal, has filed a petition in M.P.No.1 of 2013 under Order 41 Rule 27 of the Civil Procedure Code seeking to receive the certified copies of the deposition of the plaintiff/appellant as D.W.1 in O.S.No.14196 of 2010. 24. In the affidavit filed in support of the petition, the seventh defendant has stated that the deposition given by the plaintiff in the present suit as D.W.1 in O.S.No.14196 of 2010 is necessary to prove that a suggestion that he alone spent for the entire family and also performed the marriages of his sisters, was denied by him. Therefore, his deposition will amply prove that the Settlement Deed was not obtained in a fair manner. 25. It is pertinent to note that the seventh defendant had produced the document, which is subsequent to the filing of the suit, that too, dated after the disposal of the suit. 26. The plaintiff filed his counter and opposed the petition. 27. Since the document is dated after the disposal of the suit, the same cannot be taken into consideration now. Therefore, the petition in M.P.No.1 of 2013 is devoid of merits and is liable to be dismissed. 28. In these circumstances, the substantial questions of law are decided in favour of the appellant. The judgment and decree of the lower Appellate Court are set aside. The judgment and decree of the trial Court are restored. The Second Appeal is allowed. No costs. Consequently, M.P.No.1 of 2012 is closed. M.P.No.1 of 2013 is dismissed.