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2014 DIGILAW 3255 (MAD)

C. Ponnusamy v. Dhanalakshmi

2014-09-11

T.MATHIVANAN

body2014
Judgment : 1. This memorandum of second appeal has been directed against the judgment and decree dated 10.12.2004 and made in A.S.No.18 of 2004 on the file of the learned Subordinate Judge, Tiruppur, reversing the judgment and decree dated 30.1.2004 in O.S.No.574 of 1996 on the file of the learned District Munsif, Tiruppur. 2. The appellants herein are the defendants 2 to 4 in the suit in O.S.No.574 of 1996 on the file of the learned District Munsif, Tiruppur. When the suit was filed, the third appellant herein/4th defendant in the suit was a minor and as such he was represented by the first appellant herein being his father and guardian. It appears that during the pendency of the second appeal, the third appellant has attained majority and therefore, in view of the order passed by this Court dated 14.8.2014 and made in CMP.Nos.298 and 299 of 2014, he was declared as major and the first appellant was discharged from his guardianship. Similarly, the third respondent herein who is the first defendant in the suit had passed away and therefore, the first appellant and the respondents 1 and 2 herein have been recognized and recorded as the LRs of the third respondent/first defendant based on the memorandum dated 21.7.2014 filed before this court. 3. For easy reference and for the sake of convenience, the character of the parties to the suit, may hereinafter be referred to as such in the plaint, wherever the context so require. 4. The first defendant, Chinnappa Gounder was the father of second defendant C.Ponnusami as well as plaintiffs 1 and 2. The plaintiffs 1 and 2 have filed the suit in O.S.No.574 of 1996 on the file of the learned District Munsif, Tiruppur against their father, the first defendant as well as their brother second defendant, including defendants 3 and 4, being the wife and son of second defendant seeking the relief of declaration declaring their title over the plaint schedule property and also to direct the defendants 2 to 4 to put the plaintiffs in possession thereof and to pay mesne profits from the date of the suit till the date of delivery of possession of property at such rate as may be determined by this Court. 5. While the first defendant endorsing the claim of the plaintiffs 1 and 2, the defendants 2 to 4 have resisted the suit. 6. 5. While the first defendant endorsing the claim of the plaintiffs 1 and 2, the defendants 2 to 4 have resisted the suit. 6. On appreciation of evidence both oral and documentary, the Trial Court had declared the plaintiffs 1 and 2 as well as the second defendant as the owners of the suit property and that they shall continue as joint owners till the actual partition is effected in respect of the suit property. The suit, in respect of the relief of declaration that the plaintiffs 1 and 2, be declared as absolute owners of the suit property and the claim in respect of recovery of possession was dismissed. 7. Impugning the judgment and decree of the Trial Court dated 30.1.2004, the plaintiffs 1 and 2 have preferred an appeal in A.S.No.18 of 2004 on the file of the learned Subordinate Judge, Tiruppur. The defendants 2 to 4 having been not satisfied with the judgment of the Trial Court have preferred a cross appeal. The learned Subordinate Judge, Tiruppur while allowing the appeal filed by the plaintiffs reversing the judgment of the Trial Court, has proceeded to dismiss the Cross appeal filed by the defendants 2 to 4. 8. Challenging the correctness of the judgment and decree of the first Appellate Court, the defendants 2 to 4, stand before this Court with this Memorandum of Second appeal. The Second Appeal came to be admitted on the following three substantial questions of law: “(1) Whether the Courts below are correct in holding that the alleged settlement executed by 3rd respondent in favour of respondents 1 and 2 is genuine and valid in law? (2) Whether the Courts below are correct in holding that the settlement deed was accepted and acted upon especially when it is found by the Courts below that the Ist appellant continues to be in possession and enjoyment of the suit even after the alleged settlement by raising crops and putting up house? (3) Whether the lower Courts are correct in holding that the revocation of settlement and execution of power deed by 3rd respondent are not valid?” 9. The entire case is centered around Ex.A1 Settlement Deed dated 9.6.1995 and the Deed of Revocation dated 2.4.1996 (Ex.A3). There is no dispute with regard to the relationship of the parties concerned. (3) Whether the lower Courts are correct in holding that the revocation of settlement and execution of power deed by 3rd respondent are not valid?” 9. The entire case is centered around Ex.A1 Settlement Deed dated 9.6.1995 and the Deed of Revocation dated 2.4.1996 (Ex.A3). There is no dispute with regard to the relationship of the parties concerned. The plaintiffs 1 and 2 being the daughters of the first defendant (since deceased) have claimed that the property described in the plaint schedule is the self acquired property of their father, the first defendant. He had executed a registered Settlement Deed on 9.6.1995 in their favour and thereby he settled the suit property. According to the plaintiffs, the settlement was accepted by them and acted upon ever since from the date of the settlement. As it was accepted and acted upon, they are the absolute owners in respect of the schedule mentioned property. 10. Under this circumstance, the second defendant being their brother had presented a petition before the Village Administrative Officer on 30.5.1996 and thereby expressed his objection to grant patta in favour of plaintiffs. The plaintiffs were also put to understand that in the first week of April, 1996, the second defendant had taken their father, who is the first defendant, to the Registrar Office under the guise of executing a Settlement Deed in respect of other properties excluding the suit property and thereby he had fraudulently made his father, the first defendant, to execute a Deed of Revocation Deed dated 2.4.1996 and thereby got the Settlement Deed dated 9.6.1995 revoked. On the same day the second defendant had also obtained a Power of Attorney in his favour from their father authorizing him to deal with in respect of the entire properties and therefore, the plaintiffs have claimed that the second defendant by playing fraud and misrepresentation got the registered Settlement Deed dated 9.6.1995 revoked by way of Revocation Deed dated 2.4.1996 (Ex.A3) and he had fraudulently with a motive to grab the entire property, obtained a Power of Attorney Deed in his favour. It is also their contention that on the strength of the Power of Attorney dated 2.4.1996 (Ex.A2), the second defendant had executed the sale deed Ex.B136 dated 4.4.1996 in favour of his wife, the third defendant in the suit and got it registered in Kerala State. It is also their contention that on the strength of the Power of Attorney dated 2.4.1996 (Ex.A2), the second defendant had executed the sale deed Ex.B136 dated 4.4.1996 in favour of his wife, the third defendant in the suit and got it registered in Kerala State. It is also their contention that on 18.7.1996 in the absence of plaintiffs, the defendants 2 to 4 had trespassed into the suit property and as such their possession is illegal and they are bound to deliver the possession. 11. As aforesaid, in the opening paragraph the first defendant had accepted the contention of the plaintiffs saying in his written statement that he had executed registered Settlement Deed on 9.6.1995 in favour of his daughters, the plaintiffs 1 and 2 and thereby settled the schedule mentioned property in their favour. Besides this, he has also stated in his written statement that the suit property measuring an extent of 8 acres and 05 cents comprised in S.F.No.596 with a well and cart track right etc. is his self acquired property and that in the first week of April 1996, he was taken by the second defendant to the Registrar Office, where he was made to sign certain documents, after making him to believe that he was executing the Settlement Deed in favour of the second defendant in respect of other properties excluding the suit property. Later, he was put to understand that he was made to execute the Deed of Revocation dated 2.4.1996 and also a Power of Attorney deed on the same date itself. 12. In fact, according to the first defendant he never intended to execute the Deed of Revocation dated 2.4.1996 (Ex.A3) revoking the Settlement Deed dated 9.6.1995 executed by him in favour of the plaintiffs 1 and 2 and he has also never intended to execute the Power of Attorney in favour of the second respondent to deal with the entire property. 13. On the other hand, the second defendant in his written statement, which was adopted by the remaining defendants has contended that the plaintiffs had never been in possession of the suit property and that the first defendant alone had been in possession and cultivating the property and that the patta etc. continue to be in the name of first defendant and the kist receipts have also been in the name of the first defendant. continue to be in the name of first defendant and the kist receipts have also been in the name of the first defendant. It is his specific contention that since the properties were left uncared and with improper maintenance, their father had on his own accord canceled the Settlement Deed executed in favour of the plaintiffs through a Deed of Revocation dated 2.4.1996 and also executed the Power of Attorney in his favour to deal with the properties. 14. He has also contended that instead of selling the properties to third parties, the third defendant being the wife of the second defendant had purchased the land on 4.4.1996 and after purchase, she has been in enjoyment of the suit property and that he has vehemently denied the contentions made by the plaintiffs. He has also denied the alleged trespass committed by the defendants into the suit property. In this connection, he has stated that there was no need for the defendants to trespass into the suit property as they have purchased the same for valuable consideration. They have also contended that the plaintiffs were aware of the fact that the Settlement Deed dated 9.6.1995 was canceled by their father and they were also aware of the fact that their father had executed the Deed of Cancellation and that the second defendant had acted upon on the basis of the Power of Attorney Deed executed by their father, the first defendant. In his additional written statement, the second defendant has stated that after completion of his school education, he was living along with his father and therefore, his father had executed the Power of Attorney in his favour to deal with all the properties. 15. Heard Mr. S.V. Jayaraman, learned Senior Counsel appearing for Mr. R. Balasubramanian, learned counsel for the appellant and Mr. S.K. Rakhunathan, learned counsel appearing for the respondents 1 and 2. The third respondent passed away. 16. Mr. S.V. Jayaraman, learned senior counsel appearing for the appellants has advanced his arguments on the following two grounds: (1) In respect of joint family property, there cannot be any settlement without consent of other co-owners. S.K. Rakhunathan, learned counsel appearing for the respondents 1 and 2. The third respondent passed away. 16. Mr. S.V. Jayaraman, learned senior counsel appearing for the appellants has advanced his arguments on the following two grounds: (1) In respect of joint family property, there cannot be any settlement without consent of other co-owners. (2) After effecting the partition deed dated 27.6.1966 between the brothers of the first defendant i.e. the father of the plaintiffs and the second defendant, the share obtained by the father (first defendant), became joint family property since the second defendant was born prior to the partition i.e. On 27.6.1966. 17. On an analytic approach on the submissions made by Mr. S.V. Jayaraman, the learned Senior Counsel appearing for the defendants, this Court finds that it is not the case of the defendants 2 to 4 that the suit property held by them as joint family property and equally, it is not the case of the defendants 2 to 4 that there was a Family Partition effected on 27.6.1966 between the brothers of the first defendant (father of the plaintiffs and the second defendant) and that the share obtained by first defendant after the birth of the second defendant in the said partition, became joint family property between D1 and D2. Therefore, in the absence of specific plea with reference to argument advanced by Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants, this Court is of the considered view that his argument is to be rejected in toto. 18. On the other hand, Mr. S.K. Rakhunathan, learned counsel appearing for the plaintiff would submit that the suit property was the exclusive property of first defendant and he being the father of the plaintiffs as well as the second defendant, had on his own accord and without any influence from outside, registered the Settlement Deed on 9.6.1995 in favour of his daughters, the plaintiffs 1 and 2. He has further maintained that since the suit property is the exclusive property of the father, it was admitted by him (D1) in his written statement as well as in his evidence that he had executed a Settlement Deed in favour of the plaintiffs on 9.6.1995. He has further maintained that since the suit property is the exclusive property of the father, it was admitted by him (D1) in his written statement as well as in his evidence that he had executed a Settlement Deed in favour of the plaintiffs on 9.6.1995. In the absence of any specific plea or evidence that the suit property was the joint family property, the Settlement Deed executed by D1 in favour of his daughters on 9.6.1995 is genuine, because it was accepted and acted upon by the plaintiffs. He has also argued that the Settlement Deed under Ex.A1 is an unconditional one and executed by the first defendant without having any reservation to cancel it and in the absence of any reservation in the settlement deed, even if it is presumed that D1 had canceled the deed through a Revocation Deed under Ex.A3, it cannot be acted upon as it is a total negation of the principle of law. 19. Relying upon the Deed of Settlement the learned counsel has also argued that the execution of Ex.A2, Power of Attorney as well as Deed of Revocation Deed Ex.A3 dated 2.4.1996, are none else in eye of law and it was obtained by D2 from his father the first defendant, by playing fraud and mis-representation. 20. Mr. S.V. Jayaraman, learned senior counsel appearing for the appellants supporting his argument has placed reliance of the following five decisions: (1) Kashi Nath (Dead) through LRs v. Jaganath reported in 2004-4-L.W.25 (2) Anil Rishi vs. Gurbaksh Singh reported in 2006(4) CTC 524 (3) Union of India and others v. Vasavi Co-op, Housing Society Ltd. and others reported in AIR 2014 SC 937 . (4) Balraj Taneja and another v. Sunil Madan and another reported in AIR 1999 S.C.3381. (5) Kanna Gounder and another v. Arjuna Gounder reported in AIR 2003 Madras 157. 21. This court has carefully gone through the above cited judgments and found that they are not in consonance with the submissions made by Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants. 22. In the case of Kashi Nath (Dead) through LRs. (5) Kanna Gounder and another v. Arjuna Gounder reported in AIR 2003 Madras 157. 21. This court has carefully gone through the above cited judgments and found that they are not in consonance with the submissions made by Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants. 22. In the case of Kashi Nath (Dead) through LRs. v. Jaganath, reported in 2004-4-L.W.25, it is observed by the Apex Court that when the evidence is not in line with the pleadings and is at variance with it and in this case in virtual self contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon. 23. As already observed above by this Court the submissions made by Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants is not in line with the pleadings of the parties concerned. In the absence of pleadings and in the absence of evidence, it cannot be for a moment construed that the suit property was a joint family property. In the absence of such specific pleadings and evidence, it cannot be heard to say that there was a partition deed dated 27.6.1966 between the brothers of the first defendant and that the suit property was alloted to his share in the said partition and that since the second defendant was born to the first defendant prior to the Partition i.e. prior to 27.6.1996, the property was to be treated as joint family property between the father and son i.e. between D1 and D2. It is settled principles of law that no argument shall be allowed to be advanced in the absence of specific plea and evidence. On the other hand Mr. S.K. Rakhunathan, learned counsel appearing for the plaintiffs (Respondents 1 and 2) in support of his case has placed reliance upon the following decision: 24. In Srinivas Krishnarao Kango v. Narayan Devji Kango and others reported in AIR 1954 SC 379 (1). In the said case, the Hón'ble Apex Court has observed that proof of the existing of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. In the said case, the Hón'ble Apex Court has observed that proof of the existing of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition. 25. In the instant case in hand, the first defendant being the father of the plaintiffs and the second defendant is having every right to deal with the property i.e. to settle the property in favour of his daughters, plaintiffs 1 and 2 as it is his self acquired property and therefore, it cannot be questioned by the second defendant being the son of the first defendant. Apart from this, Mr. S.K. Rakhunathan learned counsel has also placed reliance upon another decision in C.R. Gandhi and three others v. The Inspector General of Registration, Santhome, Chennai and three others decided by the learned Single Judge of this Court dated 4.7.2014, wherein it has been observed that the registration of cancellation of the settlement deed is against the public policy as it was not open to the Sub Registrar to register the cancellation of the deed, when the settlement deed is unconditional and irrevocable. Similar view has been taken by another learned single judge in D.V. Loganathan v. The Sub-Registrar, Chennai and another reported in 2014 (3) CTC 113 . In this case, the settlement was canceled by the Settlor unilaterally and the same was sought to be quashed at the instance of the settlee by way of Writ proceedings. Under these circumstances, it has been held: “In fact the registration of cancellation of the Settlement Deed is against the Public Policy as it was not open to the Sub-Registrar to register the cancellation of the Deed, when the Settlement Deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the Settlement Deed, he could have very well approached the Civil Court to set it aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub-Registrar. If at all the party who has executed the document is aggrieved by the Settlement Deed, he could have very well approached the Civil Court to set it aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub-Registrar. The Cancellation Deed and its registration, therefore, being without jurisdiction, is liable to be set aside. .......” In an another decision in K.A. Shanmugam and another v. Tamilarasi and others reported in (2012) 1 MLJ 216 it has been held: “I. Mentioning of handing over possession in settlement deed itself is sufficient to come to a conclusion that the settlement deed has been acted upon. II. Non-transfer of name of donee in revenue records immediately after settlement is not significant when the donor and donee are residing in the same property after the execution of such settlement deed.” Even in this case also the first defendant has admitted in evidence that he had himself settled the suit property in favour of his daughters i.e. plaintiffs 1 and 2 by a registered deed dated 9.6.1995 and immediately the property was handed over to them. The admitted fact need not be proved by documentary evidence as the first defendant himself has admitted the execution of the settlement in question, and it cannot be revoked by him unilaterally. In this connection, this Court finds that the documentary evidence filed on behalf of the defendants are extraneous and irrelevant to the facts of the case. On coming into the facts on hand, the Settlement Deed under Ex.A1 dated 9.6.1995 executed by the first defendant in favour of plaintiffs 1 and 2 was accepted and acted upon and the Settlement Deed is unconditional and irrevocable. The second defendant has also admitted the fact that the Settlement Deed Ex.A1 was executed by their father in favour of the plaintiffs 1 and 2. However he has contended that since the property was kept unmaintained, his father had voluntarily canceled the Settlement Deed dated 9.6.1995 executed in favour of the plaintiffs 1 and 2 by a Deed of Revocation under Ex.A3. This is absolutely wrong and not able to be accepted. 26. Whatever may be the case, once the Settlement Deed is executed in favour of settlee by the settlor, it is not open to cancel the Deed, when the Settlement Deed is unconditional and irrevocable. This is absolutely wrong and not able to be accepted. 26. Whatever may be the case, once the Settlement Deed is executed in favour of settlee by the settlor, it is not open to cancel the Deed, when the Settlement Deed is unconditional and irrevocable. On coming to the present case on hand, this Court finds that the finding of the First Appellate Court is proper and within the bounds of the law and therefore, this Court does not find any reason for interference. 27. Accordingly the second appeal is dismissed confirming the judgment and decree in A.S.No.18 of 2004 dated 10.12.2004 passed by the learned Subordinate Judge, Tiruppur, reversing the judgment and decree in O.S.No.574 of 1996 dated 30.1.2004 passed by the learned District Munsif, Tiruppur. No costs. Consequently connected CMP.No.643 of 2013 is closed.