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2015 DIGILAW 3229 (MAD)

A. Narasimhan (died) v. Athilakshmi

2015-10-05

M.DURAISWAMY

body2015
JUDGMENT M. DURAISWAMY, J. 1. The above appeal arises against the judgment and decree passed in O.S. No. 128 of 1983 on the file of the Subordinate Court, Srivilliputhur. The first defendant has filed the above appeal and during the pendency of the appeal, the first defendant had died and his legal representatives were brought on record as appellants 2 to 4. The plaintiffs are the respondents 1 to 5 and the defendants 2 to 5 are the respondents 6 to 9. The plaintiffs filed the suit in O.S. No. 128 of 1983 for declaration that the “B” schedule property belongs to the plaintiffs and subsequently directing the first defendant to deliver the possession of the “B” schedule property and for past and future damages. 2. The brief case of the plaintiffs is as follows:- (i) According to the plaintiffs, the “A” schedule property belonged to M.C.K.S. Chidambara Nadar and his son C. Subbiah Nadar. Alagarsamy Asari, husband of the first plaintiff purchased the “A” schedule property as a vacant site from the said persons. Alagarsamy Asari purchased the eastern portion under a registered sale deed dated 16.11.1950 and subsequently on 12.2.1961, he purchased the western portion under a registered sale deed. After purchase, Alagarsamy Asari constructed a building and completed the same on the southern portion of the “A” schedule property in or about the year 1962. Alagarsamy Asari was in exclusive possession and enjoyment of the entire “A” schedule property with the buildings thereon constructed by him. On the northern side, Algarsamy Asari constructed the building on the western portion in or about the year 1972. “A” schedule property and the buildings thereon are the self-acquired, separate properties of Alagarsamy Asari. (ii) The defendants are the sons of Alagarsamy Asari through his first wife Gomathiammal. The first plaintiff is the second wife of Alagarsamy Asari. After the death of his first wife, Alagarsamy Asari married the first plaintiff. The plaintiffs 2 to 5 are the children of Alagarsamy Asari and the first plaintiff. Alagarsamy Asari had another son by name Bangarusamy, who left the family about 25 years ago and from then, his whereabouts are not known. Since he was not heard for more than 25 years, under law he will be presumed to have been civilly dead. (iii) The first defendant, after marriage, had no separate house to live in with his wife and children. Since he was not heard for more than 25 years, under law he will be presumed to have been civilly dead. (iii) The first defendant, after marriage, had no separate house to live in with his wife and children. Alagarsamy Asari permitted his son – first defendant to live in a portion of Door No. 16/3A, free of rent. While so, Alagarsamy Asari settled the entire “A” schedule property to the plaintiffs out of love and affection under a registered settlement deed for self and on behalf of the plaintiffs 2 and 3, who were the minors then and also on behalf of the minor plaintiffs 4 and 5. (iv) The property described in the “B” schedule property is only a portion of the “A” schedule property. The “B” schedule property consists of a building bearing Door No. 16/3A and piece of vacant site. After the settlement deed, the plaintiffs became entitled to the entire “A” schedule property including the “B” schedule property. (v) The plaintiffs came to know that the first defendant had fraudulently caused a document purported to be cancellation deed of the settlement deed in favour of the plaintiffs executed by Alagarsamy Asari on 27.2.1978. The cancellation deed was executed by Alagarsamy Asari to cancel the settlement deed executed by him on 25.11.1977. Pursuant to the settlement deed, the assessment of the property was transferred in the name of the first plaintiff. On 24.2.1979, the plaintiffs issued notice to the first defendant revoking the licence granted to him and calling upon him to deliver the possession of the “B” schedule property. The plaintiffs also filed the Rent Control Original Petition in R.C.O.P. No. 59 of 1980 for eviction of the first defendant from the “B” schedule property. Since the first defendant refused to vacate the premises and also raised a cloud over the plaintiffs' tile over the “B” schedule property, the plaintiffs have filed the suit. 3. The brief case of the first defendant is as follows:- According to the first defendant, the superstructure in the “B” schedule property was constructed by the joint family earnings. The settlement deed dated 25.11.1977 was a fraudulent document. By the cancellation deed dated 27.2.1978, Alagarsamy Asari cancelled the said settlement deed. Alagarsamy Asari had died on 20.1.1981. Alagarsamy Asari had executed a registered will on 22.11.1980 bequeathing his properties to his heirs. The settlement deed dated 25.11.1977 was a fraudulent document. By the cancellation deed dated 27.2.1978, Alagarsamy Asari cancelled the said settlement deed. Alagarsamy Asari had died on 20.1.1981. Alagarsamy Asari had executed a registered will on 22.11.1980 bequeathing his properties to his heirs. Door No. 16/3 was allotted to the second defendant and two others. In the said Will, Alagarsamy Asari had confirmed the settlement deed dated 22.11.1980. By virtue of the cancellation deed dated 27.2.1978 and the will dated 22.11.1980, the plaintiffs have no title over the “B” schedule property. The plaintiffs failed to prove the tenancy in R.C.O.P. No. 59 of 1980. Hence, they filed the suit for declaration of title and for other reliefs. The plaintiffs have not sought to set aside the cancellation deed. In these circumstances, the first defendant prayed for dismissal of the suit. 4. The fourth defendant supported the case of the plaintiffs and prayed for a decree in favour of the plaintiffs. 5. Before the trial Court, on the side of the plaintiffs, two witnesses were examined and 50 documents Exs.A.1 to A.50 were marked. On the side of the defendants, D.W.1 was examined and 12 documents Exs.B.1 to B.12 were marked. The trial Court, after taking into consideration the oral and documentary evidences let in by the parties, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the first defendant has filed the above Appeal. 6. Heard Mr. S. Subbiah, learned Counsel appearing for the appellant and Mr. N. Dilip Kumar, learned Counsel appearing for the respondents 2 to 5. 7. The learned Counsel for the appellants submitted that Ex.A.9 settlement deed executed by Alagarsamy Asari was not proved by the plaintiffs. The trial Court should have taken into consideration ExA.10-cancellation deed and ought to have held that in view of Ex.A.10-cancellation deed, Ex.A.9 settlement deed has become an invalid document. Further the learned Counsel submitted that the suit properties are joint family properties and therefore, the settlement deed executed by Alagarsamy Asari is not a valid document. 8. In support of his contentions, the learned Counsel for the appellants relied upon the following judgments:- (i) In Oriental Insurance Co. Ltd. vs. Premalata Shukla and Others, (2007) 6 MLJ 669 (SC), wherein the Honourable Apex Court held as follows:- “13. However, the factum of an accident could also be proved from the First Information Report. 8. In support of his contentions, the learned Counsel for the appellants relied upon the following judgments:- (i) In Oriental Insurance Co. Ltd. vs. Premalata Shukla and Others, (2007) 6 MLJ 669 (SC), wherein the Honourable Apex Court held as follows:- “13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the content soft he document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part there of had not been proved. Both the parties have relied there upon. It was marked as an Exhibit as both the parties in tended to rely upon them.” (ii) In Vimal Chand Ghevarchand Jain and Others vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713 , wherein the Honourable Supreme Court held as follows: “25. Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore. (Ranganayakamma vs. K.S. Prakash, (2008) 15 SCC 673 . It is for the aforementioned purpose, the deed of sale was required to be construed in proper perspective.” (iii) In Lakshmi Amma and Another vs. Talengalanarayana Bhatta and Another, 1970 (3) SCC 159 , wherein the Honourable Supreme Court held that the deed of settlement on the face of it can be construed as unnatural and unconscionable document. Negligible provision was made for his wife who was his third wife, the first two having died before he married her. She was left mainly to the mercy of respondent No. 1 and apparently there was no reason why he should have left nothing to his two daughters or to his other grand-children and give his entire estate to only one grandson namely first respondent. She was left mainly to the mercy of respondent No. 1 and apparently there was no reason why he should have left nothing to his two daughters or to his other grand-children and give his entire estate to only one grandson namely first respondent. In this case, the Honourable Supreme Court held that all the facts and circumstances raise a grave suspicion as to the genuineness of the execution of the document and it was for the respondent No.1 to dispel the same. (iv) In S.R. Srinivasa and Others vs. S. Padmavathamma, (2010) 5 SCC 274 , wherein the Honourable Apex Court held that a will must be proved as per Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. (v) In J.J. Lal Pvt. Ltd. and Others vs. M.R. Murali and Another, (2002) 3 SCC 98 , wherein the Honourable Supreme Court held as follows: “20. Once a question of title has arisen between a landlord and a tenant and such dispute is bona fide, the doors of the civil court are let open to the landlord and therein adjudication, on grounds of eviction otherwise within the domain of the Controller, is also permitted so as to avoid multiplicity of suits and proceedings. All the disputes between the landlord and tenant would be settled in one forum and the need for prosecuting two separate proceedings before two for a would be eliminated.” 9. Countering the submissions made by the learned Counsel for the appellants, the learned Counsel appearing for the respondents submitted that the settlement deed was proved by the plaintiffs in accordance with law and the cancellation deed executed by Alagarsamy Asari is an invalid document for the reason that the said Alagarsamy Asari had cancelled the document unilaterally. 10. In support of his contentions, the learned Counsel appearing for the respondents relied upon the following judgments: (i) In Dhanalakshmi and Others vs. S. Thangavelu, 2005 (5) CTC 33 , wherein this Court held that mere recital in the settlement deed that settlor has right to revoke the settlement cannot cloth settlor with power of revocation. Further in the absence of any contingency reveal in the document in which settlement deed could be revoked, the settlement deed cannot be revoked. Further in the absence of any contingency reveal in the document in which settlement deed could be revoked, the settlement deed cannot be revoked. (ii) In Latif Estate Line India Ltd. vs. Hadeeja Ammal, 2011 (2) CTC 1 , wherein the Full Bench of this Court held that once the title to the property is transferred by sale of property, it cannot be divested by execution of deed of cancellation even with consent of parties. The proper course would be for purchaser to re-convey property to the seller. Further the Full Bench held as follows: “After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion: (i) A Deed of Cancellation of a sale unilaterally executed by the tansferor 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 he 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 nonpayment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained with 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 Civil Court by obtaining a decree of cancellation of Sale Deed on the ground interalia of fraud or any other valid reasons.” 11. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of Sale Deed on the ground interalia of fraud or any other valid reasons.” 11. On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, in this first appeal, the following points arise for consideration: (1) Whether Ex.A.9-Settlement deed dated 25.11.1977 was proved by the plaintiffs in accordance with law? (2) Whether Ex.A.10-Cancellation Deed dated 27.2.1978 is valid? (3) Whether the suit properties are self-acquired, separate properties of Alagarsamy Asari? 12. It is the case of the plaintiffs that the suit properties are the self-acquired properties of Alagarsamy Asari, who had settled the properties in favour of the plaintiffs under Ex.A.9-Settlement deed. In order to prove the due execution of Ex.A.9-Settlement Deed, the plaintiffs examined P.W.2 viz. Varadharajulu who is the attestor of Ex.A.9-Settlement deed. On a perusal of the judgment of the trial Court, it could be seen that by mistake, the trial Court had omitted to mention the evidence of P.W.2 in the list of witnesses. However, on a perusal of the original records, it is clear that P.W.2 was examined to prove the due execution of Ex.A.9-settlement deed. P.W.2 had categorically spoken about the due execution of settlement deed and also spoken about the mental capacity of the executor viz., Alagarsamy Asari. The evidence of P.W.2 is very categorical and specific about the due execution of Ex.A.9-Settlement deed. Relying upon Ex.A.9, the trial Court has rightly come to the conclusion that the settlement deed is a true and genuine document. 13. With regard to the contention of the defendants that the suit properties are joint family properties is concerned, the defendants have not let in any independent evidence to prove the said contention. The contention raised by the defendants that the suit properties are the joint family properties is not supported by any acceptable evidence. On the contrary, the plaintiffs were able to establish that the suit properties are self-acquired properties of Alagarsamy Asari. The documents produced by the plaintiffs clearly established that the suit properties are self-acquired properties of Alagarsamy Asari. Even in the evidence of D.W.1, the defendant was not able to establish that the suit properties are joint family properties. On the contrary, the plaintiffs were able to establish that the suit properties are self-acquired properties of Alagarsamy Asari. The documents produced by the plaintiffs clearly established that the suit properties are self-acquired properties of Alagarsamy Asari. Even in the evidence of D.W.1, the defendant was not able to establish that the suit properties are joint family properties. On the date of execution of Exs.A.1 and A.2 sale deeds, the first defendant was only a school going child. Therefore, by no stretch of imagination, it could be said that the first defendant also contributed for the purchase of the properties under Exs.A.1 and A.2 sale deeds. That apart, the first defendant also failed to prove by any evidence to show that he also helped Alagrarsamy Asari in doing goldsmith work. 14. Taking into consideration the oral and documentary evidences, the trial Court has rightly come to the conclusion that the suit properties are the separate, self-acquired properties of Alagarsamy Asari. Even the evidence of D.W.1, is against his own case pleaded in the written statement. Though the defendants contended that his father Alagarsamy Asari exeucted a Will in respect of the properties, the will was not produced by the defendants before the trial Court. Even in his evidence, D.W.1, has stated that he did not know about the purchase made by his father Alagarsamy Asari under Exs.A.1 and A.2 sale deeds. Under Ex.A.10 – Cancellation deed, dated 27.2.1978, Alagarsamy Asari cancelled Ex.A.9 settlement deed executed in favour of the plaintiffs. Though under Ex.A.9 – settlement deed, absolute right was transferred in favour of the plaintiffs, on the date of execution of the document itself, under Ex.A.10-cancellation deed, Alagarsamy Asari revoked the settlement deed unilaterally. As per the ratio laid down by the Full Bench of this Court reported in Latif Estate Line India Ltd. vs. Hadeeja Ammal, 2011 (2) CTC 1 , unilateral cancellation of document, when the right and title in respect of the property, has been transferred in favour of the transferee is not valid. Therefore, applying the ratio laid down by the Full Bench of this Court, I am of the view that Ex.A.10 – cancellation deed executed by Alagarsamy Asari is not valid. 15. Therefore, applying the ratio laid down by the Full Bench of this Court, I am of the view that Ex.A.10 – cancellation deed executed by Alagarsamy Asari is not valid. 15. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned Counsel appearing for the appellants, since the facts and circumstances of the present case are different, the said judgments are not applicable to the present case. 16. Taking into consideration the oral and documentary evidences, the trial Court has rightly decreed the suit. 17. In these circumstances I do not find any ground to interfere with the judgment and decree of the trial Court. The First Appeal is liable to be dismissed. Accordingly the same is dismissed. However, there shall be no order as to costs.