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2018 DIGILAW 259 (MAD)

G. Chandrasekar v. Ponnuthai (deceased)

2018-01-23

R.SUBRAMANIAN

body2018
JUDGMENT : 1. Suit for declaration of title of the second plaintiff, to declare the cancellation deed dated 20.04.2007, cancelling the Settlement Deed dated 18.02.2002 is null and void and not binding on the plaintiff for permanent injunction restraining the defendants from interfering the peaceful possession of the plaintiffs and for the costs of the suit. 2. The brief averments in the plaint are as follows: The suit property was purchased by the first defendant Ponnuthai on 21.09.1974. The first plaintiff and the defendants 2 to 8 are the children of the first defendant. The second plaintiff is the wife of the first plaintiff. After the death of the husband of the first defendant, the first defendant has been residing along with first plaintiff in the suit property. It is also stated that the plaintiffs 1 and 2 were taking care of first defendant by providing food, shelter and other basic needs. It is claimed that out of love and affection towards the first plaintiff, the first defendant had executed a registered Settlement Deed on 18.02.2002 settling the suit property on the first plaintiff. Pursuant to the said Settlement Deed, it is claimed that the revenue records were also transferred in the name of the first plaintiff and patta was issued to the first plaintiff on 11.02.2003. 3. According to the plaintiffs, sometime in October 2006, certain misunderstandings arose between the first plaintiff and the eighth defendant, who is the daughter of the first defendant. This misunderstanding resulted in police complaints and counter complaints by the parties. It is claimed that the first defendant joined hands with the eighth defendant and was making false and frivolous allegations against the first plaintiff. The plaintiffs would further contend that at the instigation of the eighth defendant, the first defendant had filed a maintenance case in M.C.No.498 of 2006, before the I Additional Family Court, Chennai, claiming maintenance from her sons, viz. the first plaintiff and defendants 2 and 3. The Family Court awarded a sum of Rs.1,500/- towards maintenance of the first defendant and the first plaintiff has been paying his share of the said maintenance amount regularly without fail. While so, the eighth defendant had filed a suit in OS. No.3575 of 2007 on the file of the 7th Asst. City Civil Court, at Chennai, claiming partition and separate possession of the suit property and other properties. While so, the eighth defendant had filed a suit in OS. No.3575 of 2007 on the file of the 7th Asst. City Civil Court, at Chennai, claiming partition and separate possession of the suit property and other properties. On 17.09.2008, when the said suit was taken up for trial, the eighth defendant sought to file the cancellation deed dated 20.04.2007, in and by which the first defendant had unilaterally cancelled the Settlement Deed executed by her on 18.02.2002 in favour of the first plaintiff. 4. According to the plaintiffs, it is only then they came to know about the deed of cancellation. In fact it is also claimed that on 05.04.2007 the first plaintiff had settled the suit property on his wife, viz. the second plaintiff. To buttress their submission that the Settlement Deed was acted upon the plaintiffs would claim that immediately after the settlement, the first plaintiff had obtained the planning permission and put up the residential house and a shop. It is also claimed that a new water and sewerage connection was obtained by the first plaintiff in his name. It is also contended that the revenue records have been mutated in the name of the first plaintiff on 11.02.2003 and he has been paying the property tax and other statutory dues to the concerned authorities right from the date of settlement. It is also claimed that in the maintenance case, viz. M.C.No.498 of 2006, the first defendant had admitted that the first plaintiff is in possession of the suit property. It is the further case of the plaintiffs that the first plaintiff has exercised his right of the ownership by executing a Settlement Deed in favour of the second plaintiff on 05.04.2007. Therefore, according to the plaintiffs the cancellation of the Settlement Deed by the first defendant is invalid and the first defendant had no power to cancel the document unilaterally. On the above pleadings, the plaintiffs have sought for the relief’s stated supra. 5. The first defendant filed a written statement, wherein it is contended has follows: The Settlement Deed dated 18.02.2002 was not executed by her out of her free will. According to her, the plaintiffs compelled her to execute the document and assured her that despite execution of the document she would continue to enjoy the property till her life time and the plaintiffs would take care of her. According to her, the plaintiffs compelled her to execute the document and assured her that despite execution of the document she would continue to enjoy the property till her life time and the plaintiffs would take care of her. Unfortunately, the plaintiffs changed their colour after the execution of the Settlement Deed and started ill-treating the first defendant, which led to the filing of the maintenance case seeking maintenance from her sons. It is also claimed that the mutation of the revenue records was made by making false representation to the Revenue Authority. She would also claim that the plaintiffs have developed an aversion towards the eighth defendant and refused to allow the eighth defendant to enter the ancestral house in the native place. The money orders, according to the first defendant were sent in order to repay the monies that the first plaintiff had borrowed from the first defendant on various occasions. The sum and substance of the defence is that the Settlement Deed was executed under coercion and undue influence, therefore, it is not a valid document. Under such circumstances, she had no alternative but to cancel the Settlement Deed. 6. The first defendant died pending suit on 17.03.2016 and the first plaintiff and defendants 2 to 8 were recorded as the legal representatives of the deceased first defendant. It is also seen from the records that the 7th defendant had died pending suit and defendants 9 to 11 were brought on record as the legal representatives of the deceased 7th defendant. 7. The eighth defendant filed a memo adopting the written statement of the first defendant. Though, defendants 5, 7 and 8 appeared through counsel, except eighth defendant the other defendants did not file a written statement. The defendants 2, 3 and 4 remained ex-parte. 8. On the above contentions, the following issues were framed for trial in the suit: 1. Whether the plaintiffs are entitled to the relief of declaration of title to the suit property as prayed for? 2. Whether the first defendant had any right to cancel the Settlement Deed dated 18.02.2002 registered as Document No.487 of 2002 in the office of the Sub Registrar, Anna Nagar? 3. Whether the Cancellation Deed dated 20.04.2007 registered as Document No.1538 of 2007 executed by the first defendant is valid and binding on the plaintiffs? 4. 2. Whether the first defendant had any right to cancel the Settlement Deed dated 18.02.2002 registered as Document No.487 of 2002 in the office of the Sub Registrar, Anna Nagar? 3. Whether the Cancellation Deed dated 20.04.2007 registered as Document No.1538 of 2007 executed by the first defendant is valid and binding on the plaintiffs? 4. Whether the plaintiffs are in possession of the suit property and are they entitled to the relief of injunction as prayed for? 5. To what other relief the plaintiffs are entitled to? 9. On the side of the plaintiffs, first plaintiff was examined as P.W.1 and Exs. P1 to P13 were marked. The first defendant was examined as D.W.1, eighth defendant was examined as D.W.2 and P.Udayakumar husband of the eighth defendant was examined as D.W.3, Exs.D1 to D5 were marked on the side of the defendants. 10. I have heard Mr. G.Vivekandan, learned counsel appearing for the plaintiffs and Mrs. Thenmozhi Sivaperumal, learned counsel appearing for the defendants 5, 7 and 8. Issue Nos. 2 and 3: 11. These issues relate to the right of the first defendant to cancel the Settlement Deed dated 18.02.2002 and the validity of the said cancellation. The ownership of the first defendant is admitted. The fact that the first defendant had executed the Settlement Deed dated 18.02.2002 in favour of the first plaintiff is also an admitted fact. The copy of the cancellation deed executed by the first defendant is marked as Ex.P9. In the said document while admitting the execution of the Settlement Deed dated 18.02.2002, it is stated that, since the property is in possession of the first defendant and she intends effecting certain modification in the property and that the first plaintiff has not been taking proper care of her, she is cancelling the said settlement. The exact recitals in the document are as follows: “TAMIL” 12. A perusal of the Settlement Deed dated 18.02.2002, reveals that it is an absolute settlement and the settler has not reserved a right of cancellation in the said instrument. It is also stated that the vacant possession of the property has been handed over to the settlee. It is seen from Ex.P4 series that the first plaintiff has obtained sanction for demolition of the existing structure and for construction of a new structure in the suit property even in the year 2002. It is also stated that the vacant possession of the property has been handed over to the settlee. It is seen from Ex.P4 series that the first plaintiff has obtained sanction for demolition of the existing structure and for construction of a new structure in the suit property even in the year 2002. The Revenue records have been mutated in the name of the first plaintiff and the copy of the extract of the Town Survey Register has been filed as Ex.P5. Ex.P6 series is the certified copy of the money order receipts to show that the first plaintiff has been sending monies to the first defendant. Exs.P10, P11 and P12 are series of water and sewerage tax receipts, property tax receipts and electricity receipts in the name of the first plaintiff. A combined effect of all these documents would show that the Settlement Deed dated 18.02.2002 was acted upon and the first plaintiff was in fact put in possession pursuant to the same. The fact that the cancellation deed dated 20.04.2007 does not also recite that the Settlement Deed dated 18.02.2002 was not acted upon would strengthen the case of the first plaintiff that the Settlement Deed dated 18.02.2002 was in fact acted upon he was put in possession and he had developed the property. 13. The only claim of the first defendant is that she did not execute the Settlement Deed dated 18.02.2002, out of her own free will and it was brought about by coercion and under influence. Even in her evidence as D.W.1, the first defendant has stated that the Settlement Deed was executed by her without knowing the contents of the deed. But in Cross-examination, she would admit that the first plaintiff has been regularly paying the maintenance amount and she has been withdrawing the same. She would also state that she would like to stay only at her native place and she is willing to stay at Chennai, even if the first plaintiff is willing to stay with her at Chennai. With reference to execution of the cancellation deed, the first defendant had deposed as follows in cross-examination: “I don’t remember executing any cancellation deed (Ex.D3) cancelling the Settlement Deed, Ex.P3.” 14. The eighth defendant, who has been examined as D.W.2 would admit her suit for partition in OS.No.3575 of 2007 has been dismissed. The copy of the plaint has been marked as Ex.P8. The eighth defendant, who has been examined as D.W.2 would admit her suit for partition in OS.No.3575 of 2007 has been dismissed. The copy of the plaint has been marked as Ex.P8. The said suit has been dismissed. Though, it is claimed that the eighth defendant has been advised to file an appeal against the judgment and decree in OS. No.3575 of 2007, in Cross-examination, D.W.2 would admit that she has not filed an appeal and she only contemplating filing of an appeal, when she deposed in this Court on 16.07.2012. The husband of the eighth defendant has been examined as D.W.3. He would claim that an arrest warrant has been issued under Ex.D4 against the first plaintiff for non-payment of maintenance to his mother-in-law. A perusal of Ex.D4 would show that it is a non-bailable warrant, issued against the third defendant in the suit and not against the plaintiffs. The perusal of the Cross-examination of the first defendant would show that she has positively admitted the fact that the first plaintiff has been paying the maintenance and she has been withdrawing the same. 15. Mr. G.Vivekanand, learned counsel appearing for the plaintiffs would cite the evidence of the first defendant to the effect that she does not remember having executed the cancellation deed would contend that the deed of cancellation, which has been produced as Ex.P9 and Ex.D3 is not valid and in any event, the first defendant had no power to unilaterally cancel the said document. Relying upon the Judgment of the Full Bench of this Court in M/s. Latif Estate Line India Ltd. Rep. by its Managing Director v. Mrs. Hadeeja Ammal, reported in 2011 (2) CTC 1 , the learned counsel would contend that once the first defendant had settled the property in favour of the first plaintiff on 18.02.2002, having divested herself of the interest in the suit property, she cannot cancel the Settlement Deed to the detriment of the first plaintiff unilaterally. He would also point out that the Settlement Deed was executed on 18.02.2002 and the first defendant filed a maintenance case in M.C.No.498 of 2006 and she choose to execute the cancellation deed on 20.04.2007, during the pendency of the maintenance case. 16. After referring to the various provisions of the Transfer of Property Act, the Hon’ble Full Bench of paragraph 59, had concluded as follows: “59. 16. After referring to the various provisions of the Transfer of Property Act, the Hon’ble Full Bench of paragraph 59, had concluded as follows: “59. 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 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. 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 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 inter alia of fraud or any other valid reasons.” 17. Contending that though the Full Bench was considering the question of sale, the Law laid down by the Full Bench would equally apply to the Settlement Deed also in as much as the title to the property is vested in the settlee on execution of the Settlement Deed and it cannot be divested to the settler by execution and registration of a deed of cancellation. In the light of the above observation of the Full Bench, Mr. G.Vivekanand, learned counsel appearing for the plaintiffs would contend that the deed of cancellation dated 20.04.2007 is invalid in the Eye of law and the same cannot be said to be binding on the plaintiffs. 18. In the light of the above observation of the Full Bench, Mr. G.Vivekanand, learned counsel appearing for the plaintiffs would contend that the deed of cancellation dated 20.04.2007 is invalid in the Eye of law and the same cannot be said to be binding on the plaintiffs. 18. The learned counsel appearing for the defendants 5, 7 and 8 would rely upon the judgment of the Supreme Court in Satya Pal Anand v. State of Madhya Pradesh and others reported in (2016) 10 SCC 767 , wherein the Hon’ble Supreme Court had held that the registration of a deed of extinguishment cannot be questioned by way of Writ proceedings and the aggrieved party has to necessarily file a suit seeking a declaration that such a document is invalid. Relying upon the said judgment the learned counsel would contend that the first defendant had the power to cancel the document. I am afraid that such a contention can be countenanced. The question that arose before the Supreme Court was “whether the Registering Authority has the power to cancel the registration of the document after the same is duly registered?”. The Hon’ble Supreme Court in paragraph 23 of the said judgment has framed the following questions as questions arising for determination in the proceedings before the Court: “23. Having considered the rival submissions, including keeping in mind the view taken by the two learned Judges of this Court on the matters in issue, in our opinion, the questions to be answered by us in the fact situation of the present case, can be formulated as under: 23.1. “(a) Whether in the fact situation of the present case, the High Court was justified in dismissing the Writ Petition? 23.2 (b) Whether the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is duty bound to declare the registered Deeds (between the private parties) as void ab initio and to cancel the same, especially when the aggrieved party (appellant) has already resorted to an alternative efficacious remedy under Section 64 of the Act of 1960 before the competent Forum whilst questioning the action of the Society in cancelling the allotment of the subject plot in favour of the original allottee and unilateral execution of an Extinguishment Deed for that purpose? 23.3 (c) Even if the High Court is endowed with a wide power including to examine the validity of the registered Extinguishment Deed and the subsequent registered deeds, should it foreclose the issues which involve disputed questions of fact and germane for adjudication by the competent Forum under the 1960 Act? 23.4 (d) Whether the Sub-Registrar (Registration) has authority to cancel the registration of any document including an Extinguishment Deed after it is registered? Similarly, whether the Inspector General (Registration) can cancel the registration of Extinguishment Deed in exercise of powers under Section 69 of the 1908 Act? 23.5 (e) Whether the Sub-Registrar (Registration) had no authority to register the Extinguishment Deed dated 9.8.2001, unilaterally presented by the Respondent Society for registration? 23.6 (f) Whether the dictum in Thota Ganga Laxmi is with reference to the express statutory Rule framed by the State of Andhra Pradesh or is a general proposition of law applicable even to the State of Madhya Pradesh, in absence of an express provision in that regard?”” 19. A bare perusal of the above points which were framed for determination, would show that the Hon’ble Supreme Court has not decided as to whether a settler or a vendor had the power to unilaterally cancel the settlement or a sale deed. I am therefore of the considered opinion that the said judgment of the Hon'ble Supreme Court in Sathya Pal Anand case may not be helpful to the defendants. 20. From the evidence on record, it is clear that the cancellation deed was executed unilaterally by the first defendant and the first defendant in her oral evidence would admit that she does not remember having executed a cancellation deed. This by itself would show that the cancellation deed was brought about by the eighth defendant in order to settle scores with the first plaintiff. Therefore, issue Nos.2 and 3 are answered in favour of the plaintiffs to the effect that the first defendant had no right to cancel the Settlement Deed dated 18.02.2002 and that the cancellation deed dated 20.04.2007 is not binding on the plaintiffs. Issue No.1: 21. This issue relates to the declaration of title of the plaintiffs. Therefore, issue Nos.2 and 3 are answered in favour of the plaintiffs to the effect that the first defendant had no right to cancel the Settlement Deed dated 18.02.2002 and that the cancellation deed dated 20.04.2007 is not binding on the plaintiffs. Issue No.1: 21. This issue relates to the declaration of title of the plaintiffs. Once it is held that the cancellation deed dated 20.04.2007 is invalid, the deed of settlement executed by the first defendant in favour of the first plaintiff on 18.02.2002 would confer the valid title on the first plaintiff, who had in turn, executed a Settlement Deed on 05.04.2007 under Ex.P7 in favour of the second plaintiff. Thus, the second plaintiff would be the absolute owner of the property, in view of the Settlement Deed dated 05.04.2007. Hence issue No.1 is answered in favour of the plaintiffs to the effect that they are entitled to relief of declaration of title to the suit property. 22. Insofar as the question of possession is concerned the first defendant as well as the eighth defendant have admitted the possession of the plaintiffs over the suit property. A perusal of the plaint in OS. No.3575 of 2007, marked as Ex.P8 shows that the eighth defendant has categorically admitted the possession of the first plaintiff. The first defendant also in her evidence, has admitted that the plaintiffs are in possession of the property. The documents filed, viz. Exs.P4 series, P5, P10, P11 and P.12 series would conclusively establish the possession of the plaintiffs over the suit property. Hence, the issue relating to possession is also answered in favour of the plaintiffs and it is found that the plaintiffs are entitled to the relief of declaration and permanent injunction as prayed for in the suit. 23. In fine the suit is decreed as prayed for with costs of the plaintiffs. The eighth defendant, who has contested the suit, would be liable for the costs.