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2018 DIGILAW 3314 (MAD)

Selvi v. Salammal

2018-09-27

T.RAVINDRAN

body2018
JUDGMENT T. RAVINDRAN, J. 1. Challenge in this second appeal is made to the Judgment and Decree dated 20.01.2012 passed in A.S.No.68 of 2011 on the file of the II Additional Subordinate Court, Salem, reversing the Judgment and Decree dated 05.04.2011 passed in O.S.No.914 of 2009 on the file of the I Additional District Munsif Court, Salem. 2. The second appeal has been admitted on the following substantial questions of law: "(a).Whether the lower appellate Court is correct in holding that the plaintiffs are entitled for declaration of title to the suit property based on the settlement deed Ex.A1 dated 30.05.1989 especially when the same was cancelled by the donar through Ex.A.18, and the same was to be challenged by the plaintiff within the period of limitation. (b).Whether the lower Appellate Court is correct in decreeing the suit by holding that the appellant herein not taken specific plea that the suit property is a joint family property and all are in joint possession even though the appellant herein in the written statement she categorically stated that the suit property is a joint family property of the plaintiffs and the defendants and the same was intestated by the Chinnammal. The defendant have = share in the suit properties and she is one of the co-sharer of the plaintiffs. (c).Whether the lower Appellate Court is correct in decreeing the suit by stating that the defendant/appellant has not stated that the suit property does not belonged to Chinnammal especially when the appellant has pleaded that shit property is a joint family property and the defendant/appellant have right of 1/3 share in the suit property." 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The plaintiffs had laid the suit against the defendant based on the settlement deed dated 30.05.1989 executed by Chinnammal which is marked as Ex.A1 in favour of Periysamy Pillai, whose wife and son are the plaintiffs 1 & 2 and the plaintiffs 3 to 5 in respect of the plaint A and B schedule properties and alleging that the plaintiffs are in the possession and enjoyment of the plaint schedule properties based on the abovesaid settlement deed and the defendant without authority is interfering with their possession and enjoyment, hence the plaintiffs had been necessitated to lay the suit for the reliefs of declaration and permanent injunction. 5. Materials placed on record go to show that the settlor Chinnammal had three sons viz., Periyasamy Pillai, Rajamanickam Pillai and Govindan. Claiming that the plaint schedule properties are the separate properties of Chinnammal and accordingly, she had executed the settlement deed in their favour, the plaintiffs have laid the suit for the abovesaid reliefs against the defendant. 6. The defendant is found to be the wife of Govindan, who is one of the sons of Chinnammal. Claiming that the plaint schedule properties are the separate properties of Chinnammal and accordingly, she had executed the settlement deed in their favour, the plaintiffs have laid the suit for the abovesaid reliefs against the defendant. 6. The defendant is found to be the wife of Govindan, who is one of the sons of Chinnammal. Now, according to the defendant, though she has admitted the settlement deed executed by Chinnammal in favour of Periyasamy and the plaintiffs 3 to 5, however, would raise the plea that the settlor Chinnammal had cancelled the settlement deed dated 30.05.1989 by a deed of cancellation on 10.07.1992, which is a registered document and therefore, it is the case of the defendant that the suit properties are the joint family properties of the plaintiffs and the defendant and the plaintiffs cannot claim any exclusive title to the suit properties based on the settlement deed dated 30.05.1989 and further, she has also stated that the settlement deed dated 30.05.1989 was not acted upon and the possession continued to be with Chinnammal till her life time and thereafter, she having died leaving behind the plaintiffs and the defendant as her legal heirs, accordingly, it is stated that the suit properties are in the joint possession and enjoyment of the plaintiffs and the defendant and accordingly, claiming that the defendant has also 1/3 share in the suit properties, prayed for the dismissal of the plaintiffs' suit laid against her. 7. Based on the materials placed on record, on the premise that the plaintiffs have failed to establish that the suit properties are the separate properties of Chinnammal and thereby, holding that Chinnammal is not entitled to settle the suit properties in favour of Periyasamy and the plaintiffs 3 to 5 as projected by the plaintiffs, the trial Court is found to have dismissed the plaintiffs' suit. On appeal, the first appellate Court found acceptance with the plaintiffs' case and holding that the suit properties are the separate properties of Chinnammal, the settlor and the defendant having not repudiated the same in the written statement by claiming that the suit properties are the joint family properties of the parties and that, Chinnammal is not entitled to execute the settlement deed as projected by the plaintiffs, on that premise, holding that after the execution of the settlement deed, Chinnammal ceased to have right in respect of the suit properties and she is not entitled to revoke the settlement deed later by way of a registered instrument on 10.07.1992, accordingly, holding that it is only the plaintiffs, who are the title holder of the suit properties on the strength of the settlement deed, granted the reliefs in favour of the plaintiffs as prayed for. Aggrieved over the same, the present second appeal has been laid. 8. As rightly determined by the first appellate Court, nowhere, in the written statement, the defendant has raised the plea that the suit properties are not the separate properties of Chinnammal or that, the suit properties are the joint family properties of the parties and that, Chinnammal is not entitled to settle the suit properties in favour of Periyasamy and the plaintiffs 3 to 5 as projected by the plaintiffs. All that, the defendant would contend in the written statement is that inasmuch as the settlement deed dated 30.05.1989 executed by Chinnammal was not acted upon and Chinnammal continued to be in the possession and enjoyment of the settled properties and enjoying the same and later cancelled the same by a deed of cancellation on 10.07.1992 and later, died leaving behind the plaintiffs and the defendant as her legal heirs, on that premise, the defendant has put-forth the claim that she is also entitled to 1/3 share in the properties as one of the legal heirs of the deceased Chinnammal. No doubt, the plaintiffs having not placed the documents evidencing that the whole of the properties settled by way of Ex.A1 settlement deed belonged to Chinnammal. Other than Ex.A19 sale deed dated 04.01.1958, the plaintiffs have not placed the other documents evidencing that Chinnammal had independent title in respect of the other items of the properties settled under Ex.A1. No doubt, the plaintiffs having not placed the documents evidencing that the whole of the properties settled by way of Ex.A1 settlement deed belonged to Chinnammal. Other than Ex.A19 sale deed dated 04.01.1958, the plaintiffs have not placed the other documents evidencing that Chinnammal had independent title in respect of the other items of the properties settled under Ex.A1. It is found that Ex.A19 corresponds to only one item of the properties settled by way of Ex.A1 deed. 9. Be that as it may, as rightly put forth by the plaintiffs' counsel when nowhere in the written statement, the defendant has disputed the entitlement of Chinnammal to execute the settlement deed marked as Ex.A1, the contention put forth that the plaintiffs have not established the title of the properties settled by Chinnammal as belonging to her as such cannot be accepted in any manner. The only defence projected by the defendant in the written statement is that the deed of settlement had been cancelled by Chinnammal by way of a deed of cancellation on 10.07.1992 and therefore, she is also entitled to claim 1/3 share in the abovesaid properties. However, as rightly determined by the first appellate Court, when by way of Ex.A1 settlement deed, Chinnammal had handed over the possession of the properties settled in favour of the settlees and also had not retained the right of revocation and thereafter, when it is found that the plaintiffs are in the possession and enjoyment of the properties settled, it is seen that the deed of cancellation projected by the defendant and marked as Ex.A18 would gain no legal force or acceptance and accordingly, the first appellate Court is found to have rightly rejected the deed of cancellation projected by the defendant. When the recitals found in the settlement deed Ex.A1 are clear as to the entrustment of the possession of the properties settled in favour of the settlees and also consented for the change of patta in the name of the settlees and the enjoyment of the same by them openly, even assuming for the sake of arguments that the settlor continued to be in the possession of the properties settled, considering the relationship of the settlees and settlor, it is seen that the continuance of the possession of the property by the settlor would not in any manner militate against the validity of the settlement deed marked as Ex.A1 or validate the deed of cancellation marked as Ex.A18. As rightly argued by the plaintiffs' counsel, as also outlined in the decisions relied upon by him (Asokan Vs.Lakshmikutty and Others, (2007) 13 SCC 210 ), (R.Kumarasamy Kounder Vs.V.Ezhumalai Kounder, (1996) 2 CTC 150 ), (Nambikkai Mary Vs. The Sub-Registrar-II, Sub-Registrar Office, Pattukkottai, Thanjavur District and another, (2015) 5 LW 648 ), (D.V.Loganathan Vs. The Sub-Registrar, Office of the Sub-Registrar, Pallavaram, Chennai 600 044 and another, (2014) 3 CTC 113 ), and (J.Kuppuswami Mudali and Others Vs. Mahalingam, (1997) 1 CTC 256 ), we could gather that the settlor is not entitled to unilaterally cancel the settlement deed after she had executed the settlement deed without any condition and also not having retained any power of revocation and even assuming for the sake of arguments that the settlees had failed to maintain the settlor, that by itself would not entitle the settlor to revoke the settlement deed executed by her and once the settlor had executed the settlement deed, she ceases to retain the ownership of the properties settled and therefore, it is seen that the case of the defendant that the settlor had subsequently cancelled Ex.A1 settlement deed by way of Ex.A18 cancellation deed cannot be given any legal approval. 10. The trial Court is found to have non suited the plaintiffs only on the footing that the plaintiffs have failed to establish that the properties settled belonged to the settlor Chinnammal. However, when the said fact has not been controverted by the defendant in the written statement, there is no need on the part of the plaintiffs to prove the same. However, when the said fact has not been controverted by the defendant in the written statement, there is no need on the part of the plaintiffs to prove the same. Even otherwise, the deed of cancellation would alone go to show that the properties settled under Ex.A1 are only the separate properties of Chinnammal. A perusal of the deed of cancellation would go to show that Chinnammal has clearly admitted the execution of the settlement deed dated 30.05.1989 and the registration of the same. Furthermore, she would aver that inasmuch as the settlees had ignored her and failed to maintain her and endeavouring to throw her out of the suit properties and on account of her old age, she had decided to cancel the settlement deed in respect of the properties owned by her and such being the recitals found in Ex.A18 deed of cancellation, when Chinnammal had asserted that the properties settled by way of Ex.A1 and cancelled by way of Ex.A18 are her separate properties and accordingly, the said fact also having not been repudiated by the defendant in the written statement in specific, it is seen that the determination of the trial Court that the plaintiffs are not entitled to obtain the reliefs sought for on the footing that they had failed to establish the ownership of the settled properties as belonging to Chinnammal as such cannot be accepted in any manner. 11. 11. In the light of the above discussions, the defendant having not taken any specific plea that the properties settled are not the separate properties of Chinnammal and only had taken the plea that the settlement deed Ex.A1 had been cancelled by way of the cancellation deed marked as Ex.A18 and thereby, after the demise of Chinnammal, the properties assumed the character of the joint family properties of the parties and accordingly, she is also entitled to obtain 1/3 share in the said properties, in such view of the matter, it is found that the contention of the defendant's counsel that the first appellate Court has not taken into consideration the character of the suit properties as the joint family properties of the parties and failed to consider the entitlement of the 1/3 share of the defendant in the suit properties as such cannot be countenanced in any manner and on the other hand, as above discussed, when on the basis of the pleadings and the materials placed on record, and as further seen, even on the strength of Ex.A18 cancellation deed, it is found that the suit properties are only the separate properties of Chinnammal and accordingly, she having settled the same in favour of the settlees under Ex.A1 and therefore, is not entitled to revoke the same by way of Ex.A18 cancellation deed and accordingly, it is seen that there is no scope for examining the character of the properties involved in the matter. Furthermore, as could be seen from the evidence of the defendant, the properties had come to be settled by way of Ex.A1 in favour of the settlees, even much prior to the marriage of the defendant with Govindan. Furthermore, as could be seen from the evidence of the defendant, the properties had come to be settled by way of Ex.A1 in favour of the settlees, even much prior to the marriage of the defendant with Govindan. Thus, it is seen that the defendant is not at all aware of the execution of the settlement deed Ex.A1 by Chinnammal as well as the character of the properties settled by Chinnammal by way of Ex.A1, accordingly, she had not chosen to dispute the entitlement of Chinnammal in executing the settlement deed Ex.A1 and on the other hand, had only raised the defence that the settlement deed Ex.A1 had not come into force as the same had been cancelled by Chinnammal by way of Ex.A18 and when however Chinnammal does not have the right to revoke the settlement deed by way of Ex.A18, it is seen that the deed of cancellation is an invalid instrument and the same need not be challenged by the plaintiff to sustain Ex.A1 in the suit. The substantial questions of law formulated in the second appeal are accordingly answered against the defendant and in favour of the plaintiffs. 12. The counsel for the defendant in support of his contention placed reliance upon the decision (R.Karuppusamy Vs. P.Sivaraj, (2014) 6 MLJ 654 ). The principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand. In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.