Madras High Court
Unknown vs S.Balaji on 8 December, 2021
S.A.No.1040 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1040 of 2021
1.Sucila Bai Ammal,
W/o.Late A.Sankara Rao Naidu,
No.44/3, Veerapandia Nagar,
First Street, Choolaimedu,
Chennai 600 094.
2.L.Murali,
S/o.Lakshmipathy
8/96, Vanniyar Street,
Choolaimedu,
Chennai 600 094.
3.S.Meenasri
D/o.Lakshmipathy,
8/96, Vanniyar Street,
Choolaimedu,
Chennai 600 094.
4.J.Bharathy,
W/o.Jayakumar,
24/1, Vanniyar 2nd Lane,
Choolaimedu,
Chennai 600 094.
5.C.Baskari,
W/o.P.A.Chikkikrishnan,
40/47, Bharathipuram,
Shenoy Nagar,
Chennai 600 030.
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S.A.No.1040 of 2021
6.R.Padmini,
W/o.P.Rajendran,
No.5, Sulochana Nagar,
Moulivakkam,
Chennai 600 116.
7.V.Padmavathy,
W/o.Venkat Rao,
Dr.Ambedkar Street,
South Park Road,
Padikuppam Road,
Chennai 600 040.
8.R.Parimala,
W/o.Raaji,
No.9, Bharathi Street,
Gandhi Road,
Velachery,
Chennai 600 042. ... Appellants
.Vs.
1.S.Balaji,
S/o.Late A.Sankara Rao Naidu
2.S.Balachandran,
S/o.Late A.Sankara Rao Naidu
Represented by his Power Agent
S.Balaji
Both are residing at No.44/3,
Veerapandia Nagar,
First Street, Choolaimedu,
Chennai 600 094
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S.A.No.1040 of 2021
3.The Sub-Registrar,
Sub-Registrar Office,
Kodambakkam,
Chennai 600 024. ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Judgment and Decree passed by the learned II Additional
City Civil Court, Chennai dated 11.01.2021 in A.S.No.359 of 2018 in
confirming the Judgment and Decree of XV Assistant Judge, City Civil
Court, Chennai dated 19.04.2018 in O.S.No.4649 of 2016.
For Appellants : Mr.S.Thiruvengadam
JUDGMENT
The Second Appeal is directed against the Judgment of the learned
II Additional Judge, City Civil Court, Chennai, dated 11.01.2021 in
A.S.No.359 of 2018, confirming the Judgment and decree of learned XV
Assistant Judge, City Civil Court, Chennai dated 19.04.2018 in
O.S.No.4649 of 2019.
2.Respondents 1 and 2 filed a Suit against the Appellants and the 3rd
Respondent for the relief that declaring the cancellation of settlement deed
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S.A.No.1040 of 2021
dated 13.05.2014, bearing Doc. No.1777 of 2014 on the file of S.R.O.,
Kodambakkam as null and void and not binding on the Plaintiffs;
declaring the settlement deed dated 13.05.2014, bearing Doc. No.1778 of
2014 on the file of S.R.O., Kodambakkam as null and void and not
binding on the Plaintiffs; for permanent injunction restraining the
Defendants 1 to 8, their men or their agents from alienating the suit
property and for costs.
3.The case of Respondents 1 and 2 is that 1st Appellant/1st
Defendant is their Mother. Defendants 2 and 3 are the nephew and niece.
Defendants 4 to 8 are the sisters of the Plaintiffs. Plaintiffs' father Sankara
Rao Naidu died on 22.06.2014. He purchased the property in old survey
Nos.128/1, 128/2 & 128/3 and new survey No.27, Block No.10 situated at
Puliyur village to an extent of 1 ground 1510 sq. ft. by a sale deed dated
30.04.1969. Out of natural love and affection, Sankara Rao Naidu settled
the suit property in favour of the Plaintiffs on 07.10.2008. Through a
registered settlement deed Sankara Rao Naidu had already executed a Will
on 28.05.1991 in favour of the Plaintiffs. In the year 2000-2001, at the
request of Sankara Rao Naidu, 1st Plaintiff sold his apartment and
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S.A.No.1040 of 2021
invested the amount, besides his savings and pledged jewels of this wife
for the construction of building in the suit property, after demolishing the
existing structure. After the death of Sankara Rao Naidu, the 1st
Defendant was living with Plaintiffs. Without knowledge of Plaintiffs,
Defendants 2 to 8 managed to take Sankara Rao Naidu to S.R.O,
Kodambakkam and made him to execute cancellation of settlement deed
on 13.05.2014. This cancellation of settlement deed executed by Sankara
Rao Naidu is illegal. Sankara Rao Naidu executed another settlement
deed dated 13.05.2014 in favour of the Plaintiffs and Defendants 2 to 8.
Both the deeds came into existence due to misrepresentation and fraud
committed by Defendants 2 to 8. Therefore, the Suit was filed for the
reliefs said above.
4.Defendants 1 to 8 filed written statement. Defendants 1 to 8
admitted the relationship between the parties, but denied the execution of
settlement deed in favour of Plaintiffs by Sankara Rao Naidu. It is
claimed that building was constructed by Sankara Rao Naidu. Plaintiffs
coerced and represented to Sankara Rao Naidu that they would take care
of him and 1st Defendant and satisfy their every need including medical
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S.A.No.1040 of 2021
and other expenses and requested Sankara Rao Naidu to settle the suit
property in favour them. Sankara Rao Naidu was hesitant for accepting
the said proposal, but on continuous assurance and promises of the
Plaintiffs, he executed a settlement deed in favour of the Plaintiff retaining
life interest. Therefore, it cannot be considered as a settlement deed. The
averments of the 1st Plaintiff that he has constructed a building in the suit
property by selling his property, using his savings and pledging his wife's
jewels are denied. After the registration of the settlement deed, the
Plaintiffs totally neglected to maintain Sankara Rao Naidu and 1st
Defendant. Therefore, he executed cancellation of settlement deed on
13.05.2014, which was registered as Doc. No.1777 of 2014 before the
S.R.O., Kodambakkam. Then Sankara Rao Naidu had executed a
settlement deed as Doc. No.1778 of 2014 in favour of Plaintiffs and
Defendants 2 to 8, giving equal share to all of them. The settlement deed
dated 07.10.2008 had come into existence due to coercion and
misrepresentation of Plaintiffs. Therefore, it was subsequently cancelled.
The suit has no merits and liable to be dismissed.
5.On the basis of this pleadings, the trial Court framed the following
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S.A.No.1040 of 2021
issues:
(i)Whether the Plaintiffs are entitled to the relief of
declaration that the cancellation of the settlement deed dated
13.05.2014 is null and void?
(ii)Whether the Plaintiffs are entitled to the relief of
declaration that the settlement deed dated 13.05.2014 is null
and void?
(iii)Whether the settlement deed dated 07.10.2008 was
obtained by coercion and misrepresentation?
(iv)Whether the settlement deed dated 07.10.2008 is not acted
upon?
(v)Whether the settlement deed dated 07.10.2008 is a Will?
(vi)To what other reliefs, the plaintiffs are entitled to?
6.During the trial, PW1 was examined and Ex.A1 to A6 were
marked on the side of the Plaintiffs and DW1 to 2 were examined and no
documents was marked on the side of the Defendants.
7.On considering the oral and documentary evidence, the learned
trial Judge found that Ex.A2 document is a settlement deed and not Will.
Therefore, unilateral cancellation of settlement deed is not in accordance
with law. In this view of the mater, the learned trial Judge decreed the
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S.A.No.1040 of 2021
Suit as prayed for.
8.Agitated against the judgment of the trial Court, Plaintiff preferred
Appeal in A.S.No.359 of 2018. The learned Appellate Judge has
considered the oral and documentary evidence, submissions of the learned
counsel for the parties, judgment of the trial Court and found that no
ground was made out for reversing the judgment of the trial Court and
confirmed the judgment of the trial Court and dismissed the Appeal.
Therefore the Appellants have come up with the Second Appeal.
9.Learned counsel for the Appellant submitted that settlement deed
was executed by Sankara Rao Naidu believing that Plaintiffs and his sons
would take care of himself and his wife/1st Appellant. However, Plaintiffs
have not taken care of the wellbeing of Sankara Rao Naidu and 1st
Appellant. Life interest has been reserved for Sankara Rao Naidu in the
settlement and only after his death, the Plaintiffs would have absolute
interest. Technically the settlement deed cannot be construed as creating
right in presenti and therefore, can be construed only as a Will. When
there is non-compliance of condition that Plaintiffs should maintain
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S.A.No.1040 of 2021
Sankara Rao Naidu and 1st Appellant, Sankara Rao Naidu has right to
cancel the settlement deed. That was what had been done in this case.
Sankara Rao Naidu has also executed a settlement deed on the same day
in Doc. No.1778 of 2014, allotting the properties equally among the
Plaintiffs and Defendants 2 to 8. He did justice by giving his property to
all the children. Therefore, cancellation of settlement deed in
Doc.No.1777 of 2014 and execution of settlement deed in Doc. No.1778
of 2014 are perfect in law. However, the Courts below on wrong
appreciation of evidence and application of law dismissed the Suit.
Therefore, he prayed for setting aside the judgment of the trial Court and
allowing of the Second Appeal.
10.Considered the submissions of the learned counsel for the
Appellant and perused the records. Parties are referred in the order in
which they were referred before the trial Court for easy understanding.
11.There is no dispute with regard to the relationship between the
parties. It is also not disputed that suit property was purchased by
Sankara Rao Naidu and the settlement deed in favour of the Plaintiffs was
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S.A.No.1040 of 2021
executed on 7.10.2008. It is the specific case of the Plaintiffs that after
execution of the settlement deed, the existing structure in the suit property
was demolished and present building was constructed by 1st Plaintiff by
spending his savings, selling his apartment and pledging his wife's jewel.
Learned 1st Appellant Judge extracted a portion of evidence of DW1. In
the evidence of DW1, which was extracted in the judgment of the first
Appellate Court, DW1 clearly admitted that house in the suit property was
constructed by the first Plaintiff 10 years before. She is living in that
house. It is also her evidence that 2nd Plaintiff only procured all the
essential items available in the house. 2nd Plaintiff invested a sum of
Rs.1,00,000/- in the year 2004 in the name of her husband, so that he
would get monthly interest of Rs.750/- per month. She very clearly
admitted that 2nd Plaintiff had taken care of her and her husband Sankara
Rao Naidu. Thus, it is clear from the admission of DW1 that the building
in the suit property was constructed with the fund provided by the 1 st
Plaintiff and 2nd Plaintiff has taken care of Sankara Rao Naidu and 1st
Defendant. Therefore, the claim that the settlement deed was cancelled by
Sankara Rao Naidu for the reason that Plaintiffs have not maintained
Sankara Rao Naidu and 1st Defendant properly falls to the ground.
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S.A.No.1040 of 2021
12.There is one more issue raised as to whether Ex.A2 deed is a
settlement deed or Will. Both the Courts have gone through this issue.
The learned trial Judge had elaborately discussed this issue, referring to
judgments, especially, the judgment reported in 1996 (9) SCC 388 in the
case of Namburi Basava Subramanyam Vs. Alapathi Hymavathi and
concluded that Ex.A2 is a settlement deed. In the judgment it was
observed that when a right, title and interest in the property is created in
presenti or interest therein intended to be transferred only on the death of
settlor, it would be a settlement. Merely because right is conferred, after
the death of settlor, it cannot be said that the document is a Will.
13.With regard to submissions of the Defendants that Plaintiffs have
not taken care of Sankara Rao Naidu and 1st Appellant, it was found on
evidence that Plaintiffs have taken good care of Sankara Rao Naidu and
1st Appellant. Even assuming that Plaintiff had not taken care of Sankara
Rao Naidu and 1st Appellant. It is open to them to move the Court for
seeking maintenance. It is not open to Sankara Rao Naidu to cancel the
settlement deed, executed in favour of the Plaintiffs unilaterally. Both the
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S.A.No.1040 of 2021
Courts have concurrently found that Ex.A2 settlement deed is irrevocable
settlement and unilateral cancellation of settlement is void. In this view of
the matter, both the Courts below decided that Plaintiffs are entitled for
the relief of declaration that cancellation of settlement deed dated
13.05.2014 bearing Doc. No.1777 of 2014 as null and void and settlement
deed dated 13.05.2014 bearing Doc. No.1778 of 2014 registered at S.R.O,
Kodambakkam as null and void and not binding on the Plaintiff and
accordingly ordered.
14.For the reasons stated, this Court finds no reason to interfere
with the judgment of the Court below. Both the Courts have considered
all the relevant issues on the basis of oral and documentary evidence and
applied the correct law. There is no substantial question(s) of law
involved in the Second Appeal. Therefore, this Court confirms the
judgment of the learned II Additional City Civil Court, Chennai dated
11.01.2021 in A.S.No.359 of 2018, confirming the Judgment and Decree
of the learned XV Assistant Judge, City Civil Court, Chennai dated
19.04.2018 in O.S.No.4649 of 2016.
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S.A.No.1040 of 2021
15.Accordingly, the Second Appeal is dismissed. However, there is
no order as to costs.
08.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
To
The learned II Additional Judge,
City Civil Court,
Chennai
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S.A.No.1040 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.1040 of 2021
Dated: 08.12.2021
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