Madras High Court
R.Selvam vs R.Mani on 22 July, 2021
A.S.No.357 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 12.07.2021
Date of Verdict : 22.07.2021
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.357 of 2016
and
C.M.P.No.8020 of 2016
R.Selvam ... Appellant
Vs.
1. R.Mani
2. V.Lakshmi
3. R.Prabath
4. Kuppayee
5. M.Balaji
6. S.Nathiya ... Respondents
PRAYER: This Appeal Suit filed under Section 96 of the Civil Procedure
Code, to set aside the decree and judgment made in O.S.No.93 of 2014 on
the file of the III Additional District Judge, Salem dated 11.12.2015.
For Appellant : Mr.C.Ravichandran for
Mr.S.B.Viswanathan
For Respondents : Mr.S.Siva Sankar (for R-1)
: Notice Served (No Appearance)
(for R-2 to R-6)
1/15
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A.S.No.357 of 2016
JUDGMENT
This Appeal Suit is directed against the judgment and decree passed
in O.S.No.93 of 2014 dated 11.12.2015 on the file of the learned III
Additional District Judge, Salem.
2. For the sake of convenience, the parties are referred to hereunder
according to their litigative status before the Trial Court.
3. The suit is filed for declaration and permanent injunction in respect
of the suit property. The case of the plaintiff is that the suit property
belonged to the first defendant as per the preliminary decree passed in
O.S.No.18 of 2010 dated 08.12.2011 on the file of the Fast Track Court
No.2, Salem. The first defendant filed suit against her brothers and the suit
property was allotted in her favour. Thereafter, the first defendant had
executed a registered gift settlement deed in favour of the plaintiff on
08.03.2012. From the date of the gift settlement deed, the plaintiff had taken
possession of the suit property and he is in possession and enjoyment of the
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same. In the meanwhile, under the influence of defendants 2 to 4, the first
defendant executed a registered cancellation deed dated 03.07.2012
unilaterally. On the same day, the first defendant executed another gift
settlement deed in favour of the plaintiff and the defendants 2 to 4. The said
cancellation deed and the subsequent gift settlement deed executed by the
first defendant are void-ab-initio. Once, the first defendant had lost her title
to the suit property, after execution of registered settlement deed in favour
of the plaintiff, she has no title over the property. On the strength of the
settlement deed executed in favour of the defendants 2 to 4, they created
encumbrance by execution of agreement for sale with the defendants 5 and
6. Hence, the suit for declaration and permanent injunction.
4. Resisting the same, the defendants filed a written statement stating
that the suit property originally belonged to the first defendant as per the
preliminary decree passed in O.S.No.18 of 2010. The first defendant was
allotted the suit property and on compulsion, the first defendant executed
the alleged gift deed in favour of the plaintiff, that too without the
knowledge of the defendant 1. After coming to know about the settlement
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A.S.No.357 of 2016
deed, which was obtained fraudulently by the plaintiff, the first defendant
had executed a cancellation deed and also another settlement deed dated
03.07.2012. When that being so, without challenging the cancellation of
settlement deed and another settlement deed dated 03.07.2012, the suit filed
challenging the subsequent agreement for sale, is not maintainable and
liable to be dismissed.
5. On completion of pleadings of the both sides, the Trial Court
framed the following issues:-
“(i) Whether the plaintiff is entitled to the relief of
declaration over the suit property?
(ii) Whether the plaintiff is entitled to the relief of
permanent injunction?
(iii) to what other relief?”
6. On the side of the plaintiff, he was examined as P.W.1 and the
documents were marked as Ex.A.1 to Ex.A.6. On the side of the defendants,
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A.S.No.357 of 2016
D.W.1 was examined and no documents were marked.
7. On a perusal of the oral and documentary evidence, the Court
below decreed the suit in favour of the plaintiff. Aggrieved by the same, the
appellant/second defendant alone preferred this Appeal Suit.
8. The learned counsel for appellant/second defendant submitted that
Ex.A.1 was obtained by the plaintiff by misrepresentation and he played
fraud, that too without knowledge of the first defendant. Thereafter, it was
not acted upon and the first defendant rightly cancelled the gift deed by
cancellation deed and the same was duly registered. The plaintiff had
executed the alleged settlement deed by undue influence by fraud and as
such, the plaintiff did not approached the Court with clean hands, which
amounts to abuse of process of law. In fact, the plaintiff failed to challenge
the cancellation deed and also failed to examine D.W.1. Therefore, the suit
ought not to have decreed in favour of the plaintiff. He further submitted
that if one of the phase of the document relating to the nature of the
transaction covered by the document appears to be either unconscionable or
unnatural one, the burden of proving that the transaction was not induced by
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undue influence was considered uniformly to rest with the beneficiary under
the document. Here the plaintiff failed to prove that the settlement deed was
executed without any influence and fraud. In support of his contentions, the
learned counsel for the appellant/second defendant relied upon the
judgments reported in (2004) 9 SCC 468 (Krishna Mohan Kul -vs-
Pratima Maity), 2008 (2) CTC 433 (Suguna -vs- Vinod G.Nehemiah),
1996-2-L.W.600 (Dharman & 6 others -vs- Marimuthu), CDJ2014 MHC
545 (P.Venkata Raja Rao -vs- R.N.Krishnaveni & Others), (1994) 1 SCC 1
(S.P.Chengalvaraya Naidu -vs- Jagannath) and (2015) 1 SCC 705
(Zarina Siddiqui -vs- Ramalingam).
9. Per contra, the learned counsel for the first respondent/plaintiff
contented that the plaintiff claimed the suit property under the registered
settlement deed. Once, the document is registered, the presumption is in
favour of the beneficiary. Therefore, the plaintiff need not prove the same,
once it got registered. In this regard, the learned counsel for the first
respondent/plaintiff relied upon the judgment reported in (2019) 2 SCC 727
(Jamil Begum -vs- Shami Mohd), in which it has been held as follows:-
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“27. Insofar as the plea that the documents are vitiated
by undue influence, as rightly contented by the learned Senior
Counsel for the appellant, the plaint averments are vague. It
is alleged by Respondent 1-plaintiff that Wali Mohd had illicit
relationship with appellant Jamila Begum and that he was
mentally infirm on the date of the alleged sale deed and that
the sale deed was obtained by taking undue advantage of his
infirmity and illicit relationship.
28. Insofar as the plea of undue influence, merely
because the parties are related to each other or merely
because the executant was old or of week character, no
presumption of undue influence can arise. The Court must
scrutinise the pleadings to find out that such plea has been
made out before examining whether undue influence was
exercised or not.
29. While considering the aspect of plea of undue
influence and onus probandi, in Subhas Chandr Das Mushib
v.Ganga Prasad Das mushib AIR 1967 SC 878, it was held as
follows: (AIR p.880, paras 4 & 7)
“4. Under Section 16(1) of the Contract Act a
contract is said to be induced by undue influence where
the relations subsisting between the parties are such that
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A.S.No.357 of 2016
one of the parties is in a position to dominate the will of
the other and uses that position to obtain an unfair
advantage over the other. This shows that the court
trying a case of undue influence must consider two things
to start with, namely, (1) are the relations between the
donor and the donee such that the donee is in a position
to dominate the will of the donor, and (2) has the donee
used that position to obtain an unfair advantage over the
donor?
7. The three stages for consideration of a case of undue
influence were expounded in Raghunath Prasad Sahu v.Sarju
Prasad Sahu (1923 SCC OnLine PC 62 in the following
words:
“In the first place the relations between the parties
to each other must be such that one is in a position to
dominate the will of the other. Once that position is
substantiated the second stage has been reached viz., the
issue whether the contract has been induced by undue
influence. Upon the determination of this issue a third
point emerges, which is that of the onus probandi. If the
transaction appears to be unconscionable, then the
burden of proving that the contract was not induced by
undue influence is to lie upon the person who was in a
position to dominate the will of the other.
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A.S.No.357 of 2016
Error is almost sure to arise if the order of these
propositions be changed. The unconscionableness of the
bargain is not the first thing to be considered. The first
thing to be considered is the relations of these parties.
Were they such as to put one in a position to dominate the
will of the other?”
He further submitted that the defendants did not even whisper about the
misrepresentation or fraud committed by the plaintiff on execution of the
gift deed in his favour. In fact, the defendants failed to examine D.W.1, who
executed the settlement deed in favour of the plaintiff and thereafter, she
cancelled the settlement deed by cancellation deed. When the defendants
failed to prove that the plaintiff obtained the settlement deed on fraud, the
settlement deed executed in favour of the plaintiff has become valid one and
the trial Court rightly decreed the suit in favour of the plaintiff. Therefore,
he prayed for the dismissal of the Appeal Suit.
10. Heard both sides.
11. The plaintiff and the defendants 2 to 4 are the children of the first
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defendant. The suit property originally belonged to the first defendant by
way of preliminary decree passed in O.S.No.18 of 2010 dated 08.12.2011
on the file of the Fast Track Court No.2, Salem. In the preliminary decree,
the first defendant was allotted the suit property. The first defendant
executed the settlement deed in favour of the plaintiff on 08.03.2012 and
the same was duly registered, which was marked as Ex.A-1.
12. On a perusal of Ex.A.1, there is specific recital that the first
defendant has no right to revoke the settlement deed and even if she does
so, it is not legally valid. Thereafter, unilaterally she executed the
cancellation deed and thereby, cancelled the settlement deed executed in
favour of the plaintiff by the cancellation deed dated 03.07.2012. On the
same day, the first defendant executed settlement deed in respect of the suit
property in favour of the plaintiff and the defendants 2 to 4. On the strength
of the settlement deed, the 4th defendant executed an agreement for sale in
favour of the 5th defendant in respect of her 1/4th share. Likewise, the 2nd
defendant also executed another agreement for sale in favour of the sixth
defendant in respect of her 1/4th share in the suit property.
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13. It is curious to note that the entire issues are revolving around the
first defendant. Even then, the other defendants failed to examine the first
defendant to support their case whether Ex.A-1 was obtained on
compulsion, misrepresentation or by fraud or undue influence. Though the
defendants stated in their written statement that Ex.A-1 was executed in
favour of the plaintiff by fraud, misrepresentation or undue influence, the
defendants miserably failed to prove the same. As rightly pointed out by the
learned counsel for the plaintiff, once the property settled by the registered
settlement deed in favour of the plaintiff, the first defendant had lost her
right title over the suit property. Therefore, she cannot unilaterally cancel
the settlement deed by execution of cancellation deed. Therefore, the
judgments relied upon by the learned counsel for the appellant/second
defendant are not helpful to the case on hand.
14. As stated supra, on a perusal of Ex.A-1 settlement deed, there is a
specific recital that the first defendant as no power to revoke the gift deed
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and even if she cancelled the deed, the said cancellation would not be valid.
When no right has been reserved by the first defendant to cancel the
settlement deed, the Court below rightly declared the title in respect of the
suit property in favour of the plaintiff. If at all the defendants 2 to 4 have
grievance over the settlement deed executed in favour of the plaintiff, they
ought to have challenged the settlement deed executed in favour of the
plaintiff in the manner known to law. Therefore, the Court below rightly
held that the cancellation deed is non-est in law. That apart, no material
evidence was produced by the defendants to substantiate their contentions
as averred in their written statement. Except the first defendant, no one was
examined on their behalf to strengthen the execution of cancellation deed. It
is settled law that in settlement, once the settlee accepts the transfer, it is
presumed that the said document has been acted upon irrespective of the
fact whether the settlee has obtained possession immediately or not.
15. The Hon'ble Supreme Court of India in the judgment reported in
(2019) 2 SCC 727 (Jamil Begum -vs- Shami Mohd), held that there is a
presumption that a registered document is validly executed. A registered
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document, therefore, prima facie would be valid in law. The onus of proof,
thus, would be on a person who leads evidence to rebut the presumption. In
the case of hand, the defendants failed to rebut the said presumption by oral
or material evidence. Therefore, this Court finds no infirmity or illegality in
the order passed by the Court below.
16. Accordingly, this Appeal Suit is dismissed. Consequently, the
connected Miscellaneous Petition is closed. No costs.
22.07.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
1. The III Additional District Judge, Salem.
2. The Section Officer,
V.R.Section, High Court of Madras.
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A.S.No.357 of 2016
G.K.ILANTHIRAIYAN,J.
Kv
Judgment made in
A.S.No.357 of 2016
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A.S.No.357 of 2016
22.07.2021
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