Madras High Court
Shanmugam vs Komalavalli on 10 March, 2021
S.A.No.215 of 2021 & CMP.No.4299 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No.215 of 2021
& CMP.No.4299 of 2021
1.Shanmugam
2.Kathirvel ... Appellants
Versus
Komalavalli ... Respondent
Second Appeal is filed under Section 100 of the Civil Procedure
Code, to call for the records of the lower court and set aside the decree and
Judgment of the first appellate court passed in A.S.No.42 of 2013 dated
22.01.2019 on the file of the Subordinate Judge, Kanchipuram confirming the
decree and Judgment of the trial court passed by the Additional District Munsif,
Kanchipuram in O.S.No.132 of 2009 dated 17.11.2012 and allow the appeal
with costs.
For Appellants : Mr.V.Manisekaran
For Respondents : Mr.S.Lakshmanasamy for Caveator
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
JUDGMENT
The second appeal has been filed to call for the records of the lower
court and set aside the decree and Judgment of the first appellate court passed
in A.S.No.42 of 2013 dated 22.01.2019 on the file of the Subordinate Judge,
Kanchipuram confirming the decree and Judgment of the trial court passed by
the Additional District Munsif, Kanchipuram in O.S.No.132 of 2009 dated
17.11.2012.
2.The suit was filed by the plaintiff, who is the respondent herein for
declaration, to declare the plaintiff is the absolute owner of the suit schedule
property and for recovery of possession. The suit was decreed by the trial court
and upheld by the first appellate court. The appellants are defendants in the
suit.
3.The learned counsel appearing for the appellants submitted that
both the courts below have not considered about nature of the property. The
properties are joint family property. The father of the appellants has settled the
property initially in favour of his daughter/respondent on 14.06.2000, with
absolute right. The father of the plaintiff, subsequently revoked the said
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
settlement deed through revocation deed dated 16.02.2001 and thereafter, there
was a partition among the father and the defendant Nos.1 and 2 on 21.03.2001,
whereby the property was divided by 1/3 each. Now the appellants are in
possession and enjoyment of the property. In the year 2009, the present suit
was filed by the plaintiff/respondent to delcare that the plaintiff is the absolute
owner of the suit property without any prayer to set aside the revocation of
settlement deed dated 16.02.2001. These aspects were not considered by the
courts below. Furthter, the plaintiff has not taken any steps to prove the
settlement deed under Section 123 of the Transfer of Property Act, by
examining the attesting witnesses. Therefore, the Judgment and the Decree
passed by the courts below is not proper and liable to be set aside.
4.The learned counsel for the appellants have suggested the following
substantial question of law and to admit this Second Appeal:
''i. Whether a party in the Hindu Joint Family can
execute the Settlement Deed in favour of any 3rd Party is
valid in eye of law?
ii. When a Settlement has been cancelled by a
registered document without questioning the said
cancellation deed seeking the prayer of declaration of title
is valid in eye of law?
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
iii. Whether it is necessary to examination of the
witness under Section 68 of the Evidence Act to be followed
to prove the settlement deed under Section 123 of Transfer
of Properties Act?
iv. Whether the suit is bad on non jointer of the
other sisters as party to the proceedings?
v. When the defendants have been in possession
and enjoyment of the suit schedule properties after the
cancellation of the settlement deed amounts to settlement
deed has been acted upon or not? and
vi. When the settlement deed was executed on
14.06.2000 subsequently it was cancelled on 16.02.2001,
the claim of the plaintiff for declaration was filed on
29.04.2009 is with in time or barred by limitation?''
5.This court has perused the Judgments of both the trial court as well
as the first appellate court and perused the records. In the present case, the
respondent appeared by Caveat. Upon perusal, it reveals that initially the father
of the plaintiff/respondent herein settled the property by way of the settlement
deed dated 14.06.2000, in favour of his daughter/plaintiff. The suit property
was purchased in the year 1957. One of the contention raised by the appellants
herein was that it is a joint family property and the property was purchased in
and out of the income of the family members of the joint family. The
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
appellants were started to earn from the year 1976 and the property was
purchased in and out of the income of the joint family members.
6.As far as the contention of the family members income is
concerned, the appellants started to earn in the year 1976. The present property
was purchased in the year 1957, therefore, it could not have been purchased out
of the income of the joint family members as contented by the appellants. The
said aspect was rightly dealt with by both the courts below.
7.Yet another contention was raised stating that the appellants father
and their grand father constituted a Hindu Joint Family and the property was
purchased during the life time of their grandfather, out of the joint family
income constituted by the plaintiff's father and grandfather. Therefore, the said
property is a joint family property as the father of the appellants not entitled to
settle entire property in favour of the plaintiff. However, both the courts below
held as the plaintiff's grand father would be a senior member of the joint family
property, in such case, they would have purchased in the name of the plaintiff's
grand father and not in the name of the plaitniff's father. Hence they concluded
that the stand taken by the plaintiff is more acceptable than the appellants
defence. The next defence raised by the appellants is that the cancellation deed
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
was not challenged. To the above defence taken by the defendants, the
plaintiff's contention was that the cancellation deed need not be challenged as it
is a void document and the void documents need not be challenged in view of
the provisions in Section 31 of the Specific Relief Act.
8.As far as the other issues raised by the appellants with regard to
failure to examine the attesting witnesses of the settlement deed made in favour
of the plaintiff dated 14.06.2000, failure to mutate the revenue records in the
name of plaintiff, the possession was not handed over to her and she does not
know the boundaries of the suit property are concerned, the settlor is her father
and the property was settled by virtue of the settlement deed, the plaintiff has
derived valid title through Ex.A1, hence she is entitled for recovery of
possession. These issues also rightly decided by both courts below.
9.As far as issue raised by the appellants that the father was not in a
position to execute the settlement deed due to his mental conditions, is
concerned, nothing mentioned anything about his mental condition in the
cancellation of settlement deed. Certainly if the settlement deed was cancelled
for the reason of settler's poor mental condition at the time of execution of
original settlement deed in favour of his daughter, the same should have been
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S.A.No.215 of 2021 & CMP.No.4299 of 2021
reflected in the cancellation of settlement deed. But nothing is available in the
deed of cancellation about the mental aspect of the father. Hence, this point
also rightly rejected by both the courts below.
10.Under these circumstances, I do not find any irregularity or
infirmity in the Judgment and the decree passed by the courts below and this
court does not find any substantial question of law as suggested by the learned
counsel for the appellants that arises for consideration and there is no merit in
this second appeal. Hence, this Second Appeal deserves to be dismissed.
10.In view of the above the second appeal stands dismissed. No
costs. Consequently, the connected miscellaneous petition is closed.
10.03.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ah
To
1.The Subordinate Judge, Kanchipuram.
2.The Additional District Munsif,
Kanchipuram.
https://www.mhc.tn.gov.in/judis/
S.A.No.215 of 2021 & CMP.No.4299 of 2021
KRISHNAN RAMASAMY, J.,
ah
S.A.No.215 of 2021
& CMP.No.4299 of 2021
10.03.2021
https://www.mhc.tn.gov.in/judis/
