Madras High Court
Rathinambal vs Singara Kounder on 20 April, 2022
S.A.No.230 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.230 of 2014
and MP No.1 of 2014
Rathinambal ... Appellant
Vs.
Singara Kounder ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree passed by the I Additional
District Judge, Tindivanam in AS No.35 of 2009, dated 3.7.2013
confirming the judgment and decree passed by the Principal District
Munsif, Tindivanam in O.S.No.69 of 2006, dated 29.11.2008.
For Appellant : Mr. Karthik Raja
M/s.G.Karthikeyan
For Respondent : Mr.D.Ravichander
1/9
https://www.mhc.tn.gov.in/judis
S.A.No.230 of 2014
JUDGMENT
The plaintiff is the appellant in this Second Appeal.
2. The plaintiff filed the suit seeking for the relief of declaration of
title and delivery of possession. The plaintiff also sought for the relief of
permanent injunction restraining the defendant from alienating the suit
properties.
3. The case of the plaintiff is that the suit properties originally
belonged to one Irusappa Gounder. On his demise, his legal heirs namely
Devaraj Gounder and Singara Gounder inherited the property and they
were in possession and enjoyment of the same. The plaintiff is the
daughter of Devaraj Gounder and the defendant in the suit is Singara
Gounder. The further case of the plaintiff is that the suit properties are in
possession and enjoyment of the defendant and he sold his half share in
the properties and agreed to give the other half share to the plaintiff. A
Settlement Deed was executed in favour of the plaintiff on 09.02.2004 by
the defendant and the share of the plaintiff was given to her. However,
subsequently the defendant cancelled the Settlement Deed on 25.05.2005,
marked as Ex.A3/B1. Left with no other option, the plaintiff filed the suit
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S.A.No.230 of 2014
seeking for the reliefs stated supra.
4. The case of the defendant was that the suit properties are his self-
acquired properties. A Settlement Deed was executed in favour of the
plaintiff with a prior condition that he had to maintain the wife of the
defendant. Since this condition was not fulfilled by the plaintiff,
Settlement Deed was cancelled. Hence the defendant denied the very right
and title of the plaintiff over the suit property. Accordingly, the defendant
sought for the dismissal of the suit.
5. The suit was dismissed by the Trial Court through judgment and
decree dated 29.11.2008. Aggrieved by the same, an Appeal was filed in
AS No.35 of 2009, before the Sub Court, Dindivanam. The Lower
Appellate Court remanded the suit back to the Trial Court for hearing the
suit afresh and also permitted both the parties to lead further evidence.
This was challenged by the defendant before this Court in CMA No.3510
of 2010 and this Court allowed the Appeal by an order dated 09.10.2012
and gave a direction to the Lower Appellate Court to record the evidence
and decide the Appeal on merits. Accordingly, the plaintiff examined
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S.A.No.230 of 2014
P.W.4 and P.W.5 and Ex.A5 was marked. Similarly D.W.1 was recalled
and cross-examined by the plaintiff and Ex. A6 was marked. Ex.B4 patta
was also marked.
6. The Lower Appellate Court on considering the facts and
circumstances of the case and after appreciating the oral and documentary
evidence, dismissed the Appeal through judgment and decree dated
03.07.2013. Thereby the judgment and decree of the Trial Court was
confirmed. Aggrieved by the same, the plaintiff has filed this Second
Appeal.
7. Heard Mr. Karthik Raja, learned counsel appearing for the
appellant and Mr.D.Ravichander, learned counsel appearing for the
respondent. This Court also carefully perused the materials available on
record and the findings rendered by both the Courts below.
8. The learned counsel for the appellant relying upon Exs.A1 and
A2 submitted that the defendant had already sold the properties that were
allotted in his favour in the partition. There was no material to show that
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S.A.No.230 of 2014
there was a partition between the parties and it is the specific case of the
defendant that all the properties are his self-acquired properties. The
defendant had executed the Settlment Deed in favour of the plaintiff on
09.02.2004 and in this Settlement Deed, the defendant has specifically
stated that the properties are his self-acquired properties. It was further
mentioned in the Settlement Deed that the plaintiff should maintain the
defendant and his wife and after their demise, the property will absolutely
vest in favour of the plaintiff. This document also contained a clause to
the effect that the defendant reserves the right to cancel the document in
the absence of the plaintiff not fulfilling the condition prescribed under the
Settlement Deed.
9. The plaintiff did not prove that the properties are in the nature of
ancestral properties. In any case, the plaintiff was only tracing the right
from the Settlement Deed executed in her favour by the defendant. It is
admitted that the property is in possession and enjoyment of the defendant
and that is why the plaintiff had also sought for the relief of recovery of
possession. If the plaintiff is tracing the right on the ground that the
properties are in the nature of ancestral properties, she cannot seek for the
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S.A.No.230 of 2014
relief of declaration of title and at the best, she can only seek for the relief
of partition and for allotment of her share.
10. Both the Courts below took into consideration the fact that the
Settlement Deed was executed by the defendant by imposing certain
condition and since the condition was not fulfilled, the Settlement Deed
was revoked. If the plaintiff was aggrieved by the same, she should have
challenged the document cancelling the Settlement Deed. Instead the
plaintiff sought for the relief of declaration of title based on the Settlement
Deed which was already revoked.
11. Both the Courts below found that the plaintiff was not clear
about the stand taken by her with respect to the nature of the suit property,
and hence it was found that the plaintiff did not establish her right and title
over the suit property. In any event, Section 126 of the Transfer of
Property Act, provides for circumstances under which it will be open to
the donor to revoke the document. It is now a settled law that the condition
imposed under the Settlement Deed/Gift Deed must be a condition
subsequent which has to be fulfilled by the donee/settlee and such
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S.A.No.230 of 2014
condition must be expressly provided in the document. In the present
case, such a condition was imposed in the settlement Deed itself and it was
not fulfilled by the plaintiff and therefore, the defendant proceeded to
cancel the Settlement Deed through Ex.A3/B1.
12. In the considered view of this Court, the findings rendered by
both the Courts below is supported by sufficient reasons and this Court
does not find any perversity in those findings. There is absolutely no
ground to interfere with the judgment and decree passed by both the
Courts below. In any event, no substantial questions of law are involved
in this Second Appeal.
13. In the result, the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
20.04.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
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S.A.No.230 of 2014
To
1. The I Additional District Judge,
Tindivanam.
2. The Principal District Munsif,
Tindivanam.
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.230 of 2014
N. ANAND VENKATESH, J.
jv
Second Appeal No.230 of 2014
and MP No.1 of 2014
20.04.2022
https://www.mhc.tn.gov.in/judis
