Madras High Court
Vadivel vs Hema Latha on 24 February, 2022
SA.No.105/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.105/2022
Vadivel .. Appellant/1st Defendant
Vs.
1.Hema Latha
2.Minor Kajan Kumar
3.Minor Keerthana .. Respondents 1 to 3/Plaintiff 1 to 3
4.Renuka
5.Tamilselvi .. Respondents 4 & 5/Defendants 2 & 3
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code to call for the records and set aside the judgment and decree dated
01.04.2021 passed in A.S.No.28/2019 by the learned I Additional
Subordinate Judge, Erode which confirming the judgment and decree of
the Trial Court dated 15.11.2018 passed in O.S.No.96/2017 on the file of
the District Munsif Cum Judicial Magistrate Kodumudi, Erode.
For Appellant : Mr.T.Sathyaseelan
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SA.No.105/2022
JUDGMENT
(1) The 1st defendant in the Suit in O.S.No.96/2017 on the file of the
learned District Munsif Court, Kodumudi is the appellant in the
Second Appeal.
(2) Respondents/plaintiffs 1 to 3 in this appeal filed the Suit in
O.S.No.96/2017 for declaration of Cancellation Deed dated
08.07.2009, executed and registered by deceased Karuppayee
Ammal is void and invalid and for declaration that the subsequent
Settlement Deed dated 15.07.2009 executed by Karuppayee Ammal
in favour of the appellant/1st defendant is void and invalid. The Suit
is also for consequential prayer for injunction restraining the
appellant/1st defendant from interfering with the peaceful possession
and enjoyment of the respondents/plaintiffs.
(3) It is not disputed that the Suit properties originally belonged to one
Karuppayee Ammal, the mother of appellant by virtue of family
partition dated 04.01.1975. 1st plaintiff is the wife of one Suresh who
is the grandson of Karuppayee Ammal. Plaintiffs 2 and 3 are the
daughters of Suresh. The father in law of the 1st plaintiff and 1st
defendant are brothers and sons of Karuppayee Ammal. Defendants
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2 and 3 are the grand daughter of Karuppayee Ammal. Stating that
the 1st defendant tried to interfere with the plaintiffs' possession, the
Suit was filed. It is admitted that the said Karuppayee Ammal
executed a registered Settlement Deed dated 20.10.2004 in respect
of Suit properties in favour of 1st plaintiff 's husband and defendants
2 and 3. It is specifically pleaded by the plaintiffs in the plaint that
the Settlement Deed was accepted and acted upon. Possession was
also handed over to the donees as per the recitals of the document.
After the death of Thiru.Suresh, the Suit properties are enjoyed in
common by plaintiffs and defendants 2 and 3. It is contended by the
plaintiffs that defendants 2 and 3 had relinquished their right in
favour of plaintiffs as per the final decree in the Suit for partition in
O.S.No.226/2015.
(4) The relationship between the parties is not in dispute. However, the
1st defendant filed the Written Statement specifically disputing the
possession and enjoyment of the Suit property by the plaintiffs. It is
contended by the 1st defendant that the Settlement Deed originally
executed by the Karuppayee Ammal was subsequently cancelled by
another document deed dated 08.07.2009.
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(5) Since Karuppayee Ammal executed a subsequent Settlement Deed in
favour of the 1st defendant, it is contended that the 1st defendant had
obtained possession under the subsequent Settlement Deed and he is
the absolute owner.
(6) The Trial Court after framing necessary issue as to the validity of the
Deed of Cancellation, has specifically found that the original
Settlement Deed executed under Ex.A1 dated 20.04.2004 was
accepted and acted upon, and hence declared the cancellation of
Settlement Deed as invalid and void.
(7) The subsequent Settlement Deed under Ex.A2 was therefore held to
be invalid and void by the Trial Court relying upon a judgment of
this Court. Since, the appellant/1st defendant did not prove his
possession or enjoyment over the Suit property, by producing any
documents, based on the documents produced by plaintiffs under
Ex.A1 and A4, the Trial Court found that the plaintiffs are in
possession of the Suit property. Therefore, the Trial Court after
finding all issues against the appellant/1st defendant decreed the Suit
as prayed for. Aggrieved by the judgment and decree of the Trial
Court, the 1st defendant preferred an Appeal in AS.No.28/2019
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before the I Additional Sub Court, Erode.
(8) The Lower Appellate Court also dismissed the appeal after holding
that the Settlement Deed executed under Ex.A1 is valid and all the
subsequent documents by which the 1st defendant claimed title are
void and invalid. As regards the question of possession also, the
Lower Appellate Court held that the plaintiffs are in possession and
enjoyment of the Suit property. Having executed the Settlement, the
Courts below specifically held that the settlor namely Karuppayee
Ammal has no right to deal with the property or to cancel the
Settlement Deed as it was done under Ex.A2. Both the Courts below
have concurrently held against the appellant while rejecting all the
issues raised by the appellant. Aggrieved by the concurrent
judgments and decrees of the Courts below the above Second
Appeal is filed.
(9) Learned counsel appearing for the appellant raised the following
substantial questions of law in the Memorandum of Appeal.
1.Whether non-delivery of possession and non-
exercising of any rights over the ownership of the
property, the donee has failed to make mutation in the
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records would not make the gift deed invalid?
2.Whether there is any prohibition in law that
ownership in property cannot be gifted without its
possession and right of enjoyment?
3.Whether the Suit is barred by limitation under
Article 59 of the Limitation Act?
4.Whether the Judgment of the Courts below is
vitiated in granting injunction while the plaintiffs
have not proved their possession over the Suit
properties on the date of filing of the Suit?
(10) The Trial Court and the Lower Appellate Court have categorically
found that the document Ex.A1was acted upon and possession was
delivered to the plaintiffs as recited in the deed of Settlement. As
evident from Ex.A4, the beneficiaries under the Settlement Deed got
the Suit properties allotted in final decree proceedings. Merely
because the revenue records have not been transferred immediately
after Settlement Deed, the Court cannot come to the conclusion that
the Settlement Deed under Ex.A1 was not acted upon. No document
is filed by 1st defendant. Therefore the 1st question of law has no
substance.
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(11) It is to be noted that the Courts below have specifically found that
the plaintiffs are in possession and enjoyment of the Suit property.
This Court is unable accept the argument of the appellant with
regard to the 2nd question of law which does not reflect a legal point
on the admitted facts.
(12) Learned counsel appearing for the appellant has argued the 3rd
question of law by referring to Article 59 of the Schedule to the
Limitation Act. It is true that Article 59 prescribes a period of three
years to cancel or set aside the instrument from the date of
instrument or from the date when the plaintiffs come to know about
the recision.
(13) In the present case, the Suit is not for cancelling the document but
for declaration that the cancellation of earlier Settlement Deed and a
subsequent Settlement Deed is void. The status of the instruments
are sought to be declared as invalid on the ground that the settlor has
no right. The cause of action arose when the plaintiffs had
knowledge about the recision of settlement or when possession is
sought to be disturbed by relying upon the subsequent transaction.
In this case, the plaintiffs have specifically come forward with the
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case that the cancellation of the Settlement Deed came to the
knowledge just before filing the Suit and therefore, the question of
law has to be answered in favour of the respondents.
(14) In view of the specific findings of the Courts below in the light of
evidence and the recitals in the Settlement Deed this Court has no
hesitation to hold that the findings of the Courts below are perfectly
in order and the plaintiffs have established their right and title under
the 1st Settlement Deed. The appellant has no semblance of right.
This Court finds no merits in the Appeal.
(15) Hence, the Second Appeal is dismissed confirming the judgment and
decree dated 01.04.2021 made in AS.No.28/2019 by the learned I
Additional Subordinate Judge, Erode in confirming the judgment
and decree dated 15.11.2018 made in OS.No.96/2017 by the learned
District Munsif cum Judicial Magistrate, Kodumudi, Erode.
24.02.2022
cda
Internet : Yes
S.S.SUNDAR, J.,
cda
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SA.No.105/2022
To
1. The I Additional Subordinate Judge, Erode.
2.The District Munsif cum Judicial Magistrate,
Kodumudi, Erode.
3.The Section Officer, VR Records,
High Court, Chennai.
SA.No.105/2022
24.02.2022
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