Madras High Court
Kandasamy vs Thanga Selvi on 4 July, 2022
S.A.No.1325 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2022
CORAM
THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN
Second Appeal No.1325 of 2004
and
C.M.P.No.3553 of 2022
Kandasamy ... Appellant
Versus
1.Thanga Selvi
2.Yoga Lakshmi
3.Eswari ...Respondents
Prayer: The Second Appeal filed under Section 100 of the Code of
Civil Procedure, against the Judgment and Decree made in A.S.No.430 of
2002, dated 30.07.2003, on the file of the Principal District Court,
Namakkal and confirming the Judgment and Decree in O.S.No.374 of 1997,
dated 15.10.1998 on the file of the Additional District Munsif's Court,
Namakkal.
For Appellant : M/s.S.Uma Maheswari
for Mr.C.Jagadish
For Respondents : Mr.V.Srikanth
for Mr.C.Thangaraj
1/12
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S.A.No.1325 of 2004
JUDGMENT
The defendant in O.S.No.374 of 1997 on the file of the Additional
District Munsif Court at Namakkal, who had suffered a decree by the
Judgment dated 15.10.1998 and also an adverse Judgment dated 30.07.2003
in subsequent Appeal filed by him in A.S.No.430 of 2002 before the
Principal District Court at Namakkal, is the appellant herein.
2. The said suit in O.S.No.374 of 1997 had been filed by the
respondents herein, seeking declaration of title on the basis of a Settlement
Deed, dated 15.02.1985 said to have been executed by the
appellant/defendant and for permanent injunction restraining the defendant
therein/appellant from interfering with peaceful possession and also for
costs of the suit.
3. The property which was the subject matter of the litigation, was
Grama Natham in Survey No.210, situated in a larger extent of land and
consisted of a thatched house and land in Erumaipatty Village, Namakkal
District.
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S.A.No.1325 of 2004
4. It had been the contention of the learned counsel for the
respondents herein, that the appellant/defendant in the suit had executed a
Settlement Deed on 15.02.1985 with respect to the suit property and that
under the Settlement Deed, the respondents herein were the settlees.
5. It was contended that the mother of the respondents viz.,
Nallammal had died in the year 1983 and thereafter, the appellant had
married again and was living with that family. Thereafter, with respect to
the suit property, the appellant had executed a Settlement Deed on
15.02.1985. Claiming that the title had therefore passed under the
Settlement Deed and further claiming that they are in possession, the suit
had been filed seeking a declaration of title on the basis of the Settlement
Deed and also to protect possession.
6. The appellant/defendant had filed a written statement, wherein, the
relationship had been admitted. He had further stated that on 21.05.1987, a
Cancellation Deed had been executed by cancelling the Settlement Deed
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S.A.No.1325 of 2004
and it is therefore contended that the suit, based on the Settlement Deed
which had been cancelled, should not be considered by the Court and that
the respondents/plaintiffs should be non-suited.
7. The parties went to trial on the basis of the pleadings as aforesaid.
The Trial Court/Additional District Munsif Court at Namakkal, had framed
the following issues for consideration:
(1) Whether the plaintiffs were under the guardianship of Chettiyar
Gounder?
(2) Whether the Settlement Deed dated 15.02.1985 had been put into
effect?
(3) Whether the contention of the defendant that the plaintiffs were
not entitled under the Settlement Deed is correct?
(4) Whether the plaintiffs and Chettiyar Gounder had been living as a
joint family?
(5) Whether the defendant was paying a sum of Rs.1,000/- as rent
with respect to the suit property and for maintenance of the plaintiffs?
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S.A.No.1325 of 2004
(6) Whether the amount in the bank was an exclusive amount of the
defendant?
(7) Whether the suit property was in the possession of the defendant?
(8) Whether the plaintiffs can seek declaration of title on the basis of
the Settlement Deed, dated 15.02.1985? and
(9)To what other reliefs the parties are entitled to?
8. During the course of trial, on the side of the plaintiffs, one
Chettiyar Gounder was examined as P.W.1. The defendant examined
himself as D.W.1. The plaintiffs also marked Exs.A1 to A3. Ex.A1 is the
Settlement Deed dated 15.02.1985. Ex.A2 and Ex.A3 were exchange of
notices. The defendant marked Exs.B1 to B24. Ex.B4 dated 21.05.1997 is
the Cancellation of Settlement Deed. Ex.B5 - B24 were the Tax Receipts
and receipts for payment of Taxes towards the business conducted by the
defendant.
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S.A.No.1325 of 2004
9. On the basis of the oral and documentary evidence, the Trial Court
found as a fact that the Settlement Deed had been executed and had been
registered in manner known to law.
10. It had been further very specifically stated that a covenant in the
Settlement Deed provided that possession had been granted towards the
plaintiffs/respondents herein and therefore, it was stated that the appellant
cannot cancel or revoke the settlement deed and that the deed of
cancellation was not valid. The declaration sought was granted and
possession was protected.
11. The appellant herein as defendant, filed a further Appeal before
the First Appellate Court in A.S.No.430 of 2002, which came up for
consideration before the Principal District Court at Namakkkal.
12. The learned Principal District Judge, Namakkal, on
re-appreciation of the evidence on record, framed necessary points for
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S.A.No.1325 of 2004
consideration and again confirmed that the settlement deed / Ex.A1 had
been executed in manner known to law and that possession had also been
handed over and therefore, the First Appellate Court refused to interfere
with the Judgment and decree of the Trial Court.
13. Questioning such Judgment, the appellant who is the defendant in
the suit, had filed the present Second Appeal.
14. The Second Appeal had been admitted on the following
substantial questions of law:
“1.Whether on the evidence the conclusion of the
courts below that Ex.B3 dated 15.02.1985 executed by
the appellant in favour of the plaintiffs/respondents
was given effect to and acted upon is correct in law.
2.Whether the courts below acted illegally in granting
permanent injunction when the appellant/defendant is
admittedly in actual possession of the suit property on
the date of suit.
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S.A.No.1325 of 2004
3.Whether the finding of the Courts below that the
defendant was collecting the rent from the suit
property as an agent of his father and was handing
over the rent collected to him for the benefit of the
respondents/plaintiffs without any evidence in support
thereof is sustainable in law.”
15. The first substantial question of law revolves around Ex.B3 dated
15.02.1985 which was also marked as Ex.A1. It is the Settlement Deed. By
its very nature, on execution of the Settlement Deed, title transfers to the
settlees and even if it is to be interfered with, a suit has to be filed.
16. The Settlement Deed has to be taken as having been executed in
manner known to law. The first substantial question of law is answered
against the appellant herein.
17. The second and third substantial questions of law relate to
possession. However, once possession is in the hands of the respondents,
there cannot be any further issue on that particular aspect and therefore the
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S.A.No.1325 of 2004
second and third substantial question of law are also answered against the
appellant herein.
18. The learned counsel for the appellant produced a further
document, namely the Judgment and decree in O.S.No.128 of 2001 on the
file of the Subordinate Court at Namakkal and a Certified copy of the
petition and orders in R.E.P.No.162 of 2003 on the file of the Subordinate
Court at Namakkal against which, order was passed in R.E.A.No.1067 of
2004 on the file of the Subordinate Court at Namakkal.
19. Though the petition in C.M.P.No.3553 of 2022 had been filed
before this Court under Order XLI Rule 27 of the Code of Civil Procedure,
since those documents are judicial orders, they can always be perused by
the Court.
20. A perusal of these orders, shows that the suit property had been
attached consequent to loan having been received by the respondents and
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S.A.No.1325 of 2004
consequent to a decree in O.S.No.128 of 2001, the schedule mentioned
property had been brought under auction and had been sold in the auction
and one R.Varadharajan had also purchased the same and in the Execution
Petition, he had taken possession of the same.
21. In view of all these further circumstances which had crept in with
respect to the property in question, I hold that it will be an exercise in
futility on the part of the appellant to maintain this Second Appeal. Further,
since property had also been sold.
22. The Settlement Deed executed by the appellant is upheld. The
Cancellation Deed, as had been correctly observed by both the Courts
below is rejected. The property had been purchased by the auction
purchaser in manner known to law. The Second Appeal naturally has to be
dismissed.
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S.A.No.1325 of 2004
23. Accordingly, the Second Appeal is dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
04.07.2022
ssi
Index:Yes/No
Speaking Order : Yes/No
To
1.The Principal District Judge, Namakkal.
2.The Additional District Munsif's,
Namakkal.
3.The Section Officer,
VR Section, High Court of Madras.
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S.A.No.1325 of 2004
C.V.KARTHIKEYAN,J.,
ssi
S.A.No.1325 of 2004
04.07.2022
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