Madras High Court
K.K.Rajendran vs Janaki on 5 July, 2022
S.A.No.216 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.216 of 2021
and
C.M.P.No.4306 of 2021
1.K.K.Rajendran
2.Saraswathi
... Defendants/Appellants/Appellants
Vs.
1.Janaki
... Plaintiff/Respondent/ Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and decree dated 22.01.2020 made in
A.S.No.6 of 2019 on the file of the Sub Court, Gobichettipalayam
confirming the judgment and decree dated 10.01.2019 made in O.S.No.205
of 2013 on the file of the District Munsif Court, Gobichettipalayam.
For Appellants : M/s.D.Sathya
For Respondent : Mr. M.Roshan Atiq for Caveator
1/12
https://www.mhc.tn.gov.in/judis
S.A.No.216 of 2021
JUDGMENT
The unsuccessful defendants before the Courts below are the
appellants before this Court. Challenging the Judgment and Decree for
declaration and recovery of possession granted in favour of the respondent/
plaintiff.
The facts in brief which are necessary for disposing of the above
Second Appeal is herein below set out.
The parties are referred to in the same litigative status as before the
Trial Court.
Plaintiff’s Case:-
2. The plaintiff had filed O.S.No.205 of 2013 on the file of the
District District Munsif, Gobichettipalayam for the following relief:-
a. Declaring the plaintiff's title to the suit property;
b. consequently directing the defendants to deliver
possession of the suit properties to the plaintiff within a
date to be fixed by this Hon'ble Court failing which
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S.A.No.216 of 2021
ordering he same through the process of this Hon'ble
Court.
c. directing the defendants to pay mesne profits to
the determined by a separate enquiry to the plaintiff.
3. The 1st defendant is the father of the plaintiff and the 2nd
defendant. The 3rd defendant is the mother of the plaintiff and the 2nd
defendant. The properties subject matter of the suit belong to the 1st
defendant. The properties were purchased by the 1st defendant under
various sale deeds. On 16.08.2010 the 1st defendant had voluntarily
executed a gift settlement deed in favour of the plaintiff as Document
No.2590 of 2010 on the file of the District Registrar, Gobichettipalayam.
The possession was also handed over to the plaintiff since the plaintiff was
residing at Alathukombai, Sathyamangalam Taluk, along with her husband.
She had permitted the 1st defendant to look after the suit land and also to
continue to live in the suit house.
4. The plaintiff would contend that after the gift settlement deed she
has been taking care of the expenditure incurred for maintaining the lands.
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S.A.No.216 of 2021
The plaintiff submits that in the 4th week of September 2013 when she had
visited the suit properties the 2nd defendant had openly proclaimed that the
1st defendant had gifted all the properties including the suit properties to
him under the registered settlement deed dated 20.12.2011 and that the
plaintiff had no right, title or interest in the suit property. The plaintiff
would submit that on the date on which the settlement deed was executed in
favour of the 2nd defendant, the 1st defendant had no right over the
properties which were already settled in favour of the plaintiff. The plaintiff
would submit that the 2nd defendant had acted against her interest by
mutating the revenue records behind her back. The plaintiff had also come
to know about the execution of the settlement deed in favour of the 2nd
defendant on 10.03.2013 and immediately the plaintiff has come forward
with the suit for the relief stated therein.
5. The 1st defendant died pending the appeal but had however not
filed any written statement objecting to the claim of the plaintiff or
objecting to the execution of the settlement deed.
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S.A.No.216 of 2021
Written Statement of the 2nd defendant:
6. The 2nd defendant had filed a written statement inter alia
contending that the properties described as item No.5 was a joint family
property and from out of its income the other properties had been
purchased. The 1st defendant was a Karta and Manager of the Joint family
consisting of defendants 1 and 2. Though the properties were all purchased
in the name of the 1st defendant it was always deemed to be the joint family
property of all. The 2nd defendant would contend that the gift settlement
deed executed in favour of the plaintiff was the result of the fraud played by
the plaintiff.
7. He would further submit that the plaintiff's husband required some
financial help for which she had approached the 1st defendant. The 1st
defendant had no money to finance this request and therefore the plaintiff
requested him to create a mortgage so as to enable her to avail loan.
Believing her words the 1st defendant had signed and affixed his left thumb
impression in a blank paper. It is therefore the case of the 2nd defendant
that these documents have been used to create the "Gift Settlement".
Therefore, the 2nd defendant would submit that the gift settlement deed
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S.A.No.216 of 2021
subject matter of the suit was not binding upon them. He would further
submit that the gift settlement deed has not been acted upon since
possession has not been delivered to the plaintiff and neither was the
revenue records mutated in her name. The 2nd defendant would contend
that the plaintiff was permanently residing at Sathyamangalam and she
would visit the suit properties occasionally. He would submit that thereafter
his father, the 1st defendant has executed a gift settlement deed in his name
and he would further alleged that the properties has not been properly
valued.
8. The learned District Munsif Gobichettipalayam had framed the
following issues which when translated from the vernacular would read as
follows:-
• Whether the plaintiff is entitled to the relief of
declaration and recovery of possession?
• Whether the plaintiff I entitled to mesne profit?
• To what other reliefs the plaintiff is entitled to ?
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S.A.No.216 of 2021
9. The plaintiff had examined herself as P.W.1 and marked Ex.A.1 to
A.6. The 2nd defendant had examined himself as D.W.1 and one
Mr.Thamaraikanna as D.W.2 and marked Ex.B.1 to Ex.B.16.
10. The learned District Munsiff decreed the suit and aggrieved by
the same the defendants had filed A.S.No.6 of 2019 on the file of the Sub
Judge, Gobichettipalayam. The learned Appellate Judge had also concurred
with the Judgement and decree of the Trial Court. Challenging the
concurrent Judgement and Decree the appellant is before this Court.
11. The Second Appeal is admitted on the following Substantial
Question of law:-
" When there is a specific denial about the execution
of settlement deed by the 1st Defendant in favour of the 2nd
Defendant in the written statement, it was cunningly
created making the 1st Defendant to behave that he was
executing a mortgage deed, whether the finding recorded
by the Courts below that Ex.A.1 settlement deed was
proved without examining attestors to the document can be
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S.A.No.216 of 2021
sustained?"
Submissions:-
12. M/s.D.Sathya, learned counsel appearing on behalf of the
appellants would contend that the execution of the settlement deed is
shrouded in suspicion. She would contend that as there is no explanation as
to why the 1st defendant had not provided for his wife, the 3rd defendant
and also his son, the 2nd respondent and further there is no explanation for
his handing over the house to the daughter especially when he and his
family has been residing in it for over so many years. She would further
submit that the plaintiff has not proved the execution of the Ex.A.1
settlement deed.
13. Per contra, Mr.M.Roshan Atiq learned counsel for the plaintiff
would contend that the father had executed the Ex.A.1, settlement deed
knowing fully well about the document that he was executing. He would
submit that the 2nd defendant has been allotted other properties which
includes a house property. Therefore, a equal distribution has been done by
the father to both the plaintiff as well as to the defendants. He would submit
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S.A.No.216 of 2021
that the possession of the property has been tacitly handed over since the
plaintiff had permitted the father to continue to reside in the property. He
would submit that the plaintiff had come to learn about the settlement deed
Ex.A.2 executed by the 1st defendant in favour of the 2nd defendant in
respect of the suit property besides other properties on 10.03.2013 and
within a month thereafter the plaintiff has come forward with this suit in
question. He would submit that the Courts below have in very great detail
considered the evidence oral as well as documentary to come to the
conclusion that the plaintiff was entitled to have a suit decreed.
14. Heard both the learned counsels.
Discussion:-
15. The 1st defendant had under Ex.A.1 dated 16.08.2010 executed a
settlement deed in favour of the plaintiff in respect of the 5th item of
property which included a house property. He has in his settlement deed set
out in detail the reasons why he was executing the settlement deed in favour
of the daughter. The settlement deed was also an irrevocable one. However,
it appears that the 1st defendant had executed a settlement deed in favour of
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S.A.No.216 of 2021
the 2nd defendant under Ex.A.2, settlement deed dated 20.12.2011
bequeathing the suit property besides other properties. The 1st defendant
has not canceled the earlier settlement deed. That apart, the contention of
the defendant has not denied the execution of the deed but has only
contended that the father, the 1st defendant had presumed that he was
executing a mortgage deed and therefore had executed a document before
the Sub Registrar. However the father has not taken such a stand before his
demise and it is only the 2nd defendant who has taken such a defence.
There is no explanation as to why the defendant's father on coming to learn
about the execution of the settlement deed in favour of the plaintiff has not
taken any steps to cancel the said document.
16. The defendants having admitted the execution of the document.
There is no necessity for the plaintiff to examine the defendant who has
come forward with a defence that the document Ex.A.1 has been
fraudulently created by the plaintiff has not taken any steps to prove the
same. The substantial question of law is therefore, answered against the 1st
defendant. The Courts below have considered the evidence and come to
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S.A.No.216 of 2021
their conclusion that the settlement deed is a validly executed one.
Therefore, I do not find any reason to interfere with the concurrent
judgment and decree of the Court’s below. Accordingly the Second Appeal
stands dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed.
05.07.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The Sub Court, Gobichettipalayam.
2.The District Munsif Court, Gobichettipalayam.
https://www.mhc.tn.gov.in/judis
S.A.No.216 of 2021
P.T. ASHA, J,
shr
S.A.No.216 of 2021
and
C.M.P.No.4306 of 2021
05.07.2022
https://www.mhc.tn.gov.in/judis
