G.Manoharan vs G.Latha
2022 Latest Caselaw 4325 Mad

                                                                                     SA.No.158/2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 07.03.2022

                                                       CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                       SA.No.158/2022 and CMP.No.3204/2022


                    1.G.Manoharan
                    2.G.Kannan                                                  ..
                    Appellants/Plaintiffs

                                                          Vs.

                    G.Latha                                             .. Respondent/Defendant


                    Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
                    Code to set aside the decree and the judgment dated 24.10.2019, rendered
                    in AS.No.32/2019 on the file of the learned Principal Subordinate Judge,
                    Salem, confirming the decree and the judgment dated 07.12.2018, rendered
                    in O.S.No.635/2013, on the file of the II Additional District Munsif Court,
                    Salem.

                                      For Appellants            :   Mr.P.Raja
                                      For Respondent            :   M/s.Zeenath Begam

                                                     JUDGMENT

(1) The plaintiffs in the Suit in O.S.No.635/2015 on the file of the II

Additional District Munsif Court, Salem are the appellants in the

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above Second Appeal.

(2) The appellants filed the Suit in O.S.No.635/2013 for declaring the

Gift Deed dated 17.03.2019 as null and void and for permanent

injunction restraining the defendant who is the respondent in this

appeal from interfering with the peaceful possession and enjoyment

of the Suit property by the plaintiffs. The Suit is also for permanent

injunction restraining the defendant from alienating or encumbering

the Suit property.

(3) The case of the plaintiffs in the plaint is that the Suit property was

originally purchased by the father of appellants by name P.Govindan

out of his income from the business in the name of his wife who is

the mother of plaintiffs and defendant by a registered Sale Deed

dated 05.10.1970.

(4) It is admitted that the electricity service connection in the Suit

property for the Silver Workshop Business was in the name of

plaintiffs' mother and that the property tax assessment in respect of

to the Suit property stands in the name of mother apart from patta

for the Suit property which also stood in the name of plaintiffs'

mother. According to the plaintiffs, the plaintiffs and their mother

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entered into a Partnership Agreement to run a Silver Refinery Unit in

the Suit property under the name and style of “Malaar Silver

Refining Unit” on 04.12.1992 and that they were running the

partnership business till 06.11.2012.

(5) It is stated further that after the death of appellants' mother in the

year 2012, they had continued the business in the Suit property and

except plaintiffs nobody has got any right, title or interest in the Suit

property. It is also contended by the appellants that the mother of

appellants had no independent income to purchase the Suit property

and that the mother was included in the Partnership Deed as advised

by father who paid for the share of mother and it is their father who

spent for the maintenance of the building along with the machineries

in the Suit property for their silver business.

(6) According to the appellants only when the defendant demanded

them to handover possession of the Suit property, they came to know

that a Gift Settlement Deed had been executed by their mother Baby

Ammal in favour of the defendant on 17.03.2009. Stating that the

Settlement Deed is a fabricated and concocted document, the

appellants contended that the defendant who is not in possession of

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the property cannot claim any right over the Suit property especially

when the Gift Settlement Deed was not acted upon.

(7) It is also contended by the appellants that the Gift Deed is a sham

and nominal document. The Suit was contested by the respondent on

the ground that mother Baby Ammal, is the absolute owner of the

Suit property as she had purchased not only the Suit property but

also other properties out of the income derived from the business

which was started by her as her own business after selling her gold

ornaments gifted to her at the time of her marriage. The averments in

the plaint was specifically denied by the defendant/respondent.

(8) The Trial Court framed specific issues with regard to the

genuineness and validity of the Settlement Deed and found that the

Suit property was purchased by the plaintiffs' mother and that the

appellants have not produced any document to show that the Suit

property was purchased by the appellants' father out of the income

from the business.

(9) It is found that Baby Ammal, the mother of appellants' was enjoying

the Suit property as the absolute property till her death. The father

and appellants' paternal uncle have also attested the Settlement Deed

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which is marked as Ex.A16. Therefore, the Trial Court held that the

father himself has acknowledged the title of appellants' mother. The

Trial Court found that merely because the appellants are in

possession of the Suit property, the Court cannot come to the

conclusion that the Settlement Deed was not accepted and acted

upon.

(10) The documents filed by the respondent were also considered by the

Trial Court to hold that the property has been in the name of

defendant/respondent based on the Settlement Deed. Since the

documents under Ex.B6 to B8 would show that the Suit property

was enjoyed by the mother independently, the Trial Court dismissed

the Suit after holding that the declaratory relief cannot be granted in

favour of appellants. Since the Court cannot grant permanent

injunction against the defendant the suit was dismissed. Aggrieved

by the same, the appellants preferred an appeal in AS.No.32/2019

before the Principal Sub Court, Salem.

(11) The Lower Appellate Court also after framing relevant points for

determination held that the appellants' mother is the absolute owner

of the Suit property and therefore she is entitled to execute a

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Settlement Deed in favour of respondent/defendant. It was further

held that the Settlement Deed is a valid document. After considering

the evidence adduced in the light of pleadings raised by both sides

the Lower Appellate Court also held that the plaintiffs cannot

contend that their mother is only a benami of her husband. The

Lower Appellate Court also rendered a finding that the Gift

Settlement Deed was acted upon. Aggrieved by the concurrent

judgments and decrees of the Courts below the above Second Appeal

is filed.

(12) The appellants have raised following substantial questions of law in

the Memorandum of Grounds of Second Appeal.

1.When the source of means for payment of sale consideration by the mother of the parties, was not shown or proved by the respondent, can the said purchase of property and the construction therein, can be construed as the absolute property of the mother of the parties herself?

2.When the mother of the parties has no independent right over the said property, can the gift deed executed by her, with respect to the said property, in favour of one of the daughters alone, be considered as a valid document?

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3.When there is no evidence to show that the gift deed was accepted and acted upon, even during the death of the mother of the parties and there is a latches of almost three and a half years period, in making a claim over the property, based upon the gift deed, can the said document be declared as a valid document?

4.Have not the both Courts below committed an act of illegality in not granting the relief of permanent injunction, in favour of the appellants, when the possession and enjoyment of the said property, is still in the hands of the appellants themselves?

5.Have the conclusion arrived at by both the Courts below that the possession is with the respondent, right from the death of her mother, is wrong, when the possession of the appellants has already been admitted by the respondent herself in her oral evidence?

6.When there is no rival claim of declaration of right and of injunction, by the respondent by any rival suit, are both the Court below correct in declaring her right and title over the suit schedule property?

(13) The Suit property was purchased by the mother of the appellants'

under Ex.A1. The original Settlement Deed is produced by the

defendant as Ex.B1. Though, it is admitted by the defendant that the

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original document was handed over by her father, the father has

attested the documents, and the name of defendant is included in the

revenue records and patta was also granted to the defendant.

(14) Having regard to the findings of the Courts below, this Court is

unable to accept the case of the appellants that the mother is not the

owner of the Suit property and that the property was purchased by

the appellants' father in the name of their mother. Since, the

document produced by the defendant would clearly show that the

property was in the enjoyment of the mother during her life time and

the Settlement Deed was handed over to the defendant, pursuant to

the Settlement Deed.

(15) This Court is unable to agree with the contention of the appellants

and that the mother had no independent right to execute a Deed in

favour of respondent. Mother had executed three other Settlement

Deeds under Ex.B6 to Ex.B8. Ex B6 and Ex.B7 are in favour of

another daughter and Ex.B8 in favour of her elder son. Under Ex.B9,

father executed a Settlement Deed dated 19.02.2009 in favour of

plaintiffs. Hence the case of plaintiffs disputing title of mother

cannot be accepted. Father has attested the Settlement Deed and

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original document is filed by defendant. Mutation had taken place.

Hence, this Court is unable to discard the findings of the Courts

below that the Gift Deed was accepted and acted upon. Merely

because the defendant claimed title to the Suit property 3 ½ years

after the Settlement Deed was executed, the registered document of

conveyance cannot be invalidated. In a Suit for injunction, the

question of possession is relevant. However, a stranger to the Suit

property even if he is in possession, is not entitled to seek permanent

injunction against the owner as his possession is not lawful.

(16) Therefore, the plaintiffs who are not the owners of the Suit property

cannot seek permanent injunction against the true owner namely, the

sister. The question of benami raised by the appellants is

unsustainable. Having regard to the facts admitted and evidence

adduced by both sides the case of plaintiffs suggesting that the

property was purchased by father in the name of mother does not

help the appellants.

(17) When a husband purchases the property in the name of his wife,

there is a presumption that the property was purchased by the father

for the benefit of his wife. In this case, no document or oral evidence

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is adduced to show that the property was purchased by the father nor

it was for the benefit of father himself.

(18) In view of the concurrent findings on facts, this Court is unable to

find any illegality or irregularity in the findings of Courts below.

Hence, the Second Appeal is devoid of merits.

(19) In the result, the Second Appeal is dismissed with cost confirming

the judgment and decree made in AS.No.32/2019 dated 24.10.2019

passed by the learned Principal Subordinate Judge, Salem, in

confirming the judgment and decree dated 07.12.2018 made in

O.S.No.635/2013 09.07.2013 by the learned II Additional District

Munsif, Salem. Consequently connected Civil Miscellaneous Petition

is closed.

07.03.2022 cda Internet : Yes

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S.S.SUNDAR, J.,

cda

To

1.The II Additional District Munsif Court, Salem.

2.The Principal Subordinate Court, Salem.

3.The Section Officer, VR Records, High Court, Chennai.

SA.No.158/2022 and CMP.No.3204/2022

07.03.2022

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