Madras High Court
R.Balakrishnan … vs Mrs.V.M.Sumathy on 1 August, 2023
O.S.A. Nos.318 and 324 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
O.S.A. Nos.318 and 324 of 2022
and C.M.P.Nos.22411 and 23216 of 2022
R.Balakrishnan … Appellant in O.S.A.No.318 of 2022
R.Boopathy … Appellant in O.S.A.No.324 of 2022
Vs.
1.Mrs.V.M.Sumathy
2.Mr.R.Boopathy
3.Mrs.Soundarammal … Respondents in O.S.A.No.318 of 2022
1.Mr.V.M.Sumathy
2.Mr.R.Balakrishnan
3.Mrs.Soundarammal ... Respondents in O.S.A.No.324 of 2022
Common Prayer: Original Side Appeals filed under Order XXXVI Rule 1 of the
Original Side Rules read with Clause 15 of Letters Patent against the fair and decreetal
order dated 08.11.2022 in Appln.No.4540 of 2021 in E.P.176 of 2018 in C.S.No.793 of
2007.
For Appellants : Mr.T.C.S.Raja Chockalingam
in both O.S.As. for Mr.R.C.Srinivasan
For Respondents 1 & 3 : Mr.N.Nagu Sah
in both O.S.As.
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COMMON JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.)
These two appeals are filed challenging the order of the learned Judge dated
08.11.2022 passed in Appln.No.4540 of 2021 whereby the appellants herein were
directed to vacate and hand over possession of the suit schedule property on or before
31.12.2022, failing which, the learned Master should pass necessary orders in
E.P.No.176 of 2018, and to ensure that the appellants do indeed vacate the premises and
adhere to the compromise, which was entered into before the Lok Adalat.
1.1. The above order of the learned Judge is challenged by Mr.R.Balakrishnan
and Mr.R.Boopathy in the present appeals viz., O.S.A.Nos.318 and 324 respectively.
For ease of reference, we shall refer to them as the appellants 1 and 2 individually and
as appellants collectively. Mrs.V.M.Sumathy, sister of the appellants is the 1st
Respondent in both the appeals, while Mrs.Soundarammal, mother of the parties is the
3rd respondent in both the appeals and are thus referred to as 1st and 3rd respondents
respectively.
2. Brief facts:
a) A suit in C.S.No.793 of 2007 was filed by Mr.R.Boopathy against his mother
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Mrs.Soundarammal, brother Mr.R.Balakrishnan and sister Mrs.V.M.Sumathy seeking
partition and separate possession of two items of the properties described in the
Schedule to the Plaint.
b) The matter was referred to Lok Adalat, in which, the issues were settled
between the appellants and the respondents herein and a compromise was made by the
parties to the suit in the presence of their counsels on 06.02.2008. Pursuant thereto,
terms of settlement were drawn among the parties to the suit, whereby the appellants
herein agreed to take equally Item No.2 of the suit schedule property, while the mother
and sister i.e., respondents 1 and 3 herein agreed to take Item No.1 of the suit schedule
property.
c) Pursuant to the above settlement / compromise arrived at among the parties, the
appellants sold the property, which was allotted / settled to them i.e., Item 2 of the suit
schedule property vide the terms of settlement entered into before the Lok Adalat. The
sale consideration in respect of Item 2 of the suit schedule property was apparently
shared between the two brothers.
d) Thereafter, a settlement deed was executed on 04.05.2018 by the mother /3rd
respondent herein whereby the joint share in the suit schedule property allotted in
favour of the 3rd respondent was settled in favour of the daughter i.e., the 1 st
respondent herein. Consequent to the said settlement, the half share in Item 1 of suit
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schedule property, which was originally allotted vide compromise deed dated
06.02.2008 to the 3rd respondent, was settled in favour of the 1st respondent with full
power of alienation subject to the life estate to the settlor i.e., the 3rd respondent herein.
e) Admittedly, the 1st appellant is occupying the first floor of Item I of the suit
schedule property allotted to the 1st and 3rd respondents, while the 2nd appellant herein
is occupying the ground floor shop portion and second floor residential portion of Item
No.1 of the suit schedule property.
f) Despite the decree passed based on the compromise entered into before the Lok
Adalat, the appellants, after agreeing to vacate and deliver vacant possession of Item 1
of the suit schedule property, are continuing to remain in occupation of the same.
g) Hence, Execution Petition in E.P.No.176 of 2018 was filed by the 1 st
respondent herein against the appellants to deliver the possession of the suit schedule
property in their occupation. Pending the same, the first appellant preferred the
applications in A.Nos.4717, 4358 and 4359 of 2019 in E.P.No.176 of 2018 praying to
examine the parties to the settlement deed dated 04.05.2018, decide the questions
relating to the execution of the said settlement deed and to stay the EP proceedings till
the disposal of the application filed by him under section 47 of the Civil Procedure
Code.
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h) The above execution petition was resisted by the appellants on the premise that
the 3rd respondent i.e., the mother assured the appellants herein that she would execute
a Will in respect of undivided half share, which was allotted to her, vide compromise
deed dated 06.02.2008.
i) The appellants herein further submitted that the 1st respondent was suffering
from mental ailment and the 3rd respondent was illiterate and thus, questioned the
validity / legality of the settlement deed dated 04.05.2018, whereby the joint share of
the 3rd respondent /mother was settled in favour of the 1st respondent herein, as being
void.
j) The learned Master however, rejected the contention of the appellants on the
premise that the execution petition was not filed on the basis of the Settlement Deed
dated 04.05.2018, but instead on the strength of the compromise entered into between
the parties in C.S.No.793 of 2007. Further, the 3rd respondent, having been allotted half
share in the Item 1 of suit schedule property, is at liberty to dispose of the same in any
manner that she intends / desires; and that the appellants would have no right or title
over the undivided share, which was allotted in favour of the 3 rd respondent nor is it
open to them to question the settlement deed which was admittedly executed by the 3rd
respondent in favour of the 1st respondent herein. The claim / allegation that the 1 st
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respondent was not of sound mind, was found to be not supported by any evidence
either oral or documentary and thus rejected. The learned Master also found that the
appellants having not questioned / challenged the settlement deed, their contention in
the Execution Petition, was ill founded and unsustainable. The case of tenancy that was
set up by the appellants, was also rejected. Accordingly, all the applications filed by the
first appellant came to be dismissed, vide a common order dated 30.07.2019.
k) Subsequently, an application in A.No.5634 of 2019 was filed by the first
appellant herein before the learned Judge, praying for stay of the common order dated
30.07.2019 passed by the learned Master in A.Nos.4717, 4358 and 4359 of 2019 in
E.P.No.176 of 2018. The said application was rejected by the learned Judge by order
dated 20.09.2019 on the finding that in terms of the compromise in C.S.793 of 2007, the
appellants do not have any right, title or interest over Item No.1 of the suit schedule
property, which was allotted to the 1st and 3rd respondents and affirmed the order of the
learned Master.
l) A further appeal in O.S.A.289 of 2019 was preferred by the first appellant
against the order of the learned Judge dated 20.09.2019 on the premise that the
contesting respondent is of unsound mind/ mentally deranged and thus, the order of the
learned Judge warrants interference. The Division Bench found that there were two
aspects, one related to the scope of Section 47 of the Code of Civil Procedure
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(hereinafter referred to as "CPC") and the other is the pendency of the suit in
O.S.No.2015 of 2019 on the file of City Civil Court initiated by the first appellant
questioning the settlement deed dated 04.05.2018. Since the Execution Petition is still
pending and the appellants intend to adjudicate on the veracity of the settlement deed
executed by the mother, who is still alive, the Division Bench dismissed the appeal on
06.01.2020 leaving all the issues open to be decided in the Execution Petition.
m) After dismissal of the above appeal, the first appellant preferred the
application in A.No.2604 of 2021 to stay the execution proceedings in E.P.No.176 of
2018 till the disposal of the suit in O.S.No.2015 of 2019 pending on the file of the XII
Assistant City Civil Court, Chennai. The said application came to be dismissed by the
learned Master on 24.09.2021. While so, it was observed that the first respondent herein
cannot maintain E.P., as a joint decree holder for the half share allotted to the third
respondent; that, there is no impediment for the third respondent to proceed for half
share, which was allotted to her in the decree; and hence, the E.P. was partly dismissed
with regard to half share of the third respondent.
n) Challenging the above order dated 24.09.2021, in respect of the dismissal of
the E.P., relating to the third respondent's undivided half share in the schedule
mentioned property, the respondents 1 and 3 herein, filed the application /Appeal in
A.No.4540 of 2021 in E.P.No.176 of 2018 and the learned Judge vide order dated
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08.11.2022, allowed the said application.
3. Order of the learned Judge:
The learned Judge proceeded to allow the application filed by the respondents 1
and 3 herein inter alia for the following reasons:
a) That the appellants having enjoyed the benefit in terms of the settlement /
compromise deed, it would not lie in the mouth of the appellants to question the mental
faculty of the 1st respondent.
b) That no documentary evidence was let in to prove that the 1st respondent was
of unsound mind. Unless a competent Medical Board examines the 1 st respondent and
declares her to be of unsound mind, any amount of assertion on her mental faculty is of
no avail and the assertion cannot take the place of proof.
c) That the mother / 3rd respondent herein had executed a settlement deed in
favour of the 1st respondent and also affirmed the execution of the same.
d) That the Lok Adalat award and settlement deed having merged / become part
of the decree, cannot be questioned in any Court of law, unless fraud is alleged. If any
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allegation of fraud was to be accepted resulting in the settlement deed void, the
appellants cannot be permitted to retain any benefit out of the void settlement deed and
ought to therefore pay/ share the consideration received towards sale of Item 2 of the
suit schedule property allotted to them in terms of the settlement deed.
e) That the settlement deed dated 04.05.2018 was between the mother, 3rd
respondent herein and the daughter, 1st respondent herein and thus, the appellants who
are not parties to the same, would have no locus standi to question the settlement deed,
moreso, when the 3rd respondent/ mother has categorically stated that she had signed
and executed the settlement deed knowing fully the contents of the document.
f) On the basis of the above findings, the appellants were directed to vacate and
hand over the vacant possession of Item 1 of suit schedule property on or before
31.12.2022, failing which, the learned Master should pass necessary orders in
E.P.No.176 of 2018, which shall be heard again on 30.11.2022. The learned Master was
further directed to issue necessary orders to ensure that the appellants herein do indeed
vacate the premises and adhere to the compromise which they had entered into before
the Lok adalat.
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4. The above order of the learned Judge is challenged by the appellants herein,
who are the second defendant and plaintiff in C.S.No.793 of 2007 respectively.
5. Case of the Appellants:
a) That the learned Judge erred in placing reliance upon the affidavit purportedly
executed by the 1st respondent, though she is of unsound mind and thus incapable of
understanding and forming a rational judgment particularly in matters of importance.
Similarly, the 3rd respondent i.e., mother of the 1st respondent was also unaware of the
content of the affidavit purportedly executed by her.
b) That the learned Judge erred in not summoning the Execution Petitioner i.e.,
the 1st respondent herein so as to evaluate/ decide her mental faculty, though it was
vehemently contended that the Execution Petitioner has been severely affected by
mental illness for the past 10 years.
c) That the learned Judge failed to appreciate that the Execution petitioner / 1st
respondent herein has been suffering from serious mental illness for the past 10 years
and thus incapable of accepting the gift offered vide settlement deed dated 04.05.2018,
which came to be executed, after 10 years (i.e.,) after the Lok Adalat/compromise
Decree came to be passed on 06.02.2008.
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d). That the learned Judge failed to appreciate that the alleged execution of
settlement deed and the factum of the mental capacity of the Execution Petitioner i.e.,
the 1st Respondent that she was of sound mental health, were not proved before the
learned Master.
e) The learned Judge erred in deciding the application in Appln.No. 4540 of 2021
in a casual manner without considering the substantial questions involved in respect of
the alleged execution of the settlement deed.
6. Case of the Respondents:
a) That the order of the learned Judge does not warrant any interference and the
appeal is a gross abuse of process of this Court only to deprive the respondents of their
legitimate right to the suit schedule property.
b) That the attempt made by the appellants to allege the 1st respondent of being
mentally unsound and the mother being illiterate and thereby declare the settlement
deed as being void, is clearly baseless and imaginary.
c) That the contention of the appellants does not deserve any consideration
inasmuch as the appellants have claimed / enjoyed the benefit of the compromise decree
made on the basis of the Settlement deed by selling, realising and sharing the
consideration of Item 2 of the Suit Schedule Property, which was allotted to them.
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7. Heard both sides. Perused the material on record.
8. The claim of the appellants that the 1st respondent is of unsound mind, is made
on the basis of mere assertion and not backed by any evidence. It may be relevant to
note that mere allegation/ assertion of a person being unsound mind, is inadequate for
the Court to proceed on the said basis. The Mental Health Care Act, 2017 provides for
the method for determining mental illness. Section 3 of the said Act is relevant and it
reads as under:-
“3. (1) Mental illness shall be determined in accordance with such nationally or
internationally accepted medical standards (including the latest edition of the
International Classification of Disease of the World Health Organization) as may be
notified by the Central Government.
(2) No person or authority shall classify a person as a person with mental
illness, except for purposes directly relating to the treatment of the mental illness or in
other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,–– (a)
political, economic or social status or membership of a cultural, racial or religious
group, or for any other reason not directly relevant to mental health status of the
person; (b) non-conformity with moral, social, cultural, work or political values or
religious beliefs prevailing in a person’s community.
(4) Past treatment or hospitalisation in a mental health establishment though
relevant, shall not by itself justify any present or future determination of the person’s
mental illness.
(5) The determination of a person’s mental illness shall alone not imply or be
taken to mean that the person is of unsound mind unless he has been declared as such
by a competent court.”
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8.1. It is also important to note under that as per the Tamil Nadu Court of Wards
Act, 1902 (hereinafter referred to as "the Wards Act"), if a proprietor is of unsound
mind and incapable of managing the property in terms of the Wards Act, it prescribes
the procedure to be followed in respect of assumption, superintendence and
management of the Wards and their property. It is thus clear that the attempt made by
the appellants to suggest that the 1st Respondent is of unsound mind and therefore,
stands disqualified to manage her property that has been allocated to her in terms of Lok
Adalat Award and forming part of a decree of this Court and the property settled
/executed by the 3rd respondent / mother in favour of the 1st respondent V.M.Sumathy,
on the basis of mere assertion in the circumstances, is only meant to bypass or
circumvent the Mental Health Care Act and the Wards Act, which is impermissible and
liable to be rejected.
Burden of proving insanity under the Contract Act:
9. It must also be borne in mind that there is a presumption in terms of the sanity
of person and the burden is on the person, who alleges unsoundness of mind, to prove it
with cogent and adequate evidence. Section 12 of the Contract Act, 1872, may also
have some bearing and it provides that a person is said to be of a sound mind for the
purpose of making a contract, if at the time he makes is capable of understanding it and
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of forming a rational judgment as to its effect upon his interests. In this regard, it may
be relevant to refer to the judgments of the Patna High Court:
i) Indar Singh v. Parmeshwardhari Singh, 1957 SCC OnLine Pat 56:
“8. He has relied on U Aung Ya v. Ma E Mai, AIR 1932 Rang 24 (A),
Kanhaiyalal Tannalal v. Harsingh, Laxman, AIR 1944 Nag 232 (B) and Mahomed
Yakub v. Abdul Quddus, 4 Pat LT 17 : (AIR 1923 Pat 187) (C). The principle of law
enunciated in all these cases is the same. Mahomed Yakub's case (C) is a Division
Bench case of this Court. It lays down:—
“…….the test of soundness of mind is that he is capable of understanding the
business and of forming a rational judgment as to its effect upon his interest. There
being a presumption in favour of sanity, the person who relies on the unsoundness of
mind must prove it sufficiently to satisfy this test …….. Mere weakness of mind is not
sufficient……”
(emphasis supplied)
ii) Mohammad Yakub and Ors. vs. Abdul Quddus and Ors. (02.08.1922 - PATNAHC) : 4 Pat
LT 17 : (AIR 1923 Pat 187):
“11. Witnesses … Section 12 says that a parson is said to be of a sound mind for
the purpose of making a contract it at the time he makes it he is capable of
understanding it and forming a rational judgment as to its effect upon his interests; in
other words, the test of soundness of mind is that he is capable of understanding the
business and of forming a rational judgment as to its effect upon his interest. There
being a presumption in favour of sanity, the parson who relies on the unsoundness of
mind must prove it sufficiently to satisfy this test: Hall v. Warren (1804) 9 Ves 605 : 7
RR 306 : 32 ER 738. Mere weakness of mind is not sufficient as is laid down in the case
of Durga Bakhsh Singh v. Muhammad Ali Beg(sic) 27 A 1 : 7 OC 287 : LR 31 I. A. 235 :
8 Sar PCJ 725 "
(emphasis supplied)
10. The allegation of the appellants that the 1st respondent is of unsound mind, is
made on the basis of the fact that she had consulted a psychiatrist and has been
allegedly prescribed psychiatric medicines, however no evidence has been let in support
thereof and thus, ought to be rejected. Assuming it to be correct, mere fact of
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consultation with a psychiatrist or prescription of psychiatric medicine is inadequate to
show that the 1st respondent is of unsound mind. In any event, the mental well being /
health / soundness, if doubted / challenged, the same ought to be determined by
following the procedure as prescribed under the Tamil Nadu Court of Wards Act and
the Mental Health Care Act. We find that the appellants are attempting to deny the
property to the 1st respondent which she is legitimately entitled, on the basis of mere
assertion without any evidence and hence, it is unacceptable and needs to be rejected.
11. We are also of the view that the present attempt made by the appellants in an
Execution Petition filed pursuant to the decree made on the basis / incorporating the
Lok Adalat Award, to which they have been a party and having enjoyed the benefit
from the decree based on the compromise before the Lok Adalat and forming part of the
decree, cannot be permitted inasmuch as it would not be open to the appellants to
question the validity of the same. Any attempt to do so would be hit by the doctrine of
approbate and reprobate. In this regard, it may be useful to refer to the judgment of the
Hon'ble Supreme Court in Union of India v. N. Murugesan, (2022) 2 SCC 25 :
"26. These phrases are borrowed from the Scots law. They would only mean
that no party can be allowed to accept and reject the same thing, and thus one cannot
blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept
of approbate and reprobate. Once again, it is a principle of equity coming under the
contours of common law. Therefore, he who knows that if he objects to an instrument,
he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits.
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One cannot take advantage of one part while rejecting the rest. A person cannot be
allowed to have the benefit of an instrument while questioning the same. Such a party
either has to affirm or disaffirm the transaction. This principle has to be applied with
more vigour as a common law principle, if such a party xzactually enjoys the one part
fully and on near completion of the said enjoyment, thereafter questions the other part.
An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing
with the conduct of a party. We have already dealt with the provisions of the Contract
Act concerning the conduct of a party, and his presumption of knowledge while
confirming an offer through his acceptance unconditionally.
.........
23. It is settled proposition of law that once an order has been passed, it is complied
with, accepted by the other party and derived the benefit out of it, he cannot challenge it
on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service
[Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N.
Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court
has observed as under : (R.N. Gosain case [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC
683] , SCC pp. 687-88, para 10)
‘10. Law does not permit a person to both approbate and reprobate. This
principle is based on the doctrine of election which postulates that no party can accept
and reject the same instrument and that ‘a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to which he could only be
entitled on the footing that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage’.’
‘On the principle that a person may not approbate and reprobate, a species of
estoppel has arisen which seems to be intermediate between estoppel by record and
estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after
taking advantage under an order (e.g. payment of costs), be heard to say that it is
invalid and ask to set it aside, or to set up to the prejudice of persons who have relied
upon it a case inconsistent with that upon which it was founded; nor will he be allowed
to go behind an order made in ignorance of the true facts to the prejudice of third
parties who have acted on it."
11.1. Applying the above principle to the facts of the present case, we are of the
view that the appellants having elected / accepted the compromise decree and having
enjoyed the benefits thereof, cannot be permitted to question the validity of the said
compromise / settlement decree with regard to the portion by which Item No.1 of the
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suit schedule property was settled in favour of the respondents 1 and 3.
12. Yet another reason to reject the attempt made by the appellants questioning
the settlement by the 3rd respondent in respect of her joint share in Item 1 of the suit
scheduled property in favour of the 1st respondent, is that one of the incidents of
ownership is the right to dispose of the property in the manner which the owner intends
/ desires and it is thus, not open to the appellants to question the settlement deed,
whereby the 3rd respondent/mother has settled her joint share in favour of the 1 st
respondent. In this regard, it may be useful to refer to the following judgments:
i) Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596 at page 624:
"42. Property in legal sense means an aggregate of rights which are
guaranteed and protected by law. It extends to every species of valuable right and
interest, more particularly, ownership and exclusive right to a thing, the right to dispose
of the thing in every legal way, to possess it, to use it, and to exclude everyone else from
interfering with it. The dominion or indefinite right of use or disposition which one may
lawfully exercise over particular things or subjects is called property. The exclusive
right of possessing, enjoying, and disposing of a thing is property in legal parameters.
Therefore, the word ‘property’ connotes everything which is subject of ownership,
corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal;
everything that has an exchangeable value or which goes to make up wealth or estate or
status. Property, therefore, within the constitutional protection, denotes group of rights
inhering citizen's relation to physical thing, as right to possess, use and dispose of it in
accordance with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Edn., 1987, at p.
1031, it is stated that the property is the most comprehensive of all terms which can be
used, inasmuch as it is indicative and descriptive of every possible interest which the
party can have. The term property has a most extensive signification, and, according to
its legal definition, consists in free use, enjoyment, and disposition by a person of all his
acquisitions, without any control or diminution, save only by the laws of the land. In
Dwarkadas Shrinivas case [1950 SCC 833 : 1950 SCR 869 : AIR 1951 SC 41] this
Court gave extended meaning to the word property. Mines, minerals and quarries are
property attracting Article 300-A.
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(emphasis supplied)
ii) Laljibhai Kadvabhai Savaliya v. State of Gujarat, (2016) 9 SCC 791 :
"22. As laid down by this Court in Jilubhai Nanbhai Khachar v. State of
Gujarat [1995 Supp (1) SCC 596] the term “property” in legal sense means an
aggregate of rights which are guaranteed and protected by law and would extend to
entirety or group of rights inhering in a person. It was observed by this Court as under :
(SCC pp. 624-25, para 42)
“42. Property in legal sense means an aggregate of rights which are guaranteed
and protected by law. It extends to every species of valuable right and interest, more
particularly, ownership and exclusive right to a thing, the right to dispose of the thing in
every legal way, to possess it, to use it, and to exclude everyone else from interfering
with it. The dominion or indefinite right of use or disposition which one may lawfully
exercise over particular things or subjects is called property. The exclusive right of
possessing, enjoying, and disposing of a thing is property in legal parameters.
Therefore, the word “property” connotes everything which is subject of ownership,
corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal;
everything that has an exchangeable value or which goes to make up wealth or estate or
status. Property, therefore, within the constitutional protection, denotes group of rights
inhering citizen's relation to physical thing, as right to possess, use and dispose of it in
accordance with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Edn., 1987, at p.
1031, it is stated that the property is the most comprehensive of all terms which can be
used, inasmuch as it is indicative and descriptive of every possible interest which the
party can have. The term “property” has a most extensive signification, and, according
to its legal definition, consists in free use, enjoyment, and disposition by a person of all
his acquisitions, without any control or diminution, save only by the laws of the land.”
12.1. It is thus clear that the 3rd respondent as the lawful owner of the joint share
of Item No.1 of the Schedule Property, would also have the right to dispose of the
property in the manner, which she intends / desires. The appellants would have no locus
to challenge the same, moreso, in an Execution Petition. Therefore, the act of the
appellants in not handing over possession of the property alloted to the 1st and 3rd
Respondents under the compromise, which has since become part of the decree, is
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illegal and meant to harass the 1st Respondent, which cannot be countenanced by this
Court.
13. For all the above reasons, we find no reason to interfere with the order of the
learned Judge. Thus, the Original Side Appeals are dismissed. Consequently, connected
miscellaneous petitions are closed. No costs.
[R.M.D., J.] [M.S.Q., J.]
01.08.2023
Speaking (or) Non-Speaking order
Index: Yes/ No
Neutral Citation : Yes/No
shk/ mka
https://www.mhc.tn.gov.in/judis
O.S.A. Nos.318 and 324 of 2022
R.MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
shk/ mka
O.S.A. Nos.318 and 324 of 2022
01.08.2023
https://www.mhc.tn.gov.in/judis
