Madras High Court
Kuppu vs Manickam on 12 July, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.07.2023
CORAM:
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
A.S.No.307 of 2016
and C.M.P.Nos.6383 & 6384 of 2016
and C.M.P.No.10685 of 2018
1.Kuppu
2.Shanthi @ Dhanalakshmi
3.Anandajothi
4.Kanagavally
5.Thirugnanam ...Appellants
vs.
1.Manickam
2.M.Gnanasegaran
3.M.Dandayudapany
4.Muthu @ Muthaiyasamy ...Respondents
1/20
https://www.mhc.tn.gov.in/judis
Prayer: Appeal Suit filed under Section 96 of C.P.C. R/W O 41 C.P.C., against
the judgment and decree dated 29.02.2016 made in O.S.No.80 of 2014 on the file
of the Principal District Judge at Puducherry.
For Appellants : Mr.T.Dhanyakumar
For Respondents : Mr.U.Karunakaran for R1
Mr.K.Annadurai for R2 to R4
JUDGMENT
The appellants are the defendants 4 to 8, and the first respondent is the
plaintiff and respondents 2 to 4 are the defendants 1 to 3 in O.S.No.80 of 2014, on
the file of the Principal District Judge at Puducherry.
2.The brief facts of the case is that the plaintiff is the owner of the property,
has acquired the same by way of a partition among his brothers. He has been in
possession and enjoyment of the suit schedule property and that in further
development of the property, he had taken money from his sons who are the
defendants 2 & 3, in whose favour he had executed a Mortgage Deed as well as
bogium.
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3.The plaintiff intended to settle the property in favour of his wife and after
her life time, in favour of his children viz., the defendants 1 to 7 and had requested
the defendants 4 to 8 to arrange for such execution. Taking advantage of his age,
the defendants 4 to 8, particularly, the eighth defendant had arranged for a
settlement. But, instead of executing a Settlement Deed as advised in the name of
his wife, they had fraudulently executed a Settlement Deed in favour of the
defendants 1 to 7 and by pleading, the defendants 4 to 8 had also handed over the
original documents. On coming to know of such fraudulent settlement, he had
immediately given a Police complaint and also filed a suit seeking for declaration
to declare that the Settlement Deed dated 15.07.2004 as non-est, not valid and not
binding on the plaintiff in any manner and to direct the eighth defendant to hand
over the original documents in respect of the suit schedule property.
4.The suit had been contested by the defendants 4 to 8 by contending that
the plaintiff with full knowledge, had executed the Settlement Deed and had
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created mortgage and bogium in favour of his sons and the suit had been filed only
at the instance of the defendants 1 to 3, who are the sons.
5.Considering the pleadings, the learned Judge had framed four issues,
which are as follows:
1.whether the settlement deed dated 15.07.2004 was obtained from
the plaintiff by committing the act of fraud and misrepresentation
by the 1st to 7th defendants and will not bind the plaintiff?
2.whether the 8th defendant is liable to hand over all the
original documents to the plaintiff?
3.whether the suit is barred by law of limitation?
4.To what relief the plaintiff is entitled to?
6.Before the learned judge the first respondent was examined himself as
P.W.1. One Muthukumaran the station house officer, Muthialpet Police Station,
Puducherry was examined as P.W.2 and 18 documents were marked as Exs.A1 to
A18. The second respondent was examined as D.W.1, the second appellant was
examined as D.W.2, the fourth appellant was examined as D.W.3 and one of the
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attestor to the settlement deed dated 15.07.2004, was examined as D.W.4 and
marked 7 documents Exs.B1 to B7. The report on non-cognizable offences
bearing No.120780, dated 22.07.2014 of Muthialpet P.S., Puducherry is marked as
Official Exhibit, Ex.X1.
7.The learned Judge considered the pleadings, oral and documentary
evidence had held that the Settlement Deed which was challenged had been
executed in a fraudulent manner and the same is not voluntarily executed by the
plaintiff and consequently set aside and cancelled the Settlement Deed dated
15.07.2004 and had directed the eighth defendant to handover the original
documents to the plaintiff by giving a categorical finding that he is in possession
and as a sequel, had directed the Sub Registrar, Puducherry to cancel the
necessary registration entries in the registration office in respect of the Settlement
Deed.
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8.The unsuccessful defendants 4 to 8 have come out with the present appeal
challenging the judgment and decree dated 29.02.2016 made in O.S.No.80 of
2014, on the file of the Principal District Judge at Puducherry.
9.Mr.T.Dhanyakumar, learned counsel appearing for the appellants would
submit that the suit property originally belongs to the first respondent. The suit
property consist of a house of three portions, the money spent for such
construction was given by the respondents 2 to 4 are false, and the appellants has
also challenged the execution of the mortgage deed and usufructuary mortgage
deed executed in favour of the respondents 2 to 4 by the first respondent. The
appellants would further submit that they have no role in executing the settlement
deed, as alleged by the first respondent and the fifth appellant has no original
documents in his custody or possession.
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10.The learned counsel for the appellants would vehemently submit that the
Settlement Deed dated 15.07.2004, was executed by the first respondent
voluntarily, and the same was registered as Doc.No.3096 of 2004 on the file of the
Sub Registrar Office, Puducherry, based on which the appellants and respondents
2 to 4 had also taken possession. The first respondent and their mother is also
residing in the same property. He would further submit that the first respondent
himself had given the original documents of the suit property to the appellants 2
and 3 herein.
11.He would heavily contend that the suit itself is wholly barred by
limitation. He would submit that the documents that are sought to be cancelled
were executed in the year 2004 and the suit has been initiated only in the year
2014 that too after 10 years much beyond the period of limitation. Further, he
would contend that when he had categorically admitted his signature in the
Settlement Deed, he cannot turn around and say that he was not aware of the
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contents of the documents. He would further submit that it is axiomatic that
whenever the documents are presented for registration, the concerned Sub
Registrar orally seeks knowledge of the documents from the executor and only
after ascertaining his knowledge of the documents, the Sub Registrar proceeds
with the registration.
12.He would further submit that the first respondent has instituted the suit
colluding with the respondents 2 to 4, and it is their further case that the first
respondent's knowledge about the execution of the settlement deed in favour of
the appellants and respondents 2 to 4 is only on 05.06.2014, when the first
respondent had obtained the encumbrance certificate is not correct.
13.Countering his arguments Mr.U.Karunakaran, learned counsel for the
first respondent submitted that, the suit property was acquired by the first
respondent by way of a partition deed dated 03.02.1961, among himself and his
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three brothers. The first respondent has been in continuous possession and
enjoyment of the same from 1961. The first respondent himself admits that the
second respondent has spent a sum of Rs.15 lakhs for construction of the house,
and the first respondent along with his wife was residing in one of the portions and
the respondents 2 to 4 were residing in other two portions. Each had paid Rs.5
lakhs to the first respondent, and the same was utilised for the marriage of
appellants 3 and 4.
14.He would submit that the first respondent, on the advise of appellants 1
to 4, had decided to execute a settlement deed in favour of his wife, for the same
he has handed over all the original documents to the fifth appellant, who is the
husband of the appellants 1 and 2. The learned counsel would further submit that
on 15.07.2004, the first respondent had signed in the Settlement Deed in the Sub
Registrar Office, believing the same was settled in favour of his wife.
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15.The learned counsel would submit that the appellants or the respondents
2 to 4 had not taken care of the first respondent and his wife, and the first
respondent has no means of livelihood, so he decided to sell the suit property, for
which he had obtained encumbrance certificate. On 05.06.2014, when the first
respondent had obtained the encumbrance certificate, he came to know that the
settlement deed dated 15.07.2004, was not executed in favour of his wife and the
same was executed in favour of the appellants 1 to 4 and respondents 2 to 4, which
the first respondent has never intended to. The learned counsel would further
submit that the Settlement Deed dated 15.07.2004, was obtained by fraud and
misrepresentation by the appellants 1 to 4, on the instigation of the fifth appellant.
As the appellants were not ready to execute a cancellation deed, the first
respondent had filed a suit before the Principal District Judge at Puducherry.
16.Mr.K.Annadurai learned counsel for the respondents 2 to 4 submitted
that, the first respondent who is the father of the appellants 1 to 4 and respondents
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2 to 4, had approached the second respondent to construct a house, in the year
2001. The second respondent constructed a house consisting of three portions, by
investing a sum of Rs.15 lakhs and the respondents 3 and 4 also gave a sum of Rs.
5 lakhs each to the first respondent. The first respondent and the second
respondent jointly lived in one of the portions on the first floor, and the other two
portions were occupied by the respondents 3 and 4. When the respondents
demanded for the money spent by them for construction of the house, the first
respondent has executed a mortgage deed dated 20.06.2002 for Rs.15 lakhs in
favour of the second respondent and the usufructuary mortgage bogium dated
15.11.2002, was executed in favour of the respondents 3 and 4 for a sum of Rs.5
lakhs each. He would further submit that it is the first respondent and the
appellants 1 to 4 who had colluded to execute the settlement deed dated
15.07.2004, and the document executed will not bind the respondents 2 to 4.
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17.Heard Mr.T.Dhanyakumar, learned counsel appearing for the appellants,
Mr.U.Karunakaran, learned counsel for the first respondent and Mr.K.Annadurai
learned counsel for the respondents 2 to 4. For easy reference, the parties are
addressed as per their rank in the suit.
18.I have considered the submission made by the learned counsel appearing
for the respective parties and I have perused the materials available on record.
19.Points for consideration arising in this appeal are:
(a)whether the execution of Ex.A3/Ex.B7 Settlement Deed of the year 2004
st
by the plaintiff/1 respondent is voluntary?
(b)whether the suit is barred by limitation?
th
(c)whether the 5 appellant is in possession of the original documents?
Point 1:
(i)The date of execution of Ex.A3/B7 the Settlement Deed is dated
15.07.2004. The learned Judge had extensively considered the cross-examination
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of the plaintiff who had been examined himself as PW1. He had given a
categorical finding that PW1 was very clear of his intention only to execute a
Settlement Deed in favour of his wife and not in favour of the defendants 1 to 7.
He had also given a specific finding that there was no suggestion on the side of the
defendants particularly the defendants 4 to 8 as to PW1 with regard to the contents
of the Settlement Deed. The learned Judge has specifically held that a suspicion
creates on such execution the attesting witnesses of the said Settlement Deed were
from Gudiyatham, where the defendants 4, 5 & 8 are residing.
(ii)It is also pertinent to note that DW4 who was examined on the side of
the defendants 4 to 8, in his cross-examination, had admitted that he is a stranger
to the family and resides away from Puducherry and is a customer of tea shop run
by the eighth defendant and only at his request, he had come to attest as a witness.
There is no reasoning assigned by the defendants as to why they had to bring
witnesses from Gudiyatham to Puducherry to attest in the Settlement Deed when
the same is with the knowledge and willingness of the plaintiff.
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(iii)That apart, it is trite law that a Settlement Deed deemed to be a
Settlement Deed would have to be acted in present time. In the present case, even
according to the defendants 4 to 8, the Settlement Deed had been executed in the
year 2004. The beneficiaries under the Settlement Deed including the defendants 4
to 7 have not acted upon such Settlement Deed. This is evident from Exs.A5 to
A9, the Revenue records relating to the property, still stand in the name of the
plaintiff. The municipal tax receipts, water consumption charges and even
electricity connection stood in the name of the plaintiff and he had been paying
the necessary charges. This concludes that even after the alleged Settlement Deed
dated 15.07.2004, the plaintiff had continued to be in possession and enjoyment of
the property as a rightful owner and that the Settlement Deed had not been acted
upon.
(iv)The simple reason for the defendants 4 to 7 in not claiming any right
under the Settlement Deed would only show that if they had made a claim based
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on the Settlement Deed, the plaintiff would have definitely challenged the same.
This also creates a doubt as to the voluntary execution of the Settlement Deed.
Therefore, in addition to the above reasonings and findings, I do not find any
infirmity or illegality in the judgment and reasonings of the Trial Court in coming
to a conclusion that the Settlement Deed had not been executed voluntarily.
Point 2:
(i)It is to be noted as stated supra, the Settlement Deed was executed in the
year 2004 and has not been acted upon till date.
(ii)Mr.T.Dhanyakumar, learned counsel appearing for the appellants had
specifically raised an issue that the suit is barred by limitation. The Court below
had specifically dislodged the said contention by holding that the plaintiff had
knowledge of execution of such a settlement only in the year 2014, by relying
upon Ex.A4 – Encumbrance Certificate and the evidence of PW2 who was the
Station House Officer and Ex.X1 produced by PW2 and had held that the suit is
within the period of limitation from the date of knowledge of the plaintiff.
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(iii)A Settlement Deed executed will have to be in present time. In the
present case, the Settlement Deed has been executed in the year 2004 and had
thereafter not been acted upon, as none of the beneficiaries under the Settlement
Deed had taken possession of the property or even have mutated the Revenue,
Municipal and Other records in their name. The period of limitation of bar begins
when his right is sought to be infringed. In the present case, the case of the
plaintiff is that he intended to execute a Settlement Deed in favour of his wife but
a fraud has been played upon him to see that the Settlement Deed is executed in
favour of the defendants 1 to 7. The defendants 1 to 3 also did not have the
knowledge of the Settlement Deed.
(iv)Had such Settlement Deed executed only in the name of his wife, the
plaintiff would have not come to the Court. Since the Settlement Deed had been
executed in favour of the defendants 1 to 7 which were not his wish, the plaintiff
had approached this Court and such knowledge had come to him only on
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obtaining an Encumbrance Certificate in the year 2014. A specific pleading in the
plaint has also been made by the plaintiff that his children viz., the defendants 1 to
7 were not taking care of him and his wife and therefore, he had decided to sell the
property for their livelihood. This would mean that the appellants herein who are
particularly the appellants 1 to 4, who are the daughters of the first
respondent/plaintiff, had also not taken care of him.
(v)This Court takes judicial notice of the fact of the law introduced for
protecting the Senior Citizens of this country. Section 23 of the Maintenance &
Welfare of Parents & Citizens Act, 2007, envisages a cancellation of a Sale Deed
executed by the parents in favour of their children if latter had neglected to take
care of the former. The enactment had been made to protect the helpless parents
who had settled their hard earned properties in favour of their children out of love
& affection with the hope that the children would take care of them and that there
would be no inter se dispute between the children after their death. In such a view
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of the position, in my respectful view that there can be no question of limitation
pleaded in such cases. Here is also a case where the father and mother had not
been taken care by the children, the sons' have got a mortgage and bogium
executed in their favour for contributing money to build a house and the daughter
has got a Settlement Deed executed without the knowledge of the father.
(vi)For the reasons stated above, I am of the view that the suit is well within
the period of limitation and the same will not be barred by law of limitation.
Point 3: The categorical finding given by the Court below that the
Settlement Deed and the Will that had been executed by the plaintiff were
produced originally by the eighth defendant. This cannot be refuted by the
plaintiff. Further, it is also an admitted fact that the eighth defendant was
instrumental in execution of Ex.A3/Ex.B7. When that be so, it is axiomatic that he
would be in possession of the relevant documents regarding the suit schedule
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property. Hence, I find no infirmity in the reasonings and findings given by the
Court below.
20.In fine, the Appeal Suit fails and is accordingly dismissed. However,
there shall be no order as to costs. Consequently, the connected petitions are
closed.
12.07.2023
Index: yes/no
Speaking order:yes/no
pam
To
The Principal District Judge at Puducherry.
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K.KUMARESH BABU, J.
Pam
A.S.No.307 of 2016
12.07.2023
https://www.mhc.tn.gov.in/judis
