Madras High Court
Ganesan vs Ramasamy on 13 October, 2023
S.A.No.674 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.10.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.674 of 2017
CMP.No.17496 of 2017
1.Ganesan
2.Periyammal
3.Senthilkumar
...Appellants
Vs.
1.Ramasamy
2.K.Parameswari ...Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code,
to set aside the judgment decree dated 07.04.2017 made in A.S.No.22 of 2012
on the file of the learned Subordinate Court, Namakkal, Confirming the
judgment and decree dated 15.03.2012 made in O.S.No.111 of 2006 on the file
of the learned District Munsif Court, Namakkal by allowing this Second
Appeal.
For Appellants : Mr.N.Manokaran
For Respondent : Mr.S.Saravanakumar
for M/s.I.Abrar Md Abdullah
for R1 and R2
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S.A.No.674 of 2017
JUDGMENT
The unsuccessful defendants in a suit for declaration and
injunction is the appellants herein. The suit was decreed by the trial Court and
the appeal filed by the appellants was also dismissed. Aggrieved by the
concurrent findings, the appellants/defendants have preferred this appeal.
2. For the sake of convenience, the parties are referred in this
second appeal as per their ranking in the suit.
3. The first plaintiff is the brother of second defendant, both are
children of one Chinna Gounder. The second plaintiff is the purchaser of the
suit property from the first plaintiff. The first defendant is the husband of
second defendant, the 3rd defendant is the son of defendants 1 and 2.
4. According to the plaintiffs, the property was originally
purchased by Chinna Gounder, the father of first plaintiff and second
defendant on 04.07.1960. He executed a settlement deed in favour of first
plaintiff on 12.02.2004 and handed over possession of the same to him.
Thereafter, the revenue records had been changed in favour of first plaintiff.
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S.A.No.674 of 2017
As the respondents attempted to interfere with the possession of first plaintiff,
a suit was filed for declaration and injunction. Originally an exparte decree
was passed in the suit. Subsequent to ex-parte decree, the suit property was
sold to the second plaintiff. Thus claiming right under the registered
settlement deed executed by Chinna Gounder, the plaintiffs filed a suit for
declaration and injunction.
5. The appellants/defendants herein filed their written statement
and denied the execution of the settlement deed by Chinna Gounder in favour
of first plaintiff. The defendants also claimed that said Chinna Gounder
executed a Will in favour of 3rd defendant on 02.03.2004 and hence the 3rd
defendant is entitled to suit property after the death of Chinna Gounder.
6. Before the trial Court, the first and second plaintiff were
examined as Pws.1 and 2. The attestor to sale deed in favour of second
plaintiff was examined as PW.3. The attestor to the settlement deed relied on
by the plaintiffs was examined as PW.4. The Sub Registrar in whose office
settlement deed/Ex.A3 was registered was examined as PW.6. The finger print
expert to compare the finger print of Chinna Gounder in settlement deed
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S.A.No.674 of 2017
Ex.A3 with admitted finger print of Chinna Gounder available in Ex.A13 was
examined as PW.8. Two other witnesses were examined as PW.5 and PW.7
On behalf of the plaintiffs fourteen documents were marked as Exs.A1 to A14.
The defendants 1 and 3 were examined as DW1 and DW2. The attestor to
Exs.B1 relied on by the appellants was examined as DW3. Two other
witnesses were examined as DW4 and DW5. On behalf of the defendants only
one document namely the Will relied on by them was marked as Ex.B1. The
report of the finger print expert was marked through her as Ex.C1.
7. The trial Court on appreciation of oral and documentary
evidence available on record came to the conclusion that respondents proved
execution of settlement deed in favour of first plaintiff and consequently
granted decree of declaration and permanent injunction. Aggrieved by the
same, the defendants filed an appeal in A.S.No.22 of 2012, on the file of
Subordinate Court, Namakkal. The First Appellate Court concurred with the
findings of the trial Court and aggrieved by the same, the unsuccessful
defendants have come by way of this Second Appeal.
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S.A.No.674 of 2017
8. The learned counsel appearing for the appellants/defendants
tried to assail the judgment of the Courts below, on the ground that the
validity of settlement deed relied on by the plaintiffs ought not to have been
affirmed by the Courts below only based on the expert opinion. The learned
counsel further submitted that the plaintiffs failed to prove the execution of
settlement by Chinna Gounder, as per the provisions of Section 63 of Indian
Succession Act r/w Section 68 of Indian Evidence Act and consequently the
Courts below ought not to have granted a decree for declaration and injunction
in favour of the respondents.
9. The plaintiffs/respondents herein filed a suit for declaration
and injunction based on the registered settlement deed executed by its original
owner of the suit property viz., Chinna Gounder dated 12.02.2004. The
defendants raised a defence in the suit by denying the execution of settlement
deed in favour of first plaintiff. They also pleaded execution of the Will by the
said Chinna Gounder in favour of 3rd defendant dated 02.03.2004. The
settlement deed relied on by the plaintiffs is prior to the Will relied on by the
defendants. Even otherwise under the settlement deed, the title get transferred
to the settlee instantly on due execution of the registered settlement deed. As
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S.A.No.674 of 2017
far as testamentary document is concerned there is no instant transfer of title
and the is postponed till the death of Chinna Gounder. Therefore, if the
execution of the settlement deed is proved by the respondents even assuming
the Will allegedly executed by Chinna Gouonder is true, it will not have any
legal effect.
10. In order to prove the execution of settlement deed, the
attestor of the said document was examined as PW.4 by the respondents. The
Courts below on careful perusal of PW.4's evidence came to the conclusion
that Chinna Gounder executed the settlement deed voluntarily in favour of
first plaintiff. Apart from the attestor evidence in support of settlement deed,
the respondents also examined the Sub Registrar in whose office Ex.A3
settlement was registered. He also deposed that as per the records maintained
in his office, Ex.A3 settlement deed was duly registered in his office. The
thumb impression of Chinna Gounder available in the registration
endorsement of Ex.A3 has been sent for expert opinion for comparison with
the admitted thumb impression available in Ex.A13. The expert who
compared the thumb impression was examined as PW.8 and her report was
marked as Ex.C1. She clearly deposed that the thumb impression found in
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S.A.No.674 of 2017
Ex.A3 settlement and the thumb impression found in Ex.A13 are one and the
same. Therefore, the Courts below based on evidence of attestor to the
settlement deed, opinion of thumb impression expert and the evidence of Sub
Registrar came to the conclusion that execution of Ex.A3 has been duly
proved. Once the execution of settlement deed is upheld the transfer of
property takes in presenti. Then the settlor has no right to execute another
document in respect of the very same property. Therefore, the subsequent Will
allegedly executed by Chinna Gounder under Ex.B1 in favour of 3rd defendant
pales into insignificance.
11. The learned counsel for the appellant also tried to assail the
judgments of the Courts below by submitting that there is no evidence
available on record to show that the settlement deed Ex.A3 was acted upon.
The respondents by producing patta transfer order dated 08.05.2007 marked as
Ex.A7 and adangal relating to the suit property for the fasli years 1414 to
1418, marked as Ex.A9, proved that subsequent to execution of the settlement
deed in favour of the first plaintiff mutation had taken place in his favour.
Exs.A11 and A12 are land tax receipts issued in the name of first plaintiff
dated 22.05.2008 and 16.03.2009. Therefore, the respondents/plaintiffs also
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S.A.No.674 of 2017
proved that the settlement deed was acted upon and mutation had taken place
pursuant to the settlement deed in favour of first plaintiff.
12. In such circumstances, the concurrent findings of the facts
rendered by the Courts below are based on sound appreciation of materials
available on record, which requires no interference by this Court.
13. In nutshell,
The Second Appeal is dismissed by confirming the judgment and
decree passed in A.S.No.22 of 2012, on the file of the learned Subordinate
Court, Namakkal, dated 07.04.2017 confirming the judgment and decree in
O.S.No.111 of 2006 on the file of the learned District Munsif Court,
Namakkal, dated 15.03.2012.
b) In the facts and circumstances of the case, there shall be no
order as to costs; and
c) consequently, connected Miscellaneous Petition is closed.
13.10.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
ub
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S.A.No.674 of 2017
To
1. The Subordinate Court, Namakkal.
2. The District Munsif Court, Namakkal.
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S.A.No.674 of 2017
S.SOUNTHAR, J.
ub
S.A.No.674 of 2017
13.10.2023
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