Madras High Court
Santhamani vs Tamilselvi on 8 January, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.Sr.No.143647 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.Sr.No.143647 of 2023
and
C.M.P.No.26860 of 2023
[C.M.P.No.26860 of 2023]
Santhamani
... Petitioner
Vs.
Tamilselvi
... Respondent
PRAYER in C.M.P.No.26860 of 2023: Civil Miscellaneous Petition filed
under Order 41 Rule 3(A) of Civil Procedure Code to condone the delay of
511 days in the presentation of the Second Appeal.
1/12
https://www.mhc.tn.gov.in/judis
S.A.Sr.No.143647 of 2023
[S.A.SR.No.143647 of 2023]
Santhamani
... Appellants
Vs.
Tamilselvi
... Respondent
PRAYER in S.A.SR.No.143647 of 2023 .: Second Appeal filed under
Section 100 of the Code of Civil Procedure against the judgement and
decree made in A.S.No.7of 2020 dated 30.09.2021 on the file of III
Additional District and Sessions Judge, Erode at Gobichettipalayam by
confirming the judgement and decree in O.S.No.182 of 2016 dated
29.11.2019 passed by the Subordinate Judge, Sathyamangalam.
For Appellant : M/s.Mr.K.V.Babu
For Respondent : Not ready in notice.
JUDGMENT
The above petition is filed for condoning the delay of 511 days in
filing the above Second Appeal.
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2. The only reason that has been adduced for condoning the delay
is set out hereinbelow :-
"I further submit that the judgement in A.S.No.7 of
2020 was delivered on 30.09.2021. Due to the ongoing
COVID-19 pandemic and nation-wide lockdown during
the said period, I was unable to seek legal advice
regarding further course of action. Due to the restrictions
in movement, I was also not in a position to approach my
lawyer."
3. To consider whether this unexplained delay can be condoned,
it is necessary to briefly consider the merits of the case.
4. The Second Appeal has been filed by the 2nd defendant who
had concurrently lost before the Courts below. The suit had been filed
by the plaintiff/respondent herein seeking a declaration that the suit
property belongs to the plaintiff and for an injunction restraining the
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2nd defendant or her men and agents from interfering with the
plaintiff's peaceful possession and enjoyment of the suit property.
5. It is the case of the plaintiff that she is the daughter-in-law of
the deceased 1st defendant and the 2nd defendant is the daughter of the
1st defendant. The suit property is a dwelling house and the same is the
absolute property of the 1st defendant. The plaintiff's husband Moorti
and the 2nd defendant are the children of the 1st defendant and
Ramasamy. The said Ramasamy died on 27.01.2000 and the plaintiff's
husband died on 23.09.2005 leaving behind him surviving the plaintiff,
her son Santhosh Kumar and daughter Kasthuri. The 1st defendant had
out of her love and affection executed a gift settlement deed dated
12.12.2007 in favour of the said Santhosh Kumar. Under this deed, the
plaintiff was to act as the guardian of the said Santhosh Kumar till he
attains majority and thereafter the property was to be enjoyed
absolutely by the said Santhosh Kumar. On the very same date on
which the suit property had been settled on the plaintiff's son, the 2nd
defendant had purchased another property from the plaintiff and the 1st
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defendant. The plaintiff would submit that her son Santhosh Kumar
died on 18.03.2016 and the plaintiff being his sole legal heir became
entitled to the property. The 1st defendant in the year 2008 had gone to
Gobichettipalayam and was residing with the 2nd defendant.
6. While so, on 15.10.2016, the 2nd defendant had come to the
suit property and asked the plaintiff to vacate the suit property stating
that the said property had been settled in her favour. Shocked by this
statement, the plaintiff had verified with the Sub Registrar's office
where she came to know that the settlement deed executed by the 1st
defendant in favour of her son on 12.12.2007 had been cancelled by a
deed of cancellation dated 29.12.2014 and thereafter on 29.02.2016, the
1st defendant had executed a gift settlement deed in respect of the suit
property in favour of the 2nd defendant and on the strength of this
document that the 2nd defendant had attempted to disturb the peaceful
possession of the plaintiff. Therefore, the plaintiff had come forward
with the suit in question.
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7. The 2nd defendant had filed a written statement and an
additional written statement. The sum and substance of the same being
that the suit property was an undivided property and the plaintiff had
not taken care of the 1st defendant. In fact, she had also alleged that the
husband and son of the plaintiff had died in mysterious circumstances.
It is the contention of the 2nd defendant that after the death of her
husband, the plaintiff had wanted to start a business and she had
requested the 1st defendant to pledge the suit property. The 1st
defendant had also accepted the request and in the guise of executing a
mortgage deed, the 1st defendant was made to sign the settlement deed.
8. The 2nd defendant would contend that the settlement deed
executed in favour of Santhosh Kumar was never intended to be
executed by the 1st defendant and further the contents of the document
was not read over to the 1st defendant. Therefore, the 1st defendant on
coming to know about this had cancelled the same and thereafter
executed a settlement deed in favour of the 2nd defendant. It is also the
case of the 2nd defendant that the plaintiff is residing at Sadhumugai
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and not in the suit property. It was the 2nd defendant who is in
possession of the suit property.
9. The learned Subordinate Judge, Sathyamangalam had framed
issues and after the trial had decreed the suit declaring that the suit
property belonged to the plaintiff and granted consequential permanent
injunction against the 2nd defendant. Aggrieved by the same, the 2nd
defendant has preferred A.S.No.97 of 2020 on the file of the III
Additional District and Sessions Judge, Erode at Gobichettipalayam.
10. The Lower Appellate Court had also confirmed the
judgement and decree of the Trial Court and dismissed the appeal.
Against which this Second Appeal has been filed and that too with a
delay of 511 days.
11. Heard the learned counsel for the appellant/petitioner.
12. The learned counsel who appeared on behalf of the appellant/
petitioner apart from seeking to condone the delay have on merits
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submitted that the suit that was filed was premature since under the
settlement deed Ex.A.1, the 1st defendant had retained her life interest
in the suit property and it was only after her lifetime that the property
was intended to be given to her grandson, Santhosh Kumar. Further,
the suit property is not in the possession of the plaintiff. The learned
counsel would also contend that the settlement deed was never acted
upon and that the rents were being collected by the 2nd defendant. The
learned counsel would also submit that D.W.2 who is the tenant during
her evidence had deposed that it was the 2nd defendant who was
collecting the rents. Therefore, it is her contention that the Courts
below have erroneously decreed the suit.
13. The 1st argument regarding the suit being a premature was
not an argument that was advanced in the written statement or taken as
a ground of appeal. The argument that the suit is a premature one is
without any basis since the cause of action for filing the suit had
occurred only when the plaintiff had come to know that the settlement
deed executed in favour of Santhosh Kumar had been cancelled and a
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settlement deed had been executed in favour of the 2nd defendant. The
plaintiff came to know about these deeds only on 15.10.2016 when the
2nd defendant had come to the suit property. That apart, the collection
of rents by the 2nd defendant from the tenant can also not be held
against the plaintiff for the simple reason that under the settlement
deed, a life interest had been given to the 1st defendant. Further, the 1st
defendant did not have any right to cancel the settlement deed, Ex.A.1
unilaterally without the consent and knowledge of the plaintiff.
14. Further, the Courts below have found that the execution of
the gift settlement deed by the 1st defendant in favour of the plaintiff's
son had been witnessed by the 2nd defendant herself. The recitals in the
cancellation deed would indicate that the deed has been cancelled on
the ground that the possession continues to be with the settlee and that
she had committed an error in considering the property of her husband
to be her individual property.
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15. The recitals in the settlement deed Ex.A.3 dated 12.12.2007
executed by the 1st defendant in favour of the plaintiff's son clearly
spells out that the property would continue to be in the possession of
the settlor, namely, the 1st defendant till her lifetime without she
creating any encumbrances, sales or transfers in respect of the property
and it is only thereafter that possession would be handed over to the
settlee. The settlement deed further clearly states that the said deed is
an irrevocable one. Therefore, the Courts below have rightly dismissed
the suit.
16. Considering the fact that the 2nd defendant/appellant has no
case even on merits and also taking into account the fact that no valid
reasons have been given for condoning the delay of over 511 days, the
above petition is dismissed and consequently, the above Second Appeal
is rejected at the S.R Stage itself. No costs.
08.01.2024
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
shr
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To
1.The III Additional District and Sessions Judge,
Erode at Gobichettipalayam.
2.The Subordinate Judge, Sathyamangalam.
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P.T. ASHA, J,
shr
and
08.01.2024
https://www.mhc.tn.gov.in/judis
