Madras High Court
Palaniammal vs Thasi @ Sukkadan on 22 November, 2024
2024:MHC:3913
S.A.No.696 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 22 / 08 / 2024
JUDGMENT PRONOUNCED ON : 22 / 11 / 2024
CORAM
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.696 OF 2021
AND C.M.P.NO.13932 OF 2021
1.Palaniammal
2.Perumayee ... Appellants / Respondents /
Plaintiffs
Vs.
1.Thasi @ Sukkadan
2.Selvi ... Respondents / Appellants /
Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
January 27, 2021 passed in A.S.No.15 of 2019 on the file of the
Subordinate Court, Paramathi reversing the Judgment and Decree dated
March 21, 2019 made in O.S.No.99 of 2012 on the file of the District
Munsif Court, Paramathi.
For Appellants : Mr.C.Jagadish
For Respondent-1 : Mr.R.Jayaprakash
For Respondent-2 : Mr.S.Shanmuga Sundaram
for Mr.L.Parvin Banu
JUDGMENT
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This Second Appeal is directed against the Judgment and
Decree dated January 27, 2021 passed in A.S.No.15 of 2019 by the
'Subordinate Court, Paramathi' [henceforth 'First Appellate Court'],
whereby the Judgment and Decree dated March 21, 2019 passed in
O.S.No.99 of 2012 by the 'District Munsif Court, Paramathi' [henceforth
'Trial Court'] was reversed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE:
3. The 1st and 2nd plaintiffs are the wife and the daughter of
1st defendant respectively. The 2nd defendant is the daughter of one
Karuppayee, with whom the 1st defendant was in a relationship with,
however 2nd defendant was not born to 1st defendant. The Suit Property is
separate property of the 1st defendant. On September 7, 1983, the 1st
defendant executed a Settlement Deed in favour of the 1st plaintiff in
respect of Suit Property and the same was accepted and acted upon. Title
Deeds were handed over to the 1st plaintiff and she got into joint
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possession and enjoyment of the Suit Property along with 1st defendant.
Revenue records stand in the name of the plaintiffs and they have been
paying Kist. The 1st plaintiff had filed a Suit in O.S.No.174 of 1998 on the
file of District Munsif Court, Paramathi, seeking permanent injunction
inter alia against the said Karuppayee’s father, who is 1st plaintiff’s
neighbouring land owner too, and obtained Decree dated March 26, 1999
in her favour in respect of Suit Property.
3.1. While the said Settlement Deed stipulated that the 1st
defendant cannot cancel it, on the ill advice of said Karuppayee, 2 nd
defendant and others, the 1st defendant cancelled it vide Cancellation Deed
dated February 22, 2012 and executed two Settlement Deeds, one in favour
of 2nd plaintiff and another in favour of 2nd defendant. The defendants are
trying to dispossess the plaintiffs of the Suit Property under the guise of
the aforesaid three documents, which are void. On April 29, 2012, the
defendants and their men attempted to dispossess the plaintiffs of the Suit
Property. Hence the Suit for declaration that the said Cancellation Deed is
null and void, for permanent injunction restraining the defendants from
alienating or evicting or dispossessing the plaintiffs of the Suit Property,
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for costs and for other reliefs. To be noted, permanent injunction is sought
for without any prejudice to the 1st defendant’s joint possession and
enjoyment with 1st plaintiff.
DEFENDANTS' CASE:
4. The defendants filed written statement denying the plaint
averments. According to the defendants, Suit Property is self-acquired
property of 1st defendant. The 1st plaintiff used to often quarrel with the 1st
defendant and leave for her maternal house. Hence, the Settlement Deed
dated September 7, 1983 was executed sham and nominally on the
condition that she shall live along with the 1st defendant, that too on the
insistence of the 1st plaintiff. However, the 1st plaintiff did not live along
with the 1st defendant and she never got into joint possession and
enjoyment of Suit Property. Therefore, the Settlement Deed dated
September 7, 1983 was never acted upon. Since the 1st plaintiff failed to
comply with the terms and conditions stipulated in the Settlement Deed
dated September 7, 1983, 1st defendant has got every right to cancel it. The
1st defendant married the said Karuppayee with the consent of 1st plaintiff
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in vaigasi month of Tamil calendar in 1977 and in their wedlock, the 2nd
defendant was born. The Cancellation Deed dated February 22, 2012,
executed for equitable division of Suit Property between 1st plaintiff and
2nd defendant, is perfectly valid. Accordingly, the defendants sought to
dismiss the Suit.
TRIAL COURT:
5. At trial, Perumayee (2nd plaintiff) was examined as P.W.1
and Palaniammal (1st plaintiff) was examined as P.W.2 and Ex-A.1 to Ex-
A.19 were marked on the side of the plaintiffs. Thasi @ Sukkadan (1st
defendant) was examined as D.W.1 and Selvi (2nd defendant) was
examined as D.W.2 and Ex-B.1 to Ex-B.4 were marked on the side of the
defendants.
6. After completion of trial and hearing both sides, the Trial
Court concluded that as per the terms of Ex-A.3 - Settlement Deed dated
September 7, 1983, the 1st defendant has got no right to cancel it
unilaterally, that too after 29 years of its execution. Unilateral cancellation
of Settlement Deed is impermissible and invalid in law. Consequently, Ex-
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A.10 - Cancellation Deed dated February 22, 2012 is null and void.
Accordingly, decreed the Suit as prayed for.
FIRST APPELLATE COURT:
7. Dissatisfied with the Trial Court's Judgment and Decree,
the defendants / appellants preferred an appeal in A.S.No.15 of 2019
before the First Appellate Court. The First Appellate Court after hearing
both sides and perusing the documents available on record, concluded that
the nature of a document should not be gathered solely on the basis of its
nomenclature. The recitals of Ex-A.3 – Settlement Deed would show that
it is a Will and not a Settlement Deed. Ex-A.3 was never acted upon as the
1st defendant / executor is still alive and the property is still in his
possession and enjoyment. Accordingly, allowed the appeal and set aside
the Judgment and Decree of the Trial Court.
SECOND APPEAL:
8. Feeling aggrieved by the Judgment and Decree passed by
the First Appellate Court, the plaintiffs have preferred this Second Appeal,
which was admitted on August 24, 2023 on the following Substantial
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Questions of Law:
“(a) Whether the Lower Appellate Court is right in law in
dismissing the Suit holding that Ex-A.3 Settlement
Deed is a Will and that the Cancellation Deed Ex-
A.10 dated 22.02.2012 is valid particularly when the
Settlement Deed is absolute and irrevocable?
(b) Whether the Lower Appellate Court has properly
considered Ex-A.3 Settlement Deed and the recitals
therein while reversing the well considered judgment
of the Trial Court?”
ARGUMENTS:
9. Mr.C.Jagadish, learned Counsel for the appellants /
plaintiffs would argue that Ex-A.3 – Settlement Deed was acted upon and
the plaintiffs are in possession and enjoyment of the Suit Property. To
prove their possession, the plaintiffs filed Ex-A.19 series containing nine
Kist Receipts. Further, 1st defendant did not file anything except
Ex-A.13= Ex-B.3 – Computer Patta, which was issued just before the Suit,
to assert his possession over the Suit Property. Since the neighbouring land
owner including the grandfather of the 2nd defendant interfered with the
plaintiffs’ possession and enjoyment of Suit Property, 1st plaintiff filed the
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Suit in O.S.No.174 of 1998 on the file of District Munsif Court, Paramathi
and the same was Decreed as prayed for. The plaint, Decree and Judgment
therein are marked as Ex-A.4 to Ex-A.6 respectively. Further, the 1st
defendant examined as D.W.1 has clearly admitted the execution of Ex-
A.3 and the recitals thereof. Ex-A.3 coupled with the evidence of D.W.1
would show the intention of the parties behind the execution of Ex-A.3.
While nobody’s case is that Ex-A.3 is a Will, the First Appellate Court
erred in considering it as a Will. Further, the First Appellate Court failed to
appreciate Ex-A.4 to Ex-A.6 and Ex-A.19 in the right perspective. Further,
as per Section 126 of the Transfer of Property Act, 1882, Ex-A.3 cannot be
revoked unilaterally. Hence, unilateral cancellation is invalid. Accordingly,
he would pray to allow the Second Appeal, set aside the Judgment and
Decree of First Appellate Court and restore that of the Trial Court.
10. On the other hand, Mr.R.Jayaprakash, learned Counsel for
the Respondent No.1 / Defendant No.1 would argue that Ex-A.3 –
Settlement Deed, a sham and nominal document executed only with a view
to persuade 1st plaintiff to live along with 1st defendant, was never acted
upon. The 1st plaintiff did not live along with the 1st defendant as per the
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recitals of Ex-A.3. Hence, the 1st defendant is entitled to cancel the same.
The Suit Property was never parted to the plaintiffs exclusively. Hence,
there is no need to interfere with the Judgment and Decree of the First
Appellate Court. Accordingly, he would pray that the Second Appeal be
dismissed, and the Judgment and Decree of First Appellate Court be
confirmed.
11. Mr.S.Shanmuga Sundaram representing Mr.L.Parvin
Banu, learned Counsel on record for the Respondent No.2 / Defendant
No.2 would argue that the 1st defendant married said Karuppayee, and the
2nd defendant was born in their wedlock. Ex-B.1 – Transfer Certificate as
well as recitals of Ex-B.4 – Settlement Deed executed by 2 nd defendant’s
grandfather in favour of 2nd defendant’s mother – Karuppayee would
corroborate the same. Hence, 2nd defendant is a legitimate child of 1st
defendant. Further, comprehensive reading of Ex-A.3 would show that it is
not a Settlement Deed but a Will. The 1st defendant has every right to
cancel the Will (Ex-A.3). The said document was never acted upon, even
while assuming that it is a Settlement Deed. In these circumstances, the 1st
defendant cancelled Ex-A.3 vide Ex-A.10 - Cancellation Deed dated
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February 22, 2012 and executed two Settlement Deeds, one in favour of
2nd plaintiff [Ex-A.11] and another in favour of 2nd defendant [Ex-A.12],
for equitable distribution of Suit Property to his daughters. He would rely
on the Judgment of Hon'ble Supreme Court in S. Sarojini Amma v.
Velayudhan Pillai Sreekumar, reported in (2019) 11 SCC 391, wherein on
the facts and circumstances of that case, it was held that conditional gifts
can be cancelled when the conditions therefor are not fulfilled.
11.1. Further would argue that the plaintiffs challenged Ex-
A.10 - Cancellation Deed dated February 22, 2012 alone and have not
challenged Ex-A.11 and Ex-A.12 – Settlement Deeds executed on the
same day by 1st defendant. Further, in the absence of prayer seeking
declaration of title to Suit Property, prayer for declaring Ex-A.10 -
Cancellation Deed as null and void alone is not sufficient. Hence, the Suit
as framed by the plaintiffs is not maintainable. Accordingly, he would pray
to dismiss the Second Appeal, and confirm the Judgment and Decree of
First Appellate Court.
DISCUSSION:
12. This Court has heard on either side and perused the
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materials available on record in light of the Substantial Questions of Law:
13. Perused Ex-A.3. Relevant portion thereof reads thus:
“. . . tPud; kfd; jhrp Mfpa ehd;
vGjpf;bfhLj;j brl;oy;bkz;l; gj;jpuk;
vd;dbtd;why;
eP vd; kidtp. cd;id ehd; 20
Mz;LfSf;F Kd; jpUkzk; bra;J
bfhz;nld;. mJ rkak; ehd; cdf;F xU
Mjut[ bra;tjhf brhd;d thf;FWjpia
epiwntw;Wk; bghUl;Lk; ek; re;jjpfspd;
ed;ikiaf; fUjpa[k; cd; nghpy; cs;s
md;gpdhYk; gphpaj;jhYk; fPH;fz;l brhj;jpid
ck;khy; vt;tpjkhd bjhifa[k; bgwhky; ,e;j
brl;oy;bkz;l; \yk; fPH;fz;l
epge;jidf;Fl;gl;L vGjp itj;jpUf;fpnwd;. ,dp
fPH;fz;l brhj;jpid ePa[k; ehDk; nrh;e;J
mDgtpj;J tuntz;oaJ. ,jd; \yk; Vw;gLk;
tUkhdj;ijf; bfhz;L vd;dhy; ckf;Fg;gpwe;j
thhpRfisa[k; ,dp gpwf;fg;nghFk;
thhpRfisa[k; ehk; fhg;ghw;wp tuntz;oaJ.
fPH;fz;l brhj;jpd; kPJ tpy;y';fk;
bra;tjhapUe;jhy; ePa[k; ehDk; nrh;e;J
tpy;y';fk; bra;a ntz;oanj jtpu ePnah md;wp
ehndh jdpj;J tpy;y';fk; bra;jhy; mitfs;
VJk; bry;yhJ. ek; ,UtUila Ma[Sf;Fg;gpd;
kPjp ,Uf;Fk; brhj;Jf;fis vd;dhy; cdf;F
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Vw;gl;l thhpRfns mila ntz;oaJk;
kw;wth;fSf;F vt;tpj ghj;jpa chpika[k; ,y;iy.
,e;j brl;oy;bkz;l; gj;jpuj;ij uj;J
bra;anth g[Jg;gpf;fnth vdf;F mjpfhuk;
,y;iy. kPwp bra;jhYk; mitfs; aht[k;
bry;yhJ. ,e;jg;go vd; rk;kjpapy; vGjpf;
bfhLj;j brl;oy;bkz;l; gj;jpuk;.“
14. There is no dispute that the subject matter of Ex-A.3 –
Settlement Deed dated September 7, 1983, being the Suit Property, is
separate property of the 1st defendant; that the 1st plaintiff married the 1st
defendant around the year 1963 and in their wedlock, the 2nd plaintiff
alone was born; that on the date of execution of Ex-A.3 – Settlement Deed
i.e., September 7, 1983, the 2nd plaintiff had already been born.
15. On bare reading of Ex-A.3, one can easily deduce that Ex-
A.3 – Settlement Deed was executed by 1st defendant for three reasons : (i)
with a view to fulfil his promise to the 1st plaintiff made at the time of their
marriage that he would support and safeguard her life, (ii) for the
wellbeing of their child(ren) and (iii) out of love and affection as well.
Further it can be easily discerned that Ex-A.3 lacks passing of any
monetary consideration. Furthermore, one can easily ascertain that the
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primary object behind Ex-A.3 is to ensure that the 1st plaintiff takes good
care of and properly raises the child(ren) born in her wedlock with the 1st
defendant. On comprehensive reading, it can be observed that Ex-A.3 was
executed on the following terms and conditions:
(i) Under Ex-A.3, ownership and possession of the Suit Property
was transferred absolutely in favour of the 1st plaintiff in
praesenti on the condition that, upon such absolute transfer of
ownership and enjoyment, the 1st defendant shall be entitled
to enjoy the Suit Property jointly. [This could be understood
from the lines : fPH;fz;l brhj;jpid ck;khy;
vt;tpjkhd bjhifa[k; bgwhky; ,e;j brl;oy;bkz;l;
\yk; fPH;fz;l epge;jidf;Fl;gl;L vGjp
itj;jpUf;fpnwd;. ,dp fPH;fz;l brhj;jpid ePa[k;
ehDk; nrh;e;J mDgtpj;J tuntz;oaJ];
(ii) The 1st plaintiff and 1st defendant out of the income derived
from the Suit Property, shall maintain the children born or to
be born to them;
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(iii) In case, any encumbrance / alienation is to be made on the
Suit Property, it has to be made jointly. Any unilateral
encumbrance / alienation shall be invalid;
(iv) Post their life time, the remaining property shall be vested in
the hands of their children. No one else shall have any right or
claim over the Suit Property;
(v) The 1st defendant shall have no right to cancel or modify Ex-
A.3. Any such modification or cancellation, if done, would
not be valid.
16. It is an admitted fact that 2nd plaintiff alone was born in
the wedlock between the 1st plaintiff and 1st defendant. Notably, the 2nd
plaintiff did not take a stand that she was not taken good care or she was
not raised with proper love and affection. Bare perusal of the plaint shows
that the 2nd plaintiff grew up in the care and custody of 1st plaintiff. P.W.1/
2nd plaintiff has deposed that she was married off in 1985 to a person
working as a Manager at Central Bank and that she is working at a play
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school (m';fd;tho). On cumulative consideration of the above facts,
this Court is of the view that the primary object behind Ex-A.3, which is
the welfare of the child(ren) born to 1st plaintiff and 1st defendant, has
been fulfilled by the 1st plaintiff.
17. Further, the 1st plaintiff along with the 2nd plaintiff filed a
Suit in O.S.No.174 of 1998 against three persons whereby she saved the
Suit Property from risks such as wastage, encroachment, mischief and
interference. This shows that the plaintiffs are in possession and enjoyment
of the Suit Property and have taken proactive steps to safeguard it from
potential dangers / threats.
18. Further, plaintiffs in Paragraph Nos.9 and 10 of the plaint
has averred that they’re in joint possession and enjoyment of the Suit
Property; that they have no objection for joint cultivation of the Suit
Property by the plaintiffs and the 1st defendant; and that however, the
second defendant has no right over the Suit Property. This shows that the
plaintiffs did not violate the condition qua joint possession in Ex-A.3 nor
is there any intention to do so.
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19. Further, 1st defendant in O.S.No.174 of 1998 is none other
than the grandfather of 2nd defendant and father of Karuppayee.
Karuppayee was in a relationship outside of marriage with the 1st
defendant herein. The said relationships were not controverted by the
grandfather of the 2nd defendant in O.S.No.174 of 1998. However, the
grandfather executed Ex-B.4 – Settlement Deed in favour of his daughter –
Karuppayee, wherein he has described his daughter as the ‘junior wife’ of
the 1st defendant. The defendants in their statement have averred that in
1977, the 1st defendant married Karuppayee as 2nd wife. Ex-B.1 – Transfer
Certificate of 2nd defendant, and Ex-B.2 – Family Card of said Karuppayee
would strengthen the averment that 1st defendant married said Karuppayee.
Admittedly, the parties are Hindus. Hence, this Court is of the considered
view that though the marriage between the 1st defendant and said
Karuppayee is void, 2nd defendant is a legitimate child of 1st defendant
under Section 16 of the Hindu Marriage Act, 1955. Further, from the
cumulative facts set out in this paragraph, it can be discerned that the 1st
plaintiff bears a sufficient and reasonable cause to live estrange from 1st
defendant.
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20. The plaintiffs’ side filed Ex-A.13 – Computer Patta
obtained on March 22, 2012, which shows that the concerned Patta for the
Suit Property is Patta No.374 standing now in the name of 1st defendant
and another. That is the only document which is in favour of the
defendants when it comes to proving their alleged possession. The
defendants have not filed any other documents in this regard. Whereas the
plaintiffs filed Ex-A.19 series containing nine Kist Receipts, out of which,
seven receipts relating to Patta No.374 and pertaining to the time period
between 1985 and 1994 were issued in the names of the 1 st and 2nd
plaintiffs. Moreover the plaintiffs have field Ex-A.1 and Ex-A.2, which are
original Title Deeds of the Suit Property standing in the name of 1st
defendant, as well as Ex-A.3, which is the original Settlement Deed dated
September 7, 1983. Presence of the originals of the Title Deeds and the
Settlement Deed dated September 7, 1983 in the hands of the plaintiffs are
also indicative of plaintiffs’ ownership and possession. Hence, the
contentions of the defendants that Ex-A.3 is sham and nominal and was
never acted upon is untrue and deserves to be rejected.
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21. As stated supra, the originals of the Title Deeds and the
Settlement Deed dated September 7, 1983 were handed over to the
plaintiffs. On the basis of Ex-A.1, Ex-A.2, Ex-A.3 and Ex-A.19 – Kist
Receipts, the plaintiffs presented the plaint in O.S.No.174 of 1998 (Ex-
A.4) and obtained Decree and Judgment in their favour (Ex-A.5 and Ex-
A.6). As stated supra, ownership was transferred and possession was
handed over in praesenti under Ex-A.3. Ex-A.3, recitals whereof clearly
show that it is irrevocable and that it is a Settlement Deed. From the
intention of the parties also, it can be gathered that Ex-A.3 is a Settlement
Deed. Moreover, the defendants neither through their Written Statement
nor through their sides’ evidence, took a stand that Ex-A.3 is a Will. Not
even a single suggestion was put to the plaintiffs during their cross-
examination that Ex-A.3 is a Will.
22. It is a settled principle of law that interpretation of a
document has to be done in a comprehensive manner. The document has to
be read in its entirety and interpreted considering the recitals, import of
words, relationship between the parties, unique facts and circumstances of
the case, etc. Conjoint reading has to be done. Interpretation should not be
based on a single dissected line or portion from the document. Moreover,
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the defendants being the executant of Ex-A.3 filed written statement and
even deposed to the effect that Ex-A.3 is a Settlement Deed. In this regard,
it is apposite to extract hereunder the evidence of D.W.1:
'. . . 07.09.83- njjpapl;l 1k; thjpapd;
bgahpy; gjpt[ bra;ag;gl;l brl;oy;bkz;l;
Mtzj;ij Vw;gLj;jp bfhLj;Js;nsd;
vd;why; rhpjhd;. nkw;go th.rh.M.3
Mtzj;ij 1k; thjpapd; bgahpy; cs;s
md;gpdhYk; ghrj;jpdhYk;
RatpUg;gj;jpd;go jhd; vGjp itj;njd;
vd;why; rhpjhd;. nkw;go th.rh.M.3
Mtzj;jpy; epge;jidapy; ,dp
ve;jfhyj;jpYk; ePnah ehndh uj;Jbra;a
,ayhJ vd;Wjhd; vGjp bfhLj;Js;nsd;
vd;W brhd;dhy; rhpjhd;. mt;thW
tpy;y';fk; Vw;gLj;jpdhy; nkw;go tpy;y';fk;
bry;yhJ vd;W Fwpg;gpl;Ls;nsd; vd;W
brhd;dhy; rhpjhd;. nkw;go Mtzj;jpy; ek;
,Uthpd; Ma[Sf;Fg;gpd; vd;dhy; cdf;F
Vw;gl;l thhpRfis milantz;Lk; vd;Wk;
kw;wth;fSf;F vt;tpj ghj;jpa chpika[k;
,y;iy vd;W vGjg;gl;Ls;sJ vd;why;
rhpjhd;. 1k; thjpf;F 2k; thjp kl;Lnk thhpR
vd;why; rhpjhd;. th.rh.M-1 kw;Wk; 2
Mtz';fs; vd;dhy; fpiuak; bgwg;gl;l
brhj;Jf;fspd; mry; Mtz';fs; vd;W
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brhd;dhy; rhpjhd;. jhth brhj;Jf;s;
fpiuak; bgw;w njjpapy; ehDk; thjpa[k;
xd;whfj;jhd; trpj;J te;njhk; vd;why;
rhpjhd;. th.rh.M.3 Mtzk; vGjg;gLk;
fhyj;jpy; ehDk; thjpfSk; jhthbrhj;jpy;
jhd; FoapUe;J te;njhk; vd;why; rhpjhd;.
. . .”
22.1. Further, at this juncture, it is apposite to cite the decision
of Hon'ble Supreme Court in P.K.Mohan Ram v. B.N.Ananthachary and
others, reported in (2010) 4 SCC 161, wherein, in a similar factual matrix,
the Hon'ble Supreme Court held as hereunder:
“19.Having noticed the distinction between vested
interest and contingent interest, we shall now consider
whether Ext. A-2 was a settlement deed or a will.
Although, no straitjacket formula has been evolved for
construction of such instruments, the consistent view of
this Court and various High Courts is that while
interpreting an instrument to find out whether it is of a
testamentary character, which will take effect after the
lifetime of the executant or it is an instrument creating a
vested interestin præsentiin favour of a person, the Court
has to very carefully examine the document as a whole,
look into the substance thereof, the treatment of the subject
by the settlor/executant, the intention appearing both by
the expressed language employed in the instrument and by
necessary implication and the prohibition, if any,
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contained against revocation thereof. It has also been held
that form or nomenclature of the instrument is not
conclusive and the court is required to look into the
substance thereof.
*** *** ***
29.A careful reading of Ext. A-2 shows that in the
title itself the document has been described as a settlement
deed. By executing that document, Shri K. Perumal Iyer
expressed his intention, in no uncertain terms, to settle the
property in favour of 16 persons who were none else than
his own relatives and declared that “from this day
onwards I and you shall enjoy the land and house without
creating any encumbrance or making any alienation
whatsoever”. This was an unequivocal creation of right in
favour of sixteen personsin præsenti. Though, the
beneficiaries were to become absolute owners of their
respective shares after the death of the settlor, the
language of the document clearly shows that all of them
were to enjoy the property along with the settlor during his
lifetime and after his death, each of the beneficiaries was
to get a specified share. In the concluding portion, the
settlor made it clear that he will have no right to cancel
the settlement deed for any reason whatsoever or to alter
the terms thereof.
30.The mere fact that Beneficiaries 1 and 2 and
after them their heirs were to receive honours at the
temple or that shares were to be divided after disposal of
the property cannot lead to an inference that Ext. A-2 was
a “will”. If Ext. A-2 is read as a whole, it becomes clear
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that it was a “settlement deed” and the trial court and the
lower appellate court did not commit any error by
recording a finding to that effect. As a sequel to this, it
must be held that the High Court committed serious error
by setting aside the concurrent judgments and decrees of
the two courts.”
22.2. On the strength of afore-cited authority, this Court is of
the view that Ex-A.3 is a Settlement Deed and not a Will.
23. In short, the primary object as well as the conditions
stipulated in Ex-A.3 has been fulfilled. The plaintiffs have not made any
alienation or encumbrance so far. They do not have the right to do so
unilaterally during the life time of 1st defendant and the 1st plaintiff. The
1st plaintiff has been proactive in protecting the Suit Property. Hence, this
Court is of the view that the plaintiffs have not violated any condition
stated in Ex-A.3. Moreover, they seem to have no intention to do so in the
near future as stated supra. Therefore, Ex-A.3 cannot be revoked under
Section 126 of the Transfer of Property Act, 1882. Assuming that the
plaintiffs alienate the Suit Property in the future, even then the 1st
defendant cannot cancel Ex-A.3 unilaterally in view of the express
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irrevocability clause contained therein. The only remedy available to him
is to file a Civil Suit [See Latif Estate Line India Ltd. v. Hadeeja Ammal,
reported in 2011 SCC OnLine Mad 215 : (2011) 1 LW 673 (FB)].
24. In S. Sarojini Amma’s Case (cited supra), on facts
Hon'ble Supreme Court held that conditional gifts can be revoked when
conditions therefor are violated. In that case, the donor retained possession
with her and imposed a condition that the donee shall look after her and
her husband during their lifetime. Further, there was a clear clause that the
gift would take effect only after the death of the donor and her husband.
Whereas in the instant case, as stated supra, possession was handed over
in praesenti under Ex-A.3, and Ex-A.3 was accepted and acted upon
immediately. S. Sarojini Amma’s Case turns on its own facts and
therefore it cannot be applied to the instant case.
25. Further, since ownership and possession were given in
praesenti under Ex-A.3, and since the plaintiffs are still in possession and
enjoyment of the Suit Property, this Court is of the view that the Suit, for
declaration that Ex-A.10 - Cancellation Deed dated February 22, 2012, is
maintainable even in the absence of prayer for declaration of title in
respect of Suit Property.
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26. In these circumstances, the Trial Court rightly appreciated
the evidence available on record and concluded that Ex-A.3 is a Settlement
Deed. The First Appellate Court, without appreciating the evidence in the
right perspective, erred in concluding that Ex-A.3 is a Will merely on the
ground that Ex-A.3 recites that the Suit Property shall be vested with the
child(ren) of the 1st plaintiff and 1st defendant post their lifetime, that too
when there is no whisper that Ex-A.3 is a Will. Accordingly, Substantial
Questions of Law are answered in favour of the plaintiffs.
CONCLUSION:
27. Resultantly, the Second Appeal stands allowed. The
Judgment and Decree of the First Appellate Court is hereby set aside and
the Judgment and Decree of the Trial Court is hereby confirmed. Keeping
in mind the relationship between the parties, there shall be no order as to
costs. Connected Civil Miscellaneous Petition is closed.
22 / 11 / 2024
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
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To
1.The Subordinate Court
Paramathi.
2.The District Munsif Court
Paramathi.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.696 OF 2021
22 / 11 / 2024
https://www.mhc.tn.gov.in/judis
