Madras High Court

D.S.Kumari vs Mr.Lakshmi Narasimhalu on 2 July, 2025

Author: C.Saravanan

Bench: C.Saravanan

                                                                                             C.S.No.43 of 2012

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Reserved On                  30.04.2025
                                               Pronounced On                 02.07.2025

                                                                CORAM

                                    THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                                         C.S.No.43 of 2012

                    D.S.Kumari                                                               ...plaintiff

                                                                     Vs.

                    1.Mr.Lakshmi Narasimhalu
                          @ Kannan (Deceased)

                    2.Mr.G.Krishna Bhaskar

                    3.Mrs.M.S.Radhalakshmi

                    4.G.Sudharsan

                    5.G.Supraja Vybhavi                                                      ...Defendants

                    [The fourth and fifth defendants were brought on record
                    as legal heirs of the deceased first defendant vide order
                    dated 21.09.2021 passed in Application No.2569 of
                    2021]

                    Prayer:
                              This suit is filed under Order VII Rule 1 of C.P.C. r/w. Order IV Rule
                    1 of O.S.Rules for the following reliefs:
                                  (a) For partition and separate possession of 1/3rd undivided
                                      share in the suit properties;

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                                                                                               C.S.No.43 of 2012

                                  (b) For appointment of an Advocate Commissioner to divide
                                      the suit properties by metes and bounds and to allot 1/3rd
                                      share to the plaintiff; and

                                  (c) for the costs of the suit.


                              For plaintiff                    :         Mr.S.Sadasharam

                              For Defendant – 1                :         Mr.P.Murugaiyan

                              For Defendant – 2                :         Mr.R.Rajesh Vivekananthan

                              For Defendant – 3                :         Mr.V.G.Suresh Kumar

                              For Defendants – 4 & 5 :                   No Appearance

                                                                     *****

                                                               JUDGMENT

This partition suit has been filed by the plaintiff for the following

reliefs:-

(a) For partition and separate possession of 1/3rd undivided share in the suit properties;

(b) For appointment of an Advocate Commissioner to divide the suit properties by metes and bounds and to allot 1/3rd share to the plaintiff; and

(c) For the costs of the suit.

2. Details of the suit scheduled property are as under:

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Suit Schedule Document No Description of Property Item No. Item No.I 1272 of 2007 House, Ground and Premises bearing Door No.9, Kasi Chetty Lane, Sowcarpet, Chennai 600079 comprised in R.S.No 10589/1, O.S.No.2707 measuring an extent of 1 Ground 357 sq.feet.

1273 of 2007 House, Ground and Premises bearing Door No.12, Cope Venkatachala Iyer Lane (called Kasi Chetty Lane), Sowcarpet, Chennai 600079 comprised in R.S.No. 10580, O.S.No 2767, C.C.No.1026 measuring an extent of 1 Ground and 838.5 Item No.II sq.feet. - [Western Portion] 1274 of 2007 House, Ground and Premises bearing Door No.12, Cope Venkatachala Iyer Lane (called Kasi Chetty Lane), Sowcarpet, Chennai 600079 comprised in R.S.No. 10580, O.S.No 2767, C.C.No.1026 measuring an extent of 1 Ground and 838.5 sq.feet. - [Eastern Portion] Item No.III - Gold and Diamond Jewels weighing about 200 sovereigns worth about Rs.45,00,000/-

3. The brief facts of the case are that the deceased

Mrs.G.Subbarathinamma, W/o.Late Mr.Narasimmalu Chetty had three

children viz., late Mrs.Alamelu Ammaal, Mrs.D.S.Kumari (plaintiff herein)

and late Mrs.Andal. The defendants are the children of the late Mrs.Alamelu

Amaal and late Mrs.Andal, who pre-deceased their mother late

Mrs.G.Subbarathinamma.

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4. The first defendant is the son of Late Mrs.Alamelu Ammaal. The

second defendant is the son of Late Mrs.Andal and the third defendant is the

daughter of Late Mrs.Andal.

5. The plaintiff's mother Mrs.G.Subbarathinamma died on 23.01.2010

leaving behind the plaintiff and the first to third defendants as her surviving

legal heirs, who are entitled to succeed her estate which includes the

immovable properties as shown in Item No.I & Item No.II of the Suit

Schedule and also, Gold & Diamond jewels weighing about 200 Sovereigns

worth about Rs.45 Lakhs as described in Item No.III of the Suit Schedule.

During her lifetime, late Mrs.G.Subbarathinamma had executed Exhibits P1

to P3, Settlement Deeds, dated 12.12.2007.

6. As per Exhibit P1, the Settlement Deed, dated 12.12.2007 which

was registered as Document No.1272 of 2007 before the Sub Registrar,

Sowcarpet, Chennai - 600 079, Item No.I of the Suit Schedule Property was

settled in favour of the first defendant subject to the condition that the first

defendant pays a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) to the

plaintiff, within one year from the date of death of the Settlor late

Mrs.G.Subbarathinamma.

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7. As per Exhibit P2, the Settlement Deed, dated 12.12.2007 which

was registered as Document No.1273 of 2007 before the Sub Registrar,

Sowcarpet, Chennai - 600 079, the western portion of the Item No.II of the

Suit Schedule Property was settled in favour of the second defendant

subject to a similar condition that the second defendant pays a sum of

Rs.20,00,000/- (Rupees Twenty Lakhs only) to the plaintiff, within one year

from the date of death of the Settlor late Mrs.G.Subbarathinamma.

8. As per Exhibit P3, the Settlement Deed, dated 12.12.2007 which

was registered as Document No.1274 of 2007 before the Sub Registrar,

Sowcarpet, Chennai - 600 079, the eastern portion of Item No.II of the Suit

Schedule Property was settled in favour of the third defendant subject to a

similar condition that the third defendant pays a sum of Rs.20,00,000/-

(Rupees Twenty Lakhs only) to the plaintiff, within one year from the date

of death of the Settlor late Mrs.G.Subbarathinamma.

9. However, the first to third defendants did not pay the amounts to

the plaintiff as per the condition imposed by the late

Mrs.G.Subbarathinamma in Exhibits P1 to P3, Settlement Deeds dated

12.12.2007.

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10. During the pendency of the suit, the first defendant also died on

28.10.2020 leaving behind his son & daughter as his legal heirs. Hence, the

plaintiff filed Application No.2569 of 2021 for bringing the legal heirs of

the first defendant as the fourth and fifth defendants in the suit which was

allowed by this Court vide order dated 21.09.2021.

11. Therefore, the fourth and fifth defendants were impleaded as the

legal representatives of the deceased first defendant. Though the fourth and

fifth defendants were served with suit summons, there is no representation

on behalf of the fourth and fifth defendants. They have thus not come

forward with any defence.

12. Thus, the second defendant remained ex-parte. Since the third

defendant had not taken any steps to represent her Written Statement, the

third defendant was also set ex-parte by this Court vide order dated

16.11.2021. The third defendant had however filed the Application No.440

of 2022 for setting aside the ex-parte order dated 16.11.2021 which was

allowed by this Court vide Order dated 21.02.2022.

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13. Meanwhile, the plaintiff and the third defendant filed their

respective Draft Issues before this Court. On 28.04.2022, when this case

was taken up for consideration, the following issues were framed :-

“1. Whether the suit filed by the plaintiff for partition and separate possession of 1/3rd undivided share in the suit properties is maintainable?

2. Whether the condition imposed on the defendants to pay Lump sum amount as stipulated in the Settlement Deeds of Late G.Subbarathinamma, the deceased mother of the plaintiff dated 12.12.2007 bearing Document Nos.1272, 1273 and 1274 of 2007 in favour of the defendants 1 to 3 is a condition subsequent?

3. Whether the plaintiff is entitled to claim 1/3rd share in the suit properties, when he has not challenged the Deeds of Settlement executed in favour of the defendants 1 to 3?

4. Whether the defendants 1 to 3 were unable to pay the sums as specified in the Deeds of Settlement to the plaintiffs by reason of the Award passed by the Assistant Registrar of Co-

operative Societies against the plaintiff in the proceedings initiated by Mysore Silk Cloth Merchants Co-operative Bank Limited?

5. Whether the defendants 1 to 3, who had been made Garnishees in the said proceedings, and are governed by a prohibitory order were justified in complying with the said order and consequently not paying the sums due to the plaintiff as specified in the Deeds of Settlement?

6. To what other reliefs, the parties are entitled to?”

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14. After considering the Draft Issues filed by the plaintiff and the 3rd

Defendant, now, the following additional issues are framed by this Court:

“(i) Whether the failure of the Defendants to keep up with the time line prescribed in Ex.P1 to P3 (Settlement Deed dated 12.12.2007) to pay the amount to the plaintiff, within one year from the date of death of the Settlor, Mrs.G.Subbarathinamma on 23.01.2010 would render properties Exs.P1 to P3 available for partition between the parties hereto?

(ii) Whether the payment of Rs.5 Lakhs purportedly by the 3rd Defendant pursuant to the Order dated 16.06.2012 in Case No.ARB-45/Section 101(1)

(a)/02/2011-12Arb and payment of Rs.15 Lakhs by the 3rd Defendant pursuant to the Order dated 21.12.2021 in the present suit can be considered as mitigating circumstances for the 3rd Defendant to take a defence that the property in Ex.P3 is not available for partition?”

15. On behalf of the plaintiff, the plaintiff deposed evidence as P.W1.

Following documents were marked as Exhibits by the plaintiff:

                                   Sl.   Exhibits                             Description
                                   No.
                                    1      Ex.P1      Certified Copy of Settlement Deed dated
                                                      12.12.2007 (Doc.No.1272 of 2007)
                                    2      Ex.P2      Certified Copy of Settlement Deed dated
                                                      12.12.2007 (Doc.No.1273 of 2007)
                                    3      Ex.P3      Certified Copy of Settlement Deed dated
                                                      12.12.2007 (Doc.No.1274 of 2007)




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                                  Sl.   Exhibits                            Description
                                  No.
                                  4      Ex.P4      Copy of Letter dated 05.07.2011 sent by
                                                    the 1st Defendant to the Catholic Syrian
                                                    Bank
                                  5      Ex.P5      Copy of Letter dated 15.07.2011 sent by
                                                    the Catholic Syrian Bank to the 2nd
                                                    Defendant
                                  6      Ex.P6      Photocopy of the Letter dated 27.07.2011
                                                    sent by the 1st Defendant to the learned
                                                    Counsel for the plaintiff
                                  7      Ex.P7      Photocopy of the Letter dated 19.01.2011
                                                    sent by the plaintiff to the 1st Defendant
                                  8      Ex.P8      Photocopy of the Letter dated 19.01.2011
                                                    sent by the plaintiff to the 2nd Defendant
                                  9      Ex.P9      Photocopy of the Letter dated 19.01.2011
                                                    sent by the plaintiff to the 3rd Defendant
                                  10    Ex.P10      Office Copy of the Lawyer Notice dated
                                                    23.04.2011

16. On behalf of the defendants, the third defendant deposed evidence

as D.W.1. Except for the first and third defendants, none of the other

defendants have either filed written statement or were examined as witness

and during trial, on behalf of the Defendants, the third defendant deposed

evidence as D.W.1. Through D.W.1, the following documents were marked

as Exhibits:-

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Sl. Exhibits Description No.

1 Ex.D1 Certified Copy of Settlement Deed dated 12.12.2007 (Doc.No.1271 of 2007) 2 Ex.D2 Certified Copy of Settlement Deed executed in December 2008 3 Ex.D3 Certified Copy of Settlement Deed executed in July 2008 4 Ex.D4 Certified Copy of Order passed by Office of the controller of the Cooperative Societies 5 Ex.P5 Copy of Letter dated 15.07.2011 sent by the Catholic Syrian Bank to the 2nd Defendant 6 Ex.P6 Photocopy of the Letter dated 27.07.2011 sent by the 1st Defendant to the learned Counsel for the plaintiff 7 Ex.P7 Photocopy of the Letter dated 19.01.2011 sent by the plaintiff to the 1st Defendant 8 Ex.P8 Photocopy of the Letter dated 19.01.2011 sent by the plaintiff to the 2nd Defendant 9 Ex.P9 Photocopy of the Letter dated 19.01.2011 sent by the plaintiff to the 3rd Defendant 10 Ex.P10 Office Copy of the Lawyer Notice dated 23.04.2011

17. The plaintiff, her husband viz., Mr.D.T.Srinivasan, and two

others viz., Mrs.D.N.Shashidhar & Ms.D.S.Archana had availed a loan from

a Bank viz., Mysore Silk Cloth Merchant Co-operative Bank Limited.

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However, they failed to repay the same to the said bank. Hence, the said

Bank initiated Arbitration Proceedings in Case No.ARB-45/Section 101(1)

(a)/02/2011-12Arb against the plaintiff, her husband, and the two others

viz., Mrs.D.N.Shashidhar & Ms.D.S.Archana. In the said proceeding,

deceased first defendant to the third defendant were proceeded as

garnishees in view of Exhibits P1 to P3, Settlement Deeds, 12.12.2007.

18. The Assistant Director of Cooperative Societies, Bangalore vide

order dated 16.06.2012, directed the plaintiff, deceased first defendant and

the third defendant along with Mrs.D.N.Shashidhar & Ms.D.S.Archana to

deposit a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) in the Mysore

Silk Cloth Merchant Co-operative Bank Limited towards the loan. Pursuant

to the order dated 21.12.2021, the third defendant had deposited a sum of

Rs.5,00,000/- (Rupees Five Lakhs only) before the Tribunal. This is not

disputed by the plaintiff.

19. This Court vide order dated 21.12.2021 in this suit, directed the

third defendant to deposit the remaining sum of Rs.15,00,000/- (Rupees

Fifteen Lakhs only) to the credit of this suit, as per which, the third

defendant deposited a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to

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the credit of this suit by way of Demand Draft dated 18.12.2021. Thus,

totally, a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) has been

deposited by the third defendant.

20. Thereafter, the third defendant filed Application No.1460 of

2023 for filing additional document being the order dated 16.06.2012 made

in Arbitration Proceedings Dispute No.ARB-45/Section 101(1)

(a)/02/2011-12 initiated before the Assistant Director of Cooperative

Societies, Bangalore by the Chief Executive Officer of the Mysore Silk

Cloth Merchant Co-operative Bank Limited and the English translation

thereof to be marked as an Exhibit on the side of the third defendant in the

suit. This Court vide order dated 20.03.2023, allowed the said Application

subject to proof and relevancy.

21. The learned counsel for the plaintiff submits that since the

defendants, who were directed to pay a lump sum amount as per Exhibits P1

to P3, Settlement Deeds, dated 12.12.2007, failed to comply with the

conditions imposed therein, these Settlement Deeds stand cancelled. It is

submitted that failure to comply with the conditions will result in

cancellation of the gift. It is further submitted that the plaintiff has every

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right to claim a 1/3rd undivided share in the entire suit properties, both

movable and immovable, as shown in the Schedule of Properties annexed to

the plaint.

22. It is further submitted that on 13.06.2011, a meeting was

convened to take inventory of gold jewellery, ornaments, and articles from

the locker in the property described in Suit Schedule Item No.I, as those

ornaments and articles belonged to late Mrs.G. Subbarathinamma and also

to the plaintiff. However, upon opening the locker, no gold articles or

ornaments were found. When the plaintiff questioned the first and third

defendants, who were present at the time of opening the locker and had

control and custody over it, they did not provide any satisfactory

explanation. The second defendant also refused to participate in the

inventory proceedings held on 13.06.2011.

23. It is further submitted that the first defendant, in a letter dated

21.07.2011 addressed to the plaintiff's counsel, alleged that the second

defendant had tampered with the gold jewels kept in the locker of the

premises. The first defendant is liable to clarify that he was not aware of the

removal of the jewels from the locker by the second defendant. It is further

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submitted that the first and second defendants colluded with each other in

tampering with the jewels. Therefore, the plaintiff has filed the present

partition suit.

24. The learned counsel for the third defendant submitted that only a

charge has been created against the third defendant as also the first

defendant and the second defendant under Exhibits P1 to P3, Settlement

Deeds, dated 12.12.2007, as they failed to pay the amounts as is

contemplated in Exhibits P1 to P3, Settlement Deeds, dated 12.12.2007

registered as Document Nos.1272 of 2007, 1273 of 2007, 1274 of 2007 ,

before the Sub Registrar, Sowcarpet, Chennai - 600 079.

24.1. It is further submitted by the learned counsel for the third

defendant that the Settlor, late Mrs.G.Subbarathinamma (mother of the

plaintiff and maternal grandmother of the defendants) had settled a property

in favour of the plaintiff vide, Exhibit D1, Settlement Deed, dated

12.12.2007. That apart, it is submitted that late Mrs.G.Subbarathinamma

had settled another property in favour of the plaintiff's daughter viz.,

Smt.D.S.Meera vide Exhibit D2, Settlement Deed, dated 14.12.2008.

Thereafter, the late Mrs.G.Subbarathinamma and plaintiff had settled the

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property covered in Exhibit D1 in favour of plaintiff's daughter by way of

Exhibit D3, Settlement Deed, dated 01.07.2008.

24.2. Therefore, it is submitted that the plaintiff has suppressed the

execution of Exhibits D1 to D3. It is also submitted that the failure to pay

the amounts in time would not result in either revocation or cancellation of

Exhibit P3 (Settlement Deeds dated 12.12.2007 which was registered as

Document Nos. 1272 of 2007, 1273 of 2007 & 1274 of 2007 on the file of

the Sub Registrar, Sowcarpet, Chennai – 600 079).

24.3. The learned counsel for the third defendant also submitted that

as per Section 126 of the Transfer of Property Act, 1882, a gift can be

suspended or revoked under the circumstances only if the donor and donee

agree to a specific event that is beyond the control of the donor or if the gift

can be revoked in part or wholly at the will of the donor, in which case, it is

void. Additionally, a gift can be revoked, if it could be rescinded, if it were

a contract.

24.4. Alternatively, it is submitted that the plaintiff ought to have

filed the suit for declaration to declare that the Settlement Deeds dated

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12.12.2007 (Ex.P1 to Ex.P3) are unenforceable. It is submitted that since

the third defendant has paid Rs.20,00,000/- (Rupees Twenty Lakhs only) as

per Exhibit P3, Settlement Deed, dated 12.12.2007 registered as Document

No.1274 of 2007 before the Sub Registrar, Sowcarpet, Chennai - 600 079, it

is not open to the plaintiff to claim for partition of the suit schedule

property.

24.5. In support of his submissions, the learned counsel for the third

defendant has placed reliance on the following decisions:

(i) N.Thajudeen Vs. Tamil Nadu Khadi & Village Industries Board (2024) SCC Online SC 3037

(ii) Sehdev Singh Verma Vs. J.P.S.Verma & Anr. (2015) SCC Online Del 11654

(iii) Rayar Naidu & Ors. Vs. Kartheepan & Ors. (2012) 1 MWN (Civil) 617

25. In response to the above submissions made by the learned counsel for the third

defendant, the learned counsel for the plaintiff submits that the properties settled under

Exhibits D1 to D3 have no relevance, as they are not the subject matter of the present

case.

26. I have considered the arguments advanced by the learned counsel

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for the plaintiff and the defendants. I have perused the plaint filed in support

of the present suit and the written statements of the first and third

defendants.

27. I have also perused Exhibits P1 to P10 and Exhibits D1 to D10

executed by late Mrs.G.Subbarathinamma. I have also perused the

deposition of the respective witnesses as well.

28. The defendants are the beneficiaries under Exhibits P1 and P3

executed by late Mrs.G.Subbarathinamma. They are children of the late

Mrs.Alamelu Ammal and late Mrs.Andal respectively. Late Mrs.Alamelu

Ammal and late Mrs.Andal are two of three daughters of late

Mrs.G.Subbarathinamma.

29. The plaintiff is the other daughter, who survived late

Mrs.G.Subbarathinamma. Both late Mrs.Alamelu Ammal and late

Mrs.Andal pre-deceased the settlor, i.e., their mother late Mrs.

G.Subbarathinamma.

30. Late Mrs.G.Subbarathinamma had also executed Exhibits D1 to

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D3, Settlement Deeds, in favour of the plaintiff and her daughter. However,

execution of Exhibits D1 to D3 in favour of the plaintiff and her daughter

are of no relevance to the facts of the present case. They are independent

settlements deeds executed by Late Mrs.G.Subbarathinamma in their

favour.

31. Principal dispute in this suit pertains to rights over the immovable

properties settled in favour of the defendants vide Exhibits P1, P2 and P3,

Settlement Deeds, dated 12.12.2007 by late Mrs.G.Subbarathinamma in

their favour. Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007

executed by late Mrs.G.Subbarathinamma are Conditional Settlement

Deeds.

32. For the sake of clarity, relevant clause in Settlement Deed

(Exhibits P1) viz., Doc.No.1272 of 2007 dated 12.12.2007 is extracted

hereunder:-

“That in consideration of the premises and in further consideration of natural love and affection the Settlor has towards the Settlee, the Settlor doth hereby Settle as and by way of absolute gift unto the Settlee the property namely HOUSE, GROUND AND PREMISES BEARING NO.9, KASI CHETTY LANE, SOWCARPET, CHENNAI 600 079 MOREFULLY

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DESCRIBED IN THE SCHEDULE HEREUNDER free of all encumbrances together with the right to have the electricity connection with the MES and also deposits with MES in Account Nos. as per the sheet attached transferred in the name of the Settlee to have the Schedule mentioned property registered as owner in the assessment registers maintained by the Corporation of Chennai and CMWSS Board and to have the patta transferred in the name of the Settlee, to be possessed and enjoyed by him absolutely after the life time of the Settlor subject to the condition that the Settlor reserves her right to enjoy the said property for her life without any power of any kind of alienation and subject to further condition that the Settlee pays a sum of Rs.10,00,000/- (Rupees Ten lakhs only) to Smt.D.S.Kumari, wife of D.T.Srinivasa (settlor's third daughter) within one year since the demise of the Settlor to secure equal distribution of the Settlor's three immovable properties amongst her above said three branches of her heirs.

The Settlor doth covenant with the Settlee that she shall not revoke this Deed of Settlement under any circumstances and this Settlement is irrevocable.

The Settlor doth also covenant with the Settlee that the amount payable to the above said Smt.D.S.Kumari shall be a first charge on the Schedule mentioned property and that the said amount shall be paid to Mrs.D.S.Kumari within one year after her life time.”

33. Similar Clauses are there in Exhibits P2 and P3, Settlement

Deeds, dated 12.12.2007 executed in favour of the second and third

defendants. Clauses in Exhibits P1, P2 & P3, Settlement Deeds, dated

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12.12.2007 thus make it clear that the settlement deeds are irrevocable.

34. Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 also

make it clear that the plaintiff is entitled to the amounts specified therein

and incase the defendants fail to pay the amounts specified therein to the

plaintiff, the plaintiff will have a first charge over the suit schedule

properties under the respective Exhibits.

35. The Settlor late Mrs.G.Subbarathinamma had merely retained a

life interest in the demised premises/properties settled in favour of the

defendants in Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007.

36. Where a gift is complete and the donor has done all in his power

to give effect to it, it is irrevocable except in the circumstances mentioned

in Section 126 of the Transfer of Property Act, 1882.

37. Section 126 of the Transfer of Property Act, 1882 also makes it

clear that a gift deed which prescribes that the gift is revocable wholly or in

part, at the mere will of the donor, is void to that extent.

38. Thus, if Exhibits P1, P2 and P3, Settlement Deeds, dated

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12.12.2007 contained clauses reserving power to the revoke the settlement,

the gift/settlement itself would have been void in term of Section 126 of the

Transfer of Property Act, 1882.

39. Under, Section 126 of the Transfer of Property Act, 1882, a gift

can be revoked and/ or suspended only under the following circumstances:-

a) Where the donor and done agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked.

b) A gift may be rescinded in any of the cases if it were a contract except for want or failure of consideration.

c) A gift can be also revoked on the ground of coercion,fraud, misrepresentation or undue influence, if it were a contract (except want or failure of consideration).

40. If under a gift deed, the donee/settlee has to maintain the

donor/settlor and if the done/settlee fails to maintain the donor/settlor, the

donor/settlor as the case may be had no right to not cancel the gift,

exception being, under Section 23 of the Maintenance and Welfare of

Parents and Senior Citizen Act, 2007. However, this is not the case.

41. Thus, Exhibits P1, P2 and P3, Settlement Deeds dated 12.12.2007

could not have been revoked even by the settlor late

Mrs.G.Subbarathinamma during her life time except under the

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circumstances specified under Section 126 of the Transfer of Property Act,

1882. For the sake of clarity, Section 126 of the Transfer of Property Act,

1882 is reproduced below:-

Section 126:-When gift may be suspended or revoked.— The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

42. As per Section 126 of the Transfer of Property Act, 1882, the

rights of transferees for consideration without notice is also untouched by

the gift. This is in tune with Section 53 of The Transfer of Property Act,

1882. Section 53 of the Transfer of Property Act, 1882 reads as under:-

Section 53 -Fraudulent transfer.—

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(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.

Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree -holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

43. The Donor/Settlor, late Mrs.G.Subbarathinamma had put an

obligation on the beneficiaries namely the first, second and third defendants

under Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007. These

defendants are to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs only),

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Rs.20,00,000/- (Rupees Twenty Lakhs only) and Rs.20,00,000/- (Rupees

Twenty Lakhs only) each to the plaintiff within one year from the date of

her death i.e., within one year from the date of death of the

44. Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 have

merely cast obligations on the defendants to pay the amounts specified in

Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 to the plaintiff.

45. The terms of Exhibits P1, P2 and P3, Settlement Deeds, dated

12.12.2007 are valid and therefore, the rights conferred on the plaintiff and

the defendants cannot be diluted.

46. Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007

merely declare that the plaintiff will have “first charge” over the demised

properties in Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 in

case the respective defendants fail to pay the aforesaid amounts to the

plaintiff within one year from the death of the Settlor namely late

Mrs.G.Subbarathinamma.

47. The Donor/Settlor, late Mrs.G.Subbarathinamma died on

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23.01.2010. Thus, the these defendants who are the beneficiaries under

Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 were required

to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs only), Rs.20,00,000/-

(Rupees Twenty Lakhs only) and Rs.20,00,000/- (Rupees Twenty Lakhs

only) each to the plaintiff latest by 22.10.2011.

48. Since the Donor/Settlor, late Mrs.G.Subbarathinamma died on

23.01.2010, the first, second and third defendants should have made

payments to the plaintiff on or before 22.01.2011.

49. However, they failed to pay the amounts to the plaintiff. Only the

third defendant has paid the amounts belatedly pursuant to order of the

Cooperative Tribunal and this Court as mentioned in above.

50. Thus, the plaintiff's right over the suit scheduled property

crystallized on 22.10.2011 within one year from the death of her mother,

Mrs.G.Subbarathinama, the maternal grandmother of the respective

defendants on 23.01.2010.

51. The plaintiff thus only has a charge over the property settled in

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Exhibits P1, P2 and P3, Settlement Deeds, dated 12.12.2007 in favour of the

defendants.

52. Since the plaintiff has a “first charge” over the property, it is

deemed that there is “simple mortgage” in terms of Section 58(b) of the

Transfer of Property Act, 1882 in terms of Section 100 of the said Act.

Section 100 of Transfer of Property Act, 1882 reads as under:

Section 100: Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, [and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.

53. Section 58(b) of the Transfer of Property Act, 1882 defines the

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expression “simple mortgage”as under:

(b) Simple Mortgage:-Where,without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees,expressly or impliedly ,that, in the event of his failing to pay according to this contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called simple mortgage and the mortgagee a simple mortgagee.

54. Therefore, all the provisions relating to a simple mortgage would

apply to the property settled in favour of defendants under Exhibits P1, P2,

and P3, Settlement Deeds, dated 12.12.2007.

55. Since the Exhibits P1, P2, and P3, Settlement Deeds, dated

12.12.2007 are irrevocable, they are not available in common pool for

partition merely defendants failed to discharge their liability under Exhibits

P1, P2, and P3, Settlement Deeds, dated 12.12.2007 within one year of the

death of their maternal grandmother, Mrs.G.Subbarathinama on 23.01.2010.

56. Since Exhibits P1, P2, and P3, Settlement Deeds, dated

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12.12.2007 are irrevocable, the properties settled therein are not available

for either inheritance or partition between the plaintiffs and defendants.

Therefore, Issue Nos.1, 3 and Supplementary Issue No.(i) are answered

against the plaintiff. Consequently, Issue Nos.2 and 4 are also answered

against the plaintiff.

57. Since the plaintiff has a “first charge” over the property settled in

Exhibits P1, P2, and P3, Settlement Deeds, dated 12.12.2007, the plaintiff

has right to recover amounts from the respective defendants as if a simple

mortgage was created in favour of the plaintiff under Exhibits P1, P2, and

P3, Settlement Deeds, dated 12.12.2007 in terms of Section 58(b) of the

Transfer of Property Act, 1882.

58. The plaintiff is entitled to recover the amount specified in

Exhibits P1, P2, and P3, Settlement Deeds, dated 12.12.2007 as if the

defendants had created a simple mortgage as the defendants are bound by

the charge over the property in favour of the plaintiff under Exhibits P1, P2,

and P3, Settlement Deeds, dated 12.12.2007.

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59. It is therefore open for the plaintiff to have the suit scheduled

immovable properties sold, and the proceeds of the sale to be applied,

towards the payment of the money under Exhibits P1, P2, and P3,

Settlement Deeds, dated 12.12.2007. At best, the first, second and third

defendants only have a right to redeem the property settled under Exhibits

P1, P2, and P3, Settlement Deeds, dated 12.12.2007 under Section 60 of the

Transfer of Property Act, 1882.

60. Thus, while the plaintiff has a right to have the suit schedule

immovable property sold and to apply the proceeds of sale of the property

towards the charge created in favour of the plaintiff under Exhibits P1, P2,

and P3, Settlement Deeds, dated 12.12.2007, the plaintiff is entitled for a

decree for the amounts specified Exhibits P1, P2, and P3, Settlement Deeds,

dated 12.12.2007.

61. The first, second and third defendants also have a corresponding

right to redeem the mortgage under Section 60 of the Transfer of Property

Act,1882.

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62. In the present case, neither the plaintiff has not applied for sale of

the suit schedule immovable property nor have the defendants filed a suit

for redemption of mortgage under Section 60 of the Transfer of Property

Act, 1882. Instead, the plaintiff has applied for partition of the suit schedule

immovable property, which is impermissible under law.

63. As mentioned above, the plaintiff is merely entitled to recover the

money from the defendants, the prayer of the plaintiff for partition of

properties in Exhibits P1, P2, and P3, Settlement Deeds, dated 12.12.2007

are liable to be rejected.

64. It is also noticed that the plaintiff’s husband, namely

Sri.D.T.Srinivas, had availed a loan for a sum of Rs.10,00,000/- (Rupees

Ten Lakhs only) from The Mysore Silk Cloth Merchants Cooperative Bank

Limited. The plaintiff, along with Sri.D.N.Shashidhar and his wife, namely

Sri.D.S.Archana stood as guarantors for the said loan.

65. Since the loan was not repaid by the plaintiff’s husband, an award

came to be passed by the Joint Director of Loan Recovery in Bangalore at

the instance of The Mysore Silk Cloth Merchants Cooperative Bank

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Limited, where by the plaintiff’s husband, plaintiff and Sri.D.N.Shashidhar

and his wife, namely Sri.D.S.Archana were held liable.

66. In the recovery proceedings pursuant to the aforesaid Award, the

plaintiff, namely Smt.D.S.Kumari, was arrayed as the second respondent

before the Cooperative Tribunal. There, the plaintiff referred to the charge

in Exhibits P1, P2, and P3, Settlement Deeds, dated 12.12.2007, in favour

of plaintiff on account of defaults committed by the first, second and third

defendants under Exhibits P1, P2, and P3, Settlement Deeds, dated

12.12.2007.

67. Under these circumstances, the first and third defendants alone

were impleaded as garnishees in the recovery proceeding as the fifth and

sixth respondents in the recovery proceedings.

68. The amount due to the plaintiff from the first and third

defendants, under Exhibits P1, P2, and P3, Settlement Deeds, dated

12.12.2007 alone were thus attached.

69. The plaintiff and the first and third defendants herein were

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directed to deposit a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only)

with the said bank. A sum of Rs.5,00,000/- (Rupees Five Lakhs only) was

purportedly deposited by the third defendant with the Tribunal.

70. Pursuant to the orders of this Court dated 21.12.2021, another

sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) was also deposited by

the third defendant to the credit of this suit by drawing a Demand Draft in

favour of the Registrar General, High Court, Madras. Thus, Issue No.5 is

answered against the defendants. These defendants are governed by a

prohibitory order.

71. Thus, the third defendant has discharged the liability cast on the

third defendant although belatedly under Exhibit P3, Settlement Deed, dated

12.12.2007. For such belated payment, the third defendant is at best liable

to pay interest at such rates as may be ordered under Section 34 of Code of

Civil Procedure.

72. The aforesaid amount of Rs.15,00,000/- (Rupees Fifteen Lakhs

only) deposited by the third defendant to the credit of this suit by drawing a

Demand Draft in favour of the Registrar General, High Court, Madras is

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payable to Mysore Silk Cloth Merchants Co-operative Bank Limited.

73. The Registry is therefore directed to send suitable communication

to The Mysore Silk Cloth Merchants Co-operative Bank Limited to file

application for payment out of the aforesaid amount of Rs.15,00,000/-

(Rupees Fifteen Lakhs only) if the amount was not paid by the plaintiff and

her husband to The Mysore Silk Cloth Merchants Co-operative Bank

Limited.

74. Since the amount of Rs.20,00,000/- (Rupees Twenty Lakhs only)

was not paid then and there or before the due date on 22.01.2011 by the

third defendant, the plaintiff is entitled to interest for the delayed payment at

the rate of 12.5% per annum for a period delay.

75. Therefore, the charge over the property in Exhibit P3, Settlement

Deed, dated 12.12.2007 executed in favour of the third defendant stands

partly discharged. The charge shall however continue to remain in favour of

the plaintiff until the third defendant discharges the interest liability.

76. Although, in the Written Statement of the first defendant, he had

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stated that he had paid Rs.50,000/- (Rupees Fifty Thousand only) in cash to

the plaintiff, there are no documents to establish the same.

77. Therefore, there shall be a decree for a sum of Rs.10,00,000/-

(Rupees Ten Lakhs only) against the first defendant in terms of Settlement

Deed in Exhibit P1 dated 12.12.2007 together with interest at 12.5% per

annum from 22.01.2011, being the due date i.e after a lapse one year from

the death of the Settlor late Mrs.G.Subbarathinamma on 23.01.2010 till the

date payment of aforesaid amount of Rs.10,00,000/- (Rupees Ten Lakhs

only) to the plaintiff.

78. Therefore, the fourth and fifth defendants, who represent the

interest of the first defendant, shall pay the amounts of Rs.10,00,000/-

(Rupees Ten Lakhs only) to the plaintiff in terms of Exhibit P1, Settlement

Deed, dated 12.12.2007 together with interest at 12.5% per annum from

22.01.2011 till the date of payment specified in Exhibit P1, Settlement

Deed, dated 12.12.2007, failing which the plaintiff has a right to bring the

property in Exhibit P1, Settlement Deed, dated 12.12.2007 to sale by filing

suitable application/petition before the Execution Court.

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79. There shall be also a decree against the second defendant for a

sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) in terms of Settlement

Deed in Exhibit P2 dated 12.12.2007 together with interest at 12.5% per

annum from 22.01.2011, being the due date, i.e after the lapse one year from

the death of the Settlor late Mrs.G.Subbarathinamma on 23.01.2010 till the

date payment of aforesaid amount of Rs.20,00,000/- (Rupees Twenty Lakhs

only) to the plaintiff.

80. The plaintiff is therefore entitled to a decree against the second

defendant for a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only)

specified in Ex P2, Settlement Deed, dated 12.12.2007 together with

interest at 12.5% per annum from 22.01.2011 till the date of payment failing

which the plaintiff has a right to bring the property in Exhibit P2,

Settlement Deed, dated 12.12.2007 to sale by filing suitable

application/petition before the Execution Court.

81. There shall be also a decree against the third defendant for

interest on belated payment of Rs.20,00,000/- (Rupees Twenty Lakhs only)

at rate 12.5% per annum from 22.01.2011, being the due date, i.e after the

lapse one year from the death of the Settlor late Mrs.G.Subbarathinamma on

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23.01.2010 till the date payments by the third defendant.

82. Therefore, the plaintiff is entitled to a decree against the second

defendant for interest on belated payment of Rs.20,00,000/- (Rupees

Twenty Lakhs only) at rate 12.5% per annum from 22.01.2011 till the date

of payment failing which the plaintiff has a right to bring the property in

Exhibit P3, Settlement Deed, dated 12.12.2007 to sale by filing suitable

application/petition before the Execution Court.

83. Therefore, it is for the plaintiff to file a suitable application for the

execution of this decree by giving a proper calculation after, setting-off the

principal amount of Rs.20,00,000/- (Rupees Twently Lakhs only).

84. During the course of hearing, the learned counsel for the third

defendant submitted that the jewels mentioned in Schedule Item No. III to

the plaint are in the custody of the third defendant and will be available for

partition among the plaintiff and the defendants in the following ratio:

Plaintiff [one of the daughters of late 1/3rd Mrs.G.Subbarathinamma]

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First defendant [son of late Alamelu Ammal, who is 1/3rd one of the daughters of late Mrs.G.Subbarathinamma] Second defendant [son of late Andal Ammal, who is one of the daughters of late Mrs.G.Subbarathinamma] Third defendant [daughter of late Andal Ammal, who 1/3 rd

is one of the daughters of late Mrs.G.Subbarathinamma]

85. Therefore, an Advocate Commissioner is appointed to take

possession of the jewels described in Schedule Item No. III to the plaint and

the same shall be kept in safe custody and handed over to the plaintiff and

the defendants.

86. However, there shall be a continuing charge over the said jewels

in favour of the Mysore Silk Cloth Merchants Co-operative Bank Limited

until the amounts due are discharged by the plaintiff and the first, second,

and third defendants. The plaintiff shall have a second charge over the 1/3 rd

share of the jewels of the defendants, after the satisfaction of the amounts

due to the Mysore Silk Cloth Merchants Co-operative Bank Limited.

87. Since the plaintiff has filed this partition suit by paying a nominal

court fee under Section 37 of the Tamil Nadu Court-Fees and Suits