Madras High Court
M. Kuppan vs Kanniappan on 19 September, 2025
S.A.Nos.1145 and 1149 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 29.07.2025
Pronounced on 19.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.Nos.1145 and 1149 of 2019
M. Kuppan ...Appellant in both S.As
Vs.
Kanniappan ...Respondent in both S.A.s
Prayer in S.A. No.1145 of 2019 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 29.03.2019 passed in
A.S. No.66 of 2010, on the file of the Additional District and Sessions
Court, Kancheepuram District at Chengalpattu, reversing the Judgment
and decree dated 03.08.2010 passed in O.S. No.174 of 2006, on the file
of the Additional Subordinate Court, Chengalpattu.
Prayer in S.A. No.1149 of 2019 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 29.03.2019 passed in
A.S. No.67 of 2010, on the file of the Additional District and Sessions
Court, Kancheepuram District at Chengalpattu, reversing the Judgment
Page 1 of 24
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and decree dated 03.08.2010 passed in O.S. No.104 of 2005, on the file
of the Additional Subordinate Court, Chengalpattu.
For Appellant : Ms. Ba. Nalini
for Mr.K.V. Babu in both the appeals
For Respondent : Mr.K.A. Mahendra Kumar in both the appeals
COMMON JUDGMENT
The above second appeals arises out of the common judgment and
decree dated 29.03.2019 passed in A.S. No.66 of 2010 and A.S. No.67 of
2010 on the file of the Additional District & Sessions Judge,
Kancheepuram, Chengalpattu, reversing the common judgment and
decree dated 03.08.2010 in O.S. No.104/2005 & O.S. No.174/2006 on
the file of the Additional Subordinate Judge, Chengalpattu.
2. One Kanniappan (respondent herein) filed a suit in
O.S.No.174/2006 for declaration of title and for permanent injunction
against Saraswathi Ammal and Kuppan (appellant herein) and the said
Saraswathi Ammal filed a suit in O.S. No.104/2005 against Kanniappan
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seeking for cancellation of the settlement deed dated 30.12.2004 in
favour of the defendant therein and for permanent injunction restraining
him from interfering with her peaceful possession and enjoyment of the
suit property.
3. For the sake of convenience, the parties are referred to as per
their ranking in O.S. No.174/2006.
4. The case of the plaintiff (respondent herein) in O.S.174/2006 is
as follows:
4.1. The plaintiff is the absolute and exclusive owner of the suit
property. He got the same by way of a Registered settlement deed dt.
30.12.2004 executed by his mother Saraswathi Ammal. The Settlement is
true, valid and acted upon. Patta No.219 for the suit property stands in
the name of Saraswathi Ammal for the suit properties. The 2nd Defendant
is alleged to have purchased the suit property from the 1 st defendant and
made an attempt to interfere with the Plaintiff's peaceful possession and
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enjoyment of the suit property. Hence the suit is for declaration of title
and for permanent injunction.
4.2. The 1st defendant resisted the claim of the plaintiff by stating
that there is no prayer against her, but she has been added as a party
without any reason. She further stated that she was the absolute and
exclusive owner of the suit properties. She purchased 0.67 cents of land
out of 5 acres 40 cents in S.No.54/1 under two Registered sale deeds
dated 5.3.1973 and 22.3.1973. After purchase, patta has been transferred
in her name and S.No.54/1 has been Sub Divided into 54/1B. 0.22.0
hect., and S.No.54/1D. 0.33.0. hect., After purchase she dug up a well
and also put up 3 H.P. Motor pump set in items 2 and 3 of the schedule
and obtained Service connection in her name. It is further stated that she
has been in possession and enjoyment of the said items from the date of
purchase. She further stated that she is 70 years old and an illiterate
women having less vision and is suffering from paralytic attack and
staying with her daughter Sinthamany at Guduvancheri. During the 3rd
week of December 2004, the plaintiff took her to his house in Chennai
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for giving treatment for her ailments. During her stay at Chennai the
plaintiff fraudulently created a document styled as Settlement deed
without her knowledge. She does not know the contents of the
document, and the same was not explained to her. According to her it is
a sham, nominal and fraudulent document. The plaintiff refused to sign
the document. But the plaintiff affixed her Left Thumb Impression
without her consent. The alleged settlement deed did not see the light of
the day. It was not accepted and acted upon. On 27.1.2005 with great
difficulty and with the help of her son-in-law she went to Sub Registrar
Office, Thirukkalukkundram and cancelled the settlement deed alleged to
have been obtained on 30.12.2004 in a fraudulent manner. After
cancellation, she executed a registered power deed on 03.02.2005 in
favour of her son-in-law, namely T. Jothi. The said Power agent has sold
the suit property to the 2nd defendant and now the 2nd defendant is in
possession. Thereafter, the respondent/plaintiff issued a notice on
7.2.2005, for which she replied on 11.2.2005. Hence prayed for
dismissal of the suit with costs.
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5. The 2nd defendant resisted the claim of the plaintiff by stating
that the 1st defendant has given a power of attorney to one P.Jothi son of
Purushothaman Naicker under Registered Power of attorney deed dated
3.2.2005. The said power agent has sold the suit property to him and now
he is in possession of the suit property. To avoid technical flaw, the 1 st
defendant has also filed a suit OS No.104/05 on the file of Additional
Sub Court, Chengalpattu for cancellation of the settlement deed obtained
by the plaintiff on 30/12/2004 registered under document No.4228/2004
SRO Thirukkalukundram. From the date of purchase, the 2nd defendant
alone is in possession and enjoyment of the suit property. The alleged
settlement deed in favour of the plaintiff has been duly cancelled by the
1st defendant. In fact the possession is always with the 1st defendant.
Hence the alleged settlement deed is not accepted and acted upon. In any
event, he is a bonafide purchaser for value and his right has to be
protected and prayed for dismissal of the suit.
6. Saraswathi Ammal, the 1st defendant in O.S.174/2006 filed a
suit in O.S. No.104/2005 against Kanniappan, the plaintiff in O.S.
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No.176/2006, seeking for cancellation of the settlement deed dated
30.12.2004 executed in his favour and for permanent injunction
restraining him from interfering with her peaceful possession and
enjoyment of the suit property by taking the same plea as found in the
written statement filed by her in O.S. No.174 of 2006. The defendant in
the said suit had taken the same plea as found in the plaint in O.S.
No.174 of 2006.
7. The trial court, vide its judgment and decree dated 03.08.2010,
decreed the suit in O.S. No.104/2005 and dismissed the suit in O.S.
No.174/2006. Aggrieved by this, Kanniappan filed A.S. Nos.66 and 67
of 2010 before the Additional District & Sessions Judge, Kancheepuram,
Chengalpattu. During the pendency of the appeal suits Saraswathi
Ammal died. The first appellate court, vide its common judgment and
decree dated 29.03.2019, reversed the findings of the trial court and
allowed the appeals. Aggrieved by this Kuppan (2nd defendant in O.S.
No.174/2006) preferred the present second appeals.
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8. The Second Appeal No.1145 of 2019 has been admitted on the
following substantial questions of law:
"a) Whether the judgment and decree of the lower
appellate Court in granting the relief of declaration and
permanent injunction sought for by the 1st respondent
herein are based upon perverse findings and conclusions
and misdirected against the evidence on record and also
against the principle of law pertaining to the facts of the
case?
b) Whether the lower Appellate Court is correct in
holding that the settlement deed is valid when late
Saraswathi Ammal and the appellant herein have clearly
proved that the settlement deed was never accepted and
acted upon by the settlee as per Section 123 of the Transfer
of Property Act?"
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9. The Second Appeal No.1149 of 2019 has been admitted on the
following substantial questions of law:
"a) Whether the judgment and decree of the lower
Appellate Court in not granting the relief of cancellation of
settlement deed and permanent injunction sought for by the
late Saraswathi Ammal are based upon perverse findings
and conclusions and misdirected against the evidence on
record and also against the principle of law pertaining to
the facts of the case?
b) Whether the lower Appellate Court is correct in
holding that the settlement deed is valid when late
Saraswathi Ammal and the appellant herein have clearly
proved that the settlement deed was never accepted and
acted upon by the settle as per Section 123 of the Transfer
of Property Act?"
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10. The learned counsel for the appellant submits that the
settlement deed executed on 30.12.2004 by the late Saraswathi Ammal in
favour of the respondent was an out come of mis-representation and
fraud played by the respondent. The said settlement deed was never
accepted and acted upon by the settlee as per Section 123 of the Transfer
of Property Act, 1882. The cancellation deed dated 27.01.2005 was
never challenged before the trial court. While so, the first appellate court
ought not to have reversed the judgment of the trial court by relying upon
an untenable contention that the reason stated in the cancellation deed is
not admissible. Her further contention is that none of the attesting
witnesses to the settlement deed were examined before the trial court by
the respondent as required under Section 68 of the Indian Evidence Act.
The trial court has rightly held that when the execution of the settlement
deed was subsequently denied by late Saraswathi Ammal, it is mandatory
for the respondent to examine atleast one attesting witness to prove the
validity and genuineness of the settlement deed, which the respondent
has miserably failed to do so. Her further contention is that the
respondent neglected his parents and therefore there is no necessity for
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Saraswathi Ammal to execute the settlement deed in favour of the
respondent. In fact, the respondent who filed the suit in O.S.No.24/2005
on the file of the Munsif Court, Thirukazhukundram, has intentionally
not whispered about the cancellation deed executed by Saraswathi
Ammal. The possession of the property was only with Saraswathi
Ammal till her demise and all the revenue records stood in the name of
Saraswathi Ammal till her death would establish the fact that the alleged
settlement deed executed in favour of the respondent was not accepted
and acted upon. Since the said Saraswathi Ammal was an aged and
illiterate woman severely affected by paralytic attack, she was mis-
represented and dragged on to the office of Sub Registrar by the
respondent for the purpose of executing settlement deed without
explaining the contents of the documents. The first appellate court ought
to have considered all the above facts and should have held that the
execution of the settlement deed is unenforceable in law. While so, the
first appellate court erroneously shifted the burden on Saraswathi Ammal
to prove the execution of the document whereas the burden of proof is
only on the party who claims title on the strength of the document.
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10.1. The learned counsel for the appellant/2nd defendant in O.S.
No.174/2006 submits that, when the validity of the settlement deed itself
is challenged on the ground of fraud and coercion and in the absence of
establishment of the validity of settlement deed, the question of validity
of cancellation will not arise for consideration. Only after proving the
validity of the settlement deed and if it is found to be valid, only then the
question of validity of cancellation have to be considered. She would
further contend that a person claiming title under the settlement deed,
must prove the attestation as per Section 68 of the Indian Evidence Act.
In the present case, the settlement deed has not been proved as required
under the law. She would further submit that in the event of neglecting
the senior citizen, the deed of settlement or gift is liable to be annulled.
To support her contention, she relied on the following judgments:
i. P. Sivabushanam and ors vs. E. Sivamani and ors reported in
MANU/TN/2337/2012
ii. C. Velu and two ors vs. P. Subramanian reported in 2009 (6)
CTC 78.
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iii. S. Mala vs. District Arbitrtor & District Collector, Nagapattinam
and ors reported in MANU/TN/1339/2025
Hence, he prayed to set aside the judgment and decree passed by the first
appellate court.
11. On the other hand, the learned counsel for the respondent
would submit that the mother of the respondent Saraswathi Ammal
purchased the property under two registered sale deeds dated 05.03.1973
and 22.03.1973 marked as Ex.A1 and Ex.A2. She then executed a
settlement deed under Ex.A3 dated 30.12.2004 in favour of her son, the
respondent herein, the property measuring 1 acre 43 cents in S.Nos
54/1B and 54/1D respectively. Thereafter on 27.01.2005 she executed a
deed of cancellation within one month from the date of execution of the
above settlement deed on 30.12.2004 unilaterally without the consent of
the respondent herein. No recital pertaining to illiteracy, poor eye sight,
fraud and coercion thereon was found in the cancellation deed, but, it is
only mentioned that the same was cancelled for want of money. She then
executed a Power of Attorney on 03.02.2005 in favour of his son-in-law,
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namely P. Jothi, and registered the same. The said General Power of
Attorney was not marked as exhibit in the above suits.
11.1. It is further contended that, on 07.02.2005, under Ex.B6
Saraswathi Ammal issued a legal notice subsequent to execution of
general power of attorney informing that the settlement deed has been
cancelled. Even in the said notice, nothing is whispered about fraud,
coercion, forceable obtainment of thumb impression by the respondent,
but execution of settlement deed in favour of the respondent was
admitted therein. The respondent replied under Ex.B7 reply notice
stating that the settlement deed is acted upon and he is in possession of
the property. Thereafter, the power of attorney of Saraswathi Ammal
executed a registered sale deed on 18.02.2005 in favour of Kuppan, the
appellant herein who is the adjacent land owner, by suppressing the facts
of issuance of notice and reply notice by the respondent herein, which is
prior to the date of sale deed. The alleged sale transaction has been done
with ulterior motive. On 25.04.2005, the said Saraswathi Ammal issued
another legal notice under Ex.A5 to the respondent subsequent to the
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filing of the suit in O.S. No.24/2005 on the file of the District Munsif,
Thirukazhukundram by the respondent herein. Only in the said notice all
the fraudulent allegations were made against the respondent which is
total contra to her earlier notice and cancellation deed. The above
allegations were not substantiated either by oral or documentary evidence
before the trial court. The respondent has filed a suit in O.S. No.24/2005
which was transferred and renumbered as O.S. No.174 /2006 on the file
of the Sub Court, Chengalpattu against Saraswathi Ammal and the
present appellant/2nd defendant for declaration of respondent's title and
for permanent injunction. Even in the settlement deed, Saraswathi
Ammal has stated that possession has been handed over to the respondent
on the date of execution of the settlement deed itself. She had also
handed over all the original title deed to the respondent/plaintiff.
However, within one month, at the instigation of her daughter, she had
executed the cancellation deed which exposes ulterior motive.
11.2. Subsequent to the cancellation of settlement deed
unilaterally, Sarraswathi Ammal filed a suit in O.S. No.104/2005 before
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the Sub Court, Chengalpattu, for the relief of cancellation of settlement
deed executed by her in favour of the respondent and for permanent
injunction not to interfere in the possession . However, prior to filing of
the suit, she had executed cancellation deed and her power of attorney
has executed a sale deed in favour of the appellant herein, which implies
that the said Saraswathi Ammal ceased to be owner of the property and
that she has no locus standi to file the suit as the owner of the property.
Suppressing the material fact about the issuance of earlier notice dated
07.02.2005 and the reply notice dated 11.02.2005 by the respondent
herein nor about the execution of power of attorney and the sale deed in
favour of the appellant, the above suit was filed and moreover, the said
Saraswathi Ammal failed to include the aforesaid documents in the above
suit. The appellant herein is not a party to the above suit in O.S.
No.104/2005. The suits in O.S. Nos.104/2005 and 174/2006 were tried
jointly. In the cross examination the said Saraswathi Ammal admitted
that she is not aware of execution of General Power of Attorney in favour
of his son-in-law nor about the subsequent sale deed in favour of the
appellant herein and she had also admitted that she has neither given any
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police complaint about the fraud and theft nor about the theft of
documents against the respondent. She further deposed that she was not
aware of the contents of the cancellation deed nor she had knowledge
about who had instructed for the drafting of cancellation deed and that
she has not instructed anybody to sell the property. Further she had also
deposed that she was not aware of the advocate who had drafted the
cancellation deed. After full fledged trial, the suit in O.S. No.174/2006
filed by the respondent herein was dismissed and the suit in O.S.
No.104/2005 was decreed. In the circumstances, the respondent
Kanniappan preferred the appeal suits in A.S. No.66/2010 and 67/2010
on the file of the Additional District and Sessions Judge, Kancheepuram,
Chengalpattu. During the pendency of the first appeal, the said
Saraswathi Ammal died on 06.02.2011. Since she had already
transferred the property she had no right or claim over the property.
Hence, her legal heirs were not impleaded. However, the alleged
purchaser Kuppan, the appellant herein, was impleaded as party to the
proceedings. The first appellate court reversed the judgment and decree
dated 03.08.2010 in O.S. No.104/2005 & O.S. No.174/2006 on the file of
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the Additional Subordinate Judge, Chengalpattu, against which the
present second appeals have been preferred by Kuppan, the 2 nd
defendant in O.S. No.174/2006, before this Court.
11.3. It is further submitted that the appellant herein has no locus
standi to claim any right in the suit filed by Saraswathi Ammal, who was
not having any right or interest over the property at the time of filing of
the suit. It is further contended that till date no declaration suit has been
filed by the appellant herein. Therefore, the appellant has no locus
standi to prosecute the appeals.
11.4. Thus the learned counsel for the respondent submits that, the
unilateral cancellation of settlement deed is impermissible in law and that
after transfer of title in favour of the plaintiff in O.S. No.174/2006, the
settlor, the mother of the plaintiff, who is the 1st defendant in the above
suit and plaintiff in O.S.No.104/2005 has no right to cancel the
settlement deed executed in the absence of any specific covenant in the
deed of settlement. He would further contend that in the case of
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allegation of fraud and mis-representation, the burden lies upon the 1st
defendant, the mother of the plaintiff to prove which she has failed to do
so. To support his contention he relied on the following decisions.
i. M/s. Latif Estate Line India Ltd. vs. Mrs. HadeejaAmmal
reported in AIR 2011 MADRAS 66.
ii. Order of this court dated 10.10.2018 in W.P. No.27342 of 2016
(N. Vijaya Baskar vs. A. Gokul Anand and 5 others).
iii. Daya Ram vs. Smt. Lakshmina & ors reported in 2008 SCC
Online All 170.
Besides that, there is no question of law in the present second appeals
much less substantial questions of law. Hence, prayed for dismissal of
the second appeals.
12. Heard on both sides.
13. It is not in dispute that the respondent herein filed a suit in
O.S.No.174/2006 before the Sub Court, Kancheepuram, Chengalpattu
against his mother Saraswathi Ammal and Kuppan (appellant herein) for
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declaration of his title and for permanent injunction. It is also not in
dispute that the said Saraswathi Ammal filed a suit in O.S. No.104/2005
before the same court against the respondent herein for the relief of
cancellation of settlement deed and for permanent injunction not to
interfere with her possession. The trial court after full fledged trial
dismissed the suit filed by the respondent herein in O.S. No.174/2006
and decreed the suit filed by Saraswathi Ammal in O.S. No.104/2005.
On perusal of records, it is seen that, even prior to the filing of suit by
Saraswathi Ammal in O.S. No.104/2005 she had executed a settlement
deed, cancellation deed and a sale deed in favour of Kuppan, the
appellant herein, through her power agent. While so, the said Saraswathi
Ammal had no locus standi to file the suit when she ceased to be the
owner of the property. Moreover, on a bare perusal of the plaint filed in
O.S. No.104/2005, it is seen that she has suppressed the earlier notice
dated 07.02.2005 sent to the respondent herein and a reply notice dated
11.02.2005 sent by the respondent. Moreover, execution of general
power of attorney or sale deed in favour of Kuppan was also not stated
by her in the said plaint. The first appellate court rightly dismissed the
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suit filed by Saraswathi Ammal. Moreover, the said Saraswathi Ammal,
neither in the cancellation deed nor in her legal notice dated 07.02.2005,
whispered about the alleged coercion and threat by the respondent herein.
In the cancellation deed, it is only mentioned that she has cancelled the
settlement deed executed in favour of her son for want of money. Since
the factum of fraud, coercion and the factum of neglecting the mother
was not established by the defendants in O.S. No.174/2006, the
judgments relied upon by the learned counsel for the appellant is not
applicable in the present case. As rightly pointed out by the learned
counsel for the respondent/plaintiff in O.S. No.174/2006, after
transferring the title in favour the respondent and in the absence of any
specific covenant in the settlement deed , the settlor has no right to
unilaterally cancel the settlement deed in favour of the
respondent/plaintiff. Morevoer, the allegation of fraud and coercion was
also not established by the appellant/2nd defendant.
14. The first appellate court, based on the records and materials
placed before it and by analyzing the oral and documentary evidence, has
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rightly concluded that the unilateral cancellation of the settlement deed
by Saraswathi Ammal, is against the well settled law. Considering the
fact that the respondent alone is in possession of the suit property, the
first appellate court has rightly held that the settlement deed was
accepted and acted upon by the settllee as per section 123 of Transfer of
property Act and accordingly granted the relief of declaration and
permanent injunction as sought for by the respondent herein and rightly
dismissed the suit filed by Saraswathi Ammal for the relief of
cancellation of settlement deed and permanent injunction by holding that
she has no locus standi to file the above suit since she ceased to be the
owner of the property. No infirmity or perversity is found in the said
finding of the first appellate court, which warrants any interference by
this Court. Moreover, the questions of law framed in the second appeals
are more of factual aspects and no question of law arises much less
substantial question of law to be determined in the present second
appeals.
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15. In the result,
i. The Second Appeals are dismissed. No costs.
ii. The Common judgment and decree dated 29.03.2019 passed in
A.S. No.66 of 2010 and A.S. No.67 of 2010 on the file of the
Additional District & Sessions Judge, Kancheepuram,
Chengalpattu, is upheld.
19.09.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Additional District & Sessions Judge,
Kancheepuram, Chengalpattu
2. The Additional Subordinate Judge, Chengalpattu .
3. The Section Officer, VR Section, High Court, Madras.
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S.A.Nos.1145 and 1149 of 2019
K.GOVINDARAJAN THILAKAVADI,J.
bga
Pre-delivery common judgment in
S.A.Nos.1145 and 1149 of 2019
19.09.2025
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