Allowed

Suriyaganthi v. Lakshmi

Madras HC9 Jul 2021SA/50/2009

Case brief

AI extract

What is this about?

In a second appeal regarding disputed property, the High Court allowed the appeal and set aside the appellate decree which had quashed a settlement deed made by a father for his minor son. The court held the property was self-acquired, the cancellation deed was invalid as it lacked statutory grounds for revocation, and the lower appellate court erred in ignoring evidence.

What did the court decide?

Set aside the judgment and decree in A.S.No.19 of 2006; confirmed the decree in O.S.No.292 of 2003 except for recovery of possession.

Suriyaganthi Vs Lakshmi — Partition | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON :: 22.06.2021 PRONOUNCED ON :: 09.07.2021

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.50 of 2009

and

M.P.No.1 of 2009

Suriyaganthi

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Ayyappan(Minor) S/o. Muthu (Minor represented Mother 1^st Appellant)

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...Appellants/Respondents 1 & 2/Plaintiffs

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Vs.

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Lakshmi

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Minor Akash

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Minor Harish (Minors are represented

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by their Natural Guardian

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1^st Respondent) ..Respondents 1 to 3/Appellants/Defendants 3 to 5

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Rajamanickam

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Parandhaman

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...Respondents 4 & 5/Respondents 3 & 4/Defendants 1 & 2

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PRAYER: Second Appeal filed under section 100 of the Civil Procedure Code against the judgment and decree in A.S.No.19 of 2006 on the file of Principal Sub-Court, Villupuram dated 30.09.2008 in reversing the judgment and decree in O.S.No.292 of 2003 on the file of the Principal District Munsif Court at Ulundurpet dated 24.10.2005.

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For Appellants : Mr. V. Raghavachari For Respondents : Mr. V.S.Sivasundaram for R1

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R2 and R3 - Minors

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R4- Notice Dispensed with vide

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Memo Sr.No.15479 R5- Ex-parte

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JUDGEMENT

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The plaintiffs in the suit for declaration and injunction are the appellants before this Court challenging the judgment and decree in A.S.No.19 of 2006 on the file of the Principal Subordinate Court, Villupuram reversing the judgment and decree of the Principal District Munsif, Ulundurpet in O.S.No.292 of 2003.

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The facts in brief necessary for disposing of the above Second Appeal are as follows and for the ease of understanding, parties are being referred to in the same litigative status as before the Trail Court.

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Plaintiffs' Case:

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3.1. It is the case of the plaintiffs that the suit properties belonged to one Muthu, who is the husband of the first plaintiff and father of the second plaintiff. The said Muthu had executed a registered Settlement Deed dated 26.04.1994 settling the property on the second plaintiff who was a minor. The mother accepted the settlement on his behalf and since then they have been in possession and enjoyment of the properties. It is their case that in the month of May 1994, the first plaintiff had dug a well in the suit 5th item of property and installed an oil engine for irrigating their lands. Since the first plaintiff was employed at Bombay and the plaintiffs were residing at Bombay she had entrusted the management to her brother Kaliyan.

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3.2. For over 19 years the plaintiffs have been in uninterrupted possession and enjoyment of the property. All of a sudden the defendants who had no right, title or interest to the same, have been causing obstructions in the peaceful enjoyment of the property. On 24.09.2003, they forcefully entered into the suit property, taking advantage of the absence of the plaintiffs from the suit village. The plaintiffs also came to learn that false documents were created for the suit properties. Therefore, the plaintiffs have come forward with the above suit claiming the following reliefs:

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“m/ tHf;F brhj;Jf;fspy; thjpfspy; chpikia tpsk;g[if bra;J mtw;wpy; vjph;thjpf;Fk; mth;fsJ Ml;fSk; Vb$d;LfSk; mj;JkPwp gpuntrpf;fhky; ,Uf;Fk;bghUl;L mth;fs; nghpy; xU epiyahd cWj;Jf;fl;lis gpwg;gpf;ft[k;/

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M/ ,e;j tHf;fpy; bryt[ thjpfSf;F vjph;thjpfshy; fpilf;ft[k;/

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,/ ,d;Wk; rK:fk; nfhh;l;lhh; mth;fSf;F a[f;jkhf njhd;Wk; ,ju epaha ghpfhu';fs; fpilf;ft[k; jPh;g;g[ bra;a ntz;LkhW thjpfs; gpuhj;jpf;fpwhh;fs;/”

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Written Statement of the First Defendant:

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4.1. The first defendant had filed a written statement inter alia contending that the suit properties are not the self acquired properties of Muthu but are properties which had been purchased from the ancestral nucleus and the joint contributions of not only Muthu but also the first and second defendants who are Muthu's brothers.

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4.2. The first defendant would further contend that their father Arasan had two wives and through the first wife, he had a son Ayyakannu and through the second wife, he had three sons namely Muthu and defendants 1 and 2. The first defendant would contend that Muthu, the first plaintiff, the first defendant and his wife were working with the Indian Railways and eking out their livelihood at Mumbai. He would further contend that both families were living together as a joint family there and the second defendant was living in the suit village and taking care of the agricultural lands. He had been sending the agricultural income to the said Muthu. Likewise the first defendant and his wife were also contributing their salary to him. Out of this income, the suit properties were purchased in the name of the said Muthu since he was the eldest member of the family.

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4.3. Meanwhile, in the year 1994 misunderstanding cropped up in their family resulting in their partitioning the properties. It appears that Muthu, taking advantage of the properties being in his name, settled the same on his minor son at the instigation of his wife, the first plaintiff under a Settlement Deed dated 26.04.1994. This fact was accepted by the said Muthu, who thereafter cancelled the settlement deed under the Cancellation Deed dated 20.05.1994. Following the same, on 23.05.1994 the said Muthu, his father Arasan and defendants 1 and 2 had partitioned the properties by metes and bounds. On 27.04.2001 Exchange Deeds were entered into one between the first and second defendants and the other between the Muthu and the second defendant. Thereafter, the first defendant and his son had sold a portion of the property of the suit property to the minor. Defendants 4 and 5 represented by their mother, the third defendant.

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The third defendant had filed a written statement by and large adopting the averments made by the first defendant and contending that she was a bonafide purchaser for value.

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6.Trial Court:

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6.1. The learned Principal District Munsif, Ulundurpet had framed the following issues:

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Whether the suit property is the individual property of Muthu, husband of the first plaintiff?

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Whether the Settlement Deed dated

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26.04.19 was valid and binding and had come into force ?

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Whether the Cancellation of the Settlement Deed was legally valid ?

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Whether the suit property belongs to the second defendant ?

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Whether the suit property is in the possession of the plaintiffs.

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Whether the Partition Deed dated 23.05.1994 was enforceable ?

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Whether the Exchange Deed entered into on 27.04.2001 between the first and second defendants was enforceable?

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6.2. The first plaintiff had examined herself as P.W.1 besides examining three other witnesses and marking Exs. A.1 to A10. The third defendant had examined herself as D.W.1 and the first defendant as D.W.4, two other witnesses were also examined as D.W.2 and D.W.3. The defendants had marked Ex.B.1 to B.18 in support of their case. Revenue documents were marked as Exs.X1 to X3. The learned Trail Judge passed the following decree:

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"1/jhthr; brhj;J 2 k; thjpf;Fg; ghj;jpakhdJ vd tpsk;g[ifr; bra;ag;gLfpwJ/

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2/jhthr; rh;nt vz;/95-1. 2. 3 ?y; eLtpy; cs;s 38 1-2 brd;l;ila[k; rh;nt vz;/105/1?y; 0/42/0 tp!;jpuzk; 3 Kjy; 5 vjph; thjpfs; trk; RthjPdk; bfhLf;f cj;jutplg;gLfpwJ. jtWk; gl;rj;jpy; ePjpkd;wk; bfhLf;f cj;jutplg;gLfpwJ/ jtWk; gl;rj;jpy; ePjpkd;wk; K:yk; thjp RthjPdk; bgw;Wf;bfhs;s cj;jutpl;g;gLfpwJ/

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3/RthjPdk; xg;g[f;bfhLf;f 3 khjk; mtfhrk; mspf;fg;gLfpwJ/

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4/ ,ju jhthr; brhj;Jf;fis thjp mDgtk; bra;J tUtij vjph; thjpfs ; vt;tpjj;jpYk; ,ila{Wr; bra;af;TlhJ vd jil cWj;Jf;fl;lis tH';fp cj;jutplg;gLfpwJ.

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5/ bryt[j; bjhif ,y;iy/

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7. Appellate Court:

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7.1. This judgment and decree was challenged by defendants 3 to 5 before the Principal Sub- Court, Villupuram in A.S.No.19 of 2006. The Appellate Court reversed the judgment and decree of the Principal District Munsif, Ulundurpet. It is against this judgment and decree that the plaintiffs are before this Court.

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Question of law:

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8.1. The above Second Appeal is admitted on the following Substantial Question of Law:

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(A) In the absence of any contra evidence to disprove that the suit properties are not the self acquired properties of the 2” plaintiff's father, whether the lower appellate Court is right in dismissing the suit on mere surmises?

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(B) Whether the reasoning given by the lower appellate Court is right in rejecting the suit on the ground that the possession was not parted with the plaintiffs is not perverse, when the settlee accepted the settlement Deed?

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(C)Whether the lower appellate Court is right in upholding the allocation of the suit property in favour of the defendants ignoring the principles under Section 8(1) & (2) of the Hindu Minority and Guardianship Act, 1956 when they have no right to deal with the property of the minor?

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(D)When the document under Ex.-A3 was silent as regards the reservation Clause, under such circumstances, the lower appellate Court ought not to have gone into the validity of the document under Ex.B10 on the basis of the provision under Section 126 of the Transfer of Property Act?

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(E) Whether the lower appellate Court is justified in reversing the findings of the trial Court when there is no evidence available on its record to establish the defendants plea of joint family nucleus?

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(F) Whether the lower appellate Court is justified in ignoring the oral testimony of D.W.4 and documentary evidence under Ex.A4 to A8 which shows the legitimate right and legal possession of the plaintiffs?

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(G)When the burden had not been discharged by the defendants that they have acquired the property in the name of the 2^nd plaintiff's father from and out of the family nucleus, whether the lower appellate Court justified in drawing a presumption in respect of fact?

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(H) Whether the lower appellate Court is justified in upholding the possession of the defendants 3 & 4 in placing reliance upon the revenue records in Ex.B3 to B9 which are generated subsequent to the filing of the suit?”

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9. Submissions:

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9.1.Mr. V. Raghavachari, learned counsel for the plaintiffs would make the following submissions:

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a. The Settlement Deed, Ex.A.1 being an irrevocable deed its cancellation by the settlor was totally illegal and void.

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b. That all the subsequent transactions pursuant to the cancellation of the settlement deed is non est and invalid and not binding on the plaintiff.

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c. That the defendants have not established the existence of an ancestral nucleus from out of which the suit properties had been purchased and also the fact that the properties though purchased in the name of Muthu was blended into the joint family properties. d) That the Appellate Court has reversed the judgment of the Trail Court only on surmises and conjectures.

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e) That the third defendant had purchased the property in the names of defendants 4 and 5 knowingly fully well that the property was originally settled on the minor, the second plaintiff.

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f) In paragraph No.7 of the written statement of the first defendant and in paragraph No.3 of the written statement of the third defendant there is a reference of the above. The family arrangement dated 23.05.1994 was a collusive one made with an intent of depriving the minor of the said property.

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9.2. He would rely on the following judgments: "1. 2002 3 CTC 607 - Rajeswari Vs.nD. Murugayya and Ors.

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2016 4 LW 859 - D. Raja Vs.: The Joint Sub-Registrar No. 1, Saidapet South Chennai and Ors.

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2015 5 LW 628 - Jagdish Chand Sharma Vs .t: Narain Singh Saini and Ors.

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2014 3 CTC 113 - D.V. Loganathan

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Vs.: Sub-Registrar and Ors "

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9.3. Per contra, Mr. Sivasundaram, learned counsel would submit that the suit property was purchased from out of the income from the ancestral property and the joint exertion of the said Muthu and defendants 1 and 2. He would submit that this fact has been admitted by the said Muthu in Ex.B.10, Cancellation Deed wherein, the said Muthu, had admitted that the properties had been purchased out of the income from the ancestral properties and out of the funds contributed by defendants 1 an 2 and himself. He would submit that the Appellate Court has extensively considered this in the judgment at Paragraph Nos.8 to 11. He would further submit that not only has the said Muthu executed the Cancellation Deed but he had also thereafter entered into an Exchange Deed with the second defendant under Ex.B.16 dated 27.04.2001 which is nearly 7 years after the cancellation of the Settlement Deed. He would therefore submit that this would clearly show that the parties have accepted and acted upon the partition deed. Each person has been enjoying their respective share and after a fairly long period, the parties had decided to exchange properties to enjoy the same in a better fashion.

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9.4. The main argument put forward by the counsel was that since the properties were purchased out of the joint family funds and common funds, the said Muthu had no authority to execute the Settlement Deed in the first place and therefore its cancellation by Muthu under Ex.B.10 was valid and binding.

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9.5. The further argument is that the Appellate Court on a perusal of the documents on record has held that the Settlement Deed executed by the said Muthu was wrong and this fact has been accepted by the said Muthu himself and in Ex.B.10 the reasons for cancellation have been set out in detail. He would therefore submit that the order of the Appellate Court does not require any re-consideration and the Second Appeal should be dismissed.

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10. Discussion:

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10.1. The plaintiffs have challenged the cancellation of the Settlement Deed under Ex.B.10, Cancellation Deed on the ground that the settlor had settled his self acquired properties on the minor under an irrevocable settlement deed. The properties were not purchased by Muthu out of joint family funds. However, the defendants would contend that though the properties are standing in the name of the said Muthu, they were purchased only from out of the income generated from the ancestral properties and also out of the joint contributions of the defendants 1 and 2 and Muthu. As the defendants have put forward a case contrary to the recitals of the document Ex.A.3 it is for the defendants to prove the case that the property had been purchased from out of the ancestral nucleus/joint exertion.

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10.2. In his cross examination, the first respondent as D.W.4 would submit that his father, Arasan had two wives and the first wife's son one Ayyakannu was given 37 cents of lands in a partition and the remaining 95 cents were kept in common. However there are no details given about the date of this partition or the properties subject matter of this partition. He admitted that the 95 cents of land which was kept in common stood in the name of Muthu. D.W.4 would depose that the ancestral property was only of an extent of 2 and 1/2 cawnies. He would admit that the said land had no well and was dependant on the rains for water " வானம் பார்த்த பமி". D.W.4 would further admit that after using the income for taking care of the family, nothing remained in the hands of the father. Therefore, it is clear that the contention of the defendants regarding an ancestral nucleus is false and without any basis. The further evidence that the properties were being taken care by the father and the second defendant has also not been proved by the defendants. Further there is absolutely no proof let in by the defendants to prove their contention that the first and second defendants were contributing their income to the husband of the first plaintiff and the father of the second plaintiff, Muthu.

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10.3. The Trail Court had rightly come to the conclusion that the defendants had not proved their case of the existence of an ancestral nucleus or income from joint exertion for the purchase of the suit properties. Therefore considering the fact that the properties stood in the name of Muthu, it is only his self acquired properties. The learned Judge has also discussed the evidence of the first plaintiff as P.W.1 wherein, she has deposed on how the properties had been purchased by her husband Muthu and this evidence has not been impeached by the defendants.

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Therefore, considering the fact that the defendants have failed to establish the factum of an ancestral nucleus and taking note of Ex.A.1 and Ex.A.4 (Sale deeds in the name of Muthu) the Trial Court has rightly held that the suit properties are the self acquired properties of Muthu and Ex.A.3 settlement executed by him is a valid one.

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10.4. Having held that the properties are the self acquired properties of Muthu, the next issue that has to be considered is whether the cancellation of Settlement Deed, Ex.A.3 was valid. It has to be borne in mind that the settlement deed is irrevocable.

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10.5. Certain terms of the Cancellation Deed, which is in vernacular and when translated, would read as follows:

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"that the properties comprised in S.No.489 had been purchased from the income contributed by Muthu and his two brothers in his name as he was the eldest member (there is no reference to the ancestral nucleus in the above recitals)."

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10.6. The Cancellation Deed would further read:

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"that the Settlement Deed, Ex.A.3 had been executed upon the instigation of the wife of Muthu and because there was some difference of opinion between the said Muthu and his brothers."

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10.7. Section 126 of the Transfer of Property Act provides for the suspension or revocation of a Gift deed. Section 126 is extracted herein below:

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“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

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for consideration without notice. Illustrations

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(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

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(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.”

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10.8. Section 126 contemplates the following contingencies under which a gift can be suspended or revoked:

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"a) On the happening of any event specified in the deed;

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b) After the parties had agreed that the gift is revocable either wholly or in part;

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c) In any of the cases except for want or failure of consideration."

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Under the third contingency, instances of Settlement Deed coming into existence on the basis of fraud, undue influence, misrepresentation would be covered. None of the contingencies are present in the instant case. The reason that has been set out in the Cancellation Deed is instigation by the first plaintiff and due to ill feeling between the said Muthu and his brothers. Further considering the fact that the property belongs to Muthu his wife asking him to settle the same on his minor son cannot be considered as a case of exercising undue influence. The settlement has been made in favour of the minor 2^nd plaintiff and accepted by his mother 1^st plaintiff.

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10.9. The Hon'ble Supreme Court in the judgment reported in "2004 1 CTC page 146 B.K.Rangachari vs L.V.Mohan", was considering the question as to whether a minor on the date of the execution of the Gift Deed can be said to have legally accepted the property gifted to him and the said gift deed was irrevocable. The learned Judges had observed as follows:

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"31. As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other

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natural guardian as not to indicate any disapproval or repudiation of it. "

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The learned Judges went on to further observe as follows:

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"32. In our considered opinion therefore, the trial court and the High Court were wrong in coming to the conclusion that there was no valid acceptance of the gift by the minor donee. Consequently, conclusion has to follow that the gift having been duly accepted in law and thus being complete, it was irrevocable under Section 126 of the Transfer of Property Act. Section 126 prohibits revocation of a validly executed gift except in circumstances mentioned therein. The gift was executed in 1945. It remained in force for about 25 years during which time the donee had attained majority and had not repudiated the same. It was, therefore, not competent for the donor to have cancelled the gift and executed a Will in relation to the property."

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10.10. In the Judgment of this Court reported in "2010 2 CTC page 379, Kamalammal (dead) & Others v.Girija & Others", this court while considering the validity of a cancellation of a Settlement Deed had relied upon several judgments and had finally set forth the following points to be considered in matters of revocation of settlement deed:

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"a) The plea of coercion, undue influence, fraud or misrepresentation, shall be specifically pleaded and established by letting in convincing evidence.

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b) Once a gift is accepted and given effect to, it cannot be rescinded and subsequent conduct of donee cannot constitute a ground for rescission of a valid gift. Acceptance of onerous condition, if any, is also essential. The donor has to file a suit for setting aside the settlement on compliance of contingency, stipulated in the deed.

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c) Undue influence is one of the fact which cannot be reopened in second appeal.

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d) When the settlement deed is silent about the power of revocation of settlor, subsequent cancellation by him is of no avail and the course open to revocation is to file a suit.

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e) The allegations of fraud, coercion, undue influence and misrepresentation has to be proved and its standard of proof is as required in criminal law."

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10.11. In the judgment reported in "AIR 1976 SC Page 163 Afsar Sheikh and Ors. Vs:Soleman Bibi and Ors.", at paragraph No.15 the Hon'ble Supreme Court held as follows:

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"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the CPC, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first rounds even before the first appellate court. "

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10.12. In the judgment "B.K. Rangachari vs L.V. Mohan, reported in 2015 (2) CTC page 465", this Court has observed as follows in Paragraph No.10 with regard to the contingencies under which a Settlement Deed could be cancelled. The Learned Judge had observed as follows:

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" 10. From the above judgments, it is clear that the settlement deed cannot be cancelled unless either one of the elements of fraud, misrepresentation, undue influence or coercion is present. Such revocation is

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also possible only through a civil court. In S.Ganesan's case (Supra), relying upon the judgment of the Apex Court reported in 2004 (1) CTC 146 S.C (K.Balakrishnan case), this court has held that the settlement deed would not be invalidated on the ground that possession was not handed over to the donee or because donee failed to mutate the records."

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10.13. A perusal of the written statement of both the first and third defendants would show that there is no pleadings with reference to undue influence, fraud, misrepresentation, etc., except for a simple statement that the said Muthu had been instigated by his wife to execute the Settlement Deed. As regards legality of the cancellation of the Settlement Deed, it is seen that Ex.A.3 is an irrevocable one and the defendants have not been able to establish any of the contingencies contemplated under Section 126 of the Transfer of Property Act.

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10.14. Therefore, a perusal of the above judgment clearly indicates that the defendants have not been able to establish the fact that the conditions necessary for cancelling the Settlement Deed had existed. Further the property in question being the independent property of Muthu, had been settled by him on his minor child and without recourse to Court the cancellation of the same under Ex.B.10 is invalid. The Appellate Court has not considered the evidence both oral and documentary in this regard and has simply considered the defendants' plea that the property in question was an ancestral property and that the father of the second plaintiff had no right to execute the Settlement Deed. The finding of the Lower Appellate Court in this regard has to necessarily be set aside.

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10.15. The Trial Court had granted a decree from recovery of possession in respect of those properties that are in the possession of defendants 3 to 5 though no prayer for recovery of possession has been granted. The plaintiff has not paid Court fees for this relief. The Courts have repeatedly held that where a larger relief is asked for the Courts can mould the relief a grant a lesser relief. However the relief of recovery of possession is an independent relief which has to be pleaded and prayed for.

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10.16. However, in the instant case the relief has not been asked for. The suit has been filed by the mother and natural guardian on behalf of the minor who at the time of the

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institution of the case was 2 years old. Further, this Court having found that the sale in favour of the defendants 4 and 5 is invalid the 2^nd plaintiff is at liberty to take such proceedings as advised for recovery of possession.

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10.17. The Second Appeal is allowed and the Judgement and Decree in A.S.No.19 of 2006 of the Principal Subordinate Judge, Villupuram is set aside and the Decree in O.S.No.292 of 2003 of the District Munsif, Ulundurpet is confirmed except for the relief of recovery of possession. Consequently, connected Miscellaneous Petition is also closed. No costs.

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Assistant Registrar // True Copy//

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Sub Assistant Registrar

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mrn

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To 1. The Principal Sub-Court, Villupuram

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