Dismissed

G.Venkatesan v. G.Palani

Madras HC2 Mar 2022SA/115/2012

Case brief

AI extract

What is this about?

In a second appeal, the High Court upheld the judgment of the Assistant Judge dismissing the suit, holding that the doctrine of non est factum did not apply where the executant later executed a cancellation deed acknowledging the previous deed and that a registered, absolute settlement deed cannot be unilaterally cancelled.

What did the court decide?

Second Appeal dismissed; First appellant granted nine months to vacate B-schedule property.

G.Venkatesan Vs G.Palani — Partition | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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ORDERS RESERVED ON : 28.02.2022

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PRONOUNCING ORDERS ON : 02.03.2022

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Coram:

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THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH

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Second Appeal No.115 of 2012

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1.G.Venkatesan

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2.Kali Ammal – Died … Appellants 1 & 2/Respondents 1& 2/ Defendants 1 & 2

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3.Baby

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4.Gowri

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5.Sasikala … Appellants 3 to 5

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[Appellants 3 to 5 brought on record as Lrs of the deceased appellant 2 viz., Kali Ammal vide Court order dt.29.03.2019 made in CMP.7514/2019 in SA.No.115/2012

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..Vs..

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1.G.Palani ...1^st Respondent/Appellant/Plaintiff

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2.The Asst.Engineer T.N.E.B., Ashok Nagar West P.T.Rajan Salai Chennai 600 078. ...2^nd Respondents/3rd Respondents/ 3^rd Defendant

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Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the judgment and decree dated 11.11.2011 passed in A.S.No.217 of 2010 by III Additional Judge, City Civil Court, Chennai and reversing the judgment and decree dated 04.01.2010 in O.S.No.7893 of 2008 on the file of the II Assistant Judge, City Civil Court, Chennai.

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For Appellants : Mr.C.Uma Shankar

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For Respondents : Mr.T.Viswanatha Rao

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JUDGMENT

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The 1^st and 2^nd defendants are the appellants in this Second Appeal. The 2^nd defendant died during the pendency of the Second Appeal and hence, her daughters have been impleaded as appellants 3 to 5.

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2.The 1^st respondent/plaintiff is the son of the 2^nd defendant and is the brother of the 1^st defendant. He filed a suit seeking for the relief of declaration to declare the deed of cancellation dated 21.08.2007 (Ex.A-4) executed by the 2^nd defendant as null and void and for declaration of title to the “A” schedule property and for a direction to the defendants to vacate the “B” schedule property.

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3.The case of the plaintiff is that the “A” schedule property was allotted in the name of his father by the Slum Clearance Board and after his death, the plaintiff got the allotment transferred in the name of his mother who is the 2^nd defendant in the suit. The further case of the plaintiff is that he was paying the instalments to the Slum Clearance Board since his mother had no income of her own. He also safeguarded the property by initiating eviction proceedings against one Neela. Ultimately, he made the entire payment and the Sale Deed was executed in the name of his mother.

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4.It is further stated that the 2^nd defendant out of her own free Will, executed a Settlement Deed dated 08.07.2004 (Ex.A-3) in favour of the plaintiff and she settled the entire property in favour of the plaintiff. The plaintiff acted upon this document and he put up construction in the “B” schedule property and permitted his brother, the 1^st defendant to occupy the property. Thereafter, there was difference of opinion and the 2^nd defendant proceeded to cancel the Settlement Deed through a cancellation deed dated 21.08.2007 (Ex.A-4). Thereafter, an attempt was made by the defendants to trespass into the property in the occupation of the plaintiff. It is under these circumstances, the suit came to be filed seeking for the reliefs mentioned supra.

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5.The 1^st and 2^nd defendants filed a written statement and took a stand that the Settlement Deed dated 08.07.2004 is vitiated by fraud. It is further stated that the plaintiff wanted to drive away his own mother and brother from the property and hence, the 2^nd defendant proceeded to cancel the Settlement Deed. The defendants claim that the plaintiff does not have any right over the suit property and hence, sought for the dismissal of the suit.

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The Trial Court on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case, dismissed the suit through Judgment and Decree dated 04.01.2010. Aggrieved by the same, the plaintiff filed an appeal in A.S.No.217 of 2010. The Appellate Court on re-appreciation of evidence and on considering the findings of the Trial Court, found that the plaintiff has made out a case and accordingly, allowed the appeal through Judgment and Decree dated 11.11.2011 and set aside the Judgment and Decree of the Trial Court. Aggrieved by the same, the 1^st and 2^nd defendants have filed this Second Appeal.

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When the Second Appeal was admitted, this Court framed the following substantial questions of law:

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i) Whether the Appellate Court is correct in not applying the doctrine of non-est factum to the facts of the present case that too when the plaintiff (PW1) had categorically admitted that the second defendant the executants of Ex.A3 is an illiterate lady?

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ii) Whether the Appellate Court is right in casting the burden of proof as envisaged under the provisions of the Indian Evidence Act on the defendants 1 & 2 (appellant herein) with regard to execution of the exhibit A3 the Settlement Deed?

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iii)Whether the Appellate Court is correct in holding that Ex.A4 (Cancellation of Settlement Deed) is null and void when the Ex.A3 (Settlement Deed) was not proved in accordance with law especially under Section 68 of the Evidence Act with regard to execution of the same, that too when the execution is denied by the executant?

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iv )Whether the Appellate Court had appreciated the provision of Transfer of Property Act especially with regard to Section 123 and 126 of Transfer of Property Act?

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8.The learned counsel for the appellant submitted that the Lower Appellate Court reversed the well considered judgment of the Trial Court without assigning proper reasons. The learned counsel further submitted that the Lower Appellate Court failed to consider that the doctrine of non est factum will be applicable to the present case since the 2^nd defendant was the mother of the plaintiff and she was an illiterate woman who was taken to the registration office under the guise of payment of tax and the plaintiff in a clandestine manner got a Settlement Deed executed in his favour which was never intended by the 2^nd defendant. The learned counsel further submitted that the Settlement Deed (Ex.A-3) was not proved by examining an attesting witness as required under Section 68 of the Indian Evidence Act, 1872. The learned counsel further submitted that the plaintiff had produced a fabricated legal heirship certificate(Ex.A-2) by concealing the fact that there are also sisters who are entitled for a share in the property. The learned counsel submitted that the 2^nd defendant had cancelled the Settlement Deed after coming to know of the fraud played against her. The learned counsel concluded his arguments by submitting that the 2^nd defendant wanted to give a share to all her sons and daughters and the plaintiff wanted to knock off the entire property by depriving the shares for his siblings.

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9.The learned counsel for the 1^st respondent submitted that the 2^nd defendant was well aware of the fact that she executed a Settlement Deed in favour of the plaintiff. The learned counsel further submitted that the doctrine of non est factum will not apply to the present case since the 2^nd defendant was aware about the nature of the document and the same is also evident from the contents of the deed of cancellation marked as Ex.A-4. The learned counsel submitted that Settlement Deed was acted upon and the plaintiff was paying the property tax, water tax and also the electricity charges which were all transferred in his name with respect to the subject property. The learned counsel submitted that the Lower Appellate Court rendered its findings after considering the oral and documentary evidence and had assigned sufficient reasons for not agreeing with the findings of the Trial Court. The learned counsel therefore sought for the dismissal of the Second Appeal.

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10.This Court carefully considered the submissions made on either side and the materials available on record. This Court also considered the findings rendered by both the Courts below.

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This Court will first take up the plea of the doctrine of non est factum. This doctrine will apply in a case where the concerned party is illiterate and was not aware of the nature of document that was executed and had never intended to convey the property as evidenced by the concerned document. Where such a plea is taken, the party must first satisfy the court that he/she will be entitled to take umbrage under this doctrine. Once a party satisfies the requirement, the burden will shift on the other side who relies on the document to show that the document was executed without any misrepresentation and/or fraud.

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12.In the written statement filed by the 1^st and 2^nd defendants, a plea has been taken to the effect that the 2^nd defendant is illiterate and she believed the plaintiff who took her to the registration office in the guise of taking her to pay the house tax and thereafter he obtained her left hand thumb impression. If this stand taken by the 2^nd defendant is tested in the light of the evidence available on record, it can be seen that the 2^nd defendant during the course of cross examination had categorically stated that the document executed by her in the year 2004 was a Settlement Deed. She further states in her evidence about the incident when the plaintiff attempted to throw her out of the property. It is thereafter, the cancellation deed came to be executed in the year 2007. It will be very relevant to take note of the reasons assigned in this document for cancelling the Settlement Deed. For proper appreciation, the relevant portion is extracted hereunder:

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mjpy; fl;oa[s;s tPL cs;gl cs;s brhj;jpid vd;Dila kfdhd jpU/gHdp kPJs;s md;gpdhYk; ghrj;jpdhYk;. mtd; bgaUf;F xU brl;oy;bkz;l; gj;jpuk; vGjpf; bfhLj;J me;j gj;jpukhdJ mnrhf; efh; rhh; gjpthsh; mYtyfj;jpy; 8-07-2004 e; njjpapy; 1 g[j;jfk; Mtz vz;/19742004 Mf gjpt[ bra;ag;gl;Ls;sJ/ vdJ kfd; vd;id rhpah ftdpf;fhky; ,Ug;gjhYk; vd;id filrp tiuapy; fhg;ghw;Wthd; vd;w ek;gpf;fif vdf;F ,y;yhjjpdhYk; ,jd; fPH; bc&l;a{ypy; fz;Ls;s brl;oy;bkz;l; gj;jpuk; Mtz vz;/1974-2004 Mf gjpthfpa brl;oy;bkz;l; gj;jpjuj;ij ehd; ,d;W njjpapy; ,e;j brl;oy;bkz;l; uj;J gj;jpuk; K:yk; uj;J bra;fpnwd;/ Mifahy; ,d;W Kjy; nkw;go brl;oy;bkz;l; gj;jpuk; mKypy; ,y;iy/

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13.A careful reading of the contents of the cancellation deed shows that the 2^nd defendant had in fact executed the Settlement Deed in favour of the plaintiff only out of love and affection and since he did not take care of the plaintiff, she decided to cancel the settlement deed. Nowhere in the cancellation deed, the 2^nd defendant has stated that the plaintiff had misrepresented and obtained the settlement deed by playing fraud. Therefore, both from the oral as well as documentary evidence, it is clear that the 2^nd defendant was aware of the nature of document that was executed in favour of the plaintiff. It must also be borne in mind regarding the relationship between the parties wherein the plaintiff is none other than the elder son of the 2^nd defendant. The reason for executing the settlement deed in favour of the plaintiff is also apparent from the contents of the Settlement Deed itself. This has been properly appreciated by the Lower Appellate Court and the Lower Appellate Court has rightly come to the conclusion that the doctrine of non est factum will not apply to the facts of the present case. In view of the same, the burden does not shift to the plaintiff unless the onus of proving misrepresentation/fraud is discharged by the defendant. The first and second substantial questions of law are answered accordingly.

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14.The next issue pertains to the proof of the Settlement Deed. It is true that insofar as a Settlement Deed is concerned, the same has to be proved in accordance with Section 68 of the Indian Evidence Act, by examining atleast one attesting witness. However, this requirement can be dispensed with where the execution of the Settlement Deed is not denied. In the present case, the 2^nd defendant has admitted to the execution of the Settlement Deed and that is the reason why she proceeded to execute a cancellation deed subsequently. Useful reference can be made to the judgment in Muthuswamy and S.Kaliammal and Others reported in (2017) 3 CTC 79 and C.Kumaraswamy Vs. P. Thamayanthi& another reported in 2019-5 L.W.128.

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15.In the present case, the Settlement Deed has been duly registered and the Settlement Deed pertained to an existing property that stood in the name of the 2^nd defendant. The 2^nd defendant had executed the Settlement Deed absolutely without reserving any rights to herself, to cancel the document in future. The document also did not contemplate any condition precedent for the Settlement Deed to come into force or any

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condition subsequent to be strictly fulfilled. The son taking care of mother is a moral obligation and at times the son forgets the sacrifice made by the mother and stops taking care of the mother. That cannot be a reason for unilateral cancellation of a Settlement Deed. At the best, the 2^nd defendant should have approached a Court of Law and got the Settlement Deed cancelled in accordance with law. The unilateral cancellation of the Settlement Deed by the 2^nd defendant does not have the backing of law and it does not bind the plaintiff. This Court finds that the Settlement Deed is perfectly in accordance with the provisions of the Transfer of Property Act. The fourth substantial question of law is answered accordingly.

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16.The attempt made by the learned counsel for the appellants by pointing out to the legal heirship certificate (Ex.A-2) and questioning the character of the plaintiff, does not hold any water in the present case since the Court was not dealing with the validity of Ex.A-2 or the issue as to who are all the legal heirs of late Ganesan, who is the husband of the 2^nd defendant.

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17.The Lower Appellate Court went into every aspect of the case and assigned proper reasons while allowing the appeal and this Court does not find any perversity in the findings of the Lower Appellate Court.

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In the result, this Court does not find any ground to interfere with the Judgment and Decree of the Appellate Court and consequently, the same is upheld. The Second Appeal is dismissed. Considering the facts and circumstances of the case, there shall be no order as to cost. The 1^st defendant is granted nine months time to vacate and handover possession of the “B” schedule property to the plaintiff.

SD/-

ASSISTANT REGISTRAR

// TRUE COPY //

SUB ASSISTANT REGISTRAR

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KP To