Dismissed

K.Amsaveni v. K.Asaimani

Madras HC7 Dec 2022SA/982/2022

Case brief

AI extract

What is this about?

This second appeal challenges the lower courts' dismissal of a suit seeking to cancel gift deeds. The High Court clarified that a gift executed under undue influence is voidable, not void, and must be challenged by the donee. Furthermore, unilateral cancellation is impossible; only a court can annul such deeds. Finding no substantial question of law, the appeal was dismissed.

What did the court decide?

The Second Appeal is dismissed. No costs.

K.Amsaveni Vs K.Asaimani — Partition | Madras HC (2022)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

Dated : 07.12.2022

¶4

Coram

¶5

The Hon'ble Mr. Justice C.V.KARTHIKEYAN

S.A.No.982 of 2022

1.K.Amsaveni

2.Krishnan

...Appellants / Appellants / Defendants

¶10

Vs. K.Asaimani ...Respondent / Respondent / Plaintiff

¶11

The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.44 of 2017 dated 08.03.2018 on the file Sub Court, Palacode, confirming the judgment and decree made in O.S.No.168 of 2012 dated 03.01.2014 on the file of the District Munsif Court, Palacode.

¶12

For Appellants : Mr.C.Chokkalingam

¶13

https://www.mhc.tn.gov.in/judis

¶14

¶15

JUDGMENT

¶16

The 1^st and 2^nd defendants in O.S.No.168 of 2012 on the file of the District Munsif Court at Palacode are the appellants herein. The 1^st defendant is the daughter of the 2^nd defendant. The plaintiff, another daughter, had filed the suit seeking interference with the cancellation of a Gift Deed dated 30.03.2012, which cancellation was executed by the 2^nd defendant.

¶17

2.The 2^nd defendant had earlier executed a Gift Deed on 17.09.2004 in favour of the plaintiff with respect to the suit schedule property. Thereafter, on 30.03.2012, the said Gift Deed was cancelled and a fresh Gift Deed was executed in favour of the 1^st defendant on 12.04.2012.

¶18

3.Naturally, aggrieved by these two subsequent transactions, the plaintiff had instituted a suit seeking interference with those transactions.

¶19

https://www.mhc.tn.gov.in/judis

¶20

¶21

4.Section 123 of the Transfer of Property Act, 1882, deals with gifts

¶22

made and once a gift deed is executed by the donor and the donee accepts

¶23

the gift, the gift become final. The document speaks for itself.

¶24

5.The learned counsel for the appellants drew attention to the observation made in the judgment of the Trial Court, wherein, during evidence the 2^nd appellant herein had stated “ehd; thjpf;F 2004Mk; Mz;L xU jhd brl;oy;bkz;l; gj;jpuk; vGjp itj;njd; vd;why; rhpjhd;/ thjp vd;dplk; nfl;lhh;/ ehd; vGjp itj;njd;”. This statement in cross-examination is interpreted by the learned counsel as undue influence having being exerted by the plaintiff on the 2^nd defendant to execute the Gift Deed. But the 2^nd defendant has executed the document. The 2^nd defendant has not protested that it was executed under undue influence.

¶25

6.Even otherwise, if it is a question of undue influence, the document

¶26

is only voidable. It cannot be stated to be void.

¶27

https://www.mhc.tn.gov.in/judis

¶28

¶29

7.In Muppudathi Pillai V. Krishnaswami Pillai and others reported

¶30

in AIR 1960 Mad (1) : (1959) 72 LW 543, a Full Bench of Madras High Court had examined the scope of Section 41 of the Specific Relief Act, 1877. It must be noted that Section 33(1) of the Specific Relief Act, 1963 is the pari materia provision. The Full Bench noticed the distinction between Section 35 of the Specific Relief Act, 1877 equivalent to Section 27 of the Specific Relief Act, 1963 and also Section 39 of the Specific Relief Act, 1877 equivalent to Section 31 of the Specific Relief Act, 1963 and held as follow:

¶31

“11. … It may be noticed that the above section applies not merely to the case of an instrument which is voidable but also one that is void. Section 35 provides for the case of rescission of voidable contracts. It is evident that Section 39 covers not only a case contemplated under Section 35, but also a wider field, that is, a case of a void document, which under the law need not be set aside.”

¶32

12. The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive

¶33

https://www.mhc.tn.gov.in/judis

¶34

¶35

one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.

¶36

8.The Full Bench Judgment of the Madras High Court is very clear that the document even if it is to be executed under undue influence, can only be voidable and not void. It is voidable at the option of the person who executes the document.

¶37

9.Therefore, if it is the case of the 2^nd appellant / 2^nd defendant that the

¶38

https://www.mhc.tn.gov.in/judis

¶39

¶40

document was executed by him under undue influence and is voidable, then he should have approached the Court claiming that it should be interfered with. He had not done so. The document stood for eight years and thereafter, it had been cancelled unilaterally. Unilateral cancellation of a Gift Deed or Settlement Deed is not possible. It is only a Court which can interfere and cancel the Settlement Deed.

¶41

10.In view of these reasons, I find no substantial question of law arises meriting admission of the second appeal. The concurrent judgments of the Courts below stand. The Second Appeal is dismissed. No costs.

¶42

07.12.2022

¶43

Index:Yes/No Internet:Yes/No smv

¶44

¶45

1.The District Munsif Court, Palacode.

¶46

2.The Sub Court, Palacode.

¶47

https://www.mhc.tn.gov.in/judis

¶48

¶49

C.V.KARTHIKEYAN,J.

Smv

S.A.No.982 of 2022

07.12.2022

https://www.mhc.tn.gov.in/judis

K.Amsaveni v. K.Asaimani

Case brief

What is this about?

What did the court decide?

K.Amsaveni v. K.Asaimani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Krishnamurthy @ Kunju Vs Smt Sundari Ammal

M/s. Equitas Small Finance Bank Limited Vs K.Sampangiraman and another

Mr.S.Dinesh Holla M.E (Iisc) and 2 Others Vs P.Harichandra Rao and 4 Others

R Manjula Vs M Muniyammal

Selvambal (died) Vs Admoola Konar

V.Thirunavukkarasu Vs Palanivel Pillai(Deceased)