Suit for declaration that a cancellation deed of an irrevocable family settlement deed was null and void, with injunction. The court held the defendant failed to prove coercion in executing the settlement deed, as his first revocation deed omitted any allegation of force. Second appeal dismissed; decrees below confirmed.
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S.A.No.819 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2025
CORAM:
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. No.819 of 2014
Joseph Haribabu alias
Parthinathan Haribabu ... Appellant
Vs.
Second Appeal is filed under Section 100 of Civil Procedure Code, 1908, against the judgment and decree in A.S.No.73 of 2011 on the file of the Sub-ordinate Judge, Poonamallee, dated 29.07.2013 confirming the judgment and decree in O.S.No.553 of 2001 dated 31.01.2011 on the file of District Munsif Court, Poonamallee.
For Appellant : Mr.Dhananjayan
For Respondents : Mr.D.Ferdinand for M/s.BFS Legal
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JUDGMENT
The appellant is the first defendant. The plaintiffs have filed the suit
for permanent injunction and declaration to declare the cancellation deed dated 30.06.1999 and for consequential permanent injunction. The trial Court decreed the suit and the first appeal preferred by the first defendant was dismissed by confirming the judgment and decree of the trial Court. Hence the first defendant has preferred this second appeal.
2. The facts pleaded in the plaint filed by the plaintiffs in brief :
The first plaintiff is the wife of the first defendant and the second plaintiff is the son of the first defendant. The plaintiffs are the joint owners of the house bearing Plot No.24, Door No.5 of Vani Nagar, Valasaravakkam comprise in S.No.194/3 which is the suit property. The plot was purchased by the first defendant in the year 1983 and it was left vacant. After the first plaintiff got married with the first defendant a house was constructed over the suit property with the financial support offered by the first plaintiff’s parents and brothers and by selling her jewels. The first defendant developed an extra marital affair with another woman and ill-treated the plaintiffs and he also deserted them. The first defendant mortgaged the suit property with
the second defendant and borrowed a sum of Rs.2,50,000/-. On the
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intervention of the relatives and family members of the first plaintiff, the first defendant settled the suit property in favour of the plaintiffs through a settlement deed dated 28.06.1969 just to make some security for their life. The above settlement is an irrevocable settlement. The plaintiffs have accepted the settlement and started to be in enjoyment of the suit property as its owners by paying loan installments towards the subsisting mortgage in favour of the second defendant.
2.1 During June, 2001 the first defendant demanded the first plaintiff
to sell the suit property and threatened her with the help of rowdy elements on 13.06.2001 and the first plaintiff lodged a police complaint. Hence the plaintiffs have filed a suit for permanent injunction restraining the first defendant from interfering the peaceful possession and enjoyment of the suit property and also restraining him from making any encumbrance over the suit property and to declare the cancellation deed dated 30.06.1999 executed by the first defendant as null and void and also to restrain the second defendant from handing over the title deeds of the suit property of the first defendant.
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defendant in brief :
After purchasing the vacant site the first defendant had constructed a residential building to an extent of 1000 sq.ft. with his own money which was saved by him before his marriage. The first plaintiff’s parents and brother did not offer any financial support and it is false to state that first plaintiff’s jewels have been utilized for the purpose of raising construction in the suit property. The first defendant mortgaged the suit property for the purpose of constructing a residential building and obtained a loan of Rs.2,50,000/- apart from which the first defendant also spent a sum of Rs.1,50,000/- towards construction. The construction work was entrusted by the brother of the first plaintiff. However, the cost was entirely borne by the first defendant. The first plaintiff and his brother kidnapped the first defendant and obtained signature in various documents and hence the first defendant had lodged a police complaint and the same was registered in Cr.No.618/1999.
3.1 As the settlement deed was obtained by force and threat, the first
defendant revoked the same by executing a revocation deed and also publishing the said fact on 13.07.1999. The first defendant is in exclusive
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possession and enjoyment of the suit property from the date of purchase. The first plaintiff and the first defendant lived as husband and wife for one month and thereafter the first plaintiff deserted the first defendant and stayed with her parents. The first plaintiff gave birth to a male child but the child was not born to the first defendant. The first defendant let out the suit premises for rent and the first plaintiff used to collect the rent from the tenants. The first plaintiff was always living at her parents house and she used to visit the first defendant for only 4 or 5 days in a month and that too to collect rent from the tenants.
3.2 The first plaintiff compelled the first defendant to dispose the suit property and settle the sale amount in the name of first and second plaintiffs. As the settlement was executed by force, the first defendant cancelled the sale subsequently. The first plaintiff is living in adultery and she has no marital relationship with the first defendant. The first defendant let out the entire property to one Pichumani and Gurubakyam through a lease deed dated 18.10.2001. The plaintiffs have managed to obtain patta by suppressing the real facts. The second defendant had colluded with the plaintiffs and refused to hand over the title deeds to the first defendant even though the entire dues towards the load have been repaid.
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defendant in brief:
The second defendant has extended credit facility and a loan has been obtained by offering the suit property as mortgage. The loan has been discharged and the second defendant is ready to surrender the documents to the person as per the direction of the Court.
1. Whether the plaintiff had valid title, possession and enjoyment over suit property ?
2. Whether the plaintiff is entitled to the injunction sought
for?
3. To what other relief ?
Additional issues:
1. Whether the plaintiff is entitled to declaration that the
cancellation deed executed by first defendant is null and void ?
2. To what other relief ?
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D.W.1 and D.W.2 were examined and Exs.B1 to B12 were marked.
the trial Court has decreed the suit. The first appeal preferred by the first defendant also got dismissed by confirming the judgment of the trial Court. Now the present Second Appeal has been filed and the substantial question of law is reframed as under:
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below did not consider the evidence available on record which would show that the settlement deed has been obtained by force; the plaintiffs did not prove that the settlement deed has been executed by the first defendant voluntarily; despite the first defendant has proved that the settlement deed has been obtained by force, the same has not been considered by the courts below; when the first plaintiff itself has stated that the first defendant had deserted the plaintiffs and they were frequent quarrel between themselves, it is impractical to make any settlement out of love and affection and that was not considered by the trial Court and the first appellate Court.
denied. The first plaintiff is the wife and the second plaintiff is the son of the first defendant. The fact that the suit property belonged to the first defendant as a self acquired property through a registered sale deed dated 16.11.1983 which is marked as Ex.B1. The plaintiffs and the first defendant have been living in the suit property as a family. There is some matrimonial issues between the first plaintiff and the first defendant and the first plaintiff stated that the first defendant had deserted the family by developing some illegal intimacy with some other woman. Even though it is claimed by the plaintiffs that the house in the suit property has been constructed with the financial
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support offered by the first plaintiff’s father and brother, it is seen that the first defendant also availed loan from the second defendant after he purchased the suit property. Naturally the loan could have also been used for constructing the house. But the house was constructed by first plaintiff’s brother and the said fact was not denied by the first defendant himself. In fact in the written of the first defendant he has stated that the construction work was carried out by the first plaintiff’s brother with the money arranged by the first defendant. Though the parties have stated their financial involvement in meeting out the expenses towards the constructed house the
fact remains that it is not the core issue involved in this case. The issue spins around a settlement deed executed by the first defendant on 28.06.1999 and the subsequent revocation deed executed on 30.06.1999.
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defendant is said to have given a police complaint in this regard at Virugampakkam police station and a case has been registered in Cr.No.618/1999. However, no charge sheet has been filed. It is learnt that the police has closed the case as 'civil in nature' and advised the parties to approach the civil court. Neither the first defendant has taken any further action by challenging the inaction on the part of the police or the final report if any filed on the complaint given by him.
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same.
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condition that it is irrevocable, the executor of the said document would loose his right to revoke the same. Even if it is presumed that the executant needed to revoke the settlement deed especially for the reason that the earlier settlement deed has been obtained through force or threat, it would be spontaneous to mention those facts in the revocation deed executed subsequently. Even though the revocation deed has been executed two days after the settlement deed dated 28.06.1999, those facts were not stated in the revocation deed dated 30.06.1999. The first defendant had executed another revocation deed on 12.07.1999 just for mentioning that he has been kept under force and coercion to execute the settlement deed dated 28.06.1999. The second revocation deed dated 12.07.1999 is not only a redundant one, it is also patent that it has been executed as an after thought in order to create a make belief.
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counsel for the first defendant that the first defendant had let out the suit property even after the settlement deed dated 28.06.1999 and that would show that the same has not been acted upon.
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03.01.2025
Index:Yes/No Speaking Order / Non-speaking order Neutral Citation Case : Yes / No bkn
To:
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R.N.MANJULA, J.
bkn
S.A. No.819 of 2014
03.01.2025
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2 issues framed by the court
Whether the settlement deed dated 28.06.1999 was obtained by the first defendant by force or intimidation so as to validate its cancellation.
Whether the relief of declaration that the cancellation deed is null and void is barred by limitation.
3 provisions across 2 enactments
Joseph Haribabu alias Parthinathan Haribabu
Lourdu Anandhi
Amal Deny Princeton
R.N.Manjula
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
