IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.09.2011 CORAM: THE HONOURABLE MR. JUSTICE R.SUBBIAH SECOND APPEAL NOS.1656 AND 1657 OF 2008 AND M.P.NO.1 OF 2009 1. K.A.Shanmugam 2. K.Sengodan ..Appellants in both Appeals/Defendants 4 and 5 ..vs.. 1. Tamilarasi 2. Sevanthi 3. Ayaponnu ..Respondents in both Appeals/ Plaintiff and Defendants 1 and 2 Second Appeals filed under section 100 of Civil Procedure Code, against the common judgment and decree dated 31.07.2007 made in A.S.Nos.35 and 36 of 2006 on the file of Sub Court, Mettur, reversing the common judgment and decrees dated 31.10.2006 made in O.S.No.128 and 132 of 2004 on the file of District Munsif-cum-Judicial Magistrate Court, Omalur. For Appellants : Mr.S.Parthasarathy, Senior Counsel for Mr.S.Vijayan For Respondents : Mr.M.S.Krishnan, Senior Counsel for Mr.N.Senthil Kumar COMMON JUDGMENT Defendants 4 and 5 in O.S.No.128 of 2004, who are the plaintiffs in O.S.No.132 of 2004 on the file of District Munsif-cum-Judicial Magistrate Court, Omalur, have filed the present second appeals, aggrieved over the common judgment and decrees dated 31.07.2007 passed by the learned Subordinate Judge, Mettur in A.S.Nos.35 and 36 of 2006, reversing the common judgment and decrees passed by the trial court in both the suits. 2. The 1st respondent herein, viz., Tamilarasi is the plaintiff in O.S.No.128 of 2004 and she filed the suit against respondents 2 and 3, their mother deceased Iythal and the appellants as the defendants for https://hcservices.ecourts.gov.in/hcservices/ a declaration of her title over the suit property, permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property, a declaration that the cancellation deed dated 20.02.1996 and the two sale deeds dated 29.11.1996 and another two sale deeds dated 16.06.1997 are not true and valid and they would not bind the plaintiff. 3. The appellants herein, viz., K.A.Shanmugam and K.Sengodan filed O.S.No.132 of 2004 against the respondents herein and the deceased Iythal as the defendants for a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. For convenience, the parties are hereafter referred to as per their ranking before the trial court in O.S.No.128 of 2004. 4. The case of the plaintiff in O.S.No.128 of 2004, who is arrayed as the 1st defendant in O.S.No.132 of 2004, in brief, is as follows: (a) The plaintiff Tamilarasi and defendants 1 and 2, viz., Sevanthi and Ayaponnu are the sisters and the 3rd defendant Iythal is their mother. The plaintiff is the widow and has got two minor daughters and one minor son and her husband died about 8 years back in the accident. The suit property originally belonged to Iythal, who executed a registered gift settlement in respect of the suit property in favour of the plaintiff on 23.06.1994 and since then, the plaintiff is the absolute owner of the suit property. The patta for the suit property has been transferred in the name of the plaintiff by the revenue authorities and the kist has been paid by the plaintiff for the suit property. Due to personal enmity, defendants 1 and 2 attempted to trespass into the suit property on 31.12.1996 and the same was prevented by the plaintiff. Subsequently, the plaintiff came to know that her mother cancelled the settlement deed dated 23.06.1994 executed in her favour and thereafter, executed two sale deeds dated 29.11.1996 in favour of defendants 1 and 2 in respect of the suit property, who, in turn, sold the same to defendants 4 and 5 (appellants) by executing two sale deeds dated 16.06.1997. The cancellation of the settlement deed and the sale deeds are not valid and the defendants are not entitled to get any right, title or interest over the suit property. Hence, the plaintiff filed the suit for the reliefs stated supra. (b) The case of defendants 1 and 2 in O.S.No.128 of 2004, who are arrayed as defendants 3 and 4 in O.S.No.132 of 2004 is that the settlement deed executed in favour of the plaintiff was not acted upon; however, subsequently by cancellation deed, their mother had revoked the settlement deed to the knowledge of the plaintiff and executed two sale deeds in favour of defendants 1 and 2 on 29.11.1996 and put them in separate possession on the date of sale and from that date, only they were in possession of the properties purchased by https://hcservices.ecourts.gov.in/hcservices/ them on their own right. Hence, the plaintiff had no right whatsoever in the suit property. Though the plaintiff had a knowledge about the revocation deed, she obtained patta in her name falsely in respect of the suit property and thereafter, on appeal, the patta was transferred in favour of them. (c) According to the 3rd defendant in O.S.No.128 of 2004, who is arrayed as 2nd defendant in O.S.No.132 of 2004 that she admitted the execution of the settlement deed in favour of the plaintiff; but thereafter, she cancelled the settlement deed under a registered revocation deed dated 20.02.1996. Thereafter, this defendant retained 1/3rd share towards her share and sold 2/3rd share to her daughters namely, defendants 1 and 2 by way of two sale deeds and patta was also transferred in their name. Thereafter, defendants 1 and 2 sold their portion to defendants 4 and 5. (d) The case of defendants 4 and 5 in O.S.No.128 of 2004, who are the plaintiffs in O.S.No.132 of 2004, is that originally the suit property belonged to the 3rd defendant and she executed a registered settlement deed in favour of the plaintiff and defendants 1 and 2 on 23.06.1994. That settlement deed was not acted upon and hence, the 3rd defendant executed a registered cancellation deed on 20.02.1996, revoking the earlier settlement deed and since then, the 3rd defendant alone was in possession and enjoyment of the suit property. Thereafter, the 3rd defendant, after retaining her 1/3rd share, sold 2/3rd share to defendants 1 and 2 by way of two sale deeds on 29.11.1996. These defendants purchased that portion of the property from defendants 1 and 2 on 16.06.1997 and from the date of purchase, defendants 4 and 5 are the absolute owners and are in possession and enjoyment of the same. Hence, the plaintiff is not entitled to get any relief and the suit is liable to be dismissed. 5. On the said pleadings, the trial court framed necessary issues and tried both suits together and conducted a joint trial and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-22 were marked and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to B-17 were marked. After considering the entire materials, the trial court dismissed the suit O.S.No.128 of 2004 and decreed the suit in O.S.No.132 of 2004. Aggrieved over the said finding, the plaintiff filed two appeals in A.S.Nos.35 and 36 of 2006 before the Sub Court, Mettur and the lower appellate court has reversed the finding of the trial court and allowed both the appeals. Being aggrieved, defendants 4 and 5 have filed the present second appeals. 6. At the time of admission of both second appeals, this Court has framed the following substantial question of law for consideration: https://hcservices.ecourts.gov.in/hcservices/ In the absence of evidence and proof of acceptance of the gift deed and taking possession in pursuance thereof, is the lower appellate court correct and justified in holding that the gift deed is true and valid and in the absence of payment of necessary and proper court fee on the reliefs claimed, is the lower appellate court correct and justified in granting the declaratory relief and the consequential relief ? 7. Learned Senior Counsel for defendants 4 and 5 (the appellants) submitted that though a settlement deed was executed by Iythal, in favour of her daughter, the plaintiff on 23.06.1994, possession of the property was never handed over to the plaintiff and the patta also stood in the name of Iythal, which fact would show that the settlement deed was never acted upon. But, subsequently the mother of the plaintiff had cancelled the settlement deed by revocation deed dated 20.02.1996. The certified copy of the such deed was marked as Ex.B-1 on the side of the defendants. Though the plaintiff had stated in her plaint that patta was transferred in her name and she was paying kist in respect of the suit property, actually the kist receipts stood only in the name of her mother Iythal. In fact, after the cancellation of settlement deed, the mother Iythal executed two sale deeds in favour of her two other daughters, namely, defendants 1 and 2 by selling 2/3rd share in the property and retaining 1/3rd share for her. Thereafter, defendants 1 and 2 and the mother had sold the properties by two different sale deeds dated 16.06.1997 in favour of defendants 4 and 5 and patta was also transferred in their name. The trial court, by considering all these aspects, dismissed the suit filed by the plaintiff, after coming to a conclusion that though the settlement deed was executed by the mother in favour of the plaintiff, possession was never handed over to the plaintiff and hence, the settlement deed was not acted upon. But the lower appellate court, while setting aside the judgment and decree of the trial court, has erroneously placed reliance on the evidence adduced by the plaintiff as P.W.1 that she was in possession and enjoyment of the suit property pursuant to the settlement deed executed by her mother and she had also entered into an agreement with one Tamilarasu seven years before the date of filing of the suit and presently the said Tamilarasu is in possession of the suit property and in support of the same, the plaintiff has filed Ex.A-21, possession certificate issued by the Tahsildar dated 15.10.1999. 8. Attacking the reliance placed by the lower appellate court on the evidence adduced by P.W.1 and Ex.A-21, the learned senior counsel for the appellant further submitted that absolutely, there is no pleading either in the plaint filed by the plaintiff or in the written statement filed by her in O.S.No.132 of 2004 that she had entered into an agreement with one Tamilarasu and pursuant to the same, he was put in possession of the suit property. When there is no pleading, the lower appellate court ought not to have placed reliance https://hcservices.ecourts.gov.in/hcservices/ on the said piece of evidence adduced by P.W.1 and Ex.A-21. Therefore, the finding arrived at by the lower appellate court, based on the said piece of evidence of P.W.1 and Ex.A-21, is liable to be set aside. 9. Learned senior counsel for the appellant further submitted that the elementary fact that has to be proved by the plaintiff is that pursuant to the settlement deed, possession was delivered to her. Absolutely, there is no evidence to show that possession was delivered in favour of the plaintiff by her mother. On the other hand, the patta and kist receipts stood only in the name of the mother. In support of this contention, the learned senior counsel has relied on the decisions reported in CHENNUPATI VENKATASUBBAMMA . vs. NELLURI NARAYANASWAMI (AIR 1954 MAD 215), JAMUNA BAI .vs. M.A.ANUSUYA AND OTHERS (2001-2-L.W.276) and MUTHY VELU .vs. G.KANNAMMAL AND OTHERS (2001-2-L.W.400) and submitted that the finding of the lower appellate court in both the suits is liable to be set aside since the same is not based on any legal evidence. 10. Per contra, the learned Senior Counsel for the plaintiff (1st respondent herein) submitted that it is incorrect to state that possession of the property was not handed over to the plaintiff by her mother pursuant to the settlement deed dated 23.06.1994. In this regard, by inviting the attention of this Court to the contents of the settlement deed, the learned senior counsel submitted that in the settlement deed, it has been specifically mentioned that on the date of execution of the settlement deed, the possession of the properties had been given to the plaintiff. Pursuant to the settlement deed, possession has also been taken over by the plaintiff and she is in enjoyment of the suit property. Since the mother Iythal was staying along with the settlee, i.e.the plaintiff in the same property, there is no immediate need for the plaintiff to change the patta and kist receipts in her name immediately. Therefore, since the plaintiff did not take immediate steps to get the transfer of patta in her name, it does not mean that she is not in possession of the suit property. In fact, when the plaintiff filed a suit in O.S.4 of 1997 (subsequently re-numbered as O.S.No.128 of 2004), she was not aware of the cancellation of the settlement deed dated 20.02.1996 and in fact, the said suit was filed only for a bare injunction. Subsequently, when she came to know that the settlement deed was cancelled by cancellation deed 20.02.1996, she filed an application to amend the plaint by inserting the declaration prayer. In fact, patta has been transferred prior to the filing of the suit itself and it is marked as Ex.A-7 on the side of the plaintiff. House tax receipts also transferred in the name of the plaintiff. Therefore, it is incorrect to state that the settlement deed has never been acted upon. The very fact that the original settlement deed Ex.A-1 was marked on the side of the plaintiff itself would show that the gift deed was handed over to the donee by donor and that the gift was accepted. In support of this contention, the learned senior counsel has relied on the https://hcservices.ecourts.gov.in/hcservices/ decisions reported in KAMAKSHI AMMAL .vs. RAJALAKSHMI (AIR 1995 MADRAS 415), T.V.KALYANASUNDARAM PILLAI .vs. KARUPPA MOOPANAR (AIR 1927 PRIVY COUNCIL 42), R.KUMARASAMY KOUNDER .vs. V.EZHUMALAI KOUNDER (1996(II) CTC 150), THIAGARAJAN, S .vs. SARASWATHY KITTU (1999 (III) CTC 217), N.SUBRAMANIAN .vs. THANJIAMMAL AND ANOTHER ((2008) 1 MLJ 227), ASOKAN .vs. LAKSHMIKUTTY ((2008) 1 MLJ 193 (SC), SANJUKTA RAY . vs. BIMELENDU MOHANTY (AIR 1997 ORISSA 131). 11. Learned senior counsel for the plaintiff further submitted that the proper person to speak about the cancellation of the settlement deed is the mother of the plaintiff, viz., Iythal. But she was not examined before the trial court. Therefore, an adverse inference could be drawn for non-examination of the mother of the plaintiff. In support of the contentions, the learned senior counsel has relied upon the decisions reported in MAN KAUR (DEAD) BY LRS. . vs. HARTAR SINGH SANGHA ((2010) 10 SCC 512), T.TAMILARASAN .vs. AROKKIASAMY AND OTHERS (2007(3) CTC 59) and N.B.SUBRAHMANYAM .vs. A.HYMAVATHI (AIR 1996 SC 2220). The learned senior counsel further submitted that on the side of the defendants, the original revocation deed was not marked before the trial court and only the certified copy of the revocation deed was marked as Ex.B-1 and it is only a secondary evidence and no proper explanation was given by the defendants for not producing the original revocation settlement deed. The learned senior counsel further submitted that the lower appellate court, by considering all these aspects, has correctly set aside the judgment and decree of the trial court and hence, no infirmity could be seen in the common judgment and decrees of the appellate court. 12. By way of reply, the learned senior counsel for defendants 4 and 5(the appellants) submitted that before the trial court, no objection was raised by the plaintiff for non-production of original revocation deed. Under such circumstances, now at the appellate stage, she cannot raise this plea. In this regard, the learned senior counsel relied on the decisions reported in DAYAMATHI BAI .vs. K.M.SHAFFI ((2004) 7 SCC 107) and HEMENDRA RASIKLAL GHIA, ETC., .vs. SUBODH MODY, ETC., (2008(5) CTC 577) and submitted that the kist receipts were transferred in the name of the plaintiff only subsequent to the filing of the suit and no mutation was made immediately after the settlement deed. Therefore, no reliance could be placed on the house tax receipts marked by the plaintiff as Exs.A- 14, A-16 and A-17. Apart from that, since the plaintiff was living along with her mother in the same property jointly, mere possession of the property cannot be taken as unequivocal factor to prove the case of the plaintiff that the settlement deed was acted upon. In support of this contention, the learned senior counsel has relied on the decisions reported in BANCHA BHOL .vs. SARIA BEWA (AIR 1973 ORISSA 18) and RAM CGABDER ORASAD .vs. SITAL PRASAD (AIR (35) 1948 PATNA 130). https://hcservices.ecourts.gov.in/hcservices/ 13. This court has paid anxious consideration on the submissions made by the learned counsel on either side and perused the materials available on record. 14. In view of the said arguments advanced by both sides, the questions that arise for consideration are, (1) Whether the settlement deed has been acted upon ? (2) Whether the revocation of settlement deed is valid in the eye of law ? 15. With regard to the first question, it is the submission of the learned senior counsel for defendants 4 and 5 that unless possession is handed over pursuant to the settlement deed Ex.A-1, it cannot be said that the settlement deed was acted upon. Even after the execution of the settlement deed dated 23.06.1994, no mutation was effected in the revenue records; patta stood only in the name of the mother of the plaintiff Iythal and kist was also paid in the name of Iythal. Hence, according to them, since possession is not handed over, it could be safely presumed that the settlement deed was not acted upon. In support of this contention, the learned counsel relied on the decisions reported in AIR 1954 MADRAS 215, 2001-2-L.W.276 and 2001-2-L.W.400 (supra) wherein it has been held that there must be a proof of delivery and acceptance of possession of the gifted property and submitted that unless the gift deed is executed in the manner indicated under section 122 of the Transfer of Property Act and unless there is a proof of delivery of possession and acceptance of possession of the gifted property, it cannot be said that the settlement deed was acted upon and there is no force in the claim made by the plaintiff that the settlement deed has been acted upon. 16. Per contra, it is the submission of the learned senior counsel for the plaintiff that even on the date of execution of the settlement deed itself, the plaintiff was put in possession, which could be evidenced that the settlement would operate. In support of this contention, the learned senior counsel has also invited the attention of this Court to the contents of the settlement deed and the recitals in the deed do indicate thus: "///// ePh; vd; Fkhuj;jp MdgoahYk; vd;fzth; fhyk;Md ehs;Kjy;. Vdf;F xj;jhirahapUe;Jk; vd; brhw;go ele;J vdf;F ntz;oa rfy rtul;rizfSk; bra;J mz;zt!;jpuk; bfhLj;J Mjhpj;J tUtjhYk; ePa[k; fztid ,He;J vt;tpj brhj;Jf;fSk; , y;yhky; VH;ik !;jpjpapy; ,Ue;J tUtjhYk; cd; gpw;fhy eyid mDrhpj;J ckf;F Xh; Mjut [ bra;J itf;fntz;Lbkd;w vd; beLehisa tpUg;gj;ij epiwntw;Wk; bghUl;Lk; vdf;F 1972k; tUlk; ork;gh; khjk; 22k;njjpapy; Vw;gl;l fpuag;gj;jpug;go ghj;jpag;gl;l fPH;f;fz;l brhj;Jf;fis ckf;F brl;oy;bkz;l; vGjp itj;J brhj;Jf;fisa[k; ,d;nw cd; RthjPdk; bra;Jtpl;nld;////@/ 17. On going through the said contents, this Court is of the view that the plaintiff was taking care of the mother after the demise of her father and out of her own volition, the mother executed https://hcservices.ecourts.gov.in/hcservices/ the Will without stipulating any condition. Now, it could be appropriate to see some of the judgments relied on by the learned senior counsel for the plaintiff as to even if there is any recital in a settlement deed that possession has been handed over, that is sufficient to come to a conclusion that settlement is acted upon. In AIR 1997 ORISSA 131 (supra), it has been held as follows: "7. ..... Specific recital in the deed that possession has been handed over to the donee. When such recital is there, presumption arose that possession has been handed over to the donee...." 18. In AIR 1927 PRIVY COUNCIL 42 (supra), it has been held as follows: "..... When the instrument of gift has been handed by the donor to the donee and accepted by him, the former has done everything in his power to complete the donation an to make it effective Registration does not depend upon his consent, but is the act of an officer appointed by law...." 19. In 1999 (III) CTC 217 (supra), this Court has held as follows: "9. Under section 126 of the Transfer of Property Act, a gift can be suspended or revoked by the donor only in the stated circumstances therein. One of the circumstances is that on the happening of any event, which does not depend on the will of the donor, a gift shall be suspended or revoked. In this context I perused Ex.A.1., settlement deed. It is a very simple settlement deed executed out of sheer love and affection which the second defendant had towards her daughter/plaintiff. No reservation had been made in this settlement deed for revocation of the same on the happening of any specific event, which was not within the control of the second defendant. Therefore this ground to have the settlement deed revoked, is not available at all. Section 126 of the Transfer of Property Act also provides for revocation of the settlement deed "on any ground on which the contract can be rescinded except the ground of want of or failure of consideration." None of the grounds available under the Contract Act namely, undue influence, coercion, misrepresentation or fraud, are neither pleaded nor established. The only plea available in the written statement is that under the pretext of taking the second defendant for treatment of her eye at Madras, the settlement deed came to be executed and registered at Madras. Even in his oral evidence, the first defendant as D.W.1 would state that at or about the time when Ex.A.1 came to be executed, she was in the house of the plaintiff and she was ailing and she was there to undergo eye surgery. When he asked his mother, she said that she was taken to Madras and there her signature was obtained in a document. Beyond this there is no other material available in the oral evidence, which may be taken into account to decide https://hcservices.ecourts.gov.in/hcservices/ the truth or otherwise of the settlement deed. On top of this, the second defendant pleaded and gave evidence that she executed the settlement deed in favour of the plaintiff out of her own volition and will and for the love and affection she had for the plaintiff. In my opinion the stand of the second defendant before the court, both in the pleading and in the oral evidence, clearly demolish the case of the first defendant that Ex.A.1 was not duly executed by the second defendant out of her own free will and volition and it was brought about only under suspicious circumstances. Under these circumstances, I have no hesitation to hold that Ex.A.1 is not tainted with any illegality and it is true, valid and binding. I also find that the second defendant has no legal authority to revoke the settlement deed in favour of the plaintiff, in view of the absence of grounds as enumerated under section 126 of the Transfer of Property Act". 20. In AIR 1985 MADRAS 415 (supra), a Division Bench of this Court has held as follows: "21. Further, paragraphs 3 and 4 of the plaint specifically says that Pavunambal accepted the settlement. Further, the plaint also says that the original settlement deeds are also filed along with the plaint. As against this particular allegation regarding the original settlement deeds being filed by the plaintiff, the written statement only states that the original settlement deeds were always with the 7th defendant and they were never in the custody of Pavunambal or plaintiff or defendants 1 to 6. In other words, there was no allegation at all in the written statement that the original settlement deeds were stolen by the plaintiff's father (1st defendant) from