IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.11.2011 C O R A M THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.492 of 1997 Kasiammal ... Appellant/Appellant/ Defendant Vs. 1. Konneri(died) 2. Ayyam Pillai 3. Adimoolam 4. Arumugam 5. Paraman 6. Ayyammal (RR2 to 6 brought on record as L.Rs. of the deceased sole Respondent vide order dated 27.07.2010 made in C.M.P. Nos.825 to 827 of 2007) ... Respondent/Respondent /Plaintiff Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 29.02.1996 passed in A.S.No.72 of 1994 on the file of the Learned Principal District Judge, Villupuram, confirming the Judgment and Decree dated 29.10.1993 passed in O.S.No.556 of 1988, on the file of the Court of the Additional District Munsif of Kallakurichi. For Appellant : Mr.S.Udayakumar For Respondents : No Appearance *** J U D G M E N T The Appellant/Defendant has filed the present Second Appeal before this Court as against the Judgment and Decree dated 29.02.1996 in A.S.No.72 of 1994 passed by the Learned Principal District Judge, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 2. The First Appellate Court viz., the Learned Principal District Judge, Villupuram, while passing the Judgment in A.S.No.72 of 1994 has among other things observed that " in view of the fact that Ex.B.1 Settlement Deed, dated 24.08.1987 is an invalid one and on that basis the obtaining of Exs.B.3 to B.6 by the Appellant/Defendant will not be useful to establish that the suit property belonged to the Appellant/Defendant and has further held that on the basis of the Settlement Deed, the Appellant/Defendant cannot derive any right over the suit property and upheld the decision of the trial Court that the Respondent/Plaintiff is entitled to claim the relief of declaration in respect of the suit property and also the relief of permanent injunction and dismissed the Appeal, with costs." 3. Before the trial Court, in the main suit 1 to 4 issues and one additional issue have been framed for adjudication. On the side of the Respondent/Plaintiff, witnesses P.W.1 to P.W.4 have been examined and Exs.A.1 to A.4 have been marked. On the side of the Appellant/Defendant, the witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.6 have been marked. 4. Earlier, the trial Court viz., the Learned Additional District Munsif, Kallakurichi, while delivering the Judgment in O.S.No.556 of 1988, dated 29.10.1993 has inter alia observed that based on Ex.B.1 Settlement Deed dated 24.08.1987, the Appellant/Defendant has no right in respect of the suit property and that the suit filed by the Respondent/Plaintiff is maintainable and that Ex.B.1 Settlement Deed dated 24.08.1987 is not a legally valid one and consequently, decreed the suit with costs. 5. Feeling aggrieved against the Judgment and Decree of the trial Court viz., the Learned Additional District Munsif, Kallakurichi, in O.S.No.556 of 1988, dated 29.10.1993, the Appellant/Defendant has preferred the First Appeal A.S.No.72 of 1994 on the file of the Learned Principal District Judge, Villupuram. 6. The First Appellate Court viz., the Learned Principal District Judge, Villupuram, has dismissed the First Appeal A.S.No.72 of 1994 on 29.02.1996, thereby affirming the Judgment and Decree passed by the trial Court in O.S.No.556 of 1988, dated 29.10.1993. 7. Being dissatisfied by the Judgment and Decree of the First Appellate Court in A.S.No. A.S.No.72 of 1994 on 29.02.1996, the Appellant/Defendant has focussed the instant Second Appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 8. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed by this Court for determination. (1) Whether the Ex.B.1 Settlement Deed executed in favour of the Appellant is valid? (2) Whether the sale deed obtained by Velan under Ex.B.2 empowers him to convey the title to the Appellant by means of a registered settlement under Ex.B.1 in favour of the Appellant? (3) Whether the suit filed by the Plaintiff for mere declaration and injunction is maintainable in law, without challenging the settlement deed under Ex.B.1 in favour of the Appellant?" 9. The Contentions, Discussions and Finding on Point Nos.1 and 2: The Learned Counsel for the Appellant/ Defendant submits that the First Appellate Court viz., the Principal District Judge, Villupuram has committed an error in affirming the Judgment and Decree of the trial Court in O.S.No.556 of 1988 dated 29.10.1993 and further that it has failed to appreciate the execution of Ex.B.1 Settlement Deed dated 24.08.1987. (ii) The Learned Counsel for the Appellant/Defendant contends that the First Appellate Court has failed to take into account Ex.B.2 Sale Deed dated 12.05.1955 executed by Chellammal in favour of Velan viz., the Appellant/Defendant's Father-in-law. (iii) The Learned Counsel for the Appellant/ Defendant projects an argument that the First Appellate Court viz., the Learned Principal District Judge, Villupuram has not given a credential value in respect of Ex.B.2 Sale Deed dated 12.05.1955, which is in favour of one Velan and as a matter of fact, the said Velan in turn has settled the property in favour of his Daughter-in-law i.e. the Appellant/ Defendant and this has resulted in a serious miscarriage of justice. (iv) It is the evidence of P.W.1 (Respondent/ Plaintiff) that the suit property belonged to him and that he received the said property as per partition between himself and his brother Velan before 40 years ago and that he is in enjoyment of the suit property for the past 40 years and that Ex.A.1 Series ( 4 in numbers) are the Kist receipts paid by him in respect of the suit property and that a patta has been given in respect of the suit property in his name and that https://hcservices.ecourts.gov.in/hcservices/ he is in enjoyment of the suit property. (v) The further evidence of P.W.1 is to the effect that Ex.A.2 is the Chitta copy in respect of the suit property and earlier in respect of the suit property, there has been a patta in his name and his brother's name and subsequently, a separate patta has been given in his favour and Ex.A.3 is the Chitta copy exclusively in his name and after filing of the suit, in the year 1990 patta has been transferred in the name of the Appellant/Defendant in respect of the suit property and he has filed his objection in the Taluk Office and that the suit property is in his possession and the Appellant/ Defendant has no right in the suit property. (vi) P.W.1 in his cross examination has deposed that Ex.A.5 Adangal Copy in respect of the suit property for Fasli 1395 is in the name of Velan and thereafter, the suit property has been transferred in his name and Ex.A.6 Patta book has been given to him and the said Velan prior to partition. (vii) It is the evidence of P.W.2 that the total extent of 70 cents of the suit property has been enjoyed by the Respondent/Plaintiff and at any point of time, the Appellant/Defendant has not in enjoyment of the suit property and that the Respondent/Plaintiff has been in enjoyment of the suit property for the past 15 years and he does not know as to how the Respondent/Plaintiff is entitled to the claim of the suit property. (viii) The evidence of P.W.3 is to the effect that the suit property, measuring an extent of 70 cents has been cultivated by the Respondent/Plaintiff and the Appellant/Defendant has not cultivated the suit property at any point of time. (ix) P.W.4 in his evidence has stated that he has the properties in the said village and he knows the Respondent/Plaintiff and his brother Velan and that as per Ex.A.4 Sale Deed dated 16.07.1973, he has sold the land situated to the South of the lands belonging to the Respondent/Plaintiff and Velan and in Ex.A.4 property detail, he has mentioned the same and that the Respondent/Plaintiff is in enjoyment of the suit property. (x) D.W.1 (Appellant/Defendant) in her evidence has stated that the suit property belonged to her and her father-in-law Velan, in respect of the suit property, has executed a Settlement Deed dated 24.08.1987 to her and that Settlement Deed is Ex.B.1 and further that she has accepted Ex.B.1 Settlement Deed and she is in enjoyment of the property mentioned in the sale deed and that the suit property https://hcservices.ecourts.gov.in/hcservices/ has been purchased by her Father-in-law Velan by means of Ex.B.2 Sale Deed dated 12.05.1955 and after the said purchase, her Father-in-law has been in enjoyment of the suit property and Ex.B.3 is the patta granted under U.D.R. scheme in her name in respect of the suit property and Ex.B.4 Series (7 in numbers) are the Kist receipts paid by her in respect of the suit property and Ex.B.5 is the Thandal receipt in respect of the suit property bearing Old Patta No.145 and in the suit property, the Respondent/Plaintiff has no manner of right. (xi) Also, it is the evidence of D.W.1 that after the partition effected by the Respondent/Plaintiff and her father-in-law, her father-in-law as per Ex.B.2 Sale Deed dated 12.05.1955 has purchased the suit property and as such, the Respondent/Plaintiff has no right in the suit property. (xii) D.W.2 in his evidence has stated that Velan has died two years before and the said Velan has executed a Settlement Deed in favour of the Appellant/Defendant in respect of the suit property as Ex.B.1 Settlement Deed dated 24.08.1987 and he has signed as witness in that Settlement Deed and further, in Ex.B.1 Settlement Deed dated 24.08.1987, one Mari has also signed as witness and Ex.B.1 Settlement Deed dated 24.08.1987 is a true one. (xiii) In the instant case on hand, P.W.2 (in cross examination) in his evidence has deposed that the Respondent/Plaintiff is enjoying the suit property for the past 15 years. Even P.W.3 has, in his evidence, deposed that the Respondent/Plaintiff is in enjoyment of the suit property by means of cultivation continuously and that the Appellant/ Defendant has not cultivated the suit property at any point of time. Ex.A.5 is the Adangal in respect of the suit property for the Fasli 1395 to 1399, which is in the name of Velan for Fasli 1395 and in respect of Fasli 1396 to 1398, it is in the name of the Respondent/Plaintiff and in respect of Fasli 1399, originally it has been in the name of the Respondent/Plaintiff and later it has been changed in the name of the Appellant/Defendant as per proceedings in RTR.661/89 dated 08.01.90. (xiv) Ex.A.7 is the U.D.R. Patta which stands in the name of the Respondent/Plaintiff in respect of the suit property. Ex.A.8 Kist receipt is in the name of the Respondent/Plaintiff for Fasli 1396. Ex.A.2 Chitta bearing Patta No.186 stands in the name of the Respondent/Plaintiff. Therefore, it is candidly clear that after the partition being effected between the Respondent/Plaintiff and Velan, the suit property has been given to the Respondent/Plaintiff and that she is in enjoyment of the suit property continuously. https://hcservices.ecourts.gov.in/hcservices/ (xv) Coming to the aspect of whether Ex.B.1 Settlement Deed dated 24.08.1987 executed by Velan in favour of the Appellant/Defendant has come into force, it is to be pointed out that the recitals in the Settlement Deed mentioned that Velan has executed the Settlement Deed in favour of the Appellant/Defendant on account of his love and affection on her etc. (xvi) At this stage, it is to be noted that in Ex.A.9 Certified copy of Decree in O.S.No.553 of 1988 dated 07.08.1989 passed by the Learned Principal District Munsif, Kallakurichi, shows that Velan's Son Kaliyan has figured as Plaintiff in the suit and the Appellant/Defendant(Kasiammal) has been arrayed as Defendant, in which Velan's Son Kaliyan's right in the suit property has been declared by the Court. Also, the Appellant/Defendant has been restrained by means of permanent injunction in respect of the land measuring 0.10 cents in Wet R.S.No.223/8 in Veeracholapuram Village, Kallakuruchi Taluk. The suit O.S.No.553 of 1988, on the file of the District Munsif Court, Kallakurichi, has been filed on 27.07.1988, on which date O.S.No.556 of 1988 has been filed by the Respondent/Plaintiff (Konneri) against the Appellant/Defendant (Kasiammal). Although, Ex.A.9 Decree in O.S.No.553 of 1988 is an Exparte one, the same has not been set aside. (xvii) In Ex.B.1 Settlement Deed 24.08.1987, Velan has mentioned that he has settled the properties purchased by him in his name in favour of the Appellant/Defendant. Ex.B.2 is the Sale Deed dated 12.05.1955, executed by Chellammal and his two sons Thangarasu and Murugesan in favour of the said Velan in respect of the Punja land bearing Survey No.114/10 measuring an extent of 0.70 cents. It is not established in the present case as to how Chellammal and two others, mentioned in Ex.B.2 Sale Deed dated 12.05.1955, have got the source of title in respect of Survey No.114/10 measuring an extent of 0.70 cents. When the said Velan has no right in the suit property and when no steps have been taken to set aside the Exparte decree Ex.A.9 dated 07.08.1989 in O.S.No.553 of 1988, it is held by this Court that Ex.B.1 Settlement Deed dated 24.08.1987 has been executed by the said Velan, who has no right in the suit property and based on Ex.B.1 Settlement Deed dated 24.08.1987, the Appellant/Defendant cannot derive any right, tile or interest and accordingly, the Substantial Questions of Law Nos.1 and 2 are so answered by this Court against the Appellant/Defendant and in favour of the Respondent/Plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 10. The Contentions, Discussions and Finding on Point No.3: The Respondent/Plaintiff has filed the suit in O.S.No.556 of 1988 on the file of the District Munsif Court, Kallakurichi, seeking (1) the relief of declaration of his title pertaining to the suit property and (2) the relief of permanent injunction restraining the Defendant (Appellant) from interfering with the Respondent/Plaintiff's possession of the suit property. The Respondent/ Plaintiff has valued the suit for the relief of declaration and injunction at Rs.300/- and has paid a Court fee of Rs.23/- as per the Tamil Nadu Court Fees and Suits Valuation Act, 1955. (ii) The Appellant/Defendant in her written statement before the trial Court has taken a stand that the suit property has not fallen to the share of the Respondent/Plaintiff and that the Respondent/Plaintiff has not enjoyed the suit property at any point of time. Furthermore, Velan has executed a settlement deed in favour of the Appellant/Defendant, in respect of the property belonging to him. (iii) It is to be pointed out that a Court of Law in determining the issue of Court fee, ought to look into the allegations made in the plaint to find out as to the substantive relief that has been asked for. The skilful drafting of the plaint should not be allowed to stand in the way of a Court of Law looking at the substance of the relief sought for. It is true that a Court of Law is to act with a care, circumspection besides being vigilant, with a view to prevent the tendency of the litigant to undervalue the subject matter of the suit. Moreover, a Court of Law shall take into account that the revenue of the State should not be lost by means of an undervaluation, as opined by this Court. (iv) As a matter of fact, the Respondent/ Plaintiff in O.S.No.556 of 1988, on the file of the trail Court, has only sought the relief of declaration of his title to the suit property and the relief of permanent injunction. The Respondent/Plaintiff has not filed the suit for cancellation of Ex.B.1 Settlement Deed dated 24.08.1987. Only when the suit is filed as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 with a prayer to cancel the settlement deed or with a prayer to set aside the settlement deed, the value of the property on the date of filing the suit along is a guiding factor, in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ (v) In the present case, the plea of the Respondent/Plaintiff is that in an oral partition arrangement that has taken place between him and his elder brother Velan about 35 years ago, the suit property has fallen to himself and then onwards, he is in possession and enjoyment of the suit property. Already this Court has held that the Respondent/Plaintiff has been in possession and enjoyment of the suit property. Without any semblance of right in the suit property, the brother of the Respondent/Plaintiff Velan has executed Ex.B.1 Settlement Deed dated 24.08.1987 in favour of the Appellant/Defendant. Inasmuch as, the Respondent/ Plaintiff has only sought the relief of declaration and injunction in the main suit in O.S.No.556 of 1988, on the file of the trial Court, the same is maintainable and in a suit for declaration and injunction filed by the Respondent/Plaintiff, this Court can go into the validity of Ex.B.1 Settlement Deed dated 24.08.1987 incidentally and for challenging Ex.B.1 Settlement Deed dated 24.08.1987, there is no need to file a separate suit. Also, when the title of the Respondent/Plaintiff to the suit property is in dispute, the suit filed by the Respondent/Plaintiff seeking the relief of declaration of his title in respect of the suit property and for permanent injunction are the just and appropriate remedy before a concerned Court of Law, in the considered opinion of this Court. Viewed in that perspective, the suit filed by the Respondent/Plaintiff seeking the relief of declaration and injunction is legally valid and maintainable in law. Accordingly, the point is so answered in favour of the Respondent/Plaintiff. 11. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court viz., the Principal District Judge, Villupuram in A.S.No.72 of 1994 dated 29.02.1996 and the Judgment and Decree dated 29.10.1993 in O.S.No.556 of 1988 on the file of the learned Additional District Munsif, Kallakurichi are confirmed by this Court for the reasons assigned in this Appeal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssl To 1. The Principal District Judge, Villupuram. 2. The Additional District Munsif, Kallakurichi. 3. The Section Officer, VR Section, High Court, Madras. 1 CC to Mr.S.Udayakumar. Advocate, SR.67682 S.A.No.492 of 1997 NM(CO) SRA(16/12/2011) https://hcservices.ecourts.gov.in/hcservices/