IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.8.2008 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN Second Appeal No.156 of 1998 Anjalai Ammal W/o.Ram Mohan .. Appellant/Defendant -Vs- 1.Duraisamy 2.Thangavel .. Respondents/Plaintiffs Second appeal is filed u/s 100 of C.P.C against the judgment and decree dated 17.10.1996 passed in A.S.No.93 of 1996 on the file of Subordinate Judge, Kallakurichi confirming the judgment and decree dated 22.1.1993 made in O.S.No.263 of 1988 on the file of Additional District Munsif, Kallakurichi. For appellant : Mrs.Mythili Suresh for M/s.Sarvabhauman Associates For respondents : Mr.R.Muralidharan JUDGMENT This second appeal is preferred against the judgment and decree, dated 17.10.1996, passed in A.S.No.93 of 1996 on the file of Subordinate Judge, Kallakurichi confirming the judgment and decree, dated 22.1.1993, made in O.S.No.263 of 1988 on the file of Additional District Munsif, Kallakurichi. The defendant is the appellant. 2. The respondents filed the suit seeking for a decree declaring their title to the suit properties and for permanent injunction restraining the defendant from interfering with the possession of the plaintiffs in the suit properties. https://hcservices.ecourts.gov.in/hcservices/ The case of the plaintiffs is that the first item of the suit properties was purchased by them from Chellammal by sale deed dated 26.10.1987 for consideration of Rs.17,780/- and they are in enjoyment of the same by paying taxes. The plaintiffs have further stated that they are in possession of both the items of the suit properties as owners and patta has been granted to them. According to the plaintiffs, the defendant has no right in the suit properties and unlawfully she is trying to interfere with the possession of the plaintiffs in the suit properties and hence they filed the suit. 3. The defendant in her written statement has stated that the sale deed dated 26.10.1987 is not true, valid and it is not supported by consideration since the vendor Chellammal had no title to the first item of the suit properties on the date of sale. According to the defendant, Chellammal settled item No.1 of the suit properties by Settlement deed dated 30.3.1984 in favour of the defendant and the defendant accepted the same and is in possession of the property by paying kist etc. It is further stated by the defendant that the above Settlement deed having come into force with regard to the first item of the suit property, the sale deed dated 26.10.1987 executed by Chellammal is not valid and the plaintiffs did not acquire any title by it. It is further stated by the defendant that the second item of the suit properties belonged to the father of the plaintiffs and the defendant and he died about 15 to 20 years prior to the suit and the defendant has a share in the above item along with the plaintiffs and they are in joint possession of the same. 4. The second plaintiff examined himself as P.W.1 and examined P.Ws.2 and 3 and marked Exs.A1 to A7 on their side and the defendant examined herself as D.W.1 and examined D.W.2 and marked Exs.B1 and B2 on her side. On a consideration of oral and documentary evidence, the Trial Court held that the plaintiffs acquired title to item No.1 of the suit properties by Ex.A1 sale deed, dated 26.10.1987 and they are in possession of the same and at the same time, the plaintiffs are having only right of share in item No.2 of the suit properties along with the defendant and however the plaintiffs are in possession of the second item and as such, they are entitled to decree of injunction alone with regard to second item and accordingly granted the decree. Aggrieved by the same, the defendant preferred appeal and the Appellate Court dismissed the appeal by confirming the judgment and decree of the Trial Court. Challenging the same, the defendant has preferred the present second appeal. For the sake of convenience, in this Judgment, the parties are referred to as arrayed in the suit. https://hcservices.ecourts.gov.in/hcservices/ 5. The following substantial questions of law have been framed at the time of admission of the second appeal:- " 1. Whether the requirements under Sections 122 and 123 of the Transfer of Property Act have been satisfied and when there is a valid gift and vesting of title under Ex.B1-gift deed whether the Courts below are correct in law in holding that Ex.A27-Revocation deed unilaterally revoking the validly executed gift deed is valid, that too, when the donor had not reserved any express power to revoke Ex.B1-gift deed. 2. Whether the lower appellate Court is right in law in holding that since revenue records stand in the name of donor and respondents, Ex.B1-gift deed in favour of the appellant is invalid? 3. When the appellant is the true owner of item 1 and when suit item 2 is admittedly co-owned property of appellant and respondents, whether the Courts below are right in law in granting decree for injunction? 6. The learned counsel for the appellant submits that the Courts below have failed to note that the recitals in Ex.B1 registered Settlement deed dated 30.3.1984 clearly shows that the possession of Item 1 of the suit properties had been handed over to the appellant/Donee and there was acceptance of the gift and it could not be revoked without reservation of the right for revocation and such a reservation was not found in the recitals and hence, Ex.A.7 Revocation deed dated 26.10.1987 is invalid document and the plaintiffs could not have acquired any title to Item 1 of the suit properties by Ex.A.1 registered Sale deed dated 26.10.1987. The learned counsel further contends that Item 2 of the suit properties is jointly owned by the plaintiffs and the defendant and the plaintiffs cannot seek for decree of injunction against the defendant, who is a co-owner of the property. In support of her submission, the learned counsel relies on the decisions of this Court in - (1) MURIKIPUDI ANKAMMA v.. TUMMALACHERUVU NARASAYYA AND OTHERS [AIR 1947 MADRAS 127]; (2) KASI AMMAL v.. VELLAI GOUNDER AND ANOTHER [1980(II) MLJ 232] ; and https://hcservices.ecourts.gov.in/hcservices/ (3) J.KUPPUSWAMI MUDALI AND OTHERS v.. MAHALINGAM [1997 (1) CTC 256]. 7. Per contra, the learned counsel for the respondents submits that the conclusion of the Courts below is based on material record and it is sustainable. 8. The defendant is the sister of the plaintiffs and it is not in dispute that Item 1 of the suit properties belonged to their mother Chellammal. The case of the plaintiffs is that they purchased Item 1 of the suit properties for a sale consideration of Rs.17,780/- from Chellammal by Ex.A.1 registered Sale deed dated 26.10.1987 and they are in possession and enjoyment of the property by paying the taxes. According to the defendant, her mother Chellammal executed Ex.B1 registered Settlement deed dated 30.3.1984 settling the first item of the suit properties on her and she accepted the same and is in possession thereof by paying kist. During the trial, the plaintiffs filed Ex.A7 Revocation deed dated 26.10.1987 executed by Chellammal revoking Ex.B1 Settlement deed dated 30.3.1984. It is relevant to note that Ex.A7 Revocation deed and Ex.A1 Sale deed came into existence on the same date, namely, on 26.10.1987. 9. Ex.B1 is the registered Settlement deed dated 30.3.1984 and one of the attestors by name P.Ramalingam was examined as D.W.2 and according to him, Chellammal executed Ex.B1 Settlement deed in their presence and they witnessed the same and the settlee/defendant accepted the gift and the document came to be registered. Ex.B1 recites thus: @vdf;F ghj;jpag;gl;l ,jpy; fz;l U:/13525/00 gjpK:d;whapuj;J m";R E}j;jp ,Ugj;jp m";R U:gha; kjpg;g[s;s brhj;ij ,e;j jhd brl;oy;bkz;l;L gj;jpuj;jpd;K:yk; ehd; cd; ngUf;F vGjp bfhLj;J ,e;j epy';fSf;Fs;s gl;lh Kjypa ahtw;W ghj;jpa';fis ,d;nw ,jd;K:yk; cd; ngUf;F khw;wpf;bfhLj;J ,jpy; fz;l epyj;ija[k; ,d;nw cd; RthjPdj;jpy; xg;g[f;bfhLj;J ,Uf;fpnwd;/ Mifahy; ePh;. ,JKjy; ,jpy; fz;l brhj;ij rh;t Rje;jpukhft[k; jhd tpf;fpua';fSf;F nahf;fpakhft[k; Mz;L mDgtpj;Jf; bfhs;st[k; ,e;j jhd brl;oy;bkz;il ehd; vf;fhuzj;ijf; bfhz;Lk; uj;J bra;tjpy;iy vd;W cWjp Twp vd; KG rk;kjj;Jld; vGjpf;bfhLj;j jhd brl;oy;bkz;L gj;jpuk;@ The above recital makes it clear that the settlement deed is unconditional and absolute gift in favour of the Settlee. The valid execution of the Settlement deed and acceptance of the same are established by the evidence on record as referred above. https://hcservices.ecourts.gov.in/hcservices/ 10. The law is well settled that where a donor had no power of revocation at all, he ceased to have any interest or right in the property on his divesting himself of his title in favour of the donee in which case there is no question of the donor continuing after the gift to be an ostensible owner. In the present case, as already seen, the donor/Chellammal had no power of revocation at all in Ex.B1 and she ceased to have any right after the settlement in item 1 of the suit properties and she is not competent to execute Ex.A.7 Revocation deed and it is an invalid instrument in the eye of law. Consequently, Chellammal could not have conveyed any title under Ex.A1 Sale deed to the plaintiff in respect of Item 1 of the suit properties and the plaintiffs are not entitled to claim any right in that property. The finding of the Courts below that the plaintiffs have proved their title to the first Item of the suit properties, is erroneous and liable to be set aside. 11. It is not in dispute that the second item of the suit properties is owned by Alraj Mooppar, father of the plaintiffs and the defendant. In fact, the second plaintiff in his testimony as P.W.1 has admitted the same. Their father died prior to the filing of the suit and as such, the plaintiffs and the defendant are sharers in Item 2 of the suit properties and the plaintiffs cannot seek for decree of injunction restraining the defendant from interfering with the possession of the plaintiffs since all are co- owners. The conclusion of the Courts below that the plaintiffs are entitled for decree of injunction against the defendant with regard to Item 2 of the suit properties is erroneous and cannot be sustained in law. The substantial questions of law are answered accordingly. 12. The second appeal is allowed and the judgments and decrees of the Courts below are set aside and the suit is dismissed. However, considering the relationship of the parties, there shall be no order as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vks/pb To 1.Subordinate Judge, Kallakurichi. 2.Additional District Munsif, Kallakurichi. 3.The Section Officer,V.R.Section, High Court, Madras. +1 cc To Mr. M/s.Sarvabhauman Associates, Advocate, SR.45192 +1 cc To Mr.R.Muralidharan, Advocate, SR.45429 S.A.No.156 of 1998 ck [co] gkg/5.9 https://hcservices.ecourts.gov.in/hcservices/