IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.02.2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN S.A.Nos.381 & 382 of 1999 Bharathi ... Appellant in both the S. -Versus- 1.Palaniammal 2.Panneerselvam 3.Pattathammal ... Respondents in both the S. Prayer in both the S.As : Second Appeals filed under Section 100 of Civ Procedure Code as against the judgements and decrees dated 10.07.19 passed in A.S.No.223 of 1996 and A.S.No.204 of 1996 respectively, on t file of the Civil Judge, Senior Division (Subordinate Judge) Kallakurich in reversing the judgment and decree dated 27.09.1994, passed O.S.No.725 of 1986 on the file of the Principal District Munsif Cour Kallakurichi. For Appellant : Mr. S.Mukunth for M/s. Sarvabhauman Associates For Respondents : Mr.A.Jinasenan COMMON JUDGMENT The plaintiff is the appellant herein. The plaintiff filed the su for declaration and recovery of possession of the suit properties . 2. The case of the plaintiff was that the first defendant was h father and on 07.03.1984, the first defendant executed a settlement de in favour of the appellant/plaintiff in respect of the suit properti and delivered possession of the suit properties to the appellant/plainti and the said settlement deed came into effect and thereafter, the fir defendant revoked the said settlement deed by a revocation deed dat 09.09.1986. The said revocation is not valid and the first defendant di on 26.01.1988, during the pendency of the suit. After the filing of t suit, the other defendants have trespassed into the suit propertie Therefore, the suit was filed for declaration and recovery of possession https://hcservices.ecourts.gov.in/hcservices/ 3. The first defendant viz., the father of the appellant/ plainti filed a statement stating that though the settlement deed was executed favour of the appellant/plaintiff, the same was executed, while he was a confused state of mind and in turmoil and possession was not given the plaintiff. The plaintiff also did not accept the gift deed and t same was not acted upon and even after the execution of the gift deed, continued to be in possession of the suit properties. The fir defendant also cancelled the settlement deed by a valid revocation de dated 09.09.1986, and therefore, the plaintiff cannot claim any rig over the suit property. 4. After the death of the first defendant, the defendants 2 to 4 we impleaded and they have also filed a statement stating that the gift de dated 07.03.1984, was obtained by undue influence and during that perio the first defendant was not in a position to understand what was happeni and after coming to know about the fraudulent act on the part of t plaintiff, the first defendant cancelled the document by executing revocation deed, as the appellant/plaintiff did not maintain the fir defendant and he was residing in the eight item of the suit propert The plaintiff also did not participate in the funeral ceremony of t first defendant and did not perform any last rites and hence, t cancellation of the settlement deed was valid. Therefore, the plainti is not entitled to the relief prayed for. 5. The Trial Court decreed the suit, holding that the gift deed w validly executed and the same was accepted by the appellant/plaintiff a possession was also handed over to the plaintiff and therefore, t revocation deed is not a valid document and decreed the suit as pray for. 6. The Lower Appellate Court reversed the findings of the Trial Cou and held that the gift deed in favour of the appellant/plaintiff w obtained by undue influence and therefore, the appellant/plaintiff wi not get any right under the said document and the plaintiff is residing a neighbouring village and not residing in the suit village. Therefor the gift deed was not acted upon and possession was also could not ha been taken by the plaintiff. Hence, the plaintiff will not get any tit or right under the document. Therefore, the plaintiff is not entitled the relief prayed for and dismissed the suit and allowed the appeal Hence, these Second Appeals. 7. The following substantial questions of law were framed, at t time of admission of the Second Appeals:- i)When the power of revocation is not reserved in the Ex.A1 Settleme Deed and when Ex.A1, settlement deed is not a "conditional gift whether the Lower Appellate Court is right in law in upholdi Ex.B2, Revocation Deed and when none of the requirements of Secti 126 of the Transfer of Property Act are satisfied in the insta case? https://hcservices.ecourts.gov.in/hcservices/ ii)When possession of the plaintiff was confirmed by the Reven Records, such as Chitta Adangal, Patta and Kist receipts marked Exs.A2 to A5, and A.14 to A.18, and Exs.A6, A7 and A19, Agreemen with Sugar Factory for supplying sugarcane which was admitted by t settler himself in the written statement, whether the Low Appellate Court is right in law in discarding these materi evidences, in reversing the factual findings rendered by the Tri Court as to possession of the suit properties in favour of t appellant? iii)Whether the Lower Appellate Court is right in law In reversing t well considered judgment and decree of the Trial Court witho making any points for determination as required under Order 41, Ru 31 of the Code of Civil Procedure and without setting aside t findings rendered by the Trial Court? 8. Mr.S.Mukunth, the learned counsel appearing for the appella submitted that once it is admitted by the first defendant that he h executed the gift deed dated 07.03.1984 and as per the gift deed he h also admitted that the gift deed was accepted and possession was al handed over to the plaintiff, the gift deed has become valid from th date and the first defendant viz., the donor, ceased to have any rig to revoke or annul the said settlement deed. Therefore, revocation settlement deed is invalid. 9. The learned counsel appearing for the appellant further submitt that Exs.A8 and A9, would prove that the gift deed was acted upon a possession was handed over to the plaintiff and as per Exs.A8 and A9, t plaintiff entered into an agreement with the Sugar Mill Manufacturers f supply of the sugarcane grown in the suit properties. Therefor possession was taken by the appellant/plaintiff under that gift deed a therefore, the first defendant cannot revoke the gift deed and t revocation is not valid. The learned counsel also relied upon t judgements reported in (1996) 2 C.T.C. 150 in the case of ( R.Kumarasa Kounder Vs. V.Ezhumalai Kounder), (1997) 1 M.L.J. 45 in the case (Kuppuswami Mudali Vs. Mahalingam) and (2008) 1 M.L.J. 193 (SC) in t case of (Asokan Vs. Lakshmikutty and others) in support of h contention. 10. Mr.A.Jinasenan, the learned counsel appearing for the responden in both the appeals submitted that as per the gift deed, there was condition attached to that gift deed and as the plaintiff did not a according to the condition, the donor felt that the purpose for whi the gift deed executed was not fulfilled, he cancelled the gift deed executing the revocation deed. Moreover, the gift deed dated 07.03.198 was not the absolute gift deed and it was subject to the condition stat therein and when the plaintiff did not fulfill the condition, it is op to the donor to revoke the settlement deed and hence, it has been valid revoked. https://hcservices.ecourts.gov.in/hcservices/ 11. It is his further submission that though possession was said have been delivered under Ex.A1, viz., gift deed, in the revocati deed, the first defendant has specifically stated that possession was n handed over to the plaintiff and admittedly, the first defendant w residing in the same property and that would also prove that possessi was not given to the plaintiff. Hence, the gift deed dated 07.03.198 did not come into effect, as it was not accepted and possession was al not given to the plaintiff. Even otherwise, it was validly cancelled the donor, for having realised that the condition on which the gift de was executed was not fulfilled and the plaintiff did not act as per t condition stated in the gift deed. The learned counsel therefor submitted that the gift deed was validly revoked and the plaintiff wi not get any title under the gift deed. 12. Heard, the learned counsel on either side. 13. The only question that is to be decided in these Second Appea is whether the gift deed executed by the first defendant in favour of t appellant/plaintiff was valid and acted upon by the appellant/plainti or not. In the settlement deed viz., Ex.A1, it has been stated that t plaintiff is the daughter of the executant viz., the first defendant a the plaintiff has taken care of the first defendant and therefore, due love and affection towards the plaintiff, the gift deed was executed favour of the plaintiff and she was given full power to deal with t property. 14. It was also stated that possession was also handed over to t appellant/plaintiff and the plaintiff has to take care of the fir defendant till his death and perform her father's last rites. A readi of the said document viz., Ex.A1, in my opinion, would make it clear th there is no condition attached to the gift deed and the gift deed w executed by the first defendant out of love and affection and the clau that the plaintiff has to take care of the first defendant and perform t last rites cannot be considered as the conditional clause attached to t gift deed and it is only a wish of the donor. 15. Therefore, when the gift deed is a absolute one and it is not conditional gift deed, the plaintiff gets absolute title under the sa gift deed. Though it is contended by the learned counsel appearing for t respondents that the condition stated in the gift deed was not compli with or fulfilled by the appellant/plaintiff and therefore, it was valid revoked, the contents in Ex.B2 and the written statement by the fir defendant, would falsify the claim of the respondents/defendants. 16. Even assuming for the purpose of argument that Ex.A1, is conditional gift deed and as per Ex.A1, the plaintiff has to take ca of the defendant during his lifetime, revocation deed was not execut for having violated the condition attached to the settlement deed. T reason for revocation as stated in Ex.B2, was that the plaintiff is n https://hcservices.ecourts.gov.in/hcservices/ respecting the words of the first defendant and she has taken steps alienate the suit properties. In the written statement also, the fir defendant has not stated that the plaintiff fail to maintain him aft the execution of the settlement deed. Therefore, even assuming that t gift deed is a conditional one, it has not been proved that the plainti did not act according to the condition and she has violated t condition. 17. According to me, the gift deed Ex.A1, is not a conditional o and it is the absolute gift deed and once it is absolute, the plainti gets title to the suit property under the gift deed. Further, as seen fr Exs.A8 and A9, possession was also handed over to the plaintiff and t plaintiff entered into an agreement with the Sugar Mill Owners f supplying the sugarcane grown in the suit properties. If possession h not been given to the plaintiff under the gift deed, she would not ha entered into an agreement with the Sugar Mill Owners, as evidenced Exs.A8 and A9. Therefore, possession was also handed over to the plainti under Ex.A1, and the First Appellate Court, without appreciating th fact, erred in holding that the gift deed is not valid and it was obtain by undue influence. It was the case of the first defendant that the gi deed was obtained from him by the plaintiff by practicing fraud and und influence. It has not been stated in the written statement that he w in a perturbed state of mind, when he executed the settlement deed favour of his daughter. In Ex.B2, also the first defendant accepted t execution of the gift deed and revoked the same on the only ground th the plaintiff is not acting as per his wish and she is taking steps alienate the property. 18. Therefore, the findings of the Lower Appellate Court that t gift deed was obtained by the appellant/plaintiff by practizing und influence is wrong, erroneous and is liable to be set aside and it set aside. Further, as per the judgments referred to above, once t settlement deed has been executed and acted upon, it cannot be revoked a therefore, the First Appellate Court, committed serious error in holdi that the settlement deed was not acted upon and it was validly revoke Hence, the substantial questions of law are answered in favour of t appellant. 19. In the result, the judgments and decrees of the Lower Appella Court are set aside and that of the Trial Court is restored and t Second Appeals are allowed. No costs. Sd/- Assistant Registrar. //True Copy// Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Civil Judge, Senior Division (Subordinate Judge) Kallakurichi, 2.The Principal District Munsif, Kallakurichi. 3.The Section Officer, V.R.Section, High Court, Madras +1 CC to M/s. Sarvabhauman Associates (SR.8179) +2 CC to Mr.A.Jenasenan (SR.8213) S.A.Nos.381 & 382 of 19 KM(C.O) VVI/18.5.2011 https://hcservices.ecourts.gov.in/hcservices/