IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17-06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.762 of 1998 1.Bagyammal (deceased) 2.P.Selvam 3.P.Mohan (Appellants 2 and 3 are brought on record as LRs of the deceased 1st Appellant, vide CMP.11692/1999, Dated 24.09.1999] : Appellants/LRs of the Plaintiff vs. Perumal Gounder : Respondent/Defendant Prayer: This Second Appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree, dated 19.03.1997 passed in A.S.No.25 of 1996, on the file of the Subordinate Judge, Tindivanam, confirming the judgment and decree, dated 23.08.1995 passed in O.S.No.41 of 1991, on the file of the Principal District Munsif, Tindivanam. For Appellants : Mr.P.B.Ramanujam For Respondent : Mr.V.Raghavachari JUDGMENT The plaintiff, who lost in both the Courts below, is the appellant. 2.The plaintiff filed a suit for redemption of mortgage deed, dated 28.12.1982. 3.The case of the plaintiff was that she is the owner of the properties and except Item No.2 of the suit property, the other items of the suit properties were settled on her by the defendant and one Hariputhiri Gounder, under a registered gift settlement deed, dated 17.01.1974 and the suit 2nd item of the property was settled on her by her husband, under a settlement deed, dated 13.02.1974 and therefore, she is the absolute owner of the properties and on 16.02.1982, she executed a mortgage deed in https://hcservices.ecourts.gov.in/hcservices/ respect of the suit properties in favour of Hariputhiri Gounder, the defendant and one Yasoda Ammal and thereafter, the suit mortgage deed was executed by her in favour of the defendant on 28.12.1982 with a direction to pay the mortgage amount due and payable to the one of the mortgagees, under the earlier mortgage deed, dated 16.02.1982 viz., Yasoda Ammal and the defendant was also put in possession of the property and he was enjoying the property in lieu of interest and the plaintiff offered to pay the mortgage amount and requested the defendant to release the mortgage and that was denied by the defendant and hence, a suit was filed for redemption of mortgage and for recovery of possession of the property. 4.The respondent/defendant contested the suit stating that the plaintiff has no title or possession in respect of the item Nos.1, 3 and 4 and item Nos.1,3 and 4 of the suit property belonged to his father and after the death of his father, he inherited the same and he is enjoying the same as a owner and in respect of 2nd item of the suit property, he has no claim or right over the same and he also disputed the suit mortgage deed, Ex.A1 dated 28.12.1982 and also disputed that possession was given, under the said mortgage and further contended that the gift settlement deed, dated 17.01.1974 (Ex.A4), on which the plaintiff claims title over the property was fraudulently executed by Hariputhiri Gounder when the defendant was a minor and the document was not acted upon and he continued to be in possession of the property and even after the Settlement deed, Ex.A4, the patta stands in his name and he is paying the kist receipts and therefore, he is the owner of the properties in respect of Item Nos.1, 3 and 4 and no mortgage was executed as alleged by the plaintiff under Ex.A1 and he was not in possession of the property by the plaintiff in lieu of interest and therefore, the plaintiff is not entitled to the relief as prayed for. 5.Both the Courts below concurrently held that Ex.A4, the gift settlement deed, dated 17.01.1974 was not acted upon and the plaintiff did not get any title to the suit properties under the said settlement deed and the suit mortgage, Ex.A1, dated 28.12.1982 was not also executed by the plaintiff in favour of the defendant, having regard to the conflicting evidence of PW1 and 3 regarding the payment of consideration and the recitals in Ex.A1 and the plaintiff has not proved that the defendant was put in possession of the property in lieu of interest and as the defendant denied the execution of the mortgage deed in his favour and the plaintiff has not proved the execution of the mortgage, the plaintiff is not entitled to the relief as prayed for and dismissed the suit. Hence, this second appeal. 6.At the time of admission, the following substantial of law were framed by this Court:- 01.Whether the respondent was estopped from contending https://hcservices.ecourts.gov.in/hcservices/ that the suit properties items 1,3 and 4 of the plaint schedule belonged to him having been party to the mortgage deed Ex.A5 executed by the appellant in his favour? 02.Whether the presumption that the Ex.A4 was acted upon could be drawn in view of the mortgage on the plaint schedule properties under Exhibit A5? 7.Mr.P.B.Ramanujam, the learned counsel appearing for the appellants submitted that both the Courts below without appreciating the oral and documentary evidence and the admission of the defendant and by placing the burden erroneously on the plaintiff, erred in holding that Ex.A4, the gift settlement deed, dated 17.01.1974 executed by the defendant and Hariputhiri Gounder, was not acted upon and no title passed under the said document to the plaintiff, without appreciating Exs.B2 and A5 and the admission of the defendant. He, therefore, submitted when the Courts below erroneously placed the burden of proof and have drawn wrong inference from admitted facts, the concurrent finding of facts can also be interfered with and in support of his contention, he relied upon the judgment of the Hon'ble Supreme court reported in (2006)5 SCC 545 in the case of Hero Vinoth (Minr) vs. Seshammal. 8.He further submitted that if the findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under section 100 CPC and for that proposition relied upon the Hon'ble Supreme Court judgment reported in (2003)4 SCC 161 in thee case of Bondar Singh and others vs. Nihal Singh and others. 9.He further submitted that the High Court is entitled to frame some more substantial question of law which it considered as substantial question of law arising for consideration in this appeal, it is always open to the High Court to frame the same and also filed a memo for framing additional substantial questions of law. 10.On the other hand, Mr.V.Ragavachari, the learned counsel appearing for the respondent submitted that both the Courts below concurrently held that the plaintiff has no title or possession to the suit property on the basis of the oral and documentary evidence and such concurrent findings cannot be interfered with in second appeal and the defendant has specifically disputed the allegation that he was put in possession of the suit property in lieu of interest by the plaintiff and also disputed the genuineness of the mortgage deed, Ex.A1 alleged to have been executed by the plaintiff in favour of the defendant and both the Courts below concurrently found that the evidences of PW1 and 3 were contrary to the terms of the alleged mortgage deed, Ex.A1 and has rightly came to the conclusion that the suit mortgage was not executed by the plaintiff https://hcservices.ecourts.gov.in/hcservices/ and the plaintiff has no title over the same and such concurrent findings should not be interfered with. 11.Heard both sides. 12.In this case, as pointed by the learned counsel appearing for the respondent, both the Courts below concurrently held that Ex.A4 gift settlement deed, dated 17.01.1972 was not acted upon and to arrive at the conclusion, the Lower Appellate Court relied upon Exs.B1, B3, B7 to B11 and held that even after the execution of the gift settlement deed, patta continued to be in the name of the defendant and he was in possession of the property by paying kists and therefore, Ex.A4 was not acted upon and as a corollary and no title passed under Ex.A4. It was further held that the execution of mortgage deed, Ex.A1 in favour of the defendant by the plaintiff cannot also be accepted as the plaintiff was not the owner of the property and therefore, the mortgage deed relied upon by the plaintiff is not a true one and it was created for other purposes and therefore, the plaintiff is not entitled to any relief as prayed for. The Courts below, while arriving at a finding that Ex.A4 was not acted upon and no title passed under Ex.A4, wrongly placed the burden on the plaintiff and the Courts below have drawn wrong inference from admitted fact by wrongly applying the law. Therefore, as per judgment of the (2006)5 SCC 545 in the case of Hero Vinoth (Minor) vs. Seshammal, when the concurrent finding of fact was arrived at by wrongly casting the burden of proof and by drawing wrong inference from admitted facts and by applying law erroneously, such concurrent finding can be interfered with. Therefore, according to me, in addition to the substantial question of law already framed at the time of admission, the following substantial question of law also arises for consideration in this second appeal:- Whether the Courts below are right in holding that Ex.A4, gift settle deed was not acted upon and no title was passed under Ex.A4 in favour of the plaintiff? 13.As stated supra, the specific case of the appellant/plaintiff was that the suit property belonged to her under a settlement deed, dated 17.01.1974 Ex.A4. It is the specific case of the plaintiff that one Rangasamy Gounder and Subburaya Gounder were brothers and Sellammal was the wife of Rangasamy Gounder and the plaintiff was the daughter of Sellammal and Ransamy Gounder and the defendant was the son of Subburaya Gounder. The defendant admitted that he is the son of Subbuyara Gounder and Sellammal and Subburaya Gounder were sister and brother. 14.It is also the case of the defendant that Hariputhiri Gounder is the brother of the plaintiff and the defendant's father died, when the defendant was a minor. It is the specific case of the defendant that Ex.A4 was fraudulently obtained and at the time of execution of Ex.A4 he was a minor and therefore, the document is not https://hcservices.ecourts.gov.in/hcservices/ binding on him. 15.It is seen from Ex.B4, sale deed, the 3rd item of suit property was purchased by Sellammal and Subbarayan and in that document, Sellammal was referred to as the wife of Rangasamy Gounder. Under Ex.B4, an extent of 1.44 acres in survey number 97/2 viz., the 3rd item of the suit property was purchased jointly by Sellammal and Subbraya Gounder and later Sellammal gifted her undivided share of 72 cents in favour of the plaintiff, who is none other than her daughter along with some other property under Ex.B5. 16.In Ex.B5 also Sellammal was referred to as the wife of Rangasamy Gounder. Therefore, from the recitals in Exs.B4 and B5, it is seen that Rangasamy Gounder and Subburaya Gounder were brothers and the plaintiff was the daughter of Rangasamy Gounder and Sellammal and the defendant was the son of Subburaya Gounder. 17.Further, under Ex.B6, the plaintiff sold her half share in the 3rd item of the property in favour of Subburaya Gounder and therefore, under Ex.B6 Subburaya Gounder became the absolute owner of the 3rd item of the suit property of a total extent of 1.44 acres. It is also not in dispute that Hariputhiri Gounder was the brother of the plaintiff and as per Ex.A4, Hariputhiri Gounder, S/o.Rangasamy Gounder and Perumal Gounder, S/o Subbarayan, viz., the defendant settled item Nos.1,3 and 4 of the suit properties in favour of the plaintiff. Therefore, as per Ex.A4, the plaintiff became the absolute owner of the properties in respect of Item Nos.1, 3 and 4 and the defendant did not claim any right or title over the 2nd item of the property. Therefore, on the basis of Ex.A4, the plaintiff became the absolute owner of the suit item Nos.1, 3 and 4. 18.The case of the defendant was that Ex.A4 was fraudulently created when the defendant was a minor and it was not acted upon. Both the Courts below accepted the case of the defendant on the basis of the evidence of PW2, who has deposed that even after the execution of Ex.A4, the property was in the possession of Hariputhiri Gounder and the defendant and patta Exs.B1 and B3 continued to be in the name of the defendant. Unfortunately, both the Courts below failed to appreciate Ex.B2 and wrongly cast the burden on the plaintiff and held that the plaintiff has not proved that Ex.A4 was not acted upon. When it is the specific case of the defendant that Ex.A4 was not acted upon and it was executed when he was a minor, the burden is on the defendant to prove that Ex.A4 was not acted upon. Further, when a person claims that the document was not acted upon, he indirectly admitted the execution of the document and therefore, the burden is on him to prove that the document was not acted upon. In this case, it is contended by the defendant that at the time of execution of Ex.A4, he was a minor and it was obtained fraudulently by the plaintiff in collusion with the https://hcservices.ecourts.gov.in/hcservices/ Hariputhiri Gounder. The defendant has not proved that he was a minor at the time of execution of Ex.A4. Ex.A4 was dated 17.01.1974 and in the plaint, which was filed in the year 1991, the age of the defendant was stated as 50. Therefore, the defendant according to the plaintiff, must have born in the year 1941 or 42. In the written statement, the defendant did not deny the age mentioned in the plaint and in evidence, he has stated that his age on the date of deposition was only 35 years. He further admitted that he has not denied his age, which was mentioned as 50 years in his written statement and reply statement and he has not produced any document to show that his age was 35 in the year 1995 and he was minor at the time of execution of the document. Therefore, the defendant has not proved that Ex.A4 was created by the plaintiff in collusion with her brother, Hariputhiri Gounder when the defendant was a minor. Admittedly, the defendant was one of the executants in Ex.A4 and he signed the document and Ex.B2 was produced by the defendant and marked through plaintiff, during the course of her cross examination. Ex.B2 is an agreement executed by the plaintiff in favour of the defendant and Hariputhiri Gounder wherein the plaintiff agreed to re-convey the property which she got from the defendant and Hariputhiri Gounder for the same consideration and this Ex.B2 would clearly prove that Ex.A4 was acted upon and if Ex.A4 was not acted upon, there was no necessity for the defendant to obtain Ex.B2 from the plaintiff. Ex.B2 was not at all considered by the Courts below, except mentioning that Ex.B2 was executed by the plaintiff in favour of the defendant and there was no discussion. 19.As rightly contended by the learned counsel appearing for the appellant, as per the judgment reported in (2007)13 SCC 210, in the case of Asokan vs. Lakshmikutty and others, when a registered document was executed and the parties are close relatives, a presumption of the correctness of the averments in the document has to be taken and the onus of proof would lie not on the donee but on the donor and it was the donor to prove that the document was not acted upon. 20.In the said judgment, registered deed of gift in favour of son was discussed and it was stated in that document that possession was handed over to the son and the same was accepted by the son. In such circumstances, the Hon'ble Supreme Court held as follows:- “...It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. The Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount https://hcservices.ecourts.gov.in/hcservices/ to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. ..In the present case it is not a case that the appellant was not aware of the recitals contained in deeds of gift which recite the factum of handling over of possession of the properties which were the subject-matter of the gift. The very fact that the defendant donors contend that the donee was to perform certain obligations in lieu of the gift is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. ...Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. The said deeds of gift were executed out of love an affection as well as on the ground that the donee is the son and successor of the denor and so as to enable him to live a good family life. The donors cannot later turn round and say that he was to fulfil a promise. It is one thing to say that the execution of the deed is based on a aspiration or belief, but it is another thing to say that the same constituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Contract Act. It was not done. ...It has been submitted by the donors that it would be open to them to prove that in fact no possession had been handed over. This case is concerned with the construction of recitals made in a registered document. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus is on the donor and not on the donee.” 21.In this case also, the plaintiff and the defendant are relatives and the settlement deed was executed by Hariputhiri Gounder, the brother of the plaintiff and the defendant in favour of the plaintiff wherein it has been specifically stated that the plaintiff was put in possession of the suit property. Therefore, having regard to the relationship between the parters and the fact, Ex.B2 was obtained by the defendant from the plaintiff whereby the plaintiff agreed to re-convey the property to the defendant for the https://hcservices.ecourts.gov.in/hcservices/ same amount all would prove that Ex.A4 was validly executed by the defendant and Hariaputhiri Gounder in favour of the plaintiff and as per the judgment referred to above, it was stated in Ex.A4 that possession was handed over to the plaintiff and therefore, the Court is entitled to draw presumption and the burden is heavily on the defendant to prove that the possession was not handed over as per the recitals in the document and according to me, the burden was not discharged by the defendant and the defendant has not proved that Ex.A4 was fraudulently obtained by the plaintiff and it was not acted upon. As held by the Hon'ble Supreme Court, the burden is heavily on the defendant, who is donor to prove that it was not acted upon and having regard to the findings rendered by me that the defendant has not disputed his age, as stated in the plaint and having admitted the execution of Ex.B2 by the plaintiff in his favour, which was produced by the defendant and marked by the defendant through the plaintiff, during her cross examination, the plaintiff has proved that Ex.A4 was a valid settlement deed executed by Hariputhiri Gounder and the defendant in favour of the plaintiff and it was acted upon and under Ex.A4 the plaintiff became the absolute owner of the item Nos.1, 3 and 4. Once, Ex.A4 was found to be a true one and it was acted upon, then the plaintiff become the absolute owner of the suit property and the next question is whether the suit mortgage deed, Ex.A1 was executed by the plaintiff in favour of the defendant. 22.Prior to that, I will have to mention about the patta Ex.B1 and B3 and kist receipts Exs.B7 to B11. The Courts below placed much reliance upon Ex.B1 & B3 to arrive at a conclusion that even after the execution of the settlement deed, Ex.A4, patta stood in the name of the defendant. No doubt, Ex.B1 patta was in the name of the defendant and it was in respect of 3rd item of the suit property. The patta was dated 16.03.1974 and the settlement deed was dated 17.01.1974. Similarly, Ex.B3 patta stood in the name of Subbaraya Gounder, Sriramulu Naidhu, Chewen Divari Naidhu, Allamelu Ammal, Ellumanai Gounder and it was in respect of item No.1 of the suit property and this was also issued on 12.07.1974. The patta numbers in respect of those items 3 and 1 under Exs.B1 and B3 are 214 & 203. Unfortunately, the kist receipts Exs.B7 to B11 were not related to Patta No.203 or 214 and they were in respect of other patta numbers. Without appreciating these factual aspects, both the Courts below erroneously came to the conclusion that Ex.A4 was not acted upon and the possession was continued to be in the name of the defendant and the revenue records also continued to be with the defendant. Therefore, having regard to the recitals in Ex.B2, which was produced by the defendant and marked through PW1 in the cross examination and having regard to the law laid down by Hon'ble Supreme Court in the judgment reported in (2007)13 SCC 210 in the case of Asokan vs. Lakshmikutty and others, the defendant has not discharged the burden cast upon him and did not prove that Ex.A4 was not acted upon and no title passed under Ex.A4 to the plaintiff. I, https://hcservices.ecourts.gov.in/hcservices/ therefore, hold that Ex.A4 was validly executed by the defendant and Hariputhiri Gounder in favour of the plaintiff in respect of item Nos.1, 3 and 4 of the suit properties and the plaintiff got valid title under Ex.A4 and the additional substantial questions of law is answered in favour of the appellants. 23.Further, it is admitted by the defendant in the cross examination that the plaintiff executed a mortgage in respect of the suit properties in his favour and in favour of Hariputhiri Gounder and Yasotha Ammal under Ex.A5. In the cross examination, DW1 has admitted that in the year 1982 three of them obtained a mortgage from the plaintiff for a sum of Rs.8,000/- and that mortgage was not discharged. The mortgage referred to by the defendant was Ex.A5 and it was executed by the plaintiff in favour of the defendant and two others and it was also mentioned in the notice Ex.A2 issued by the plaintiff. Therefore, having regard to the admission by the defendant that Ex.A5 was executed by the plaintiff in his favour and in favour of other two persons, it can be easily inferred that under Ex.A4 title passed on to the plaintiff and thereafter, the properties were mortgaged by the plaintiff in favour of the defendant and two others and the defendant having accepted the mortgage, Ex.A5, executed by the plaintiff cannot now dispute that the plaintiff has no title in respect of the suit properties. 24.The Court below proceeded on the basis that there was contradiction between the evidence of PW1