IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated.: 20.11.2007 CORAM: THE HONOURABLE MR. JUSTICE K.MOHAN RAM Second Appeal Nos.481 and 482 of 1995 N.Subramanian .. Appellant in both the S.As. -Vs- 1. Thanjiammal .. 1st Respondent in S.A.No.481 of 1995 2. Pachiammal .. 2nd Respondent in S.A.No.481 of 1995 & Respondent in S.A.No.482 of 1995 APPEALS filed under Section 100 of Code of Civil Procedure against the judgment and decree made in A.S.Nos.60 and 69 of 1994 dated 22.12.1994 on the file of the Court of Subordinate Judge, Tiruvannamalai, reversing the judgment and decree made in O.S.Nos.231 of 1990 and 16 of 1991 dated 21.04.1994, respectively, on the file of the Court of the District Munsif, Polur, Tiruvannamalai-Sambuvarayar District. For Appellant in both the S.As. : Mr. M.Venkatachalapathy, S.C., for Mr. S.M.Loganathan For Respondents in both the S.As. : No Appearance, for R-1, in S.A.No.481 of 1995 Ms. A.Sathyabhama, for Mr. T.R.Rajaraman, for R-2 in S.A.No.481 of 1995 & for respondent in S.A.No.482 of 1995 C O M M O N J U D G M E N T The plaintiff in O.S.No.231 of 1990 on the file of the District Munsif Court, Polur who succeeded in the suit but lost the appeal in A.S.No.60 of 1994 on the file of the Sub-Court, Thiruvannamalai, is the appellant in Second Appeal No.481 of 1995. The plaintiff in O.S.No.231 of 1990 was the defendant in O.S.No.16 of 1991 on the file of the District Munsif Court, Polur, and he succeeded in the suit, but the decree passed in O.S.No.16 of 1991 was reversed in A.S.No.69 of 1994 and hence he has filed Second Appeal No.482 of 1995. For the https://hcservices.ecourts.gov.in/hcservices/ sake of convenience the parties are referred to as per their ranking in the suit. 2. The brief facts that are necessary for the disposal of the above second appeals are set-out below:- (a) The plaintiff-Subramanian is the son of Narayanaswamy Gounder @ Kannu Gounder through his wife-Thanjiammal-the first defendant and the second defendant is the sister of the plaintiff-Subramanian. Narayanaswamy Gounder and his brother Rangaswamy Gounder were enjoying their ancestral properties without making division till their death. After their death Thanjiammal, Subramanian and Radhakrishnan-son of Rangaswamy Gounder entered into a registered partition deed dated 27.12.1972. Under that, partition 'A' schedule fell to the share of Thanjiammal and Subramanian and 'B' schedule therein was allotted to the share of Radhakrishnan. Thanjiammal executed a registered settlement deed dated 12.07.1990 in favour of her daughter-Pachiammal in respect of a specified extent of two acres in S.F.No.314/2 together with a half share in the Well and motor pumpset fitted in the Well. Subsequently by another registered document dated 30.07.1990, Thanjiammal cancelled the settlement deed executed in favour of Pachiammal. (b) On 25.07.1990 Subramanian filed a suit in O.S.No.231 of 1990 before the District Munsif Court, Polur, against his mother- Thanjiammal and sister-Pachiammal seeking a decree for permanent injunction in respect of the entire extent of 3.94 acres in S.F.No.314/2 and the Well and motor pumpset fitted thereto and also got an order of interim injunction. Pending the said suit Pachiammal filed O.S.No.16 of 1991 on the file of the same Court against Subramanian for declaration, recovery of possession and for mesne profits in respect of the property settled on her by her mother under the settlement deed dated 12.07.1990. (c) The case of Subramanian as put forth in the above said two suits is that he becomes the absolute owner of the 'A' schedule property of the partition deed after the death of his mother- Thanjiammal and his mother had been given only a life interest; as his mother is an aged women, he was looking after her out of the income derived from the said property and he is in continuous possession and enjoyment of the same; the patta and the electricity service connection of the Well stands in his name; Pachiammal who is in hostile terms with him got a sham and nominal settlement deed executed in her favour by his mother who had no right to settle the property; since Pachiammal attempted to disturb the possession it has become necessary for him to file the suit for permanent injunction. It is his further case that after coming to know about the fraud played upon her by Pachiammal, Thanjiammal executed a registered cancellation deed dated 30.07.1990 cancelling the settlement deed dated 12.07.1990; the settlement deed executed by Thanjiammal is a sham and nominal document which was not acted upon https://hcservices.ecourts.gov.in/hcservices/ as possession was never delivered to Pachiammal and the settlement has not come into force. (d) Whereas the case of Pachiammal, the second defendant in O.S.No.231 of 1990 and the plaintiff in O.S.No.16 of 1991, is that the settlement deed was executed by her mother on her own will and volition; the settlement was accepted by her and the same has been acted upon and the settlement deed is not sham and nominal as contended by Subramanian; she was put in possession of the property settled under the Settlement deed dated 27.12.1972, Thanjiammal has got an absolute right over the property settled under the settlement deed; the recitals contained in the earlier part of the partition deed will prevail over the recitals contained in the latter part of the partition deed and the contention of Subramanian that Thanjiammal got only a life interest under the partition deed is untenable; though she was put in possession of the property settled on her, Subramanian by taking advantage of the exparte order of injunction obtained against her and her mother, trespassed into the property and had taken forcibly possession on 25.07.1990; hence she has filed the suit in O.S.No.16 of 1991 for declaration of her title to the suit property as well as for delivery of possession of the same and for mesne profits. 3. In O.S.No.231 of 1990 the first defendant-Thanjiammal remained exparte. Though the subject matter of the suit and the parties are same and the issues that arose for consideration were also same, for the reasons best known to the trial court, both the suits were tried separately and separate judgments have been rendered. After framing appropriate issues in both the suits, the suits were taken up for trial and during trial, in O.S.No.231 of 1990, on the side of the plaintiff, the plaintiff-Subramanian has been examined as P.W.1, Thanjiammal has been examined as P.W.2 and two others have been examined as P.Ws.3 and 4 and Exs.A-1 to A-15 have been marked and on the side of the defendants, Pachiammal the second defendant has been examined as D.W.1 and one Kannan who has attested the settlement deed has been examined as D.W.2 and Ex.B-1 has been marked. The cancellation deed has been marked as X-1. In O.S.No.16 of 1991 the plaintiff-Pachiammal has been examined as P.W.1 and the attestor of the settlement deed has been examined as P.W.2 and the settlement deed has been marked as Ex.A-1 and on the side of the defendant- Subramanian has been examined as D.W.1, Thanjiammal has been examined as D.W.2 and one Aarimuthu has been examined as D.W.3. The cancellation deed dated 30.07.1990 has been marked as Ex.X-1. The partition deed dated 27.12.1972 has been marked as Ex.X-2. 4. On a consideration of the oral and documentary evidence adduced in the suits, the trial court decreed O.S.No.231 of 1990 in favour of Subramanian and dismissed O.S.No.16 of 1991 filed by Pachiammal. Being aggrieved by that Pachiammal preferred appeals in A.S.No.60 and 69 of 1994 respectively before the Sub-Court, https://hcservices.ecourts.gov.in/hcservices/ Thiruvannamalai. The lower appellate court on a consideration of the evidence on record reversed the judgment and decree of the trial court in both the suits and partly allowed the appeals. The lower appellate court upheld the validity of settlement deed, dismissed the suit for injunction filed by Subramanian on the ground that injunction cannot be granted against the co-owner, but even after holding the settlement deed as valid and the cancellation deed as invalid did not grant a decree for declaration, but directed Pachiammal to file a suit for partition. Being aggrieved by the judgment and decree passed in the said appeals, Subramanian has filed the above appeals, whereas Pachiammal has not filed any appeal. Since as above said the subject matter of both the appeals is one and the same and the same witnesses have been examined in both the suits and the issues that arise for consideration are also one and the same both the above second Appeals are being disposed of by a common judgment. 5. While admitting the above second appeals the following common substantial questions of law have been framed:- "(1) Whether the Court below is justified in deciding the correctness of the revocation deed dated 30.07.1990 when admittedly the same was not challenged by the 2nd defendant till suit is filed by the appellant? (2) Whether the Court below is justified in holding that the appellant's possession will enure to the 2nd defendant so as to create a joint ownership? (3) Whether the Court below having found that the possession was never handed over to the 2nd defendant, is justified in rejecting the claim for injunction?" 6. Heard Mr. M.Venkatachalapathy learned senior counsel for Mr.S.M.Loganathan for the appellant and Mrs. A.Sathyabama learned counsel for Mr. T.R.Rajaraman learned counsel for the second respondent in S.A.No.482 of 1995. 7. Learned senior counsel for the appellant submitted that under the partition deed Thanjiammal has been given only a life interest in respect of the 'A' schedule to the partition deed; the latter clause in partition deed alone will prevail and the intention of the parties was that Thanjiammal should get only a life interest and not an absolute right; when Thanjiammal has been given only a life interest she cannot validly execute the settlement deed in favour of her daughter-Pachiammal; when admittedly Subramanian the appellant is in possession of the suit property possession would not have been given under the settlement deed as recited therein and therefore it should be held that the settlement deed was not acted upon. He further submitted that Thanjiammal being the life interest holder could not execute the settlement deed and that too in respect of an undivided share and Thanjiammal herself in her evidence as D.W.2 has stated that she was taken to the Sub-Registrar's Office by her daughter and https://hcservices.ecourts.gov.in/hcservices/ one Kannan-P.W.2 and she was made to sign in a document and she had put her signature without knowing the contents thereof and she was not aware that she was executing a settlement deed and immediately after coming to know about the fraud played upon her she had executed a cancellation deed cancelling the settlement deed, but no acceptable evidence has been adduced by Pachiammal, the plaintiff in O.S.No.16 of 1991, to rebut the evidence of Thanjiammal; this aspect has not been properly considered by the lower appellate court. He further submitted that when admittedly Subramanian is in possession of the suit property, the lower appellate court has committed an error in reversing the judgment of the trial court and dismissing the suit for injunction. He further submitted that when a finding has been recorded that possession was not handed over to Pachiammal the lower appellate court erred in dismissing the suit for injunction. He further submitted that Thanjiammal is an illiterate lady and by playing a fraud upon her and by exercising undue influence the settlement deed had been got executed in her favour by Pachiammal and as such the burden is on Pachiammal to prove that the settlement deed was executed by Thanjiammal on her own will and volition fully knowing the contents of the document. In support of his contentions the learned senior counsel for the appellant relied upon the following decisions:- (i) 1996 (II) CTC 279 (Dharman v. Marimuthu) wherein in paragraph 17 it is observed as follows:- "17. ... The fact that the Written Statement did not contain a positive accusation of any undue influence having been played by the plaintiff upon the deceased first defendant cannot be blown out of proportion in the teeth of the very admissions contained in the plaint about certain facts which would go to show beyond doubt if at all, only the dominating position in which the plaintiff was placed viz. the first defendant rather than going to exculpate the plaintiff from the charge of having exercised such undue influence. It is not the specific mention of the very word undue influence that really matters but the existence of the relevant facts in the case pleaded and proved that is only relevant and sufficient". (ii) (1993) I MLJ 259 (Varadhan v. Pattammal) wherein in paragraph 8 it is observed as follows:- "8. Courts in India have on the rule of evidence enshrined in Secs.101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by men, this being the curse that always surrounded women folk even though law recognised https://hcservices.ecourts.gov.in/hcservices/ their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged mis-representation and fraud, ask her to prove the mis-representation and fraud. But not in a case where a women being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned Single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation but demanded from the defendant to disprove the allegation of mis-representation and fraud. The learned single Judge, in our opinion, has taken the correct view of the law on the fact that the 1st plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who possibly could not act without help." 8. Countering the said submissions the learned counsel for the respondents submitted that the circumstances under which the settlement deed was executed by Thanjiammal in favour of her daughter-Pachiammal should be considered. He further submitted that in the settlement deed itself it has been recited as follows:- "eP vd;Dila xnu Fkhuj;jp MdgoahYk; eP vd;id ,J ehs; tiu rtul;riz bra;J tUtjpdhYk; ,dpnky; vd; $%t jpirtiu rthl;riz bra;J tUtha; vd;w ek;gpf;ifapdhYk; cd; nghpy; vdf;F ,Uf;Fk; md;gpdhYk; gphpaj;jhYk; ghrj;jpdhYk; cdf;F xU brhj;J Mjut[ bra;J itf;f ntz;Lk; vd;w ePz;l ehs; Mtiy g{h;j;jp bra;a[k; bghUl;L vdf;F brhe;jkhd fPH;fz;l U:gha; 46500/00 ,e;j U:gha; ehw;gj;jp Mwhapuj;J Ie;J E}W kjpg;g[s;s brhj;ij cdf;F jhd brl;oy;bkz;l; vGjpf; bfhLj;J brhj;ija[k; ,d;nw ck;kpl Rthjpdk; xg;g[f; bfhLj;J tpl;nld;/" Learned counsel for the respondents further submitted that in consonance with the said recitals P.W.2 in her evidence has also stated as follows:- "vd; bghz;Qqk; mnj Chpy; jhd; ,Uf;fpwhs;/ v';f bghz;Qqf;F trjp Fiwt[/ fc&;lk;jhd;/ 4. 5 gr';fs; ,Uf;fpwh';f/" According to the learned counsel for the respondents, since the daughter- Pachiammal was not living in an affluent circumstances only with an intention to make provision for her support the settlement deed had been executed by Thanjiammal and that intention has been categorically stated in the settlement deed itself and the same has also been spoken to by her in her evidence. Further P.W.2 in her cross-examination had stated that on coming to know about the https://hcservices.ecourts.gov.in/hcservices/ execution of the settlement deed by her in favour of her daughter, the relationship between her and her son-Subramanian became strained and the strained relationship became smooth after the settlement deed was cancelled and she was living only with her son and she has also stated that at the time of execution of the cancellation deed her son-Subramanian was present along with her in the Sub-Registrar's Office. According to the learned counsel, the above said evidence of P.W.2 makes it crystal clear that the cancellation deed would have been executed only under the pressure exerted by Subramanian. Learned counsel further submitted that though a contention has been put forth by the appellant that the settlement deed was got executed by exercising undue influence and fraud and by making misrepresentation, such averments are conspicuously absent in the cancellation deed itself. Learned counsel further submitted that P.W.2 has also not stated in her evidence that either fraud was played upon her or she was coerced or she executed the settlement deed under undue influence exercised by Pachiammal. Learned counsel submitted that if the allegations like fraud, misrepresentation or undue influence are raised such allegations should be pleaded with material particulars and in this case such material particulars and specific averments are missing and therefore the contention of the appellant that the settlement deed was executed under undue influence, fraud and coercion is liable to be rejected. Learned counsel further submitted that once a registered settlement deed had been executed the same cannot be revoked and as such the revocation deed executed by Thanjiammal is non-est in law and it can be ignored by Pachiammal and if really the settlement deed had been executed by Thanjiammal due to the fraud, undue influence etc., as contended by the appellant nothing prevented Thanjiammal from filing a suit seeking a decree for cancellation of the settlement deed, but so far no such steps have been taken. Learned counsel submitted that in the settlement deed itself no right has been reserved by Thanjiammal to cancel the settlement deed and as such the cancellation deed is invalid. 9. Learned counsel for the respondents submitted that under Section 123 of the Transfer of Property Act, if an immovable property is settled under registered sale deed the title in the property will be transferred in favour of the transferee and it is not stipulated in the said provision that possession should be handed over immediately. According to the learned counsel, the contention put forth by the learned senior counsel for the petitioner that since possession had not been handed over under the settlement deed, the settlement deed has not come into force and the same has not been acted upon is against the said proportion contained in Section 123 of the Transfer of Property Act. 10. Learned counsel for the respondents further submitted that under the partition deed Thanjiammal has got an absolute right in the 'A' schedule property along with her son-Subramanian. According to https://hcservices.ecourts.gov.in/hcservices/ the learned counsel, the first clause in the partition deed will prevail over the latter clause and even if a life estate is given, the same can be settled by the life estate holder and as such the contra contention put forth by the appellant is liable to be rejected. Learned counsel further submitted that since Subramanian had instituted O.S.No.231 of 1990 on 25.07.1990 and an exparte order of injunction was obtained against Pachiammal, taking advantage of the same Subramanian had trespassed and taken possession. Learned counsel further submitted that all the above said aspects have not been considered by the trial court and therefore the lower appellate court by applying the correct principles of law to the facts of this case and after recording convincing reasons has set-aside the judgment and decree passed by the trial court; the trial court has overlooked the well settled proposition of law that injunction cannot be granted against a co-owner; the lower appellate court having upheld the validity of settlement deed and having held that Pachiammal has become a co-owner with Subramanian has rightly dismissed the suit for injunction. In support of the above said submissions the learned counsel relied upon the following decisions:- (i) 1997 (I) CTC 256 (Kuppuswami Mudali J. V. Mahalingam) wherein in paragraphs 11 and 12 it is observed as follows:- "11. In order to hold that it is a valid settlement we have to find out whether the settlee has accepted the said document. It is also a settled law that in settlement once the settlee accepts the transfer it is presumed that the said document has been acted upon irrespective of the fact whether the settlee has obtained possession immediately or not. A reading of the entire document Ex.A-1 as pointed out by the two decisions referred to earlier leads to an irresistible conclusion that the power of transfer by the settles (Pappammal) alone has been postponed. As a matter of fact the said Govinda Mudali has not written anything in the said document. Hence the contrary conclusion reached by the trial court cannot be sustained. On the other hand the lower appellate court correctly construed Ex.A-1. When there is no provision or reservation in the settlement deed by the settler, namely, Govinda Mudali it is presumed that he has no right to cancel the said settlement deed at a later date. If that is so the cancellation of Ex.A-1 under Ex.B-8 cannot be sustained. 12. The following decisions cited by the learned counsel for the respondent amply support the above view of mine. In Lallu Singh v. Gur Narain, A.I.R. 1992 All. 467, the Full Bench of the Allahabd High Court while interpreting Section 123 of the Transfer of Property Act has held that "Delivery of possession is not necessary, Section 123, does away with the necessity of delivery of possession even if it was https://hcservices.ecourts.gov.in/hcservices/ required by the strict Hindu Law, in the case of a registered instrument of gift properly executed and attested" .... A similar view has been arrived at in a decision reported in Gouranga Sahu v. Maguni Dei, A.I.R. 1991 Ori. 151. In Balmakund v. Bhagwan Das, 1894 Allahabad Series 185, the Division Bench has observed as follows:- "The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee. Man Bhari v. Navindh followed"." (ii) AIR 1996 Supreme Court 2220 (N.B.Subrahmanyam v. A.Hymavathi) wherein in paragraph 5 it is observed as under:- "5. The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on settlor's demise. A reading of the documents together with the Schedule would given an indication that she had created right and interest in prasenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested self thereunder, right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter Hymavathy. The trial Court and the learned single Judge rightly negatived the claim. The Division Bench was not, therefore, correct in law in interfering with the decree of the trial Court." https://hcservices.ecourts.gov.in/hcservices/ (III) AIR 1996 Bombay 36 (Nagpur Bench) (Prakash S. Akotkar v. Mansoorkha Gulabkha) wherein in paragraph 5 it is observed as follows:- "5. .... Having found the character of possession as