2014 Supreme(Mad) 4554

MADRAS HIGH COURT
R.Mahadevan, J.
Sellayi (Deceased) & Others - Appellants
Versus.
Valliammal & Others - Respondents
S.A.No.537 of 2006 and CMP.Nos.6595 of 2006 and 54 of 2009
Decided on : 17.12.2014

Headnote:

Contract Act – Section 11 – Transfer of Property Act – Sections 6, 122, 123, 126 and 127 – Will – Specific Relief Act – Tamil Nadu Court Fees and Suits Valuation Act, 1955 – Settlement Deed – Case of the plaintiffs before the Trial Court was that the plaintiffs/married daughters, the deceased Ganesan and 6th defendant are the children of the first defendant and her husband, the deceased Palaniappa Gounder. – The second defendant is the wife of the said deceased Ganesan and the defendants 3 to 5 are their children. – The first defendant and her husband, during the life time of the latter, purchased immovable properties jointly out of their joint earnings and by partition deed dated 23.07.1999, they have been allotted A schedule property and they were in joint possession and enjoyment till the death of the latter. Thereafter, the first defendant was enjoying her undivided half share of the suit property. – During the life time of Palaniappa Gounder, he and his wife/first defendant partitioned orally substantial portion of their properties retaining the first item of the suit property in her possession and occupation and had become divided from their sons, second defendant and the deceased Ganesan. – In the suit properties, the said Palaniappa Gounder, during his life time, had put up pucca two-storied terraced building on the northern portion and both the first defendant/wife and himself were residing therein separately. After the death of Palaniappa Gounder, in the year 1987, first defendant continued to reside in it, as her sons were living separately with their respective families. Palaniappa Gounder, with the consent and knowledge of the first defendant and while in sound state of disposing mind, executed a Will dated 26.06.1987 in favour of their daughters/plaintiffs half portion of the suit property on the north together with building, well and electrical connections etc., bequeathing the same to them. – The first defendant stood as one of the attestors. On the death of their father, the Will came into force and the defendants have taken possession and have become joint and absolute owners of the same. Since the other half portion of the suit property was in occupation and possession of their mother and she was residing in the terraced building, the plaintiffs had not disturbed her occupation of the said building. – As the plaintiffs had been looking after the first defendant/mother to her satisfaction and happiness, she executed a registered irrevocable gift deed, dated 09.05.2000, transferring her common half share on the south of the suit property to the plaintiffs, which is shown as Item-2. – Hence, the plaintiffs have been in the absolute, continuous, exclusive, peaceful and actual physical possession and enjoyment of the entire suit property. – Knowing the execution of gift deed, the defendants by undue influence, coercion, forced the first defendant to execute a document of transfer touching the suit property to the detriment of the plaintiffs. – On 19.04.2001, when the agricultural coolie workers engaged by the plaintiffs were working in the suit property, the defendants 2 to 6 drove them out of the land, threatening with dire consequences. – Hence, the present suit had been filed. – Held, No document can have two characters. – Either it should be a Will or Settlement Deed. No document can be called, simultaneously, as Will or Settlement Deed, even if it be called as both, it cannot be given effect to. – In such circumstances, this Court is of view that since Ex.A2 contains the character of both the two documents, viz., Will and Settlement Deed, it should be held as invalid as it cannot be given effect to. – Senior Counsel for the appellants has submitted that Ex.A2 has been cancelled by D.W.1 under Ex.B6, dated 06.02.2001 and therefore, the plaintiffs do not have any kind of right over the suit property. – Though the learned Senior Counsel for the respondents has submitted that Ex.B.6 is a forged one and it was created only to deprive the right of the plaintiffs, no oral or documentary evidence was adduced or produced to show that Ex.B.6 is a forged one – D.W.1 in her evidence has clearly stated that she did not execute any settlement deed. – But when she came to know about the execution of the settlement deed, she cancelled the settlement deed. – However, in her cross examination, she has deposed that she did not execute the cancellation deed. – Regarding the execution of the settlement deed and its cancellation, there is no clear and categorical evidence on the part of either side. – Anyhow, since this court has held that Ex.A.2 is invalid, the plaintiffs cannot claim any right over the suit property based on Ex.A2. – Perusal of the judgment of the first appellate court would reveal that the findings and conclusions of the first appellate court are contradictory, perverse and not based on the legal evidence. – Therefore, the judgment and decree of the first appellate court deserves to be set aside. – Second Appeal Allowed