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2016 Supreme(Mad) 3047

IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
K.A. Mary (Died) – Appellant
Versus
K.V. Anthony Since deceased represented by his legal representatives – Respondent
SECOND APPEAL NO.342 OF 2006
Decided On : 21-09-2016

Advocates Appeared:
For the Appellant : Mr. S.V. Jayaraman, Senior Counsel, Mr. M.M. Abdul Razack
For the Respondent:Mr. T.P. Manoharan, Senior Counsel for Mr. M. Baskar

Headnote:Civil Procedure Code, 1908 Section 100 Transfer of Property Act, 1882 Section 43- the plaintiff challenged the registered revocation deed on the ground that it has already been executed by his father in his favour-the court did not allow the petition- the appellant again challenged the order through second appeal- the court observed that since the appellant did not have a valid title and the registered deed made by father in favour of his daughter with a valid consideration of love and affection does not attract section 43-moreover section 43 is applicable only when there is any kind of fraudulent settlement- hence the appeal was not allowed .

JUDGMENT :

The original plaintiff is the appellant. The second appeal is filed challenging the concurrent findings of the Court below in a suit for declaration and title and for the consequential injunction and for a direction to hand over the sale deed of the property or in the alternative, directing the defendant to pay the same to the plaintiff.

2. The original plaintiff is the daughter of the original defendant, who is the father. The defendant was allotted a plot of land by the Tamil Nadu Housing Board in 1968 and he has been in possession of the same. Though the father was allotted the plot, he was financially not sound to develop the same by putting up a construction till the year 1983. As there was a move for resumption of the land that were not constructed, the plaintiff helped the defendant by financially assisting him with necessary funds. Therefore, she sold her jewels and raised loan from her friends to the tune of Rs.30,000/- and put up the foundation of the plot. It is further stated that she was also helping him to pay the monthly installments to the Tamil Nadu Housing Board. As the plaintiff had extended her help in safeguarding the plot, the defendant had executed a registered settlement deed dated 27.04.1984 from which date the plaintiff claims to be in possession.

3. Subsequently, the sale was executed by the Tamil Nadu Housing Board in the year 1987. The plaintiff apprehending that her father was trying to alienating the suit property issued a lawyer's notice on 25.01.1998 calling upon him to hand over the sale deed he got from the Tamil Nadu Housing Board. In reply, the defendant had mentioned that the said settlement deed dated 27.04.1984 was cancelled by a deed of revocation dated 10.10.1987 which was also registered. According to the plaintiff, the defendant had no right to revoke the settlement deed and the revocation is only with a view to cheat the plaintiff. The settlement deed is acted upon and that the defendant has no right to revoke the same. Hence, the suit has been filed for the reliefs claimed.

4. The relationship between the parties are not disputed and the factual details of execution of the settlement deed, sale deed, and the revocation deed are all correct. However, the statement of the plaintiff that the defendant was not in a position to develop the plot or put up a construction were all denied.

5. The defendant who is the father had specifically pleaded in the written statement that the plaintiff never helped the family even with a single paise, on the other hand, she was only taking money from the defendant every month. It is stated by the defendant that the settlement deed was executed by him on the representation made by the plaintiff that if the plot is transferred to her name by way of settlement, she can obtain loan in her name and that the defendant can pay the loan in installments and after the loans are cleared, the property will be conveyed back to the defendant. On such representation, the defendant had executed the settlement deed in favour of the plaintiff. As the plaintiff did not keep up the promise, the defendant realized the fraud played by the plaintiff on him and executed a deed of cancellation on 10.10.1987 canceling the settlement deed. Even after that the plaintiff did not extend any help to the defendant. Hence, the revocation of settlement deed was executed. The acknowledgment of receipt of Rs.30,000/- by the defendant also is denied. The plaintiff, defendant and other members of the family were living jointly and they were all making contributions to the plaintiff and the defendant was handing over his entire salary to the plaintiff. A property was also purchased in the name of the plaintiff by the defendant in Korattur. Hence, the defendant prayed for dismissal of the suit.

6. The Courts below had concurrently found against the plaintiff and dismissed the suit. Aggrieved by the same, the above appeal has been filed.

7. At the time of admission, the following substan












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