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MADRAS HIGH COURT
R. Mahadevan, J.
Sellayi (deceased) and Others - Appellants
Versus
Valliammal @ Pappu and Others – Respondents
S.A. No. 537 of 2006 and C.M.P. Nos. 6595 of 2006 and 54 of 2009.
Decided on : 17-12-2014

Advocates:
Advocate Appeared:
For the Appellants :M.S. Krishnan, Senior Counsel for B.R. Sankaralingam, Advocate.
For the Respondents:Hema Sampath, Senior Counsel for R. Meenal, Advocate.

Headnote:

Specific Relief Act, 1963 - Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Transfer of Property Act, 1882 - Sections 6, 122, 123, 126 and 127 - Section 41 - Contract Act, 1872 - Section 11 - Properties - Will - Gift Deed - First defendant and her husband, during life time of latter, purchased immovable properties jointly out of their joint earnings and by partition deed they have been allotted "A" schedule property and they were in joint possession and enjoyment till death of latter - Thereafter, first defendant was enjoying her undivided half share of suit property - During life time of Palaniappa Gounder, he and his wife/first defendant partitioned orally substantial portion of their properties retaining first item of suit property in her possession and occupation and had become divided from their sons, second defendant and deceased Ganesan - In suit properties, said Palaniappa Gounder, during his life time, had put up pucca two-storied terraced building on northern portion and both first defendant/wife and himself were residing therein separately - After death of Palaniappa Gounder, first defendant continued to reside in it, as her sons were living separately with their respective families - Palaniappa Gounder, with consent and knowledge of first defendant and while in sound state of disposing mind, executed a Will in favour of their daughters/plaintiffs half portion of suit property on north together with building, well and electrical connections etc., bequeathing same to them - First defendant stood as one of attestors - On death of their father, Will came into force and defendants have taken possession and have become joint and absolute owners of same - Since other half portion of suit property was in occupation and possession of their mother and she was residing in terraced building, plaintiffs had not disturbed her occupation of said building - As the plaintiffs had been looking after first defendant/mother to her satisfaction and happiness, she executed a registered irrevocable gift deed, transferring her common half share on south of suit property to plaintiffs, which is shown as Item-2 - Hence, plaintiffs have been in the absolute, continuous, exclusive, peaceful and actual physical possession and enjoyment of entire suit property - Knowing execution of gift deed, defendants by undue influence, coercion, forced first defendant to execute a document of transfer touching suit property to detriment of plaintiffs - When agricultural coolie workers engaged by plaintiffs were working in suit property, defendants 2 to 6 drove them out of land, threatening with dire consequences - Hence, present suit had been filed – Held, D.W. 1 in her evidence has clearly stated that she did not execute any settlement deed - But when she came to know about execution of the settlement deed, she cancelled settlement deed - However, in her cross examination, she has deposed that she did not execute cancellation deed - execution of settlement deed and its cancellation, there is no clear and categorical evidence on part of either side - Anyhow, since this court has held that Ex. A. 2 is invalid, plaintiffs cannot claim any right over suit property based on Ex. A2 - Judgment of first appellate court would reveal that findings and conclusions of first appellate court are contradictory, perverse and not based on legal evidence - Therefore, judgment and decree of first appellate court deserves to be set aside - In fine, second appeal is allowed setting aside judgment and decree of first appellate court and confirmed judgment and decree of trial Court - However, it is needless to say that plaintiffs are at liberty to approach appropriate forum seeking declaratory relief – Appeal Allowed.

JUDGMENT :

R. Mahadevan, J.

Defendants, who succeeded before the Trial Court but, failed in appeal, are the appellants in the second appeal.

2. The 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.

3. The suit was resisted by the first defendant contending that the other defendants are helping this defendant in doing agricultural work in the suit property and when there arose misunderstanding between the defendants, this first defendant approached the plaintiffs and at that time, at the instigation of the plaintiffs, this defendant executed a registered document. After disposal of the suit filed by the defendants 2 to 5 against this defendant and the sixth defendant, in O.S. No. 661 of 2000 before the District Munsif Court, Salem, this defendant cancelled the registered document. Husband of the defendant had not executed any Will in favour of anybody. After the life time of this defendant and her husband, the defendants 2 to 6, viz., late Ganesan and Venkatesan, sons of this defendant are entitle










































































































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