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2020 Supreme(Mad) 750
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RMT. TEEKAA RAMAN, J.
Kolammal - Appellant
Versus
Subbayan Pillai (Died) & Others - Respondents
S.A. (MD) No. 153 of 2006 & M.P. (MD) No. 1 of 2015
Decided On : 17-08-2020
For the Appellant :V. Ramesh, V. Raghavachari, Advocates.
For the Respondents:V. Meenakshisundaram, R.M. Sivakumar, Advocates.
Headnote:
Code of Civil Procedure, 1908 - Section 100 - Evidence Act - Section 90 and 73 – Settlement Deed - Tenant - Suit property - Decreed - Declaration of title - Permanent injunction - Plaintiff has filed above suit in O.S.No.544 of 1996 for declaration of title and for permanent injunction on the ground that first defendant is father and defendants 2 and 3 are her younger brothers and the father has executed Settlement Deed under Ex.A1 dated and subsequently under Ex.B2, first defendant/ father has cancelled Deed on 26.05.1984, which is an unilateral cancellation of Settlement Deed - Thereafter, through Ex.B3, he had settled the suit property in favour of defendants 2 and 3, who are the younger brothers of the plaintiff and first defendant having executed unconditional Settlement Deed under Ex.A1, cannot be revoked same and resettled property in favour of other two sons and hence, sought for declaration of title and for permanent injunction - Suit property was settled by first defendant/father in her favour and same is acted upon and relied upon Exs.A.2, A.3 and A.4 money orders sent by brother to be as a tenant - According to plaint, very same property was again settled by first defendant-father in favour of his sons viz., defendants 2 and 3 under Ex.A.5, dated and hence, he filed the suit for declaration of his title and for recovery of possession - Perused schedule of property – Held, first defendant has no right to execute document under Ex.B.3 in favour of defendants 2 and 3, since on that date, first defendant did not have any right in and over suit property - Averments made in plaint in O.S.No.65 of 1989 clearly establishes gift made in favour of plaintiff - Only contention of the defendants was possession had not been handed over - D.W.1 who is third plaintiff that suit had admitted its execution - This taken into consideration along with case pleaded by the plaintiff would clearly establish that first plaintiff herein had been accommodated soon after he had sold property at Perumal Koil Street and thus, in view of above said documentary evidence - Court holds that all the substantial questions of law Nos.1 to 3 are answered in affirmative -Settlement Deed-.Ex.A.1 executed by first defendant in favour of the plaintiff/appellant is valid and acted upon and revocation of the Settlement Deed Ex.B.2 is not valid in law- Consequently, Ex.B.3 has no force, since donor has no title to convey said property in favour of defendants 2 and 3 and consequently, plaintiff is entitled for relief of declaration and recovery of possession - Time for delivery of possession is two months - Second Appeal is allowed and Judgment and decree passed by Lower Appellate Court are hereby set aside and the Judgment and Decree made in O.S.No.544 of 1996 are confirmed.
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the Judgment and Decree made in A.S.No.64 of 2002 on the file of Additional District Judge, Kanyakumari at Nagercoil dated 10.01.2003, in reversing the well considered Judgment and Decree made in O.S.No.544 of 1996 on the file of II-Additional District Munsif, Nagercoil, dated 23.04.2002.)
1. The plaintiff is the appellant herein.
2. For the sake of convenience, the parties are referred to as plaintiff and defendants.
3. The plaintiff has filed the above suit in O.S.No.544 of 1996 for declaration of title and for permanent injunction on the ground that the first defendant is the father and the defendants 2 and 3 are her younger brothers and the father has executed the Settlement Deed under Ex.A1 dated 05.09.1974 and subsequently under Ex.B2, the first defendant/ father has cancelled the Deed on 26.05.1984, which is an unilateral cancellation of the Settlement Deed. Thereafter, through Ex.B3, he had settled the suit property in favour of the defendants 2 and 3, who are the younger brothers of the plaintiff and the first defendant having executed unconditional Settlement Deed under Ex.A1, cannot be revoked the same and resettled the property in favour of other two sons and hence, sought for declaration of title and for permanent injunction. Further pleaded that after the settlement in favour of the plaintiff, the parents and other two brothers were allowed to live as a tenant in the suit property and remitted the rent viz., money order under Ex.A2 to Ex.A4. Written statement was filed.
4. On the side of the plaintiff, PW.1 and PW.2 were examined. Exs.A1 to A8 were marked. On the side of the defendants, DW.1 was examined and Exs.B1 to B9 were marked.
5. The gist of the pleadings and the documents filed therein are as follows:-
[i] The plaintiff is the daughter of the first defendant while the first defendant is the father and defendants 2 and 3 are the sons of the first defendant and brother of the plaintiff.
[ii] The case of the plaintiff, in short, is that under Ex.A.1-Settlement Deed dated 05.09.1974, the suit property was settled by the first defendant/father in her favour and the same is acted upon and relied upon Exs.A.2, A.3 and A.4 money orders sent by the brother to be as a tenant. According to the plaint, the very same property was again settled by the first defendant-father in favour of his sons viz., defendants 2 and 3 under Ex.A.5, dated 05.12.1988 (Ex.A.5 = Ex.B.3) and hence, he filed the suit for declaration of his title and for recovery of possession. Perused the schedule of the property.
[iii] It is a two cents of land with building having Door No.20/8-2013 of the Nagercoil Municipality (Old Door No.6/4-13 in Survey No. 1679/3637 re-survey No.24-72 extent two cents in Agatheeswaram Taluk, Vadiyeeswaram village.
[iv] On perusal of Ex.A.1-Settlement Deed executed by the first defendant in favour of the plaintiff, there is no recital or reservation caluse reserving the right of revocation in the said document.
[v] The case of the defendant/respondent is that pursuant to Ex.A.1, possession was not handed over in the year 1983, the first defendant father had executed Settlement Deed under Ex.B,1 dated 08.07.1983 settling 93 cents of land in favour of the plaintiff/daughter. Followed by the same, under Ex.B.2, dated 26.05.1984, the first defendant had revoked and cancelled the Ex.A.1-Settlement Deed in favour of the plaintiff. Thereafter, in the year 1988, under Ex.B.3-Settlement Deed, he has settled the suit property in favour of his sons defendants 2 and 3 on 05.12.1984.
6. The trial Court accepted the case of the plaintiff and decreed the suit while the lower Appellate Court has reversed it and hence the Second Appeal.
7. The above second appeal was admitted on the following substantial question of law:-
(i) Whether the lower appellate Court is right in recognising the deed of cancellation of Ex.A1, when the first defendant had
