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2021 Supreme(Mad) 3388
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.Chandrasekharan, J.
K.Eswaran, Son of C.Kandasamy Gounder - Appellant
Versus
S.Kandasamy (died) and ors. – Respondents
S.A.No.806 of 2021
Decided On : 12-11-2021
Advocate Appeared:
For the Appellant : Mr.S.Saravanan
Headnote:
Benami Transactions (Prohibition) Act,1988 - Sections 3 & 4 – Settlement deed – Property - Appellant as a Plaintiff filed the Suit, seeking relief that (a)settlement deed executed by 1st Defendant in favour of 3rd Defendant to be declared as null and void; (b)to declare that the Suit property belongs to him; (c)for permanent injunction restraining Defendants 1 to 3 from interfering with possession and enjoyment and not to alienate suit property and (d)restraining 4th Defendant from registering documents produced by Defendants 1 and 3 and for costs - Case of Appellant/plaintiff is that he is son of deceased 1st Defendant and his Mother is 2nd Defendant - 3rd Defendant is his sister - It is his case that he was working in a Company and earning good income and he was alone taking care of his parents/Defendants 1 and 2 - With the amount earned by him, he purchased suit property in his father's name - Though he contributed money for purchase of suit property, his father being elder member of family, property was purchased in his name - He is in possession and enjoyment of suit property from date of purchase - Without knowledge of Plaintiff, 1st Defendant had executed settlement deed - 1st Defendant has no right to execute settlement deed and Suit was filed - Whether plaintiff is entitled for the relief of permanent injunction as prayed for. Para 8.
Finding of the Court: Learned Appellate Judge also found from evidence that Appellant gave a complaint to police through Ex.A7, subsequent to the filing of suit - In which the appellant has claimed ½ share in suit property, thereby appellant admitted that his father is the owner of the property - There is absolutely no evidence produced by appellant to show that he contributed money for the purchase of suit property in his father's name and therefore, this Court finds no reason to interfere with findings of the Courts below that Appellant has failed to establish that he contributed money for purchase of the suit property in his father's name - Learned counsel for Appellant submitted that appellant is in possession and enjoyment of property and that is admitted by 1st Respondent - Even in written statement, possession of appellant in suit property is admitted but it is claimed that it is a forcible possession taken by the Appellant - When there is no legal claim to the title of suit property, on the basis of forcible possession of suit property, appellant cannot claim any right - Thus this Court is of the considered view that there is no substantial questions of law involved for adjudication in this case and this Second Appeal has no merits.
Result: Appeal is dismissed.
JUDGMENT :
The Second Appeal is filed challenging the judgment and decree passed in A.S.No.3 of 2019, dated 13.12.2019 passed by the learned Subordinate Judge, Kangayam.
2. The Appellant as a Plaintiff filed the Suit, seeking relief that (a)settlement deed executed by the 1st Defendant in favour of the 3rd Defendant on 20.06.2011 to be declared as null and void; (b)to declare that the Suit property belongs to him; (c)for permanent injunction restraining the Defendants 1 to 3 from interfering with possession and enjoyment and not to alienate the suit property and (d)restraining the 4th Defendant from registering the documents produced by the Defendants 1 and 3 and for costs.
3. The case of the Appellant/plaintiff is that he is the son of deceased 1st Defendant and his Mother is 2nd Defendant Ms.Samiathal. The 3rd Defendant is his sister. It is his case that he was working in a Baniyan Company and earning good income and he was alone taking care of his parents/Defendants 1 and 2. With the amount earned by him, he purchased the suit property in his father's name on 29.05.2000. Though he contributed money for the purchase of the suit property, his father being elder member of the family, the property was purchased in his name. He is in possession and enjoyment of the suit property from the date of purchase. Without the knowledge of the Plaintiff, the 1st Defendant had executed settlement deed dated 20.06.2011. The 1st Defendant has no right to execute the settlement deed and therefore, the Suit was filed.
4. The 3rd Defendant/1st Respondent has filed a written statement and totally denied the case of the Plaintiff. It is the case of the 3rd Defendant that the suit property was purchased by the 1st Defendant from his earning. There was a partition in the family on 05.07.2000 and after the partition, suit property was in possession and enjoyment of the 1st Defendant. In respect of the suit property, the 1st Defendant had executed a settlement deed on 20.06.2011 in faovur of the 3rd Defendant and allowed the 3rd Defendant to enjoy the property. Plaintiff is a drunkard and compelled his parents to give the property to him. When the Defendants 1 and 2 went to hospital, Plaintiff forcibly occupied the suit property and drove the Defendants 1 and 2 out of the house. He had also taken the original documents of the suit property from the house. Suppressing all these facts the suit was filed.
5. On the basis of the above pleadings, the trial Court framed the following issues for consideration:
“1. Whether the settlement deed dated 20.06.2011 executed by the 1st defendant in favour of the 3rd defendant is not valid and genuine, is correct?
2.Whether the plaintiff is entitled for the suit property?
3.Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
4.To what other reliefs if any, the plaintiff is entitled for?”
6.During the trial before the trial Court PW1 to 3 were examined on the side of the Appellant/Plaintiff. DW1 and 2 were examined on the side of the 1st Respondent/3rd Defendant and Exs.A.1 to A.13 and Ex.B.1 to B.7 were marked. On considering the oral and documentary evidence produced before the trial Court, the learned trial Judge found that the Appellant/Plaintiff is not entitled for any of the reliefs claimed and dismissed the Suit with costs. Challenging the said judgment and decree of the trial Court, the Appellant has preferred an Appeal in A.S.No.3 of 2019 on the file of the Subordinate Judge, Kangayam. Learned Subordinate Judge on hearing the submissions of the learned counsel appearing on behalf of the parties and after going through the oral and documentary evidence produced in the case found no reason to differ with the judgment of the learned trial Judge and dismissed the Appeal. Therefore the Second Appeal.
7.Heard the learned counsel for the Appellant and perused the records.
8.It is the submission of the learned counsel for the Appellant that when the property was purchased, his father was an
