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2022 Supreme(Mad) 1147
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
G. Venkatesan & Others - Appellant
Versus
G. Palani & Others - Respondent
Second Appeal No. 115 of 2012
Decided On : 02-03-2022
For the Appellants:C. Uma Shankar, Advocate. For the Respondents:T. Viswanatha Rao, Advocate.
The main legal point established in the judgment is the application of the doctrine of non est factum and the requirements for proving a Settlement Deed under the Indian Evidence Act and the Transfer of Property Act.
Headnote:
Doctrine of non est factum - Property Dispute - Indian Evidence Act, 1872, Section 68 - Transfer of Property Act, Section 123 and 126
Fact of the Case:
The plaintiff filed a suit seeking declaration of title to a property and for a direction to the defendants to vacate another property. The Trial Court dismissed the suit, but the Appellate Court allowed the appeal. The defendants filed a Second Appeal.
Finding of the Court:
The Court found that the doctrine of non est factum did not apply as the 2nd defendant was aware of the nature of the document she executed. The Settlement Deed was proved and was in accordance with the Transfer of Property Act. The Court upheld the Appellate Court's judgment and dismissed the Second Appeal.
Issues: The issues involved the application of the doctrine of non est factum, burden of proof under the Indian Evidence Act, and the validity of the Settlement Deed.
Ratio Decidendi: The Court held that the doctrine of non est factum did not apply as the 2nd defendant was aware of the nature of the document she executed. The Settlement Deed was proved and was in accordance with the Transfer of Property Act.
Final Decision: The Second Appeal was dismissed, and the 1st defendant was granted nine months to vacate and handover possession of the property to the plaintiff.
JUDGMENT
(Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the judgment and decree dated 11.11.2011 passed in A.S.No.217 of 2010 by III Additional Judge, City Civil Court, Chennai and reversing the judgment and decree dated 04.01.2010 in O.S.No.7893 of 2008 on the file of the II Assistant Judge, City Civil Court, Chennai.)
1. The 1st and 2nd defendants are the appellants in this Second Appeal. The 2nd defendant died during the pendency of the Second Appeal and hence, her daughters have been impleaded as appellants 3 to 5.
2. The 1st respondent/plaintiff is the son of the 2nd defendant and is the brother of the 1st defendant. He filed a suit seeking for the relief of declaration to declare the deed of cancellation dated 21.08.2007 (Ex.A-4) executed by the 2nd defendant as null and void and for declaration of title to the “A” schedule property and for a direction to the defendants to vacate the “B”schedule property.
3. The case of the plaintiff is that the “A” schedule property was allotted in the name of his father by the Slum Clearance Board and afterhis death, the plaintiff got the allotment transferred in the name of his mother who is the 2nd defendant in the suit. The further case of the plaintiff is that he was paying the instalments to the Slum Clearance Board since his mother had no income of her own. He also safeguarded the property by initiating eviction proceedings against one Neela. Ultimately, he made the entire payment and the Sale Deed was executed in the name of his mother.
4. It is further stated that the 2nd defendant out of her own free Will, executed a Settlement Deed dated 08.07.2004 (Ex.A-3) in favour of the plaintiff and she settled the entire property in favour of the plaintiff. The plaintiff acted upon this document and he put up construction in the “B” schedule property and permitted his brother, the 1st defendant to occupy the property. Thereafter, there was difference of opinion and the 2nd defendant proceeded to cancel the Settlement Deed through a cancellation deed dated 21.08.2007 (Ex.A-4). Thereafter, an attempt was made by the defendants to trespass into the property in the occupation of the plaintiff. It is under these circumstances, the suit came to be filed seeking for the reliefs mentioned supra.
5. The 1st and 2nd defendants filed a written statement and took a stand that the Settlement Deed dated 08.07.2004 is vitiated by fraud. It is further stated that the plaintiff wanted to drive away his own mother and brother from the property and hence, the 2nd defendant proceeded to cancel the Settlement Deed. The defendants claim that the plaintiff does not have any right over the suit property and hence, sought for the dismissal of the suit.
6. The Trial Court on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case, dismissed the suit through Judgment and Decree dated 04.01.2010. Aggrieved by the same, the plaintiff filed an appeal in A.S.No.217 of 2010. The Appellate Court on re-appreciation of evidence and on considering the findings of the Trial Court, found that the plaintiff has made out a case and accordingly, allowed the appeal through Judgment and Decree dated 11.11.2011 and set aside the Judgment and Decree of the Trial Court. Aggrieved by the same, the 1st and 2nd defendants have filed this Second Appeal.
7. When the Second Appeal was admitted, this Court framed the following substantial questions of law:
i) Whether the Appellate Court is correct in not applying the doctrine of non-est factum to the facts of the present case that too when the plaintiff (PW1) had categorically admitted that the second defendant the executants of Ex.A3 is an illiterate lady?
ii) Whether the Appellate Court is right in casting the burden of proof as envisaged under the provisions of the Indian Evidence Act on the defendants 1 & 2 (appellant herein) with regard to execution of the exhibit A3 the Settlement Deed?
iii) Whether
