Kandasamy v. Thanga Selvi
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2022
CORAM
THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN Second Appeal No.1325 of 2004 and C.M.P.No.3553 of 2022 Kandasamy ... Appellant
Versus
1.Thanga Selvi 2.Yoga Lakshmi 3.Eswari
...Respondents
Prayer:
The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree made in A.S.No.430 of 2002, dated 30.07.2003, on the file of the Principal District Court, Namakkal and confirming the Judgment and Decree in O.S.No.374 of 1997, dated 15.10.1998 on the file of the Additional District Munsif's Court, Namakkal.
For Appellant : M/s.S.Uma Maheswari for Mr.C.Jagadish For Respondents : Mr.V.Srikanth for Mr.C.Thangaraj 1/12
JUDGMENT
The defendant in O.S.No.374 of 1997 on the file of the Additional District Munsif Court at Namakkal, who had suffered a decree by the Judgment dated 15.10.1998 and also an adverse Judgment dated 30.07.2003 in subsequent Appeal filed by him in A.S.No.430 of 2002 before the Principal District Court at Namakkal, is the appellant herein.
2. The said suit in O.S.No.374 of 1997 had been filed by the respondents herein, seeking declaration of title on the basis of a Settlement Deed, dated 15.02.1985 said to have been executed by the appellant/defendant and for permanent injunction restraining the defendant therein/appellant from interfering with peaceful possession and also for costs of the suit.
3. The property which was the subject matter of the litigation, was Grama Natham in Survey No.210, situated in a larger extent of land and consisted of a thatched house and land in Erumaipatty Village, Namakkal District.
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4. It had been the contention of the learned counsel for the respondents herein, that the appellant/defendant in the suit had executed a Settlement Deed on 15.02.1985 with respect to the suit property and that under the Settlement Deed, the respondents herein were the settlees.
5. It was contended that the mother of the respondents viz., Nallammal had died in the year 1983 and thereafter, the appellant had married again and was living with that family. Thereafter, with respect to the suit property, the appellant had executed a Settlement Deed on 15.02.1985. Claiming that the title had therefore passed under the Settlement Deed and further claiming that they are in possession, the suit had been filed seeking a declaration of title on the basis of the Settlement Deed and also to protect possession.
6. The appellant/defendant had filed a written statement, wherein, the relationship had been admitted. He had further stated that on 21.05.1987, a Cancellation Deed had been executed by cancelling the Settlement Deed 3/12
and it is therefore contended that the suit, based on the Settlement Deed which had been cancelled, should not be considered by the Court and that the respondents/plaintiffs should be non-suited.
7. The parties went to trial on the basis of the pleadings as aforesaid. The Trial Court/Additional District Munsif Court at Namakkal, had framed the following issues for consideration:
(1) Whether the plaintiffs were under the guardianship of Chettiyar Gounder?
(2) Whether the Settlement Deed dated 15.02.1985 had been put into effect?
(3) Whether the contention of the defendant that the plaintiffs were not entitled under the Settlement Deed is correct?
(4) Whether the plaintiffs and Chettiyar Gounder had been living as a joint family?
(5) Whether the defendant was paying a sum of Rs.1,000/- as rent with respect to the suit property and for maintenance of the plaintiffs? 4/12
(6) Whether the amount in the bank was an exclusive amount of the defendant?
(7) Whether the suit property was in the possession of the defendant?
(8) Whether the plaintiffs can seek declaration of title on the basis of the Settlement Deed, dated 15.02.1985? and (9)To what other reliefs the parties are entitled to?
8. During the course of trial, on the side of the plaintiffs, one Chettiyar Gounder was examined as P.W.1. The defendant examined himself as D.W.1. The plaintiffs also marked Exs.A1 to A3. Ex.A1 is the Settlement Deed dated 15.02.1985. Ex.A2 and Ex.A3 were exchange of notices. The defendant marked Exs.B1 to B24. Ex.B4 dated 21.05.1997 is the Cancellation of Settlement Deed. Ex.B5 - B24 were the Tax Receipts and receipts for payment of Taxes towards the business conducted by the defendant.
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9. On the basis of the oral and documentary evidence, the Trial Court found as a fact that the Settlement Deed had been executed and had been registered in manner known to law.
10. It had been further very specifically stated that a covenant in the Settlement Deed provided that possession had been granted towards the plaintiffs/respondents herein and therefore, it was stated that the appellant cannot cancel or revoke the settlement deed and that the deed of cancellation was not valid. The declaration sought was granted and possession was protected.
11. The appellant herein as defendant, filed a further Appeal before the First Appellate Court in A.S.No.430 of 2002, which came up for consideration before the Principal District Court at Namakkkal.
12. The learned Principal District Judge, Namakkal, on re-appreciation of the evidence on record, framed necessary points for 6/12
consideration and again confirmed that the settlement deed / Ex.A1 had been executed in manner known to law and that possession had also been handed over and therefore, the First Appellate Court refused to interfere with the Judgment and decree of the Trial Court.
13. Questioning such Judgment, the appellant who is the defendant in the suit, had filed the present Second Appeal.
14. The Second Appeal had been admitted on the following substantial questions of law:
"1.Whether on the evidence the conclusion of the courts below that Ex.B3 dated 15.02.1985 executed by the appellant in favour of the plaintiffs/respondents was given effect to and acted upon is correct in law. 2.Whether the courts below acted illegally in granting permanent injunction when the appellant/defendant is admittedly in actual possession of the suit property on the date of suit.
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3.Whether the finding of the Courts below that the defendant was collecting the rent from the suit property as an agent of his father and was handing over the rent collected to him for the benefit of the respondents/plaintiffs without any evidence in support thereof is sustainable in law."
15. The first substantial question of law revolves around Ex.B3 dated 15.02.1985 which was also marked as Ex.A1. It is the Settlement Deed. By its very nature, on execution of the Settlement Deed, title transfers to the settlees and even if it is to be interfered with, a suit has to be filed.
16. The Settlement Deed has to be taken as having been executed in manner known to law. The first substantial question of law is answered against the appellant herein.
17. The second and third substantial questions of law relate to possession. However, once possession is in the hands of the respondents, there cannot be any further issue on that particular aspect and therefore the 8/12
second and third substantial question of law are also answered against the appellant herein.
18. The learned counsel for the appellant produced a further document, namely the Judgment and decree in O.S.No.128 of 2001 on the file of the Subordinate Court at Namakkal and a Certified copy of the petition and orders in R.E.P.No.162 of 2003 on the file of the Subordinate Court at Namakkal against which, order was passed in R.E.A.No.1067 of 2004 on the file of the Subordinate Court at Namakkal.
19. Though the petition in C.M.P.No.3553 of 2022 had been filed before this Court under Order XLI Rule 27 of the Code of Civil Procedure, since those documents are judicial orders, they can always be perused by the Court.
20. A perusal of these orders, shows that the suit property had been attached consequent to loan having been received by the respondents and 9/12
consequent to a decree in O.S.No.128 of 2001, the schedule mentioned property had been brought under auction and had been sold in the auction and one R.Varadharajan had also purchased the same and in the Execution Petition, he had taken possession of the same.
21. In view of all these further circumstances which had crept in with respect to the property in question, I hold that it will be an exercise in futility on the part of the appellant to maintain this Second Appeal. Further, since property had also been sold.
22. The Settlement Deed executed by the appellant is upheld. The Cancellation Deed, as had been correctly observed by both the Courts below is rejected. The property had been purchased by the auction purchaser in manner known to law. The Second Appeal naturally has to be dismissed.
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23. Accordingly, the Second Appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 04.07.2022 ssi Index:Yes/No Speaking Order : Yes/No To 1.The Principal District Judge, Namakkal.
2.The Additional District Munsif's, Namakkal.
3.The Section Officer, VR Section, High Court of Madras.
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C.V.KARTHIKEYAN,J., ssi 04.07.2022 12/12