A.Periyasamy v. Shanmugalakshmi

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.04.2016 CORAM :

THE HONOURABLE MR.JUSTICE C.T.SELVAM C.R.P.(PD) (MD) No. 873 of 2016 C.M.P.(MD) No.4478 of 2016 A.Periyasamy ... Petitioner/Petitioner/Plaintiff Vs.

1.Shanmugalakshmi 2.S.Pethuraj 3.P.Neelavathi .. Respondents/Respondents/Defendants PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the Fair and Decreetal Order dated 06.11.2015 in I.A.No.337 of 2015 in O.S.No.488 of 2010 on the file of the Additional District Munsif Court, Thoothukudi. For Petitioner : Mr.G.Prabhu Rajadurai For Respondents : Mr.S.Kadarkarai

O R D E R

This revision challenges the order of the learned Additional District Munsif, Tuticorin passed in I.A.No.337 of 2015 in O.S.No.488 of 2010 on 06.11.2015.

2. Heard learned counsel for petitioner.

3. Petitioner herein has moved O.S.No.488 of 2010 seeking a declaration of title to property and consequential permanent injunction against defendants. The case of petitioner/plaintiff was that he had purchased property from the deceased husband of first defendant, the father-in-law of defendants 2 and 3. Defendants 1 and 2 fraudulently executed a settlement deed dated 15.07.2002 registered as Document No.1629 of 2002 and in the capacity of legal heir of the deceased husband. Plaintiff has sought a declaration that such document was null and void.

4. Petitioner/plaintiff in paragraph No.7 of the plaint has informed thus:

7.Even prior to purchase of the schedule property by the plaintiff, there was strong difference of opinion between the plaintiff's vendor P.Shanmugam Reddiar and his son Pethuraj, the second defendant herein and P.Shanmugam Reddiar went to an extent of giving police complaint against his son. That dispuste was resolved between the family members as P.Shanmugam Reddiar settled an immovable property in favour of his son, the second defendant herein through registered settlement deed dated 7.3.2001 Doc.No.486/2001. Followed by the settlement, P.Shanmugam Reddiar sold the plaint schedule property to this plaintiff through registered sale deed dated 27.09.2001 Doc.No.1988/2001 in which the first defendant has signed as attesting witness.

Therefore, the defendants have no manner of right of title whatsoever over the schedule property after sale deed dated 27.09.2001 executed in favour of the plaintiff by P.Shanmugam Reddiar and the fraudulent settlement deed dated 15.07.2002 created by the defendants 1 and 2 in favour of the third defendant will not be binding on the plaintiff nor it will confer any right to the third defendant and it is non-est in law."

5. Petitioner has moved I.A.No.337 of 2015 for marking a letter dated 07.03.2001 allegedly executed by the second defendant, which he could not mark at the time of trial. Unfortunately, the said letter dated 07.03.2001 was referred to as a Release Deed. Such petition itself has been moved in circumstance where on the same being put to D.W.2 in the course of his cross-examination, the same was objected to and not allowed to be marked. Objections have been raised to I.A.No.337 of 2015 and the same was dismissed on the understanding that the letter dated 07.03.2001 is a release deed, which involved transfer of interest in property and as such required registration.

6. It is common case that the suit schedule property was the individual property of the deceased.

7. We have referred to paragraph No.7 of the plaint towards informing the letter dated 07.03.2011 is sought to be marked towards supporting the contentions therein. While one party has contended that such letter is release deed requiring registration, the other party contended the same being intended for collateral purpose does not require the same. Court below has been mislead into considering the rival submissions on the understanding that such letter is a elease deed.

8. We have perused the letter dated 07.03.2001. The same only informs of second defendant's undertaking not to get into any quarrel with the deceased/father in view of a settlement made in his favour under document No. 486/2001. The said letter cannot be construed as a release deed since one cannot execute a release deed in respect of property over which he has no interest. In this case, admittedly property was individually held by the deceased.

9. In view of the above, the fair and decreetal order dated 06.11.2015 in I.A.No.337 of 2015 in O.S.No.488 of 2010 on the file of the Additional District Munsif Court, Thoothukudi shall stand set aside. Accordingly, this revision is allowed. No costs. Consequently, connected C.M.P.(MD) No.4478 of 2016 is closed.

Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar CM To The Additional District Munsif, Thoothukudi.

+1CC to Mr.,G.Prabhu Rajadurai Advocate Sr.No.23226 +1CC to Mr.S.Kadarkarai Advocate Sr.No.22717 GJM.GSV/PM/6.5.16-3p-4C C.R.P.(PD)(MD)No.873 of 2016 and C.M.P.(MD) No.4478 of 2016 22.04.2016