IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.1040 of 2004 1.Chandrasekaran (D1) 2.Mohanraj (D2) .. Appellants -vs- 1.Mrs.R.Sarala (Plaintiff) 2.Mrs.Thenmozhi (D3) .. Respondents Prayer:- This Appeal has been filed under Section 96 of CPC against the decree and judgment in O.S.No.2550 of 1999 dated 16.07.2003 on the file of the III Additional Judge, City Civil Court, Chennai. For appellants : Mr.P.N.George Graham, Advocate For respondents : Mr.G.Karthikeyan, Advocate (For R1) JUDGMENT
This appeal has been directed against the decree and judgment in O.S.No.2550 of 1999 on the file of the Court of the III Additional Judge, City Civil Court, Chennai.
2.The facts of the plaint in brief relevant for the purpose of deciding this appeal are as follows:-
The first and second defendants are the brothers of the plaintiff and the third defendant is her sister. The plaintiff’s mother Sundaravalli inherited the plaint schedule property under a settlement deed dated 28.6.1964, Document No.1575 of 1964 before the Sub-Registrar, Royapuram, executed by her mother Mrs.Radhammal. Under the said settlement deed dated 28.6.1964 Mrs.Radhammal had given right of enjoyment to her daughter Sundaravalli (mother of the plaintiff) and after her death, the plaintiff and the defendants shall enjoy the property equally. Plaintiff’s mother expired on 15.2.1994 and after her death the suit property was enjoyed and possessed by the defendants and when the plaintiff demanded her 1/4th share in the suit property, the first & second defendants refused to give her share. So, the plaintiff tried to get 1/4th share in the suit property by way of amicable settlement through her relatives and well-wishers. But she failed in her attempts. So, on 14.12.1996 she went to the suit property to take her share in the property but, she was restrained by the 1st & 2nd defendants. So, she preferred a complaint before the Tondiarpet Police Station. Police investigated and referred the same as the compliant is civil in nature. Now, the defendants 1 &2 are trying to sell the suit property behind the back of this plaintiff. Hence, the suit for partition of plaintiff’s 1/4th share and also for permanent injunction restraining the defendants, their men and agents from alienating or encumbering the plaintiff’s /14th share in the plaint schedule property.
3.Defendants 1 & 2 have filed their joint written statement contending as follows:-
The suit is not maintainable. The defendant-3 is the sister of these defendants. Defendants mother Sundaravalli obtained the suit property by way of a settlement deed dated 28.4.1964 executed by the defendants’ grand-mother Mrs.Radhammal. As per the terms of the said settlement deed executed in favour of the defendants’ mother, she was given only her life estate and her children are entitled to enjoy the property conveyed under the said settlement deed. Sundaravalli died on 15.2.1994 leaving behind D1, D2, plaintiff and D3 as her legal representatives. The defendants deny the allegations that after the death of their mother, the property was enjoyed and possessed by the defendants and when the plaintiff demanded her < share in the suit property, the defendants refused to give her share and so, she tried to get 1/4th share in the suit property by way of amicable settlement through the relatives and well-wishers. On 6.8.1981 the plaintiff had relinquished her right, title and interest in the suit property by way of executing a deed of release. After the execution of the said release deed dated 6.8.1981, the plaintiff has no right or title in respect of any share in the plaint schedule property. Similarly, Mrs.Thenmozhi, who is the other co-sharer and a sister, also released her title and interest in the suit property in favour of D1 & D2. Now the defendants have become absolute owners of the suit property. The plaintiff has chosen to lodge a police complaint before H-3, Tondiarpet Police Station in 1996 and after enquiry, the Police advised the plaintiff not to proceed further as she has already relinquished her entire right in respect of the plaint schedule property in favour of D1 & D2. On the ill-advice the plaintiff has chosen to file a vexatious suit only to harass these defendants. The plaintiff has no cause of action to file the suit. Hence, the suit is liable to be dismissed with costs.
4.The third defendant remained exparte.
5.The plaintiff has filed a reply statement contending that to the best of her knowledge she had not executed any release deed as alleged by the 1st and 2nd defendants in their written statement. On 6.8.1981 the plaintiff was a minor aged about 16 years 7 months. As per the settlement deed dated 28.4.1964, the plaintiff and the defendants acquired right over the suit property only after the death of their mother Mrs.Sundaravalli, who died on 15.2.1994. If at all any release deed alleged to have been executed by the plaintiff on 6.8.1981 it is not valid, since the plaintiff and defendants did not have any right over the suit property at that time. As per the settlement deed dated 28.4.1964 the plaintiff and the defendants are each entitled to 1/4th share in the plaint schedule property. The plaintiff to her memory has not signed in any release deed dated 6.8.1981.
6.On the above pleadings the learned trial Judge has framed four issues for trial. The plaintiff has examined herself as P.W.1 and exhibited Ex.A.1 to Ex.A.3. D1 and D2 have examined themselves as D.W.1 and D.W.2 respectively and exhibited Ex.B.1-release deed dated 6.8.1981 said to have been executed by the plaintiff. The learned trial Judge after going through the evidence both oral and documentary has come to the conclusion that the plaintiff is not entitled to the relief as prayed for, has decreed the suit as prayed for, which necessitated the defendants 1 & 2 to prefer this appeal.
7.The points for determination in this appeal are as follows:-
1)Whether the plaintiff had relinquished her right, titlte and interest in respect of the plaint schedule property under Ex.B.1 in favour of the defendants?
2)Whether the decree and judgment of the learned trial Judge in O.S.No.2550 of 1999 on the file of the III Additional Judge, City Civil Court, Chennai, is to be set aside for the reasons stated in the memorandum of appeal?
8.Point No.1:- Ex.A.2 is the settlement deed executed by the grand-mother of the plaintiff, viz. Radha Ammal dated 22.4.1964 in favour of her husband Kuttiyappa Mudaliar and her adopted daughter Sundaravalli, the mother of the plaintiff as well as the defendants. Under Ex.A.2-settlement deed the settler had settled the scheduled property ie. 1 ground in R.S.No.3734/33 with a house bearing Door No.63 giving life estate in favour of settllee No.1 viz.Thiru.N.Kuttiyappa Mudaliar and also life estate to Sundaravalli – 2nd settlee and the remainder to the children born to Sundaravalli. So, as per Ex.A.2 settlement deed the plaintiff has comeforward with this suit claiming 1/4th share in the plaint schedule property admitting that the other sharers are D1 & D2, who are none other than the brothers and D3 her sister. The only defence putforward by the contesting defendants 1 & 2 is that on 6.8.1981 the plaintiff had relinquished her entire right, title and interest in respect of the plaint schedule property in favour of D1 & D2. Ex.B.1 is the registered released deed dated 6.8.1981 executed by the plaintiff in favour of D1 and D.2 in respect of her share in the plaint schedule property. It is the case of the plaintiff before the trial Court that she is not aware of Ex.B.1 and that she was only a minor at the time of execution of Ex.B.1 and that Ex.B.1 will not bind her.
8(a)The learned counsel for the 1st respondent/plaintiff would contend that since the plaintiff/1st respondent was not born on the date of execution of Ex.A.2-settlement deed, under the said settlement deed Ex.A.2 right has been vested on the plaintiff and that the vested right cannot be divested on the ground that the plaintiff/R1 was not born on the date of execution of Ex.A.2-settlement deed. A reading in between the lines of Ex.A.2 will go to show that the settler viz. Radhammal had settled the plaint schedule property in favour of her husband Kuttiyappa Mudaliar and also on her adopted daughter Sundravalli, the mother of the plaintiff, giving life estate to her and the reminder to the children born to Radhammal. So the right vested under Ex.A.2 in favour of the plaintiff cannot be divested on the ground that she was not born on the date of execution of Ex.A.2. In support of his contention, the learned counsel for the plaintiff/R1 would rely on AIR 1985 SUPREME COURT 1359 (A.Sreenivasa Pai and another Vs. Saraswathi Ammal @ G.Kamala Bai). The facts of the said case as well as the dictum runs as follows:-
“One K.Vasudeva Pai died in the year 1932 and his son V.Sreenivasa Pai died in the year 1935. Padvathi Ammal, the widow of K.Vasudeva Pai, in whose favour the settlement deed had been executed, died on June 27, 1951. After her death Saraswathi Ammal alias G.Kamala Bai, the widow of V.Sreenivasa Pai filed a suit in the year 1952 in O.S.No.153 of 1952 on the file of the District Judge, Quilon for possession of the properties described in plaint ‘A’ and ‘B’ Schedules, the plaint ‘A’ Schedule properties being the properties which had been settled in favour of Padmavathi Ammal under the settlement deed referred to above and plaint ‘B’ Schedule properties being certain other proeprties said to have been purchased from out of the rents and other incomes realised from the plaint ‘A’ Schedule properties as A.Sreenivasa Pai and his wife S.Lakshmi Ammal had denied the right of Saraswathi Ammal alies G.Kamala Bai. The case put forward by her in the plaint was that the plaint ‘A’ Schedule properties had been purchsed in the name of A.Sreenivasa Pai for the benefit of Padmavathi Ammal and her family and they stood only nominally in the name of A.Sreenivasa Pai. The said suit was dismissed by the District Judge, Quilon on September 16, 1957 holding that the benami nature of the purchase of the plaint ‘A’ Schedule properties in the name of A.Sreenivasa Pai had not been established. Saraswathi Ammal @ G.Kamala Bai filed an appeal against the judgment of the District Court before the High Court of Kerala in A.S.No.297 of 1959. The High Court was of the opinion that on the evidence on record there was no rason to interfere with the decree of the Trial Court dismissing the suit holding that the benami nature of the transaction had not been established but it was, however, of the view that since the true effect of the settlement deed had not been considered by the Trial Court an opportunity should be given to the plaintiff to amend the plaint suitably and the issues arising out of such amendments should be tried again by the trial Court. Accordingly, the High Court by its judgment dated January 18, 1961 remanded the case to the District Court. After remand, the plaint was amended raising an alternative plea stating that under the settlement deed Padmavathi Ammal had been conferred only a life estate and the properties had been given absolutely to Sreenivasa Pai to enjoy them aftr the lifetime of Padmavathi Ammal. It was further pleaded that on the death of Padmavathi Ammal who was only a life estate holder, the properties devolved on Saraswathi Ammal @ G.Kamala Bai who was the sole heir of V.Sreenivasa Pai. A.Sreenivasa Pai and Lakshmi Ammal pleaded that Padmavathi Ammal had been conferred absolute title in respect of the plaint ‘A’ schedule properties and on her death the said properties being streedhana properties of Padmavathi Ammal had devolved on her daughter Lakshmi Ammal.
While answering the issue ‘What is the nature of the estate obtained by the deceased Padmavathi Ammal as per the settlement deed executed by the 1st defendant in her favour?’ the trial Court held that Padmavathi Ammal had been conferred an absolute estate under the settlement deed and on her death her daughter Lakshmi Ammal had inherited them. But the said finding was reversed by the High Court of Kerala in A.S.No.327 of 1964, which necessitated Lakshmi Ammal to prefer the above said Second Appeal before the Honourable Apex Court. The Honourable Apex Court has held as follows:-
“It is seen from the portions of the settlement deed, extracted above, that A.Sreenivasa Pai desired to give the properties mentioned in the said deed to V.Sreenivasa Pai absolutely subject to the life interest conferred on Padmavathi Ammal. It is difficult to agree with the submission made on behalf of the appellants that the said document conferred an absolute title on Padmavathi Ammal because the document does not show that the properties were being given to her to be enjoyed by her and by her heirs from generation to generation. It may be noted that V.Sreenivasa pai admittedly was not an apparent heir to the properties of Pdmavathi Ammal on the date of the document as her daughter Lakshmi Ammal was alive on that date. If A.Sreenivasa Pai intended that his wife S.Lakshmi Ammal should succeed to the properties transferred under the settlement deed after the death of Padmavathi Ammal he would have stated in the document that the properties should on her death go to her heirs but on the other hand he stated “I hereby agree that you, and after you, your son, and his descendants from generation to generation for all time may hold the properties and enjoy the same from this day onwards.” These words clearly point out that A.Sreenivasa Pai never intended that the properties transferred under the deed of settlement should on the death of Padmavathi Ammal go to her heir at law. Acceptance of the contention of the appellants in the circumstances would render and after you, your son and his descendants from generation to generation’ meaningless. Any such construction should ordinarily be avoided. Having regard to the recitals in the document and the circumstances in which it came to be executed, we are of the view that the above words of disposition conferring title on V.Sreenivasa Pai do not constitute a subordinate clause in the deed. We d not agree that these words have been used in the document merely as a defeasance clause attached to the absolute estate conveyed in favour of Padmavathi Ammal. Nor do these words appear to our mind to create a different mode of succession to the absolute estate of Padmavathi Ammal after her death. They treat V.Sreenivasa Paid as a direct beneficiary under the deed itself. The document read as a whole leaves no doubt in our mind that V.Sreenivasa Pai was given under it the absolute estate in the properties subject to the life estate created in favour of Padmavathi Ammal. The object of executing the settlement deed was obviously to confer the benefit on the familyof V.Sreenivasa Pai which was in distress and not that Padmavathi Ammal should alone be benefited.”
8(b)The other limb of argument advanced by the learned counsel appearing for the plaintiff/R1 is that even under Ex.A.2-settlement deed, the plaintiff and defendants will get right, title and interest in respect of the plaint schedule property only after the death of Sundaravalli, 2nd settlee under Ex.A.2 and that Sundaravalli was alive on the date of Ex.B.1 and Sundaravalli died only on 15.2.1994. To show that Sundaravalli died on 15.2.1992 and she was alive on the date of execution of Ex.B.1, there was no material placed before the trial Court. In support of the contention that the plaintiff was a minor on the date of Ex.B.1-release deed dated 6.8.1981, the plaintiff has produced Transfer Certificate Ex.A.1 to show that her date of birth was on 9.1.1965, but the plaintiff has not produced the birth certificate issued under the Registration of Birth and Death Act. The learned trial Judge on the basis of Ex.A.1 has come to an erroneous conclusion that Ex.B.1-release deed was executed by the plaintiff while she was minor, has rejected Ex.B.1 and granted a preliminary decree for partition of plaintiff’s 1/4th share in the plaint schedule property. Even though the plaintiff in her reply statement before the trial Court would raise a contention that she is not aware of Ex.B.1, even after filing of Ex.B.1 before the trial Court, the plaintiff has not taken any steps to amend the plaint relief so as to set aside Ex.B.1-release deed. Under Article 59 of the Limitation Act, 1963 also the plaintiff has not taken any steps to cancel or set aside Ex.B.1-registered released deed dated 6.8.1981. In the cross-examination the plaintiff as P.W.1 would admit her signature in Ex.B.1, but she would depose that she does not know the contents of Ex.B.1. The argument of the learned counsel for the respondent-1 that even under Ex.A.2, only the children born to Sundaravalli who were alive at the time of execution of Ex.A.2 alone are entitled to a share in the plaint schedule property and that the plaintiff, who was not born on the date of Ex.A.2, is not entitled to any share in the suit property, cannot hold any water because even as per the recitals in Ex.A.2 all the children born to Sundaravalli are entitled to the plaint schedule property. In the absence of any proof to show that on the date of Ex.B.1 plaintiff was a minor, the release deed executed by the plaintiff under Ex.B.1 in favour of D1 & D2 in respect of her share in the plaint schedule property cannot be rejected. Ex.A.1-transfer certificate is not a valid proof for the date of birth of the plaintiff. Under such circumstance, the findings of the learned trial Judge that the plaintiff is entitled to 1/4th share in the plaint schedule property is liable to be interfered with. Point No.1 is answered accordingly.
9.Point No.2:- In view of my finding and discussion in the earlier paragraphs, I hold on point No.2 that the decree and judgment of the learned trial Judge in O.S.No.2550 of 1999 on the file of the III Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal.
10.In fine, the appeal is allowed and the decree and judgment in O.S.No.2550 of 1999 on the file of the III Additional Judge, City Civil Court, Chennai, is hereby set aside. No costs. The plaintiff is at liberty to challenge Ex.B.1 by producing relevant proof in a separate suit, if she is so advised. Time for the purpose of limitation will run from today.
23.09.2008
Internet : Yes / No
Index : Yes / No
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NOTE:-Issue on 24.09.2008.
Registry is directed to draft the decree within a week.
To,
1.The III Additional Judge, City Civil Court, Chennai.
2.The Section Officer,
V.R.Section. High Court,
Madras.
A.C.ARUMUGAPERUMAL ADITYAN, J.
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A.S.No.1040 of 2004
23.09.2008