BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/10/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.257 of 2000 Paradesi ... Appellant Vs 1.Thamarai Vadivu 2.Uchimahali ... Respondents Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 15.10.1999 made in A.S.No.34 of 1996 on the file of the Principal Sub Court, Tirunelveli, confirming the judgment and decree dated 17.11.1995 made in O.S.No.632 of 1987 on the file of the Additional District Munsif, Tirunelveli. !For Appellant ... Mr.T.R.Rajaraman ^For Respondents ... Mr.K.Srinivasan :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
15.10.1999 made in A.S.No.34 of 1996 on the file of the Principal Sub Court,
Tirunelveli, confirming the judgment and decree dated 17.11.1995 made in
O.S.No.632 of 1987 on the file of the Additional District Munsif, Tirunelveli.
2. A re’sume’ of facts absolutely necessary and germane for the disposal
of this second appeal as stood exposited from the records could be portrayed
thus:
The respondents herein filed a suit in O.S.No.632 of 1987 on the file of
the Additional District Munsif, Tirunelveli, praying to declare them as the
absolute owners of the immovable property described in the schedule of the
plaint and for delivery of possession and other consequential reliefs.
3. The quintessence of the case of the plaintiffs is that one Malaiyandi,
in respect of the suit property executed a settlement deed dated 11.11.1960 in
favour of his paternal grand son Shanmugasundaram, so to say, the son of the
defendant Paradesi. The first plaintiff happened to be the wife of the deceased
Shanmugasundaram, the second plaintiff is their minor daughter.
4. It is the case of the plaintiffs that during the life time of
Shanmugasundaram, the settlement deed came into force and it was acted upon.
However subsequent to the untimely death of Shanmugasundaram, the defendant
herein having some disagreement with the first plaintiff usurped the suit
property. Hence, the suit.
5. Per contra, denying and disputing, refuting and challenging the
averments/allegations in the plaint, the defendant filed the written statement
on the main ground that the alleged settlement deed is void ab initio as it
cannot be taken as a legal document for want of acceptance on behalf of their
minor Shanmugasundaram. Various other points also were raised including the
pecuniary jurisdiction.
6. The trial Court framed various issues. During trial, on the side of
the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A.1 to A.6 were exhibited
and on the side of the defendant, D.W.1 to D.W.3 were examined and Exs.B.1 to
B.8 were exhibited and ultimately the trial Court decreed the suit.
7. Being aggrieved by and dissatisfied with, the Judgment and Decree of
the trial Court, A.S.No.34 of 1996 on the file of Principal Sub Court,
Tirunelveli, was filed reiterating the grounds as found set out in the written
statement of the defendant.
8. The appellate Court confirmed the Judgment and Decree of the trial
Court as against which the present Second Appeal has been filed reiterating the
same law point relating to the validity of the settlement deed.
9. At the time of admitting this second appeal, my learned predecessor
framed the following substantial questions of law:
“1.When the settlement deed is not accepted by the donee during the life
time of the donor and being thus void, are the Courts below correct in decreeing
the suit on the basis of this settlement deed?
2. Are the Courts below correct in decreeing the suit on the basis of
settlement deed Ex.A.1 which was executed in favour of a minor without being
represented by a guardian?
3. Are the Courts below right in decreeing the suit on the basis that no
action has been taken by the defendant to set aside the settlement deed which is
a void document?
4. Are the Courts below correct in decreeing the suit when the suit is not
maintainable before the District Munsif Court, Tirunelveli for want of pecuniary
jurisdiction?”
10. Heard both sides.
11. The learned Counsel for the appellant by placing reliance on the same
law point agreed that even though the impugned settlement deed dated 11.11.1960
was nomenclatured as settlement deed, yet in stricto sensu, it was a donation
deed and accordingly, it was bad for want of acceptance on behalf of the then
minor beneficiary Shanmugasundaram. The learned Counsel for the appellant would
submit that he is not particular in pressing for the law point relating to
pecuniary jurisdiction.
12. Per contra, the learned counsel for the respondents/plaintiffs would
contend that a mere perusal of Ex.A.1 would demonstrate and convey the fact that
it is a settlement deed and not a donation deed.
13. Perused the Ex.A1, which would show that it was written only as a
settlement deed and registered also as such and there is nothing to show that it
has to be treated as a donation deed under the Transfer of Property Act.
14. Section 2(24) of the Indian Stamp Act, 1899, is extracted here under
for ready reference:
“2(24).Settlement.- “settlement” means any non-testamentary disposition,
in writing, of movable or immovable property made –
(a) in consideration of marriage,
(b) for the purpose of distributing property of the settler among his
family or those for whom he desires to provide, or for the purpose of providing
for some person dependent on him, or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a deposition [and, where any
such disposition has not been made in writing, any instrument recording, whether
by way of declaration of trust or otherwise, the terms of any such
disposition.]”
15. Ex.A.1 is covered by sub-clause (b) cited supra. Indubitably and
indisputably, incontrovertibly and admittedly, Shanmugasundaram happened to be
the son of the defendant herein and accordingly, he is the paternal grand son of
the settler and in such a case, it could rightly be taken that he was the close
relative of the settler and in such a case, as per Section 2(24) of the Act, no
acceptance is required as the said section does not contemplate any acceptance
on behalf of the minor. The distinction between donation deed and settlement
deed is obvious. Settlement could be between close relatives and dependants,
whereas donation could be between any two persons. The very definition of
settlement would warrant an interpretation that the settler irrespective of
settlee’s willingness or acceptance could thrust the benefit on the latter.
16. Both the Courts below after considering the evidence arrived at the
conclusion that the said Ex.A.1 was acted upon and in such a case, I am of the
considered view that no interference with the concurrent findings of the both
the Courts below, is warranted.
17. In the result, this second appeal is dismissed. However, in the facts
and circumstances of the case, there is no order as to costs. Consequently,
connected C.M.P.No. is also dismissed.
rsb
To
1.The Principal Sub Court, Tirunelveli.
2.The Additional District Munsif, Tirunelveli.