IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.11.2017 CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE P.KALAIYARASAN A.S.Nos.292 and 293 of 2014 and M.P.Nos.1 and 2 of 2014 and C.M.P.No.3776 of 2016
A.S.No.292 of 2014
1. B.M.Kotteswaran
2. B.M.Thulasidass .. Appellants Vs.
1. R.Devasena
2. R.Varshini
3. R.Sudarsan
4. Padmavathi
5. A.Dhanalakshmi
6. Jayalakshmi
7. M/s. Sekar Provision Stores No.17, Ayyalu Street, Vetri Nagar, Chennai - 600 082.
8. Moosa Bai
9. Kesava
10. Rani Ammal
11. Raja .. Respondents Prayer in A.S.No.292 of 2014 : Appeal Suit filed under Section 96 r/w Order 41 Rule 1 and 2 of the Code of Civil Procedure, against the Judgment and Decree, dated 06.03.2013 made in O.S.No.10176 of 2010 on the file of the XVIII Additional Judge, City Civil Court, Chennai.
For appellants : Mr.Anand Venkatesh for Mr.K.V.Babu for first appellant Mr.P.V.S.Giridhar for second appellant For respondents : Mr.A.R.Nixon for R1 to R3 No Appearance for R4 to R7 and R9 R8, R10 and R11 are exonerated as per order, dated 23.10.2017.
Prayer in A.S.No.293 of 2014 : Appeal Suit filed under Section 96 r/w Order 41 Rule 1 and 2 of the Code of Civil Procedure, against the Judgment and Decree, dated 06.03.2013 made in O.S.No.10177 of 2010 on the file of the XVIII Additional Judge, City Civil Court, Chennai.
For appellant : Mr.Anand Venkatesh for Mr.K.V.Babu For respondents : Mr.P.V.S.Giridhar for R1 Mr.A.R.Nixon for R2 & R3 No Appearance for R4 to R7
COMMON JUDGMENT
(Judgment of the Court was delivered by P.KALAIYARASAN, J ) These two Appeal Suits arise from the common judgment of the XVIII Additional Judge, City Civil Court, dated 06.03.2013 in O.S.No.10176 of 2010 and O.S.No.10177 of 2010 dismissing the suit for partition and permanent injunction and decreeing the other suit, whereby declaring the settlement deed, dated 21.08.1989 executed by B.Munuswamy in favour of B.M.Rajasekar as true and binding on the defendants in that suit and damages.
2. The plaintiff in partition suit (O.S.No.10177 of 2010) and the defendants 1 and 2 in the suit for declaration (O.S.No.10176 of 2010) filed these two Appeal Suits A.S.No.293 of 2014 and A.S.No.292 of 2014 respectively. In this common Judgment on these two appeals, for the sake of convenience the plaintiffs and defendants arrayed in the suit for declaration, i.e., O.S.No.10176 of 2010 will be mentioned as plaintiffs and defendants.
3. The case of the plaintiffs as pleaded in their plaint and in the written statement filed in the other suit is as follows :
The genealogy tree of the family is as follows : Munuswamy (Died on 20.09.1993) Sakkubai (Wife of Munuswamy) D1 D2 Rajasekar D4 D5 (Died on 03.05.2000) P1 (Wife of Rajasekar) P2 P3 D6 to D10 are tenants.
4. Mr.Munuswamy during his life time provided separate properties to D1 and D2. He also arranged marriage of his daughters D3 to D5 by incurring huge expenditure for their marriage and for providing dowry. Mr.Munuswamy executed a settlement deed on 21.08.1989 in favour of his son B.M.Rajasekar and his wife Sakkubai in respect of the suit property measuring an extent of 3600 sq.ft. B.M.Rajasekar married the first plaintiff in the year 1994 and they were blessed with plaintiffs 2 and 3. As per the Registered Settlement Deed, the settlor Munuswamy and his wife Sakkubai have life interest over the properties and after their life time it will devolve upon Mr.B.M.Rajasekar absolutely. The settlor Munuswamy died on 20.09.1993. Till his life time he collected the rent and maintained the property. After his death, the second settlee B.M.Rajasekar collected the rent and maintained the property. The first settle Sakkubai was residing without any problem till the death of Rajasekar on 03.05.2000. B.M.Rajasekar and Sakkubai sold an extent of 1200 sq.ft. of land for medical treatment of Rajasekar and for the lumpsum payment of maintenance of Sakkubai.
5. The defendants 1 and 2, the other sons of Munuswamy also signed as witness in that sale deed. Due to diabetics and other ailments, Rajasekar died on 03.05.2000. After his death the defendants 1 to 3 instigated the mother Sakkubai and tried to evict the plaintiffs with an object of grabbing the entire property. Therefore, the plaintiffs filed O.S.No.1101 of 2001 on the file of the XVII Assistant City Civil Court, Chennai for permanent injunction restraining the defendants theirin from interfering with the peaceful possession and enjoyment of the suit property. The said suit was dismissed on 01.03.2005.
6. The plaintiffs are absolute owners of the suit property.
Without any right, the defendants 1 to 5 have been collecting the entire rent from the suit property. The defendants 1 and 2 collected Rs.5,050/- per month from tenants towards rent. The plaintiffs restrict the claim for 36 months to the tune of Rs.1,81,800/-. D1 and D2 also occupied 280 sq.ft. and for the use and occupation of that portion, the plaintiffs claim Rs.54,000/- towards damages. D3 occupies 200 sq.ft and for use and occupation, the plaintiffs claim Rs.28,800/- towards damages. On 12.09.2005, legal notice was issued by the plaintiffs to D1 and D3 and other tenants. On 24.09.2005, D1 to D5 sent reply with false allegations but admitting the collection of rent. Therefore, the plaintiffs have come forward with the suit.
7. The case of the first defendant who also filed the suit for partition as a plaintiff is as follows:
(i) The suit in O.S.No.10176 of 2010 is a continuation of proceeding in O.S.No.1101 of 2001 on the file of the XVII Assistant City Civil Court, Chennai. The suit is barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908. The defendants are entitled to a share in the suit property. The settlement deed dated 21.08.1989 executed by late B.Munuswamy is admitted. As per the settlement deed, after the life time of late B.Munuswamy and late Sakkubai, the property would devolve on late B.M.Rajasekar. Late B.M.Rajasekar predeceased Sakkubai. Hence the settlement deed would cease to have effect and the defendants would be entitled to a share. Without prejudice to the above contentions, settlement deed is void ab initio as it is hit by rule against perpetuity, as two life interest have been created. Relationship between the parties are admitted. No property was given to the first and second defendants during the life time of Munuswamy as alleged by the plaintiffs.
(ii) Incurring marriage expenses and providing dowry to the marriage of D3 to D5 are denied. D1 and D2 signed in the settlement deed only under coercion from their father. A portion of the suit property was sold and entire sale proceeds was taken by the first plaintiff. Huge amount was spent by the defendants for the treatment of Rajasekar. D1 and D2 collected rent and utilised the same for the maintenance of the property. Defendants are not denying the rights of the plaintiff but they are trying to protect their rights. D1 to D5 have in total 15/18 share. D2 to D5 support the case of the first defendant. D2 along with D1 filed the written statement.
8. D3 to D5 in their written statement avers that on the death of Munuswamy on 20.09.1993, limited estate given to Sakkubai blossomed into an absolute right and therefore, she became co-owner with Rajasekar. Therefore, the plaintiffs are entitled to 5/8 share.
9. The trial Court framed necessary issues. On the side of the plaintiff, one witness was examined and 20 Exhibits were marked. On the side of the defendants, five witnesses were examined and 11 Exhibits marked. The trial Court after analysing both the oral and documentary evidence declared the settlement deed executed by B.Munuswamy in favour of B.M.Rajasekar as true and binding on the defendants and also directed the defendants to pay damages. The suit for partition and permanent injunction filed by the first defendant has been dismissed. Aggrieved by the Judgment and Decree, the plaintiff in O.S.No.10177 of 2010 as appellant has filed A.S.No.293 of 2014 and the defendants 1 and 2 in O.S.No.10176 of 2010 as appellants preferred A.S.No.292 of 2014.
10. The learned counsel appearing for the appellant while arguing the appeals has given up the plea as to the rule against perpetuity. The main arguments put forth by the appellant are that the present suit filed by the plaintiff to declare the plaintiffs as owners of the property on the basis of settlement deed is hit by Order 2 Rule 2 of Civil Procedure Code, in view of the earlier suit in O.S.No.1101 of 2001 before the XVII Assistant City Civil Court, Chennai. It is further contended that the best evidence available with the plaintiff, namely Will has not been filed before this Court. It is also further contended that Rajasekar has not become owner of the property as per the settlement deed as he predeceased his mother, who is given life interest in the property.
11. The learned counsel appearing for the respondent per contra contends that as per the settlement deed, Rajasekar is the absolute owner of the suit property with life interest to his father and mother. The earlier suit in O.S.No.1101 of 2001 filed by the plaintiffs is only to protect their possession and the relief asked for is only the permanent injunction and the title was not in question in that suit and therefore, bar under Order 2 Rule 2 CPC is not attracted.
12. There is no dispute with respect to the relationship between the parties. D1 to D5 and Rajasekar are children of one Munuswamy and Sakkubai. Munuswamy, Sakkubai and Rajasekar have passed away and the plaintiffs are legal heirs of Rajasekar. The second schedule property shown in the plaint in O.S.No.10176 of 2010 on the file of the XVIII Additional Judge, City Civil Court, Chennai are a portion of the first schedule property and the same is in occupation of the defendants. The first schedule property in the above suit and the suit schedule property in the other suit are one and the same and the same is covered under the Settlement Deed in dispute.
13. According to the plaintiffs, the plaintiffs have got absolute right as per the settlement deed, dated 21.08.1989, which is marked as Ex.P.1. But according to the defendants, the settlement deed would cease to have effect as B.M.Rajasekar predeceased his mother Sakkubai, as the property would devolve on late B.M.Rajasekar only after the life time of Munuswamy and Sakkubai. There is no dispute that Munuswamy died on 20.09.1993 and Rajasekar died on 03.05.2000. Sakkubai died subsequently, i.e., on 09.03.2002. Therefore, it is to be seen whether B.M.Rajasekar got right over the property on the date of settlement deed or whether the property would devolve on him after the life time of Sakkubai.
14. The settlement deed has been marked as Ex.P.1. It is a registered settlement deed executed by Munuswamy in favour of Rajasekar s/o. B.R.Munuswamy retaining the life interest to B.R.Munuswamy and his wife Mrs.Sakkubai. The other two sons, namely D1 and D2 have attested the settlement deed. D1 examined as D.W.1 admits that he along with his brother attested the settlement deed. Though defendants 1 and 2 pleaded that they signed in the settlement deed under coercion from their father, there is no acceptable evidence to establish the same. The recitals of the settlement deed reads thus :
"And whereas the Settlor, considering his old age intend to provide for his wife and third (youngest) son, the Settlee 1 and 2 herein by irrevocably settling the house and ground property described in the schedule hereunder, retaining life interest for himself and 1st Settlee without any powers of alienation and thereafter to the 2nd Settlee herein absolutely with all powers of alienation and disposition, out of love and affection the 'Settlor' bears for the 'Settlee 1 and 2' herein."
15. The Hon'ble Supreme Court in Renikuntla Rajamma v. K.Sarwanamma, reported in AIR 2014 SC 2906 has held as follows:
"19. The recitals in the gift deed also prove transfer of absolute title in the gifted deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the life time of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor."
16. As per Section 123 of Transfer of Property Act, 1882, for making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The provision of Section 123 of Transfer of Property Act do away with the necessity for delivery of possession, even if it was required by the strict Hindu Law. Here in this case on hand, gift has been effected by a registered settlement deed by the donor and attested by two witnesses. The settlement deed was also accepted by Rajasekar and he along with his mother sold a portion of the property under the settlement deed as per Ex.P.2. In the above sale deed, his brothers D1 and D2 also signed as witnesses. As per the recital of the settlement deed, only enjoyment of the property during the life time of Munuswamy and Sakkubai was retained and the same does not affect the transfer of ownership in favour of Rajasekar. Thus Rajasekar got the absolute title in the gifted property as per the settlement deed and therefore the word "irrevocably settled" has been employed. Vesting life interest to the donor and his wife will not take away the absolute right given to Rajasekar. Therefore, the contention of the learned counsel appearing for the appellant that settlement deed would cease to have effect as Rajasekar predeceased his mother is sans merit.
17. Another main contention of the learned counsel appearing for the appellant is that the present suit C.S.No.920 of 2007 is barred by Order 2 Rule 2 CPC. The earlier suit in O.S.No.1101 of 2001 filed by the plaintiffs is for permanent injunction. The copy of the plaint is marked as Ex.B.1. The written statement in that suit is marked as Ex.B.2.
18. Paragraph 10 of the plaint reads thus :
"The 1st plaintiff to state that the 2nd and 3rd plaintiffs are the children born out of the lawful of the 1st plaintiff and one Mr.B.M.Rajasekaran. The 1st defendant is the mother-in-law of the 1st plaintiff. The 2nd defendant is the sister-in-law, the 3rd and 4th defendants are the Brother-in-law of the 1st plaintiff. The 1st plaintiff was married to one Mr.B.M.Rajasekaran in the year 1994 that is on 07/09/1994 and out of their lawful wedlock the 1st plaintiff gave birth to the 2nd and 3rd plaintiffs. The 1st plaintiff was living in a joint family at house property bearing Door No.17, Ayyalu Street, Vetri Nagar, Chennai-600 092 right from her marriage and even now as on date. The 1st plaintiff states that the land and building bearing Door No.17, Ayyalu Street, Vetri Nagar, Chennai-600 092 originally was absolutely owned by her father-in-law Mr.B.Munuswamy. After the death of the 1st plaintiff's father-in-law the schedule mentioned property was jointly enjoyed and was under the possession of the 1st plaintiff's husband, the plaintiffs and the 1st defendant herein."
19. Paragraph 4 of the written statement filed by the defendants including the mother and brothers of Rajasekar reads thus :
"The allegations contained in Para 10 are denied. As already stated, the Settlement Deed is invalid and no right can flow to the plaintiff under this document."
20. As per Order 8 Rule 13 CPC, denial is to be specific.
The above denial in paragraph 4 of the written statement in O.S.No.1101 of 2001 is only evasive denial. Mere denial that the settlement deed is invalid and no right could flow to the plaintiffs under this document cannot be construed that the defendants denied title of the plaintiffs to the suit property.
21. Bar under Order 2 Rule 2 of the Code of Civil Procedure would come in only when the plaintiff file subsequent suit on the same cause of action. The Hon'ble Supreme Court in Inbasegran v. S.Natarajan (Dead) thr. L.Rs (SC) reported in 2014 (6) CTC 445 has held as follows :
"26. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical."
22. The present suit has been filed for declaration of title of the plaintiff on the basis of the settlement deed, dated 21.08.1989. The earlier suit in O.S.No.1101 of 2001 was filed for permanent injunction to protect the possession of the plaintiffs in the suit property, as there was imminent threat of dispossession immediately after the demise of 1st plaintiff's husband Rajasekar. As already pointed out, there is no specific denial on the side of the defendants in the earlier suit as to the title of the plaintiffs. Therefore, the cause of action in both the suits are not the same and identical. Thus the contention of the learned counsel appearing for the appellant that the present suit is barred under Order 2 Rule 2 CPC is not sustainable. Since there is no specific denial in the written statement filed in the earlier suit, right to sue as to the title does not arise at that time. As per Article 58 of the Limitation Act, 1963, the suit for declaration is to be filed within three years from the date when the right to sue first accrues.
23. The plaintiffs issued notice on 12.09.2005 to the defendants. In the reply dated 24.09.2005 sent to the above notice the defendants denied the title by saying that the plaintiffs are entitled to only their share in the property. Therefore the suit has been filed by the plaintiffs for declaration of their title on the basis of the settlement deed and the same is well within time.
24. Yet another contention of the appellants is that the Will relied upon by the plaintiffs has not been produced. The claim in their suit is not based on the Will and therefore the question of withholding of the Will by the plaintiffs does not arise.
25. The defendants admit the collection of rent from the portions of the suit property as alleged in the plaint and occupation of certain portion by them. The plaintiffs also restrict the claim for three years. The trial court has also directed the defendants to pay damages as prayed for by the plaintiffs.
26. For the aforesaid reasons, the trial Court has rightly decreed the suit in O.S.No.10176 of 2010 and dismissed the suit in O.S.No.10177 of 2010 and this Court does not see any reason to interfere with the Judgment and Decree of the trial Court.
27. In the result, both the Appeal Suits are dismissed with costs, confirming the common Judgment and Decree, dated 06.03.2013 made in O.S.No.10176 of 2010 and O.S.No.10177 of 2010 on the file of the XVIII Additional Judge, City Civil Court, Chennai. Consequently, connected miscellaneous petitions are closed.
Index :Yes (A.S.,J.) (P.K.,J) 08-11-2017 tsvn To The XVIII Additional Judge City Civil Court, Chennai.
A.SELVAM,J.
AND P.KALAIYARASAN,J.
tsvn Pre Delivery Common Judgment in A.S.Nos.292 and 293 of 2014 08-11-2017