Challenging the judgment and decree passed in A.S.No.89 of 2011, on the file of I Additional Subordinate Court, Nagercoil, reversing the judgment and decree passed in O.S.No.351 of 2010, on the file of III Additional District Munsif Court, Nagercoil, the second defendant has filed the above Second Appeal.
2. The respondent is the plaintiff in the suit. The plaintiff filed the suit in O.S.No.351 of 2010 to declare the sale deed executed by the first defendant in favour of the second defendant dated 25.11.2008 is nullity and for permanent injunction restraining the second defendant from trespassing into the suit property.
3. The brief case of the plaintiff is as follows:
According to the plaintiff, the suit property originally belonged to one Paramayee, the mother of the plaintiff and the first defendant. On 08.09.1995, she executed a settlement deed in favour of the first defendant. As per the settlement deed, the suit property should be enjoyed by the settlor and and her husband Yesudhasan till their life time and it should be enjoyed by the first defendant and his wife Glory. If they do not have the child, after their life time, the property should devolve upon the plaintiff. Since the first defendant did not have any child, after his lifetime, the property will devolve upon the plaintiff. The said Paramayee had died on 02.09.1999. In violation of the terms of the settlement deed, the first defendant executed a sale deed dated 25.11.2008 in favour of the second defendant, which is void. The second defendant at the instigation of the first defendant tried to trespass into the suit property which was successfully restrained by the plaintiff. In these circumstances, the plaintiff filed the suit.
4. The brief case of the second defendant is as follows: The suit property originally belonged to Paramayee who settled the same on 08.09.1995 in favour of the first defendant with some conditions. According to the second defendant, the conditions are invalid. On 21.03.1996, the said Paramayee and her husband Yesudhasan released their enjoyment right in favour of the first defendant. Since the date of release, the second defendant became an absolute owner of the suit property. In these circumstances Paramayee, Glory and the plaintiff had no right over the suit property. On 13.08.1996, the plaintiff fraudulently obtained a cancellation deed from his mother thereby cancelled the settlement deed dated 08.09.1995 and release deed dated 21.03.1996. Subsequently, on 20.08.1996, Paramayee was made to execute a gift deed in favour of Glory. On 10.04.2000, the said Glory executed a release deed in favour of the first defendant who sold the same to the second defendant on 25.11.2008. Now the second defendant is in possession and enjoyment of the suit property by mutating the revenue records. The plaintiff has no right, title or possession over the suit property. The defendant did not attempt to trespass into the suit property. In these circumstances, the defendant prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, P.W.1 was examined and 2 documents viz., Exs.A.1 and A.2 were marked and on the side of the defendants, the second defendant was examined as D.W.1 and 14 documents viz., Exs.B.1 to B.14 were marked. The trial Court, after taking into consideration the oral and documentary evidences let in by the parties, dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff preferred an appeal in A.S.No.89 of 2011 and the lower Appellate Court reversed the judgment and decree of the trial Court and allowed the appeal. Aggrieved over the judgment and decree of the lower Appellate Court, the second defendant has filed the above Second Appeal.
6. Heard Mr.S.Rajaprabu, learned Counsel appearing for the appellant and Mr.V.Meenakshi Sundaram, learned Counsel appearing for the respondent.
7. The appellant has raised the following Substantial Questions of Law in the Second Appeal:
?(a) Whether the conditions stated in Exs.A.1 and B.1 is sustainable as per
Section 10 of Transfer of Property Act?
(b) Whether the suit is bad for non-joinder of necessary parties as per Order 1 Rule 9 and 10 of C.P.C.?
(c) Whether the suit abates as against the defendant No.1 as per Order 22 Rule 4 of C.P.C.?
(d) Whether the lower Appellate Court correct on its findings that the 2nd defendant has to examine witnesses who are beneficiaries under Exs.A.1 and B.1 and shifting the burden on the part of the 2nd defendant is sustainable when the plaintiff seeks relief for declaration of a document null and void, but failed to establish his title and shifting the burden on the part of the 2nd defendant is sustainable in view of the provisions under
Section 101 and
103 of Indian Evidence Act, 1872??
8. On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the suit property originally belonged to one Paramayee, who is the mother of the plaintiff and the first defendant. On 08.09.1995, the said Paramayee executed Ex.A.1 registered settlement deed wherein she has reserved life interest for herself and her husband. On the strength of Ex.A.1 settlement deed, the first defendant and his wife Glory executed a registered sale deed which was marked as Ex.A.2, dated 25.11.2008 in favour of the second defendant. Challenging Ex.A.2 sale deed, the plaintiff has filed the present suit.
9. During the pendency of the suit, the first defendant had died and the plaintiff has not taken any steps to bring on record the legal representatives of the deceased first defendant. It is the case the plaintiff that Paramayee purchased the property in the year 1963 and executed Exs.A.1 and B.1 settlement deed in favour of the first defendant. Under Ex.B.3 release deed dated 21.03.1996, Paramayee and her husband Yesudhasan released their life interest over the suit property in favour of the first defendant. Thereafter Paramayee executed Ex.B.4 cancellation deed dated 13.08.1996. Subsequently, on 20.08.1996, Paramayee executed Ex.B.5 settlement deed in favour of the first defendant's wife viz., Glory. The said Paramayee had died on 02.09.1999. Under Ex.B.6 dated 10.04.2000, Glory released her right in the property in favour of the first defendant ? her husband. Thereafter, under Ex.B.7 sale deed dated 25.11.2008, the first defendant sold the property in favour of the second defendant. The first defendant had died on 18.09.2010.
10. On a perusal of Exs.A.1 and B.1 settlement deed, dated 08.09.1995, it could be seen that the property was settled in favour of the first defendant with some restrictions. It is settled position of law that where the donor had no power of revocation, he ceased to have any interest or right in the property after the property being settled. The settlement deed can be revoked only in the case of non-performance of the terms or in cases where there is recession of contract. It is not in dispute that the plaintiff is not a party to Exs.B.4 and B.5 documents. The unilateral revocation of the document is also against the provisions of law. After the settlement of the suit property, Paramayee - the settlor had no power to revoke Exs.A.1 and B.1 settlement deed. The said Paramayee is also not competent to execute Ex.B.3 release deed, dated 21.03.1996. Equally, she is not competent to execute Ex.B.4 cancellation deed and Ex.B.5 settlement deed, after the execution of Exs.A.1 and B.1 settlement deed. Since Exs.B.3 to B.5 are invalid documents, the first defendant's wife Glory has no power to relinquish her life estate in favour of the first defendant through Ex.B.6 release deed. When the life estate holders Yesudhasan and Glory are alive, the first respondent had no right to alienate the suit property. The plaintiff is also not a party to Ex.B.7 sale deed. Since he is not a party to the suit, the payment of Court fee under Section 25(d) of the Tamil Nadu Court fees and Suit valuation Act is just and proper.
11. Since Paramayee had no right to cancel Ex.A.1 settlement deed, the consequential document marked as Exs.B.3 to B.5 are invalid documents on the eye of law. When the first defendant and his wife Glory had no right to alienate or create encumbrances, Exs.B.6 and B.7 are also invalid documents. Consequently, Exs.B.9 to B.14 which are patta, land tax and building tax receipts cannot be construed as valid documents. Since Yesudhasan and Glory are only life estate holders, after their life time, the plaintiff is entitled to the suit property as an absolute owner. Taking into consideration all these aspects, the lower Appellate Court has rightly reversed the judgment and decree of the trial Court and decreed the suit.
12. In these circumstances, I do not find any ground, much less any substantial question of law, to interfere with the judgment and decree of the lower Appellate Curt. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. There shall be no order as to costs.
To
1. I Additional Subordinate Court, Nagercoil.
2. III Additional District Munsif Court, Nagercoil. .