Bharathi vs Palaniammal, Panneerselvam and Pattathammal

R.S. Ramanathan, J.—The Plaintiff is the Appellant herein. The Plaintiff filed the suit for declaration and recovery of possession of the suit

properties .

The case of the Plaintiff was that the first Defendant was her father and on 07.03.1984, the first Defendant executed a settlement deed in favour

of the Appellant/Plaintiff in respect of the suit properties and delivered possession of the suit properties to the Appellant/Plaintiff and the said

settlement deed came into effect and thereafter, the first Defendant revoked the said settlement deed by a revocation deed dated 09.09.1986. The

said revocation is not valid and the first Defendant died on 26.01.1988, during the pendency of the suit. After the filing of the suit, the other

Defendants have trespassed into the suit properties. Therefore, the suit was filed for declaration and recovery of possession.

The first Defendant viz., the father of the Appellant/ Plaintiff filed a statement stating that though the settlement deed was executed in favour of

the Appellant/Plaintiff, the same was executed, while he was in a confused state of mind and in turmoil and possession was not given to the Plaintiff.

The Plaintiff also did not accept the gift deed and the same was not acted upon and evenafter the execution of the gift deed, he continued to be in

possession of the suit properties. The first Defendant also cancelled the settlement deed by a valid revocation deed dated 09.09.1986, and

therefore, the Plaintiff cannot claim any right over the suit property.

After the death of the first Defendant, the Defendants 2 to 4 were impleaded and they have also filed a statement stating that the gift deed dated

07.03.1984, was obtained by undue influence and during that period, the first Defendant was not in a position to understand what was happening

and after coming to know about the fraudulent act on the part of the Plaintiff, the first Defendant cancelled the document by executing a revocation

deed, as the Appellant/Plaintiff did not maintain the first Defendant and he was residing in the eight item of the suit property. The Plaintiff also did

not participate in the funeral ceremony of the first Defendant and did not perform any last rites and hence, the cancellation of the settlement deed

was valid. Therefore, the Plaintiff is not entitled to the relief prayed for.

The Trial Court decreed the suit, holding that the gift deed was validly executed and the same was accepted by the Appellant/Plaintiff and

possession was also handed over to the Plaintiff and therefore, the revocation deed is not a valid document and decreed the suit as prayed for.

The Lower Appellate Court reversed the findings of the Trial Court and held that the gift deed in favour of the Appellant/Plaintiff was obtained

by undue influence and therefore, the Appellant/Plaintiff will not get any right under the said document and the Plaintiff is residing in a neighbouring

village and not residing in the suit village. Therefore, the gift deed was not acted upon and possession was also could not have been taken by the

Plaintiff. Hence, the Plaintiff will not get any title or right under the document. Therefore, the Plaintiff is not entitled to the relief prayed for and

dismissed the suit and allowed the appeals. Hence, these Second Appeals.

The following substantial questions of law were framed, at the time of admission of the Second Appeals:

i) Whenthe power of revocation is not reserved in the Ex.A1 Settlement Deed and when Ex.A1, settlement deed is not a ""conditional gift"", whether

the Lower Appellate Court is right in law in upholding Ex.B2, Revocation Deed and when none of the requirements of Section 126 of the Transfer

of Property Act are satisfied in the instant case?

ii)When possession of the Plaintiff was confirmed by the Revenue Records, such as Chitta Adangal, Patta and Kist receipts marked as Exs.A2 to

A5, and A.14 to A.18, and Exs.A6, A7 and A19, Agreements with Sugar Factory for supplying sugarcane which was admitted by the settlor

himself in the written statement, whether the Lower Appellate Court is right in law in discarding these material evidences, in reversing the factual

findings rendered by the Trial Court as to possession of the suit properties in favour of the Appellant?

iii)Whether the Lower Appellate Court is right in law In reversing the well considered judgment and decree of the Trial Court without making any

points for determination as required under Order 41, Rule 31 of the Code of CPC and without setting aside the findings rendered by the Trial

Court?

Mr. S. Mukunth, the learned Counsel appearing for the Appellant submitted that once it is admitted by the first Defendant that he had executed

the gift deed dated 07.03.1984 and as per the gift deed he has also admitted that the gift deed was accepted and possession was also handed over

to the Plaintiff, the gift deed has become valid from that date and the first Defendant viz., the donor, ceased to have any right to revoke or annul the

said settlement deed. Therefore, revocation of settlement deed is invalid.

The learned Counsel appearing for the Appellant further submitted that Exs.A8 and A9, would prove that the gift deed was acted upon and

possession was handed over to the Plaintiff and as per Exs.A8 and A9, the Plaintiff entered into an agreement with the Sugar Mill Manufacturers

for supply of the sugarcane grown in the suit properties. Therefore, possession was taken by the Appellant/Plaintiff under that gift deed and

therefore, the first Defendant cannot revoke the gift deed and the revocation is not valid. The learned Counsel also relied upon the Judgments

reported in R. Kumarasamy Kounder Vs. V. Ezhumalai Kounder, ; J. Kuppuswami Mudali and Others Vs. Mahalingam, and (2008) 1 M.L.J.

193 (SC) in the case of Asokan v. Lakshmikutty and Ors. in support of his contention.

Mr. A. Jinasenan, the learned Counsel appearing for the Respondents in both the appeals submitted that as per the gift deed, there was a

condition attached to that gift deed and as the Plaintiff did not act according to the condition, the donor felt that the purpose for which the gift deed

executed was not fulfilled, he cancelled the gift deed by executing the revocation deed. Moreover, the gift deed dated 07.03.1984, was not the

absolute gift deed and it was subject to the condition stated therein and when the Plaintiff did not fulfil the condition, it is open to the donor to

revoke the settlement deed and hence, it has been validly revoked.

It is his further submission that though possession was said to have been delivered under Ex.A1, viz., gift deed, in the revocation deed, the first

Defendant has specifically stated that possession was not handed over to the Plaintiff and admittedly, the first Defendant was residing in the same

property and that would also prove that possession was not given to the Plaintiff. Hence, the gift deed dated 07.03.1984, did not come into effect,

as it was not accepted and possession was also not given to the Plaintiff. Even otherwise, it was validly cancelled by the donor, for having realised

that the condition on which the gift deed was executed was not fulfilled and the Plaintiff did not act as per the condition stated in the gift deed. The

learned Counsel therefore, submitted that the gift deed was validly revoked and the Plaintiff will not get any title under the gift deed.

Heard, the learned Counsel on either side.

The only question that is to be decided in these Second Appeals is whether the gift deed executed by the first Defendant in favour of the

Appellant/Plaintiff was valid and acted upon by the Appellant/Plaintiff or not. In the settlement deed viz., Ex.A1, it has been stated that the Plaintiff

is the daughter of the executant viz., the first Defendant and the Plaintiff has taken care of the first Defendant and therefore, due to love and

affection towards the Plaintiff, the gift deed was executed in favour of the Plaintiff and she was given full power to deal with the property.

It was also stated that possession was also handed over to the Appellant/Plaintiff and the Plaintiff has to take care of the first Defendant till his

death and perform her father''s last rites. A reading of the said document viz., Ex.A1, in my opinion, would make it clear that there is no condition

attached to the gift deed and the gift deed was executed by the first Defendant out of love and affection and the clause that the Plaintiff has to take

care of the first Defendant and perform the last rites cannot be considered as the conditional clause attached to the gift deed and it is only a wish of

the donor.

Therefore, when the gift deed is a absolute one and it is not a conditional gift deed, the Plaintiff gets absolute title under the said gift deed.

Though it is contended by the learned Counsel appearing for the Respondents that the condition stated in the gift deed was not complied with or

fulfilled by the Appellant/Plaintiff and therefore, it was validly revoked, the contents in Ex.B2 and the written statement by the first Defendant,

would falsify the claim of the Respondents/Defendants.

Even assuming for the purpose of argument that Ex.A1, is a conditional gift deed and as per Ex.A1, the Plaintiff has to take care of the

Defendant during his lifetime, revocation deed was not executed for having violated the condition attached to the settlement deed. The reason for

revocation as stated in Ex.B2, was that the Plaintiff is not respecting the words of the first Defendant and she has taken steps to alienate the suit

properties. In the written statement also, the first Defendant has not stated that the Plaintiff fail to maintain him after the execution of the settlement

deed. Therefore, even assuming that the gift deed is a conditional one, it has not been proved that the Plaintiff did not act according to the condition

and she has violated the condition.

According to me, the gift deed Ex.A1, is not a conditional one and it is the absolute gift deed and once it is absolute, the Plaintiff gets title to the

suit property under the gift deed. Further, as seen from Exs.A8 and A9, possession was also handed over to the Plaintiff and the Plaintiff entered

into an agreement with the Sugar Mill Owners for supplying the sugarcane grown in the suit properties. If possession had not been given to the

Plaintiff under the gift deed, she would not have entered into an agreement with the Sugar Mill Owners, as evidenced by Exs.A8 and A9.

Therefore, possession was also handed over to the Plaintiff under Ex.A1, and the First Appellate Court, without appreciating this fact, erred in

holding that the gift deed is not valid and it was obtained by undue influence. It was the case of the first Defendant that the gift deed was obtained

from him by the Plaintiff by practicing fraud and undue influence. It has not been stated in the written statement that he was in a perturbed state of

mind, when he executed the settlement deed in favour of his daughter. In Ex.B2, also the first Defendant accepted the execution of the gift deed

and revoked the same on the only ground that the Plaintiff is not acting as per his wish and she is taking steps to alienate the property.

Therefore, the findings of the Lower Appellate Court that the gift deed was obtained by the Appellant/Plaintiff by practizing undue influence is

wrong, erroneous and is liable to be set aside and it is set aside. Further, as per the judgments referred to above, once the settlement deed has

been executed and acted upon, it cannot be revoked and therefore, the First Appellate Court, committed serious error in holding that the

settlement deed was not acted upon and it was validly revoked. Hence, the substantial questions of law are answered in favour of the Appellant.

In the result, the judgments and decrees of the Lower Appellate Court are set aside and that of the Trial Court is restored and the Second

Appeals are allowed. No costs.