Manavalan vs Chennammal and 3 others

M. Karpagavinayagam, J.—The appellant is the plaintiff. He filed a suit for permanent injunction in respect of two items of properties

measuring a total extent of 9 cents. He lost in both the Courts below. Hence, this second appeal. The case of the plaintiff/appellant is as follows:

The suit properties belonged to one Arunachalam. He settled the two items of the properties in favour of his wife Ramayee Ammal in the year

1986. The said Ramayee Ammal settled the first item of the suit properties in favour of her daughter Unnamalai in the year 1991. The

appellant/plaintiff purchased the said first item from the said Unnamalai Ammal in 1993. He purchased the second item from Ramayee Ammal in

1995.

From the date of purchase of these two items, the appellant has been in possession. The defendants/respondents interfered with the appellant''s

possession. Hence, the suit.

The case of the defendant/respondents is this:

The settlement deed executed by Arunachalam in the year 1986 in favour of Ramayee Ammal was not acted upon. Therefore, the sale deeds

executed by Ramayee Ammal as well as her daughter Unnamalai Ammal are not valid. Furthermore, the settlement deed had been cancelled in the

year 1991. Arunachalam sold the second item of the suit properties in favour of fourth defendant. Hence, the suit is liable to be dismissed.

The trial Court on the basis of the above pleadings framed necessary issues and after analysis of the materials dismissed the suit. The lower

appellate Court also dismissed the appeal confirming the judgment and decree passed by the trial Court in favour of the defendants.

Assailing the judgments impugned, the learned Counsel for the appellant would submit that the settlement deed Ex.A-3 cannot be revoked as

the settlement deed is not revocable. Furthermore, the settlement deed executed by Ramayee Ammal in favour of Unnamalai Ammal had come

into force and the Chitta stands in the name of Unnamalai Ammal. Moreover, Ex.B-1 cancellation deed was not properly proved. In the absence

of the materials produced by the defendants to prove that Ex. A-3 had never come into effect or had not been acted upon, the suit filed by the

plaintiff who is the bona fide purchaser, cannot be dismissed. When the title has been established, the plaintiff would be entitled to a decree for

permanent injunction.

In elaborating the above submissions, he would cite the following authorities: (1) Tila Bewa v. Mana Bewa, AIR 1962 Ori. 130; (2)

Narayanamma v. Thabitinaidu, AIR 1964 Ori. 212; (3) T.C. Panigrahi v. G. Satyarajulu, AIR 1970 Ori. 25; (4) Kasi Ammal v. Vellai Gounder,

(1980) 2 M.L.J. 232; (5) Devasironmani v. Rajathangam, (1998) 1 M.L.J. 322 = 1997-3-L.W. 761; (6) Thiagarajan, S. v. Saraswathy Kittu,

(1999) III C.T.C. 217. He would also point out various portions of the evidence adduced by both P.W.1 and D.W.1.

I have carefully considered the submissions made by the Counsel for the appellant.

It is noticed that both the Courts below would hold that Ex.A-3 settlement deed executed by husband Arunachalam in favour of Ramayee

Ammal on 14.8.1986 had not been given effect to, as there is no material to show that the said document was acted upon. It is to be pointed out

that on the side of the plaintiff, plaintiff alone had been examined as P.W.1. Neither Ramayee Ammal nor her daughter Unnamalai Ammal, who are

the vendors of the properties, had not adduced any evidence.

On the other hand, Arunachalam, who sold the suit items to other defendants, was examined as D.W.1. According to him, though Ex. A-3 was

executed by him in favour of Ramayee Ammal, the suit properties were in his possession and enjoyment and even after execution of the deed, as

both Ramayee Ammal and Arunachalam were living together as husband and wife. He would further state that since Ramayee Ammal had

deserted him and lived with somebody else, he executed the cancellation deed Ex. B-1 on 28.11.1991.

In 1999 (III) C.T.C. 217 (supra), this Court would hold that the settlement deed in which there is no clause reserving right to revoke the

settlement deed cannot be cancelled. It is also held in AIR 1962 Ori. 130, that a gift cannot be revoked merely because the condition mentioned in

the gift deed has not been complied with. This is reiterated in AIR 1964 Ori. 212. But, these decisions would not help the appellant, in view of the

fact that the plaintiff had not proved in this case that the gift was complete.

As held in (1998) 1 M.L.J. 322 = 1997-3-L.W. 761, Section 122 of the Transfer of Property Act defines gift executed in the manner

indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee u/s 123. There must be

proof of delivery and acceptance of possession of the gifted property.

On going through this decision, it would be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property

together make the gift complete. Only thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property.

In this case, it is the clear evidence of Arunachalam and D.W.1 that though the settlement deed was executed in favour of Ramayee Ammal,

the property was never handed over to her and the same had been in possession and enjoyment of D.W.1, who sold the said properties to other

defendants after executing the cancellation deed.

Furthermore, on behalf of the defendant, various documents have been marked to show their possession from the date of purchase. On the

other hand, as indicated above, neither Ramayee Ammal nor Unnamalai Ammal has been examined in this case by the plaintiff to prove that in the

year 1986 Ramayee Ammal had taken delivery of the properties and since then she was in possession of the properties; the settlement deed was

executed in favour of Unnamalai Ammal and thereafter, Unnamalai was in possession of the first item of the properties and similarly, no document

has been produced by the plaintiff that from the date of purchase of the suit properties from Ramayee Ammal and Unnamalai Ammal, the plaintiff

has been in possession of the properties continuously.

The learned Counsel would cite (1980) 2 M.L.J. 232 (supra) to show that the recitals in the settlement deed with reference to the handing over

of the property would be enough to hold that there was a delivery of property. The facts of the said case are entirely different from the facts of the

present case.

In the said case, the suit was filed by the donee herself. She filed a document to show that subsequent to the settlement deed, she had been in

possession. That is not the case here. As noted above, in this case, vendors had not been examined nor any document had been produced to show

that either the plaintiff or the donee and the vendors were in possession and enjoyment of the suit properties. In view of what is stated above, there

is no merit in the appeal and the judgments and decrees passed by both the Courts below are liable to be confirmed, as, in my view, the reasonings

contained therein are perfectly justified. As there is no substantial question of law, I do not find any reason to admit this appeal. Hence, the Second

Appeal is dismissed. Consequently, C.M.P. No. 12216 of 2001 is also dismissed.