N. Subramanian vs Thanjiammal and Pachiammal

K. Mohan Ram, J.—The plaintiff in O.S. No. 231 of 1990 on the file of the District Munsif Court, Polur who succeeded in the suit but lost

the appeal in A.S. No. 60 of 1994 on the file of the Sub-Court, Thiruvannamalai, is the appellant in Second Appeal No. 481 of 1995. The plaintiff

in O.S. No. 231 of 1990 was the defendant in O.S. No. 16 of 1991 on the file of the District Munsif Court, Polur, and he succeeded in the suit,

but the decree passed in O.S. No. 16 of 1991 was reversed in A.S. No. 69 of 1994 and hence he has filed Second Appeal No. 482 of 1995.

For the sake of convenience the parties are referred to as per their ranking in the suit.

The brief facts that are necessary for the disposal of the above second appeals are set-out below:

(a) The plaintiff-Subramanian is the son of Narayanaswamy Gounder @ Kannu Gounder through his wife-Thanjiammal-the first defendant and the

second defendant is the sister of the plaintiff-Subramanian. Narayanaswamy Gounder and his brother Rangaswamy Gounder were enjoying their

ancestral properties without making division till their death. After their death Thanjiammal, Subramanian and Radhakrishnan-son of Rangaswamy

Gounder entered into a registered partition deed dated 27.12.1972. Under that, partition ''A'' schedule fell to the share of Thanjiammal and

Subramanian and ''B'' schedule therein was allotted to the share of Radhakrishnan. Thanjiammal executed a registered settlement deed dated

12.07.1990 in favour of her daughter-Pachiammal in respect of a specified extent of two acres in S.F. No. 314/2 together with a half share in the

Well and motor pumpset fitted in the Well. Subsequently by another registered document dated 30.07.1990, Thanjiammal cancelled the settlement

deed executed in favour of Pachiammal.

(b) On 25.07.1990 Subramanian filed a suit in O.S. No. 231 of 1990 before the District Munsif Court, Polur, against his mother-Thanjiammal and

sister-Pachiammal seeking a decree for permanent injunction in respect of the entire extent of 3.94 acres in S.F. No. 314/2 and the Well and

motor pumpset fitted thereto and also got an order of interim injunction. Pending the said suit Pachiammal filed O.S. No. 16 of 1991 on the file of

the same Court against Subramanian for declaration, recovery of possession and for mesne profits in respect of the property settled on her by her

mother under the settlement deed dated 12.07.1990.

(c) The case of Subramanian as put forth in the above said two suits is that he becomes the absolute owner of the ''A'' schedule property of the

partition deed after the death of his mother-Thanjiammal and his mother had been given only a life interest; as his mother is an aged women, he was

looking after her out of the income derived from the said property and he is in continuous possession and enjoyment of the same; the patta and the

electricity service connection of the Well stands in his name; Pachiammal who is in hostile terms with him got a sham and nominal settlement deed

executed in her favour by his mother who had no right to settle the property; since Pachiammal attempted to disturb the possession it has become

necessary for him to file the suit for permanent injunction. It is his further case that after coming to know about the fraud played upon her by

Pachiammal, Thanjiammal executed a registered cancellation deed dated 30.07.1990 cancelling the settlement deed dated 12.07.1990; the

settlement deed executed by Thanjiammal is a sham and nominal document which was not acted upon as possession was never delivered to

Pachiammal and the settlement has not come into force.

(d) Whereas the case of Pachiammal, the second defendant in O.S. No. 231 of 1990 and the plaintiff in O.S. No. 16 of 1991, is that the

settlement deed was executed by her mother on her own will and volition; the settlement was accepted by her and the same has been acted upon

and the settlement deed is not sham and nominal as contended by Subramanian; she was put in possession of the property settled under the

Settlement deed dated 27.12.1972, Thanjiammal has got an absolute right over the property settled under the settlement deed; the recitals

contained in the earlier part of the partition deed will prevail over the recitals contained in the latter part of the partition deed and the contention of

Subramanian that Thanjiammal got only a life interest under the partition deed is untenable; though she was put in possession of the property settled

on her, Subramanian by taking advantage of the exparte order of injunction obtained against her and her mother, trespassed into the property and

had taken forcibly possession on 25.07.1990; hence she has filed the suit in O.S. No. 16 of 1991 for declaration of her title to the suit property as

well as for delivery of possession of the same and for mesne profits.

In O.S. No. 231 of 1990 the first defendant-Thanjiammal remained exparte. Though the subject matter of the suit and the parties are same and

the issues that arose for consideration were also same, for the reasons best known to the trial court, both the suits were tried separately and

separate judgments have been rendered. After framing appropriate issues in both the suits, the suits were taken up for trial and during trial, in O.S.

No. 231 of 1990, on the side of the plaintiff, the plaintiff-Subramanian has been examined as P.W. 1, Thanjiammal has been examined as P.W. 2

and two others have been examined as P.Ws. 3 and 4 and Exs. A-1 to A-15 have been marked and on the side of the defendants, Pachiammal

the second defendant has been examined as D.W. 1 and one Kannan who has attested the settlement deed has been examined as D.W. 2 and Ex.

B-1 has been marked. The cancellation deed has been marked as X-1. In O.S. No. 16 of 1991 the plaintiff-Pachiammal has been examined as

P.W. 1 and the attestor of the settlement deed has been examined as P.W. 2 and the settlement deed has been marked as Ex. A-1 and on the side

of the defendant-Subramanian has been examined as D.W. 1, Thanjiammal has been examined as D.W. 2 and one Aarimuthu has been examined

as D.W. 3. The cancellation deed dated 30.07.1990 has been marked as Ex. X-1. The partition deed dated 27.12.1972 has been marked as Ex.

X-2.

On a consideration of the oral and documentary evidence adduced in the suits, the trial court decreed O.S. No. 231 of 1990 in favour of

Subramanian and dismissed O.S. No. 16 of 1991 filed by Pachiammal. Being aggrieved by that Pachiammal preferred appeals in A.S. No. 60 and

69 of 1994 respectively before the Sub-Court, Thiruvannamalai. The lower appellate court on a consideration of the evidence on record reversed

the judgment and decree of the trial court in both the suits and partly allowed the appeals. The lower appellate court upheld the validity of

settlement deed, dismissed the suit for injunction filed by Subramanian on the ground that injunction cannot be granted against the co-owner, but

even after holding the settlement deed as valid and the cancellation deed as invalid did not grant a decree for declaration, but directed Pachiammal

to file a suit for partition. Being aggrieved by the judgment and decree passed in the said appeals, Subramanian has filed the above appeals,

whereas Pachiammal has not filed any appeal. Since as above said the subject matter of both the appeals is one and the same and the same

witnesses have been examined in both the suits and the issues that arise for consideration are also one and the same both the above second

Appeals are being disposed of by a common judgment.

While admitting the above second appeals the following common substantial questions of law have been framed:

(1) Whether the Court below is justified in deciding the correctness of the revocation deed dated 30.07.1990 when admittedly the same was not

challenged by the 2nd defendant till suit is filed by the appellant?

(2) Whether the Court below is justified in holding that the appellant''s possession will enure to the 2nd defendant so as to create a joint

ownership?

(3) Whether the Court below having found that the possession was never handed over to the 2nd defendant, is justified in rejecting the claim for

injunction?

Heard Mr. M. Venkatachalapathy learned senior Counsel for Mr. S.M. Loganathan for the appellant and Mrs. A. Sathyabama learned Counsel

for Mr. T.R.Rajaraman learned Counsel for the second respondent in S.A. No. 482 of 1995.

Learned senior Counsel for the appellant submitted that under the partition deed Thanjiammal has been given only a life interest in respect of the

''A'' schedule to the partition deed; the latter clause in partition deed alone will prevail and the intention of the parties was that Thanjiammal should

get only a life interest and not an absolute right; when Thanjiammal has been given only a life interest she cannot validly execute the settlement deed

in favour of her daughter-Pachiammal; when admittedly Subramanian the appellant is in possession of the suit property possession would not have

been given under the settlement deed as recited therein and therefore it should be held that the settlement deed was not acted upon. He further

submitted that Thanjiammal being the life interest holder could not execute the settlement deed and that too in respect of an undivided share and

Thanjiammal herself in her evidence as D.W. 2 has stated that she was taken to the Sub-Registrar''s Office by her daughter and one Kannan-P.W.

2 and she was made to sign in a document and she had put her signature without knowing the contents thereof and she was not aware that she was

executing a settlement deed and immediately after coming to know about the fraud played upon her she had executed a cancellation deed

cancelling the settlement deed, but no acceptable evidence has been adduced by Pachiammal, the plaintiff in O.S. No. 16 of 1991, to rebut the

evidence of Thanjiammal; this aspect has not been properly considered by the lower appellate court. He further submitted that when admittedly

Subramanian is in possession of the suit property, the lower appellate court has committed an error in reversing the judgment of the trial court and

dismissing the suit for injunction. He further submitted that when a finding has been recorded that possession was not handed over to Pachiammal

the lower appellate court erred in dismissing the suit for injunction. He further submitted that Thanjiammal is an illiterate lady and by playing a fraud

upon her and by exercising undue influence the settlement deed had been got executed in her favour by Pachiammal and as such the burden is on

Pachiammal to prove that the settlement deed was executed by Thanjiammal on her own will and volition fully knowing the contents of the

document. In support of his contentions the learned senior counsel for the appellant relied upon the following decisions:

(i) Dharman and Others Vs. Marimuthu, wherein in paragraph 17 it is observed as follows:

.. The fact that the Written Statement did not contain a positive accusation of any undue influence having been played by the plaintiff upon the

deceased first defendant cannot be blown out of proportion in the teeth of the very admissions contained in the plaint about certain facts which

would go to show beyond doubt if at all, only the dominating position in which the plaintiff was placed viz. the first defendant rather than going to

exculpate the plaintiff from the charge of having exercised such undue influence. It is not the specific mention of the very word undue influence that

really matters but the existence of the relevant facts in the case pleaded and proved that is only relevant and sufficient.

(ii) K. Varadhan Vs. Pattammal (dead) and Others, wherein in paragraph 8 it is observed as follows:

Courts in India have on the rule of evidence enshrined in Sections 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of

women in India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they

transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by men, this being the

curse that always surrounded women folk even though law recognised their independent rights, they failed invariably in exercising such rights,

accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily,

since the plaintiff alleged mis-representation and fraud, ask her to prove the mis-representation and fraud. But not in a case where a women being

an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring

evidence to prove her case. Learned Single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation

but demanded from the defendant to disprove the allegation of mis-representation and fraud. The learned single Judge, in our opinion, has taken

the correct view of the law on the fact that the 1st plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who

possibly could not act without help.

Countering the said submissions the learned Counsel for the respondents submitted that the circumstances under which the settlement deed was

executed by Thanjiammal in favour of her daughter-Pachiammal should be considered. He further submitted that in the settlement deed itself it has

been recited as follows:

Learned Counsel for the respondents further submitted that in consonance with the said recitals P.W. 2 in her evidence has also stated as follows:

According to the learned Counsel for the respondents, since the daughter Pachiammal was not living in an affluent circumstances only with an

intention to make provision for her support the settlement deed had been executed by Thanjiammal and that intention has been categorically stated

in the settlement deed itself and the same has also been spoken to by her in her evidence. Further P.W. 2 in her cross-examination had stated that

on coming to know about the execution of the settlement deed by her in favour of her daughter, the relationship between her and her son-

Subramanian became strained and the strained relationship became smooth after the settlement deed was cancelled and she was living only with

her son and she has also stated that at the time of execution of the cancellation deed her son-Subramanian was present along with her in the Sub-

Registrar''s Office. According to the learned counsel, the above said evidence of P.W. 2 makes it crystal clear that the cancellation deed would

have been executed only under the pressure exerted by Subramanian. Learned Counsel further submitted that though a contention has been put

forth by the appellant that the settlement deed was got executed by exercising undue influence and fraud and by making misrepresentation, such

averments are conspicuously absent in the cancellation deed itself. Learned Counsel further submitted that P.W. 2 has also not stated in her

evidence that either fraud was played upon her or she was coerced or she executed the settlement deed under undue influence exercised by

Pachiammal. Learned Counsel submitted that if the allegations like fraud, misrepresentation or undue influence are raised such allegations should be

pleaded with material particulars and in this case such material particulars and specific averments are missing and therefore the contention of the

appellant that the settlement deed was executed under undue influence, fraud and coercion is liable to be rejected. Learned Counsel further

submitted that once a registered settlement deed had been executed the same cannot be revoked and as such the revocation deed executed by

Thanjiammal is non-est in law and it can be ignored by Pachiammal and if really the settlement deed had been executed by Thanjiammal due to the

fraud, undue influence etc., as contended by the appellant nothing prevented Thanjiammal from filing a suit seeking a decree for cancellation of the

settlement deed, but so far no such steps have been taken. Learned Counsel submitted that in the settlement deed itself no right has been reserved

by Thanjiammal to cancel the settlement deed and as such the cancellation deed is invalid.

Learned Counsel for the respondents submitted that u/s 123 of the Transfer of Property Act, if an immovable property is settled under

registered sale deed the title in the property will be transferred in favour of the transferee and it is not stipulated in the said provision that possession

should be handed over immediately. According to the learned counsel, the contention put forth by the learned senior counsel for the petitioner that

since possession had not been handed over under the settlement deed, the settlement deed has not come into force and the same has not been

acted upon is against the said proportion contained in Section 123 of the Transfer of Property Act.

Learned Counsel for the respondents further submitted that under the partition deed Thanjiammal has got an absolute right in the ''A'' schedule

property along with her son-Subramanian. According to the learned counsel, the first clause in the partition deed will prevail over the latter clause

and even if a life estate is given, the same can be settled by the life estate holder and as such the contra contention put forth by the appellant is

liable to be rejected. Learned Counsel further submitted that since Subramanian had instituted O.S. No. 231 of 1990 on 25.07.1990 and an

exparte order of injunction was obtained against Pachiammal, taking advantage of the same Subramanian had trespassed and taken possession.

Learned Counsel further submitted that all the above said aspects have not been considered by the trial court and therefore the lower appellate

court by applying the correct principles of law to the facts of this case and after recording convincing reasons has set-aside the judgment and

decree passed by the trial court; the trial court has overlooked the well settled proposition of law that injunction cannot be granted against a co-

owner; the lower appellate court having upheld the validity of settlement deed and having held that Pachiammal has become a co-owner with

Subramanian has rightly dismissed the suit for injunction. In support of the above said submissions the learned Counsel relied upon the following

decisions:

(i) J. Kuppuswami Mudali and Others Vs. Mahalingam, wherein in paragraphs 11 and 12 it is observed as follows:

In order to hold that it is a valid settlement we have to find out whether the settlee has accepted the said document. It is also a settled law that

in settlement once the settlee accepts the transfer it is presumed that the said document has been acted upon irrespective of the fact whether the

settlee has obtained possession immediately or not. A reading of the entire document Ex. A-1 as pointed out by the two decisions referred to

earlier leads to an irresistible conclusion that the power of transfer by the settles (Pappammal) alone has been postponed. As a matter of fact the

said Govinda Mudali has not written anything in the said document. Hence the contrary conclusion reached by the trial court cannot be sustained.

On the other hand the lower appellate court correctly construed Ex. A-1. When there is no provision or reservation in the settlement deed by the

settler, namely, Govinda Mudali it is presumed that he has no right to cancel the said settlement deed at a later date. If that is so the cancellation of

Ex. A-1 under Ex. B-8 cannot be sustained.

The following decisions cited by the learned Counsel for the respondent amply support the above view of mine. In Lallu Singh v. Gur Narain

AIR 1992 All. 467, the Full Bench of the Allahabd High Court while interpreting Section 123 of the Transfer of Property Act has held that

Delivery of possession is not necessary, Section 123, does away with the necessity of delivery of possession even if it was required by the strict

Hindu Law, in the case of a registered instrument of gift properly executed and attested"" ...A similar view has been arrived at in a decision reported

in Gouranga Sahu and Others Vs. Maguni Dei and Others, . In Balmakund v. Bhagwan Das 1894 Allahabad Series 185, the Division Bench has

observed as follows:

The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual

physical possession such property being taken by the donee. Man Bhari v. Navindh followed"".

(ii) Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others, wherein in paragraph 5 it is observed as under:

The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder

intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined

reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had

created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to

enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second

daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the

property would devolve on the settlee with absolute rights on settlor''s demise. A reading of the documents together with the Schedule would given

an indication that she had created right and interest in prasenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the

schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having

divested self thereunder, right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter

Hymavathy. The trial Court and the learned single Judge rightly negatived the claim. The Division Bench was not, therefore, correct in law in

interfering with the decree of the trial Court.

(III) Prakash S. Akotkar and others Vs. Mansoorkha Gulabkha and others, wherein in paragraph 5 it is observed as follows:

...Having found the character of possession as co-owner, as indicated above, the only question that arises for determination is, whether a co-

owner in possession is entitled to an injunction of this nature against the other co-owners. Once it is found that the possession of co-owner is for

and on behalf of other co-owners, the other co-owner cannot claim injunction of this nature so as to exclude the other co-owners from exercising

their right as co-owners.

I have carefully considered the submissions made by the learned Counsel on either side, perused the materials available on record and

judgment of the Courts below.

In the partition deed, dated 27.12.1972, the earlier clause reads as follows:

while the latter clause reads as follows:

The trial court by construing the above said two clauses has come to the conclusion that the latter clause will prevail over the earlier clause and

hence Thanjiammal will get only the life interest in the ''A'' schedule property, but the lower appellate court disagreed with the above said

conclusion and by applying the correct legal principle has held that the earlier clause will prevail over the later clause and accordingly held that

Thanjiammal has got the ''A'' schedule property along with her son-Subramanian absolutely. The trial court on an erroneous understanding of the

law held that even in respect of the life interest Thanjiammal is not entitled to execute any settlement deed. It is settled law that in the case of a

transfer in praesenti, the first clause of the deed would prevail over anything that may be found to be repugnant to it later. In a partition deed, the

transfer takes place in praesenti and therefore the first clause in the partition deed would prevail over anything that may be found to be repugnant to

it later. The said view of mine is amply supported by the following observation contained in paragraph 19 of the decision reported in Sadhu Singh

Vs. Gurdwara Sahib Narike and Others, :

What the court has to attempt is a harmonious construction so as to give effect to all the terms of the will if it is in any manner possible. While

attempting such a construction, the rules are settled. Unlike in the case of a transfer in praesenti wherein the first clause of the conveyance would

prevail over anything that may be found to be repugnant to it later, in the case of a will, every effort must be made to harmonise the various clauses

and if that is not possible, it will be the last clause that will prevail over the former and giving way to the intention expressed therein.

(emphasis supplied)

If the above legal principle is applied to the partition deed entered into between Subramanian, Thanjiammal and Radhakrishnan it could be easily

held that the earlier clause confers an absolute right over the ''A'' schedule of the partition deed on Thanjiammal along with her son-Subramanian.

Therefore, the above said finding of the trial court is erroneous and the same has been rightly reversed by the lower appellate court.

Once it is held that Thanjiammal has got an absolute right along with her son-Subramanian in the ''A'' schedule property dealt with in the

partition deed, it goes without saying that she has got a right to execute the settlement deed in accordance with her wish. The trial court by

misconstruing the joint ownership of Thanjiammal and her son-Subramanian over the ''A'' Schedule property as equivalent to the joint ownership of

co-parceners over the Hindu Joint Family Property and by wrongly applying the ratio laid down in Ramakrishna Naidu Vs. Shanmugasundaram

and Others, has held that Thanjiammal could not have executed the settlement deed in respect of a joint family property. The trial court failed to

see that it is nobody''s case that the properties are the joint family properties of Thanjiammal and Subramanian and they cannot be construed to be

members of a co-parcenery also and therefore the finding of the trial court is erroneous and liable to be set-aside and accordingly the lower

appellate court has rightly set-aside such a finding.

The trial court without properly understanding the legal principles has held that Thanjiammal was entitled to cancel the registered settlement

deed executed by her in favour of her daughter-Pachiammal and has held that the cancellation deed dated 30.07.1990 is valid. The lower appellate

has rightly set-aside such an erroneous finding.

u/s 123 of the Transfer of Property Act, a gift of immovable property should be made by a registered instrument signed by or on behalf of the

donor and attested atleast by a two witnesses and the second requirement is there must be acceptance of the gift by the donee. The delivery of

possession is not necessary and Section 123 does away with the necessity of delivery of possession even it was required by the strict Hindu Law,

in the case of a registered instrument of gift properly executed and attested. The above said legal principle has been laid down in 1997 (I) CTC

256 (referred to supra). Therefore the finding of the trial court that the settlement deed executed by Thanjiammal in favour of Pachiammal is sham

and nominal and it has not been acted upon since possession has not been handed over to Pachiammal is erroneous.

The next question that has to be considered is as to whether the settlement deed was got executed by Pachiammal by exercising undue

influence, coercion and by applying fraud upon Thanjiammal. The learned senior counsel for the appellant submitted that Thanjiammal being an

illiterate lady, the burden is on the beneficiary, namely, Pachiammal to prove that settlement deed was executed by Thanjiammal on her own will

and volition and there was no exercise of undue influence, coercion or fraud was played upon her. While the trial court has held that the burden is

on Pachiammal, the lower appellate court has held that the burden is on the plaintiff-Subramanian to prove the plea of undue influence, coercion

and fraud. Admittedly, the settlement deed executed by Thanjiammal in favour of Pachiammal is a duly registered document and hence a

presumption would arise that the said settlement deed was validly executed. In the decision reported in Prem Singh and Others Vs. Birbal and

Others, in paragraph 27 the Apex Court has observed as under:

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The

onus of proof, thus, would be on a person who leads evidence to rebut the presumption.

If the above said legal principle is applied to the case on hand the settlement in question being a registered document is prima facie valid in law. It

is, Subramanian, who is questioning the validity of the settlement deed and therefore, the onus of proof lies only on him.

Even assuming that Thanjiammal, being illiterate, the burden is on Pachiammal to prove that the settlement deed was executed by her mother

on her own will and volition it has to be seen as to whether such a burden has been discharged by Pachiammal.

After the execution of the settlement deed it is the testimony of Thanjiammal who has been examined as P.W. 2 that within two days from the

date of execution she came to know that a settlement deed had been got executed from her and she had further testified that without reading out

the contents of the document her signatures were obtained in the document, but admittedly, she had not sent any legal notice setting forth the above

said facts and she has neither filed a suit to set-aside the settlement. In O.S. No. 231 of 1990 she had remained exparte and had not filed any

written statement. The allegations regarding undue influence, coercion, fraud, etc., said to have been played upon Thanjiammal by the attestor-

Kannan have not been recited in the cancellation deed dated 30.07.1990. If the real and actual reason for cancelling the settlement deed had been

the alleged undue influence, coercion, fraud etc., then such a recital would have found place in the cancellation deed. Further it is pertinent to point

out that undue influence, coercion and fraud are two different aspects. If the allegation is that the settlement deed was executed due to the exercise

of undue influence and coercion then the allegation of fraud cannot have the legs to stand. In the case of undue influence and coercion, the

executant is aware of the contents of the document whereas in the case of fraud the executant is not aware of the character of the document or is

not aware of the contents of the document. Without understanding the difference between the two allegations, the plaintiff Subramanian has made

such allegations in the plaint.

In this context, it is pertinent to point out certain answers elicited from Thanjiammal during the course of her cross-examination. In her cross-

examination Thanjiammal had stated that she does not know that the document executed by her was a settlement deed. She has stated that the

reasons stated in the cancellation deed-Ex. X-1 is correct and similarly the recitals contained in Ex. X-1 are also true. Therefore it is necessary to

look into the recitals contained in Ex. X-1 cancellation deed. In Ex. X-1-cancellation deed dated 30.07.1990 it is stated as hereunder:

As stated above, the above said recitals in the cancellation deed have been accepted by Thanjiammal as true. A close reading of the above said

recitals makes it abundantly clear that only because Thanjiammal came to know that she has no absolute right over the property settled by her in

favour of Pachiammal but yet she had executed the settlement deed in respect of a property over which she had no right she had executed the

cancellation deed cancelling the settlement deed dated 12.07.1990. Thus it is clear that Thanjiammal was fully aware that she was executing the

settlement deed. The reason for cancellation as stated in the cancellation deed is that she had no right over the property. The Settlement deed has

not been cancelled for the reason that the settlement deed was obtained from her by Pachiammal by exercising undue influence, coercion and

fraud. Even in her testimony Thanjiammal has not stated that undue influence, coercion or fraud was exercised on her. Kannan-the attestor of the

settlement deed who has been examined as a witness has stated that the contents of the settlement deed were read over to Thanjiammal and only

after knowing the contents of the document she had put her thumb impressions. In her evidence Thanjiammal has categorically stated that there is

no enmity between her and the attestor Kannan and their relationship is smooth and therefore there is absolutely no reason to disbelieve the

testimony of Kannan. As pointed out earlier, it is the evidence of Thanjiammal that on coming to know about the execution of the settlement deed

in favour of her daughter her relationship with her son Subramanian became strained and only after the cancellation deed was executed their

relationship became smooth. Pointing out the above said testimony of Thanjiammal, the learned Counsel for the respondent submitted that the said

evidence is proof enough to hold that the settlement deed came to be canceled only at the instance of Subramanian and to smoothen the

relationship between Thanjiammal and Subramanian. In the light of the above said testimony of Thanjiammal the said contention merits acceptance.

Hence it has to be held that the appellant had not proved the allegation of undue influence, coercion and fraud in the execution of the settlement

deed by Thanjiammal. The legal presumption arising by virtue of the fact that the settlement deed is a registered document has not been rebutted by

the appellant. Therefore the finding of the trial court in this aspect is erroneous and the finding of the lower appellate court has to be upheld and

accordingly upheld.

Both the Courts below have found that the property allotted under the partition deed in favour of Thanjiammal and her son-Subramanian is in

their joint possession and the same had not been divided and therefore the trial court has observed that even assuming that the settlement deed is

valid, the only remedy available to Pachiammal is to file a suit for partition. The lower appellate court though upheld the validity of the settlement

deed considering the above said aspects has held that Pachiammal had to file only a suit for partition and get possession of the property settled on

her. When it is found that the settlement deed is valid, Pachiammal automatically becomes the co-owner of the suit property along with

Subramanian. As laid down in Prakash S. Akotkar and others Vs. Mansoorkha Gulabkha and others, . Subramanian, being a co-owner in

possession, is not entitled to injunction against the other co-owner, namely, Pachiammal. Therefore the decree of the trial court granting injunction

in favour of Subramanian has been rightly set-aside by the lower appellate court.

In the considered view of this Court the first substantial question of law framed in the above second appeals cannot strictly be called as

substantial question of law at all. O.S. No. 231 of 1990 was filed by Subramanian on 25.07.1990 and the revocation deed (Cancellation deed)

dated 30.07.1990 has been executed by Thanjiammal subsequently and thus the question of challenging the revocation deed prior to the filing of

the suit by Surbamanian did not arise at all. Therefore the said question of law is answered against the appellant and in favour of the respondent. It

has already been held that Subramanian being a co-owner is not entitled to get an injunction in respect of the joint property against the other co-

owner Pachiammal and therefore the second and third questions of law are also answered against the appellant and in favour of the respondent.

For the above said reasons, the above second appeals fail and the same are dismissed. However, considering the relationship of the parties to

the litigation there shall be no order as to cost through out.