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J. Logeswaridas & Others v/s Sachin Sandeep & Others


Company & Directors' Information:- SANDEEP (INDIA) LTD [Active] CIN = L51491WB1982PLC035464

Company & Directors' Information:- SACHIN AND COMPANY LIMITED [Strike Off] CIN = U18101UP1996PLC019753

    S.A. Nos. 496 & 497 of 2021

    Decided On, 14 September 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Appellants: N.L. Rajah, Senior Counsel, B. Harikrishnan, Advocate. For the Respondents: R1, V.S. Kesavan, A. Sundaravdhanan, Advocates.



Judgment Text

(Prayer in S.A.No.496 of 2021: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 26.08.2019 in A.S.No.154 of 2018 on the file of the learned II Additional District Judge, Erode, confirming the Judgment and decree dated 12.06.2018 in O.S.No.42 of 2007 on the file of the learned II Additional Subordinate Judge, Erode.S.A.No.497 of 2021: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 26.08.2019 in A.S.No.155 of 2018 on the file of the learned II Additional District Judge, Erode, confirming the Judgment and Decree dated 12.06.2018 in O.S.No.17 of 2007 on the file of the learned II Additional Subordinate Judge, Erode.)Common Judgment1. Since the content of the Plaints and the Written Statements are Common in both the Second Appeals a Common Judgment is being pronounced in S.A.Nos.496 and 497 of 2021.2. S.A.No.496 of 2021 arises against the Judgment and Decree of the learned II Additional District Judge, Erode, in A.S.No.154 of 2018 confirming the Judgment and Decree passed by the learned II Additional Subordinate Judge, Erode in O.S.No.42 of 2007.3. S.A.No.497 of 2021 arises against the Judgment and Decree of the learned II Additional District Judge, Erode, in A.S.No.155 of 2018 confirming the Judgment and Decree passed by the learned II Additional Subordinate Judge, Erode in O.S.No.17 of 2007.4. The parties are being referred to by their names for ease of understanding the facts of the case.Plaintiff’s case in both the suits:5. G.K.Muthammal, the 1st defendant in both the suits had three sons, namely, N. Kalidass, N. Sivakumar (the plaintiff in O.S.No.17 of 2007) and N. Venkatesh (the father of the plaintiffs in O.S.No.42 of 2007). The two suits have been filed for declaring that the plaintiffs in their respective suits i.e., N. Sivakumar as regards O.S.No.17 of 2007 and Sachin Sandeep and Nithin Akhilesh (the plaintiffs in O.S.No.42 of 2007) are the absolute owners of the property described in the respective suit schedule as per the two Settlement Deeds dated 10.10.2003 irrespective of the Deed of cancellation of settlement dated 22.06.2005 and the Sale Deed dated 11.05.2006 by the 1st defendant in favour of the 2nd defendant and for a permanent injunction.6. The properties bearing old Door Nos.883 to 889 now Door No.264, Kamaraj Street, Brough Road, Erode, belonged to G.K.Muthammal. G.K.Muthammal was desirous of giving portions of the said property to her three sons. This property was originally her residence and thereafter, she had constructed a new house in E.V.N. Road and shifted there with the family. The suit property was leased out to the tenants and it was altered to accommodate four tenants. G.K.Muthammal was desirous of giving three East facing shops in the ground floor and three in the first floor in favour of her sons. With this intent, she had originally executed a Will dated 01.03.1999 bequeathing a portion of the property to S.Vinod Shivakumar and S. Sudhir Krishnan, who are the sons of N.Sivakumar. G.K.Muthammal executed a registered Settlement Deed in favour of N.Kalidass and she had executed a Will on the same day in favour of the plaintiffs in O.S.No.42 of 2007. Subsequently, G.K.Muthammal executed two Settlement Deeds both dated 10.10.2003, one in favour of N.Sivakumar and another in favour of minors Sachin Sandeep and Nithin Akhilesh, the children of her youngest son N.Venkatesh. She had appointed her daughter-in-law, Indu Priya, the wife of Venkatesh as the Guardian of the minor. The Northern portion of the property had been given to N.Kalidass, the middle portion to N.Sivakumar and the Southern portion to the sons of Venkatesh. After the execution of the Settlement Deed, the said G.K.Muthammal had handed over the original Settlement Deed to N. Sivakumar and the mother of the plaintiffs in O.S.No.42 of 2007.7. N.Sivakumar and the plaintiffs in O.S.No.42 of 2007 would submit that on the execution of the Settlement Deed, they had informed the tenants about the same and called upon them to attorn tenancy in their favour. However, they have given instructions to the tenants to continue to pay the rents to Muthammal during her lifetime with an intention to augment her income.8. The eldest brother Kalidass was desirous of taking possession of the entire property and with this intention, he had instigated G.K.Muthammal to cancel the Settlement Deeds. Accordingly, on 22.06.2005, G.K.Muthammal had cancelled the Settlement Deed executed by her in favour of Sivakumar and in favour of Sachin Sandeep and Nithin Akilesh. Thereafter, on 11.07.2006, G.K.Muthammal had sold the property to J.Logeswaridas, the wife of Kalidass with whom, it was alleged, she had already entered into an Agreement of Sale.9. The plaintiffs would submit that the Settlement Deed did not empower G.K.Muthammal to revoke the same and therefore the cancellation of the Settlement Deed and the subsequent Sale in favour of the 2nd defendant is the outcome of fraud. The plaintiffs are not challenging the same as these transactions do not bind them since on the date of execution of the Cancellation Deed and the subsequent Sale Deed, G.K.Muthammal had no right, title or interest over the property. The plaintiffs would also submit that the Agreement of Sale executed by G.K.Muthammal and Logeswaridas was ante-dated and fabricated after the Settlement Deed.Written Statements of Defendants 1 and 2 in both the suits:10. Identical Written Statements have been filed both by the defendants 1 and 2 in the two suits. The defence primarily is that the Settlement Deed was a conditional settlement since on the very same day as the day of execution of the Settlement Deed, G.K.Muthammal had got a Consent Deed from her three sons, which Deed was witnessed by their respective wives, wherein they had agreed that the rents in respect of the properties that had been settled would be continued to be received by G.K.Muthammal till her lifetime and the sons cannot create any encumbrance over the same. The defendants would further contend that the possession was never handed over to the Settlees but continued with G.K.Muthammal.11. The 1st defendant required funds as she had suffered health problems and when she had requested her sons to give her money Kalidass alone was agreeable whereas the other two sons, namely, N.Sivakumar and N. Venkatesh did not agree to the same. Further, N.Venkatesh evicted her from the place where she was residing and also tried to prevent the tenants from paying the rents to her. In these circumstances, the Cancellation Deed came to be executed by her. It was also her case that the Revenue Records continued to remain in her name and was not mutated in the name of Settlees. She would further submit that she had entered into an Agreement of Sale on 03.02.2003 with Logeswaridas, the wife of Kalidass wherein she had agreed to sell the property for a sum of Rs.50,000/- and had received a sum of Rs.45,000/- as advance.12. In the Written Statement in O.S.No.42 of 2007 which was signed on 28.08.2007, the 1st defendant had further elaborated on the circumstances in which the Agreement of Sale was entered into with Logeswaridas. She would state that she had been ailing for five years and taking medical treatment at heavy costs and that in order to meet the medical expenses as early as on 03.02.2003, even prior to the execution of the Settlement Deeds, she was constrained to enter into a Sale Agreement with Logeswaridas to sell the middle and Southern portions (the portion settled on N.Sivakumar and the sons to Venkatesh respectively) for a sum of Rs.50,000/- for which a sum of Rs.45,000/- had been received as advance.13. The 1st defendant would further submit that the said Logeswaridas thereafter issued a Notice on 19.12.2005 calling upon her to execute the Sale Deed, failing which, had informed the 1st defendant that she would be instituting a suit for Specific Performance. Surprisingly, on 16.02.2006 itself, a Compromise Decree was filed in O.S.No.739 of 2005 filed by the said Logeswaridas. Logeswaridas appears to have paid an additional sum of Rs.1,00,000/- for the two portions. Thereafter, the two Sale Deeds came to be executed and registered on 11.05.2006. The 2nd defendant’s Written Statement is identical which lends credence to the statement of the plaintiffs that the cancellation of the Settlement Deeds had been orchestrated by N.Kalidass. Both the suits were tried separately, however, the findings in two suits are identical.Trail Court14. The following issues had been framed in O.S.No.17 of 2007:“1) Whether the gift settlement deed dated 10.10.2003 is true, valid and acted upon?2) Whether the plaintiffs are in possession of the suit property as per the gift settlement deed dated 10.10.2003?3) Whether the plaintiff and her two brothers executed the consent deed on 10.10.2003 and its contents are valid?4) Whether the gift settlement deed dated 10.10.2003 is cancelled on 22.06.2005 is true and valid?5) Whether the sale deed executed by the 1st defendant inn favour of the 2nd defendant on 11.05.2006 is true and valid?6) Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed for?7) To what other relief the plaintiffs are entitled for?”15. On the side of the plaintiffs, Mr.N.Sivakumar had examined himself as PW1 and had marked Ex.A.1 to Ex.A.12. On the side of the defendants, J.Logeswaridas had examined herself as DW1 and one Kandasamy as DW2 and had marked Ex.B.1 to Ex.B.18.16. The learned Judge on considering the evidence on record held that the cancellation was invalid since on the date of execution of the Cancellation Deed the mother G.K.Muthammal had no right, title or interest over the suit property and ultimately, decreed the suit as prayed for.17. As regards O.S.No.42 of 2007, the Court had framed the following issues:“1) Whether the plaintiffs are entitled for declaration as prayed for?2) Whether the plaintiffs are entitled for permanent injunction as prayed for?3) To what relief the plaintiffs are entitled for?”18. On the side of the plaintiffs, Indhupriya, the mother of the minor plaintiff had examined herself as PW1 and had marked Ex.A.1 to Ex.A.10. On the side of the defendants, J.Logeswaridas had examined herself as DW1 and one Kandasamy as DW2 and had marked Ex.B.1 to Ex.B.38.19. The learned Judge on considering the evidence on record held that the cancellation was invalid since on the date of execution of the Cancellation Deed the mother G.K.Muthammal had no right, title or interest over the suit property and ultimately, decreed the suit as prayed for.20. Challenging this Judgment and Decree in O.S.No.17 of 2007, J.Logeswaridas and N.Kalidass had filed A.S.No.155 of 2018 and challenging the Judgment and Decree in O.S.No.42 of 2007, once again Logeswaridas and N. Kalidass had filed A.S.No.154 of 2018 on the file of the learned II Additional District Judge, Erode. The learned II Additional District Judge, Erode dismissed the Appeals and confirmed the Judgment and Decree of the trial Court. Challenging this Judgment and Decree, the said Logeswaridas and N. Kalidass have filed the aforesaid Second Appeals.Second Appeal and substantial questions of law21. Since the plaintiffs had entered a Caveat in the above matter this Court had agreed to hear both the parties. When the matter was posted on 12.08.2021 this Court elaborately heard the arguments of both the Counsels.22. The learned Senior Counsel appearing for the appellants had made his legal submissions and the learned counsel for the Caveators have also argued the matter. After hearing both sides, the following Substantial Questions of Law arise for consideration in both the Second Appeals:“(a) When the Settlement deed is accompanied by a Consent Deed contemporaneously executed whereby the Settlees had confirmed that the Settlors would continue to receive the rents in respect of the property settled till her life time, whether the same would amount to a conditional settlement giving a right to the Settlor to cancel the Settlement Deeds?(b) Whether the mother could act as a guardian and file a suit on behalf of the minors when the father, the natural guardian is very much available?(c) Whether prior permission of the Court has to be obtained when the minors are represented by the natural guardian?”SUBMISSIONS:23. The following submissions had been made by the learned Senior counsel who appeared on behalf of the counsel for the appellants/defendants. He would submit that the plaintiffs in both the suits are guilty of suppression since they have not brought to the notice of the Court the execution of the Consent Deed on the very same day as the Settlement Deed whereby the right to collect the rents continued with the Settlor Muthammal till her lifetime. He would submit that on account of suppression, the plaintiffs are not entitled to the discretionary relief. Further, he would contend that the suit as framed is not maintainable as it filed for a mere declaration of title without seeking a declaration that the Cancellation Deed and the Subsequent Sale Deed are null and void. He would further submit that when the Settlement Deed is read conjointly with the Consent Deed, it is very clear that the Gift is a conditional one and since there has been a violation of the condition the Settlor was well within her right to cancel the Settlement Deed.24. The learned counsel would further submit that the possession has not been taken over by the Settlees and the same continued with Settlor. Therefore, there is no valid settlement in the eye of law in favour of the Settlees. In support of his arguments that a suit for declaration without seeking cancellation of the other Deeds is not maintainable, he would rely on the Judgment report in (2007) 14 Supreme Court Cases 253 [Meharchand Das v. Lal Babu Siddique and others]. In this suit, the question involved was whether the suit for a declaration that a parcha obtained by the defendants was a result of a fraud without asking for recovery of possession was maintainable?. The plaintiffs had succeeded in the trial Court as well as the Lower Appellate Court, however, the High Court has reversed the Judgment stating that the defendants were admittedly in possession of the property and therefore, the suit filed without seeking the relief of recovery of possession was not maintainable. This Judgment was confirmed by the Hon’ble Supreme Court.25. The learned counsel would next rely on the Judgment reported in (2019) 11 Supreme Court Cases 391 = 2018 (5) CTC 108 [S.Sarojini Amma v. Velayudhan Pillai Sreekumar] in support of his arguments that the conditional gift where possession continued with the donor is an incomplete gift and title continued with the defendant who could cancel the Deed at any point of time.26. Per contra, Mr.A.Sundaravdhanan, the learned counsel appearing on behalf of the respondents in S.A.No.497 of 2021 (N.Sivakumar) would submit that the cancellation of the Settlement Deed and the subsequent Sale Deed in favour of Logeswaridas is the result of fraud and a mere perusal of the dates and events set out below would demonstrate the same:03.02.2003: Agreement of Sale alleged to have been entered into between Muthammal (1st defendant) and J.Logeswaridas (2nd defendant).10.10.2003: Two Settlement Deeds executed by Muthammal in favour of Sivakumar and the sons of Venkatesan, namely, Sachin Sandeep and Nithin Akhilesh.10.10.2003: Consent Deed executed by the three sons witnessed by respective daughter-in-laws which included J.Logeswaridas.22.06.2005: Two Settlement Deeds are canceled.16.12.2015: O.S.No.713 of 2005 filed by J.Logeswaridas for Specific Performance and a Compromise entered into on the same date and suit disposed off on the basis of the compromise.19.12.2005: After compromise decree, notice for Specific Performance was issued by the 2nd defendant J.Logeswaridas to the 1st defendant Muthammaldirecting her to execute the Sale Deed, failing which, putting her on notice the suit for Specific Performance would be filed.11.05.2006: Sale Deed executed in favour of J.Logeswaridas.27. A mere perusal of this sequence dates and events clearly establish that even before the Settlement in favour of the plaintiffs in O.S.No.17 of 2007 and O.S.No.42 of 2007, the 1st defendant is said to have been prepared an Agreement of Sale in favour of the said J.Logeswaridas. The Settlement Deed executed in favour of the respective plaintiffs makes no reference to this Agreement of Sale. Even the Consent Deed does not make any reference to the Agreement of Sale, which is strange when the agreement holder Logeswaridoss signs this deed as a witness. Further, the most striking reason for doubting the Sale Deed in favour of J.Logeswaridas is on account of the fact that the suit is filed on 16.10.2005 and on the very same day, a Consent Decree is passed. Thereafter, nearly eight days later, the pre-suit notice is sent by the 2nd defendant. This clearly demonstrates the collusion between the 1st defendant Muthammal and the 2nd defendant Logeswaridas which in turn would show the hand of Kalidass behind the cancellation.28. The learned counsel would rely upon the Judgment of the Hon’ble Supreme Court reported in 2014 (9) SCC 445 = AIR 2014 SC 2906 [Renikuntla Rajamma (D) by legal representatives v. K.Sarwanamma] in support of the argument that the delivery of possession is not a pre-requisite for a gift. He would further submit that a mere perusal of Ex.A.4 = Ex.B.5, the Deed of cancellation does not set out any of the reasons stated in the Written Statement for canceling the Deed. On the contrary, the reason given for cancelling the Deed which was extracted in the Judgment of the Appellate Court would read as follows:“TAMIL”29. Therefore, the learned counsel would submit that the contents of the written statement is only an after thought to provide a semblance of a legality for the cancellation. He would submit that the Questions of Law which have now been raised by this Court have already been dealt with in great detail by the Courts below and therefore, the same may be confirmed.30. Mr.V.S.Kesavan, learned counsel for the plaintiffs in O.S.No.42 of 2007 would submit that the Consent Deed based upon which the 1st defendant claims that she had cancelled the Settlement Deed, has not been signed by the guardian of the minors, namely, their mother, who has been shown as their guardian in the Settlement Deed. He would therefore submit that a mere perusal of the recitals in the Settlement Deed would clearly demonstrate that the Settlement has been accepted and possession also handed over to the Settlees on the date of Settlement Deed. He would further submit that the argument that the minors have to be represented only by the natural guardian runs contrary to the Judgment of the Hon’ble Supreme Court reported in 2018 (1) CTC 565 - Nagaiah and others v. Chowdamma (dead) by LRs and others.31. That apart, the father has not objected to the filing of the suit by the mother on behalf of the minors. Therefore, the argument of the appellants, Logeswaridas and N. Kalidass that the suit as filed is not maintainable, is totally misconceived.32. The learned counsel would make the following submission with reference to the second argument that before filing the suit on behalf of the minors, permission of the Court has to be obtained. He would submit that this argument is contrary to the provision of Order 32 Rule 1 of the Code of Civil Procedure, CPC in short, which only contemplates that a suit on behalf of the minor should be instituted by his next friend. Order 32 Rule 4 CPC provides as to who can act as the next friend or be appointed for the guardian for the suit. Order 32 Rule 4(1) CPC states that a person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit and only the rider being that his interest should not be adverse to that of minor. He would contend that the argument put forward by the appellants is therefore not maintainable.Discussion33. Heard the learned counsels appearing on either side and perused the records.34. The main argument put forward by the appellants is that the Settlement Deed is a conditional settlement and therefore, the Settlor was well within her right to cancel the Settlement Deed on account of the breach of the conditions. Before proceeding to consider the above arguments in the light of the facts of the case, it would be necessary to extract the following provisions of the Transfer of Property Act, herein after referred to as the Act relating to Gifts:-Section 122. “Gift” defined -“”Gift””is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the done, and accepted by or on behalf of the done.Section 123. Transfer how effected -For the purpose of 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. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.Section 124. Gift of existing and future property - A gift comprising both existing and future property is void as to the latter.Section 125. Gift to several of whom one does not accept - A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.Section 126. When gift may be suspended or revoked - The donor and done may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.35. Therefore, a perusal of Section 122 of the Act would indicate that for a transfer to be recognised as a Gift the following ingredients are to be present:(i) Transfer must be with reference to existing movable or immovable property.(ii) Transfer should be made voluntarily and without consideration by one person called the donor to be another person called the donee.(iii) It must be accepted by or on behalf of the donee. Acceptance should be made during the life time of the donor and while the person making the acceptance was capable of giving it.(iv) Transfer must be effected by a registered instrument by or on behalf of the donor and attested by two witnesses in the case of an immovable property. In the case of movable property, it can be acted either by way of a registered instrument or by delivery.36. Section 126 deals with the circumstances when a Gift may be suspended or revoked. The Section provides that the suspension or revocation can be made on the happening of the specified event which does not depend on the Will of the donor. Where a Gift is revocable wholly or partly, on the mere Will of the donor it is void either wholly or in part. The Gift also could be revoked in cases where if it was a Contract it could be rescinded.37. The Settlement Deeds of the respective plaintiffs which have been marked as Ex.A.2 in O.S.No.17 of 2007 and Ex.A.1 in O.S.No.42 of 2007 contain identical recitals. The Settlement Deed very clearly provides that under the Settlement Deed, the scheduled property which belonged to the Settlor was being settled absolutely on the Settlee to be enjoyed by the Settlee by himself and through his heirs, his sons absolutely by effecting Sale, mortgage, etc., The recital also reads that the Settlor had divested herself of her rights over the property. It is clearly mentioned that the Settlement Deed is an irrevocable one and that possession has been handed over to the Settlee. The Settlement Deed would further provide that the Parent Document, namely, the Document No.1052/1955 had been retained by the Settlor since it covers other property which continued to belong to the Settlor and that therefore a certified copy of the same was being given to the Settlee. The Settlement deed does not contain any conditions that the Settlees had to comply with.38. Therefore, a mere perusal of this recital clearly indicates that from the date of the Settlement, the Settlor had divested herself of all interest in the property and she had handed over possession of the same to the Settlees for them to enjoy it absolutely. The Settlor has also made it clear that the Deeds are irrevocable.39. The contention of the appellants is that the said Settlement Deed is a conditional Settlement Deed since on the very same day, i.e., on 10.10.2003, the SETTLEES have executed a Consent Deed in favour of Muthammal. This Deed has been signed and given by N.Kalidass, N.Sivakumar, the plaintiffs in O.S.No.17 of 2007 and N.Venkatesh (the father of the plaintiffs in O.S.No.42 of 2007). The Settlees Sachin Sandeep and Nithin Akilesh nor their mother on their behalf had signed this deed.40. It is the case of the appellants that the Settlement Deed is a conditional settlement in view of the Consent Deed Ex.B.2. Interestingly, this Deed would read as follows:“TAMIL”41. Therefore, under this Consent Deed, the Settlees Kalidass and Sivakumar and the father of the plaintiffs in O.S.No.42 of 2007 have consented to their mother continuing to receive the rents in respect of the properties for her lifetime. They have also assured the said Muthammal that they would not take over possession till her lifetime and would not create any encumbrance in respect of the property till her lifetime.42. Nowhere in the document has it been stated that the non compliance of any of these terms would give a right to Muthammal to cancel the Settlement Deed or that the consent deed should be read as part and parcel of the Settlement Deeds. It is to be remembered that no condition has been incorporated in the Settlement Deed which clearly states that it is irrevocable. Therefore, with effect from the date of signing of the Settlement Deed, Muthammal has no right and interest over the suit property. The Consent Deed is only a favour done by her sons to enable her to continue to receive the rents till her life time.43. The defense put forward by Muthammal and Logeswaridas is that the plaintiffs have tried to prevent the tenants from paying the rents to Muthammal and therefore, they had committed a breach of the conditions. This Statement has not been proved by letting in any evidence. On the contrary, in the Cancellation Deed, the Settlor Muthammal had merely stated that since she is no longer interested in the Gift Settlement she is canceling the Settlement Deed already executed. The recitals of the Cancellation Deed does not reproduce the facts pleaded in the Written Statement and there is no ground made out under Section 126 of the Transfer of Properties Act. Therefore, it is very clear that the Settlement Deed has come into effect immediately on its execution and the 1st defendant Muthammal, when she executed the Deed of Cancellation and the subsequent Sale Deed, had no right, title or interest over the suit property in question. Consequently, the documents created by her thereafter is absolutely invalid.44. The Hon’ble Supreme Court in the Judgment reported in Namburi Basava Subrahmanyam vs. Alapati Hymavathi and Others [(1996) 9 SCC 388], had observed that where the Settlor creates a life interest in the property in favour of the Settlees, it is settled law that it is executed to create a life interest for her enjoyment, while divesting counsel of the title to the property. However, the property would devolve absolutely on the Settlee since on the date of execution of the Settlement Deed, the Settlor had divested herself of her right, title and interest to the property.45. In the Judgment reported in 2019 (13) SCC 210 [Asokan v. Lakshmikutty and others], the question involved was whether the averment made in the Deed of Gift with regard to the handing over the possession was sufficient proof of acceptance thereof by the donee. After discussing the fact and the law, the Bench relied upon the observations made in 1984 KLT 61 (NOC) [Alavi v. Aamana Kutti and others] which reads as follows:“It is settled Law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of thedonor. It is an admission binding on the donor and those claiming under him Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was deliver of possession.”46. The Judgment reported in 2014 (9) SCC 445 = AIR 2014 SC 2906 [Renikuntla Rajamma (D) by legal representatives v. K.Sarwanamma], was a case where the defendants had executed a Gift Deed in favour of the plaintiffs and it was accepted by the plaintiffs. The defendants/donee had reserved the right to enjoy the benefit till her lifetime. Thereafter, the defendants had revoked the Gift Deed. This revocation was assailed by the plaintiffs therein and a suit to declare the revocation deed as invalid and void ab initio was filed. The Learned Judges held that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property.47. Therefore, from the above Judgments it is clear that there is no necessity for possession to be actually delivered and this does not form one of the pre-requisite for a Gift to be valid. Even Section 123 of the Transfer of Property Act provides that in the case of Gift of immovable property, the same is to be by way of a registered instrument. In the instant case, admittedly, the Settlement Deed is a registered document. Therefore, the transfer of property has been effected.48. Coming to the question of Settlement Deed being a conditional one the same has to be considered in the light of the recitals contained in the deed. In the instant case the Settlement Deed does not contain any condition, on the contrary that the recitals in the Settlement Deed would clearly indicate that the property is absolutely settled on the Settlees. The Settlor has clearly stated that she will not revoke the Deed. The Consent Deed which has been signed by the parties is more in the form of a permission/favour being given to the mother Muthammal to receive the funds though the property has been settled already by Muthammal. Therefore, it cannot be stated that the Consent Deed would make the Settlement Deed a conditional one. Although both the documents have been signed on the same day. Therefore, the Substantial Questions of Law (a) is answered against the defendants/appellants. I do not find any ground for interfering with the Judgment and the Decree in S.A.No.497 of 2021.49. The Substantial Questions of Law (b) raised by the appellants with reference to the suit filed by the mother on behalf of the minor plaintiffs appears to be misconceived. A reading of provision of Order 32 Rule 1, CPC would indicate that any person can act as a next friend of a minor. The only criteria is that the said person should be of a sound mind and should have attained majority. Further, he must have not any interest contrary to that of the minor. The mother of the minors fulfills the above criteria. Further, the father had not objected to her acting as a guardian.50. In the Judgment reported in 1999 (1) CTC 284 [Chinnamma and another v. Gopal and another], one of the Substantial Questions of Law that was framed for consideration was whether the mother can represent a minor son as guardian when the father is alive with regard to undivided interest in joint family property seeking partition of the same in view of Section 6 of the Hindu Minority and Guardianship Act, 1956?”. The learned Judge after considering the provisions of Order 32 CPC and the Judgment of the Division Bench of this Court in I.L.R. (1953) Mad. 146 [Grandhi Ramakrishnayya v. Grandhi Atchutha Ramayya] held as follows:“It was held that a notice of division issued on behalf of a minor by his next friend who is not the legal guardian and who subsequently brings a suit on behalf of the minor in which a decree is given on the footing that the partition is for his benefit brought about the severance in status from the date of the notice.........”So, in view of the above position of law, it is clear that the decision of the Courts below that the suit filed by the minor for partition of the family properties is not maintainable, is not correct.”51. This position was once again reiterated in the Judgment of the Hon’ble Supreme Court (2019) 11 Supreme Court Cases 391 [S.Sarojini Amma v. Velayudhan Pillai Sreekumar]. Therefore, question of law (b) is answered against the appellant.52. The Sale Deed which is executed in favour of the 2nd defendant by the 1st defendant appears to be collusive one made with an intention to defeat the rights of the plaintiffs in O.S.No.17 of 2007

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and O.S.No.42 of 2007. The defendants would contend that the Agreement of Sale has been executed on 03.02.2003 itself that is much before the execution of the Settlement Deed. However, despite this agreement the first defendant has Settled the property on the respective Settlees. There is no reference to this agreement of sale even in the Consent Deed executed on 10.10.2003 in which the Agreement Holder J.Logeswaridas has also signed as a witness acknowledging the Settlement executed in favour of the plaintiffs in O.S.No.17 of 2007 and O.S.No.42 of 2007. That apart, the suit for Specific Performance is filed on 16.12.2005. On the very same day, a consent Compromise Decree was entered into between the 1st and 2nd defendants i.e., G.K.Muthammal and J.Logeswaridas that is even before notice is ordered to the respondent. After the Decree, the pre-suit notice has been sent on 19.12.2005. The above factor would clearly indicate that a fraud that has been played by the defendants with the sole aim of depriving the plaintiffs of their right to the property. In the Written statement filed in O.S.No.42 of 2007 G.K.Muthammal has contended that owing to the fact that she was ailing she required huge funds for meeting her medical expenses for which purpose she had entered into on agreement with Logeswaridas to sell the suit properties. If this statement is true then a question arises as to how Muthammal had executed the settlement deed. All these circumstances clearly proves that the deed of cancellation of the settlement deed and the subsequent sale deed is invalid as it has been fraudulent created.53. The next argument advanced is that prior permission ought to have been taken before having the minor plaintiff was represented by guardian. This arguments runs contrary to the provision of Order 32, CPC. Order 32, CPC contemplates a prior permission only in cases where a guardian is to be appointed for the minor defendants. In the Judgment of Nagaiah and others v. Chowdamma (dead) by LRs and others, the Honorable Judges dealt with the conflict between the CPC and Hindu Minority and Guardianship Act and the Guardians and Wards Act. The Honorable Judges have discussed the procedure where the minor was the plaintiff and when the defendant is the minor. They held as follows in Para 11:“It is by now well settled and as per the provisions of Order XXXII of Code that any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next friend. Such person who is representing the minor Plaintiff as a next friend shall not be party to the same suit as Defendant. Rules 6 and 7 of Order XXXII of the Code specifically provide that the next friend or guardian in the suit shall not without the leave of the Court receive any money or immovable property and shall not without the leave of the Court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order XXXII of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order XXXII of the Code.”54. The observations afore stated clearly applies to instant case and therefore substantial question of law (c) is answered against the plaintiff.Consequently, both the Second Appeals are dismissed, however, there shall be no order as to costs.
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