The appellant Esakki Ammal is the daughter-in-law of the respondent Lakshmi Ammal. The appellant herein filed O.S.No.1106 of 2004, on the file of the I Additional District Munsif, Tirunelveli for perpetual bare injunction against the respondent herein not to interfere with her alleged exclusive possession and enjoyment of the suit property. The suit property is said to be consisting of a house site having an extent of 3318.4375 square feet, comprised in Town Survey No.1366 in Block 4, Ward 1, Palayamkottai, four residential portions constructed therein bearing door Nos.6, 6A, 6B and 6C respectively.
2. Admittedly, the respondent herein was the absolute owner of the suit property and was in possession and enjoyment of the same before she executed a gift settlement deed under Ex.A.1 on 14.10.1991. She executed the said registered gift settlement deed in favour of her younger son G.Mariappan, who was the husband of the appellant herein. While giving the property by way of a gift to her younger son, she retained a right to be in possession of the suit property jointly with the said Mariappan till her life time. A restriction on the right of the donee (Mariappan) was also provided in the settlement deed to the effect that the donee would not have a right to alienate or encumber the subject matter of the gift during the life time of the donor, namely the respondent herein and thus she had ensured her right of joint enjoyment of the suit property with her son Mariappan. All these facts are not disputed but on the other hand admitted by both the parties.
3. Despite the admission of the above said nature of gift, the appellant herein chose to contend that the said gift settlement deed (Ex.A.1) was not acted upon and hence, the donor, namely the respondent herein did retain a right to cancel the settlement; that the respondent herein cancelled the said settlement made under Ex.A.1 by executing a cancellation deed dated 11.03.2004, marked as Ex.A2 and on the very same date executed another settlement deed under Ex.A.3, giving the suit property absolutely to Mariappan, husband of the appellant herein; that the said Mariappan by virtue of Ex.A.3 Settlement Deed dated 11.03.2004, acquired absolute title over the suit property with all powers of disposition; that Mariappan, in turn, chose to give it as a gift to his wife, namely the appellant herein by executing a registered settlement deed on 17.03.2004, marked as Ex.A.4 and that thus the appellant herein became the absolute owner of the suit property.
4. Based on the above said contentions and a further plea that the respondent herein ventured to deny the title of the appellant and effected a publication in the newspaper as if she was entitled to claim title and enjoyment over the suit property, the appellant herein filed the above said suit against her mother-in-law, namely the respondent herein for perpetual injunction restraining her from interfering with the appellant's peaceful possession and enjoyment of the suit property. According to the plaint pleadings Mariappan died on 15.05.2004, whereas according to the defence pleading of the respondent he died on 08.05.2004.
5. The suit was resisted by the respondent herein, who was the sole defendant in the suit, by filing a written statement containing the following averments:
The appellant/plaintiff falsely claimed that Ex.A.1 settlement deed was not acted upon. On the other hand, even the plaint pleadings itself would show that the settlement effected under ex.A.1 was acted upon and only by virtue of Ex.A.1 settlement deed, Mariappan, husband of the appellant was able to let out some portions of the suit property to the tenants. The settlement was irrevocable and the donor, the respondent herein had not reserved any right to revoke the settlement in the event of any contingencies. While so, the younger son of the respondent, who was the husband of the appellant was very critically ill after having been affected with cancer. Pointing out the critical condition of Mariappan and stating that they did not have sufficient funds to give him medical treatment, the appellant herein, her father and her brother pleaded with the respondent to raise funds by mortgaging the suit property, for which, the respondent also agreed. But the appellant, her father and her brother, by misrepresenting and playing a fraud upon the respondent, obtained signatures in the cancellation deed marked as Ex.A.2 and the settlement deed marked as Ex.A.3 and got them registered on one and the same day after making her to believe that she was executing a mortgage deed. The said deeds, brought into existence by fraud could not have any validity in law and the appellant/plaintiff did not derive any title under them. As per the original settlement deed, namely Ex.A.1, the respondent (defendant) retained her right to be in joint possession with the donee, namely her son Mariappan till her life time. Since the donee, namely Mariappan predeceased the donor, namely the respondent/defendant, his interest did not survive on his death and from the date of death of the donee (Mariappan), the respondent became the absolute owner of the suit property. She is in exclusive possession and enjoyment of the house bearing door Nos.6 and 6A and she is in constructive possession of the other two door numbers as it was she, who rented out those houses and is collecting the rent for them from the tenants. The suit for perpetual injunction without seeking declaration is also not maintainable.
6. Based on the above said averments found in the written statement, the respondent herein/defendant had prayed for the dismissal of the suit with costs.
7. Based on the above said rival pleadings, the learned trial Judge, namely the I Additional District Munsif, Tirunelveli framed two issues which read as follows:
"1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
2. To what other relief, the plaintiff is entitled?"
8. Pursuant to the framing of the said issues, the parties went for the trial and in the trial, the appellant herein, as plaintiff, examined three witnesses, including herself, on her side as P.Ws.1 to 3 and produced 9 documents as Exs.A.1 to A.9. The respondent herein as the sole defendant examined two witnesses, including herself, on her side as D.Ws.1 and 2. No document was marked on the side of the respondent herein/defendant. Three documents produced by the persons summoned as witnesses were marked as Exs.X1 to X3.
9. At the conclusion of trial, upon considering the evidence brought on record on both sides in the light of the arguments advanced by the learned counsel appearing on both sides, the learned trial Judge came to the conclusion that the plaintiff was not in exclusive possession and enjoyment of the entire suit property; that on the other hand door Nos.6 and 6A were in the possession and enjoyment of the respondent herein/defendant and hence, the appellant herein/ plaintiff was not entitled to the relief of permanent injunction in respect of those door numbers and that the appellant/plaintiff was in possession and enjoyment of door Nos.6B and 6C and hence, she was entitled to the relief of permanent injunction in respect of those two door numbers alone. Accordingly the learned trial Judge decreed the suit in part granting permanent injunction in respect of a portion of the suit property, namely the portions bearing door Nos.6B and 6C alone and dismissed the suit in respect of the other portions, namely the portions bearing door Nos.6 and 6A. The learned trial Judge also directed the parties to bear their respective costs.
10. Aggrieved by the dismissal of the suit in respect of door Nos.6 and 6A, the appellant herein/ plaintiff filled an appeal in A.S.No.102 of 2007 on the file of the Additional Subordinate Judge, Tirunelveli. Similarly, challenging the decree of injunction granted in favour of the appellant herein/plaintiff in respect of door Nos.6B and 6C, the respondent herein/ defendant preferred an appeal on the file of the said Court in A.S.No.105 of 2007. As both the appeals arose out of the judgment pronounced in one and the same suit, the learned additional subordinate Judge, Tirunelveli jointly heard and disposed of the same by a common judgment dated 07.09.2010.
11. The learned Additional Subordinate Judge, Tirunelveli (lower appellate Judge) framed as many as nine points as necessary points for consideration in those appeals and decided the appeals answering all those points. The learned Additional Subordinate Judge, Tirunelveli gave a finding that Ex.A.1 settlement was acted upon; that it was an irrevocable settlement and that hence, the same could not be revoked or cancelled.
12. Based on the said finding, the learned Additional Subordinate Judge, Tirunelveli also held that the settlement made under Ex.A.1 was not lawfully revoked and no legal effect ensued from Exs.A2 and A3. It was also decided by the learned Additional Subordinate Judge, Tirunelveli that Ex.A.2 cancellation deed, Ex.A.3 settlement deed were not valid in the eye of law as they were obtained by fraud, making the executor of those documents, namely the respondent herein, to believe that those documents were mortgages for mobilizing funds for the treatment of her son.
13. In the light of the finding that Exs.A.2 and A.3 were not valid in the eye of law, the learned Additional Subordinate Judge also held that Ex.A.4 settlement deed could not confer a valid title on the appellant herein/plaintiff. It was also held by the learned Additional Subordinate Judge that the possession of the appellant herein/plaintiff in respect of a portion of the suit property bearing door Nos.6B and 6C could not be said to be an exclusive legal possession and that hence, the appellant/plaintiff was not entitled to the relief of permanent injunction in respect of door Nos.6B and 6C also.
14. Based on the above said reasoning and also based on the finding that the possession of the respondent herein in respect of door Nos.6 and 6A was proved, the learned Additional Subordinate Judge, Tirunelveli chose to confirm that the part of the decree of the trial Court dismissing the suit in respect of door Nos.6 and 6A and set aside and reverse that part of the decree of the trial Court, granting permanent injunction in respect of door Nos.6B and 6C. Thus, ultimately the learned Additional Subordinate Judge, Tirunelveli allowed the appeal preferred by the respondent herein/defendant, dismissed the appeal filed by the appellant herein/plaintiff and modified the decree of the trial Court by dismissing the suit in its entirety without cost.
15. Challenging the common judgment pronounced in A.S.Nos.102 and 105 of 2007 and the decrees drawn there from, the appellant herein/plaintiff has come forward with the Second Appeal Nos.928 and 929 of 2010 respectively.
16. Both the appeals came up for admission under Order 41 Rule 11 read with Order 42 Rule 1 of Civil Procedure Code and the arguments advanced by the learned counsel for the appellant were heard. The appeal memoranda and the connected papers filed along with the appeal memoranda were also perused.
17. It is a fight between daughter-in-law and mother-in-law over the property, which originally belonged to the mother-in-law and was settled in favour of her son Mariappan reserving a right for the donar to be in joint possession and enjoyment of the suit property along with the donee till her life time. The scope of disposition made in Ex.A.1 settlement deed is not disputed by the appellant/plaintiff. But on the other hand, the appellant herein/plaintiff would contend that the said settlement deed was not acted upon, which prompted the settlor, namely the respondent herein/defendant to cancel the same by executing a cancellation deed under Ex.A.2 and thereafter to execute a fresh settlement deed under Ex.A.3. The respondent herein, the settlor under Ex.A.1 does not dispute the nature of disposition made under the said document by taking a stand that the settlement made under EX.A.1 was irrevocable. It is her clear contention that Ex.A.1 settlement deed was acted upon and only by virtue of the said deed, her son Mariappan was able to enjoy the property jointly with her and let out some portions of the suit property to the tenants and collect the rent from them.
18. The contention of the appellant herein/ plaintiff is that no transfer of title took place under Ex.A.1 as the same was not acted upon; that Ex.A.1 settlement deed was validly cancelled and that absolute title was conferred upon her husband under Ex.A.3. Whether Ex.A.1 was acted upon or not is a question of fact. The learned trial Judge did not embark upon a discussion as to whether Ex.A.1 settlement deed was validly cancelled and whether the appellant herein/plaintiff had derived title by virtue of Exs.A.3 and A.4. It simply relied on the admission made by the parties to the effect that the respondent herein/ defendant was in possession and enjoyment of a portion of the suit property bearing Door Nos.6 and 6A and it dismissed the suit so far as those portions of the suit property are concerned. So far as the other portions of the suit property bearing door Nos.6B and 6C are concerned, the learned trial Judge held that they were in the possession and enjoyment of the appellant herein/ defendant as on the date of plaint and hence, based on possession she would be entitled to the relief of permanent injunction.
19. In this regard, the trial Court had committed an error in not considering the nature of possession of the appellant herein/plaintiff in respect of door Nos.6B and 6C. Admittedly, she is not in actual possession of those portions and they have been let out to tenants. It is the case of the appellant/plaintiff that she is in constructive possession of those portions as she had let out the property and it was she who received rent from the tenants. Though the tenor of the defence plea raised by the respondent/defendant shall suggest that her younger son Mariappan was in constructive possession of portions of the suit property other than which were in actual possession of the plaintiff, such a possession was pursuant to the disposition made in Ex.A.1 and the right conferred under Ex.A.1 was only to be in joint possession with the respondent/defendant. Unless it is proved that the right of the respondent to be in joint possession of the suit property till her life time came to an end either by operation of law or by act of parties, neither Mariappan nor the appellant herein/plaintiff could be recognized to have an absolute right to be in exclusive possession of the suit property to the exclusion of the other. Therefore, the trial Court ought to have decided the following questions:- "Whether Ex.A.1 settlement deed was acted upon?" "Whether the said settlement deed was revokable?" and
"Whether it was validly revoked under Ex.A.2 cancellation deed?" Without deciding those questions, the question of the appellant/plaintiff entitlement to the relief of permanent injunction could not have been decided as the prayer would be for injunction against a person entitled to be in joint possession, in other words, a limited co-owner having a right of joint enjoyment till her life time.
20. However, the learned lower appellate Judge in the appeal realized the mistake committed by the trial Court, framed necessary issues in this regard and decided the same based on the pleadings made by both parties and evidence available on record. The learned lower appellate judge on an appreciation of evidence, rendered a finding that Ex.A.1 was a revokable settlement and no right of revocation was retained by the respondent/defendant. The learned lower appellate Judge also referred to Section 126 of Transfer of Property Act, 1882 dealing with the suspension and revocation of gift. The said Section provides that if the donor and donee agree on the happening of any specified event which does not depend on the will of donor a gift shall be suspended or revoked, the same shall be valid and that if parties agree that the gift shall be revocable, wholly or in part, at the mere will of the donor the same shall be void wholly or in part, as the case may be. A reading of the said Section will make it clear that whenever a gift is made, the donor and donee may agree that on the happening of an event, which does not depend upon the will of the donor, such gift can be either suspended or revoked. On the other hand, if the agreement is that the gift is revocable either in whole or in part at the mere will of the donor, to that extent, namely either wholly or in part, the gift shall be void.
21. It is not the case of either party that the respondent herein and Mariappan did agree that the respondent would retain a right to revoke the will on the happening of any uncertain event which did not depend upon the will of the respondent herein. In Ex.A.1, there are clear and unequivocal recitals to the effect that both the donor and donee shall jointly enjoy the property without the right to encumber or alienate till the life time of the donor and after the life time of the donor the property would absolutely belong to the donee. It was also recited the donor would have no right to change or revoke the settlement. Knowing fully well that no such right of revocation was retained validly in accordance with Section 126 of the Transfer of Property Act, the appellant/plaintiff seems to have taken a plea that Ex.A.1 settlement deed was not acted upon and the same did not come into force. If at all Ex.A.1 settlement deed was not acted upon, then there was no necessity for getting a revocation deed executed under Ex.A.2. On the other hand, a fresh settlement deed reciting the fact that the earlier settlement was not acted upon would be sufficient. The very fact that a deed styled as cancellation or revocation of Ex.A.1, settlement deed was obtained itself would show that the settlement deed under Ex.A.1 was acted upon.
22. Further more, even as per the pleadings made by the appellant herein/plaintiff in her plaint, Ex.A.1-settlement deed was acted and only by virtue of the settlement deed, her husband was able to let out portions of the suit property to the tenants and collect rent from the tenants. In the light of the said pleading, which is also coupled with a clear and unambiguous admission that the said Mariappan was enjoying the portions of the suit property by letting them out to tenants from the date of Ex.A.1-settlement deed, there is no defect or infirmity in the finding of the lower appellate Court that Ex.A.1- settlement deed was acted upon and that the contention of the appellant herein/plaintiff that it was not acted deserved to be rejected. When such is the case, we have to arrive at a necessary conclusion that the cancellation made under Ex.A.2 and the consequent fresh settlement made under Ex.A.3 have no legal sanctity at all and the lower appellate Court has rightly held so.
23. It is true that the respondent/defendant has also taken a stand that though the disposition made under Ex.A.1 was final and irrevocable, since the donee predeceased her, the gift automatically terminated and she became the absolute owner of the suit property. Such contention is far from being legally sustainable. The contents of Ex.A.1 would show the vesting of the property on the donee, namely Mariappan, on the date of gift itself and only a restriction was placed on his right enjoyment, right of alienation and right to encumber till the life time of the donor, the respondent herein. Reserving a life interest for her to be in joint possession and joint enjoyment in the suit properties along with the donee, the vesting of the property on the donee was made. As such the death of the donee did not result in divesting the title already vested with him. In the event of the donee dying before the death of the donor, his legal heirs would become entitled to the property. In such an event, the respondent/defendant, being the mother of Mariappan, shall also be a co- owner of the suit property and the present suit for injunction by the appellant/plaintiff shall be a suit against a co-owner. It is a settled proposition that a suit for bare injunction in respect of enjoyment cannot be maintained against a co-owner to exclude such co-owner from claiming a right to joint enjoyment.
24. Even if it is assumed for argument sake that the statement made under Ex.A.1 settlement deed could be revoked, unless the appellant/plaintiff is able to prove that such a revocation and a fresh settlement were made legally under Exs.A2 and A3, she will not be entitled to the relief sought for. In this regard, it is the clear and unambiguous contention made by the respondent/defendant that those two documents were obtained by misrepresentation and playing a fraud on her. It is her contention that in the guise of getting a mortgage deed to raise funds for the treatment for her ailing son who was suffering from end stage cancer, those two documents Exs.A2 and A3 were obtained. None of the attestators of the said documents was examined by the appellant herein/plaintiff to refute the above said contention of the respondent herein/defendant and to show that Ex.A.2 and A.3 were genuine and were not tainted with the vitiating factors of misrepresentation and fraud as contended by the respondent herein/defendant.
25. The learned lower appellate Judge has also rightly observed that the respondent/defendant was an illiterate knowing only to sign; that it was probable in the light of the evidence adduced on her side that her signatures in Ex.A.2 and Ex.A.3 should have been obtained misrepresenting the same to be a mortgage deed and thus playing a fraud upon her and that she would have affixed her signature without knowing the contents of those documents. The learned lower appellate Judge also has made a reference to the failure on the part of the appellant herein/plaintiff to prove that the respondent/defendant affixed her signature in Exs.A.2 and A.3 after knowing the contents and nature of the documents she was executing, especially in the light of the plea taken by the respondent herein/defendant and in the light of the evidence adduced on her side and that in the absence of such evidence through attestators of those documents, it would give raise to an adverse inference against the appellant herein/ plaintiff that the respondent herein/defendant put her signatures in Ex.A.2 and A.3 believing them to be mortgage deeds for mobilizing funds for the treatment of her son. Thus on an appreciation of evidence, the lower appellate Court, being the final Court of appeal on facts, has rendered a finding that Ex.A.2 and A.3 were not proved to be genuine and on the other hand they were proved to be obtained by fraud and misrepresentation. The said finding of fact recorded by the learned lower appellate Judge is neither defective nor infirm. Therefore, no interference can be made with the judgment of the lower appellate Court regarding the said finding.
26. We have seen that the finding of the lower appellate Court that Exs.A.2 and A.3 were not genuine and no legal right would flow from them being a finding of fact, which could not be termed perverse deserves no interference in the second appeal. This will lead to a further inference that no valid title could have been derived by the appellant/plaintiff under Ex.A.4. Therefore, the decision arrived at by the lower appellate Court to the effect that the claim of the appellant herein/plaintiff to be in exclusive possession and enjoyment of the suit property is not sustainable in law, that too when the respondent/ defendant is entitled to be in joint possession with the donee under EX.A.1 till her life time, is liable to be confirmed.
27. So far as door Nos.6 and 6A are concerned, a finding of fact was recorded concurrently by the Courts below to the effect that they were in the possession and enjoyment of the respondent/defendant. Hence, the appellant herein/plaintiff was rightly non suited for the relief of permanent injunction in respect of those portions of the suit property. There is no ground for interference with the above said concurrent finding. So far as the other portions, namely door Nos.6B and 6C are concerned, it is true that the Courts below have found that they are in the constructive possession of the appellant/plaintiff as she is collecting rent for the same. However, since the appellant/plaintiff has not established her right to be in exclusive possession of any portion of the suit property to the exclusion of the respondent/defendant, who is having a right to be in joint possession till her life time, there is no defect or infirmity in the finding of the lower appellate Court that the appellant/plaintiff is not entitled to an injunction against the respondent herein /defendant in respect of those portions also.
28. Ofcourse, it is true that the lower appellate Court has pointed out the failure on the part of the appellant herein/plaintiff to seek declaration of tittle as a ground for refusing the relief of permanent injunction. But even if that ground is discarded there will be no scope for interference with the judgment and decree of the lower appellate Court as the decision to non-suit the appellant/plaintiff for the relief sought for can be upheld on other grounds discussed supra.
29. For all the reasons stated above, this Court comes to the conclusion that the appellant/plaintiff has not proved the involvement of any substantial question of law in these appeals. The finding of both the Courts below regarding possession of door Nos.6 and 6A, the findings of fact recorded by the lower appellate Court regarding the genuineness of Exs.A.2 and A.3 and the nature of disposition under Ex.A.1 cannot be termed defective or infirm, much less perverse. No question of law is proved to have decided erroneously. Therefore, there is no scope for interference with the judgment and decree of the lower appellate Court, as interference can be made on substantial questions of law alone. For the above reasons stated above, this Court comes to the conclusion the second appeals deserve to be dismissed.
30. In the result, both the Second Appeals are dismissed. Consequently, connected M.P.(MD) No.1 of 2010 in S.A.(MD) No.928 of 2010 is also dismissed. However there shall be no order as to costs as the Second Appeals are dismissed at the admission stage itself.
