K.A.

Shanmugam vs Tamilarasi on 23 September, 2011

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Madras High Court

K.A.Shanmugam vs Tamilarasi on 23 September, 2011

In the High Court of Judicature at Madras

Dated:

23.09.2011

Coram:
The Honourable Mr. Justice R.SUBBIAH
Second Appeal Nos.1656 and 1657 of 2008
and
M.P.No.1 of 2009

1. K.A.Shanmugam
2. K.Sengodan

..Appellants in both Appeals

..vs..
1. Tamilarasi
2. Sevanthi
3. Ayaponnu

..Respondents in both Appeals

Second Appeals filed under section 100 of Civil Procedure Code, against the common judgment
and decree dated 31.07.2007 made in A.S.Nos.35 and 36 of 2006 on the file of Sub Court, Mettur,
reversing the common judgment and decrees dated 31.10.2006 made in O.S.No.128 and 132 of
2004 on the file of District Munsif-cum-Judicial Magistrate Court, Omalur.
For Appellants : Mr.S.Parthasarathy, Senior Counsel for Mr.S.Vijayan For Respondents :
Mr.M.S.Krishnan, Senior Counsel for Mr.N.Senthil Kumar COMMON JUDGMENT Defendants 4
and 5 in O.S.No.128 of 2004, who are the plaintiffs in O.S.No.132 of 2004 on the file of District
Munsif-cum-Judicial Magistrate Court, Omalur, have filed the present second appeals, aggrieved
over the common judgment and decrees dated 31.07.2007 passed by the learned Subordinate
Judge, Mettur in A.S.Nos.35 and 36 of 2006, reversing the common judgment and decrees passed
by the trial court in both the suits.
2. The 1st respondent herein, viz., Tamilarasi is the plaintiff in O.S.No.128 of 2004 and she filed
the suit against respondents 2 and 3, their mother deceased Iythal and the appellants as the
defendants for a declaration of her title over the suit property, permanent injunction restraining
the defendants from interfering with her peaceful possession and enjoyment of the suit property, a
declaration that the cancellation deed dated 20.02.1996 and the two sale deeds dated 29.11.1996
and another two sale deeds dated 16.06.1997 are not true and valid and they would not bind the
plaintiff.

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3. The appellants herein, viz., K.A.Shanmugam and K.Sengodan filed O.S.No.132 of 2004 against
the respondents herein and the deceased Iythal as the defendants for a permanent injunction
restraining the defendants from interfering with their peaceful possession and enjoyment of the
suit property. For convenience, the parties are hereafter referred to as per their ranking before the
trial court in O.S.No.128 of 2004.
4. The case of the plaintiff in O.S.No.128 of 2004, who is arrayed as the 1st defendant in O.S.No.132
of 2004, in brief, is as follows:
(a) The plaintiff Tamilarasi and defendants 1 and 2, viz., Sevanthi and Ayaponnu are the sisters and
the 3rd defendant Iythal is their mother. The plaintiff is the widow and has got two minor
daughters and one minor son and her husband died about 8 years back in the accident. The suit
property originally belonged to Iythal, who executed a registered gift settlement in respect of the
suit property in favour of the plaintiff on 23.06.1994 and since then, the plaintiff is the absolute
owner of the suit property. The patta for the suit property has been transferred in the name of the
plaintiff by the revenue authorities and the kist has been paid by the plaintiff for the suit property.
Due to personal enmity, defendants 1 and 2 attempted to trespass into the suit property on
31.12.1996 and the same was prevented by the plaintiff. Subsequently, the plaintiff came to know
that her mother cancelled the settlement deed dated 23.06.1994 executed in her favour and
thereafter, executed two sale deeds dated 29.11.1996 in favour of defendants 1 and 2 in respect of
the suit property, who, in turn, sold the same to defendants 4 and 5 (appellants) by executing two
sale deeds dated 16.06.1997. The cancellation of the settlement deed and the sale deeds are not
valid and the defendants are not entitled to get any right, title or interest over the suit property.
Hence, the plaintiff filed the suit for the reliefs stated supra.
(b) The case of defendants 1 and 2 in O.S.No.128 of 2004, who are arrayed as defendants 3 and 4 in
O.S.No.132 of 2004 is that the settlement deed executed in favour of the plaintiff was not acted
upon; however, subsequently by cancellation deed, their mother had revoked the settlement deed
to the knowledge of the plaintiff and executed two sale deeds in favour of defendants 1 and 2 on
29.11.1996 and put them in separate possession on the date of sale and from that date, only they
were in possession of the properties purchased by them on their own right. Hence, the plaintiff
had no right whatsoever in the suit property. Though the plaintiff had a knowledge about the
revocation deed, she obtained patta in her name falsely in respect of the suit property and
thereafter, on appeal, the patta was transferred in favour of them.
(c) According to the 3rd defendant in O.S.No.128 of 2004, who is arrayed as 2nd defendant in
O.S.No.132 of 2004 that she admitted the execution of the settlement deed in favour of the
plaintiff; but thereafter, she cancelled the settlement deed under a registered revocation deed
dated 20.02.1996. Thereafter, this defendant retained 1/3rd share towards her share and sold
2/3rd share to her daughters namely, defendants 1 and 2 by way of two sale deeds and patta was
also transferred in their name. Thereafter, defendants 1 and 2 sold their portion to defendants 4
and 5.
(d) The case of defendants 4 and 5 in O.S.No.128 of 2004, who are the plaintiffs in O.S.No.132 of
2004, is that originally the suit property belonged to the 3rd defendant and she executed a
registered settlement deed in favour of the plaintiff and defendants 1 and 2 on 23.06.1994. That
settlement deed was not acted upon and hence, the 3rd defendant executed a registered
cancellation deed on 20.02.1996, revoking the earlier settlement deed and since then, the 3rd
defendant alone was in possession and enjoyment of the suit property. Thereafter, the 3rd
defendant, after retaining her 1/3rd share, sold 2/3rd share to defendants 1 and 2 by way of two
sale deeds on 29.11.1996. These defendants purchased that portion of the property from
defendants 1 and 2 on 16.06.1997 and from the date of purchase, defendants 4 and 5 are the
absolute owners and are in possession and enjoyment of the same. Hence, the plaintiff is not
entitled to get any relief and the suit is liable to be dismissed.
5. On the said pleadings, the trial court framed necessary issues and tried both suits together and
conducted a joint trial and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to

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A-22 were marked and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to
B-17 were marked. After considering the entire materials, the trial court dismissed the suit
O.S.No.128 of 2004 and decreed the suit in O.S.No.132 of 2004. Aggrieved over the said finding,
the plaintiff filed two appeals in A.S.Nos.35 and 36 of 2006 before the Sub Court, Mettur and the
lower appellate court has reversed the finding of the trial court and allowed both the appeals.
Being aggrieved, defendants 4 and 5 have filed the present second appeals.
6. At the time of admission of both second appeals, this Court has framed the following substantial
question of law for consideration:
In the absence of evidence and proof of acceptance of the gift deed and taking possession in
pursuance thereof, is the lower appellate court correct and justified in holding that the gift deed is
true and valid and in the absence of payment of necessary and proper court fee on the reliefs
claimed, is the lower appellate court correct and justified in granting the declaratory relief and the
consequential relief ?
7. Learned Senior Counsel for defendants 4 and 5 (the appellants) submitted that though a
settlement deed was executed by Iythal, in favour of her daughter, the plaintiff on 23.06.1994,
possession of the property was never handed over to the plaintiff and the patta also stood in the
name of Iythal, which fact would show that the settlement deed was never acted upon. But,
subsequently the mother of the plaintiff had cancelled the settlement deed by revocation deed
dated 20.02.1996. The certified copy of the such deed was marked as Ex.B-1 on the side of the
defendants. Though the plaintiff had stated in her plaint that patta was transferred in her name
and she was paying kist in respect of the suit property, actually the kist receipts stood only in the
name of her mother Iythal. In fact, after the cancellation of settlement deed, the mother Iythal
executed two sale deeds in favour of her two other daughters, namely, defendants 1 and 2 by
selling 2/3rd share in the property and retaining 1/3rd share for her. Thereafter, defendants 1 and
2 and the mother had sold the properties by two different sale deeds dated 16.06.1997 in favour of
defendants 4 and 5 and patta was also transferred in their name. The trial court, by considering all
these aspects, dismissed the suit filed by the plaintiff, after coming to a conclusion that though the
settlement deed was executed by the mother in favour of the plaintiff, possession was never
handed over to the plaintiff and hence, the settlement deed was not acted upon. But the lower
appellate court, while setting aside the judgment and decree of the trial court, has erroneously
placed reliance on the evidence adduced by the plaintiff as P.W.1 that she was in possession and
enjoyment of the suit property pursuant to the settlement deed executed by her mother and she
had also entered into an agreement with one Tamilarasu seven years before the date of filing of the
suit and presently the said Tamilarasu is in possession of the suit property and in support of the
same, the plaintiff has filed Ex.A-21, possession certificate issued by the Tahsildar dated
15.10.1999.
8. Attacking the reliance placed by the lower appellate court on the evidence adduced by P.W.1 and
Ex.A-21, the learned senior counsel for the appellant further submitted that absolutely, there is no
pleading either in the plaint filed by the plaintiff or in the written statement filed by her in
O.S.No.132 of 2004 that she had entered into an agreement with one Tamilarasu and pursuant to
the same, he was put in possession of the suit property. When there is no pleading, the lower
appellate court ought not to have placed reliance on the said piece of evidence adduced by P.W.1
and Ex.A-21. Therefore, the finding arrived at by the lower appellate court, based on the said piece
of evidence of P.W.1 and Ex.A-21, is liable to be set aside.
9. Learned senior counsel for the appellant further submitted that the elementary fact that has to
be proved by the plaintiff is that pursuant to the settlement deed, possession was delivered to her.
Absolutely, there is no evidence to show that possession was delivered in favour of the plaintiff by
her mother. On the other hand, the patta and kist receipts stood only in the name of the mother. In
support of this contention, the learned senior counsel has relied on the decisions reported in
CHENNUPATI VENKATASUBBAMMA .vs. NELLURI NARAYANASWAMI (AIR 1954 MAD 215),
JAMUNA BAI .vs. M.A.ANUSUYA AND OTHERS (2001-2-L.W.276) and MUTHY VELU .vs.

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G.KANNAMMAL AND OTHERS (2001-2-L.W.400) and submitted that the finding of the lower
appellate court in both the suits is liable to be set aside since the same is not based on any legal
evidence.
10. Per contra, the learned Senior Counsel for the plaintiff (1st respondent herein) submitted that
it is incorrect to state that possession of the property was not handed over to the plaintiff by her
mother pursuant to the settlement deed dated 23.06.1994. In this regard, by inviting the attention
of this Court to the contents of the settlement deed, the learned senior counsel submitted that in
the settlement deed, it has been specifically mentioned that on the date of execution of the
settlement deed, the possession of the properties had been given to the plaintiff. Pursuant to the
settlement deed, possession has also been taken over by the plaintiff and she is in enjoyment of the
suit property. Since the mother Iythal was staying along with the settlee, i.e.the plaintiff in the
same property, there is no immediate need for the plaintiff to change the patta and kist receipts in
her name immediately. Therefore, since the plaintiff did not take immediate steps to get the
transfer of patta in her name, it does not mean that she is not in possession of the suit property. In
fact, when the plaintiff filed a suit in O.S.4 of 1997 (subsequently re-numbered as O.S.No.128 of
2004), she was not aware of the cancellation of the settlement deed dated 20.02.1996 and in fact,
the said suit was filed only for a bare injunction. Subsequently, when she came to know that the
settlement deed was cancelled by cancellation deed 20.02.1996, she filed an application to amend
the plaint by inserting the declaration prayer. In fact, patta has been transferred prior to the filing
of the suit itself and it is marked as Ex.A-7 on the side of the plaintiff. House tax receipts also
transferred in the name of the plaintiff. Therefore, it is incorrect to state that the settlement deed
has never been acted upon. The very fact that the original settlement deed Ex.A-1 was marked on
the side of the plaintiff itself would show that the gift deed was handed over to the donee by donor
and that the gift was accepted. In support of this contention, the learned senior counsel has relied
on the decisions reported in KAMAKSHI AMMAL .vs. RAJALAKSHMI (AIR 1995 MADRAS 415),
T.V.KALYANASUNDARAM PILLAI .vs. KARUPPA MOOPANAR (AIR 1927 PRIVY COUNCIL 42),
R.KUMARASAMY

KOUNDER

.vs.

V.EZHUMALAI

KOUNDER

(1996(II)

CTC

150),

THIAGARAJAN, S .vs. SARASWATHY KITTU (1999 (III) CTC 217), N.SUBRAMANIAN .vs.
THANJIAMMAL AND ANOTHER ((2008) 1 MLJ 227), ASOKAN .vs. LAKSHMIKUTTY ((2008) 1
MLJ 193 (SC), SANJUKTA RAY .vs. BIMELENDU MOHANTY (AIR 1997 ORISSA 131).
11. Learned senior counsel for the plaintiff further submitted that the proper person to speak about
the cancellation of the settlement deed is the mother of the plaintiff, viz., Iythal. But she was not
examined before the trial court. Therefore, an adverse inference could be drawn for
non-examination of the mother of the plaintiff. In support of the contentions, the learned senior
counsel has relied upon the decisions reported in MAN KAUR (DEAD) BY LRS. .vs. HARTAR
SINGH SANGHA ((2010) 10 SCC 512), T.TAMILARASAN .vs. AROKKIASAMY AND OTHERS
(2007(3) CTC 59) and N.B.SUBRAHMANYAM .vs. A.HYMAVATHI (AIR 1996 SC 2220). The
learned senior counsel further submitted that on the side of the defendants, the original revocation
deed was not marked before the trial court and only the certified copy of the revocation deed was
marked as Ex.B-1 and it is only a secondary evidence and no proper explanation was given by the
defendants for not producing the original revocation settlement deed. The learned senior counsel
further submitted that the lower appellate court, by considering all these aspects, has correctly set
aside the judgment and decree of the trial court and hence, no infirmity could be seen in the
common judgment and decrees of the appellate court.
12. By way of reply, the learned senior counsel for defendants 4 and 5(the appellants) submitted
that before the trial court, no objection was raised by the plaintiff for non-production of original
revocation deed. Under such circumstances, now at the appellate stage, she cannot raise this plea.
In this regard, the learned senior counsel relied on the decisions reported in DAYAMATHI BAI .vs.
K.M.SHAFFI ((2004) 7 SCC 107) and HEMENDRA RASIKLAL GHIA, ETC., .vs. SUBODH MODY,
ETC., (2008(5) CTC 577) and submitted that the kist receipts were transferred in the name of the
plaintiff only subsequent to the filing of the suit and no mutation was made immediately after the
settlement deed. Therefore, no reliance could be placed on the house tax receipts marked by the
plaintiff as Exs.A-14, A-16 and A-17. Apart from that, since the plaintiff was living along with her

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mother in the same property jointly, mere possession of the property cannot be taken as
unequivocal factor to prove the case of the plaintiff that the settlement deed was acted upon. In
support of this contention, the learned senior counsel has relied on the decisions reported in
BANCHA BHOL .vs. SARIA BEWA (AIR 1973 ORISSA 18) and RAM CGABDER ORASAD .vs.
SITAL PRASAD (AIR (35) 1948 PATNA 130).
13. This court has paid anxious consideration on the submissions made by the learned counsel on
either side and perused the materials available on record.
14. In view of the said arguments advanced by both sides, the questions that arise for consideration
are, (1) Whether the settlement deed has been acted upon ?
(2) Whether the revocation of settlement deed is valid in the eye of law ?
15. With regard to the first question, it is the submission of the learned senior counsel for
defendants 4 and 5 that unless possession is handed over pursuant to the settlement deed Ex.A-1,
it cannot be said that the settlement deed was acted upon. Even after the execution of the
settlement deed dated 23.06.1994, no mutation was effected in the revenue records; patta stood
only in the name of the mother of the plaintiff Iythal and kist was also paid in the name of Iythal.
Hence, according to them, since possession is not handed over, it could be safely presumed that
the settlement deed was not acted upon. In support of this contention, the learned counsel relied
on the decisions reported in AIR 1954 MADRAS 215, 2001-2-L.W.276 and 2001-2-L.W.400 (supra)
wherein it has been held that there must be a proof of delivery and acceptance of possession of the
gifted property and submitted that unless the gift deed is executed in the manner indicated under
section 122 of the Transfer of Property Act and unless there is a proof of delivery of possession and
acceptance of possession of the gifted property, it cannot be said that the settlement deed was
acted upon and there is no force in the claim made by the plaintiff that the settlement deed has
been acted upon.
16. Per contra, it is the submission of the learned senior counsel for the plaintiff that even on the
date of execution of the settlement deed itself, the plaintiff was put in possession, which could be
evidenced that the settlement would operate. In support of this contention, the learned senior
counsel has also invited the attention of this Court to the contents of the settlement deed and the
recitals in the deed do indicate thus:
VERNACULAR (TAMIL) PORTION DELETED
17. On going through the said contents, this Court is of the view that the plaintiff was taking care of
the mother after the demise of her father and out of her own volition, the mother executed the Will
without stipulating any condition. Now, it could be appropriate to see some of the judgments relied
on by the learned senior counsel for the plaintiff as to even if there is any recital in a settlement
deed that possession has been handed over, that is sufficient to come to a conclusion that
settlement is acted upon. In AIR 1997 ORISSA 131 (supra), it has been held as follows:
"7. ..... Specific recital in the deed that possession has been handed over to the donee. When such
recital is there, presumption arose that possession has been handed over to the donee...."
18. In AIR 1927 PRIVY COUNCIL 42 (supra), it has been held as follows:
"..... When the instrument of gift has been handed by the donor to the donee and accepted by him,
the former has done everything in his power to complete the donation an to make it effective
Registration does not depend upon his consent, but is the act of an officer appointed by law...."
19. In 1999 (III) CTC 217 (supra), this Court has held as follows:
"9. Under section 126 of the Transfer of Property Act, a gift can be suspended or revoked by the
donor only in the stated circumstances therein. One of the circumstances is that on the happening
of any event, which does not depend on the will of the donor, a gift shall be suspended or revoked.
In this context I perused Ex.A.1., settlement deed. It is a very simple settlement deed executed out

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of sheer love and affection which the second defendant had towards her daughter/plaintiff. No
reservation had been made in this settlement deed for revocation of the same on the happening of
any specific event, which was not within the control of the second defendant. Therefore this
ground to have the settlement deed revoked, is not available at all. Section 126 of the Transfer of
Property Act also provides for revocation of the settlement deed "on any ground on which the
contract can be rescinded except the ground of want of or failure of consideration." None of the
grounds available under the Contract Act namely, undue influence, coercion, misrepresentation or
fraud, are neither pleaded nor established. The only plea available in the written statement is that
under the pretext of taking the second defendant for treatment of her eye at Madras, the
settlement deed came to be executed and registered at Madras. Even in his oral evidence, the first
defendant as D.W.1 would state that at or about the time when Ex.A.1 came to be executed, she was
in the house of the plaintiff and she was ailing and she was there to undergo eye surgery. When he
asked his mother, she said that she was taken to Madras and there her signature was obtained in a
document. Beyond this there is no other material available in the oral evidence, which may be
taken into account to decide the truth or otherwise of the settlement deed. On top of this, the
second defendant pleaded and gave evidence that she executed the settlement deed in favour of
the plaintiff out of her own volition and will and for the love and affection she had for the plaintiff.
In my opinion the stand of the second defendant before the court, both in the pleading and in the
oral evidence, clearly demolish the case of the first defendant that Ex.A.1 was not duly executed by
the second defendant out of her own free will and volition and it was brought about only under
suspicious circumstances. Under these circumstances, I have no hesitation to hold that Ex.A.1 is
not tainted with any illegality and it is true, valid and binding. I also find that the second defendant
has no legal authority to revoke the settlement deed in favour of the plaintiff, in view of the
absence of grounds as enumerated under section 126 of the Transfer of Property Act".
20. In AIR 1985 MADRAS 415 (supra), a Division Bench of this Court has held as follows:
"21. Further, paragraphs 3 and 4 of the plaint specifically says that Pavunambal accepted the
settlement. Further, the plaint also says that the original settlement deeds are also filed along with
the plaint. As against this particular allegation regarding the original settlement deeds being filed
by the plaintiff, the written statement only states that the original settlement deeds were always
with the 7th defendant and they were never in the custody of Pavunambal or plaintiff or
defendants 1 to 6. In other words, there was no allegation at all in the written statement that the
original settlement deeds were stolen by the plaintiff's father (1st defendant) from the 7th
defendant. The suggestion comes in only when PW 1 is examined. Further, DW 1, the 8th
defendant does not at all depose so. We cannot accept the story of plaintiff's father or the plaintiff
stealing away the original settlement deed from the 7th defendant. Once that story is not
acceptable there could be the necessary inference that the original settlement deeds were given
over to the donee Pavunambal at the time of the gifts. In Samrathi v. Parasuram MANU/BH
/0029/1975 : AIR1975Pat140 also it has been held, relying on Kalyana-sundaram Pillai v. Karuppa
Moopanar MANU/PR/0011/1926 and Atmaram Sakharam v. Vaman Janardhan AIR1925 Bom 210
FB, that the fact of the gift deed being handed over by the donor to the donee, was sufficient
evidence of his having accepted the gift.....".
21. This Court in 1996 (II) CTC 150), has held as follows:
"16. Since it is not an onerous gift, a very slight evidence is sufficient to prove acceptance. The
circumstances themselves may speak of acceptance. Normally when a person gifts a property to
another and it is not an onerous gift, one may expect the other to accept such gift when once it
comes to his knowledge, since normally any person would be willing to promote his own interest.
May be in particular cases, there would be peculiar circumstances which may show that the donee
would not have accepted the gift. But they are rather an exception to the rule. It is only normal to
assume that the donee would have accepted the gift. Mere silence may be indicative of acceptance,
provided it is shown that the donee knew about the gift. For proving acceptance, there need not be
any direct evidence. It can be express or implied. It can also be inferred from the facts and
surrounding circumstances attending the transaction of gift. An acceptance can also be had before

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the registration of the document. It can be properly registered if it is accepted by the donee or on
his behalf".
22. The Hon'ble Apex Court, in (2008)1 MLJ 193, has made the following observation:
"16. While determining the question as to whether delivery of possession would constitute
acceptance of a gift or not, the relationship between the parties plays an important role. It is not a
case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that
the defendants contend that the donee was to perform certain obligations, is itself indicative of the
fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is
not necessary to prove any overt act in respect thereof as an express acceptance is not necessary
for completing the transaction of gift.
...
18. Mr. Iyer, however, submitted that it would be open to the donors to prove that in fact no
possession had been handed over. Strong reliance in this behalf has been placed on S.V.S.
Muhammad Yusuf Rowther and another v. Muhammad Yusuf Rowther and other [AIR 1958
Madras 527] and Alavi v. Aminakutty & Others [1984 KLT 61 (NOC)].
....
20. When a registered document is executed and the executors are aware of the terms and nature
of the document, a presumption arises in regard to the correctness thereof. [See Prem Singh and
Ors. v. Birbal and Ors. (2006) 5 SCC 353]. When such a presumption is raised coupled with the
recitals in regard to putting the donee in possession of the property, the onus should be on the
donor and not on the donee".
23. In (2008) 1 MLJ 227 (supra), this Court has held as follows:
"16. Under Section 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.
24. A reading of the above judgments would show that mere handing over of document by the
donee himself/herself is sufficient to prove the valid acceptance. In the instant case, the original
settlement deed had been marked by the donee i.e.the plaintiff as Ex.A-1. Though a submission
was made by the learned senior counsel for defendants 4 and 5 that immediately after the
settlement deed, no transfer was made in the revenue records, I am of the opinion that in the
instant case, the gift deed was executed by the mother in favour of her daughter; both of them are
residing in the same property and the document was in possession of the daughter and under such
circumstances, the non-transfer of the name of the plaintiff in the revenue records has no
significance in the background of this case.
25. It is well settled principle that each and every case has to be decided based on the facts and
circumstances of that case. In the instant case, the settlement deed was handed over by the mother
to the plaintiff, in which handing over of possession was mentioned, which fact itself is sufficient to
come to a conclusion that the settlement deed has been acted upon. In view of this finding, I am
not inclined to accept the other submission made by the learned senior counsel for defendants 4
and 5 that since donor and donee were jointly residing in the same property, mere possession of
the property by the donee is not an unequivocal factor to prove the case that settlement deed was
acted upon, cannot be accepted. Moreover, as contended by the learned senior counsel for plaintiff

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that proper person to speak about the cancellation of settlement deed is the mother of the plaintiff
but she has not chosen to examine herself as a witness before the trial court. Therefore, an adverse
presumption has to be drawn that the case put up by the defendants is not correct. In this regard, it
would be appropriate to refer the judgment relied on by the learned senior counsel for the plaintiff
reported in 2007(3) CTC 59 (supra), wherein it has been held by this Court, as follows:
"18.The effect of a party in not appearing in the witness box offering himself to be cross examined
but only filing a statement of oath has been held to be a case of adverse inference to be drawn
against him as per Section 114 of Evidence Act. The conduct of the party in not entering into the
witness box and the law on this aspect as per the adverse inference has been settled by the
Honourable Supreme Court in the judgment rendered in VIDHYADHAR v. MANKIKRAO
reported in 1999 AIR SCW 1129 by referring to the various judgments of the High Courts and the
Privy Council in the following manner which is as follows; "16.Where a party to the suit does not
appear into the witness box and states his own case on oath and does not offer himself to be cross
examined by the other side, a presumption would arise that the case set up by him is not correct as
has been held in a series of decisions passed by various High Courts and the Privy Council
beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230....."
26. Following the principles laid down by the Hon'ble Supreme Court as well as the High Courts, I
am of the view that both appeals have to fail for the following reasons:
(1) The mentioning of handing over possession in the settlement deed itself is sufficient to come to
the conclusion that the settlement deed has been acted upon.
(2) The non-transfer of the name of the donee i.e.the plaintiff in the revenue records immediately
after the settlement, has no significance because after the execution of settlement deed by the
mother in favour of her daughter, both of them were residing in the same property.
(3) The competent person to speak about the revocation of the settlement deed is the mother; but
she has not been examined before the trial court for the reasons best known to her. Therefore, an
adverse inference has to be drawn against the case of defendants 4 and 5 that the case put forth by
them is not correct.
In view of the said finding, I am not dealing with other submissions made by the learned senior
counsel for defendants 4 and 5. I do no find any infirmity in the common judgment rendered by
the lower appellate court reversing the finding arrived at by the trial court and hence, the
substantial question of law is answered against defendants 4 and 5 (the appellants).
For the foregoing reasons, both the second appeals are dismissed. No costs. Consequently,
connected M.P.is closed.
gl To
1. The Subordinate Judge, Mettur.
2. The District Munsif-cum-Judicial Magistrate, Omalur Copy to:
The Section Officer, V.R.Section, High Court, Madras

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