CHELLAMMAL vs VIVEK

A.S.(MD)Nos.221 and 222 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.08.2026
Pronounced on : 27.10.2026
CORAM
THE HONOURABLE MR JUSTICE P.VADAMALAI
AS(MD) NO. 221 of 2021
{CNR: HCMD010618332021}

Case QR
and
AS(MD) NO. 222 of 2021
{CNR: HCMD010618342021}

Case QR
A.S(MD)No.221 of 2021
1.Chellammal
2.Kanimozhi rep. by her power agent
R.Manivannan. ... Appellants/Plaintiffs
Vs.
1.Vivek
2.Senthilpandian
3.The Sub Registrar,
Thallakulam Sub-Registrar Office,
Tnau Nagar, Rajagambeeram
Thirumogur Road,
Madurai North Taluk
Madurai District. ...Respondents/Defendants
PRAYER: This Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 & 2
of CPC, to set aside the judgment and decree passed in O.S.No.12 of 2015
dated 07.07.2021 on the file of the IV Additional District Court, Madurai by
allowing this appeal.
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A.S.(MD)Nos.221 and 222 of 2021
For Appellants : Mr.H.Arumugam
For R1 : Mr.M.Vallinayagam
Senior Counsel
for Mr.PT.S.Narendravasan
For R2 : No Appearance
For R3 : Mr.S.Vashik Ali
Government Advocate
A.S(MD)No.222 of 2021
1.Chellammal
2.Kanimozhi ... Appellants/Defendants
Vs.
Vivek ...Respondent/Plaintiff
PRAYER: This Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 & 2
of CPC, to set aside the judgment and decree passed in O.S.No.224 of 2017
dated 07.07.2021 on the file of the IV Additional District Court, Madurai by
allowing this appeal.
For Appellants : Mr.H.Arumugam
For Respondent : Mr.M.Vallinayagam
Senior Counsel
for Mr.PT.S.Narendravasan
COMMON JUDGMENT
These Appeal Suits are directed against the common judgment and
decree dated 07.07.2021 passed in O.S.Nos.12 of 2015 and 224 of 2017 on the
file of the IV Additional District Court, Madurai.
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A.S.(MD)Nos.221 and 222 of 2021
2. The appellants in both appeals are the plaintiffs in O.S.No.12 of 2015
and defendants in O.S.No.224 of 2017 on the file of the IV Additional District
Court, Madurai.
2.1 The respondents 1 to 3 in A.S.(MD)No.221 of 2021 are the
defendants 1 to 3 in O.S.No.12 of 2015 on the file of the IV Additional District
Court, Madurai.
2.2 The respondent in A.S.(MD)No.222 of 2021 is the plaintiff in
O.S.No.224 of 2017 on the file of the IV Additional District Court, Madurai.
3. The appellants as plaintiffs filed the suit in O.S.No.12 of 2015 on the
file of the IV Additional District Court, Madurai, seeking for the reliefs:
(i) to declare that the settlement deed dated 11.01.2010 under registered
Document No.89 of 2010 of the Sub-Registrar, Tallakulam, executed by the
1st plaintiff in favour of the 1st defendant is sham & nominal, null & void and
invalid under law; (ii) to declare that the deed of cancellation dated 13.12.2013
cancelling the registered gift deed under Document No.89/2010 dated
11.01.2010 and registered as Document No.4379 of 2013 of the Sub-Registrar,
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A.S.(MD)Nos.221 and 222 of 2021
Tallakulam, is valid under law; (iii) to declare the mortgage deed dated
12.05.2014 executed by the 1st defendant in favour of the 2nd defendant,
registered under Document No.1726 of 2014, is null and void and invalid
under law and for permanent injunction restraining the defendants from
interfering with the possession and enjoyment of the plaintiffs over the suit
property and from alienating the suit property.
3.1 The 1st respondent as plaintiff filed the suit in O.S.No.224 of 2017
on the file of the IV Additional District Court, Madurai, seeking for reliefs:
(i) to declare that the cancellation of the settlement deed executed by the
1st defendant dated 13.12.2013 registered as Document No.4379/2013 at the
office of the Tallakulam Sub Registrar Office is null and void; (ii) to declare
that the settlement deed dated 13.12.2013 executed by the 1st defendant in
favour of the 2nd defendant, registered as Document No.4381/2013 at the
office of the Tallakulam Sub-Registrar, is null and void and will not bind the
plaintiff and (iii) for permanent injunction restraining the defendants and their
men from alienating or encumbering the suit property.
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A.S.(MD)Nos.221 and 222 of 2021
4. For the sake of convenience, the parties are referred to as per their
rank in O.S.No.12 of 2015 before the trial Court.
5. The brief facts are as below:
(a) The case of the plaintiffs (appellants in A.S.(MD)Nos.221 & 222
of 2021 herein ) :-
The 1st plaintiff purchased the suit property through a registered sale
deed dated 16.10.1980 from Sri Karpaga Vinayagar Kovil Nagarathargal Trust,
through its trust secretaries, Ramanathan Chettiar and Annamalai Chettiar.
She has been in possession and enjoyment of the suit property from the date of
purchase. During the years 2008-2011, there was a misunderstanding between
st
the 1st plaintiff and her husband, Chinnasamy. So, the 1 plaintiff’s paternal
uncle’s son, one Jagadeesan, who was a powerful and well known person in
Madurai, was supporting the 1st plaintiff. Taking advantage of this, Jagadeesan
told the 1st plaintiff that her husband would grab the suit property from her by
threat, as the suit property is situated in the main city. By saying so, he wanted
the 1st plaintiff to execute a settlement deed in favour of his son, the 1st
defendant herein, and after the family problems were solved, the property
would be reconveyed to the 1st plaintiff by way of a revocation deed.
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A.S.(MD)Nos.221 and 222 of 2021
Believing the words of the said Jagadeesan, the 1st plaintiff executed a sham
and nominal settlement deed dated 11.01.2010 in favour of the 1st defendant
(son of Jagadeesan) and registered as Document No.89/2010. At the time of
execution of the settlement deed, the 1st defendant was a minor, and he was not
a blood relative of the 1st plaintiff. Moreover, the 1st plaintiff was not in
possession of sufficient means to register the settlement deed by spending
Rs.35,470/- towards registration charges. The said settlement deed was not
acted upon as it was sham and nominal. In the meanwhile, the said Jagadeesan
died six months after execution of the settlement deed. Hence, the 1st plaintiff
asked the 1st defendant to execute a deed of reconveyance or cancellation of
the settlement deed. But the 1st defendant has dragged it out for days. The 2nd
plaintiff is the daughter of the 1st plaintiff and she is living with her husband.
In order to make arrangements for her future life, the 1st plaintiff cancelled the
settlement deed dated 11.01.2010 by way of a cancellation deed dated
13.12.2013 and on the same day, the 1st plaintiff executed a settlement deed
dated 13.12.2013 in favour of the 2nd plaintiff. The 1st plaintiff handed over
possession of the suit property to the 2nd plaintiff. The 1st defendant was
aware of those documents and kept mum without any objection. In this
circumstance, the 1st defendant suddenly filed a suit in O.S.No.339 of 2014 on
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A.S.(MD)Nos.221 and 222 of 2021
the file of the Principal District Munsif Court, Madurai Town, against the
plaintiffs with false allegations. Moreover, prior to filing the suit, the
1st defendant has mortgaged the suit property to the 2nd defendant by way of a
registered mortgage deed dated 12.05.2014, which was admitted by the
3rd defendant. Hence, the plaintiffs have filed the suit in O.S.No.12 of 2015.
st st
(b) The case of the 1 defendant (1 respondent in A.S(MD)No.221 of
2021 and respondent in A.S(MD)No.222 of 2021.)
The plaintiffs have filed the suit only as an afterthought after filing of the
suit by this defendant in O.S.No.399 of 2014. The averments regarding the
misunderstanding between the 1st plaintiff and her husband, and taking
st
advantage of the same, this 1 defendant’s father, Jagadeesan, staged to get the
property by way of settlement deed and other averments are all denied as false.
In fact, the 1st plaintiff, voluntarily of her own wishes and out of love and
affection for this defendant and considering the family support extended by
this defendant’s father, executed the registered settlement deed dated
11.01.2010 in favour of this defendant. There is no condition attached to the
settlement and the settlement deed is unconditional. Similarly, the 1st plaintiff
has not reserved any right of cancellation in the contents of the settlement
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A.S.(MD)Nos.221 and 222 of 2021
deed. The 1st plaintiff handed over the original sale deed and possession of the
suit property to this defendant. This defendant has also accepted the same and
became the absolute owner. The settlement deed dated 11.01.2010 was acted
upon. Hence, the plaintiffs have no right or interest over the suit property after
execution of the registered settlement deed. The 2nd plaintiff is the daughter of
the 1st plaintiff. The 2nd plaintiff and her husband forced the 1st plaintiff to
execute the cancellation deed dated 13.12.2013 cancelling the settlement deed
dated 11.01.2010 and, in turn, executed the settlement deed dated 13.12.2013
in favour of the 2nd plaintiff. Since the 1st plaintiff has no title or interest over
the suit property after execution of the settlement deed, she could not execute
any further settlement deed in respect of the same in favour of anybody.
The recitals of the cancellation deed itself would show that the cancellation
deed is not valid. The 1st defendant, being the absolute owner, has mortgaged
the suit property to the 2nd defendant under a registered mortgage deed dated
12.05.2014. Hence, the 1st defendant has filed the suit in O.S.No.399 of 2014
to declare that the cancellation of the settlement deed executed by the
1st plaintiff dated 13.12.2013 under Document No.4379/2013 and the
subsequent settlement deed under Document No.4381/2013 are null and void.
Hence, the suit is liable to be dismissed.
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A.S.(MD)Nos.221 and 222 of 2021
st
6. The suit in O.S.No.399 of 2014 filed by the 1 defendant has been
transferred to the IV Additional District Court, Madurai as per order dated
10.11.2016 passed in Tr.O.P.No.22 of 2016 on the file of the Principal District
Court, Madurai and renumbered as O.S.No.224 of 2017. The pleadings of the
plaint and written statement in O.S.No.224 of 2017 are one and the same as
stated in the suit O.S.No.12 of 2015.
7. The trial Court framed the following issues upon the pleadings of both
parties.
In O.S.No.12 of 2015
1) Whether the plaintiff No.1 has executed
the settlement deed dated 11.01.2010 in favour of
the 1st defendant due to the undue influence of the
1st defendant’s father over the 1st plaintiff?
2) Whether the settlement deed dated
11.01.2010 in favour of the 1st defendant is sham
and nominal, null and void?
3) Whether the cancellation of the settlement
deed dated 11.01.2010 by deed dated 13.12.2013
and execution of settlement deed dated 13.12.2013
by the 1st plaintiff in favour of the 2nd plaintiff are
valid?
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A.S.(MD)Nos.221 and 222 of 2021
4) Who is in actual possession of the suit
schedule property?
5) Whether the mortgage deed dated
12.05.2014 executed by the 1st defendant in favour
of the 2nd defendant is valid?
6) What other reliefs are the plaintiffs
entitled to?
In O.S.No.224 of 2017
1) Whether the plaintiff is entitled to get the
relief of declaration as prayed for?
2) Whether the plaintiff is entitled for the
relief of permanent injunction as prayed for?
3) To what other relief the parties are
entitled to?
8. Since the issues to be decided in both suits are one and the same, the
trial Court has conducted a joint trial. The evidences were taken in O.S.No.12
of 2015 as per its parties rank, which is deemed to be taken in O.S.No.224 of
2017.
9. During trial, on the plaintiffs' side, P.W.1 to P.W.3 were examined and
Ex.A.1 to Ex.A.15 were marked. On the defendants' side, the 1st defendant
was examined as D.W.1 and Ex.B.1 to Ex.B.7 were marked.
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A.S.(MD)Nos.221 and 222 of 2021
10. After hearing both sides, on appreciation of evidences and
considering the submissions made on behalf of the parties, the trial Court has
st
held that the settlement deed dated 11.01.2010 executed by the 1 plaintiff in
st st
favour of the 1 defendant is not under undue influence of 1 defendant’s father
and it is proved and acted upon, thereby dismissed the suit in O.S.No.12 of
2015 and decreed the suit in O.S.No.224 of 2017 by its common judgment and
decree dated 07.07.2021.
11. Aggrieved by the common judgment and decree of the trial Court
dated 07.07.2021, the plaintiffs in O.S.No.12 of 2015 have preferred these
appeals.
12. Both parties have made lengthy arguments in respect of their
respective cases along with catena of citations.
13. The learned counsel for the appellants/plaintiffs has submitted that
the 1st plaintiff is the owner of the suit property measuring 27 cents situated in
main city as per Ex.A.1 sale deed. As there was domestic dispute between the
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A.S.(MD)Nos.221 and 222 of 2021
1st plaintiff and her husband regarding property, the 1st plaintiff’s cousin
brother (paternal uncle’s son) Jagadeesan, being influenced man, used to pacify
them and advised her to execute a document to his son Vivek, the 1st defendant
herein and it would be revoked after family problems solved. Hence, the
1st plaintiff executed a sham and nominal settlement deed dated 11.01.2010 in
favour of the 1st defendant. The said settlement deed has not come to effect
and possession of the suit property was not handed over to the 1st defendant.
Mutation in revenue records was also not effected. After that, the said
Jagadeesan died on 20.12.2012. Upon request, the 1st defendant did not come
forward to revoke the deed, so the 1st plaintiff cancelled the settlement deed
dated 11.01.2010 by way of cancellation deed dated 13.12.2013 and on the
same day executed a settlement deed in favour of her daughter.
The 1st defendant has stated in his written statement only an evasive denial.
He purposely created a mortgage deed in favour of the 2nd defendant, who is
none other than his sister’s husband. The 1st defendant stated in his written
statement that there is no condition for revocation mentioned in the settlement
deed, so the settlement deed cannot be revoked, and also there is no valid
reason for cancellation of the same. The trial Court held that both parties’
families are of seminal financial standing and social status and the settlement
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A.S.(MD)Nos.221 and 222 of 2021
deed dated 11.01.2010 is an absolute and unconditional one, so subsequent
cancellation is unilateral one, decided the case against the plaintiffs.
13.1 The learned counsel for the appellants/plaintiffs further argued that
the trial Court has shifted the burden of proof upon the plaintiffs by framing an
issue as to whether the plaintiffs proved the settlement deed to be
sham/nominal. The issue itself is wrong without considering the pleadings of
the plaintiffs. The plaintiffs and the 1st defendant’s father are close relatives,
so believing the words of Jagadeesan, the 1st plaintiff has not read the
document on faith. She also gave the same in her evidence. It is admitted by
the 1st defendant that his father has done much help to the 1st plaintiff in
family dispute matters. There is undue influence. So, the 1st defendant has to
prove the absence of undue influence as per Section 16 of the Contract Act
read with Section 111 of the Indian Evidence Act. But he has not established
the same. Hence, the burden is on the 1st defendant, who is the beneficiary, to
prove the absence of undue influence, and the counsel relied on the ruling of
the Hon’ble Supreme Court reported in 2001 (2) SCC 652 in the case of
Makhan Lal Bangal /v/ Manas Bhunia & Ors.
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A.S.(MD)Nos.221 and 222 of 2021
13.2 The learned counsel for the appellants/plaintiffs further submitted
that the trial Court has failed to consider the presumption of the natural course
of events and human conduct. The 1st plaintiff has a son and two daughters,
she had a dispute with her husband only, so she had no thought of settling the
suit property to the 1st defendant, who is the son of her cousin brother.
The 1st defendant has also admitted that he had no knowledge of the execution
and payment of the amount towards execution of the document, and there was
no mutation, which confirms the suspicion regarding his evidence.
The contents mentioned in the settlement deed state that the 1st defendant’s
father has monetarily assisted the 1st plaintiff, which is not correct one.
Both families are financially well off families and it was observed by the trial
Court also. The 1st defendant has not stated any special reason for the
execution of the settlement deed in his favour by the 1st plaintiff, ignoring her
own children. The 1st defendant has not examined any third party witness to
prove his case, and the witnesses to the settlement deed have also died.
The 1st plaintiff only knows about the settlement deed. So, her evidence is
admissible. The trial Court ought to presume that an ordinary and natural
course of conduct of a human being is that a mother would not settle valuable
property on a remote cousin’s son by leaving her own living children.
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A.S.(MD)Nos.221 and 222 of 2021
Hence, the trial Court ought to presume that the settlement deed is involuntary
and sham in character as per Section 114 of the Indian Evidence Act. The trial
Court relied on the bare fact that the 1st plaintiff signed in English, so she is a
literate person and she knew about the settlement deed, which is incorrect.
The 1st plaintiff pleaded compulsion and explained the secrecy as to why she
signed, and the same does not reflect her true intention at that time. There was
a family dispute between the 1st plaintiff and her husband, which was utilized
by the 1st defendant’s father to play undue influence for getting the property.
The 1st defendant has to prove the document is bona fide , and the burden lies
on him only as he first asserts a fact and relies on a transaction, so he has to
establish the genuineness of the document. The learned counsel has relied on
the rulings reported in (2011) 12 SCC 220 in the case of Rangammal /v/
Kuppuswami and Anr. and 2000 (3) SCC 312 in the case of Subhra
Mukherjee and Anr. /v/ Bharat Coking Coal Ltd. And Ors.
13.3 The learned counsel for the appellants/plaintiffs further submitted
that the 1st defendant claims title over the suit property only upon a settlement
deed. The 1st defendant admits that the 1st plaintiff has children and that he is
the son of her cousin brother. So, it is an established fiduciary relationship
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A.S.(MD)Nos.221 and 222 of 2021
between the parties. Moreover, this fact is strengthened by P.W.1 and D.W.1 in
their evidence. P.W.1 has stated in her proof affidavit in paragraph No.19, as
her evidence as follows:
“
th.rh.M..3 Mtzk; 1k; gpujpthjpf;F
KGikahd chpik bfhLf;f ntz;Lbkd;w
vz;zj;jpy; ehd; vGjp itf;ftpy;iy.
th.rh.M.3 fhyj;jpy; ehd; 1k; gpujpthjpapd;
tPl;oy; mtUila jfg;gdhhpd; ghJfhg;gpYk;
Mjpf;fj;jpYk; ,Ue;jjhy; mtUila
Mnyhrhidapd; nghpy; vd; fztUila
mr;RWj;jy;fspypUe;J tpLgLtjw;fhf
ek;gpf;ifapd; nghpy; vGjp itf;fg;gl;l
MtzkhFk;. nkw;go Mtzk; b$fjPrd;
mth;fshy; KGf;f KGf;f
jahhpf;fg;gl;ljhFk;...... ”
st
The 1 defendant as D.W.1, has stated his chief in paragraph Nos.5 and
10 as follows:
“ 5. 1k; thjpahfpa vd;Dila mj;ij
tHf;fpilr; brhj;ij vd; kPJ bfhz;l
md;gpdhYk; mgpkhdj;jhYk; vd;Dila
jfg;gdhh; vd; mj;ijf;Fk; mth;
FLk;gj;jpw;Fk; bra;j cjtp xj;jhirapdhYk;
vdf;F 1k; thjpna jhkhfnt Kd; te;J 11.01.2010k;
njjpa gjpt[ jhdbrl;oy;bkd;l; rhrdg; gpufhuk;
ghj;jpag;gLj;jp cs;shh;.....
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A.S.(MD)Nos.221 and 222 of 2021
10. .....vdf;F tHf;Fr; brhj;ij
chpikg;gLj;j ntz;Lbkd;w nehf;fj;jpy;
mtuhfnt tpUg;gg;gl;L mjw;F cz;lhd
gjpt[bryit bra;J vd;Dila bgahpy; vGjp
itj;jhh;.... ”
As the 1st defendant’s father reposed trust on her during marital disputes
between her and her husband, the 1st defendant’s father drafted the deed, and
upon belief, she signed. Though it is stated that only on the love and affection
of the 1st defendant shown to the 1st plaintiff she executed the settlement deed,
the 1st defendant has not proved such love and affection, he has not proved the
necessity to execute the deed in his favour and also has not paid any
consideration to her. He also admitted in his evidence that he had no
knowledge about the settlement transaction. Moreover, the 1st defendant’s
father kept the registered document secret, which is admitted by D.W.1 in his
evidence. So, the trial Court has not considered the fiduciary relationship, but
wrongly laid a heavy burden on the 1st plaintiff to prove the deed as a sham.
If the trial Court had considered the facts in the light of the provisions of
Section 16 of the Contract Act read with Section 111 of the Indian Evidence
Act, the burden would be different. According to Section 16(2) & (3) of the
Contract Act, where a person in a fiduciary relationship or in a position to
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A.S.(MD)Nos.221 and 222 of 2021
dominate the will of another enters into a transaction that appears
unconscionable, the burden of proving that the transaction was not induced by
undue influence lies on the beneficiary, i.e., the 1st defendant herein.
The 1st defendant failed to discharge his burden. The trial Court’s approach of
st
casting the burden on the 1 plaintiff is contrary to the settled law. For this
argument, the learned counsel has relied on the following rulings.
(i) 1982 (1) SCC 4 Hon’ble Apex Court
rendered in Gangabai /v/ Chhabubai case.
(ii) AIR 1967 SC 878 in the case of Subhas
Chandra Das Mushib /v/ Ganga Prasad Das
Mushib.
(iii) 1970 (3) SCC 159 in the case of
Lakshmiamma and Anr. /v/ Talengala Narayana
Bhatta and Anr.
(iv) 2004 (9) SCC 468 = AIR 2003 SC 4351 in
the case of Krishna Mohan Kul Alias Nani Charan
Kul and Anr. /v/ Pratima Maity and Ors.
(v) 2008 (2) CTC 433 in the case of Suguna
and Anr. /v/ Vinodh G.Nehemiah and Ors.
13.4 The learned counsel for the appellants/plaintiffs has further put
forth the argument that there was no mutation of revenue records in the name
of the 1st defendant after execution of Ex.A.4 settlement deed. The 1st plaintiff
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A.S.(MD)Nos.221 and 222 of 2021
is in continuous possession of the suit property and produced kist receipts to
show the same. The 1st defendant as D.W.1 has also admitted this fact in his
evidence. So, the plaintiff has established that the Ex.A.4 settlement deed did
not come into effect and was created only as a sham and nominal. For this
argument, the learned counsel relied on the ruling reported in (1953) 2 SCC 21
in the case of Yerraguntala Ramireddi vs. Ratchepalli Atchamma and Anr.
13.5 The learned counsel further contended that there are no family
members of the 1st plaintiff who signed the Ex.A.4 = Ex.B.2 settlement deed.
It is the specific case of the 1st plaintiff that she executed the settlement under
compulsion and without knowledge of her children and other family members,
and also no one from her family accompanied her for execution of the said
deed. This fact was also categorically admitted by D.W.1 in his evidence as
“ nkw;go gp.th.rh.2 Md Mtzj;jpy; bry;yk;khspd; FLk;gj;jhh; ahUk;
This factum was not even questioned in
rhl;rp ifbahg;gk; bra;atpy;iy.... . ”
the cross examination of the plaintiffs. P.W.1 and P.W.2 deposed about the
dispute between the 1st plaintiff and her husband. So, failure to cross examine
on a specific part of the chief examination means that part of the evidence
remains unchallenged and so the same ought to have been accepted, as per the
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A.S.(MD)Nos.221 and 222 of 2021
provisions of Section 138 of the Indian Evidence Act. The learned counsel has
relied on the following rulings for this argument.
(i) (2013) 4 SCC 97 = AIR 2013 SC 1204
in the case of Laxmibai (dead) through LRs.
and Anr. /v/ Bhagwantbuva (dead) through LRs.
and Anr.
(ii) 1998 (3) SCC 561 in the case of State of
U.P /v/ Nahar Singh (Dead) and Others.
(iii) (2001) 7 SCC 69 in the case of
Rajinder Pershad (Dead) by LRs. /v/ Darshana
Devi .
13.6 The learned counsel has further submitted that the defendants' side
has raised the point of limitation in this case. This point is raised in this appeal
only. There is no such allegation in the written statement or evidence. As per
the article, the 1st plaintiff has cancelled the settlement deed within three years
from her knowledge that after the death of Jagadeesan on 20.12.2012, the
1st defendant intended to grab the property and refused to cancel it as already
agreed. So, there is no question of limitation in this case. Moreover, without
pleadings, the question of limitation cannot be entertained as it is a mixed
question of law and fact. The learned counsel relied on the following rulings:
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A.S.(MD)Nos.221 and 222 of 2021
(i) 2026 (2) MWN (Civil) 257 in the case of
Adhi Narayanan (Deceased) & Ors /v/ T.Duraisamy
(Died) and Ors.
(ii) 2001 (7) SCC 549 in the case of Pallav
Sheth /v/ Custodian and Ors.
(iii) 1996 (7) SCC 767 in the case of
MD.Noorul Hoda /v/ Bibi Raifunnisa and Ors.
(iv) 2006 (5) SCC 353 in the case of Prem
Singh and Ors. /v/ Birbal and Ors.
13.7 The learned counsel has further submitted that the 1st plaintiff has
not given her property as gift, she has executed a settlement deed. The gift has
no consideration, but for settlement, there should be consideration.
The 1st defendant, as D.W.1, has admitted that the 1st plaintiff executed the
settlement deed as his father helped her in many ways. So, consideration was
there. Hence, unless the 1st defendant establishes the fact of love and affection,
the settlement deed would be invalid. The recitals in the cancellation deed
cannot be taken into consideration as a determining factor. The 1st defendant
has also contended in his written statement only by way of an evasive reply,
and he has not specifically denied the pleadings of the plaint as required under
Order VIII Rule 3, 4 and 5 of CPC. The trial Court has not considered all these
aspects. Hence, the finding of the trial Court is not sustainable in law and it is
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A.S.(MD)Nos.221 and 222 of 2021
prayed for allowing the appeal. In support of these arguments, the learned
counsel relied on the following rulings:
(i) (2025) 7 SCC 502 in the case of
N.P.Saseendran /v/ N.P.Ponnamma & Ors.
(ii) AIR 1964 SC 538 in the case of Badat and
Co., /v/ East India Trading Co.
(iii) (2016) 12 SCC 288 in the case of
Muddasani Venkata Narsaiah (Dead) Through LRs.
/v/ Muddasani Sarojana
(iv) 2024 (4) SCC 247 in the case of Thangam
and Anr. /v/ Navamani Ammal.
st st
14. The learned counsel for the 1 respondent/1 defendant submitted
that the 1st plaintiff is the executant of the settlement deed dated 11.01.2010,
so she is a party to the document and had full knowledge of the document.
She herself presented the document for registration and she signed the
document with knowledge. She admitted that no one prevented her from
reading the document during registration. Hence, the limitation starts from
11.01.2010. Though there is no specific pleading regarding limitation, the same
can be raised in this appeal as it is a pure question of law, as the limitation is
covered under Article 59 of the Limitation Act. The suit filed by the plaintiffs
is for declaring the settlement as null and void. The 1st plaintiff has to seek
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A.S.(MD)Nos.221 and 222 of 2021
cancellation of the document as per the provisions of Article 59 of the
Limitation Act. But the plaintiffs sought a declaration that the settlement is null
and void, hence, Article 58 of the Limitation Act is applicable. Hence, the suit
has to be filed within three years from 11.01.2010. But the plaintiffs pleaded
that they came to know of it upon obtaining an encumbrance certificate, which
is imaginary and unbelievable, because the 1st plaintiff herself handed over the
settlement deed on 11.01.2010 before the Sub Registrar for registration and
she, being the executant party, had full knowledge of the deed. The plaintiffs in
para 8 of the plaint specifically pleaded that “ 1k; thjp cld;gl;L
xg;g[f;bfhz;lhh; … ” Admittedly, the father of this defendant, namely
Jagadeesan, died in 2012. The 1st plaintiff has full knowledge of the settlement
deed. If she really executed the deed as per her stand, she had to take steps
immediately on the death of Jagadeesan, but the 1st plaintiff failed to do so.
The suit was filed on 12.12.2014 after a lapse of 4 years, 11 months and one
day. Therefore, the 1st plaintiff has not filed the suit within three years, and
hence the suit is obviously barred by limitation. Even, the cancellation deed
was executed on 13.12.2013 after the lapse of 3 years 11 months and 2 days.
So, the suit filed by the plaintiffs is clearly time barred. For invoking Section
3 of the Limitation Act, no pleading or evidence is necessary. The learned
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counsel relied on the following rulings:
(i) 2026 (2) MWN (Civil) 257 in the
case of Adhi Narayanan (Deceased) and Ors.
/v/ T.Duraisamy (Died).
(ii) (2000) 7 Supreme Court Cases 702
in the case of Dilboo (Dead) by LRs. and
Ors. /v/ Dhanraji (Dead) and Ors.
(iii) 2025 SAR Online (SC) 406 in the
case of R.Nagaraj (Dead) Through LRs and
Anr. /v/ Rajmani and Ors.
14.1 The learned counsel for the 1st respondent/1st defendant further
submitted that the plaintiffs argued that the trial court shifted the burden of
proof on the plaintiffs instead of on the defendant. If the plaintiffs feel that the
issues were wrongly framed, they can very well file an application to recast the
issues. Law regarding framing of issues cannot be disputed. As per Order 14
Rule 5 of the CPC, the Court is empowered to amend or strike out the issues.
Hence, the plaintiffs cannot put up an argument regarding the shift of the
burden of proof on wrong issues framed by the trial Court.
14.2 The learned counsel for the 1st respondent/1st defendant further
argued that the plaintiffs put forth argument that the 1st plaintiff has three
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children and it is to be presumed that she would not think of settling her
property in favour of her cousin brother’s son and the 1st respondent has not
stated any special reason for execution of settlement deed in his favour.
The provisions of the Transfer of Property Act deal with transfer of property in
favour of third parties. Sections 122 and 123 of the Transfer of Property Act
deal with the gift and the effect of a gift. The gift deed must be registered and
attested by two witnesses. Therefore, the donee has no role in execution of a
gift deed by the donor. Hence, the argument of the plaintiffs that the
1st respondent’s pleading of ‘no knowledge or special reason for execution of
settlement deed’ is unsustainable in law and hence, the rulings reported in
2011 (12) 220 and 2000 (3) SCC 312 relied on by the plaintiffs are not
relevant to the facts of this case.
14.3 The learned counsel for the 1st respondent/1st defendant further
submitted that the plaintiffs raised the issue of undue influence/fiduciary
relationship and the burden of proof when the undue influence/fiduciary
relationship is pleaded. Mere influence is quite natural between two persons
for so many reasons. But, the plaintiffs have to prove the ingredients: (a) one
person must be in a position to dominate the will of the other; (b) the other
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party must be in a weaker position making it possible to be unduly influenced
by the dominating person; (c) the person in dominating position shall misuse
his position; and (d) the dominating person must obtain an unfair advantage.
The mere existence of a relationship and mere advice is not enough to
substantiate undue influence. The 1st plaintiff is not in a weaker position either
financially and status wise as per their case and evidence. She is a rich lady and
well educated. So she cannot plead that her cousin brother Jagadeesan has
unduly influenced her to execute the settlement deed in favour of the
1st defendant. The plaintiffs stated in their plaint that the 1st defendant is a
minor, which is not correct. According to evidence of P.W.1, the 1st defendant
was a major at the time of execution of the settlement deed. As per document,
the plaintiffs gave different reasons. In Ex.A.4/Ex.B.2, the settlement deed
dated 11.01.2010 the recitals is that the settlement deed is executed out of her
own will and volition and in consideration of help and support made in her
favour by Jagadeesan. But in the cancellation deed dated 13.12.2013 under
Ex.A.3/Ex.B.3 the 1st plaintiff stated that only because of a condition
stipulated in settlement deed that the 1st defendant has to take care of her and
maintain her, since the 1st defendant failed to maintain her she executed the
cancellation of settlement deed. In fact, no such condition is mentioned in
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Ex.A.4 settlement deed. At one place, the 1st plaintiff stated in her evidence
that since the mother of the 1st defendant did not give respect to her, she
cancelled the settlement deed, at another place that the 1st defendant’s mother
asked her to cancel the deed, and in another place, as she needs funds or
necessity, she cancelled the settlement deed. So the 1st plaintiff took
inconsistent pleas at various places. Hence, the plaintiffs failed to substantiate
the plea of undue influence for execution of the settlement deed.
14.4 The learned counsel for the 1st respondent/1st defendant further
submitted that the plaintiffs argued that there is no mutation or transfer of tax
assessment and hence, the settlement deed did not come into effect. As per
Section 122 of the Transfer of Property Act, the handing over of the original
settlement deed is enough for acceptance of the same and for it to be acted
upon. Handing over of possession is not a sine qua non and non-mutation of
revenue records and payment of tax are not essential for a valid gift.
The production of the original settlement deed amounts to showing that the
settlement deed is acted upon. In this case, the 1st defendant produced the
original settlement deed on his side, and the deed is acted upon. The learned
counsel has relied on the decision of this Court reported in 2021 (5) Law
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Weekly 452 in the case of Vasanthiri & Ors. /v/ Govindan & Ors.
14.5 The learned counsel for the 1st respondent submitted that the
plaintiff took another stand that she executed the settlement under compulsion,
that too without the knowledge of her children and family members and that no
one accompanied her for execution and registration, for these aspects, she was
not cross examined. The said assertions are not pleaded in the plaint, and
therefore she cannot canvass for cross examination on those aspects. This kind
of submission amounts to misreading and misleading regarding their own
deposition to sustain unsustainable submissions. The learned counsel for the
st
1 respondent relied on Section 138 of the Evidence Act, and hence the
citations of the appellants/plaintiffs reported in AIR 2013 SC 1204 and 1998
(3) SCC 561 and 2001(7) SCC 69 do not apply to the facts of this case.
14.6 The learned counsel for the 1st respondent/1st defendant has
submitted that the appellants/plaintiffs repeatedly spoke about fiduciary
relationship and also the difference between a settlement deed and a gift by
relying on citation 2025 (7) SCC 502 . But, as per the provisions of the
Transfer of Property Act, it does not deal with transfer of property by
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settlement deed, which is defined in the Stamp Act in Section 2 (24) for the
purpose of distributing property among the settlors or those for whom it is
intended to be provided. So, a transaction made voluntarily without
consideration, titled as a settlement deed, and the Stamp Act provides a
concession in the payment of stamp duty. There is no separate application of
law to decide the validity of a settlement deed other than the gift deed.
The provisions of Chapter VII of the Transfer of Property Act are squarely
applicable to the settlement deed also.
14.7 The learned counsel for the 1st respondent/1st defendant further
contends that the evidence of D.W.1 is natural and reliable. When the
execution of the Ex.A.4/Ex.B.2 settlement is admitted by the 1st plaintiff, the
contentions and evidence of D.W.1 stating no knowledge, etc., cannot be taken
as an evasive reply. Hence, the arguments in this aspect put forth by the
appellants are untenable and unsustainable. The appellants' side relied on as
many as totally 21 judgments, which do not apply to the facts and
circumstances of this case. But, the judgments relied on by the
1st respondent/1st defendant in respect of the limitation point, establishment of
undue influence, acted upon of settlement deed, and testimony of evidence of
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D.W.1 are all applicable to the facts of this case. The trial Court has elaborately
discussed all these points and rightly decided the suits. Therefore, there is no
necessity arisen to set aside the findings of the trial Court, and so, the appeals
may be dismissed.
15. The points for consideration in this appeal are:
1.Whether the Ex.A.4/Ex.B.2 registered
settlement deed dated 11.01.2010 was executed by
the 1st plaintiff in favour of the 1st defendant under
undue influence and whether it is a sham and
nominal one, which was not acted upon?
2. Whether the Ex.A.3/Ex.B.3 cancellation of
the settlement deed dated 13.12.2013 executed by
the 1st plaintiff is unilateral one and valid in law?
and based on that, whether the Ex.A.2/Ex.B.4
settlement deed executed by the 1st plaintiff in
favour of the 2nd plaintiff is valid in law?
3. Whether the reliefs sought by the plaintiffs
are barred by limitation?
4. Whether the common judgment and decree
of the trial court are not sustainable in law?
5.Whether the appeals are to be allowed?
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16. Point Nos.1 to 5:
The counsel for both sides have elaborately argued at length in respect
of their respective cases, along with a catena of rulings of this Court, other
High Courts and of the Hon’ble Supreme Court, mainly upon fiduciary
relationship and touching upon the registered Ex.A.4/Ex.B.2 settlement deed.
The learned counsel for the 1st respondent has filed a memo of proposed points
for determination in this appeal and submitted that the point No.4 is to be
mainly decided. The point No.4 is “When the 1st plaintiff is the executant of
the settlement deed dated 11.01.2010, whether the suit to declare the said
settlement deed executed by her is sham and nominal, null and void and invalid
is barred by time?” If this point is decided, all other issues will stand answered
and there is no dispute in it.
17. On careful consideration of the arguments of both side and both side
evidence, along with material records, it is clear that the 1st plaintiff is the
absolute and exclusive owner of the suit property by virtue of Ex.A.1 = Ex.B.1
sale deed dated 16.10.1980 and that she has executed a registered settlement
deed under Ex.A.4 = Ex.B.2 settlement deed in favour of the 1st defendant.
The plaintiffs’ case is that when there was a family dispute and
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A.S.(MD)Nos.221 and 222 of 2021
misunderstanding between the 1st plaintiff and her husband, the
1st defendant’s father, Jagadeesan, being the cousin brother of the 1st plaintiff,
assisted her, and she executed the settlement deed as per the advice of
Jagadeesan in order to save the property from being grabbed by her husband
and that after the family problems were solved, the settlement deed was to be
revoked. It is the specific case of the 1st defendant that the 1st plaintiff, being
the exclusive owner of the suit property, has executed the settlement deed
dated 11.01.2010 in his favour voluntarily and on her own volition and the
settlement is unconditional, and so, it cannot be revoked or cancelled.
The plaintiffs pleaded that the settlement deed dated 11.01.2010 was executed
under undue influence and is therefore sham and nominal, and that the
st
1st plaintiff by settling it on the 1 defendant, her cousin brother’s son, ignored
her biological children. So, the plaintiffs submit that the 1st defendant must
prove the absence of undue influence. It is not correct one. Because it is a
settled principle that the beneficiary of a registered settlement deed need not
automatically prove the absence of undue influence, but the initial burden rests
on the person alleging undue influence. The burden of proof shifts to the 1st
defendant, who is the beneficiary under the settlement deed, if a fiduciary
relationship, domination of Will, or undue influence is established, as rightly
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argued by the learned counsel for the 1st respondent/1st defendant. However,
there is no dispute regarding the relationship between the parties, and the fact
remains that Ex.A.4/Ex.B.2 settlement deed is a registered one. There is a rival
dispute only regarding the settlement deed. It was not disputed.
18. At this juncture, the case of the 1st respondent/1st defendant is that
the execution of settlement deed is admitted by the 1st plaintiff, if it is so, the
settlement deed being a registered one is proved under proviso of Section 68 of
the Indian Evidence Act. The material records of this case reveal that the
disputed document is a registered one and therefore, as guided by the settled
legal principle, that a document is presumed to be genuine if the same is
registered, as held by the Hon’ble Supreme Court in Prem Singh and Ors. v.
Birbal and Ors. The relevant portion of the said decision reads as below:
“27.There is a presumption that a
registered document is validly executed.
A registered document, therefore, prima facie
would be valid in law. The onus of proof, thus,
would be on a person who leads evidence to
rebut the presumption. In the instant case,
Respondent No.1 has not been able to rebut the
said presumption. ”
(emphasis supplied)
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In view thereof, in the present case, the initial onus was on the plaintiffs,
who challenged the registered document on the ground that it was executed
under undue influence. The plaintiffs have to prove the undue influence after
making specific pleadings under Order VI Rule 4 of CPC. As rightly argued by
the learned counsel for the 1st respondent/1st defendant, the plaintiffs have to
prove the following ingredients to establish undue influence.
“(a) one person must be in a position to
dominate the will of the other; (b) the other party
must be in a weaker position to be unduly
influenced by the dominating person; (c) the
person in the dominating position shall misuse his
position and (d) the dominating person must
obtain an unfair advantage.”
19. From perusal of the material records and evidence shows that both
families are financially sound and have a number of properties.
The 1st plaintiff admitted that her cousin brother, Jagadeesan and his family
members assisted her while she was facing family disputes with her husband.
The plaintiffs have not pleaded that her cousin brother, namely the
1st defendant’s father, Jagadeesan, dominated her at the time of the dispute and
attempted to grab her property, because her cousin brother is not financially
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A.S.(MD)Nos.221 and 222 of 2021
weak, and the 1st plaintiff is also not weak in her family status. P.W.1 in her
evidence admitted that “ b$fjPrd; ve;j mst[f;F trjpahdtnuh
mjw;F ,izahd trjp vdf;Fk; vd; jfg;gdhh; FLk;gj;jpw;Fk; vd;
fzth; FLk;gj;jpw;Fk; cz;L vd;why; rhpjhd;.........vdf;Fk; vd;
fztUf;Fk; ,ilapy; ,Ue;j gpur;ridia b$fjPrd; jPh;j;J itg;ghh;.....
ehd; vd; mz;zd; b$fjPrd; bgahpy;jhd; gj;jpuj;ij gjpt[ bra;J
bfhLf;f tpUk;gpndd;..........b$fjPrd; jhd; brl;oy;bkd;l; gj;juj;ij
nkhroahf mth; kfd; bgahpy; gjpe;J bfhz;lhh; vd;W fhty;
” So, it is clear that she
epiyaj;jpy; g[fhh; vJt[k; ehd; bfhLf;ftpy;iy....... .
has not stated that her cousin brother Jagadeesan caused the execution of the
settlement deed using his influence, whereas it is clear that the 1st plaintiff has
the intention to execute the deed in favour of Jagadeesan.
20. The Hon’ble Supreme Court has distinguished between undue
influence and influence in Subhas Chandra Das Mushib case reported in
AIR 1967 SUPREME COURT 878 which extracted as follows:
''It must also be noted that merely because
the parties were nearly related to each other no
presumption of undue influene can arise. As was
pointed out by the Judicial Committee of the
Privy Council in Poosathurai v. Kappanna
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Cheittiar and others(2):-
It is a mistake (of which there are a good
many traces in these proceedings) to treat undue
influence as having been established by a proof
of the relations of the parties having been such
that the one naturally relied upon the other for
advice, and the other was in a position to
dominate the will of the first in giving it. Up to
that point "influence" alone has been made out.
Such influence may be used wisely, judiciously
and helpfully. But whether by the law of India or
the law of England, more than mere influence
must be proved so as to render influence, in the
language of the law, "undue". ''
21. It was further observed that there was no presumption of imposition
merely because a donor was old and weak. Mere close relation was also
insufficient to presume undue influence, observing as follows:
“Before, however, a court is called upon
to examine whether undue influence was
exercised or not, it must scrutinise the pleadings
to find out that such a case has been made out
and that full particulars of undue influence have
been given as in the case of fraud. See Order 6,
Rule 4 of the Code of Civil Procedure .
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This aspect of the pleading was also given great
stress in the case of Ladli Prasad Jaiswal(1)
above referred to. In that case it was observed
(at p. 295):
"A vague or general plea can never serve
this purpose; the party pleading must therefore
be required to plead the precise nature of the
influence exercised, the manner of use of the
influence, and the unfair advantage obtained by
the other."
22. In this case, a careful perusal of the plaint shows that the plaintiffs
have not specifically pleaded about the undue influence made by the said
Jagadeesan. The plaintiffs must specifically plead with full particulars, the
undue influence of Jagadeesan. A mere or vague plea will not be sufficient to
prove the undue influence. A perusal of the settlement under Ex.A.4 = Ex.B.2
clearly mentions as
“ ,e;epiyapy; cd; nky; vdf;F ,Uf;fpw
md;gpdhYk; ghrj;jpdhYk; cd; vjph;fhy eyd;
bghUl;L cdf;F xU ey;ytpj Vw;ghL bra;a
ntz;Lbkdf; fUjp vdf;F rh;tRje;jpu
ghj;jpag;gl;l moapy; fhZk; brhj;J
KGtija[k; ,jd;:Kyk; cdf;F ehd; jhd
brl;oy;bkd;l;lhf bfhLj;J ,e;j jhd
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A.S.(MD)Nos.221 and 222 of 2021
brl;oy;bkd;l; gj;jpuk; vGjpf;
bfhLj;jpUf;fpnwd;. ,e;j jhd brl;oy;bkd;l;
gj;jpuj;jij ,dpnky; ehd; uj;J bra;anth
ntWtpjkha khw;wp vGjp itf;fnth vdf;F
vt;tpj mjpfhuk; fpilahbjd;Wk; mt;thW uj;J
bra;jhnyh> khw;wp mikj;jhnyh mJ rl;lg;go
bry;yj;jf;fjy;y vd;Wk; cWjp Twfpnwd;... . ”
From the above recital, the settlement deed is an unconditional one and
there is no undue influence mentioned therein. From the evidence of P.W.1, it
is also clear that the 1st plaintiff has not stated any kind of undue influence
made by the said Jagadeesan. So, the plaintiffs have not established the undue
influence as pleaded by them, as rightly held by the trial Court.
st
23. The next point is whether the 1 plaintiff has the right to cancel the
settlement deed unilaterally. The learned Senior Judge of the Principal Seat of
this Court observed and held regarding cancellation of settlement deed in the
judgment delivered in S.A.No.1072 of 2006 on 03.03.2015 and the same is
extracted hereunder.
9. Assailing the cancellation deed marked as
Exhibit B3, the counsel for the plaintiffs has relied
upon the following judgments:
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(i) In the judgment reported in 2004 (3) CTC 9
(Govindaraju Vs. Rathinammal), the Division Bench of
this court has held as follows:
"25. Applying the abovesaid principles of law
dealt with in the decisions cited above, the averment in
the plaint cannot be taken as denial of execution of the
document or attestation therein. Only two facts have
been set out in the written statement, namely,
(1) the said document is involuntary document which
was extracted from Murugesh by the 2nd defendant;
(2) the said document was executed in result of threat,
intimidation, coercion and undue influence. Similar
defence had been construed in the abovesaid decisions
and found that the similar averment taken cannot be
construed as "specific denial" so as to prevent the 2nd
defendant to rely on Ex.B1 on the ground that she did
not examine any one of the attestors. As stated already
and also as found by the learned Judge, the execution
of Ex.B1 by the 2nd defendants's father was proved
otherwise as the executor had admitted the execution
of Ex.B1 under Ex.A2, the cancellation deed. The 2nd
defendant had proved the execution of Ex.B1 through
other evidence, though not examined any one of the
attestors. The learned Judge also found that the
execution of Ex.B1 has been proved and has been
acted upon. So the submission of the learned counsel
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for the appellants that the 2nd defendant cannot rely
on Ex.B1 claiming right in the suit property and to
resist the plaintiff's claim for specific performance
cannot be countenanced. Since the suit property has
been settled in favour of the 2nd defendant, the vendor
has no right to cancel the same under Ex.A2 and so
the said cancellation deed cannot be put against the
2nd defendant and consequently the
1st appellant/plaintiff did not derive any right under
Ex.A6 agreement which is sought to be enforced in the
suit. The learned Judge also safeguarded the interest
of the 1st appellant/plaintiff to recover the amount
paid to his vendor.
(ii) In the Judgment reported in 2009 (5) CTC 558
( S.Ganesan Vs Bharathirajan ) this court has held as
follows:
"7. I have heard the learned counsel for the
appellant as well as the respondent. It is seen from the
records that the settlement deed has been executed by
mere appeal in favour of the vendors of the defendant
under Ex.B3. The settlement deed being a registered
settlement deed and inrevocable there is no power
vested with the said Balu to revoke the same under
Ex.A57. Therefore, the Court below has rightly held
that the unilateral cancellation of the settlement deed
by the said Balu is void since he did not have the title
to the suit property. The Trial Court has also referred
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A.S.(MD)Nos.221 and 222 of 2021
with the specific Clause in the settlement deed.
In pursuant to the settlement deed the defendant has
purchased the suit property under Ex.B5 dated
02.09.1992 which is registered sale deed. Therefore, it
is clear notwithstanding the fact that the possession
has not been handed over to donee under a settlement
the same would not invalid the transaction. Similarly
under Section 127 of the Transfer of Property Act,
1882 a minor is competent to accept a gift. As held
earlier that the settlement itself makes it clear about
the existence of the mortgage. It has been held in the
Judgment reported in K.Balakrishnan V. K.Kamalam
and others , 2004(1) CTC 146, that gift of title and
ownership of property to the donee need not include
actual possession and the minor is competent to accept
the gift...... In fact in the judgment referred above in
K.Balakrishnan V. K.Kamalam and others , 2004 (1)
CTC 146, the Hon'ble Supreme Court has also held
that apart from non-delivery of possession and
non- exercising of any rights over the ownership of the
property the fact that the donee has failed to make
mutation in the records would not make the gift deed
invalid. This Court feels that the said Judgment of the
Supreme Court applies to the facts on hand as well.
For the reason stated above, this Court finds that no
interference is called for. Accordingly, the appeal is
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dismissed. Consequently, the C.M.P. is closed.
No costs."
(iii). In the judgment reported in 2014 (3) CTC
113 (D.V.Loganathan V. The Sub-Registrar,
Pallavaram, Chennai) this court has held as follows:
"6. In fact the registration of cancellation of the
Settlement Deed is against the Public Policy as it was
not open to the Sub-Registrar to register the
cancellation of the Deed, when the Settlement Deed is
unconditional and irrevocable. If at all the party who
has executed the document is aggrieved by the
Settlement Deed, he could have very well approached
the Civil Court to set it aside, but certainly could not
unilaterally cancel it, by getting the Deed of
Cancellation registered with the Sub-Registrar.
The Cancellation Deed and its registration, therefore,
being without jurisdiction, is liable to be set aside.
In fact in the above unreported judgment dated
01.03.2012 made in W.P.No.17983 of 2011 (cited
supra), the learned Single Judge of this Court has held
as follows:
"10. On consideration, I find that this Writ
Petition deserves to succeed, as per Section 156 of
Transfer of Property Act, except for the condition
stipulated therein, the Gift Deed is irrevocable. It is
not disputed that the none of the condition entitling
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revoking of Gift Deed exists in this case, as the Gift
Deed was irrevocable and unconditional, it was not
open to Respondent No.2 to register the Cancellation
Deed being opposed to the public policy.
The impugned order of registration, therefore, cannot
be sustained in law, in view of the decision of the
Hon'ble Full Bench of this Court and decision of the
Hon'ble Kerala High Court in Latif Estate Line India
limited v. Hadeeja Ammal. For the reasons stated
above the registration of impugned deed of
cancellation therefore cannot be sustained in law
against public policy''.
iv). In the judgment reported in 2010 (2) CTC 379
(Kamalammal Vs. Girija), this court has held as follows:
"16 (xiv).In view of the above discussion and of the
law holding the field, it is held that the cancellation by
means of Ex.B-7 is not valid. There is no evidence with
regard to fraud, misrepresentation, undue influence or
coercion repeatedly perpetrated upon Vidhuthuvalli
Thayar at the time of excution of Ex.A-3 Settlement deed.
The competent persons connected to Ex.A-3 were not
brought before the Court to show the alleged coercion and
undue influence exerted upon the executant. In the
absence of specific pleadings to prove, the contention that
it was obtained through such devices could not be
countenanced.
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A.S.(MD)Nos.221 and 222 of 2021
16 (xv). Since both the settlement deeds were
duly accepted and it is indicated through documents
that delivery of possession was also effected in favour
of the first respondent, subsequent cancellation
through Ex.B-7 by Vidhuthavalli Thayar is not legally
valid."
v) In the judgment reported in AIR 2004 SC
1257 ( K.Balakrishnan Vs. K.Kamalam& Others ), the
Apex Court has held as follows:
" 11.We have critically examined the contents of
the gift deed. To us, it appears that the donor had very
clearly transferred to the donees ownership and title in
respect of her 1/8th share in properties. It was open to
the donor to transfer by gift title and ownership in the
property and at the same time reserve its possession
and enjoyment to herself during her lifetime. There is
no prohibition in law that ownership in property
cannot be gifted without its possession and right of
enjoyment. Under S.6 of the Transfer of Property Act "
property of any kind may be transferred" except those
mentioned in Cls. (a) to (i). Section 6 in relevant part
reads thus:-
"6.What may be transferred._Property of any
kind may be transferred, except as otherwise provided
by this Act or by any other law for the time being in
force.- (a) ............
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(b) A mere right to re-entry for breach of a
condition subsequent cannot be transferred to any one
except the owner of the property affected thereby.
(c) ...........
(d) All interest in property restricted in its
enjoyment to the owner personally can not be
transferred by him.
(e)A mere right to sue [] cannot be *
transferred.
12. Clause (d) of S.6 is not attracted on the
terms of the gift deed herein because it was not a
property, the enjoyment of which was restricted to the
owner personally. She was absolute owner of the
property gifted and it was not restricted in its
enjoyment to herself. She had inherited it from her
maternal father as a full owner. The High Court was,
therefore, apparently wrong in coming to the
conclusion that the gift deed was in effectual merely
because the donor had reserved to herself the
possession and enjoyment of the property gifted.
26. .. we have examined the terms of the gift
deed. Non-delivery of possession of the gifted property,
non exercise of any rights of ownership over it, and
failure by the donee, on attaining majority. In getting
his name mutated in official records are not
circumstances negativing the presumption of
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acceptance by the minor during his minority or on his
attaining majority."
10. From the above judgments, it is clear that the
settlement deed cannot be cancelled unless either one
of the elements of fraud, misrepresentation, undue in-
fluence or coercion is present. Such revocation is also
possible only through a civil court....”.
24. In view of the above settled position, unless the plaintiffs establish
their plea of execution of the settlement under undue influence, the settlement
deed cannot be cancelled, the cancellation is possible only through a civil
Court. But, in this case, the 1st plaintiff unilaterally cancelled the settlement
deed by way of Ex.A.3 = Ex.B.3, which is not valid in the eye of law.
25. The next contention raised by the plaintiffs is that the settlement
deed did not come into effect as possession was not handed over to the
1st defendant and mutation of revenue records was not made in the name of the
1st defendant. As per the above judgment of this Court in S.A.No.1072 of
2006 , this Court clearly held in that judgment as follows:
“In S.Ganesans case (Supra), relying upon
the judgment of the Apex Court reported in 2004 (1)
CTC 146 SC (K.Balakrishnan case), this court has
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held that the settlement deed would not be
invalidated on the ground that possession was not
handed over to the donee or because donee failed
to mutate the records. The judgment is squarely
applicable to the present facts of the case. In the
present case, though the plaintiffs could not
establish that they were in possession, the fact that
the revenue record was mutated in the name of the
3rd plaintiff vide exhibit A2, would only imply that
the 3rd plaintiff had acted upon the settlement deed
and was in possession till at least 1994.
The documents produced by the defendant are of
the year 1996. The defendant has only pleaded that
the settlement document is a sham document.
He has not pleaded that the document was obtained
by fraud, misrepresentation, undue influence or
coercion. No evidence was produced to that effect.
Upon perusal of the settlement deed marked as
Exhibit A1, it is clear that the settlement deed was
irrevocable under any circumstances, voluntary
and out of abundant love and affection the
defendant had on his father. However, in the
cancellation deed, the defendant had claimed that
he had executed the settlement without any
intention to enforce it. Such a plea does not fall
within the ambit of section 126 of the Transfer of
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A.S.(MD)Nos.221 and 222 of 2021
Property Act which reads as under:
"126. When gift may be suspended or
revoked. The donor and donee 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 valid wholly or in part, as
the case may be. A gift may also be revoked in any
of the cases (save want of 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."
26. From the above, it is clear that merely because possession was not
handed over and mutation of revenue records was not transferred to the name
of the 1st defendant, the settlement deed cannot be held to have not come into
effect. It is pertinent to note here that the original settlement deed was
produced by the 1st defendant in this case. The ruling reported in 2021 (5)
Law Weekly 452 in Vasanthiri case is applicable to the present case.
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27. The appellants have submitted that the 1st respondent has raised the
point of limitation in this appeal, which is not entertainable without any
pleading and evidence. The learned counsel for the 1st respondent submitted
that, in the absence of a pleading, the question of limitation can be raised in
appeal also by quoting the judgment relied on by the appellant side itself in
2026 (2) MWN (Civil) 257 case, specifically relying on paragraph No.41(iii),
which as follows:
“41.(iii) When the question of limitation is a
pure question of law, capable of being determined
on the basis of the pleadings, admitted facts or
evidences before the Court, then a Court is bound
under the provisions of Section 3 of the Limitation
Act to raise such a question suo motu and answer the
same.”
So, the question of limitation can be raised in the appeal also, and there
is no restriction on answering the same as it is a pure question of law, as clearly
held in the above judgment (2026 (2) MWN (Civil) 257) .
28. Keeping the above principle in mind, from perusal of the material
records of this case shows that the 1st plaintiff is the sole executant of Ex.A.4
settlement deed, which was attested by Jagadeesan and one another.
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A.S.(MD)Nos.221 and 222 of 2021
Admittedly, both attestors have died, and the same was also affirmed by the
executant. So the executant admitted the execution of the settlement deed on
11.01.2010. The 1st plaintiff/executant is an educated person, and she is not
illiterate. She is capable of transacting property as she has several immovable
properties. She pleaded that it was advised by Jagadeesan that, when the
problem is solved, the settlement deed would be revoked in her favour.
There is no dispute that the said Jagadeesan died in 2012. She has not taken
any steps to revoke the settlement deed. But unilaterally, she executed the
cancellation of the settlement deed on 13.12.2013, which is after a lapse of
3 years 11 months and 2 days from the date 11.01.2010, on which date the
settlement deed was executed. The suit was filed on 12.12.2014 after a lapse of
4 years 11 months, and one day for declaration that the settlement deed is null
and void. As already stated supra, the settlement deed can be cancelled only
through the Civil Court by the executant who made allegations of undue
influence. But the 1st plaintiff unilaterally executed the cancellation of the
settlement deed, that too beyond the limitation period. Therefore, as rightly
argued by the learned counsel for the 1st defendant, the suit for declaration that
the settlement deed is null and void has to be filed within three years from the
date of execution of the settlement deed on 11.01.2010, as per Article 59 of the
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Limitation Act. The 1st plaintiff herself is the executant of the document,
so she has clear knowledge of the settlement deed on 11.01.2010. She cannot
claim that she was not aware of the same and she came to the knowledge of the
same only after obtaining the encumbrance certificate after the death of
Jagadeesan, which is not acceptable in law.
29. The next point urged by the appellant side is regarding specific
denial by the 1st defendant in respect of the pleadings of the 1st plaintiff.
Of course, as per the argument of the appellants/plaintiffs side, quoting the
st
provisions of Order VIII Rule 3 & 4 of CPC, the 1 defendant has not
specifically denied the plaint averments, and in such absence, the same is to be
deemed an admission. But, the Hon’ble Supreme Court has clarified the said
circumstances in various cases that a "deemed admission" due to faulty denial
is not absolute proof, and the plaintiff has to prove his/her case on her own
stand, upon discussion of Order VIII Rule 5 (1) of CPC.
Order VIII Rule 5(1) of the CPC reads thus:
"Every allegation of fact in the plaint, if not
denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as
against a person under disability:
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Provided that the Court may in its discretion
require any fact so admitted to be proved otherwise
than by such admission."
30. This provision must be read in conjunction with Order VIII Rule 3 of
CPC, which requires that the denial by the defendant be specific, and Order
VIII Rule 4 of CPC, which cautions against evasive denials. A general denial
or a vague statement of non-admission is insufficient to counter the plaintiff's
factual assertions. By invoking the Proviso to Order VIII Rule 5(1) of CPC, the
Court clarifies that the "deemed admission" is neutralized, and the Court has to
decide the case based on the proved documentary evidence rather than the
technical contention in the written statement. The Court has the judicial
discretion to look at the entire case. The proviso to Order VIII Rule 5(1) of
CPC grants the Court discretionary power to require any fact, though deemed
admitted, to be proved otherwise than by such admission. This is a crucial
safeguard to prevent injustice, particularly where a plaint may be collusive,
fraudulent, or where the defendant, due to ignorance or other reasons, fails to
file a proper denial, or where the Court itself feels that proof is necessary in the
interest of justice.
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31. The Hon’ble Supreme Court in its recent verdict in Thangam &
Anr. /v/ Navamani Ammal case , reported in 2024 INSC 164 held as follows:
“15. In the absence of para-wise reply to the
plaint, it becomes a roving inquiry for the Court to
find out as to which line in some paragraph in the
plaint is either admitted or denied in the written
statement filed, as there is no specific admission or
denial with reference to the allegation in different
paras.
15.1 Order VIII Rules 3 and 5 CPC clearly
provides for specific admission and denial of the
pleadings in the plaint. A general or evasive denial
is not treated as sufficient. Proviso to Order VIII
Rule 5 CPC provides that even the admitted facts
may not be treated to be admitted, still in its
discretion the Court may require those facts to be
proved. This is an exception to the general rule.
General rule is that the facts admitted, are not
required to be proved.
15.2 The requirement of Order VIII Rules 3
and 5 CPC are specific admission and denial of the
pleadings in the plaint. The same would necessarily
mean dealing with the allegations in the plaint
para-wise. In the absence thereof, the respondent
can always try to read one line from one paragraph
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A.S.(MD)Nos.221 and 222 of 2021
and another from different paragraph in the written
statement to make out his case of denial of the alle-
gations in the plaint resulting in utter confusion.
15.3 In case, the defendant/respondent wishes
to take any preliminary objections, the same can be
taken in a separate set of paragraphs specifically so
as to enable the plaintiff/petitioner to respond to the
same in the replication/rejoinder, if need be.
The additional pleadings can also be raised in the
written statement, if required. These facts specifically
stated in a set of paragraphs will always give an
opportunity to the plaintiff/petitioner to respond to
the same. This in turn will enable the Court to
properly comprehend the pleadings of the parties
instead of digging the facts from the various
paragraphs of the plaint and the written statement.
15.4 The issue regarding specific admission
and denial of the pleadings was considered by this
Court in Badat and Co. Bombay Vs. East India
Trading Co7 . While referring to Order VIII Rules 3
to 5 of the CPC it was opined that the aforesaid
Rules formed an integrated Code dealing with the
manner in which the pleadings are to be dealt with.
Relevant parts of para ‘11’ thereof are extracted be-
low:
“11. Order 7 of the Code of Civil Procedure
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A.S.(MD)Nos.221 and 222 of 2021
prescribes, among others, that the plaintiff shall
give in the plaint the facts constituting the cause
of action and when it arose, and the facts show-
ing the court has jurisdiction. The object is to en-
able the defendant to ascertain from the plaint the
necessary facts so that he may admit or deny
them. Order VIII provides for the filing of a
written-statement, the particulars to be contained
therein and the manner of doing so; These three
rules form an integrated code dealing with the
manner in which allegations of fact in the plaint
should be traversed and the legal consequences
flowing from its noncompliance. The written
statement must deal specifically with each
allegation of fact in the plaint and when a
defendant denies any such fact, he must not do so
evasively, but answer the point of substance. If his
denial of a fact is not specific but evasive, the
said fact shall be taken to be admitted. In such an
event, the admission itself being proof, no other
proof is necessary.”
15.5 The matter was further considered by
this Court in Lohia Properties (P) Ltd., Tinsukia,
Dibrugarh, Assam Vs. Atmaram Kumar8 after the
1976 Amendment Act in CPC whereby the existing
Rule 5 of Order VIII of the CPC was numbered as
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sub-rule (1) and three more sub-rules were added
dealing with different situations where no written
statement is filed. In paras 14 and 15 of the
aforesaid judgment, the position of law as stated
earlier was reiterated. The same are extracted
below:
“14. What is stated in the above is, what
amount to admit a fact on pleading while Rule 3
of Order 8 requires that the defendant must deal
specifically with each allegation of fact of which
he does not admit the truth.
15. Rule 5 provides that every allegation of
fact in the plaint, if not denied in the written
statement shall be taken to be admitted by the
defendant. What this rule says is, that any
allegation of fact must either be denied
specifically or by a necessary implication or there
should be at least a statement that the fact is not
admitted. If the plea is not taken in that manner,
then the allegation shall be taken to be
admitted.”
15.6 We have made the aforesaid observations
as regularly this Court is faced with the situation
where there are no specific para-wise reply given in
the written statement/counter affidavit filed by the
defendant(s)/respondent(s). In our opinion, if the
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aforesaid correction is made, it may streamline the
working.
16.For the reasons mentioned above, we do
not find any merit in the present appeal. The same
is, accordingly, dismissed.''
32. As per the above ruling, it is clear that there should be at least a
statement that the fact is not admitted, which is sufficient to deny the plaint
averments as per Rule 5 of Order VIII of the CPC. The 1st defendant has made
a contention in his written statement denying the pleadings of the plaintiffs.
Therefore, this argument regarding specific denial is not fatal to the case of the
1st defendant.
33. As discussed above, the settlement deed dated 11.01.2010 under
Ex.A.4/Ex.B.2 has not been proved by the appellants/plaintiffs to have been
executed under undue influence, so it is valid in the eye of law. Consequently,
the cancellation of the settlement deed dated 13.12.2013 under Ex.A3/Ex.B3
executed unilaterally by the 1st plaintiff is bad in law and void ab initio and
also the claim of the plaintiffs is strictly barred by limitation. Therefore, the
trial Court has properly appreciated the evidence and correctly decided the
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matter against the plaintiffs and so, the judgment of the trial Court is
sustainable in law. Thus, the appeal suits are liable to be dismissed. The points
are answered accordingly.
34. In the result, the Appeal Suits are dismissed. The common judgment
and decree dated 07.07.2021 passed in O.S.Nos.12 of 2015 and 224 of 2017 on
the file of the IV Additional District Court, Madurai are confirmed.
No costs.
27.10.2026
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
To
1.The IV Additional District Court,
Madurai

2.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)Nos.221 and 222 of 2021
P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
A.S(MD)Nos.221 and 222 of 2021
27.10.2026
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