Madrasdated High Court · 2007

sake of convenience the parties are referred to as per their rankingin the suit.2. The brief facts that are necessary for the disposal of theabove second appeals are set-out below:-(a) The plaintiff-Subramanian is the son of Narayanaswamy Gounder@ Kannu Gounder through his wife-Thanjiammal-the first defendant andthe second defendant is the sister of the plaintiff-Subramanian.Narayanaswamy Gounder and his brother Rangaswamy Gounder wereenjoying their ancestral properties without making division tilltheir death. After their death Thanjiammal, Subramanian andRadhakrishnan-son of Rangaswamy Gounder entered into a registeredpartition deed dated 27.12.1972. Under that, partition 'A' schedulefell to the share of Thanjiammal and Subramanian and 'B' scheduletherein was allotted to the share of Radhakrishnan. Thanjiammalexecuted a registered settlement deed dated 12.07.1990 in favour ofher daughter-Pachiammal in respect of a specified extent of two acresin S.F.No.314/2 together with a half share in the Well and motorpumpset fitted in the Well. Subsequently by another registereddocument dated 30.07.1990, Thanjiammal cancelled the settlement deedexecuted in favour of Pachiammal.(b) On 25.07.1990 Subramanian filed a suit in O.S.No.231 of 1990before the District Munsif Court, Polur, against his mother-Thanjiammal and sister-Pachiammal seeking a decree for permanentinjunction in respect of the entire extent of 3.94 acres inS.F.No.314/2 and the Well and motor pumpset fitted thereto and alsogot an order of interim injunction. Pending the said suit Pachiammalfiled O.S.No.16 of 1991 on the file of the same Court againstSubramanian for declaration, recovery of possession and for mesneprofits in respect of the property settled on her by her mother underthe settlement deed dated 12.07.1990.(c) The case of Subramanian as put forth in the above said twosuits is that he becomes the absolute owner of the 'A' scheduleproperty of the partition deed after the death of his mother-Thanjiammal and his mother had been given only a life interest; ashis mother is an aged women, he was looking after her out of theincome derived from the said property and he is in continuouspossession and enjoyment of the same; the patta and the electricityservice connection of the Well stands in his name; Pachiammal who isin hostile terms with him got a sham and nominal settlement deedexecuted in her favour by his mother who had no right to settle theproperty; since Pachiammal attempted to disturb the possession ithas become necessary for him to file the suit for permanentinjunction. It is his further case that after coming to know aboutthe fraud played upon her by Pachiammal, Thanjiammal executed aregistered cancellation deed dated 30.07.1990 cancelling thesettlement deed dated 12.07.1990; the settlement deed executed byThanjiammal is a sham and nominal document which was not acted upon https://hcservices.ecourts.gov.in/hcservices/ as possession was never delivered to Pachiammal and the settlementhas not come into force.(d) Whereas the case of Pachiammal, the second defendant inO.S.No.231 of 1990 and the plaintiff in O.S.No.16 of 1991, is thatthe settlement deed was executed by her mother on her own will andvolition; the settlement was accepted by her and the same has beenacted upon and the settlement deed is not sham and nominal ascontended by Subramanian; she was put in possession of the propertysettled under the Settlement deed dated 27.12.1972, Thanjiammal hasgot an absolute right over the property settled under the settlementdeed; the recitals contained in the earlier part of the partitiondeed will prevail over the recitals contained in the latter part ofthe partition deed and the contention of Subramanian that Thanjiammalgot only a life interest under the partition deed is untenable;though she was put in possession of the property settled on her,Subramanian by taking advantage of the exparte order of injunctionobtained against her and her mother, trespassed into the propertyand had taken forcibly possession on 25.07.1990; hence she has filedthe suit in O.S.No.16 of 1991 for declaration of her title to thesuit property as well as for delivery of possession of the same andfor mesne profits.3. In O.S.No.231 of 1990 the first defendant-Thanjiammal remainedexparte. Though the subject matter of the suit and the parties aresame and the issues that arose for consideration were also same, forthe reasons best known to the trial court, both the suits were triedseparately and separate judgments have been rendered. After framingappropriate issues in both the suits, the suits were taken up fortrial and during trial, in O.S.No.231 of 1990, on the side of theplaintiff, the plaintiff-Subramanian has been examined as P.W.1,Thanjiammal has been examined as P.W.2 and two others have beenexamined as P.Ws.3 and 4 and Exs.A-1 to A-15 have been marked and onthe side of the defendants, Pachiammal the second defendant has beenexamined as D.W.1 and one Kannan who has attested the settlement deedhas been examined as D.W.2 and Ex.B-1 has been marked. Thecancellation deed has been marked as X-1. In O.S.No.16 of 1991 theplaintiff-Pachiammal has been examined as P.W.1 and the attestor ofthe settlement deed has been examined as P.W.2 and the settlementdeed has been marked as Ex.A-1 and on the side of the defendant-Subramanian has been examined as D.W.1, Thanjiammal has beenexamined as D.W.2 and one Aarimuthu has been examined as D.W.3. Thecancellation deed dated 30.07.1990 has been marked as Ex.X-1. Thepartition deed dated 27.12.1972 has been marked as Ex.X-2. 4. On a consideration of the oral and documentary evidenceadduced in the suits, the trial court decreed O.S.No.231 of 1990 infavour of Subramanian and dismissed O.S.No.16 of 1991 filed byPachiammal. Being aggrieved by that Pachiammal preferred appeals inA.S.No.60 and 69 of 1994 respectively before the Sub-Court, https://hcservices.ecourts.gov.in/hcservices/ Thiruvannamalai. The lower appellate court on a consideration of theevidence on record reversed the judgment and decree of the trialcourt in both the suits and partly allowed the appeals. The lowerappellate court upheld the validity of settlement deed, dismissed thesuit for injunction filed by Subramanian on the ground thatinjunction cannot be granted against the co-owner, but even afterholding the settlement deed as valid and the cancellation deed asinvalid did not grant a decree for declaration, but directedPachiammal to file a suit for partition. Being aggrieved by thejudgment and decree passed in the said appeals, Subramanian has filedthe above appeals, whereas Pachiammal has not filed any appeal.Since as above said the subject matter of both the appeals is one andthe same and the same witnesses have been examined in both the suitsand the issues that arise for consideration are also one and the sameboth the above second Appeals are being disposed of by a commonjudgment. 5. While admitting the above second appeals the following commonsubstantial questions of law have been framed:-"(1) Whether the Court below is justified in decidingthe correctness of the revocation deed dated 30.07.1990when admittedly the same was not challenged by the 2nddefendant till suit is filed by the appellant?(2) Whether the Court below is justified in holdingthat the appellant's possession will enure to the 2nddefendant so as to create a joint ownership?(3) Whether the Court below having found that thepossession was never handed over to the 2nd defendant,is justified in rejecting the claim for injunction?"6. Heard Mr. M.Venkatachalapathy learned senior counsel forMr.S.M.Loganathan for the appellant and Mrs. A.Sathyabama learnedcounsel for Mr. T.R.Rajaraman learned counsel for the secondrespondent in S.A.No.482 of 1995. 7. Learned senior counsel for the appellant submitted that underthe partition deed Thanjiammal has been given only a life interest inrespect of the 'A' schedule to the partition deed; the latter clausein partition deed alone will prevail and the intention of the partieswas that Thanjiammal should get only a life interest and not anabsolute right; when Thanjiammal has been given only a life interestshe cannot validly execute the settlement deed in favour of herdaughter-Pachiammal; when admittedly Subramanian the appellant is inpossession of the suit property possession would not have been givenunder the settlement deed as recited therein and therefore it shouldbe held that the settlement deed was not acted upon. He furthersubmitted that Thanjiammal being the life interest holder could notexecute the settlement deed and that too in respect of an undividedshare and Thanjiammal herself in her evidence as D.W.2 has statedthat she was taken to the Sub-Registrar's Office by her daughter and https://hcservices.ecourts.gov.in/hcservices/ one Kannan-P.W.2 and she was made to sign in a document and she hadput her signature without knowing the contents thereof and she wasnot aware that she was executing a settlement deed and immediatelyafter coming to know about the fraud played upon her she had executeda cancellation deed cancelling the settlement deed, but no acceptableevidence has been adduced by Pachiammal, the plaintiff in O.S.No.16of 1991, to rebut the evidence of Thanjiammal; this aspect has notbeen properly considered by the lower appellate court. He furthersubmitted that when admittedly Subramanian is in possession of thesuit property, the lower appellate court has committed an error inreversing the judgment of the trial court and dismissing the suit forinjunction. He further submitted that when a finding has beenrecorded that possession was not handed over to Pachiammal the lowerappellate court erred in dismissing the suit for injunction. Hefurther submitted that Thanjiammal is an illiterate lady and byplaying a fraud upon her and by exercising undue influence thesettlement deed had been got executed in her favour by Pachiammal andas such the burden is on Pachiammal to prove that the settlement deedwas executed by Thanjiammal on her own will and volition fullyknowing the contents of the document. In support of his contentionsthe learned senior counsel for the appellant relied upon thefollowing decisions:-(i) 1996 (II) CTC 279 (Dharman v. Marimuthu) wherein in paragraph17 it is observed as follows:-"17. ... The fact that the Written Statement did notcontain a positive accusation of any undue influencehaving been played by the plaintiff upon the deceasedfirst defendant cannot be blown out of proportion inthe teeth of the very admissions contained in theplaint about certain facts which would go to showbeyond doubt if at all, only the dominating positionin which the plaintiff was placed viz. the firstdefendant rather than going to exculpate the plaintifffrom the charge of having exercised such undueinfluence. It is not the specific mention of the veryword undue influence that really matters but theexistence of the relevant facts in the case pleadedand proved that is only relevant and sufficient".(ii) (1993) I MLJ 259 (Varadhan v. Pattammal) wherein inparagraph 8 it is observed as follows:-"8. Courts in India have on the rule of evidenceenshrined in Secs.101 and 102 in Chapter VII ofthe Evidence Act, particularly in cases of womenin India who in some parts and some communitiesare pardanashin and in most parts of the countryilliterate, for the reason that they transacttheir business generally through malefolk only,men always dominated women, and women lived a lifedominated by men, this being the curse that alwayssurrounded women folk even though law recognised https://hcservices.ecourts.gov.in/hcservices/ their independent rights, they failed invariablyin exercising such rights, accepted that onus liesupon the defendant to show that there has been nofraud, undue influence or coercion in thetransaction. One could easily, since theplaintiff alleged mis-representation and fraud,ask her to prove the mis-representation and fraud.But not in a case where a women being anilliterate and unaware of the contents signed thedocument. Unless fully and faithfully informedabout the contents, she cannot be asked to bringevidence to prove her case. Learned Single Judge,in our opinion, is right in holding that the Courtwill not ask the plaintiff to prove the allegationbut demanded from the defendant to disprove theallegation of mis-representation and fraud. Thelearned single Judge, in our opinion, has takenthe correct view of the law on the fact that the1st plaintiff is an illiterate woman who merelyaffixed her thumb impression. She is a woman whopossibly could not act without help."8. Countering the said submissions the learned counsel for therespondents submitted that the circumstances under which thesettlement deed was executed by Thanjiammal in favour of herdaughter-Pachiammal should be considered. He further submitted thatin the settlement deed itself it has been recited as follows:-"eP vd;Dila xnu Fkhuj;jp MdgoahYk; eP vd;id ,J ehs; tiurtul;riz bra;J tUtjpdhYk; ,dpnky; vd; $%t jpirtiu rthl;rizbra;J tUtha; vd;w ek;gpf;ifapdhYk; cd; nghpy; vdf;F ,Uf;Fk;md;gpdhYk; gphpaj;jhYk; ghrj;jpdhYk; cdf;F xU brhj;J Mjut[ bra;Jitf;f ntz;Lk; vd;w ePz;l ehs; Mtiy g{h;j;jp bra;a[k; bghUl;L vdf;Fbrhe;jkhd fPH;fz;l U:gha; 46500/00 ,e;j U:gha; ehw;gj;jp Mwhapuj;J Ie;JE}W kjpg;g[s;s brhj;ij cdf;F jhd brl;oy;bkz;l; vGjpf; bfhLj;Jbrhj;ija[k; ,d;nw ck;kpl Rthjpdk; xg;g[f; bfhLj;J tpl;nld;/"Learned counsel for the respondents further submitted that inconsonance with the said recitals P.W.2 in her evidence has alsostated as follows:-"vd; bghz;Qqk; mnj Chpy; jhd; ,Uf;fpwhs;/ v';f bghz;Qqf;F trjpFiwt[/ fc&;lk;jhd;/ 4. 5 gr';fs; ,Uf;fpwh';f/"According to the learned counsel for the respondents, since thedaughter- Pachiammal was not living in an affluent circumstances onlywith an intention to make provision for her support the settlementdeed had been executed by Thanjiammal and that intention has beencategorically stated in the settlement deed itself and the same hasalso been spoken to by her in her evidence. Further P.W.2 in hercross-examination had stated that on coming to know about the https://hcservices.ecourts.gov.in/hcservices/ execution of the settlement deed by her in favour of her daughter,the relationship between her and her son-Subramanian became strainedand the strained relationship became smooth after the settlement deedwas cancelled and she was living only with her son and she has alsostated that at the time of execution of the cancellation deed herson-Subramanian was present along with her in the Sub-Registrar'sOffice. According to the learned counsel, the above said evidence ofP.W.2 makes it crystal clear that the cancellation deed would havebeen executed only under the pressure exerted by Subramanian.Learned counsel further submitted that though a contention has beenput forth by the appellant that the settlement deed was got executedby exercising undue influence and fraud and by makingmisrepresentation, such averments are conspicuously absent in thecancellation deed itself. Learned counsel further submitted thatP.W.2 has also not stated in her evidence that either fraud wasplayed upon her or she was coerced or she executed the settlementdeed under undue influence exercised by Pachiammal. Learned counselsubmitted that if the allegations like fraud, misrepresentation orundue influence are raised such allegations should be pleaded withmaterial particulars and in this case such material particulars andspecific averments are missing and therefore the contention of theappellant that the settlement deed was executed under undueinfluence, fraud and coercion is liable to be rejected. Learnedcounsel further submitted that once a registered settlement deed hadbeen executed the same cannot be revoked and as such the revocationdeed executed by Thanjiammal is non-est in law and it can be ignoredby Pachiammal and if really the settlement deed had been executed byThanjiammal due to the fraud, undue influence etc., as contended bythe appellant nothing prevented Thanjiammal from filing a suitseeking a decree for cancellation of the settlement deed, but so farno such steps have been taken. Learned counsel submitted that in thesettlement deed itself no right has been reserved by Thanjiammal tocancel the settlement deed and as such the cancellation deed isinvalid. 9. Learned counsel for the respondents submitted that underSection 123 of the Transfer of Property Act, if an immovable propertyis settled under registered sale deed the title in the property willbe transferred in favour of the transferee and it is not stipulatedin the said provision that possession should be handed overimmediately. According to the learned counsel, the contention putforth by the learned senior counsel for the petitioner that sincepossession had not been handed over under the settlement deed, thesettlement deed has not come into force and the same has not beenacted upon is against the said proportion contained in Section 123 ofthe Transfer of Property Act. 10. Learned counsel for the respondents further submitted thatunder the partition deed Thanjiammal has got an absolute right in the'A' schedule property along with her son-Subramanian. According to https://hcservices.ecourts.gov.in/hcservices/ the learned counsel, the first clause in the partition deed willprevail over the latter clause and even if a life estate is given,the same can be settled by the life estate holder and as such thecontra contention put forth by the appellant is liable to berejected. Learned counsel further submitted that since Subramanianhad instituted O.S.No.231 of 1990 on 25.07.1990 and an exparte orderof injunction was obtained against Pachiammal, taking advantage ofthe same Subramanian had trespassed and taken possession. Learnedcounsel further submitted that all the above said aspects have notbeen considered by the trial court and therefore the lower appellatecourt by applying the correct principles of law to the facts of thiscase and after recording convincing reasons has set-aside thejudgment and decree passed by the trial court; the trial court hasoverlooked the well settled proposition of law that injunction cannotbe granted against a co-owner; the lower appellate court havingupheld the validity of settlement deed and having held thatPachiammal has become a co-owner with Subramanian has rightlydismissed the suit for injunction. In support of the above saidsubmissions the learned counsel relied upon the following decisions:-(i) 1997 (I) CTC 256 (Kuppuswami Mudali J. V. Mahalingam) whereinin paragraphs 11 and 12 it is observed as follows:-"11. In order to hold that it is a valid settlement wehave to find out whether the settlee has accepted thesaid document. It is also a settled law that insettlement once the settlee accepts the transfer it ispresumed that the said document has been acted uponirrespective of the fact whether the settlee hasobtained possession immediately or not. A reading ofthe entire document Ex.A-1 as pointed out by the twodecisions referred to earlier leads to an irresistibleconclusion that the power of transfer by the settles(Pappammal) alone has been postponed. As a matter offact the said Govinda Mudali has not written anythingin the said document. Hence the contrary conclusionreached by the trial court cannot be sustained. Onthe other hand the lower appellate court correctlyconstrued Ex.A-1. When there is no provision orreservation in the settlement deed by the settler,namely, Govinda Mudali it is presumed that he has noright to cancel the said settlement deed at a laterdate. If that is so the cancellation of Ex.A-1 underEx.B-8 cannot be sustained.12. The following decisions cited by the learnedcounsel for the respondent amply support the aboveview of mine. In Lallu Singh v. Gur Narain, A.I.R.1992 All. 467, the Full Bench of the Allahabd HighCourt while interpreting Section 123 of the Transferof Property Act has held that "Delivery of possessionis not necessary, Section 123, does away with thenecessity of delivery of possession even if it was https://hcservices.ecourts.gov.in/hcservices/ required by the strict Hindu Law, in the case of aregistered instrument of gift properly executed andattested" .... A similar view has been arrived at in adecision reported in Gouranga Sahu v. Maguni Dei,A.I.R. 1991 Ori. 151. In Balmakund v. Bhagwan Das,1894 Allahabad Series 185, the Division Bench hasobserved as follows:-"The delivery to the donee of immovableproperty of the deed of gift is sufficient topass the title to such property to the doneewithout actual physical possession suchproperty being taken by the donee. Man Bhariv. Navindh followed"."(ii) AIR 1996 Supreme Court 2220 (N.B.Subrahmanyam v.A.Hymavathi) wherein in paragraph 5 it is observed as under:-"5. The said recital clearly would indicate that thesettlement deed executed on that date is to take effecton that day. She created rights thereunder intended totake effect from that date, the extent of the landsmentioned in the Schedule with the boundaries mentionedthereunder. A combined reading of the recitals in thedocument and also the schedule would clearly indicatethat on the date when the document was executed she hadcreated right, title and interest in the property infavour of her second daughter but only on her demiseshe was to acquire absolute right to enjoyment,alienation etc. In other words, she had created inherself a life interest in the property and vestedremainder in favour of her second daughter. It issettled law that the executant while divesting herselfof the title to the property could create a life estatefor her enjoyment and the property would devolve on thesettlee with absolute rights on settlor's demise. Areading of the documents together with the Schedulewould given an indication that she had created rightand interest in prasenti in favour of her daughterVimalavathy in respect of the properties mentioned inthe schedule with a life estate for her enjoymentduring her lifetime. Thus, it could be construedrightly as a settlement deed but not as a Will. Havingdivested self thereunder, right and title thereunder,she had, thereafter, no right to bequeath the sameproperty in favour of her daughter Hymavathy. Thetrial Court and the learned single Judge rightlynegatived the claim. The Division Bench was not,therefore, correct in law in interfering with thedecree of the trial Court." https://hcservices.ecourts.gov.in/hcservices/ (III) AIR 1996 Bombay 36 (Nagpur Bench) (Prakash S. Akotkar v.Mansoorkha Gulabkha) wherein in paragraph 5 it is observed asfollows:-"5. .... Having found the character of possession asco-owner, as indicated above, the only question thatarises for determination is, whether a co-owner inpossession is entitled to an injunction of this natureagainst the other co-owners. Once it is found that thepossession of co-owner is for and on behalf of otherco-owners, the other co-owner cannot claim injunctionof this nature so as to exclude the other co-ownersfrom exercising their right as co-owners."11. I have carefully considered the submissions made by thelearned counsel on either side, perused the materials available onrecord and judgment of the Courts below.12. In the partition deed, dated 27.12.1972, the earlier clausereads as follows:-“ 'A' bc&l;oa{ypy; fz;l U:/3260-? kjpg;g[s;s brhj;Jf;fisek;kpy; 1. 2 yf;fkpl;l j";rpak;khs;. Rg;gpukzpad; ,th;fSk;. 'B'bc&l;oa{y; fz;l U:/1.419-? kjpg;g[s;s brhj;Jf;fis ek;kpy; 3yf;fkpl;l uhjh fpUc;&zDk; mtuth;fs; bc&l;oa{ypy; fz;lbrhj;Jf;fis mtuth;fs; ifg;gw;wp rh;t Rje;jpu ghj;jpa';fSlDk;jhdhjp tpf;fpiwa';fSf;F mUfkha[k; Mz;L mDgtpj;Jf;bfhs;sntz;oaJ.”while the latter clause reads as follows:-“ j";rpak;khs; $Ptpajirf;Fg; gpwF nkw;goahh; Fkhud; Rg;gpukzpad;g{uh brhj;ija[k; rh;t Rje;jpu';fSld; mDgtpj;Jf; bfhs;sntz;oaJ.”13. The trial court by construing the above said two clauses hascome to the conclusion that the latter clause will prevail over theearlier clause and hence Thanjiammal will get only the life interestin the 'A' schedule property, but the lower appellate court disagreedwith the above said conclusion and by applying the correct legalprinciple has held that the earlier clause will prevail over thelater clause and accordingly held that Thanjiammal has got the 'A'schedule property along with her son-Subramanian absolutely. Thetrial court on an erroneous understanding of the law held that evenin respect of the life interest Thanjiammal is not entitled toexecute any settlement deed. It is settled law that in the case of atransfer in praesenti, the first clause of the deed would prevailover anything that may be found to be repugnant to it later. In apartition deed, the transfer takes place in praesenti and thereforethe first clause in the partition deed would prevail over anythingthat may be found to be repugnant to it later. The said view of mine https://hcservices.ecourts.gov.in/hcservices/ is amply supported by the following observation contained inparagraph 19 of the decision reported in (2006) 8 Supreme Court Cases75 (Sadhu Singh v. Gurdwara Sahib Narike):-“What the court has to attempt is a harmoniousconstruction so as to give effect to all the terms ofthe will if it is in any manner possible. Whileattempting such a construction, the rules are settled.Unlike in the case of a transfer in praesenti whereinthe first clause of the conveyance would prevail overanything that may be found to be repugnant to itlater, in the case of a will, every effort must bemade to harmonise the various clauses and if that isnot possible, it will be the last clause that willprevail over the former and giving way to theintention expressed therein”. (underline supplied)If the above legal principle is applied to the partition deed enteredinto between Subramanian, Thanjiammal and Radhakrishnan it could beeasily held that the earlier clause confers an absolute right overthe 'A' schedule of the partition deed on Thanjiammal along with herson-Subramanian. Therefore, the above said finding of the trialcourt is erroneous and the same has been rightly reversed by thelower appellate court.14. Once it is held that Thanjiammal has got an absolute rightalong with her son-Subramanian in the 'A' schedule property dealtwith in the partition deed, it goes without saying that she has got aright to execute the settlement deed in accordance with her wish.The trial court by misconstruing the joint ownership of Thanjiammaland her son-Subramanian over the 'A' Schedule property as equivalentto the joint ownership of co-parceners over the Hindu Joint FamilyProperty and by wrongly applying the ratio laid down in 1993 (II) MLJ172 (Ramakrishna Naidu v. Shanmugasundaram and others) has held thatThanjiammal could not have executed the settlement deed in respect ofa joint family property. The trial court failed to see that it isnobody's case that the properties are the joint family properties ofThanjiammal and Subramanian and they cannot be construed to bemembers of a co-parcenery also and therefore the finding of the trialcourt is erroneous and liable to be set-aside and accordingly thelower appellate court has rightly set-aside such a finding. 15. The trial court without properly understanding the legalprinciples has held that Thanjiammal was entitled to cancel theregistered settlement deed executed by her in favour of her daughter-Pachiammal and has held that the cancellation deed dated 30.07.1990is valid. The lower appellate has rightly set-aside such anerroneous finding.16. Under Section 123 of the Transfer of Property Act, a gift ofimmovable property should be made by a registered instrument signedby or on behalf of the donor and attested atleast by a two witnesses https://hcservices.ecourts.gov.in/hcservices/ and the second requirement is there must be acceptance of the gift bythe donee. The delivery of possession is not necessary and Section123 does away with the necessity of delivery of possession even itwas required by the strict Hindu Law, in the case of a registeredinstrument of gift properly executed and attested. The above saidlegal principle has been laid down in 1997 (I) CTC 256 (referred tosupra). Therefore the finding of the trial court that the settlementdeed executed by Thanjiammal in favour of Pachiammal is sham andnominal and it has not been acted upon since possession has not beenhanded over to Pachiammal is erroneous.17. The next question that has to be considered is as to whetherthe settlement deed was got executed by Pachiammal by exercisingundue influence, coercion and by applying fraud upon Thanjiammal.The learned senior counsel for the appellant submitted thatThanjiammal being an illiterate lady, the burden is on thebeneficiary, namely, Pachiammal to prove that settlement deed wasexecuted by Thanjiammal on her own will and volition and there was noexercise of undue influence, coercion or fraud was played upon her.While the trial court has held that the burden is on Pachiammal, thelower appellate court has held that the burden is on the plaintiff-Subramanian to prove the plea of undue influence, coercion and fraud.Admittedly, the settlement deed executed by Thanjiammal in favour ofPachiammal is a duly registered document and hence a presumptionwould arise that the said settlement deed was validly executed. Inthe decision reported in (2006) 5 Supreme Court cases 353 (Prem Singhv. Birbal) in paragraph 27 the Apex Court has observed as under:-“There is a presumption that a registered document isvalidly 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 rebutthe presumption.”If the above said legal principle is applied to the case on hand thesettlement in question being a registered document is prima facievalid in law. It is, Subramanian, who is questioning the validity ofthe settlement deed and therefore, the onus of proof lies only onhim. 18. Even assuming that Thanjiammal, being illiterate, the burdenis on Pachiammal to prove that the settlement deed was executed byher mother on her own will and volition it has to be seen as towhether such a burden has been discharged by Pachiammal.19. After the execution of the settlement deed it is thetestimony of Thanjiammal who has been examined as P.W.2 that withintwo days from the date of execution she came to know that asettlement deed had been got executed from her and she had furthertestified that without reading out the contents of the document hersignatures were obtained in the document, but admittedly, she had notsent any legal notice setting forth the above said facts and she has https://hcservices.ecourts.gov.in/hcservices/ neither filed a suit to set-aside the settlement. In O.S.No.231 of1990 she had remained exparte and had not filed any writtenstatement. The allegations regarding undue influence, coercion,fraud, etc., said to have been played upon Thanjiammal by theattestor-Kannan have not been recited in the cancellation deed dated30.07.1990. If the real and actual reason for cancelling thesettlement deed had been the alleged undue influence, coercion, fraudetc., then such a recital would have found place in the cancellationdeed. Further it is pertinent to point out that undue influence,coercion and fraud are two different aspects. If the allegation isthat the settlement deed was executed due to the exercise of undueinfluence and coercion then the allegation of fraud cannot have thelegs to stand. In the case of undue influence and coercion, theexecutant is aware of the contents of the document whereas in thecase of fraud the executant is not aware of the character of thedocument or is not aware of the contents of the document. Withoutunderstanding the difference between the two allegations, theplaintiff Subramanian has made such allegations in the plaint. 20. In this context, it is pertinent to point out certain answerselicited from Thanjiammal during the course of her cross-examination.In her cross-examination Thanjiammal had stated that she does notknow that the document executed by her was a settlement deed. Shehas stated that the reasons stated in the cancellation deed-Ex.X-1 iscorrect and similarly the recitals contained in Ex.X-1 are also true.Therefore it is necessary to look into the recitals contained inEx.X-1 cancellation deed. In Ex.X-1-cancellation deed dated30.07.1990 it is stated as hereunder:-“nkw;go ghf Mtdj;jpy; vd; Ma[Sf;F gpwFk; vd; kfd; g{uht[k; milantz;Lbkd;Wk; cs;sJ/ vdnt vdf;F chpikaw;w brhj;jhFk;/ vdf;Fghj;jpakpy;yhj fPH;fz;l brhj;Jf;fis ehs;/ 12/7/90 e; njjpapy; vd;Fkhuj;jpahd gf;fpak;khSf;F jhdkhf vGjp bfhLj;J tpl;nld; fPH;fz;lbrhj;Jf;fis/ ehd; ghf;fpak;khsplk; ,J ehs; tiu xg;gilf;ftpy;iy/nkw;go ghf;fpak;khs; ,d;W tiu ehd; jhdk; bfhLj;j brhj;ij Rthjpdk;vLj;Jf; bfhs;s tpy;iy/ ehd; vGjpf; bfhLj;jJ rhpapy;iy vd;Wjw;nghJ bjhpate;J me;j jhd brl;oy;bkz;il ,g;gj;jpuk; K:yk; uj;Jbra;J tpl;nld;/ ,dp fPH;f;fz;l brhj;Jf;fspd; kPJ vd; Fkhuj;jpghf;fpak;khs; chpik nfhu ve;jtpj mjpfhuKk; fpilahJ/ ,e;j gj;jpuk;ehd; fPH;f;fz;l rhl;rpfs; Kd;dpiyapy; vGjpf; itj;j jhd brl;oy;bkz;l;uj;J gj;jpuk;.”As stated above, the above said recitals in the cancellation deedhave been accepted by Thanjiammal as true. A close reading of theabove said recitals makes it abundantly clear that only becauseThanjiammal came to know that she has no absolute right over theproperty settled by her in favour of Pachiammal but yet she hadexecuted the settlement deed in respect of a property over which she https://hcservices.ecourts.gov.in/hcservices/ had no right she had executed the cancellation deed cancelling thesettlement deed dated 12.07.1990. Thus it is clear that Thanjiammalwas fully aware that she was executing the settlement deed. Thereason for cancellation as stated in the cancellation deed is thatshe had no right over the property. The Settlement deed has not beencancelled for the reason that the settlement deed was obtained fromher by Pachiammal by exercising undue influence, coercion and fraud.Even in her testimony Thanjiammal has not stated that undueinfluence, coercion or fraud was exercised on her. Kannan-theattestor of the settlement deed who has been examined as a witnesshas stated that the contents of the settlement deed were read over toThanjiammal and only after knowing the contents of the document shehad put her thumb impressions. In her evidence Thanjiammal hascategorically stated that there is no enmity between her and theattestor Kannan and their relationship is smooth and therefore thereis absolutely no reason to disbelieve the testimony of Kannan. Aspointed out earlier, it is the evidence of Thanjiammal that on comingto know about the execution of the settlement deed in favour of herdaughter her relationship with her son Subramanian became strainedand only after the cancellation deed was executed their relationshipbecame smooth. Pointing out the above said testimony of Thanjiammal,the learned counsel for the respondent submitted that the saidevidence is proof enough to hold that the settlement deed came to becanceled only at the instance of Subramanian and to smoothen therelationship between Thanjiammal and Subramanian. In the light ofthe above said testimony of Thanjiammal the said contention meritsacceptance. Hence it has to be held that the appellant had notproved the allegation of undue influence, coercion and fraud in theexecution of the settlement deed by Thanjiammal. The legalpresumption arising by virtue of the fact that the settlement deed isa registered document has not been rebutted by the appellant.Therefore the finding of the trial court in this aspect is erroneousand the finding of the lower appellate court has to be upheld andaccordingly upheld.21. Both the Courts below have found that the property allottedunder the partition deed in favour of Thanjiammal and her son-Subramanian is in their joint possession and the same had not beendivided and therefore the trial court has observed that even assumingthat the settlement deed is valid, the only remedy available toPachiammal is to file a suit for partition. The lower appellatecourt though upheld the validity of the settlement deed consideringthe above said aspects has held that Pachiammal had to file only asuit for partition and get possession of the property settled on her.When it is found that the settlement deed is valid, Pachiammalautomatically becomes the co-owner of the suit property along withSubramanian. As laid down in AIR 1996 Bombay 36 (Nagpur Bench)(referred to supra). Subramanian, being a co-owner in possession, isnot entitled to injunction against the other co-owner, namely,Pachiammal. Therefore the decree of the trial court granting https://hcservices.ecourts.gov.in/hcservices/ injunction in favour of Subramanian has been rightly set-aside by thelower appellate court. 22. In the considered view of this Court the first substantialquestion of law framed in the above second appeals cannot strictly becalled as substantial question of law at all. O.S.No.231 of 1990 wasfiled by Subramanian on 25.07.1990 and the revocation deed(Cancellation deed) dated 30.07.1990 has been executed by Thanjiammalsubsequently and thus the question of challenging the revocation deedprior to the filing of the suit by Surbamanian did not arise at all.Therefore the said question of law is answered against the appellantand in favour of the respondent. It has already been held thatSubramanian being a co-owner is not entitled to get an injunction inrespect of the joint property against the other co-owner Pachiammaland therefore the second and third questions of law are also answeredagainst the appellant and in favour of the respondent.23. For the above said reasons, the above second appeals fail andthe same are dismissed. However, considering the relationship of theparties to the litigation there shall be no order as to cost throughout. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srk/kkTo1. The Subordinate Judge, Tiruvannamalai,2. The District Munsif, Polur, Tiruvannamalai-Sambuvarayar District.3. The Section Officer, VR Section,High Court, Madras.+ 2 CCs to Mr.M.Sriram, Advocate SR NO 68545+ 1 CC To Mr. T.R.Rajaraman, Advocate SR NO.689856Second Appeal Nos.481 and 482 of 1995vrk[co]gp/28.11.