Malikkunnikar Begum v. Sameemmunudeen

JUDGMENT The suit in O.S.No.65 of 2019 was filed by the plaintiff Sameemmunudeen contending that the Cancellation Deed, dated 02.08.2018 was executed to cancel the Settlement Deed dated 28.04.2017 as null and void with a consequential prayer for permanent injunction not disturb the peaceful possession of the plaintiff by the first defendant and also direction to the first defendant not to encumber the property. Further direction against the Registration Department restraining them from registering the property.

¶2The plaintiff is the 1st respondent herein, the 1st defendant is the appellant herein, and the 2nd and 3rd defendants are 2nd and 3rd respondents herein. For the sake of convenience, the parties are referred as plaintiff and the defendants as per the ranking in the suit.

¶3The plaintiff and the first defendant are son and mother respectively. The brief facts as stated in the suit are that the suit property originally belong to one Ismath Begum wife of Mohamed Maideen and daughter of Mohamed Kasim. The 1st defendant had purchased the said property through sale deed dated 28.08.1985, thereafter she was in possession and enjoyment of the property. The plaintiff is the second son of the first defendant. Since the plaintiff, plaintiff's father and brothers went aboard, their earnings were handed over to the plaintiff's mother (1st defendant in the suit) and she had purchased the properties through the said money. Since all were residing aboard the 1st defendant was supervising and managing the properties. In the suit property the 1st defendant mother had put up construction in the said property. The 1st defendant mother has executed a settlement deed dated 28.04.2017 in favour of the plaintiff and handed over the possession to the plaintiff. The contention of the plaintiff son is that in order to do business, the plaintiff had requested the mother to pay Rs.3,00,000/-, but the mother sought to execute mortgage for the said amount. Hence the plaintiff without reading the document had affixed signature in the document. Later on, only it came to his knowledge that the said document is not mortgage deed, but cancellation deed. Through the said cancellation deed dated 02.08.2018, the settlement deed dated 28.04.2017 was cancelled. Hence the contention of the plaintiff son is that the said property is settled in his favour, therefore, the mother has no right to cancel the settlement deed. Considering the pleadings and evidence the suit was partly allowed, wherein it was held by the Trial Court that the cancellation is not valid, the 1st defendant was restrained from interfering in peaceful and enjoyment of the suit property by the plaintiff and also the 1st defendant was restrained from further encumbering the suit property. But the injunction against the 2nd defendant is declined.

¶4The reasoning stated by the Trial Court is extracted hereunder: 32).vdNt mlkhd fld; Mtzk; vd;w vz;zj;jpy; thjp th.rh.M.2 Mtzk; 1-k; gpujpthjpf;F vOjpnfhLj;Js;shH vd;W nrhy;tJ ek;Gk; tifapy; mikatpy;iy. 33).th.rh.M.2 Mtzk; thjpia Vkhw;wp ngwg;gl;Ls;sJ vd;gij epiyehl;Ltjw;Fk; thjp jtwptpl;lhH. t.rh.M.2 Mtzk; thjpahy;> 1-k; gpujpthjp ngaUf;F vOjpf;nfhLf;fg;gl;Ls;sJ. jhthnrhj;ij nghWj;J thjp ngaUf;F vOjpnfhLf;fg;gl;Ls;sJ. jhthnrhj;ij nghWj;J thjp ngaUf;F 1-k; gpujpthjp th.rh.M.1 nrl;by;nkz;l; Mtzk; %yk; 28.04.2017 Njjpapy; jhthnrhj;ij nghWj;J chpik khw;wk; nra;JnfhLj;jhH. jhthnrhj;jpd; RthjPdk; 1-k; gpujpthjpahy; thjp trk; xg;gilf;fg;gl;Ls;sJ th.rh.M.3 gl;lhtpy; ,Ue;J njhpa tUfpwJ. Nkw;nrhd;d gl;lh efy;

th.rh.M.2

nrl;by;nkz;l;

uj;J gj;jpuj;Jld; ,izf;fg;gl;Ls;sJ. vdNt jhthnrhj;jpd; RthjPdk; th.rh.M.1 nrl;by;nkz;l; Mtzj;jpd; mbg;gilapy; thjp mile;J jdJ ngaUf;F gl;lh ngaHkhw;wk; nra;J jdpj;j epiyapy; mDgtk; nra;J tUfpwhH vd;gij thjp epiyehl;b cs;shH. thjp ngaUf;F t.rh.M.3 gl;lh ngaHkhw;wk; Vw;gl;Ls;sij 1-k; gpujpthjp jug;gpy; kWf;fg;gltpy;iy. th.rh.M.2 nrl;by;nkz;l; uj;J Mtzj;Jld; thjp ngaUf;F cs;s gl;lhit ,izj;J uj;J Mtzk; gjpT nra;ag;gl;Ls;sJ. vdNt> jhthnrhj;jpd; RthjPdj;ij thjp mile;J thjp ngaUf;F gl;lh ngaHkhw;wk; Vw;gl;Ls;sJ vd;gij thjp epiyehl;b nka;gpj;Js;sh?.

34). vdNt th.rh.M.1 nrl;by;nkz;l; Mtzk; rll; gg; b G +?j;jpahfptpl;lJ. nrlb; y;nkzl; ; Mtzj;jpd;gb jhthnrhj;jpDila chpik> mf;fiw> RthjPdk; Mfpait 1-k; gpujpthjpaplkpUe;J thjp ngaUfF; khw;wkhfp jhthnrhj;jij 1-k; gpujpthjp gl;lh khww; k; nra;J mDgtk; nra;J tUfpwh?. jhthnrhj;jpy; 1-k; gpujpthjp FbapUe;J tUfpd;wNghjpYk; thjpapDila jhah? vd;w epiyapNyNa 1-k; gpujpthjp trpj;J tUfpwh?.

¶35NkYk; t.rh.M.2 nrl;by;nkz;l; uj;J Mtzj;jpy; jhthnrhj;jpd; RthjPdk; thjptrk; xg;gilf;fg;gltpy;iy vd;w fhuzj;jpwf; hf th.rh.M.1 nrl;by;nkz;l; Mtzk; rl;lg;gb K?ik milatpy;iy vdTk;> mjd; fhuzkhf th.rh.M.1 nrl;by;nkz;l;L Mtzk; uj;J nraa; g;gLfpwJ vdTk;> th.rh.M.2 nrlb; y;nkzl; ; uj;J Mtzj;jpy; thrfq;fs; $wgg; ltpyi; y. 1-k; gpujpthjp thjpaplk; Nfl;Lf;nfhz;ljd;Nghpy; thjp rk;kjpj;J nfhzl; jhy; nrlb; y;nkz;l; Mtzk; uj;J nra;fpNwd; vd v?jgg; l;Ls;sJ. jhthnrhj;jpDila chpik> chpik%yk;> mf;fiw Mfpait th.rh.M.1 %yk; 1-k; gpujpthjpaplkpUe;J thjp ngaUfF; 28.04.2017 Njjpapy; khw;wkhfptpl;lJ. th.rh.M.1 Mtzj;jpw;F gpwF jhthnrhj;jpy; 1-k; gpujpthjpfF; chpik> chpik%yk;> mf;fiw Mfpait fpilahJ. NkYk; t.rh.M.1 nrl;by;nkzl; ; Mtzj;jpy; me;j Mtzj;ij uj;J nra;Ak; chpikia 1-k; gpujpthjp jf;fitj;J (Reserve) me;j Mtzk; v?jpf;nfhLff; g;gltpy;iy. vdNt jhthnrhj;jpDila chpik> chpik%yk;> mf;fiw Mfpait midj;Jk; thjp ngaUfF; khw;wkhfp cs;s epiyapy; jhthnrhj;ij nghWj;J ve;jtpj chpikAk; mf;fiwAk; ,y;yhj 1-k; gpujpthjpfF; Mjuthf nrl;by;nkzl; ; uj;J Mtzk; ngWtjwF; 1-k; gpujpthjpfF; rl;lg;G+Htkhd jFjp ,y;iy. th.rh.M.1 nrl;by;nkz;l; Mtzj;jpd; %yk; chpik khw;wk; mile;j thjpAk;> 1-k; gpujpthjpAk; NrHe;J th.rh.M.2 Mtzj;jpy; ifnaOj;J nra;Js;sdH. thjpAk;> 1-k; gpujpthjpAk; NrHe;J th.rh.M.2 Mtzj;jpy; ifnaOj;J nra;Js;sdH vd;w xNu fhuzj;jpdhy; kl;Lk; th.rh.M.1 %yk; thjpf;F Vw;gl;Ls;s chpik khw;wk; uj;J Mtzj;jpd; %ykhf 1-k; gpujpthjpf;F kPz;Lk; chpik khw;wk; rl;lg;gb Vw;glhJ. th.rh.M.1 Mtzj;ij uj;J nra;tjw;fhd chpikia 1-k; gpujpthjp jf;fitj;J nfhs;shj fhuzj;jpdhy; th.rh.M.1 Mtzj;ij uj;J nra;tjw;F ePjpkd;wk; %ykhf kl;LNk 1-k; gpujpthjp eltbf;if vLj;J ,Uf;f Ntz;Lk;. Mjw;F khwhf thjpAk;> 1-k; gpujpthjpAk; NrHe;J vOjpnfhLj;j th.rh.M.2 nrl;by;nkz;l; uj;J Mtzk; rl;lg;gb nry;yj;jf;fJ my;y vd;gJ njhpatUfpwJ.

¶5Aggrieved over the same the present first appeal is filed. The point for consideration is when the cancellation deed is not a unilateral cancellation and when the plaintiff had affixed his signature in the cancellation deed, whether the cancellation deed is valid in the eye of law?

¶6The contention of the plaintiff is that the mother had misrepresented that the document is only mortgage deed and the plaintiff being the son had believed the words of the mother and had affixed the signature. It is seen that the plaintiff is aged about 42 years at the time of filing suit and has affixed his signature in the plaint. On perusal of the signature the same would indicate the plaintiff is not illiterate. Further the mother had misrepresented is only a bare statement, there are no evidence produced to prove the same. Therefore, the plea of the plaintiff is not acceptable.

¶7When the 1st defendant along with the plaintiff had executed the cancellation deed, the same is not unilateral cancellation. The cancellation is based on the request of the mother and the son had agreed, thereafter both the mother and the son have executed a cancellation deed. Hence the claim of the plaintiff son that the mother had cancelled without his consent is incorrect and unbelievable.

¶8The Trial Court has stated that the Exhibit A2 is not believable. Further, the settlement document was not handed over to the son, hence, it is not believable and the settlement was not acted. Such a reasoning cannot be cited, when both the parties have jointly executed the cancellation deed. The Court need not go into all these factors which are claimed by plaintiff.

¶9This Court is of the considered opinion that the judgment and decree passed by the Trial Court is erroneous and the same is not legally sustainable. Hence, the impugned judgment and decree is set aside and the present appeal suit is allowed. The cancellation deed, dated 02.08.2018, is in force and the possession shall be handed over to the mother within a period of two months from the date of receipt of a copy of this judgment. No costs. Consequently, connected miscellaneous petitions are closed.

29.07.2024 NCC : Yes / No (1/2) Index : Yes / No Internet : Yes Tmg To

¶1The Principal District Court, Ramanathapuram.

¶2The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

3.The Sub Registrar, Joint Sub Registrar No.2, Vandikara Street, Ramanathapuram Town, Ramanathapuram Taluk, Ramanathapuram District.

4.The District Registrar, District Registrar Office, Vandikara Street, Ramanathapuram Town, Ramanathapuram Taluk, Ramanathapuram District. S.SRIMATHY

, J.,

Tmg

A.S.(MD)No.66 and 153 of 2023 of 2011

29.07.2024 (1/2)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.07.2024 CORAM: THE HONOURABLE MRS.JUSTICE S.SRIMATHY and C.M.P.(MD).Nos.4033 and 4096 of 2023 Malikkunnikar Begum ...Appellant Vs. 1.Sameemmunudeen 2.The Sub Registrar, Joint Sub Registrar No.2, Vandikara Street, Ramanathapuram Town, Ramanathapuram Taluk, Ramanathapuram District. 3.The District Registrar, District Registrar Office, Vandikara Street, Ramanathapuram Town, Ramanathapuram Taluk, Ramanathapuram District. ...Respondents PRAYER: This Appeal Suit filed under Order 41 Rule 1 read with Section 96 of C.P.C., against the decree and judgment dated 03.01.2022 passed in the suit in O.S.No.65 of 2019 on the file of the Principal District Court, Ramanathapuram. For Appellant : Mr.M.Ajmal Khan Senior Counsel for M/s.Ajmal Associates For R1 : Mr.S.A.Ajmal Khan For R2 & R3 : Mr.P.T.Thiraviam Government Advocate *****