M ESAKKI AMMAL Vs. G LAKSHMI AMMAL

JUDGEMENT

(1.) THE appellant Esakki Ammal is the daughter-in-law of the respondent Lakshmi Ammal. THE appellant herein filed O.S.No.1106 of 2004, on the file of the I Additional District Munsif, Tirunelveli for perpetual bare injunction against the respondent herein not to interfere with her alleged exclusive possession and enjoyment of the suit property. THE suit property is said to be consisting of a house site having an extent of 3318.4375 square feet, comprised in Town Survey No.1366 in Block 4, Ward 1, Palayamkottai, four residential portions constructed therein bearing door Nos.6, 6A, 6B and 6C respectively.

(2.) ADMITTEDLY, the respondent herein was the absolute owner of the suit property and was in possession and enjoyment of the same before she executed a gift settlement deed under Ex.A.1 on 14.10.1991. She executed the said registered gift settlement deed in favour of her younger son G.Mariappan, who was the husband of the appellant herein. While giving the property by way of a gift to her younger son, she retained a right to be in possession of the suit property jointly with the said Mariappan till her life time. A restriction on the right of the donee (Mariappan) was also provided in the settlement deed to the effect that the donee would not have a right to alienate or encumber the subject matter of the gift during the life time of the donor, namely the respondent herein and thus she had ensured her right of joint enjoyment of the suit property with her son Mariappan. All these facts are not disputed but on the other hand admitted by both the parties.

(3.) THE suit was resisted by the respondent herein, who was the sole defendant in the suit, by filing a written statement containing the following averments: THE appellant/plaintiff falsely claimed that Ex.A.1 settlement deed was not acted upon. On the other hand, even the plaint pleadings itself would show that the settlement effected under ex.A.1 was acted upon and only by virtue of Ex.A.1 settlement deed, Mariappan, husband of the appellant was able to let out some portions of the suit property to the tenants. THE settlement was irrevocable and the donor, the respondent herein had not reserved any right to revoke the settlement in the event of any contingencies. While so, the younger son of the respondent, who was the husband of the appellant was very critically ill after having been affected with cancer. Pointing out the critical condition of Mariappan and stating that they did not have sufficient funds to give him medical treatment, the appellant herein, her father and her brother pleaded with the respondent to raise funds by mortgaging the suit property, for which, the respondent also agreed. But the appellant, her father and her brother, by misrepresenting and playing a fraud upon the respondent, obtained signatures in the cancellation deed marked as Ex.A.2 and the settlement deed marked as Ex.A.3 and got them registered on one and the same day after making her to believe that she was executing a mortgage deed. THE said deeds, brought into existence by fraud could not have any validity in law and the appellant/plaintiff did not derive any title under them. As per the original settlement deed, namely Ex.A.1, the respondent (defendant) retained her right to be in joint possession with the donee, namely her son Mariappan till her life time. Since the donee, namely Mariappan predeceased the donor, namely the respondent/defendant, his interest did not survive on his death and from the date of death of the donee (Mariappan), the respondent became the absolute owner of the suit property. She is in exclusive possession and enjoyment of the house bearing door Nos.6 and 6A and she is in constructive possession of the other two door numbers as it was she, who rented out those houses and is collecting the rent for them from the tenants. THE suit for perpetual injunction without seeking declaration is also not maintainable.