S THIAGARAJAN Vs. SARASWATHY KITTU

JUDGEMENT

(1.) THE first defendant in O.S.No. 54 of 1986 on the file of the Sub-Judge, Villupuram is the appellant in this appeal; the plaintiff in that suit is the first respondent herein and defendants 2 to 7 are the other respondents in this appeal. It is stated before this Court at the time of argument that the second defendant is no more and her legal representatives are the appellant and the first respondent herein. However the fact remains that no steps have been taken to have the legal representatives of the deceased second respondent recorded in this appeal. In this judgment the parties to the appeal will hereinafter be referred to as the plaintiff and the defendants. THE suit was filed for declaration of title; for an injunction restraining the first and the second defendants from alienating the suit property; restraining defendants 3, 4, 6 and 7 from paying the rent to defendants 1 and 2 and for other incidental reliefs. On merits the learned trial Judge granted a declaratory decree as prayed for, but however denied the plaintiff the relief of injunction as prayed for by her in the manner referred to above. Aggrieved over the declaratory decree granted by the learned trial Judge, the first defendant is before this court in this appeal. As far as that portion of the decree of the lower court negativing the relief of injunction, the plaintiff had filed the cross objections in the pending appeal.

(2.) THE facts on which the plaintiff went before the lower court can be briefly stated as follows: One Subbarayan (since deceased) is the husband of the second defendant. THE plaintiff is their daughter and the first defendant is their son. Defendants 3 to 7 are the tenants occupying various portions of the house property described in Schedule "A" to the plaint. Schedule "A" property originally belonged to one Chellam. He executed a registered "will" on 20.7. 1915 in favour of Subbarayan and his brother Gopal. Gopal died leaving behind his sons Muthukrishnan and Haridoss. As the sons of Gopal were very young at the time of their father's death, both of them came into the care and custody of the second defendant and her husband. On 30.11.1975 there was a partition, to which Subbarayan, the second defendant and the sons of Gopal were parties. Schedule "A" property shown in the plaint is described as Schedule "B" property in that partition deed. That property namely Schedule "B" property in the partition deed was allotted to the second defendant. Schedule "A" and Schedule "C" properties to the partition deed were allotted to Subbarayan and the heirs of Gopal respectively. Since the date of partition the sharers were enjoying their properties separately. Schedule "B" property in the plaint (landed property) was purchased by the second defendant with her own funds. She is therefore the absolute owner of the "B" Schedule property besides the "A" Schedule property. On 22.10.1982 the second defendant executed a settlement deed in favour of the plaintiff out of love and affection in respect of the suit properties. THE second defendant continued to live with the plaintiff after the death of her husband. THE settlement deed was duly executed, validly attested and acted upon. After the settlement deed, the plaintiff executed a mortgage deed, in favour of one Veerapan in respect of "B" Schedule property on 29.10.1984. THE plaintiff accepted the settlement deed and the same was acted upon. THE first defendant has nothing to do with the suit properties and he is denying the plaintiff's title to the same. He is also the attempting to sell the suit properties. Having regard to the relationship between the parties, the first and the second defendants were asked by the plaintiff to collect the rent from defendants 3 to 7. In respect of the "A" Schedule property the tenant were inducted into possession by the second defendant even before the settlement deed. THE 5th defendant is paying rent now to the plaintiff. Defendants 3, 4, 6 and 7 are refusing to pay the rent to the plaintiff colluding with the first defendant. THE first defendant had wrongfully sold the electric motor pump set installed in the "B" Schedule property. THE first defendant by exercising undue influence, coercion and threat seems to have obtained a revocation deed dated 5.9.1983 from the second defendant revoking the settlement deed in favour of the plaintiff. THE revocation deed is not worth the paper on which it is prepared. THE plaintiff issued a notice on 25.9.1983 to the defendants. All the notices except the notices addressed to the second defendant were managed to be returned. THE first defendant alone without the knowledge of the second defendant received the notice and sent a reply with full of false and untenable allegations. Hence the suit for the reliefs prayed for as mentioned in the earlier portion of the judgment.

(3.) MRS. Hema Sampath, learned counsel for the first respondent would contend that inasmuch as the second defendant filed a written statement and gave evidence categorically admitting the due execution of the settlement deed in favour of the plaintiff, nothing further survives for consideration before the court regarding the truth and validity of the settlement deed. The settlement deed, according to the learned counsel for the first respondent, is a simple settlement deed. No legal grounds enumerated under section 126 of the Transfer or Property Act are available in this case, which would enable the second defendant to revoke the settlement deed. According to her the settlement deed was duly executed, attested and accepted by the donee and acted upon by her. Therefore the settlement deed in favour of the plaintiff had become complete and from the date of execution of the same, the second defendant had completely divested herself of all her rights in the said property and the settlement deed is incapable of being revoked. As far as the maintainability of the suit without a prayer for possession, the learned counsel for the plaintiff would contend that section 34 of the Specific Relief Act has no application to the case on hand. According to her, it is not established that the first defendant is the owner of the suit properties. On the other hand the house property is in the occupation of defendants 3 to 7 as tenants. Inasmuch as possession is with the plaintiff and possession of defendants 3 to 7 being in the nature of tenants, the plaintiff need not ask for the relief of possession and it is enough if the plaintiff files a suit for a mere declaration of title only. The collection of rents from the tenants is a permissive one and in any event the collection of rents is not in exercise of any right contrary to the interest of the plaintiff.