Madras High Court
K.P.S.Palanivel Rajan vs K.P.S.Alagu Deepa on 22 April, 2026
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD) No.112 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.04.2026
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
A.S.(MD)No.112 of 2025
and
C.M.P.No.4656 of 2025
K.P.S.Palanivel Rajan : Appellant/2nd defendant
Vs.
1. K.P.S.Alagu Deepa .. 1st Respondent/1st defendant
2. P.Uma Shanthi .. 2nd Respondent/Plaintiff
3. A.Deepthi Sanjana
4. A.Susila Priya .. Respondents 3 & 4 /defendants 3 & 4
PRAYER: This Appeal Suit is filed under Section 96 r/w.Order 41 Rule
1 of the Code of Civil Procedure, to call for the records and set aside the
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judgement and decree, dated 31.10.2023 passed in O.S.No.222 of 2021,
by the learned Additional District and Sessions Court, Periyakulam,
Theni and allow this appeal with costs throughout.
For Appellant : Mr.J.Lakshmi Shankar
For Respondents : Mr.T.C.S.Thillai Nayagam – for R1
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
This Appeal had been filed by the 2nd defendant,
challenging the judgment and decree dated 31.10.2023, passed in
O.S.No.222 of 2021, on the file of the learned Additional District and
Sessions Court, Periyakulam, Theni.
2. The present appellant is the 2nd defendant. The plaintiff,
sister of the defendants filed a suit for partition and separate possession
of the suit schedule property.
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3. The case of the plaintiff is that one Thiru.K.Pannai
Sethuraman, who is the father of the plaintiff, an Advocate by profession
married one Tmt.S.Rajeswari. Out of the said wedlock, the plaintiff, 2 nd
defendant and one Vasanthi were born. The defendant 3 and 4 are the
children to Vasanthi, since deceased. Smt.Rajeshwari, wife of Pannai
Sethuraman predeceased her husband on 17.01.1981. Subsequently,
Thiru.Pannai Sethuraman, married one Leelavathy on 01.07.1981 and
out of the said wedlock, the 1st defendant, Alagu Deepa was born.
4. The plaintiff contends that after the death of his first wife,
Rajeshwari, his father approached his father-in-law, Thiru.Sivalingam
Chettiar, seeking financial assistance for the purchase of agricultural
lands. In response, the said Sivalingam Chettiar mortgaged his properties
situated at Devadanapatti Village under a registered Mortgage Deed
bearing No.3172 of 1981 dated 14.09.1981 and raised a sum of
Rs.20,000/-, which has been marked as Ex.A1. The said amount was
handed over to Pannai Sethuraman.
5. Out of the said funds, Pannai Sethuraman purchased four
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items of agricultural lands comprised in various survey numbers situated
at Kamakapatti Village, Genguvarpatti Firka, Periyakulam Taluk, Theni
District, under four separate sale deeds bearing Nos.3193, 3194, 3195,
and 3196, all dated 14.09.1981, which are marked as Exs.A2 to A5. Since
the properties were acquired from and out of the funds provided by the
plaintiff’s grandfather, namely Sivalingam Chettiar, the said properties
are claimed to be joint family properties.
6. Subsequently, Thiru.Pannai Sethuraman executed an
unregistered Gift Settlement Deed dated 30.06.1982 in favour of the
plaintiff, the first defendant, and her sister Vasanthi in respect of the suit
schedule properties. It is further stated that the plaintiff and defendants 2
to 4 alone are the descendants of Sivalingam Chettiar, whereas the first
defendant has no relationship whatsoever with him. This fact is said to be
evidenced by an undertaking dated 30.06.1982 executed by Thiru.Pannai
Sethuraman in his own handwriting in the presence of witnesses. As the
original of the said undertaking is lost or untraceable, a copy has been
produced and marked as Ex.A6. Thiru.Pannai Sethuraman died on
19.06.2021. It is stated that all other properties belonging to him had
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already been settled in favour of his children, except the suit schedule
properties, which were left out. Hence, the present suit has been filed by
the plaintiff seeking partition and separate possession of the suit schedule
properties.
7. According to the plaintiff, he is entitled to a 1/3rd share in
the suit properties, and defendants 2 to 4 are each entitled to 1/3rd share.
Accordingly, the suit has been filed for partition and separate possession.
8. Defendants 2 to 4 have filed written statements supporting
the claim of the plaintiff. The first defendant alone has contested the suit.
9. The 1st defendant, in her written statement, has denied the
contention of the plaintiff that the suit properties were purchased out of
financial assistance obtained by Thiru.Sivalingam Chettiyar by
mortgaging his property on 14.09.1981. According to the 1st defendant,
Thiru. Pannai Sethuraman was a practicing Advocate and had also served
as a Member of the Legislative Assembly from 1977 to 1980. He was a
well-established and affluent person who had been purchasing several
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properties since 1955 and was a reputed advocate at Periyakulam. Hence,
there was no necessity for him to borrow money from any person for the
purchase of the suit schedule properties.
10. It is further contended that the recitals in Exs. A2 to A5
clearly establish that the said properties were purchased out of his own
independent funds. After the demise of his first wife Rajeshwari, the said
Pannai Sethuraman married the mother of the 1st defendant,
Tmt.Leelavathi. She took care of the children born through the first wife
as her own and performed their marriages in a grand manner by
providing sufficient jewels, sridhanam, and incurring substantial
expenses. Out of his love and affection towards his second wife,
Tmt.Leelavathi, Thiru.Pannai Sethuraman executed a registered Gift
Settlement Deed dated 21.06.1989 in her favour in respect of suit
schedule properties (a), (b), (c), and (d), along with another property.
From the date of settlement, Tmt. Leelavathi became the absolute owner
of the said properties, took possession thereof, mutated the revenue
records in her name, and enjoyed the same exclusively by personal
cultivation.
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11. The 1st defendant, after her marriage with Mr.Senthil
Kumar, has been residing at Chennai and subsequently moved to the
United States of America in November 2010, where she continues to
reside with her husband.
12. It is further stated that Thiru.Pannai Sethuraman
executed a registered Will dated 27.10.2010, whereby he bequeathed his
self-acquired properties among his children born through his first wife,
namely the plaintiff, the 2nd defendant, and another daughter Vasanthi, as
well as the 1st defendant born through his second wife, Tmt. Leelavathi.
13. Under the said Will : The “A” Schedule properties,
comprising five items including house sites, coconut thopes, and
agricultural lands in Thenkarai, Periyakulam, Thamaraikulam, and
Adukkam Village, were bequeathed to the 2nd defendant. The “B”
Schedule properties, consisting of a house site measuring 1701 sq.ft at
Thenkarai South Car Street, Periyakulam, and 7.50 acres of hill thope at
Adukkam Village, were allotted to the plaintiff, Tmt.Umashanthi. The
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“C” Schedule properties, similar in nature, were bequeathed to
Tmt.Vasanthi, mother of defendants 3 and 4. The “D” Schedule property,
comprising 10 acres and 15 cents of land at Adukkam Village,
Kodaikanal, was allotted to the 1st defendant.
14. Upon the death of Thiru.Pannai Sethuraman on
19.06.2021, the Will came into effect, and the plaintiff and defendants
became absolute owners of their respective properties and have been in
exclusive possession and enjoyment thereof.
15. The 1st defendant further contends that the present suit
for partition has been filed by the plaintiff at the instigation of the 2nd
defendant with an ulterior motive to usurp the properties of this
defendant. Hence, the plaintiff is not entitled to the relief of partition as
prayed for in the plaint and has no right whatsoever to seek such relief.
16. The learned trial Court, had framed the following issues
for consideration:-
1.Whether the plaintiff is entitled for 1/3rd share
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2. Whether the plaintiff is entitled for permanent
injunction ?
17. Before the trial Court, on behalf of the plaintiff P.W.1 to
P.W.3 were examined and Ex.A.1 to A9 were marked. On the side of the
defendants D.W.1 and D.W.2 were examined and Ex.B1 to Ex.B.10 were
marked.
18. On considering all the oral and documentary evidence,
the trial Court dismissed the suit. Challenging the said judgement and
decree, the 2nd defendant has filed this appeal.
19. During the course of arguments, the learned counsel for
the appellant submitted that the suit properties covered under Ex.A2 to
Ex.A5 were purchased out of the funds generated from Ex.A1. It was
further contended that Ex.A1 and Ex.A2 to Ex.A5, all dated 14.09.1981,
were registered on the same day before the Sub-Registrar and formed
part of a single transaction.
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20. The learned counsel also pointed out that Thiru Pannai
Sethuraman, in the recitals of the gift deed, had stated that the properties
were purchased not only from his own funds but also from the funds
derived from his first wife. However, this aspect was not taken into
consideration by the trial Court.
21. Further, the learned counsel for the appellant contended
that Ex.A6 constitutes a family arrangement and, therefore, does not
require compulsory registration, placing reliance on the relevant judicial
precedents.
22. The learned counsel for the appellant further stated that
Ex.A1 is family arrangement and therefore it need not be registered and
in support of his contention he rely upon the judgment reported in Kale
and Others Vs. Deputy Director of Consolidation and Others reported
in 1976(3) SCC 119, wherein it has been held as follows :
“44.In view of our finding that the family settlement
did not contravene any provision of the law but was a
legally valid and binding settlement in accordance with the
law, the view of Respondent No. 1 that it was against the10/34
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A.S.(MD) No.112 of 2025provisions of the law was clearly wrong on a point of law
and could not be sustained. Similarly the view of the High
Court that the compromise required registration was also
wrong in view of the clear fact that the mutation petition
filed before the Assistant Commissioner did not embody the
terms of the family arrangement but was merely in the
nature of a memorandum meant for the information of the
Court. The High Court further in law in not giving effect to
the doctrine of estoppel which is always applied whenever
any party to the valid family settlement tries to assail i The
High Court further erred in not considering the fact that
even if the family arrangement was not registered it could
be used for a collateral purpose, namely, for the purpose of
showing the nature and character o possession of the
parties in pursuance of the family settlement and a o for
the purpose of applying the rule of estoppel which followed
from the conduct of the parties who having taken benefit
under the settlement keep their mouths shut for full seven
years and later try to resile from the settlement. In Shyam
Sunder and others v. Siya Ram and another (1) it was
clearly held by the Allahabad High Court that the
compromise could have been taken into consideration as a
piece of evidence even if it was not registered or for that
matter as an evidence of an antecedent title. The High
Court observed as follows:
“The decision in Ram Gopal v. Tulshi Ram,-AIR 1928
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A.S.(MD) No.112 of 2025All. 641 (FB)-is clear that such a recital can be relied upon
as a piece of evidence.
It is clear, therefore, that the compromise can be
taken into consideration as a piece of evidence. x x x To sum
up, therefore, we are of the view that the compromise could
have been relied upon as an admission of antecedent title.””
23. He also relied upon the judgment rendered in Jansirani
and Others Vs. G.Loganathan & Others reported in 2007 Supreme
(Mad) 1208 = 2007 (4) MLJ 485, which reads as follows :
“EVIDENCE Partition Deed Section 63(2), Section
65 The court discussed the admissibility of a xerox copy of
a partition deed and its compliance with the Evidence Act.
The court held that the xerox copy falls within the
definition of secondary evidence under Section 63(2) and
can be admitted without the need for comparison with the
original. It also ruled that the requirement of notice under
Section 65(a) was unnecessary as the defendants denied the
existence of the original document. The document was
deemed to be a partition deed requiring registration and
stamp, making it inadmissible for any purpose other than
applying the rule of estoppel.”
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24. The rejection of Ex.A1 by the trial Court for the reason
that it is inadmissible due to want of registration, is unsustainable in law
and liable to be set aside. Since the property purchased from out of the
funds borrowed from the maternal uncle of Pannai Sethuraman ,the Court
ought to have considered that Thiru.Pannai Sethuraman only stood in the
character of trustee in respect of the suit properties vis-a-vis his children
through his first wife, and by his commitment under Ex. A6, he is clearly
estopped and has no right to execute Ex.B2 or Ex.B5 settlement deeds in
favour of the second wife.
25. It is further contended that the 1st defendant relied upon
the recitals in Ex. B1 Will to be a final word on the matter about the self-
acquisition of the suit properties by Thiru.Pannai Sethuraman without
considering that, the beneficiary under the Will can always ignore any
portion of the disposition which is invalid and there is no question of
estoppel.
26. It is not proved that Smt.Leelavathy was in possession
and enjoyment of the property under Ex.A9. The said Pannai Sethuraman
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cancelled Ex.B2 Settlement Deed, since it has not been acted upon and
such a cancellation was not challenged by Leelavathy, in the manner
known to law.
27. Ex. B5 Settlement Deed is not proved in accordance with
Section 68 of the Indian Evidence Act and such a document was not at all
pleaded in the written statement, since the plaintiff proved Ex. B5
settlement deed in the manner known to law, the assumption that Ex.A9
cancellation is invalid and Ex.B2 settlement is valid, is totally without
basis and it is factually and legally unsustainable. It is alleged that Ex. B6
has been executed by Leelavathi Sethuraman much before Ex.B5 came in
to force as such Leelavathi had no right over the property as on
01.08.2008 and Ex. B2 has already been cancelled under Ex.A9 and it is
alleged that said Leelavathy executed a Will on 01.08.2008 but the same
was not properly proved as per Section 63(c) of the Indian succession
Act and Section 68 of the Indian Evidence Act.
28. D.W.2, one of the attesting witness in the alleged will
has not been clearly established by stating that the executor identified the
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attest or when he attested the Will. D.W.2 is giving false evidence and he
is an assistant of the document writer and cooked up witness.
29. He relied upon the judgment in Govindan Chettiar Vs.
Akilandam @ Seethalakshmi and 24 Others reported in 1997 (3) LW
673, which reads as follows :
“28. I have already said that the attesting witnesses
in this case have not identified the signature of the de-
ceased, nor the attestation by them. They only give a
general statement about the procedure of attestation. When
the signatures of the testator and the attestors are not
identified, it cannot be said that the Will is properly
proved. In 1996-II-M.L.J 596 (Suguna Bai v. Muniammal
@ Dhanalakshmi and others), I had oc- casion to consider
a similar question. In paragraph 18 of the judgment, I
have held thus:-
“Even though D.W 5 speaks that he is an attestor
when he was examined, I do not find that the Will is shown
to him and the signatures of the various attestors or the
testator are identified by him. It is seen that Ex. B-8 was
marked through D.W 3, the third defendant, wherein the
Court noted “subject to proof”. I do not find that any step15/34
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A.S.(MD) No.112 of 2025has been taken by the third defendant (appellant) to have
the same proved in accor- dance with law, i.e, when
attestation to a Will is sought to be proved, naturally, the
witness must say that the document contains either the
thumb impression or signature of the attestor, and that he
has also signed in token of the attestation. He must identify
the signature as seen in the document..”
(Emphasis Supplied)
In this case, the Will is marked through D.W 1 who
is the propounder. The Will is not even shown to D.W 2 or
D.W 3. Along with the same, the statement in the written
statement that the deceased was senile even from 1961 also
gains importance. Being business partners of the
appellant, they were interested in him.”
30. He also relied upon the judgment in Kamalam (died)
and Others Vs. Sasikala and Others reported in 2024 SCC Online Mad
12290 wherein it has been held as follows :
“26. Let me first take up the Will of Late.Pechinanna
Asari. D.W.3 is one of the attesting witnesses to the said
Will, Ex.B-12. D.W.3 claims that he knows Pechianna
Asari for over 15 years. He has stated in his chief
examination that he read the Will and that the testator16/34
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A.S.(MD) No.112 of 2025signed the Will in his presence and thereafter, he attested
the Will, then the other attesting witness, Chinnasamy
signed in his presence. He has further stated that the
Testator was in a sound and disposing state of mind at the
time of execution of the Will.
27. The evidence of D.W.3 falls way short of the
requirements under Section 63(c) of the Indian Succession
Act. D.W.3 does not state that the Will was signed in the
presence of both the witnesses and that the Testator saw
the other attesting witness sign the Will. He only states that
he saw the other attesting witness sign the Will. Therefore,
the only attesting witness examined to prove due execution
of the Will, Ex.B-12 has failed to adduce necessary and
satisfactory evidence to establish that the Testator
executed the Will as required under the law.
28. Coming to the Will, Ex.B-13, executed by Late
P.Ramathal, admittedly none of the attesting witnesses
were examined before the Trial Court. D.W.4, one,
Arulprakash has been examined to prove due execution
and attestation of Ex.B-13. D.W.4 was an identifying
witness before the Registrar concerned, at the time of
registration of the Will. He has stated that he knew
P.Ramathal for about 20 years. He has only spoken about
the registration formalities being done in his presence.
Curiously, the sad Will of P.Ramathal is dated 27.11.1996
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and the said Will is said to have been attested by two
witnesses, Sangeetha and Boopathi. The said Boopathi has
also signed as one of the identifying witnesses at the
Registrar’s office on 10.12.1996. Even though D.W.4 has
also been elaborately cross examined on the side of the
Plaintiffs as well as defendants 1 and 5, first and foremost,
it needs to be seen as to what is the evidentiary value of his
statements, in chief and cross. Admittedly, D.W.4 is not an
attesting witness to the will, Ex.B-13.”
and prayed to allow the appeal and set aside the judgment and decree of
the trial Court.
31. The learned counsel for the first respondent submitted
that the plaintiff, who instituted the suit, has not preferred any appeal as
against the decree and judgment of the trial Court. In contrast, the
present appeal has been filed by the appellant, who was arrayed as the
second defendant, and it is contended that the suit itself was instituted at
his instigation.
32. It is further submitted that during the course of trial, the
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appellant/second defendant had filed a counter statement admitting the
averments contained in the plaint. However, he did not choose to enter
the witness box, nor did he adduce any evidence to substantiate the case
of the plaintiff. In such circumstances, his failure to step into the witness
box and support the plaintiff’s case warrants the drawing of an adverse
inference against him.
33. In this regard, reliance is placed on the principle
embodied under Section 114 illustration (g) of the Indian Evidence Act,
and on the judgment of the Hon’ble Supreme Court in Iswar Bhai C.
Patel vs. Harihar Behera and Others (Civil Appeal No.1417 of 1982,
dated 16.03.1999), wherein it has been held as follows:
“It is significant that while the plaintiffs put the
defendant in the witness-box, they themselves had not
the courage to go into the witness-box. Plaintiffs were
the best persons to give evidence,and their failure to
go into the witness-box must, in the circumstances, go
strongly against them.”
34. The learned counsel further contended that the defendant
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advanced arguments beyond the scope of pleadings in the written
statement, which are liable to be eschewed in law.
35. It is also argued that the plaintiff relied upon Ex.A6,
which is only a xerox copy. The plaintiff failed to lay the necessary
foundation for the admissibility of secondary evidence by proving that
the original document was either lost or in the custody of the defendants
despite due diligence. Therefore, Ex.A6 is not admissible in evidence.
Moreover, the said document contains several corrections and
interpolations, and in the absence of the original document, it is not
possible to ascertain whether such alterations existed in the original.
36. Further, it is submitted that Ex.A6, being a Gift
Settlement Deed, has not complied with the mandatory requirements
under Section 17 of the Registration Act and Section 123 of the Transfer
of Property Act, and hence it is invalid in the eye of law.
37. During cross-examination, the plaintiff admitted that the
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defendants are in possession of the suit property. The first defendant has
also produced documentary evidence, such as patta passbook and
property tax receipts, to establish possession and enjoyment.
38. The learned counsel further contended that one Pannai
Sethuraman had executed Ex.B10, a Gift Deed dated 21.06.1989, in
favour of his second wife, Smt. Leelavathy, clearly stating that the
property purchased in the year 1981 was his self-acquired property. The
said deed also explicitly declares that the gift is irrevocable, and
possession was handed over on the same day.
39. Subsequently, the said Leelavathy obtained patta (Ex.B3)
and paid property tax (Ex.B4), thereby evidencing continuous possession
and enjoyment of the property.
40. It is further argued that the cancellation deed (Ex.B9) is
invalid in law, as the executant has no unilateral right to cancel an
irrevocable settlement deed.
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41. Additionally, Thiru.Pannai Sethuraman executed a Will
dated 27.10.2010 (Ex.B1) and another Will (Ex.B2) in favour of his
children, including the plaintiff, the second defendant, and one Vasanthi,
wherein he has also referred to the earlier gift executed in favour of
Leelavathy.
42. Reliance was placed on the judgment in Govindaraju
(died) and others Vs. Rathinammal and other reported in 2004 (3) CTC 9,
which reads as follows :
“12. But, in this case, learned counsel for the
appellants has come forward with the submission that
since the 1st appellant/plaintiff denied the execution of
Ex.B1, the 2nd defendant cannot rely on the Proviso to
Sec.68 of the Act and so she cannot rely on Ex.B1 to
establish her title, as the same has not been proved by
examining one of the attestors as contemplated under Sec.
68 of the Act. If the averments in the plaint connote the
specific denial as contemplated under the Proviso to Sec.
68 of the Acf, the 2nd defendant cannot rely on Ex.B1 to
establish her title as she did not examine any one of the22/34
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A.S.(MD) No.112 of 2025attestors.
13. So it has to be appreciated whether the 1st
appellant/plaintiff has come forward with any such
“specific denial”. So we have to appreciate the averments
in the plaint regarding the denial, which are as follows:
“5. It was no wonder, therefore, that Murugesh fell
an unwilling prey to their designs and succumbed
ultimately to the pressure tactics. An involuntary document
dated 15.9.1973 was extorted from Murugesh by the
second defendant, purporting to be an irrevocable
settlement of the suit properties.
6. It is submitted that the said document was void ab
initio. It was not acted upon. Possession was not given to
the second defendant thereunder. Murugesh continued to
be the owner and was in possession. The second defendant
too did not accept the gift. It was, as stated earlier, the
result of threat, intimidation coercion and undue influence
and was in the same legal position as a voidable contract.”
Except these vague statements, there is no other
averment in the plaint with respect to execution of Ex.B1
by Murugesh. So it is for us to decide whether such
pleading in the plaint can be construed as “Specific
denial”. “specific” means expressly, distinctly or definitely
and not an ambiguous or vague stage. It should be
something over and above a general denial as some
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meaning must be given to the word “specific”. What has to
be specifically denied or disputed is the execution of the
document or the attestation.
14. The learned Judges of the Calcutta High Court
in the decision in Nund Kishore Lal v. Kanee Ram Tewary,
ILR 29 Cal. 355, while dealing with the statement in the
written statement that the execution of the deed had been
brought about by fraud of the plaintiff, held that the same
was not a specific denial of execution of the document.”
43. In support of his contention, the learned counsel relied upon the
judgment in N.P.Saseendran Vs. N.P.Ponnamma and Others reported in 2025 (4) CTC
80, which reads as follows :
“Transfer of Property Act, 1882 (4 of 1882),
Sections 122 & 126 Stamp Act, 1899 (2 of 1899), Article
33 Kerala Stamp Act, 1959 (Ker. Act 17 of 1959), Article
31 – Gift – Settlement – Essentials Present transfer of
Ownership Acceptance Revocation Registered document
executed by Father in favour of Daughter conveying
Ownership of Suit property – Settlor reserved Life interest
in favour of himself and his wife Also reserved right to
receive Income and Mortgage upto limited extent No
restriction on Daughter’s right to construct House and
hold property Held, test is whether disposition operates in
praesenti Vesting of Ownership in praesenti evident from24/34
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A.S.(MD) No.112 of 2025recitals – Transfer in praesenti with limited reservation
amounts to valid Gift/Settlement – Delivery of possession
not condition sine qua non to validate Gift – Execution
and registration by Donee/Settlee constitutes valid
acceptance Unilateral cancellation impermissible unless
Deed contains conditions for Revocation laid down in K.
Balakrishnan v. K. Kamalam, followed rightly construed
as Settlement by High Court and concurrent finding that
document is a Will, held, erroneous Appeal dismissed,
Judgment passed by High Court confirmed. (Paras 11,
11.3, 14.1, 15.1, 15.2 & 18).”and hence, the unilateral cancellation deed executed under Ex.B9 is not a
valid document.
44. He further stated in the cancellation deed Ex.A9 he
acknowledges the possession and enjoyment of the property by
Smt.Leelavathy for more than 20 years. It further reveals that
subsequently, on 01.08.2008 Leelavathi executed a Will in favour of the
1st defendant anticipating the mischief of 2nd defendant and the same
also proved by examining a witness. Therefore, the trial Court rightly
dismissed the suit which needs no interference and the appeal is liable to
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be dismissed.
45. Heard the learned counsel on either side and perused the
materials available on record.
46. According to the appellant, the suit properties were
purchased out of funds allegedly provided by the father of the plaintiff,
Thiru Pannai Sethuraman, through his maternal uncle, who was also his
father-in-law, in the year 1981.
47. It is not in dispute that the suit properties were purchased
in the name of Thiru Pannai Sethuraman under Exs.A2 to A5 in the year
1981. However, the crucial question is whether those properties were
purchased out of funds borrowed from his father-in-law,
Thiru.Sivalingam Chettiyar. The appellant has failed to establish the
same.
48. A careful perusal of Exs.A2 to A5 clearly shows that the
recitals attribute the source of funds to Thiru Pannai Sethuraman himself.
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There is no reference whatsoever indicating that the consideration flowed
from his father-in-law. Further, Ex.A1, the alleged mortgage deed, does
not support the appellant’s case. It does not state that the mortgage was
executed for the purpose of purchasing the suit properties in the name of
the grandchildren. On the contrary, it merely recites that the mortgage
was executed to discharge debts and meet expenses.
49. Further, both oral and documentary evidence establish
that Thiru Pannai Sethuraman was not a person of limited means. He was
a practicing advocate and had been purchasing several properties from as
early as 1955. Therefore, the contention that he was compelled to borrow
funds for purchasing the suit properties is not substantiated.
50. It is also relevant to note the surrounding circumstances.
The first wife of Thiru.Pannai Sethuraman died on 17.01.1981. He
subsequently married one Leelavathi on 01.07.1981. The suit properties
were purchased only thereafter, on 14.09.1981. If indeed the father-in-
law intended to purchase properties for the benefit of his grandchildren,
nothing prevented him from purchasing the same directly in their names,
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appointing their father as guardian. The alleged indirect mode suggested
by the appellant appears unnatural and improbable.
51. The appellant further relies on Ex.A6, said to be a
settlement deed executed by Thiru.Pannai Sethuraman in favour of his
children through the first wife. However, the original of Ex.A1 has not
been produced. The explanation that it is lost or untraceable has not been
satisfactorily proved. In the absence of proper foundation for non-
production of the original, the secondary evidence (xerox copy) is
inadmissible in law.
52. Moreover, a perusal of the copy of Ex.A6 reveals
interpolations and corrections. In the absence of the original document, it
is impossible to ascertain whether such alterations were made at the time
of execution or subsequently, thereby casting serious doubt on its
genuineness.
53. The attesting witness examined as PW2 also does not
support the appellant’s case. Though he attempted to depose regarding
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the alleged source of funds, in cross-examination he admitted that he had
no knowledge about the execution of Ex.A1. He is closely related to the
first wife of Thiru Pannai Sethuraman and is therefore an interested
witness. His evidence does not inspire confidence.
54. Further, PW2 stated that he handed over a copy of the
alleged settlement deed to the plaintiff at the time of her marriage,
indicating that the plaintiff had knowledge of the document as early as
1981–82. However, despite such knowledge, she neither took steps to
take possession of the property nor attempted to mutate the revenue
records in her name, nor sought to obtain the original document. This
conduct is inconsistent with her claim.
55. Even assuming Ex.A6 to be a settlement deed, it must
satisfy the mandatory requirements under Sections 122 and 123 of the
Transfer of Property Act, 1882. A valid gift of immovable property must
be effected by a registered instrument and must be accepted by the donee
during the lifetime of the donor.
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56. In the present case, the alleged settlement deed is
unregistered and the acceptance of the gift has not been proved.
Therefore, the document is invalid in law. Further, Section 17 of the
Registration Act mandates compulsory registration of instruments of gift
of immovable property. The executor being a practicing advocate, it is
highly improbable that he would execute an unregistered gift deed, fully
aware of its legal invalidity.
57. On the other hand, the evidence on record clearly
establishes that Thiru Pannai Sethuraman executed a registered gift deed
(Ex.B2) in favour of his second wife, Leelavathi, as early as 1989. The
donee accepted the gift, took possession, and her name was duly mutated
in the revenue records. She remained in continuous possession and
enjoyment of the property.
58. Though a cancellation deed (Ex.A9) is said to have been
executed later, such unilateral cancellation of a completed gift is void in
law, particularly after possession has been delivered and accepted.
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59. Subsequently, under Ex.B5 dated 09.07.2009,
Thiru.Pannai Sethuraman executed another settlement deed in favour of
Leelavathi, expressly acknowledging that the earlier cancellation was
invalid and reaffirming her possession and enjoyment.
60. Further, under Ex.B1, a Will executed in 2010, he clearly
referred to the earlier gift in favour of Leelavathi and bequeathed other
properties to his children, including the appellant. The parties have
accepted the Will and have taken possession of the properties allotted to
them. Having accepted the Will, they are estopped from disputing the
earlier settlement in favour of Leelavathi.
61. The plaintiff, despite having knowledge of the Will, has
neither challenged it nor even referred to it in the plaint. Her case that the
suit properties were omitted from partition is therefore unsustainable.
62. Even with respect to the Will executed by Leelavathi
(Ex.B6) in favour of the first respondent, the same has been duly proved
through an attesting witness. Minor discrepancies in the evidence of the
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witness do not invalidate the Will when its execution and attestation are
otherwise established.
63. In view of the above, the plaintiff has failed to prove her
case. On the contrary, the defendants have established valid title and
possession through registered documents. The Trial Court has rightly
dismissed the suit, and the same does not warrant any interference.
64. In the result, this Appeal Suit is dismissed, by confirming
the judgement and decree, dated 31.10.2023 passed in O.S.No.222 of
2021, by the learned Additional District and Sessions Court,
Periyakulam, Theni. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
(G.R.S., J.) (R.P., J.)
22.04.2026
Index :Yes/No
Internet :Yes/No
RM
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To
1. The Additional District and Sessions Court,
Periyakulam, Theni.
Copy to
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
and
R.POORNIMA, J.
RM
Judgment made in
A.S.(MD)No.112 of 2025
22.04.2026
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