T. Raja, J.@mdashThe present Second Appeal has been filed by the plaintiff, who have filed the suit for bare injunction before the learned trial court, as has lost her case before learned first Additional District Munsif Court. The brief facts leading to the second appeal is as under:
The suit property, originally belonged to the father of the plaintiff and the first defendant namely Veerappagounder. But, when the father of both the plaintiff and the first defendant, celebrated the marriage of the first defendant, as per the caste custom and usage he has also provided sufficient seethanam, namely, ''seer varisai. But subsequently, when the plaintiffs marriage took place, the father of the plaintiff was not able to provide any seethanam, ''seer varisai'', hence, the said Veerappagounder out of free will and sound mind of disposition and also without any undue influence executed a settlement deed dated 23.01.1998, settling the suit property in favour of the plaintiff. The delivery of possession of the suit property was also given to the plaintiff. The plaintiffs father had half right in the well in R.S. No. 74/7 and the balance half share belonging to one Karuppanagounder, was also sold by his 4 sons to the plaintiff on 29.08.1997. This is how the suit property has been enjoyed, along with the well, by the plaintiff. The plaintiffs father and mother also lived with the plaintiff/ the appellant herein. Whileso, the defendants demanded some money from the plaintiff on 20.09.1999. As the plaintiff pleaded inability, they proclaimed that they would not permit the plaintiff to cultivate the land and as it was difficult for the plaintiff to continue in the said property, he filed a suit for permanent injunction.
2. The prayer was opposed by the defendants/ respondents herein. It was also the case of the defendants/ respondents that at the time of executing the settlement deed, her father Veerappagounder was not in sound and disposing state of mind for a period of more than 2 years, due to his illness. Therefore, the alleged settlement deed dated 23.01.1998 was a created, false and forged document. It was also the case of the defendants that both the plaintiff and the first defendant are entitled to have half share in the suit property and at no point of time the defendants demanded any money from the plaintiff. Therefore, pleading that the allegation is baseless, further contended, the averments made in the plaint that the defendants threatened the plaintiff, with a threat that they would not allow or permit the plaintiff to cultivate the land is far from truth. With these submissions, they prayed that the suit filed for permanent injunction is liable to be dismissed.
3. Under these circumstances, the matter was taken up for trial. The learned trial court framed the following issues:
1. Whether the suit properties belonged to the father of the plaintiff and the 1st defendant, Veerappagounder?
2. Whether the settlement deed dated 23.01.1998 is created and false?
3. Whether there is cause of action for this suit?
4. Whether the will executed by Chennimalaigounder was acted upon and the plaintiff and the 1st defendant got the property in the above Will?
5. Whether the plaintiff i.e. entitled to permanent injunction?
6. To what relief?
4. On considering the arguments advanced by both sides, the trial court came to the conclusion that the suit property was rightly given to the plaintiff through the settlement deed dated 23.01.1998, Ex. A2.
5. Admitting the submissions made by the first defendant in the cross examination, that the suit property was enjoyed by her father Veerappagounder till his death, which goes together with the case of the plaintiff that the suit property which belongs to her father, concluded that the first defendant has failed to prove that Ex. A2 has been created and false. Again holding that there is no evidence to show that the first defendant is a co-owner in respect of the suit property, brushes aside the case of the first defendant on the question of enjoying co-ownership in the suit property. When there was a finding of the trial court that the first defendant is not the co-owner, a first appeal was filed before the Principal Sub Court at Erode in A.S. No. 5 of 2003. The learned first Appellate Court came to the conclusion that since the first defendant has disputed the validity of Ex. A2 the plaintiff appellant cannot maintain the suit without the relief of declaration and further held that the father, of the plaintiff and the first defendant, Veerappagounder had no right in the suit property. Therefore he is not competent to execute Ex. A2 sale deed. That apart, as against the finding of the trial court, it is also held that the first defendant is also a joint owner of the suit property on the basis of Ex. B1 and B2. Aggrieved by the same the present second appeal came to be filed by the plaintiff/ appellant.
6. This court at the time of entertaining the second appeal framed the following substantial questions of law for consideration.
1. Whether a suit for bare injunction is maintainable without asking for a declaratory relief?
2. Whether the purchase of the property by the plaintiff from an insolvent, which order was subsequently annulled by the court of competent jurisdiction, would be invalid?
7. While addressing on the substantial questions of law, Mr. D. Krishna Kumar, learned counsel for the plaintiff/ appellant would submit that the plaintiff and the first defendant are daughters of Veerappagounder. The second defendant is the husband of the first defendant. The plaintiff being younger sister of the first defendant, their father Veerappagounder celebrated the marriage of the first defendant, which is the first marriage in the family as per the caste, custom and usage by providing seervarisai/ dowry. But after some time when the plaintiff''s marriage was to be solemnised, her father Veerappagounder was not able to provide any dowry. Therefore, when he was in sound disposition of mind, out of very will without any undue influence executed a gift settlement deed dated 23.01.1998 in place of seervarisai, namely dowry and delivered the possession of the suit property in favour of the plaintiff/ appellant herein. When the execution of the gift deed Ex. A2 was rightly proved by oral evidence adduced by PW-2, who being one of the attesters of Ex. A2 deposed that at the time of execution of Ex. A2 the plaintiff/ appellant and her husband were living in the suit property along with Veerappagounder, the learned trial court also accepting the evidence of PW-1 and PW-2 along with the admission of DW-1 that the father Veerappagounder was also enjoying the suit property by staying with the plaintiff/ appellant decreed the suit holding that the plaintiff/ appellant has proved the case for grant of decree for permanent injunction. Further, when the defendant also attempted to make out a case that the gift deed Ex. A2 was a created, false and forged document, having clearly admitted that she only left the plaintiff and her husband with her parents to live in the suit property and taking advantage of this the plaintiff and her husband got Ex. A2 gift settlement deed executed in favour of the plaintiff/ appellant, without producing any evidence to disprove the case of the plaintiff/ appellant regarding the execution of Ex. A2 gift deed, the learned Appellate court gravely erred in reaching a conclusion that the first defendant is also a co-owner of the suit property and on that basis wrongly held that the plaintiff should have filed a suit for declaration. When there is no evidence to show that the first defendant is the co-owner in respect of the suit property and the claim of the plaintiff/ appellant that the suit property under Ex. A2 gift deed was executed by her father has already been acted upon by allowing the plaintiff and her husband to live in the suit property along with her father Veerappagounder, the question of co-ownership does not arrive in favour of the first defendant. This aspect has been completely overlooked by the first Appellate court. Further, when the plaintiff/ appellant has filed the suit for permanent injunction against her own elder sister, the first defendant, on the basis of gift deed Ex. A2 dated 23.01.1998 executed by the father of the plaintiff and the first defendant, Veerappagounder the only test needs to be proved by the plaintiff/ appellant is whether the plaintiff/ appellant has been in physical possession of the suit property from the date of execution of the gift deed dated 23.01.1998 till the filing of the suit. When the defendant respondent herein has categorically admitted the physical possession of the plaintiff/ appellant in the suit property by making an unambiguous admission before the trial court that she only left the plaintiff and her husband in possession of the suit property, taking advantage of the same the plaintiff and her husband executed the deed in favour of her, the lower court has rightly decreed the suit that the plaintiff has passed the test of proving the basic requirement of decree for permanent injunction. Therefore, the learned first Appellate court ought not to have reversed the finding by holding that the plaintiff/ appellant should have filed a suit for declaration. This approach of the learned first Appellate court is against the settled principle that the plaintiff/ appellant can only succeed on the strength of her case and not in any weakness found in the defendant''s case. Further, it can be seen that the suit for possession of immovable property has been properly proved and the defendant only failed to disprove the execution of the gift deed Ex. A1. As this aspect has been completely overlooked by the learned Appellate Court, the impugned judgment and decree passed by the learned first Appellate court is liable to be interfered with.
8. In reply, the learned counsel appearing for the defendant/ respondent would submit that when the plaintiff and the first defendant are daughters of Veerappagounder, who is said to have executed the gift deed Ex. A1 dated 23.01.1998 in favour of the plaintiff, the first defendant challenged the correctness of the execution of the gift deed Ex. A1. Pleading that it was not only a fabricated, but a sham and nominal document. Therefore, when the plaintiff asked for permanent injunction on the basis of gift deed Ex. Al said to have been executed by her father Veerappagounder. the first and foremost duty of the plaintiff/ appellant was to file a suit for declaration and consequential injunction. As the plaintiff/ appellant has not filed a suit for declaration and had asked for only permanent injunction restraining the first defendant from interfering with the possession of the suit property, the learned first Appellate Court holding that the plaintiff and the first defendant are daughters of Veerappagounder reached a conclusion that the first defendant being elder sister of plaintiff is also having 1/2 share in the suit property. Therefore no error can be found fault with in the impugned judgment which holds that the suit filed for permanent injunction without a declaration is non-maintainable.
9. These arguments are not appealed to this court for two reasons. Firstly, the plaintiff and the first defendant are daughters of Veerappagounder. Whileso, the first defendant herself has admitted the fact that the plaintiff was put into the possession of the suit property along with her father Veerappagounder, which goes to prove that the plaintiff/ appellant has been in physical possession of the suit property. Secondly, when the plaintiff claimed the execution of the gift deed Ex. Al by her father for the reason that the plaintiff being younger daughter at the time of her marriage her father having spent all his money to give ''Seer'' and dowry to her elder sister the first defendant, having left with no other source, at the time of marriage in lieu of ''seer''/ dowry the father Veerappagounder has executed the gift deed Ex. Al in favour of the plaintiff/ appellant, it is for the first defendant to disprove the execution of this gift deed. Eventhough, a stand was taken by the defendant that the gift deed Ex. Al claimed to have been executed by Veerappagounder in favour of the plaintiff was sham and nominal, fraudulently created, the learned trial Court by rightly framing an issue as to whether the settlement deed dated 23.01.1998 was created and false, answered the question on the validity of the deed 23.01.1998 in favour of the plaintiff/ appellant. Therefore, it is not open to the defendant to say that the plaintiff/ appellant should have filed a suit for declaration. The learned trial Court in support of its finding held that it has been stated by father of the first defendant that he has not provided sufficient dowry, and therefore out of love and affection he came forward to give the property in favour of the plaintiff. When such a clear finding has been given, on appraisal of evidence on both sides upon the validity of the gift deed, in my considered opinion, the learned first Appellate court has clearly fallen in error with the judgment of the trial court, by giving a finding that the plaintiff should have filed a suit for declaration. Therefore, the first question of substantial question of law is answered in favour of the plaintiff/ appellant.
10. In respect of the second substantial question of law, it was pleaded that eventhough the father of the plaintiff and the first defendant was adjudged as insolvent in IP No. 29/71, the said adjudication was subsequently annulled on 15.12.1984. After the order of adjudication was annulled, the legal character of an insolvent stands absolved and he no longer suffers any disqualification of being insolvent. When the father of the plaintiff/ appellant and the first defendant has already got an order dated 15.12.1984 annulling his character of insolvent, Veerappagounder was lawfully entitled to execute the release deed in favour of the plaintiff/ appellant. Ignoring this significant aspect, the learned Appellate court has proceeded as though the father of the plaintiff/ appellant and the first defendant was a perpetual insolvent and therefore, he was not entitled to release the gift deed Ex. A2. In reply the learned counsel for the respondent would submit that it was the admitted case of the plaintiff/ appellant that the father Veerappagounder suffers the disqualification of being un-discharged insolvent. Whileso, the order passed in I.P. No. 29/71 adjudging that the father Veerappagounder as insolvent, goes to show that he is not entitled to release the gift deed in favour of the plaintiff/ appellant. On that basis learned Appellate court has held that the plaintiff/ appellant cannot be the absolute owner of the suit property. With the result, the first defendant should also be considered as a co-owner. This argument also suffers, merit for the reason that when the father Veerappagounder suffers an order of disqualification of being an insolvent in I.P. No. 29/71 dated 21.02.1971, his application No. 737/78 to discharge him from the character of insolvent was dismissed. Subsequently, order dated 15.12.1984 clearly shows that the adjudication of Veerappagounder was annulled. Therefore, after the annulment of insolvency, the said Veerappagounder has executed Ex. A2 dated 23.01.1998 the original settlement deed in favour of the plaintiff/ appellant. This aspect was also independently considered in detail by the learned trial Court by giving a reasoned finding that the gift deed executed by Veerappagounder in favour of the plaintiff / appellant when he was in sound mind and body. Further, the first defendant also failed to prove that Ex. A2 has been created and false. Therefore, my answer to the second question of substantial question of law is in favour of the plaintiff/ appellant. This court finding that the learned Appellate court has ignored the material evidence and thereby acted on no evidence to reverse the well reasoned judgment of the trial court, is inclined to interfere with the same. Accordingly, by setting aside the impugned judgment and decree of the lower Appellate court restores the judgment of the trial court. The Second Appeal is therefore allowed and the Judgment and Decree passed in O.S. No. 442 of 1999 on 15.02.2001 by the I Additional District Munsif Court, Erode, is restored. The C.M.Ps are closed. However, there is no order as to costs.
