(Prayer: Appeal Suit filed under Section 96 and Order XLI, Rule 1 of CPC to modify the judgment and decree dated 30.09.2022 passed by the learned Second Additional Judge, City Civil Court, Chennai in O.S. No.8156 of 2011, dismiss the suit in O.S. No.8156 of 2011 with costs.

Prayer: Appeal Suit filed under Section 96 and Order XLI, Rule 1 of CPC to set aside the judgment and decree dated 30.09.2022 passed in O.S. No.8156 of 2011 on the file of the II Additional Judge, City Civil Court, Chennai in respect of the reliefs of the past and future damages alone and grant the relief of past and future damages also to the appellant.

Prayer: Appeal Suit filed under Section 96 and Order XLI, Rule 1 of CPC to set aside the judgment and decree dated 30.09.2022 passed by the learned Second Additional Judge, City Civil Court, Chennai in O.S. No.3873 of 2014; Decree the suit in O.S. No.3873 of 2014 as prayed for, with costs.

Common Judgment:

The First Appeals in A.S. No.591 of 2022 and A.S. No.31 of 2023, arise out of a judgment and decree in O.S. No.8156 of 2011 and A.S. No.200 of 2023, arise out of a judgment and decree in O.S. No.3873 of 2014 on the file of the II Additional City Civil Court, Chennai.2. Pleadings in O.S. No.8156 of 2011.

The respondent in A.S. No.591 of 2022 as plaintiff filed O.S. No.8156 of 2011 for possession and damages for use and occupation in the past and future.

                          2.1. Plaint in brief:

                          One Raju Mudaliar, was the owner of the large extent of land in Varasiddhi Vinayagar Koil Street, Saidapet, having purchased the same under sale deed dated 17.01.1956. In and by a settlement deed dated 29.07.1958, the subject property was settled in favour of his eldest daughter, by name of Kannammal. The said Kannammal disposed of a portion of the property to one Mr.D.Jayaram Pillai and retained the remaining land, together with Mangalore Tiled Roof, which is the suit property. The said Kannammal died intestate on 12.10.1990, leaving behind her husband, Kannappa Mudaliar and three sons viz., Sambanda Mudaliar, Shanmuga Mudaliar and Nagaraja Mudaliar, who sold the property to one Prabhavathi Palani under sale deed dated 22.01.1992. The said Prabhavathi Palani subsequently settled the property in favour of her mother Mrs.Karunambal, by settlement deed dated 23.08.2002, who in turn settled the property to her son Mr.M.Kandasamy, who is the first defendant, vide settlement deed dated 20.09.2002.

                          2.2. The first defendant entered into an agreement of sale with the third defendant on 22.08.2005 under a registered agreement bearing Doc. No.1400 of 2005 and on the same day, the first defendant also executed a power of attorney in favour of the third defendant by a registered instrument, empowering the third defendant to deal with the suit property in any manner he may desire. The third defendant, as power agent, sold 302 sq.ft of undivided share, together with superstructure thereon in the suit property, to the second defendant under sale deed dated 23.11.2005. Subsequently, the third defendant and the second defendant jointly sold the entire suit property measuring 906.5 sq.ft in favour of the plaintiff under registered sale deed dated 08.07.2011.

                          2.3. The first defendant continued to be in possession of the suit property though he promised to hand over possession on registration of the document. The first defendant evaded to vacate and deliver possession to the plaintiff. The plaintiff issued a lawyers notice on 16.07.2011, the first defendant did not chose to reply to the same. The plaintiff is a bonafide purchaser for consideration and the first defendant is bound to deliver possession of the suit property to the plaintiff and also liable to pay damages for use and occupation, the defendants 2 and 3 are only added as formal parties.

                          2.4. Written Statement of defendants 4 and 5 in brief:

                          The defendants 4 and 5 who were impleaded pursuant to order dated 04.08.2018, pending the suit in I.A. No.2598 of 2017, filed their written statement, the same is briefly set out hereunder:-

                          2.5. One Karunambal, who settled the property in favour of her son, the first defendant, is the mother-in-law of the 4th defendant and paternal grandmother of the 5th defendant. The settlement deeds executed by Karunambal on 20.09.2002 is not an absolute settlement deed. There is a Will dated 29.09.2003 executed by the said Karunambal and therefore, the first defendant has no right to deal with the property and after his life time, his wife, the 4th defendant and daughter, 5th defendant are entitled to the property in entirety. The plaintiff is aware that the first defendant has not in possession of the suit property and it is only defendants 4 and 5 who were in possession. The first defendant has no right to agree to handover possession of the suit property which did not belonged to him. The defendants 4 and 5 were not issued any lawyer’s notice. The defendants have already moved the Original Side of the High Court in OP. Diary No.6 of 2016 for probate of the Will dated 29.09.2003. Even in the settlement deed executed by Karunambal, on 20.09.2002, she retained a life interest for herself and therefore, the settlement deed is actually only a Will which can take effect after the lifetime of Karunambal. The defendants 2 and 3 have colluded to alienate the property in favour of the plaintiff and the plaintiff does not derive any right, title or interest in the suit property.

                          2.6. The defendants 4 and 5 have already filed a suit in O.S. No.3873 of 2014 for declaration that the sale deeds dated 23.11.2005 and 08.07.2011 are null and void, invalid and not binding on these defendants 4 and 5 and for permanent injunction as well. The defendants 4 and 5 are not liable to vacate and handover vacant possession and they are also not liable to pay any damages.

                          2.7. The plaint in O.S. No.3873 of 2014:- the defendants 4 and 5 in O.S. No.8156 of 2011 are the plaintiffs in O.S. No.3873 of 2014. It is contended that the plaintiffs reside in the suit property and the plaintiffs claim valid right under Karunambal’s Will dated 29.09.2003, registered as Document No.48 of 2003. On the death of Karunambal, the Will has come into effect and steps have already been taken to seek probate of the Will before the High Court.

                          2.8. The settlement deed executed by Karunambal is not a valid document and by executing a Will on 29.09.2003, the said settlement deed has been nullified and cancelled, as in the settlement deed, Karunambal has reserved life interest and the said document, though styled as settlement deed is actually only a testamentary instrument. The plaintiffs, that is defendants 4 and 5 in O.S. No.8156 of 2010 also contend that the first defendant, son of Karunambal that is the husband and father of the defendants 4 and 5 was suffering from mental illness and it is for this reason that Karunambal herself cancelled the settlement deed and on the same day executed a registered Will. The first defendant is not in a position to understand what he is doing and he is under the care and custody of his nephew, one Suresh Babu. Taking advantage of the mental illness and condition of the first defendant, the Power of Attorney has been brought about and consequently, the sale deed in favour of the plaintiff came to be executed. It is the Will dated 29.09.2003 that would prevail and therefore, the first defendant has no right to deal with the property and the property after the lifetime of the first defendant and the first plaintiff, would vest with the second plaintiff. Therefore, the sale deeds dated 23.11.2005 and 08.07.2011 are sought to be declared as null and void-ab-initio, invalid and not binding on the suit property as well as the plaintiffs. The relief of permanent injunction to restrain defendants 2 to 4 from alienating and encumbering the suit property is also sought for.

                          2.9. Written Statement filed by the 4th defendant in O.S. No.3873 of 2014:

                          The 4th defendant in O.S. No.3873 of 2014 is none else than, the plaintiff in O.S.No.8156 of 2011. The defendant contends that the plaintiffs have no locus to file the suit as they are not the owners of the suit property. The suit is only a counter blast to O.S. No.8156 of 2011 and this is a collusive action between the defendants especially, the first defendant and the plaintiff. The alleged Will dated 29.09.2003 should have come into effect according to the plaintiffs on the demise of Karunambal on 28.08.2005 and the very fact that the plaintiffs never took any steps for 9 years, goes to show that the entire theory of Will and the first defendant not having any right to deal with the property are invented only to defend the suit for recovery of possession filed by the 4th defendant.

                          2.10. The allegation that the first defendant is not in a sound mind is denied. Karunambal did not have any right to cancel the settlement deed which was an irrevocable deed of settlement. Further, the suit is also barred by limitation. The 4th defendant has already filed a suit for recovery of possession and damages for use and occupation and in the suit, the first defendant has entered appearance by engaging a Counsel, which clearly goes to show that the first defendant is a san person, of sound mind. It is also contended that the claim based on unprobated Will cannot be maintained in a defence or in a suit for declaration. The suit has also been valued incorrectly and it is liable to be dismissed.

                          2.11.Based on the pleadings, the Trial Court framed the following issues:-

                          O.S.No.8156 of 2011:

                          (i) Whether the plaintiff is entitled for recovery of vacant possession of the plaint schedule property form the defendants?

                          (ii) Whether the plaintiff is entitled for past and future damages from the defendants as prayed for?

                          (iii) To what other relief the plaintiff is entitled to?

                          O.S. No.3873 of 2014:

                          (i) Whether the plaintiffs are entitled for declaration declaring the Sale Deed dated 23.11.2005 registered as Document No.1965 of 2005 is null, void, ab-initio, invalid and not binding on the suit property and plaintiffs?

                          (ii) Whether the plaintiffs are entitled for declaration declaring the Sale Deed 08.07.2011 registered as Document No.1566 of 2011 is null, void-ab-inito, invalid and not binding on the suit property and plaintiffs?

                          (iii) Whether the plaintiffs are entitled for permanent injunction restraining defendants 2 to 4 from alienating or encumbering or dealing with the suit property bearing New Door No.23, comprised in T.S. No.64/2, Block No.26, Saidapet Division?

                          (iv) Whether the plaintiffs are entitled for permanent injunction restraining defendants 2 to 4 from entering into the suit property bearing New Door No.23, comprised in T.S. No.64/2, Block No.26, Saidapet Division or interfering with the peaceful possession and enjoyment of the suit property by plaintiffs?

                          (v) To what other reliefs?

                          2.12. Trial:-

                           The defendants 1 to 3 in O.S. No.8156 of 2011 as well as defendants 1 to 3 in O.S. No.3873 of 2014 did not contest the respective suits and they were set exparte by the Trial Court on 18.01.2013 and 10.09.2014 respectively. The two suits were trying jointly and evidence was also recorded in O.S. No.3873 of 2014. On the side of the plaintiffs, P.W.1 to P.W.3 were examined and Ex.A1 to A15 were marked on the side of the defendants, D.W.1 to D.W.2 were examined and Ex.B1 to B24 were marked.

                          2.13. Decision of the Trial Court:

                          The Trial Court, after assessing the oral and documentary evidence, decreed O.S. No.8156 of 2011 and directed possession to be delivered to the plaintiff/4th defendant respectively in both the suits. However, the Trial Court dismissed the suit insofar as the claim for past and future damages. Consequently the suit in O.S. No.3873 of 2014 was dismissed.

3. Aggrieved by the dismissal of O.S. No.3873 of 2014, the plaintiffs have filed A.S. No.200 of 2023 and challenging the decree for recovery of possession, the appeal in A.S. No.591 of 2022 has been filed. As against the dis-allowing the claim for damages, the plaintiff in O.S. No.8156 of 2011, who is the 4th defendant in O.S. No.3873 of 2014, is the appellant has preferred A.S. No.31 of 2023.

4. I have heard B.K.Srinivasan, learned counsel for the appellants in A.S. No.591 of 2022 and 200 of 2023 and M.S.Mukunth, learned Senior Counsel for Mr.Titus Enock, for the contesting respondent, that is R1 in A.S. No.591 of 2022, R4 in A.S. No.200 of 2023 and appellant in A.S. No.31 of 2023, Mr.R.Ganesh, learned counsel has appeared for the first respondent in A.S. No.31 of 2023. The other respondents have not appeared in any of the three appeals. In fact, it would be relevant to note that the learned counsel for the first respondent in A.S. No.31 of 2023 was appointed by the Legal Aid at the instance of this Court as the first respondent is claimed to be a person of unsound mind.

5. For the sake of convenience, the appellants in A.S. No.591 of 2022 will be commonly referred to as the appellants in the discussion hereafter and the appellant in O.A. No.31 of 2023 will be hereinafter referred as the respondent for the purposes of discussion and to avoid confusion.

6. Arguments of Mr.B.K Srinivasan, learned counsel for the Appellants:-

Mr.B.K.Srinivasan, at the outset, states that the suit was filed only against the husband and father of the appellants Mr.Kandasamy and despite the appellants being in a possession, they were not made parties and it was only pursuant to their impleadment, they came on board and filed their written statement in the year 2014. The primordial submission of Mr.B.K.Srinivasan, leaned counsel for the appellants is that the first defendant is not mentally sound and he had no capacity to deal with the property by executing a power of attorney in the first place.

7. Secondly, the settlement deed executed by Karunambal is not a document ‘in presenti’, and a reading of the settlement deed leads to the only conclusion that the document is only a Will, though styled as a settlement deed and in such circumstances, the cancellation of the settlement deed and execution of a fresh Will on the same day, is perfectly in order. He would therefore contend that if the said argument is accepted, the respondent’s title cannot be sustained as the first defendant could not have executed a power of attorney empowering the power agent to deal with the property and therefore, the respondent cannot claim to be a bonafide purchaser for value. He would further contend that steps have already been taken for probating the Will before the Original Side of the High Court and it is only the Will dated 29.09.2003 which is the last Will and Testament of Karunambal, who died on 28.08.2005 and under the said Will, the first defendant Kandasamy did not have any power to deal with the suit property, excepting for a life interest reserved for himself and the first appellant, his wife and after their lifetime, the property has been bequeathed to the second appellant.

8. Mr.B.K.Srinivasan, learned counsel would also state that the cancellation deed executed by Karunambal on 29.09.2003 has not been challenged by the respondent and the same has become final and in such circumstances, the respondent cannot continue to base his title claim which is sourced to the settlement deed dated 20.09.2002, which has been subsequently cancelled, in and by deed dated 29.09.2003. Referring to evidence of P.W.2, one Indira Mohanraj, Mr.B.K.Srinivasan, learned counsel would contend that she was a witness to not only the cancellation deed Ex.A7 but also, subsequent Will dated 29.09.2003 in Ex.A8 and her evidence regarding due execution of these documents has not been rightly appreciated by the Trial Court.

9. He would also point out to the findings of the Trial Court that the date mentioned in Ex.A7 as 29.09.2003 was only an inadvertent error, in not changing the date in the computer before printing the document and admittedly, the document has been registered on 03.10.2003 before the Sub Registrar which is confirmed by the registration endorsement at the Sub Registrar Office. In such circumstances, he would contend that the Trial Court ought not to have made a mountain of a molehill. Even with regard to evidence of P.W.2, regarding corrections made in the Ex.A8 Will, Mr.B.K.Srinivasan, learned counsel would submit that when Ex.A15, certified copy of the same Will had been filed and it has been established that the very same corrections were available in the certified copy as well, nothing turned on the said corrections found in Ex.A8. He would further state that the Trial Court also erred in rendering a finding that the first appellant had full knowledge of the factum of her husband alienating the property from the beginning and would attack such finding as based on no evidence. He would also attack the findings of the Trial Court that the Will is surrounded by suspicious circumstances, in the absence of any such suspicions or circumstances even pleaded by the respondent, leave alone proving the same at trial.

10. As regards the unsoundness of mind of the first defendant Kandasamy from the year 2001, Mr.B.K.Srinivasan, learned counsel would submit that it was only taking advantage of his mental incapacity that the respondent has fraudulently and dishonestly brought about the agreement of sale as well as the Power of Attorney and subsequent to which alone the sale deed in favour of the contesting respondent has been executed. He would also state that the evidence of P.W.1 and Ex.A1 to A6 were ignored by the Trial Court, though they clearly proved mental infirmity of Kandasamy between 2003 and 2007. Referring to evidence of P.W.3 Doctor attached to the Government Institute of Mental Health, as well as Ex.A14 which was produced on subpoena and marked through P.W.3, Doctor Hemapriya, Mr.B.K.Srinivasan, learned counsel would submit that the said document and evidence of P.W.3 clinchingly proved that Kandasamy was suffering from serious mental illness and admittedly, he was undergoing treatment at the Government Institute of Mental Health, Kilpauk from 2003 to 2013 and was even admitted as an inpatient during the relevant period, viz., 2003 and 2007. He would therefore submit that the appellants had clearly established that Kandasamy was not of sound mind to enter into a valid and binding contract. The learned counsel attacks the findings of the Trial Court as being ignorant of the valuable evidence given by P.W.3, Doctor attached to the Government Institute of Mental Health, who gave evidence based on Ex.A14 which are medical records that cannot be suspected or doubted.

11. The learned counsel would also state that the respondent has also not been able to establish that the sale deeds that were challenged in the suit filed by the appellants viz., sale deed dated 23.11.2005 and 08.07.2011 were for valid consideration. The learned counsel also relies on the decision of Kokilamabal and others Vs. N.Raman, reported in CDJ 2005 SC 427, in support of the submission that the settlement deed in question executed by Karunambal is only a testamentary instrument and not a document ‘in presenti’.

12. The learned counsel, Mr.Ganesh, who appears for the alleged mentally unsound M.Kandasamy would reiterate the arguments of Mr.B.K.Srinivasan, learned counsel and submit that when the settlement deed has been cancelled validly by Karunambal even in the year 2003 and the power of attorney and the sale agreement were clearly invalid because, Kandasamy had only a life interest. He would further point out that the Encumbrance Certificate which is relied on is only for the period 01.01.1986 to 02.10.2003 and therefore, it would certainly not reflect the cancellation registered on 03.10.2003. The learned counsel would therefore pray for the appeals in A.S. No.591 of 2022 and 200 of 2023 being allowed and A.S. No.31 of 2023 to be dismissed.

13. Per contra, Mr.S.Mukunth, learned Senior Counsel appearing on behalf of Mr.Titus Enock, learned counsel for the contesting respondent would submit that the first defendant Kandasamy admittedly became entitled to the property under the settlement deed and if the settlement deed is intact, the alienation made by him would automatically be valid in law.

14. As regards the alleged cancellation of the settlement deed based upon which it is contended that no rights can be claimed by the first defendant and that under last Will and testament of Karunambal, the first defendant had only a life interest, Mr.Mukunth, learned Senior Counsel would submit that the cancellation of the settlement is not valid in the eye of law and therefore, it was not necessary for the respondent to challenge the same. He would further state that the mere fact that a life interest was retained by the settlor under the settlement deed, it would not render the document as a Will or testamentary instrument and not a transfer by way of settlement ‘in presenti’. Pointing out to the covenants in the settlement deed. Mr.S.Mukunth, learned Senior Counsel would state that the settlor has not reserved any right to revoke the said settlement deed and in such circumstances, Section 126 of the Transfer of Property Act, would squarely come into play and it is not open to even the settlor to revoke or annul the said settlement deed.

15. As regards the Will also, it is the contention of Mr.Mukunth, learned Senior Counsel that if the settlement is held to be valid and it is not to be treated or considered as a Will or a Testamentary Instrument, then the question of referring or placing any amount of reliance on the said Will executed by the settlor, subsequent to the cancellation of the settlement deed is of no avail. Even otherwise, it is the contention of Mr.Mukunth, learned Senior Counsel that as on date, the Will has not been probated before this Court and admittedly, the suit property is situated within the jurisdiction of the City of Chennai which requires the legatee/administrator or executor to obtain grant of probate or letters of administration under the Indian Succession Act, 1925. He would therefore state that admittedly, when the appellants admit that the probate OP is still in the SR stage, no reliance can be placed on the alleged Will executed by the settlor and the Will could not have been even relied on or exhibited before the Civil Court in view of the express bar under Section 57 r/w 213 of the Indian Succession Act, 1925. The learned Senior Counsel would rely on the decision of this Court in P.Gowrilingam Vs. P.Nesamani, reported in 2016 (2) L.W.327, for the said proposition.

16. With regard to the mental capacity of Mr.Kandasamy, the first defendant, learned Senior Counsel submits that the first defendant was represented by an Advocate before the Trial Court and therefore, there can be a presumption drawn that he was of sound mind, when he was able to engage services of an Advocate and also filed vakalat in the suit. Relying on Section 12 of the Indian Contract Act, Mr.S.Mukunth, learned Senior Counsel also contends that the burden was on the appellants to establish that the said Kandasamy was not of sound mind during the relevant period.

17. As regards the evidence of the Doctor from the Government Institute of Mental Health, Mr.S.Mukunth, learned Senior Counsel would submit that P.W.3’s evidence was only based on Ex.P14 and P.W.3 was not the Doctor who has treated the first defendant/Kandasamy. He would also question the appointment of one Sureshbabu, nephew of the first defendant, Kandasamy as the guardian when admittedly, the wife of Kandasamy, the first appellant is very much alive. Therefore, the contention of the learned Senior Counsel is that it is a clear case of collusion and set up, in order to defeat the valid purchase made by the contesting respondent.

18. As regards the argument of the learned counsel for the appellants that the contesting respondent is not a bonafide purchaser, Mr.S.Mukunth, learned Senior Counsel would submit that the question in a suit involving title dispute, the question of bonafides is alien and irrelevant. He would further state that it was not necessary for the contesting respondent to know the original owner in the first place especially, when Kandasamy had given a registered power of attorney and only after the said power of attorney, a registered instrument came into existence, the respondent has purchased the property in the year 2011. On the date of the purchase made by the contesting respondent, there was no legal embargo for the respondent to acquire the property. Mr.S.Mukunth, learned Senior Counsel also placed reliance on the decision of Hon’ble Supreme Court in P.K.Mohan Ram Vs. B.N.Ananthachari and others, reported in (2010) 4 SCC page 161, with regard to the nomenclature of the documents styled as a settlement deed vis-a-vis a testamentary instrument.

19.The learned Senior Counsel would further state that the Trial Court having come to a right conclusion that the petitioner was entitled to decree for recovery of possession, ought not to have dismissed the suit insofar as the claim for damage for use and occupation. He would therefore pray for the appeal filed in A.S. No.31 of 2023 be allowed.

20. I have carefully considered the submissions advanced on either side and I have also gone through the judgment impugned in the present revision petition.

POINTS FOR CONSIDERATION:

21. The following points for consideration arise to be decided in the above First Appeals:-

                          (i) Whether the document dated 20.09.2002 executed by Karunambal settlor (mother) in favour of Kandasamy, the first defendant marked as Ex.B5 is a settlement deed or only a Will?

                          (ii) Whether the cancellation of settlement deed not been challenged is fatal to the case of the contesting respondents?

                          (iii) Whether Kandasamy was in a sound and disposing state of mind, memory and understanding, competent to enter into a contract viz., execute registered power of attorney?

                          (iv) Whether the appellant in A.S. No.31 of 2023 is entitled to the relief of damages for use and occupation?

22. The fulcrum of arguments of both sides revolve around the fact that the document viz., settlement deed dated 20.09.2002, being a settlement deed or a Will. If it is decided that the document is a settlement deed and not a Will, then the question of Karunambal executing a Will on 29.09.2003 does not arise and the case of the appellants will have to go. The settlement deed dated 20.09.2002 has been marked as Ex.B5. It is styled as a settlement deed. It is admittedly a registered instrument. Some of the covenants in the preamble as well as the main body of the settlement deed would be relevant to decide whether the document is indeed a settlement deed or only a Will, and hence the same are extracted hereunder:

                          “WHEREAS the settlor herein, in order to make provisions for the welfare of her son, Shri.M.Kandasamy, the settlee herein; after her demise, is desirous of settling in his favour, the property morefully described in the schedule herein and accordingly, the Settlor by this Deed is settling the Schedule mentioned property in favour of the Senttlee;

                          NOW THIS DEED OF ABSOLUTE SETTLEMENT WITNESSES THAT

                          In consideration of the relationship between the Parties herein and in consideration of the love and affection that the Settlor has towards the Settlee, the Settlor hereby settles the property being all that piece and parcel of land and building, land measuring 906.5 sq.ft. comprised in T.S.No.64/2, Saidapet Village and bearing No.18, Varasiddhi Vinayagar Koil Street, Saidapet Chennai- 600 05 and more celarly described in Schedule hereunder, reserving a life interest over the same and thereafter absolutely, in Schedule hereunder, reserving a life interest over the same and thereafter, absolutely, in favour of her son, the Settlee herein together with rights and water courses, easements liberties, appurtenance, drains, usufructs, advantages whatsoever over the said property.

                          2. The Settlor assures that the property is free from all encumbrance and the same is not the subject matter of any litigation or proceedings. No notice of any kind has been received in respect of the property and there is no impediment of any kind for the settlor to execute this Deed.

                          3. The Settlor has paid the taxes in respect of the property till date. The Settlee shall be liable to pay the taxes and other outgoings in respect of the Schedule property after acquiring absolute title to the same.

                          4. The Settlor hereby puts the Settllee in possession of the property hereby settled and covenants that the Settlee shall have and hold and enjoy the same absolutely upon her demise. The Settlee has also accepted the Settlement in the terms of this Deed.

                          5. The Settlor has this day handed over the original tittle documents pertaining to the Schedule mentioned property to the Settlee.

                          6. The Value of the Property hereby settled for the purposes of this Deed is Rs.1,00,000/-.

23. An overall reading of the said document clearly indicates that the Settlor as mother wanted to give benefit to her son, the settlee, divesting herself of all title, right and interest in the subject property. The settlor has not reserved a right of alienation or encumbrance of the suit property during her lifetime. Equally, the settlor has also not reserved a right to cancel the said document. On the contrary, the settlor has clearly indicated that the settlee has been put in possession of the property under the said document and that even the original title deeds have been handed over to the settlee. The document will have to be considered as a whole and not read in piecemeal. In the light of the intention of the settlor, it is clear that the settlor was executing the settlement deed, transferring the title of the subject property, in favour of her son, in presenti only. The absence of a revocation Clauses and reservation of right to deal with the property during her lifetime clearly take the document away from the realm of being a testamentary instrument.

24. The Hon’ble Supreme Court in Kokilambal’s case, (referred herein supra), held that when the settlement is no uncertain terms lays down that the properties in question would vest absolutely after the death of the appellant and during their lifetime, both will enjoy the usurfructs, but the settlee would collect the rental income and both will have the right to alienate the property jointly. The settlement deed did not confer absolute ownership of the settlee. The facts of those case are entirely on a different footing. In the present case as already discussed, the terms of the settlement deed clearly indicate that there has been divesting of all title of the settlor under the settlement deed and unlike in the case before the Hon’ble Supreme Court, the settlement did not require her joining to alienate the property. In such circumstances, I do not find the ratio laid down in Kokilambal’s case (referred herein supra) being applicable to the facts of the present case.

25. In fact in P.K.Mohanram’s case, (referred herein supra) the Hon’ble Supreme Court after referring to the ratio laid down in Kokilambal’s case and several other decisions on the point, held that any documents will have to be decided based on the wording of the particular document and that when there is no language in the document indicating that the settlor was retaining a power to revoke the document or right to alienate the property during his/her lifetime, then it indicates an intention that the document was only a settlement deed. The Hon’ble Supreme Court further held that the mere fact that the settlor retained a life interest in the property and transferred to the settlee the vested reminder, would not render the document to be a testamentary instrument. The facts of the present case are very similar to the facts on which the Hon’ble Supreme Court rendered the decision in P.K.Mohan Ram’s case.

26. In view of the discussion above, there is no doubt in my mind that the document in Ex.B5 is an absolute deed of settlement and it is not a testamentary instrument as contended by the learned counsel for the appellants. The fall out of this finding is as to whether the document cancelling the said settlement deed is valid and the same had to be challenged before a competent Civil Court of law or it could have been ignored, as has been done in the present case. The settlement deed once validly executed and registered and in the absence of any power to cancel, modify or revoke the said document cannot be cancelled by the settlor thereafter. Therefore, on the face of the terms of the settlement deed and findings to the point 1 herein above, the settlor was not competent to cancel the settlement deed and execute a Will dealing with the very same property. The other question is as to whether the cancellation will have to be challenged by the beneficiary. The Hon’ble Full Bench of this Court in Sasikala Vs. Revenue Divisional Officer and Another, reported in 2022 SCC OnLine Mad 4343, has relied on the following Full Bench Judgments in Latif Estate Line India Vs. Hadeeja Ammal, reported in AIR 2011 Mad 66 & Muppudathi Pillai Vs. Krishnaswamy Pillai, reported in AIR 1960 Mad 1 and Veena Singh Dead through LRs Vs. District Registrar/Additional Collector, reported in (2022) 7 SCC 1, and held that unilateral cancellation of sale deed or deed of conveyance is void and non-est and the transferee claiming the benefit under the said document need not approach the Civil Court to challenge or nullify the registration, but can approach the Writ Court with specific reference to settlement deed it has been held that a cancellation or revocation deed is permissive only in cases which can be brought under Section 126 of Transfer of Property Act and not otherwise.

27. In view of the settled position, it is not necessary for the beneficiary/ first defendant to seek cancellation of the cancellation deed which was invalid in the eye of law. Therefore, the failure to seek cancellation of the cancellation deed is not fatal to the case of the contesting respondent. Now that it has been held that the document is only a settlement deed, Karunambal had already divested herself of all her interest in the suit property, she could not have executed a Will on 29.09.2003 and no rights can be claimed under the said Will executed by Karunambal, irrespective of the fact that whether it is probated or not. In the light of the above, the respondent is certainly entitled to the relief of recovery of possession, as the title of the property suit vested with him on his purchase and the appellants continue to occupy the same and they are liable to vacate and hand over vacant possession of the property to the lawful owner. Points 1 and 2 are answered accordingly.

28. Point No.3:- This brings as to whether the first defendant Kandasamy was a person of sound mind and whether the agreement of sale and power of attorney executed by him are valid in the eye of law. The fact that Kandasamy has executed an agreement of sale and a registered power of attorney based on which the property has been alienated and come to the hands of the contesting respondent is not disputed. It is only contended on the side of the appellant that Kandasamy was a person of unsound mind and he has been taking treatment as an inpatient in the Government Institute of Mental Health, Kilpauk and a Doctor has also been examined as P.W.3. As rightly contended by Mr.S.Mukunth, learned Senior Counsel, on examining the evidence of P.W.3, I find that she has spoken only from the records and she has admittedly not treated the first defendant at any point of time. It is for the appellants to establish that at the relevant point of time i.e., on the date of execution of the agreement of sale of the power of attorney, Kandasamy was suffering from mental unsoundness which invalidated the documents. The burden is certainly on the appellants to establish such factum, excepting for examining P.W.3 and relying on Ex.A1, A2, A3, A5 and A14, no other documents have been filed in support of the said claim of unsoundness of Kandasamy.

29. Ex.A1 and A2 are medical prescriptions, Ex.A3 is a Police Complaint filed by the first appellant against the first defendant for alleged violent behavior due to mental illness. Ex.A5 is a reference letter of the psychartist attached to the Schizophrenia Research Foundation (India) recommending the first defendant to be referred to Institute of Mental Health. Ex.A14 are the medical records relating to treatment given to Kandasamy. On perusal of Ex.A14, it is clear that the medical records pertain only to the year 2004 and 2005 and again from 2012 to 2013. Admittedly, the power of attorney and the agreement were executed in August 2005 and based on the power of attorney, sale deed was executed in November 2005. There is no document to evidence mental illness of Kandasamy during this period especially 2005. Therefore, the medical records in Ex.A14 are of no avail to conclude that Kandasamy was mentally unsound at the time of execution of the power of attorney and agreement of sale on 22.08.2005 or when the sale deed came to be executed on 23.11.2005.

30. In this context, it is clear that Kandasamy even though may have been suffering from unsoundness of mind during various periods of time, he has been able to engage the services of lawyer after receiving notice even as late as 2011 when the suit came to be filed and it is also not the case of the appellants that Kandasamy was permanently of unsound mind. Therefore, as rightly pointed out by Mr.S.Mukunth, learned Senior Counsel, the entire burden of proof was heavily on the shoulders of the appellant to establish the mental unsoundness or incapacity of the said Kandasamy at the relevant points of time viz., when the power of attorney and the agreement of sale in August, 2005 and the property was alienated in November 2005. There is absolutely nothing on record to establish the mental infirmity or incapacity during the said period of time. Though it is contended by the appellants that the Kandasamy was under the care and custody of his nephew one Mr.Sureshbabu, and the said Sureshbabu has not been examined before the Trial Court and in fact, his attempt to represent Kandasamy as the guardian in A.No.1217 of 2012 was also unsuccessful and the revision preferred against the said order in CRP. No.1414 of 2015 was also dismissed. In the light of the above, the appellants having miserably failed to discharge the burden on them to prove that in August 2005 especially and in November 2005, the first defendant Kandasamy was suffering from such mental incapacity or illness to invalidate the registered documents. The Trial Court has rightly considered the oral and documentary evidence adduced by the parties and has even come to the conclusion that being the wife/first appellant, cannot plead total ignorance of the acts done by her own husband, Kandasamy and conveniently claim to be in the dark for the purposes of challenging the sale in favour of the contesting respondent.

31. Point No.4:- With regard to A.S. No.31 of 2023, which is directed against disallowance of claim for damages, though I find that the appellant therein has claimed damages for use and occupation, past as well as future, there is no evidence adduced on his side and I do not find any independent evidence adduced by the respondent, establishing his entitlement to damage for use and occupation. There is no acceptable evidence to fix the liability/quantum of the appellants. Therefore, I do not find any perversity in appreciation of oral and documentary evidence and the findings arrived thereon warranting interference in First Appeal. Though the appellant has claimed Rs.15,000/- per month, there is no satisfactory or sufficient evidence adduced to establish such entitlement and I do not find any error committed by the Trial Court in disallowing the claim for damages.

32. In fine, all the Appeal Suits are dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.