Subramanian Vs. Kosalai Ammal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1168226
CourtChennai High Court
Decided OnApr-29-2014
JudgeTHE HONOURABLE Mrs.JUSTICE S.VIMALA
AppellantSubramanian
RespondentKosalai Ammal
Excerpt:
in the high court of judicature at madras dated :29. 04.2014 coram the honourable mrs. justice. s.vimala second appeal no.2068 of 2004 subramanian .... appellant/respondent/ defendant vs.1. kosalai ammal (deceased) 2. balayya 3. rajan 4. p.thangamuthu (rr3 & 4 impleaded as lrs. of deceased r1, vide order of court dt.02.12.2013, made in cmp.927/2012) .... respondents/appellants. / plaintiffs second appeal filed under section 100 of the civil procedure code against the judgment and decree, dated 15.04.2004, in a.s.no.44 of 1997 on the file of the subordinate judge, ariyalur, reversing the judgment and decree dated 31.07.1997 in o.s.no.301 of 1996 on the file of district munsif, jayankondam. for appellants : mr.s.i.muthiah for m/s.sarvabhauman associates for respondents : mr.a.muthukumar for rr2 to 4 - - - judgment1 in a suit for injunction, based on possession, where the title itself is disputed, whether it is mandatory to include the relief of declaration of title, at all circumstances or declaration should be sought for only under certain specified circumstances ?.2. whether the executant of the document himself can challenge the validity of the document and if so, on what grounds ?.3. when a document is challenged as a sham and nominal document, whether it is necessary to seek the remedy of setting aside the document ?. - are the main issues raised in the second appeal. 2.the defendant is the appellant. kosalai ammal and one balayya were the plaintiffs, who are the first and second respondents in this second appeal. on the death of kosalai ammal, rajan and p.thangamuthu have been impleaded as respondents 3 and 4, as legal representatives of the deceased first respondent. 3.the plaintiffs filed the suit for injunction before the learned district munsif, jayamkondan, in o.s.no.301 of 1996. the suit was dismissed, vide judgment dated 31.07.1997. challenging the dismissal, the plaintiffs filed the appeal in a.s.no.44 of 1997. by judgment and decree dated 15.04.2004, the appeal was allowed and thereby, the judgment of dismissal and decree passed in o.s.no.301 of 1996 came to be set aside. aggrieved over the same, the defendant has filed this second appeal.4. facts:- the suit properties are located at periyakrishnapuram village, ariyalur registration district. the plaintiffs claim title to the suit properties by virtue of settlement deeds dated 18.06.1979 and 19.06.1979 (to an extent of 71 cents and 63 cents respectively). the defendant is the brother of the first plaintiff. the defendant executed those settlement deeds dated 18.06.1979 and 19.06.1979 in favour of the first plaintiff, kosalai ammal. these settlement deeds were accepted and acted upon. patta was also transferred in the name of the first plaintiff and the first plaintiff has been paying kists to the suit property. in the u.d.r. scheme, patta has been issued in the name of the second plaintiff. the second plaintiff has also been paying kists. thus, the suit properties were in possession and enjoyment of the plaintiffs. 4.1.the defendant wanted his daughter to be married to one of the sons of the first plaintiff. but, it did not happen. aggrieved over that, the defendant wanted to interfere with the possession and enjoyment of the suit properties and that compelled the plaintiffs to file the suit for injunction. 5.the suit claim was resisted by the defendant on the following contentions:1. the suit properties are ancestral properties; 2.the defendant had four children, out of whom three children were born prior to the execution of settlement and one was the son born after the execution of settlement; 3.in respect of the properties, which are the subject matter of settlement, the defendant's children also had got a share over the properties. therefore, the defendant had no right to execute the settlement; 4.the alleged settlement deeds are not valid; and 5.the suit properties are in possession and enjoyment of the defendant and not in possession of the plaintiffs. 6.on the above pleadings, the trial court considered the issues relating to title and possession and came to the conclusion that the suit properties are ancestral properties of the defendant and the right of the plaintiffs is only to file a suit for partition and not to claim title by virtue of the settlement deeds. it was further pointed out by the trial court that it is not proved that the properties covered under the settlement deeds are self-acquired properties of the defendant and that the defendant had right to execute the settlement deeds. considering the fact that the first plaintiff herself has admitted during her evidence that the suit properties were the ancestral properties of her father, it was held that the defendant alone was not the owner of the properties and that the defendant's sons were also entitled to the properties (as the properties were ancestral properties). as the plaintiffs failed to prove the capacity of the defendant to execute the settlement deed, the suit was dismissed. 7.the first appellate court considered the definition of 'gift' as contemplated under section 122 of the transfer of property act and after giving a finding that the settlement deeds have been accepted and acted upon by the plaintiffs, has chosen to allow the appeal and thus, the suit came to be decreed. the first appellate court did not look into the question of capacity of the defendant to execute the settlement deeds. these findings are under challenge before this court. 8.the second appeal has been admitted under the following substantial questions of law:1. when the essential ingredients of a gift as defined under section 122 of the transfer of property act, 1882 are wanting insofar as exs.a1 and a2 settlement deeds are concerned, whether any relief can be granted on their basis ?. 2.when the settlement deeds have been executed in respect of ancestral properties by a person not entitled in law to do so, whether the lower appellate court is correct in law in upholding exs.a1 and a2 settlement deeds ?. 3.whether the lower appellate court is correct in law in reversing the judgment of the trial court without adverting to and setting aside the findings rendered by the trial court ?.". 9.admittedly, the first plaintiff and the defendant are related as sister and brother. the execution of settlement deeds by the defendant in favour of the first plaintiff is also an admitted fact. but, the validity of the settlement deeds is challenged by the defendant himself. according to the defendant, when he himself had four children, he had no right to execute settlement deeds in favour of his sister, in respect of properties over which his children also had right over them. 9.1.the settlement deeds were executed out of a promise by the first plaintiff and her husband that one of the daughters of the defendant would be married to one of the sons of the first plaintiff. only on this undue influence and compulsion, the settlement deeds came to be executed and therefore, the settlement deeds are void documents. 9.2.under such circumstances, the plaintiffs have filed the suit for injunction, contending that the settlement deeds having been accepted and acted upon, cannot be challenged as void and the defendant having not taken any steps to set aside the same is not entitled to raise any objection. 10.learned counsel for the respondents / plaintiffs specifically contended that 1.the appellant / defendant having been the executant of the document is not entitled to challenge his own document executed by him; 2.the contention that there cannot be an order of injunction as against the co-owner cannot be correct and factually, once the appellant has parted with the title by executing the settlement deeds, he ceases to be a co-owner and therefore, the suit for injunction as against the defendant is maintainable. 11.it is contended by the learned counsel for the appellant / defendant that the defendant is right in his contention that in respect of ancestral properties, even though the defendant may be a co-owner, he has no right to execute a settlement deed and that the alleged settlement deeds are void. it is further contended that there cannot be an order of injunction as against the co-owner (where the settlement deeds are void) and the order of injunction granted by the first appellate court has to be set aside. 12.it is the contention of the learned counsel for the appellant that the suit for injunction is not maintainable, when the defendant / appellant has disputed the title of the plaintiffs. therefore, the question is, when the existence of title is disputed, whether it is mandatory to include the relief of declaration of title, at all circumstances or it is enough declaration is asked for only under specified circumstances ?. 12.1.the decision reported in anathula sudhakar vs. p.buchi reddy (dead) by lrs. (air2008 sc2033, would be the answer for this issue. ".17. to summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) as a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. the prayer for injunction will be decided with reference to the finding on possession. but in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) but a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in annaimuthu thevar (supra)].. where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. but such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. but persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. the court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 12.2.so far as this case is concerned, the title of the plaintiff by virtue of the settlement deeds are under dispute. the settlement deeds are challenged as void documents, conferring no title upon the plaintiffs. it is purely a question of law. therefore, when the title is challenged, it is necessary that plaintiffs should have sought for an amendment of plaint adding the relief of declaration of title also. that is not done. if the settlement deeds are held to be void documents, then, the plaintiff is denuded of title and then the defendant becomes the owner of the properties and in that case, the suit for injunction will not be maintainable as against the true owner of the properties. 12.3.the prayer for injunction will normally be decided with reference to the finding on possession. but in cases where de jure possession has to be established on the basis of title to the property, the issue of title directly and substantially arises for consideration. without a finding on title, it will not be possible to decide the issue regarding legality of possession. therefore, in this case, the suit for injunction is not maintainable without seeking the relief of declaration of title. 13.it is contended that the properties are joint family properties and the defendant has no right to execute the settlement deeds in respect of the joint family properties and therefore, those settlement deeds are void documents. contending that the initial burden of proving that any particular property is the joint family property is upon the person who claims it to be so, the following decision is relied upon: e.siva vs. e.neelappa chowdary (judgment of this court in s.a.no.15 of 2007 dated 07.12.2009) ".16. as held by the supreme court in air1969sc1076(mudigowda gowdappa sankh and others v. ramchandra revgowda sankh (dead) by his legal rep. and another), initial burden of proving that any particular property is joint family property, is, in the first instance, upon the person who claims it to be so. but if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. only after proving adequate nucleus, the onus shifts on the person, who claims the property as a self-acquisition to make out that the property was acquired without aid from joint family property. 13.1.so far as this case is concerned, the first plaintiff herself has admitted in her evidence that the suit properties are ancestral properties and therefore, there is no issue with regard to burden of proof. 14.contending that father alone can execute gift deed towards discharge of his moral obligation and not the brother, and also that no justifiable circumstance has been pointed out to justify the execution of settlement deeds by the brother in favour of the sister and therefore, the settlement deeds are not valid, the following decision is relied upon: r.kuppayee & anr. vs. raja gounder (judgment of the supreme court in appeal (civil) no.16757 of 1996 dated 10.12.2003) this point was again examined in depth by this court in guramma bhratar chanbasappa deshmukh and another vs. malappa 1964 (4) scr497and it was held:- ".the legal position may be summarized thus: the hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. that right was lost by efflux of time. but it became crystallized into a moral obligation. the father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. by custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. it is a moral obligation and it continues to subsist till it is discharged. marriage is only a customary occasion for such a gift. but the obligation can be discharged at any time, either during the lifetime of the father or thereafter. it is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. if the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. the validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. if once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one.". (emphasis supplied) 14.1.this decision deals with the right of the father to execute settlement deed in respect of a reasonable portion of the property towards discharge of the moral obligation. therefore, it is not applicable to the facts of the case, even though the basic principles applied would go to show that brother has no right to execute a settlement deed in favour of his sister in respect of a joint family property. 15.contending that the settlement deeds executed by the brother in favour of the sister are void and that it is not necessary to challenge the settlement as not binding and that the settlement can be ignored, the decision in rathinasabapathy pillai and another vs. v.saraswathi ammal, air1954madras 307, is relied upon: ".5. an alternative contention was urged in the lower court & before us that in any event ex. b. 27 being only a gift of joint family property would not, be valid in law. the power of a hindu father or other managing member to make a gift is limited, it must be within reasonable limits if it is to. be of ancestral property and must be a gift 'inter vivos'. the purposes for which such a gift are permitted are those that are warranted by the special texts. it is stated in mayne's hindu law, 11th edn. at page 452, that, ".apparently at one time, the father's power over ancestral moveable property was larger than his power over ancestral immoveable property. but by the time of vignaneswara, it is evident that the distinction had practically disappeared. for, vignaneswara himself does not claim for the father an absolute power of disposing of moveables at his own pleasure, but only an 'independent power in the disposal of them for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection to the support of the family, relief from distress and so forth.". there does not seem to be really any distinction as between the moveables and the immoveables in so far as the father's power to make a gift is concerned. the gifts could be only through affection with reasonable limits. gifts to brides on occasion of marriage as also gift by the father to his daughter on the occasion of the marriage of a small portion of ancestral immoveable property have been held to be valid. ...9. it is now well-established that a hindu father has no power to gift away ancestral and joint family property in part or in whole except for the special purposes laid down in the text, which are limited and circumscribed and that too of small portions of moveable and immoveable property, mostly to discharge a necessary moral obligation cast on a hindu father or manager of the family. a gift otherwise is void in its inception and a document evidencing such a gift does not convey any interest to the donee. the gift can therefore be ignored and persons entitled to the property can treat the property so gifted as continuing to vest in the joint family and not haying been transferred to the donee notwithstanding even that possession of the property may have passed to the donee. it is not necessary for a coparcener or any other member of the joint family who claims to have a right or interest in the property to interdict a gift as an alienation not binding on the family but to ignore the transaction and sue to enforce his or her rights to the said property.". 16.it is contended that even though the defendant himself is an executant of a document, when the document is challenged as void, he himself can challenge it. 16.1.prima facie, everyone who is sui juris, can dispose of by way of gift, any property to which he is absolutely entitled. the question here is whether the donor is absolutely entitled to the property, which is the subject matter of conveyance under the settlement deed. admittedly, it is not a property to which the executant is absolutely entitled to. he is entitled only to an undivided share in the joint family property. the other persons who are entitled to the property were minors at the time of execution of the deed. as discussed already, when the property is a joint family property, the defendant has no right to execute the settlement deeds and the said settlement deeds are void documents and it need not be set aside. 16.2.this position is fortified by the decision reported in (1970) 1 mlj207(kaka hajee md. ishaque sahib vs kaka md. saddiq sahib and ors., decided on 18 march, 1969), wherein it has been held as follows:- ".normally a transaction will bind a person if he or persons under whom he derives title are eo nomine parties to the same, and must be set aside before any relief is claimed thereunder. this, however, is subject to two important, exceptions : (1) where the transaction is only a sham and nominal one, not intended to be given effect to; and (2) where the transaction is void in law. it necessarily follows that (1) transactions to which a person or persons under whom the said persons derive title are not eo nomine (eo nomine - a latin legal term meaning ".by that name".) parties; (2) transactions which are challenged as sham and nominal and (3) transactions which are void ab initio are not legally binding in character need not be cancelled and set aside, before any claim is made thereunder. the reason is fairly obvious. in the first group of cases, there can be no difficulty, as it is an elementary principle of law that transactions to which a person or persons under whom the said person derives title are not parties cannot bind them. in the case of sham and nominal or void transactions comprised in the second and third group of cases, title has not passed to the transferees. prayer for setting aside such transactions will be superfluous and the plaintiff will be entitled to ignore them altogether. the case is otherwise in respect of voidable transactions and benami transactions. in such cases the law will uphold the ostensible title conferred by those instruments; and the said title will prevail until the transactions are challenged with success by seeking appropriate reliefs declaratory or otherwise in court of law.". 16.3.the properties having been ancestral properties, the defendant has no right to execute the settlement deed in favour of his sister. those settlement deeds are void documents and therefore, the plaintiffs cannot make any claim over that. documents being void documents, the relief of cancellation need not be asked for. it is for the plaintiffs to establish that her possession is illegal possession. when the title itself is lacking, the possession even if any, cannot be said to be a legal possession. hence, the suit is liable to be dismissed. therefore, the second appeal challenging the decreeing of the suit has to be allowed. 17.in the result, the judgment and decree, dated 15.04.2004, in a.s.no.44 of 1997 on the file of the subordinate judge, ariyalur, are set aside. the judgment and decree dated 31.07.1997 in o.s.no.301 of 1996 on the file of district munsif, jayankondam, dismissing the suit, stands restored. the second appeal filed by the defendant is allowed. no costs. 29.04.2014 sra to 1. the subordinate judge, ariyalur.2. the district munsif, jayankondam 3. the section officer, v.r. section, high court, madras. s.vimala, j.(sra) pre-delivery judgment in s.a.no.2068 of 2004 29.04.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

29. 04.2014 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA Second Appeal No.2068 of 2004 Subramanian .... Appellant/Respondent/ Defendant Vs.

1. Kosalai Ammal (Deceased) 2. Balayya 3. Rajan 4. P.Thangamuthu (RR3 & 4 impleaded as Lrs. of deceased R1, vide order of Court dt.02.12.2013, made in CMP.927/2012) .... Respondents/Appellants. / Plaintiffs Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree, dated 15.04.2004, in A.S.No.44 of 1997 on the file of the Subordinate Judge, Ariyalur, reversing the judgment and decree dated 31.07.1997 in O.S.No.301 of 1996 on the file of District Munsif, Jayankondam. For Appellants : Mr.S.I.Muthiah For M/s.Sarvabhauman Associates For Respondents : Mr.A.Muthukumar for RR2 to 4 - - -

JUDGMENT

1 In a suit for injunction, based on possession, where the title itself is disputed, whether it is mandatory to include the relief of declaration of title, at all circumstances or declaration should be sought for only under certain specified circumstances ?.

2. Whether the executant of the document himself can challenge the validity of the document and if so, on what grounds ?.

3. When a document is challenged as a sham and nominal document, whether it is necessary to seek the remedy of setting aside the document ?. - are the main issues raised in the second appeal. 2.The defendant is the appellant. Kosalai Ammal and one Balayya were the plaintiffs, who are the first and second respondents in this second appeal. On the death of Kosalai Ammal, Rajan and P.Thangamuthu have been impleaded as respondents 3 and 4, as legal representatives of the deceased first respondent. 3.The plaintiffs filed the suit for injunction before the learned District Munsif, Jayamkondan, in O.S.No.301 of 1996. The suit was dismissed, vide judgment dated 31.07.1997. Challenging the dismissal, the plaintiffs filed the appeal in A.S.No.44 of 1997. By judgment and decree dated 15.04.2004, the appeal was allowed and thereby, the judgment of dismissal and decree passed in O.S.No.301 of 1996 came to be set aside. Aggrieved over the same, the defendant has filed this second appeal.

4. Facts:- The suit properties are located at Periyakrishnapuram Village, Ariyalur Registration District. The plaintiffs claim title to the suit properties by virtue of settlement deeds dated 18.06.1979 and 19.06.1979 (to an extent of 71 cents and 63 cents respectively). The defendant is the brother of the first plaintiff. The defendant executed those settlement deeds dated 18.06.1979 and 19.06.1979 in favour of the first plaintiff, Kosalai Ammal. These settlement deeds were accepted and acted upon. Patta was also transferred in the name of the first plaintiff and the first plaintiff has been paying kists to the suit property. In the U.D.R. scheme, patta has been issued in the name of the second plaintiff. The second plaintiff has also been paying kists. Thus, the suit properties were in possession and enjoyment of the plaintiffs. 4.1.The defendant wanted his daughter to be married to one of the sons of the first plaintiff. But, it did not happen. Aggrieved over that, the defendant wanted to interfere with the possession and enjoyment of the suit properties and that compelled the plaintiffs to file the suit for injunction. 5.The suit claim was resisted by the defendant on the following contentions:

1. The suit properties are ancestral properties; 2.The defendant had four children, out of whom three children were born prior to the execution of settlement and one was the son born after the execution of settlement; 3.In respect of the properties, which are the subject matter of settlement, the defendant's children also had got a share over the properties. Therefore, the defendant had no right to execute the settlement; 4.The alleged settlement deeds are not valid; and 5.The suit properties are in possession and enjoyment of the defendant and not in possession of the plaintiffs. 6.On the above pleadings, the trial Court considered the issues relating to title and possession and came to the conclusion that the suit properties are ancestral properties of the defendant and the right of the plaintiffs is only to file a suit for partition and not to claim title by virtue of the settlement deeds. It was further pointed out by the trial Court that it is not proved that the properties covered under the settlement deeds are self-acquired properties of the defendant and that the defendant had right to execute the settlement deeds. Considering the fact that the first plaintiff herself has admitted during her evidence that the suit properties were the ancestral properties of her father, it was held that the defendant alone was not the owner of the properties and that the defendant's sons were also entitled to the properties (as the properties were ancestral properties). As the plaintiffs failed to prove the capacity of the defendant to execute the settlement deed, the suit was dismissed. 7.The first Appellate Court considered the definition of 'gift' as contemplated under Section 122 of the Transfer of Property Act and after giving a finding that the settlement deeds have been accepted and acted upon by the plaintiffs, has chosen to allow the appeal and thus, the suit came to be decreed. The first appellate Court did not look into the question of capacity of the defendant to execute the settlement deeds. These findings are under challenge before this Court. 8.The second appeal has been admitted under the following substantial questions of law:

1. When the essential ingredients of a gift as defined under Section 122 of the Transfer of Property Act, 1882 are wanting insofar as Exs.A1 and A2 Settlement Deeds are concerned, whether any relief can be granted on their basis ?. 2.When the Settlement Deeds have been executed in respect of ancestral properties by a person not entitled in law to do so, whether the lower Appellate Court is correct in law in upholding Exs.A1 and A2 Settlement Deeds ?. 3.Whether the lower Appellate Court is correct in law in reversing the judgment of the trial Court without adverting to and setting aside the findings rendered by the trial Court ?.". 9.Admittedly, the first plaintiff and the defendant are related as sister and brother. The execution of settlement deeds by the defendant in favour of the first plaintiff is also an admitted fact. But, the validity of the settlement deeds is challenged by the defendant himself. According to the defendant, when he himself had four children, he had no right to execute settlement deeds in favour of his sister, in respect of properties over which his children also had right over them. 9.1.The settlement deeds were executed out of a promise by the first plaintiff and her husband that one of the daughters of the defendant would be married to one of the sons of the first plaintiff. Only on this undue influence and compulsion, the settlement deeds came to be executed and therefore, the settlement deeds are void documents. 9.2.Under such circumstances, the plaintiffs have filed the suit for injunction, contending that the settlement deeds having been accepted and acted upon, cannot be challenged as void and the defendant having not taken any steps to set aside the same is not entitled to raise any objection. 10.Learned counsel for the respondents / plaintiffs specifically contended that 1.The appellant / defendant having been the executant of the document is not entitled to challenge his own document executed by him; 2.The contention that there cannot be an order of injunction as against the co-owner cannot be correct and factually, once the appellant has parted with the title by executing the settlement deeds, he ceases to be a co-owner and therefore, the suit for injunction as against the defendant is maintainable. 11.It is contended by the learned counsel for the appellant / defendant that the defendant is right in his contention that in respect of ancestral properties, even though the defendant may be a co-owner, he has no right to execute a settlement deed and that the alleged settlement deeds are void. It is further contended that there cannot be an order of injunction as against the co-owner (where the settlement deeds are void) and the order of injunction granted by the first Appellate Court has to be set aside. 12.It is the contention of the learned counsel for the appellant that the suit for injunction is not maintainable, when the defendant / appellant has disputed the title of the plaintiffs. Therefore, the question is, when the existence of title is disputed, whether it is mandatory to include the relief of declaration of title, at all circumstances or it is enough declaration is asked for only under specified circumstances ?. 12.1.The decision reported in Anathula Sudhakar vs. P.Buchi Reddy (Dead) by Lrs. (AIR2008 SC2033, would be the answer for this issue. ".17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 12.2.So far as this case is concerned, the title of the plaintiff by virtue of the settlement deeds are under dispute. The settlement deeds are challenged as void documents, conferring no title upon the plaintiffs. It is purely a question of law. Therefore, when the title is challenged, it is necessary that plaintiffs should have sought for an amendment of plaint adding the relief of declaration of title also. That is not done. If the settlement deeds are held to be void documents, then, the plaintiff is denuded of title and then the defendant becomes the owner of the properties and in that case, the suit for injunction will not be maintainable as against the true owner of the properties. 12.3.The prayer for injunction will normally be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, the issue of title directly and substantially arises for consideration. Without a finding on title, it will not be possible to decide the issue regarding legality of possession. Therefore, in this case, the suit for injunction is not maintainable without seeking the relief of declaration of title. 13.It is contended that the properties are joint family properties and the defendant has no right to execute the settlement deeds in respect of the joint family properties and therefore, those settlement deeds are void documents. Contending that the initial burden of proving that any particular property is the joint family property is upon the person who claims it to be so, the following decision is relied upon: E.Siva vs. E.Neelappa Chowdary (Judgment of this Court in S.A.No.15 of 2007 dated 07.12.2009) ".16. As held by the Supreme Court in AIR1969SC1076(Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh (dead) by his legal rep. and another), initial burden of proving that any particular property is joint family property, is, in the first instance, upon the person who claims it to be so. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. Only after proving adequate nucleus, the onus shifts on the person, who claims the property as a self-acquisition to make out that the property was acquired without aid from joint family property. 13.1.So far as this case is concerned, the first plaintiff herself has admitted in her evidence that the suit properties are ancestral properties and therefore, there is no issue with regard to burden of proof. 14.Contending that father alone can execute gift deed towards discharge of his moral obligation and not the brother, and also that no justifiable circumstance has been pointed out to justify the execution of settlement deeds by the brother in favour of the sister and therefore, the settlement deeds are not valid, the following decision is relied upon: R.Kuppayee & Anr. vs. Raja Gounder (Judgment of the Supreme Court in Appeal (Civil) No.16757 of 1996 dated 10.12.2003) This point was again examined in depth by this Court in Guramma Bhratar Chanbasappa Deshmukh and another vs. Malappa 1964 (4) SCR497and it was held:- ".The legal position may be summarized thus: The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one.". (Emphasis supplied) 14.1.This decision deals with the right of the father to execute settlement deed in respect of a reasonable portion of the property towards discharge of the moral obligation. Therefore, it is not applicable to the facts of the case, even though the basic principles applied would go to show that brother has no right to execute a settlement deed in favour of his sister in respect of a joint family property. 15.Contending that the settlement deeds executed by the brother in favour of the sister are void and that it is not necessary to challenge the settlement as not binding and that the settlement can be ignored, the decision in Rathinasabapathy Pillai and another vs. V.Saraswathi Ammal, AIR1954Madras 307, is relied upon: ".5. An alternative contention was urged in the lower court & before us that in any event Ex. B. 27 being only a gift of Joint family property would not, be valid in law. The power of a Hindu father or other managing member to make a gift is limited, it must be within reasonable limits if it is to. be of ancestral property and must be a gift 'inter vivos'. The purposes for which such a gift are permitted are those that are warranted by the special texts. It is stated in Mayne's Hindu law, 11th Edn. at page 452, that, ".Apparently at one time, the father's power over ancestral moveable property was larger than his power over ancestral immoveable property. But by the time of Vignaneswara, it is evident that the distinction had practically disappeared. For, Vignaneswara himself does not claim for the father an absolute power of disposing of moveables at his own pleasure, but only an 'independent power in the disposal of them for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection to the support of the family, relief from distress and so forth.". There does not seem to be really any distinction as between the moveables and the immoveables in so far as the father's power to make a gift is concerned. The gifts could be only through affection with reasonable limits. Gifts to brides on Occasion of marriage as also gift by the father to his daughter on the occasion of the marriage of a small portion of ancestral immoveable property have been held to be valid. ...

9. It is now well-established that a Hindu father has no power to gift away ancestral and joint family property in part or in whole except for the special purposes laid down in the text, which are limited and circumscribed and that too of small portions of moveable and immoveable property, mostly to discharge a necessary moral obligation cast on a Hindu father or manager of the family. A gift otherwise is void in its inception and a document evidencing such a gift does not convey any interest to the donee. The gift can therefore be ignored and persons entitled to the property can treat the property so gifted as continuing to vest in the joint family and not haying been transferred to the donee notwithstanding even that possession of the property may have passed to the donee. It is not necessary for a coparcener or any other member of the joint family who claims to have a right or interest in the property to Interdict a gift as an alienation not binding on the family but to ignore the transaction and sue to enforce his or her rights to the said property.". 16.It is contended that even though the defendant himself is an executant of a document, when the document is challenged as void, he himself can challenge it. 16.1.Prima facie, everyone who is sui juris, can dispose of by way of gift, any property to which he is absolutely entitled. The question here is whether the donor is absolutely entitled to the property, which is the subject matter of conveyance under the settlement deed. Admittedly, it is not a property to which the executant is absolutely entitled to. He is entitled only to an undivided share in the joint family property. The other persons who are entitled to the property were minors at the time of execution of the deed. As discussed already, when the property is a joint family property, the defendant has no right to execute the settlement deeds and the said settlement deeds are void documents and it need not be set aside. 16.2.This position is fortified by the decision reported in (1970) 1 MLJ207(Kaka Hajee Md. Ishaque Sahib vs Kaka Md. Saddiq Sahib And Ors., decided on 18 March, 1969), wherein it has been held as follows:- ".Normally a transaction will bind a person if he or persons under whom he derives title are eo nomine parties to the same, and must be set aside before any relief is claimed thereunder. This, however, is subject to two important, exceptions : (1) Where the transaction is only a sham and nominal one, not intended to be given effect to; and (2) Where the transaction is void in law. It necessarily follows that (1) transactions to which a person or persons under whom the said persons derive title are not eo nomine (Eo nomine - a latin legal term meaning ".by that name".) parties; (2) transactions which are challenged as sham and nominal and (3) transactions which are void ab initio are not legally binding in character need not be cancelled and set aside, before any claim is made thereunder. The reason is fairly obvious. In the first group of cases, there can be no difficulty, as it is an elementary principle of law that transactions to which a person or persons under whom the said person derives title are not parties cannot bind them. In the case of sham and nominal or void transactions comprised in the second and third group of cases, title has not passed to the transferees. Prayer for setting aside such transactions will be superfluous and the plaintiff will be entitled to ignore them altogether. The case is otherwise in respect of voidable transactions and benami transactions. In such cases the law will uphold the ostensible title conferred by those instruments; and the said title will prevail until the transactions are challenged with success by seeking appropriate reliefs declaratory or otherwise in Court of law.". 16.3.The properties having been ancestral properties, the defendant has no right to execute the settlement deed in favour of his sister. Those settlement deeds are void documents and therefore, the plaintiffs cannot make any claim over that. Documents being void documents, the relief of cancellation need not be asked for. It is for the plaintiffs to establish that her possession is illegal possession. When the title itself is lacking, the possession even if any, cannot be said to be a legal possession. Hence, the suit is liable to be dismissed. Therefore, the second appeal challenging the decreeing of the suit has to be allowed. 17.In the result, the judgment and decree, dated 15.04.2004, in A.S.No.44 of 1997 on the file of the Subordinate Judge, Ariyalur, are set aside. The judgment and decree dated 31.07.1997 in O.S.No.301 of 1996 on the file of District Munsif, Jayankondam, dismissing the suit, stands restored. The second appeal filed by the defendant is allowed. No costs. 29.04.2014 sra To 1. The Subordinate Judge, Ariyalur.

2. The District Munsif, Jayankondam 3. The Section Officer, V.R. Section, High Court, Madras. S.VIMALA, J.

(sra) Pre-delivery judgment in S.A.No.2068 of 2004 29.04.2014