S.A.Nos.1649 and 237 of 2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of reserved : 26/03/2026

Date of Pronounced : 01/06/2026

CORAM

THE HON'BLE MS.JUSTICE R.POORNIMA

S.A.Nos.1649 of 2003 and 237 of 2004

and

C.M.P.Nos.1448 & 7508 of 2004

(1)SA No.1649 of 2003:-

1.Edwin David :1

st

Appellant/appellant/

1

st

Defendant

2.Ben David @ Irwin

3.Florence :

4.A.Suresh

(Appellants 3 & 4 impleaded

vide Common order, dated 21/02/2013

made in MP(MD)No.1 and 1 of 2012

in SA Nos.1649 of 2003 and 237 of 2004)

5.K.Srinivasan : Appellant/2

nd

Respondent/

2

nd

Defendant

Vs.

1.Lawrence

2.Raj Mohan Singh : Respondents/Respondents/

(Respondents 3 and 4 are transposed as Defendants 2 and 3

appellants 2 and 3, vide Court order,

dated 21/02/2013 and made in MP(MD)No.2 of 2012

in SA No.1649 of 2003)

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S.A.Nos.1649 and 237 of 2024

PRAYER : Second Appeal filed under Section 100 C.P.C., as against

the judgment and decree passed in AS No.208 of 1997, dated 07/03/2003

by the Sub Court, Padmanabhapuram, confirming the judgment and

decree, dated 22/07/1997 in OS No.673 of 1995 by the Additional

District Munsif, Eraniel.

For Appellant: Mr.M.P.Senthil

For Respondents : Mr.S.Meenakshi Sundaram

(2)SA No.237 of 2004:-

Lawrence : Appellant/Respondent/

Defendant

Vs.

1.Edwin David (Died) :1

st

Appellant/Appellant/

Plaintiff

2.Florence

3.Ben David

(Respondents 2 and 3 are brought

on record as Lrs. Of the deceased

sole respondent, vide Court order,

dated 13/10/2011 and made in

MP(MD)Nos.1 of 2008 in SA No.237

of 2004)

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S.A.Nos.1649 and 237 of 2024

4.A.Suresh : Respondents 2 to 4

(4

th

Respondent impleaded, vide

Order, dated 21/02/2013 and

made in MP(MD)Nos.1 and 1 of 2012

in SA Nos.1649 of 2003 and 237 of 2004)

PRAYER : Second Appeal filed under Section 100 C.P.C., as against

the judgment and decree passed in AS No.140 of 2002, dated 22/09/2003

by the District Judge, Kannniyakumar at Nagercoil, reversing the

judgment and decree, dated 19/10/2001 passed in OS No.78 of 1997 by

the Subordinate Judge, Padmanabapuram.

For Appellant: Mr.S.Meenakshi Sundaram

for Mr.M.Senguvijay

For 1

st

Respondent : Died

For R2 & R3 : Mr.M.P.Senthil

For 4

th

Respondent : Mr.V.M.Balamohanshanisi

COMMON JUDGMENT

S.A.No.1649 of 2003 has been filed against the judgment

and decree passed in A.S.No.208 of 1997, dated 07/03/2003 by the

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S.A.Nos.1649 and 237 of 2024

Subordinate Court, Padmanabhapuram, confirming the judgment and

decree, dated 22/07/1997 passed in O.S.No.673 of 1995 by the

Additional District Munsif, Eraniel, whereas S.A.No.237 of 2004 has

been filed against the judgment and decree passed in A.S.No.140 of

2002, dated 22/09/2003 by the District Judge, Kannniyakumari at

Nagercoil, reversing the judgment and decree, dated 19/10/2001 passed

in O.S.No.78 of 1997 by the Subordinate Judge, Padmanabapuram.

2.O.S.No.673 of 1995 was filed by one Lawrence and

another, for permanent injunction against the defendants 1 to 3. The first

defendant is her father, the second defendant is the brother and the third

defendant is another sister of the 1st plaintiff. The suit was decreed as

prayed for by the plaintiffs. Against which, the defendants filed appeal in

A.S.No.208 of 1997 before the Subordinate Court, Padmanabhapuram,

but the same was dismissed on 07/03/2003 by confirming the judgment

and decree, dated 22/07/1997 passed in O.S.No.673 of 1995 by the

Additional District Munsif, Eraniel. Against which, S.A No.1649 of 2003

was filed by first defendant as appellant.

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3.O.S.No.78 of 1997 was filed by Edwin David, the father

of the 1

st

plaintiff in OS No.673 of 1995 with a prayer to cancel the gift

deeds, dated 17/02/1987 executed in favour of Smt.Lawrence and to

declare his title and to deliver the possession and also sought for

permanent injunction. The suit was dismissed by the Trial court, dated

19/10/2001. Against which, the plaintiff filed an appeal in AS No.140 of

2002, before the District Judge, Kanyakumari @ Nagercoil, which was

allowed by the first appellate court, dated 22/09/2003 thereby setting

aside the judgment and decree of the trial court. Against which, SA No.

237 of 2004 was filed by the defendant in OS No.78 of 1997.

4.Since both the second appeals arising out of the same

transaction and the parties also same, this Court is inclined to render a

common judgment.

5.The case of the plaintiff in O. S.No.673 of 1995 and

O.S .No.78 of 1997 in brief:-

Based on the facts narrated, the submissions available to

Lawrence, settlee, summarised below:

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Exs.A2 to A4 gift deeds were executed in 1987 by her father

Tr.Edwin David and were accepted by the donee. The recitals themselves

disclose delivery of possession. Further Exs.A21 to A29 letters allegedly

written by Edwin David acknowledge the execution of the settlements in

favour of Lawrence for her maintenance, thereby supporting the

genuineness of the transactions. In the revocation deed, Edwin David

did not plead that the settlements were obtained by undue influence or

that he was mentally unsound. But the stated reason was alleged failure

of maintenance and want of alternative property. No medical records or

independent evidence were produced to establish his mental incapacity at

the time of execution.

6. On the very same day, Edwin David executed other

transactions (Exs.A6 and A7), indicating that he was capable of

understanding and executing documents.

7. A completed gift cannot ordinarily be revoked unilaterally

except in circumstances recognized by Section 126 of the Transfer of

Property Act. If Edwin David had knowledge of the deeds from the date

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of execution, a challenge raised several years later may attract Article 59

of the Limitation Act. The burden to prove undue influence, fraud or

incapacity lies upon the person alleging it.

8. The respondents, on the other hand, contends that:

Edwin David was not in a fit state of mind when the

documents viz., gift deeds were executed and Lawrence exercised undue

influence over him. Lawrence failed to examine an attesting witness

despite challenge to the execution of the deeds. Possession was never

handed over to Lawrence and Edwin David continued in possession and

enjoyment of the property. Lawrence admittedly resided elsewhere and

therefore could not establish actual possession. The findings on

limitation having gone in favour of Edwin David before the trial court

cannot be reopened in the absence of a cross-appeal or cross-objection,

relying upon the decision in Suresh Kumar Kankariya v. K. Jigibai @

Pushpammal.

9. The learned counsel appearing for the subsequent

purchaser contended that he had purchased the suit property for valuable

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S.A.Nos.1649 and 237 of 2024

consideration with bonafide intention and without notice of the earlier

settlement deeds alleged to have been executed in favour of the

appellant. According to him, no encumbrance relating to the said

settlement deeds was reflected in the Encumbrance Certificate obtained

prior to the purchase and, therefore, he had no reason to suspect the title

of his vendor. It was further contended that the settlement deeds in

favour of the appellant were obtained when the settlor, Edwin David, was

not in a fit state of mind and under the undue influence of the settlee.

Hence, the said documents are invalid and do not confer any right or title

upon the appellant. The subsequent purchaser having paid the entire sale

consideration and having been put in possession of the property pursuant

to the sale transaction, his possession is lawful and protected. Therefore,

it was argued that his title and possession deserve to be confirmed and

ought not to be disturbed at the instance of the appellant.

10. At the time of admitting S.A.No.1649 of 2003, the

following substantial questions of law were framed for consideration of

this appeal:-

(a)When Exs.A2 to A4 having registered in the office

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S.A.Nos.1649 and 237 of 2024

of the Sub-Registrar at Parasala (Kerala State) and no part

of the property comprised in those documents is situated

within the jurisdiction of that registration Office or even in

the Kerala State, are they not void ab initio ?

(b)If they are void ab-initio, would the party to the

document get any legal title?

11.The following additional substantial questions of law

were framed on 17/08/2023:

(i)Whether Exs.A2 to A4 (gift deeds) are hit by Section

16 of the Indian Contract Act?

(ii)Whether Late David is entitled to Exs.A2 to A4/gift

deeds in respect of plaint schedule property, which was

purchased out of his funds and sale proceeds of ancestral

properties in favour of R1/daughter excluding himself and

other legal heirs, other daughter and minor son?

12.The following substantial questions of law were framed

in SA No.237 of 2004:-

(i)Whether the lower appellate court failed to consider

that the suit in OS No.78 of 1997 is barred by res judicata, in

view of the judgment and decree in OS No.673 of 1995 on the

file of the Additional District Munsif Court, Eraniel, which is

confirmed in AS N.208 of 1997, on the file of the Sub-Court,

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S.A.Nos.1649 and 237 of 2024

Padmanabhapuram?

(ii)Whether the lower appellate Court erred in holding

that the gift deeds were obtained by using undue influence

and coercion, since there was no legal and substantial

evidence to prove this contention, as except P.W.1, no other

corroborative evidence was let in?

(iii)Whether the lower appellate Court failed to

consider that the suit is barred by limitation? and

(iv)Whether the suit as framed is not maintainable in

law, since the respondent has not asked for recovery of

possession of the suit property?

13. Answers to substantial question of law:

Admittedly, three registered gift settlement deeds were

executed by one Edwin David, the father of Ms.Lawrence, the appellant

in S.A.No.237 of 2004 herein 17/02/1987 under documents Nos.Ex.A2

to Ex.A4. On Perusal of the recitals of the gift settlement deed reveals

that Edwin David, the original owner purchased the properties in the year

1984. The donor mentioned the following reason for execution of the gift

deeds in favour of his second daughter Ms.Lawrence :-

..i\ahd; vd;Dila kfs;; MFk;. i\ahd;

“

vd;id Mrpuapj;J $[Ptpj;J tUtjdhy;

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S.A.Nos.1649 and 237 of 2024

i\ahndhL vdf;F njhd;wpa rpndf ghrj;ija[k;>

g[j;jpu ghrj;ija[k; Mrphpj thy;ry;ypaj;jpDilaKk;

mog;gilapy; i\ ahDila tUq;fhy eyid

fUjpa[k; fhyl;nrgj;Jf;Fkhf moapy; tpthpg;gjhd

gl;oif brhj;Jf;fis i\ahSf;F ,\;ljhdkhf

bfhLj;jpUgjdhy; gl;oif brhj;Jfis eP ,d;W

Kjy; rh;t Rthje;jphpa ghpg{ud ghj;jpaijfSld;

MzL mDgtpj;J jPUita[k; brYj;jp fPH; Fwpg;gpLk;

gl;lhtpypUe;J bgah; khw;wp cd;Dila bgahpy;

nghf;Ftuj;J bra;tpj;J g[J gl;lh thq;fp vd;bwd;Wk;

rh;t Rje;jpu ghpg{uz ghj;jpaija[ld; Mz;L

mDgtpj;J bfhs;s ntz;oaJk; Mfk; gl;oif

brhj;Jf;fspd; nky; vdf;Fs;s clk];jij>

Rthje;jphpak;> <];bkd;W Kjypa rfy tpj

mtfhrq;fSk; ghj;jpaijfSk; iftrKk; ,jdhy;

ehd; cdf;fhf tpl;L je;jpUg;gJk; Mfk; gl;oif 1-k;

ek;gh; brhj;ij rk;ge;jpj;J vd;Dila bgaUf;F 1984-

k; ghwr;rhiy rg; buIp];lhh; Mg;gpR thapyhf 1-k;

g[];jfk; 733-k; thy;ak; 419 Kjy; 426 tiu gf;fq;fpy;

7071-k; ek;guhf gjpt[ bra;J thq;fpd

fpiuag;gj;jpug;goa[k; gl;oif 2-k; ek;gh; brhj;J

vd;Dila bgaUf;F 1987-y; ghwr;rhiy rg;

buI];lhh; Mg;gP]; Knfd 487-k; ek;guhf gjpt[ bra;J

thq;fpd fpiuag; gj;jpug;goa[k; vdf;F rh;t Rje;jpu

ghpg{uz ghj;jpaijfSld; fpilj;jpl;Ls;sJ MFk;

gl;oif brhj;jpy; ];jhgpjkhf vd;dpjkhf fl

ghj;jpaijfSk; ,y;yhjJk; MFk;.

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15. Subsequent to the execution of the gift settlement deeds,

the name of the donee, Ms. Lawrence, was mutated in the revenue

records and a Patta Passbook was issued in her favour by the then Deputy

Headquarters Tahsildar, Kalkulam, which was marked as Ex.A5 in O.S.

No.673 of 1995. Exs.A8 to A14 are kist receipts standing in the name of

the appellant Lawrence. Exs.A15 to A20 are house tax receipts paid by

the appellant for the period from 1988 to 1992. These documents clearly

establish that the revenue records as well as the municipal records had

been transferred in the name of the appellant pursuant to the execution of

the gift deeds. Though the respondents produced certain kist receipts,

those receipts pertain only to the period after 1997, subsequent to the

institution of the suit by Edwin David, and therefore they do not dislodge

the earlier documentary evidence produced by the appellant.

16. The principal contention of the settlor, Edwin David, is

that the gift settlement deeds were obtained when he was not in a fit state

of mind. Ex.B2 (in O.S.No.673 of 1995) is the deed of cancellation

executed by him on 09.06.1994. In the said document, he expressly

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admitted the execution of the gift deeds in favour of the appellant.

However, the reasons assigned for cancellation were only that : (i) the

appellant had failed to maintain him; (ii) she was acting against his

wishes; (iii) he had no other property for his maintenance; and (iv)

possession of the property had not been handed over to her.

17. Significantly, nowhere in Ex.B2 did the settlor allege

that the gift deeds had been obtained by undue influence, fraud, coercion,

or by taking advantage of his alleged mental incapacity. The averments

subsequently made in the plaint filed by him are therefore contrary to the

recitals contained in Ex.B2.

18. In the suit filed by the settlor seeking declaration of title,

recovery of possession and injunction, he pleaded that he had become

mentally disturbed on account of the marriage of his elder daughter

against his wishes and was taking continuous medicines. According to

him, taking advantage of such mental depression, the appellant forcibly

took him to the Sub-Registrar’s Office on 17.02.1987 and obtained the

gift deeds. He further claimed that due to his illness he was unable to

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understand the contents of the documents and had signed them without

comprehending their nature and effect.

19. To substantiate the plea of mental incapacity, the settlor

examined a witness D.W.2 (in O.S.No.673 of 1995) who deposed that

Edwin David was mentally unsound. However, no medical records,

prescriptions, treatment records or other independent evidence were

produced to establish that he was suffering from any mental illness or

that he was under continuous treatment at or around the time of

execution of the gift deeds.

20. On the contrary, the recitals contained in the gift deeds

specifically record that the possession of the property was delivered to

the donee. The appellant has also produced documentary evidence

establishing mutation of revenue and municipal records in her favour.

Further, Exs.A21 to A29 and Exs.B24 and B25, being letters written by

Edwin David, clearly acknowledge that he had executed the gift deeds in

favour of the appellant for securing her future and welfare. In those

communications, he never alleged that the documents had been obtained

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by undue influence or when he was not in a sound state of mind.

21. It is only after disputes arose between father and

daughter and after the appellant instituted legal proceedings that, for the

first time, the plea of coercion, undue influence and mental incapacity

was raised. The cumulative effect of the documentary evidence

demonstrates that the cancellation was the result of subsequent

misunderstanding between the parties rather than any infirmity existing

at the time of execution. Consequently, the allegation that the gift deeds

were executed when the settlor was not in a fit state of mind which has

not been established.

22. The appellant further contended that O.S. No.78 of 1997

filed by the settlor for declaration, recovery of possession and

consequential reliefs was barred by limitation. Article 59 of the

Limitation Act prescribes a period of three years for cancellation or

setting aside of an instrument, commencing from the date when the facts

entitling the plaintiff to seek such relief first become known to him.The

plea of Edwin David that he became aware of the gift deeds only on

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25.05.1994 cannot be accepted in view of the various communications

marked as Exs.A21 to A29, wherein he expressly acknowledged the

execution of the gift deeds much earlier. The evidence clearly indicates

that he had full knowledge of the transactions and subsequently sought to

revoke them only because of differences that arose between him and the

appellant.

23. Under settled principles of law, a completed gift cannot

ordinarily be revoked by a unilateral deed of cancellation after it has

been validly executed, accepted by the donee and acted upon. Under

Section 126 of the Transfer of Property Act, a gift can be revoked only

where the donor and donee have agreed, at the time of the gift itself, that

it shall be suspended or revoked on the happening of a specified event

not dependent solely upon the donor’s will, or where grounds exist that

would justify rescission of a contract, such as fraud, coercion, undue

influence or misrepresentation. The revocation deed dated 09.06.1994

does not satisfy any of the requirements contemplated under Section 126

of the Transfer of Property Act. Therefore, the unilateral cancellation

effected by Edwin David is legally ineffective. In view of Article 59 of

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the Limitation Act, the suit filed by the settlor challenging the gift deeds

was clearly barred by limitation and liable to be dismissed on that ground

alone.

24. The respondents contended that the appellant had not

preferred any cross-appeal against the finding on limitation and therefore

could not canvass the issue in the present proceedings. This contention

cannot be accepted. A plea of limitation, where it arises from admitted or

undisputed facts, is a pure question of law and can be raised at any stage

of the proceedings, including in appeal or second appeal. Further,

Section 3 of the Limitation Act mandates that every suit instituted

beyond the prescribed period shall be dismissed even if limitation has not

been specifically pleaded. Hence, the objection raised by the respondents

is unsustainable.

25. Insofar as possession is concerned, the appellant has

produced revenue records, municipal records, tax receipts and other

contemporaneous documents demonstrating that she was recognized as

the holder of the property after execution of the gift deeds. The mere fact

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that her father continued to reside in the property does not necessarily

establish that possession had not been delivered to her. The appellant’s

explanation that she permitted her father to continue residing in the

property appears probable in the circumstances of the case. Accordingly,

the contention that possession was never handed over to the appellant

cannot be accepted.

26. The respondents further contended that the appellant

ought to have examined one of the attesting witnesses to prove the gift

deeds. Under Section 123 of the Transfer of Property Act, a gift of

immovable property is required to be signed by or on behalf of the donor,

and attested by at least two witnesses and Section 68 of the Indian

Evidence Act, provides that where a document is required by law to be

attested, at least one attesting witness must ordinarily be called to prove

its execution. However, the proviso to Section 68 specifically states that

it shall not be necessary to call an attesting witness in proof of the

execution of a registered document, other than a Will, unless its

execution by the executant is specifically denied.

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27. In the present case, the executant himself admitted

execution of the gift deeds in his letters and in the cancellation deed

dated 09.06.1994. His case was not that the signatures found in the

documents were forged or fabricated. On the contrary, he admitted

execution but sought to avoid the limitation, in the suit by alleging that

they were executed when he was mentally depressed and under undue

influence. Such a plea does not amount to a specific denial of execution

within the meaning of the proviso to Section 68 of the Evidence Act.

Mere allegations in the plaint that the documents were obtained by undue

influence cannot be equated with a categorical denial of execution.

Consequently, examination of an attesting witness was not mandatory in

the facts of the present case. The evidence on record establishes that

Edwin David executed the gift deeds voluntarily and while in a fit state

of mind. His admissions contained in the correspondence exchanged

between the parties and in the deed of cancellation itself clearly support

the appellant’s case. It is also significant that the original title deeds were

handed over to the appellant and produced by her before the Court,

whereas the settlor relied only upon certified copies.

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28. The subsequent purchaser was impleaded as a party to

the proceedings. Though he claimed to be a bona fide purchaser for value

without notice, the materials on record reveal that the purchase was

effected during the pendency of the litigation. A purchaser lis pendens

takes the property subject to the result of the litigation and cannot

acquire rights superior to those of his vendor. Therefore, the transfer is

not binding upon the appellant Ms.Lawrence and the subsequent

purchaser, if so advised, is at liberty to work out his remedies against his

vendor.

29. The respondents lastly contended that the documents

were registered at Parasala in the State of Kerala in order to conceal the

transaction from the other family members. This contention is devoid of

merit. There is no evidence whatsoever to establish that the registration

was fraudulent or intended to deceive any person. The records further

disclose that on the very same day Edwin David purchased another

property from Selvaraj under Ex.B13 and that document was also

registered in the same Sub-Registrar Office at Parasala. Although the

respondents attempted to characterize that transaction as sham and

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nominal, no evidence was adduced in support of such allegation. It is

also relevant that Edwin David himself relied upon Ex.A1, the parent

title deed relating to the suit property, which had likewise been registered

before the very same Sub-Registrar Office at Parasala. Having relied

upon that document as genuine, the respondents cannot now contend that

registration of Exs.A2 to A4 at the same office was intended to conceal

the transaction or render it suspicious.

30. Accordingly, this Court holds that the gift deeds

executed by Edwin David in favour of the appellant Ms.Lawrence were

genuine, validly executed and accepted, and were not obtained by fraud,

coercion or undue influence. The unilateral deed of cancellation is

ineffective in law and the subsequent alienations do not affect the

appellant’s rights. Consequently, the second appeal preferred by

Lawrence is allowed. The second appeal preferred by the contesting

respondents legal heirs of Mr.Edwin David stands dismissed, there being

no merit in the same.

31. In the result, S.A.No.1649 of 2003 is dismissed,

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confirming the judgment and decree passed by the Courts below.

Whereas S.A.No.237 of 2004 is allowed and the judgment and decree

dated 22.09.2002 passed in A.S.No.140 of 2002 on the file of the District

Court, Kanniyakumari at Nagercoil are set aside and the judgment and

decree dated 19.10.2001 passed in O.S.No.78 of 1997 on the file of the

Subordinate Court, Padmanabapuram are restored. No costs.

Consequently, connected miscellaneous petitions are closed.

01.06.2026

Index :Yes / No

Internet :Yes / No

er

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To

1.The District Judge, Kanyakunari @ Nagercoi.

2.The Sub Court, Padmanabhapuram

3.The Additional District Munsif, Eraniel.

4.The Section Officer,

VR Section,

Madurai Bench of Madras High Court,

Madurai.

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R.POORNIMA, J.

er

SA Nos.1649 of 2003 and 237 of 2004

01.06.2026

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