Muthusamy v. Lakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.07.2017

CORAM

THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN A.S.No.1057 of 2012 and M.P.No.1 of 2012 Muthusamy ...Appellant/Plaintiff Vs.

1.Lakshmi 2.Kamalam 3.Nalayee Ammal (died) 4.Gunasekaran 5.Selvi 6.Rangasamy

...Respondents/Defendants

(Appellant and respondents 1,2,5 and 6 are recorded as LRs of deceased R3 vide Order of Court dated 28.01.2013 (Memo dated 28.01.2013) Prayer: Appeal filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree dated 18.01.2012 in O.S.No.11 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal. For Appellant : Mr.D.Shiva Kumaran For Respondents : Mr.P.Jagadeesan for R1, R4, R5 and R6

JUDGMENT

The plaintiff in O.S.No.11 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal, whose suit was partly allowed, has come forward with this Appeal.

2.The case of the plaintiff is that the suit properties, which are two items, belonged to one Perianna Gounder, who died leaving behind his wife, the 4th defendant in the suit, the plaintiff and the defendants 1 to 3 are being son and daughters. Soundaram, one of the daughters of the said Perianna Gounder pre-deceased him, leaving behind her two sons and a daughter, who were impleaded as 5 to 7 defendants. Since the 5th defendant died pending suit, his son was impleaded as the 8th defendant. The plaintiff would claim that the deceased Perianna Gounder was the owner of the suit properties and he was living with the plaintiff. While he was taken for treatment to Pondicherry, on

his way back, he expressed his desire to stay at Deviyakurichi with the 2nd defendant. Therefore, the plaintiff had left Perianna Gounder in the custody of the 2nd defendant. 3.At that time, according to the plaintiff, the 2nd defendant has exercised undue influence on Perianna Gounder and has extracted a Will dated 12.06.2002 bequeathing the Item-II of the suit properties to his daughters alone. Thereafter, on coming to know about the said Will, having been extracted from him, the deceased Perianna Gounder changed his mind and executed another Will on 28.07.2002, canceling the Will dated 12.06.2002 and bequeathing both the suit properties in favour of the plaintiff with a direction to pay the daughters Rs.10,000/- each. He has not made any bequest to his wife in the said Will and stated that his wife is having other properties. 4.Contending that he is in possession as per the last Will dated 28.07.2002, the plaintiff has sought for a decree of injunction, restraining the defendants from interfering with his possession of the suit properties.

5.The defendants resisted the said suit contending that the second Will dated 28.07.2002, projected as the last Will of the deceased Perianna Gounder is not true and valid. They would further contend that pursuant to the Will dated 12.06.2002, they are in possession of the suit 2nd item of the property as absolute owners and therefore, the suit for bare injunction will not lie. On the above pleadings, the trial Court has framed the following issues:

1.Whether the Will dated 28.07.2002 is true and valid? 2.Whether the Will dated 12.06.2002 has been obtained by the defendants 1 to 3 by coercion and undue influence from the deceased Perianna Gounder?. 3.Whether the plaintiff is in exclusive possession of the suit property?.

4.Whether the suit is bad for not seeking for declaration of the title?.

5.Whether the plaintiff is entitled to permanent injunction?

6.To what other reliefs the plaintiffs are entitled to?

6.Upon consideration of the oral and documentary evidence, the trial Court has come to a conclusion that the second Will dated 28.07.2002 propounded by the plaintiff as the last Will of the deceased Perianna Gounder has not been proved in accordance with law. Even though, none of the attesting witnesses of the earlier Will dated 12.06.2002 were examined, the trial Court has concluded that inasmuch as the execution of the Will dated 12.06.2002 is admitted by the deceased Perianna Gounder himself in the second Will dated 28.07.2002, the necessity of

examination of the attesting witnesses stands dispensed with. On the abovesaid conclusion, the trial Judge decreed the suit in favour of the plaintiff in respect of Item-I alone on the basis of the admission of the defendants that the plaintiff has been given the properties in Patta No.344 by Perianna Gounder even during his life time and is in possession of the 1st item of suit property. The suit in respect of Item-2 came to be dismissed on the ground that as per the second Will, dated 28.07.2002, the said property is bequeathed to the daughters namely the Defendants. Aggrieved over the same, the plaintiff has filed this appeal.

7.Heard Mr.D.Shiva Kumaran learned counsel appearing for the plaintiff and Mr.P.Jagadeesan, learned counsel appearing for the respondents 1, 4, 5 and 6.

8.The 2nd respondent though served has not appeared either in person or through her counsel. The 3rd respondent died pending appeal and the appellant and the respondents 1, 2, 5 and 6 have been recorded as legal representatives of the deceased/3rd respondent Nallayee Ammal, wife of Perianna Gounder. 9.Mr.D.Shiva Kumaran, learned counsel appearing for the appellant would contend that the trial Court was not right in holding the Will dated 28.07.2002, was not proved in accordance with law. He would invite the attention of the fact that the attestor of the said Will has been examined by PW2 and therefore, the trial Court erred in rejecting the said evidence to conclude that the Will dated 28.07.2002 has not been proved in accordance with law. It is the further contention of the learned counsel appearing for the appellant that the trial Court erred in accepting the Will dated 12.06.2002, inasmuch as the defendants have not chosen to examine any of the attestors of the Will and the same having not been proved in accordance with Section 68 of the Evidence Act.

10.On the above contentions and the following points arise for determination:- 1.Whether the conclusion of the trial Court could be sustained in view of the fact that the suit is for bare injunction alone?

2.Whether the trial Court is right in going in to the question of validity of the second Will, when the plaintiff has not sought for declaration of title?

11.The plaintiff had sought for the relief of bare injunction. Though he would trace his title to the properties under the Will dated 28.07.2002, the trial Court has gone in to the question of title and held that he has not established the Will dated 28.07.2002. At the same time, the trial Court has

not taken note of the fact that the defendants have also not discharged their burden of proving their earlier Will dated 12.06.2002. The trial Court relied upon the said Will and held that the defendants are entitled to the Item-2 of the property, by virtue of the said Will. The suit being one for permanent injunction, I do not find that the trial Court is justified in going in to the question of the title.

12.The plaintiff should have sought for a relief of declaration when the Written Statement was filed by the defendants setting up title, pursuant to the Will dated 12.06.2002. The scope of the suit for injunction is restricted to the question of possession alone. In the absence of the prayer for declaration of the title or Partition, the trial Court was not justified in going in to the question of validity of both the Wills. The trial Court should have restricted the scope of the enquiry only to the question of possession. The defendants have unequivocally admitted that the plaintiff is in possession of the Item-I of the suit property. Therefore, I do not see any justification for the trial Court to dwell upon the validity and genuiness of both the Wills, dated 28.07.2002 and 12.06.2002, said to have been executed by Perianna Gounder. The findings of the trial Court on the validity and genuiness of both the Wills are set aside.

13.As regards the relief of injunction as sought for by the plaintiff, the defendants have unequivocally admitted his possession of the suit Item-I. Even according to them, the suit Item-I was given to the plaintiff by Perianna Gounder, even during his life time and the plaintiff was in possession and enjoyment of the same as absolute owner thereof. Therefore, the trial Court has also rightly considered that the said admission and granted a decree for permanent injunction in favour of the plaintiff in regard to the Item-I of the suit properties. Therefore, I do not think that the appellant is entitled to any further relief before this Court. As regards to the suit Item -II is concerned, his possession is not admitted and his title is denied.

Therefore, the appellant cannot be treated as absolute owner of the property and the relief sought for should have been declaration of the title followed by the appropriate consequential relief. In the absence of such prayers the dismissal of the suit with regard to Item-II of the suit properties cannot be faulted. Therefore, I do not find any reason to interfere with the Judgment and the decree of the trial Court with reference to the relief of injunction. It is made clear that the findings with regard to validity of both the Wills are set aside. The Decree for permanent injunction granted by the trial Court in respect of suit Item No.I of the property is confirmed only on the basis of the fact that the possession of the appellant is admitted by the respondents.

The appeal is partly allowed. The findings related to validity of Wills are set aside. The Decree for permanent injunction granted in respect of Item No.I is confirmed. In other aspects, the suit is dismissed.

Considering the relationship between the parties, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar mps To 1.The Additional District and Sessions Judge, Fast Track Court, Namakkal.

+1 cc to M/s.P.Jagadeesan Advocate sr 52625 +1 cc to M/s.D.Shivakumar Advocate sr 52378 A.S.No.1057 of 2012 and M.P.No.1 of 2012 sai(co) aa04/09/2017