Mories Antoine Danraj v. Victoria

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.02.2022

CORAM:

THE HONOURABLE Mr. JUSTICE S.S.SUNDAR S.A. No.872 of 2021 and C.M.P. No.16611 of 2021 Mories Antoine Danraj Son of late Iroudayadass, No.565, Bharathiar Road, Nehru Nagar, Karaikal.

..Appellant/1st Defendant

Versus

1. Victoria

2. Nambique Marie alias Vasuki

3. I.Pouline

4. M.Cleophas Mary

5. A.Rosaly

6. A.Adaikalamary ..Respondents/Plaintiffs 1 to 6

7. G.Usharani

8. Manikavathy ..Respondents 7 & 8/Defendants 7 & 8 Second Appeal filed under Section 100 of Civil Procedure Code, 1908, to set aside the judgment and decree dated 22.12.2020 made in A.S. No.02/2018 on the file of Subordinate Judge, Karaikal, confirming the judgment and decree dated 13.02.2018 made in O.S. No.401/2013 on the file of Principal District Munsif, Karaikal and allow the above second appeal. For Appellant: Mr. M.V.Venkateseshan

JUDGMENT

Aggrieved by the judgment and decree in A.S. No.02 of 2018, passed by the learned Subordinate Judge, Karaikal, confirming the judgment and decree made in O.S. No.401 of 2013 passed by the learned Principal District Munsif, Karaikal, the appellant filed the above second appeal.

2. The appellant is the first defendant in O.S. No.401 of 2013. The respondents 1 to 6 in the above second appeal filed a suit in O.S. No.401 of 2013 on the file of Principal District Munsif Court, Karaikal, for a declaration that the plaintiffs and defendants are the only legal heirs of deceased Thiru.

P.Iroudayadass S/o. Periyanayagam. There was no consequential prayer in the suit.

3. The first defendant / appellant filed a written statement admitting that the plaintiffs and the defendants are the sons and daughters of deceased P. Iroudayadass. However, it is stated in the written statement that he has no objection in case the plaintiffs undertake that they will not claim any right on the basis of any document of conveyance by Iroudayadass. The trial Court decreed the suit specifically holding that the plaintiffs and defendants 1 to 3 are the legal heirs of deceased Iroudayadass. Challenging the judgment and decree of the trial Court, the appellant namely the first defendant in the suit preferred an appeal in A.S. No.2 of 2018 before the Sub Court, Karaikal. The said appeal also was dismissed confirming the judgment and decree of the trial Court. Aggrieved by the same, the first defendant has preferred the above second appeal.

4. It is stated that the suit is only for declaring the legal status of plaintiffs and defendants. Though it was contended by the appellant, in the course of trial, that the said Iroudayadass who died on 10.08.2011, had executed a Will in favour of the first defendant, plaintiffs, in the present suit did not claim any right over the properties of the deceased Iroudayadass. The lower appellate Court without going into the truth or validity of the Will rightly held that they are outside the scope of the suit, confirmed the judgment of the trial Court.

5. This Court is unable to find any legal injury to the appellant. The Will alleged to have been executed by the said Iroudayadass is not the subject matter of the suit. No relief was prayed touching the genuineness of Will set up by the first defendant / appellant. The lower Appellate Court, after holding that it is not necessary to deal with Will, granted a decree declaring the status of the plaintiff. Learned counsel for the appellant submitted that the Courts below decreed the suit without properly considering the exhibits. Learned counsel further submitted that the Courts below ought to have considered the truth and validity of the Will and refuse to grant decree as prayed for in the light of the Will. As pointed out earlier, absolutely there is no substance in any of the grounds or the Substantial Questions of Law raised by the appellant.

6. Having regard to the nature of relief, the declaration declaring the status of parties without reference to the properties left are the rights of legal heirs of deceased. The

Court is not expected to conduct a roving enquiry about the proof or validity of Will set up by one of the party to lis in the present suit. It is open to a person claiming right under the Will or aggrieved by the Will to establish his right over the property of Iroudayadass, by filing a separate suit. Even if the other side files a suit for partition or claims absolute title or right, it is open to the party who relies upon the Will stated to have been executed by the father Iroudayadass, to raise any plea to substantiate his right under the Will. Absolutely there is no finding recorded against the appellant as regards the plea which he has raised in the written statement.

7. This Court is not inclined to entertain the Second Appeal particularly when no substantial question of law is involved or arise for consideration in this second appeal. Accordingly, this Second Appeal is dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar //True copy// Sub Assistant Registrar bkn To

1. The Subordinate Judge, Karaikal

2. The Principal District Munsif, Karaikal.

Copy to The Section Officer VR Section High Court, Madras 104.

+2 CCS to Mr. M.V.Venkateseshan, Advocate sr 7924. S.A. No. 872 of 2021 MG(CO) SP(25/02/2022)