Madras High Court
Mohan vs Selvaraj @ Thangadurai
Author: C.Saravanan
Bench: C.Saravanan
C.R.P.(MD)No.708 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
15.03.2023 11.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.708 of 2023
and
C.M.P.(MD)No.3289 of 2023
Mohan, S/o.Ponnu Durai ... Petitioner
vs.
Selvaraj @ Thangadurai, S/o.Duraisamy ... Respondent
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution
of India, against the fair and decretal order, dated 02.12.2022, passed in I.A.No.8 of
2022 in O.S.No.25 of 2015, on the file of the Additional District Munsif, Valliyoor.
For Petitioner : Mr.V.Meenakshi Sundaram
for Mr.S.Micheal Heldon Kumar
For Respondent : Mr.S.R.Anbarasu
ORDER
The petitioner has filed this Civil Revision Petition against the impugned order, dated 02.12.2022, passed by the learned Additional District Munsif, Valliyoor in I.A.No.8 of 2022 in O.S.No.25 of 2015.
https://www.mhc.tn.gov.in/judis 1/12 C.R.P.(MD)No.708 of 2023
2. By the impugned order, the learned Additional District Munsif, Valliyoor, has dismissed I.A.No.8 of 2022.
3. Relevant portion of the impugned order reads as under:-
''It is founded that the plaintiff has filed the suit based upon Ex.A1 will dated 26/11/1987. The said will was void, since the said Joseph Ponnudurai died before death of Sironmani Ammal that is beneficiary is died before death of executor of will. So, the will is void. At the argument stage the petition has been filed by the petitioner to compare the Ex.A.1 void will along with documents filed in I.A.NO.04 of 2020. i) the certified copy of the sale deed datd 02.02.1999 and ii) the salary increment certificate dated 22.05.1962 iii) Leave letter dated 12.01.1960 with Ex.B2 will dated 05.06.2004. But Ex.B2 will was executed by Sironmani Ammal only on 05.06.2004. The petitioner has not filed any contemporaneous signature of documents in the year of 2004 or previous year. But he is relying on documents in the year of 1962, 1960, 1987, 1999 to compare with Ex.B2 will. It is well settled law that will can be proved only by attesting witnesses. The Ex.A1 will is void one. So, the citations produced by the petitioner’s counsel need not be given much importance. The petition lacks bonafide. Hence, this petition deserves to be dismissed.''
4. The petitioner is the plaintiff in O.S.No.25 of 2015. The said suit has been filed before the Additional District Munsif Court, Valliyoor, for declaration and injunction to restrain the respondent/defendant from interfering with the suit schedule property, which is an agricultural land measuring an extent of 26 ½ cents out of 2 acres 10 cents in S.No.1700/2 in North Valliyoor Village. The trial was completed and thereafter, the case was listed for arguments on 07.03.2020. At that stage, the petitioner has filed I.A.No.8 of 2022 under Section 45 of Indian Evidence Act.
https://www.mhc.tn.gov.in/judis 2/12 C.R.P.(MD)No.708 of 2023
5. The Trial Court after examining the records, concluded that I.A.No.8 of 2022 filed was intended to delay the further proceedings in O.S.No.25 of 2015 that is to conclude arguments and to pronounce judgment in the suit filed by the petitioner/plaintiff.
6. It is the case of the petitioner that the petitioner's mother, namely, Ammachi Ammal inherited the property from the petitioner's father, namely, Late.Joseph Ponnudurai. It is submitted that the owner of the property, namely, late Siromoni Ammal had executed a registered Will, dated 26.11.1987 and bequeathed the property to the petitioner's father, who however, predeceased Late.Siromoni Ammal. Siromoni Ammal died on 16.02.2005. The petitioner's mother, however, executed a registered Settlement Deed on 20.06.2008 in favour of the petitioner.
7. The learned counsel for the petitioner fairly concedes that there is a dispute regarding the status of petitioner's mother as to whether the petitioner's mother, namely, Ammachi Ammal was indeed the wife of Late.Joseph Ponnudurai.
8. During the course of the argument, it was also informed that the petitioner's father Late.Joseph Ponnudurai was married to Late.Siromoni Ammal's sister and https://www.mhc.tn.gov.in/judis 3/12 C.R.P.(MD)No.708 of 2023 therefore, Siromoni Ammal had executed a Will in favour of Joseph Ponnudurai on 26.11.1987, which was marked as Ex.A1 before the Trial Court.
9. It is submitted that after the death of the sister of Late.Siromoni Ammal, the petitioners father Late.Joseph Ponnudurai married the petitioner's mother.
10. The learned counsel for the petitioner further informs that the respondent herein had introduced a rival Will, which is also said to be executed by Late. Siromoni Ammal on 05.07.2004 in favour of the respondent, which was marked as Ex.B2 before the Trial Court. The respondent claims to be a nephew of Late. Siromoni Ammal, who said to have executed a Will in Ex.B2, dated 05.07.2004, in favour of the respondent while the petitioner claims that the registered Will was executed earlier in favour of petitioner's father on 26.11.1987, vide Ex.A1.
11. The learned counsel for the petitioner submits that in view of the subsequent developments that the respondent/defendant has not contested the signature of Late.Siromoni Ammal in Ex.A1 Will dated 26.11.1987, and therefore, the only question that is remained to be ascertained by the Trial Court is, whether the signature in Ex.B2 Will, dated 05.07.2004, is of the Testator Siromoni Ammal and was a genuine signature or not by comparing it with signature in Ex.A1 Will, dated 26.11.1987.
https://www.mhc.tn.gov.in/judis 4/12 C.R.P.(MD)No.708 of 2023
12. It is submitted that the petitioner is in possession of the property and when the petitioner attempted to cut down the trees, the respondent came objecting that he was the owner of the property.
13. It is further submitted that Ex.B2, Will dated 05.02.2004, has not been proved in the manner known to law and no witness, who had witnessed the execution of the Ex.B2 Will, was examined by the respondent.
14. It is submitted that even though burden of proof is on the plaintiff to prove his case, it is also the burden of the petitioner to disprove Ex.B2, Will dated 05.02.2004. Though there is a delay, however, the delay should not be at the cost of justice, particularly, in the light of the fact when it is concluded that Ex.B2 Will, dated 05.02.2004, was a fabricated Will.
15. The present Civil Revision Petition is contested by the respondent on the ground that the status of the petitioner's mother Ammachi Ammal as the wife of Late. Joseph Ponnudurai itself is questionable and under cloud.
16. It is further submitted that O.S.No.6 of 2004 was filed before the Principal District Court, Valliyoor, by one Anbu Jane Mary Bai, first wife of Late.Joseph https://www.mhc.tn.gov.in/judis 5/12 C.R.P.(MD)No.708 of 2023 Ponnudurai and her son against the petitioner's mother Ammachi Ammal and the claim of the petitioner's mother that she was the wife of Late.Joseph Ponnudurai stood disproved and the issue has attained finality by a judgment and decree of this Court, dated 13.07.2014 in S.A.(MD)No.293 of 2009.
17. It is further submitted by the learned counsel for the respondent that the further appeal before the Hon'ble Supreme Court in S.L.P. (C) No.36641 of 2016 filed by the petitioner herein was also dismissed by the Hon'ble Supreme Court, vide judgment and decree, dated 07.12.2016. Thus, the status of the petitioner's mother as the wife of Late.Joseph Ponnudurai stands disproved. Therefore, the Settlement Deed executed by the petitioner's mother on 20.06.2008 is of no relevance.
18. That apart, it is submitted that the rival suit was also filed by the petitioner herein in O.S.No.28 of 2015 before the District Munsif Court,Valliyoor, along with his mother and P.Mohan, P.Selvam and Minor P.Sasikumar against the respondent herein for peaceful possession. The dispute relating to the property herein is also the dispute in the said suit by relying the aforesaid Wills registered in Ex.A1, dated 26.11.1987 and Ex.B1, dated 05.07.2004.
https://www.mhc.tn.gov.in/judis 6/12 C.R.P.(MD)No.708 of 2023
19. It is submitted that in the said proceedings, the District Munsif Court,Valliyoor, has also categorically concluded that the alleged Will Ex.A1, dated 26.11.1987, was invalid. A reference is made to Paragraph No.23 of the judgment and decree of the District Munsif Court,Valliyoor, in O.S.No.25 of 2015, which reads as under:-
“23.
jhth nrhj;jpy; rpNuhd;kzp mk;khs; vd;gthplk; capy; %yk; chpkk; ngw;w nghd;Dj;Jiu vd;gth; me;j capy;
eilKiwf;F tUtjw;F Kd;Ng ,we;Jtpl;ljhy; Nkw;gb 26.11.1987 Njjpapl;l th.rh.M.1 Md capypd; ];jpuj;jd;ik Nfs;tpf;Fwpahfptpl;ljhy; me;j capypd mbg;gilapy; thjpfs;
jhth nrhj;jpy; chpik NfhUtJ Vw;GilaJ my;y vd jPh;khdpf;fg;gl;L gp.th.rh.M.15 Mtzj;jpy; cs;s 3tJ thjpapd; ngah; ePf;fg;gl;lJ vd;gJ njhpa tUfpwJ.
24. Nkw;fz;l tpthjq;fspd; mbg;gilapy;> jgrpy; nrhj;jpy;
thjpfSf;F chpikAk; ghj;jpaKk;> mDgtKk; ,y;iy vd ,e;ePjpkd;wk; KbT nra;jpUg;gjhy;> 05.07.2004 Njjpapl;L ts;spA+h; rhh;gjpthsh; mYtyf Mtz vz;.23/2004 Mf gjpT nra;ag;gl;l capy; Mtzj;ij gw;wp Nfs;tp Nfl;gjw;F thjpfSf;F chpik ,y;iy vd ,e;ePjpkd;wk; KbT nra;fpwJ.
vdNt> 05.07.2004 Njjpapl;l ts;spA+h; rhh;gjpthsh; mYtyf Mtz vz;.23/2004 Mf gjpT nra;ag;gl;l capy; Mtzk;
rl;lg;gb nry;yhJ vd;w tpsk;Gif ghpfhuk; thjpfSf;F fpilf;fj;jf;fJ my;y vd ,t;ntOtpdhtpw;F ,e;ePjpkd;wj;jpy; jPh;T fhzg;gLfpwJ.”
20. That apart, the learned counsel for the respondent also produced the copy of Ex.B11, dated 02.06.1999, marked before the District Munsif Court, Valliyoor, in O.S.No.28 of 2015, which is a nomination by Late.Siromoni Ammal for Government pension whereby, the respondent herein was nominated to receive the family pension. https://www.mhc.tn.gov.in/judis 7/12 C.R.P.(MD)No.708 of 2023
21. A copy of the nomination in Annexure was also shown before this Court together with a Communication, dated 15.09.2005 of a Director of Pension Trust to the respondent, including a cheque for Rs.25,000/- towards lump sum grant under Tamil Nadu Pensioners Family Security Scheme Fund, wherein the relationship of the respondent has been given as the grand son (i.e.) son of other sister's daughter.
22. By way of rejoinder, the learned counsel for the petitioner submits that the certified copy of the judgment and decree in O.S.No.28 of 2015 is yet to be received by the petitioner herein, who are the plaintiff in the said suit also and therefore, the petitioner will take steps for filing a statutory appeal before the appellate Court.
23. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent. I have also perused the impugned order passed by the Additional District Munsif, Valliyoor, in I.A.No.8 of 2022 in O.S.No.25 of 2015.
24. The suit is of the year 2015. The suit has been filed by the petitioner for declaration and injunction as mentioned above. The petitioner claims indirectly title over the suit schedule property on the strength of a Will executed by the Testator Siromoni Ammal in favour of his father Late.Joseph Ponnudurai and on the strength https://www.mhc.tn.gov.in/judis 8/12 C.R.P.(MD)No.708 of 2023 of a settlement deed, dated 20.06.2008, which is said to have been executed by the petitioner's mother Ammachi Ammal. However, the said Will, which was executed in favour of Late.Joseph Ponnudurai became irrelevant as Late.Joseph Ponnudurai passed away even before the Testator of the Will, died. The Testator of the Will Late.Siromoni Ammal died on 16.02.2005. Therefore, the rights claimed by the petitioner over the property on the strength of the settlement deed, dated 20.06.2008, prima facie appears to be without any basis. That apart, O.S.No.6 of 2004 filed by one Anbu Jane Mary Bai and John Wesley against the petitioner's mother Ammachi Ammal and 3 others, disputing the claim of the petitioner's mother Ammachi Ammal as the wife of Late.Joesph Ponnudurai has been answered against the petitioner’s mother. Therefore, on this count also, prima facie, it appears that the petitioner has no right over the property on the strength of the alleged Will, dated 26.11.1987 and the settlement deed, dated 20.06.2008, which is said to have been executed by the petitioner's mother.
25. The petitioner wants the signature in Ex.A.1 Will, dated 26.11.1987, to be the basis for determining the genuinity of the Will in Ex.B.2, dated 05.07.2004, which is said to have been executed by the same Testator Late.Siromoni Ammal in favour of the respondent.
26. In my view, the trial Court has come to a fair conclusion that the petitioner https://www.mhc.tn.gov.in/judis 9/12 C.R.P.(MD)No.708 of 2023 cannot rely on the documents of the years 1962, 1960, 1987 and 1999 to compare with the signature in Ex.B.2. The Will has to be proved under Section 68 of the Indian Evidence Act with help of the attesting witnesses. Therefore, the contention of the petitioner that there is a necessity for sending Ex.B.2 for comparison with Ex.A.1 cannot be countenanced. Therefore, the order passed by the Trial Court rejecting the request of the petitioner for sending the signature in these documents for comparison cannot be interfered with.
27. That apart, the application, which has been filed for sending the document for comparison of the signature after the trial was over and arguments were commenced, clearly proves the intention is only to prolong the longevity of the litigation. The case was at an advance stage. The petitioner has also filed O.S.No.28 of 2015 before the District Munsif Court, Valliyoor, for physical possession. It appears that the said suit has also been recently dismissed by the Trial Court. The basis for the relief in the above said suit is also the basis of the Will and Settlement Deed, which have been executed and marked as Exs.A.1 and A.2 in the above suit. If at all, comparison can be made only between the signature in Ex.B2, Will, dated 05.07.2004 and Ex.B.11, Pension Nomination Letter, dated 02.06.1999, in which the Testator Late.Siromoni Ammal has nominated the respondent herein. Therefore, even on this count, there is no reason to interfere with the impugned order. https://www.mhc.tn.gov.in/judis 10/12 C.R.P.(MD)No.708 of 2023
28. For the above reasons, I do not find any merit in the present Civil Revision Petition to interfere with the impugned order passed by the learned Additional District Munsif, Valliyoor, in I.A.No.8 of 2022 in O.S.No.25 of 2015. Therefore, the present Civil Revision Petition is liable to be dismissed. The Trial Court is directed to pass the final judgment and decree on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order.
29. This Civil Revision Petition stands dismissed with the above observation. No costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes / No
Index : Yes / No 11.04.2023
Internet : Yes / No
smn2
To
The Additional District Munsif,
Valliyoor.
https://www.mhc.tn.gov.in/judis
11/12
C.R.P.(MD)No.708 of 2023
C.SARAVANAN, J.
smn2
PRE-DELIVERY ORDER MADE IN
C.R.P.(MD)No.708 of 2023
DATED : 11.04.2023
https://www.mhc.tn.gov.in/judis
12/12