Madras High Court
Veda Padmapriya vs Natha Murali Krishna
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.60 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON: 28.01.2022
JUDGMENT DELIVERED ON:09.02.2022
CORAM:
THE HON'BLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.60 of 2019
&
C.M.P.No.1256 of 2019
and
C.R.P.(NPD)No.4199 of 2018
S.A.No.60 of 2019
Veda Padmapriya
W/o, Sri.A.V.R.K.Kumar ... Appellant
Vs.
Natha Murali Krishna ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C., against the
judgment and decree dated 09.08.2018 made in A.S.No.196 of 2016 on the
file of the VII Additional Judge, City Civil Court, Chennai, confirming the
judgment and decree dated 04.04.2016 made in O.S.No.4662 of 2014 on the
file of the XI Assistant Judge, City Civil Court, Chennai.
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S.A.No.60 of 2019
C.R.P.(NPD)No.4199 of 2018
Veda Padmapriya
W/o, Sri.A.V.R.K.Kumar ... Appellant
Vs.
Natha Murali Krishna ... Respondent
Prayer:
Civil Revision Petition is filed under Article 227 of the Constitution
of India, against the order and decreetal order dated 09.08.2018 made in
C.M.P.No.919 of 2017 in A.S.No.196 of 2016 on the file of the VII
Additional Judge, City Civil Court, Chennai.
For Appellant : Mr.M.Balasubramanian
For Respondent : Mr.AR.L.Sundaresan,
Senior Advocate
for Mr.Simi Mathew
*****
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S.A.No.60 of 2019
COMMON JUDGMENT
Second Appeal No.60 of 2019 is filed against the judgment and decree dated 09.08.2018 passed in A.S.No.196 of 2016 on the file of the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 04.04.2016 passed in O.S.No.4662 of 2014 on the file of the XI Assistant Judge, City Civil Court, Chennai.
2. C.R.P.No.4199 of 2018 is filed against the order passed in C.M.P.No.919 of 2017 in A.S.No.196 of 2016.
3. The appellant/plaintiff filed a suit for permanent injunction restraining the respondent, his men, agent or servant from in anyway encumber the suit property and for costs.
4. The case of the appellant is that the suit property originally belonged to Mrs.Desu Chandramma. She executed a registered Will on 27.10.1975 in respect of the suit property. She appointed the respondent as an executor of the Will and he was also vested with the life interest in the 3/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 suit property. The respondent has not taken any steps to Probate the Will. The appellant initiated proceedings and filed O.P.No.291 of 2014 before this Court for Letters of Administration. Meanwhile, the respondent attempted to encumber suit property with a view to thwart the claim of the appellant after the life time of the respondent. If any encumbrance is created over the suit property, the right of the third party may come in and it would prejudice the interest of the appellant. Therefore the suit.
5. The respondent filed the written statement. He admitted the execution of Will dated 27.10.1975 in respect of the suit property by Mrs.Desu Chandramma. The suit property shown as 'B' schedule property in the Will. He also admitted the filing of O.P.No.291 of 2014 by the appellant for grant of Letters of Administration. The appellant has to obtain proper Letters of Administration. Unless there is an order passed in O.P.No.291 of 2014, the appellant has no cause of action to file the suit. The appellant has no right in the suit property as on today. Therefore, the suit has to be dismissed.
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6. The Trial Court framed the following issues for trial:
i. Whether the plaintiff is entitled to the relief of permanent injunction against the defendant in respect of the suit property from restraining the defendant from encumbering it?
ii. To what other relief?
7. During the course of trial, P.W.1 was examined and Exs.A1 to A4 were marked on the side of the appellant/plaintiff. D.W.1 was examined and no document was marked on the side of the respondent/defendant.
8. On considering the oral and documentary evidence, the Trial Court found that the appellant has not produced any evidence to show that the respondent was taking steps to encumber the suit property and found that there is no cause of action for filing the suit and dismissed the same. The appellant has filed an Appeal in A.S.No.196 of 2016. The Appellate Court also found that without probating the Will, the appellant cannot claim any right through the Will and therefore confirmed the judgment and decree of the Trial Court and dismissed the First Appeal. Challenging the dismissal of the First Appeal, the appellant has filed this Second Appeal. 5/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019
9. It is seen from the records that the appellant has filed C.M.P.No.919 of 2017 in A.S.No.196 of 2016 under Order XLI Rule 27 of C.P.C., and Section 151 C.P.C., for receiving the certified copy of the lease deed by the respondent on 01.09.2014 as additional evidence. This petition was dismissed by the Appellate Court on 09.08.2018. Challenging the said dismissal order, the appellant has also filed C.R.P.No.4199 of 2018. As per the order of the Hon'ble Chief Justice, both the matters are now taken up for disposal.
10. At the time of admission of this Second Appeal, the following substantial questions of law were framed:
(a) Whether the Courts below right in ignoring the settled law that before the probate court, the property is not in dispute and it is for the civil court to grant the preventive relief of injunction as held by our Hon'ble High Court reported in A.I.R.1949-Mad-45 and A.I.R.1996 Madras page 318?6/25
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(b) Whether the First Appellate Court as a final court of fact and law, ignore the dubious lease deed registered by the respondent/defendant as additional document during the pendency of the suit without even disclosing the same by the defendant in his written statement filed on 28.04.2015?
11. Learned counsel for the appellant submitted that as per Ex.A1 Will, she is entitled to get the suit property absolutely after the life time of the respondent. The respondent, though given life interest in respect of the suit property, his life interest is restricted only for the enjoyment of the suit property and he cannot alienate/create any encumbrance in respect of the suit property, which may likely to affect the absolute right of the appellant. However, the respondent tried to create encumbrance by creating third party right in the suit property and thus jeopardizing the interest and absolute right of the appellant in the suit property. After filing of the suit, the respondent executed a lease deed dated 01.09.2014 in favour of one 7/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 Mr.A.Syed Ibrahim with certain clauses. He has created sort of permanent right in the suit property with unfettered right to borrow money using the suit property as security, in favour of the lessee. The creation of the lease deed would certainly affect the right of the appellant in the suit property. The petition to receive additional document filed in C.M.P.No.918 of 2017 was unceremoniously dismissed by the First Appellate Court. Non-suiting the appellant on the ground that the appellant has no cause of action to file the suit is not on the basis of correct understanding of the terms of the Will, right of the parties. Now, the Letters of Administration is granted in favour of the appellant by this Court on 28.02.2019. The respondent by creating the lease deed dated 01.09.2014, is trying to deny the appellant's right in the suit property. Both the Courts below have not considered the issues involved in the case in proper perspective and wrongly dismissed the suit. Therefore, the learned counsel for the appellant prayed for setting aside the judgment and decree of the Courts below and for allowing this Second Appeal.
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12. In response, Mr.AR.L.Sundaresan, learned Senior Advocate appearing for the respondent submitted that through Ex.A1 Will, the respondent is given life interest to enjoy the suit property, receive the rents, maintain the property etc., Therefore, the respondent is entitled to utilize the suit property to get maximum income. Right of the appellant in the suit property arises only after the death of the respondent. During the life time of the respondent, the appellant cannot question the mode and manner of use of the suit property by the respondent. Even if any right is created in favour of third parties in the suit property, the right will come to an end on the death of the respondent. Therefore, the appellant cannot challenge the enjoyment of the suit property by the respondent in the manner best suited to him. The respondent will not encumber the suit property contrary to the recitals in the Will. The appellant has no cause of action for filing the suit. Both the Courts have rightly dismissed the suit. This Second Appeal has no merits and therefore liable to be dismissed.
13. Considered the rival submissions and perused the records. 9/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019
14. From the narration of the facts of the case and the submissions of the counsel appearing for the parties, it is clear that the parties are in agreement with the fact that the suit property originally belonged to Mrs.DesuChandramma and she executed Ex.A1 Will. Though, it is claimed by the respondent, not in written statement, but in his proof affidavit that there is yet another Will executed by Desu Chandramma, after the execution of Ex.A1 Will, it is now admitted that the respondent has not produced any evidence in respect of execution of yet another Will after the execution of Ex.A1 Will on 27.10.1975. Therefore, it is now proved that Ex.A1 is the last Will of Desu Chandramma, It is now informed by the learned counsel for the appellant that Letters of Administration was granted in favour of the appellant in O.P.No.291 of 2014, which was pending at the time of filing of the suit. Order in O.P.No.291 of 2014 was passed by this Court on 28.02.2019.
15. Before considering the issue involved in this case, it is necessary to understand the terms of the Will dated 27.10.1975. It is not necessary to reproduce the entire recitals in the Will, but it is enough to highlight certain 10/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 important recitals concerning this case. Through this Will, Mrs.Desu Chandramma bequeathed 'A' and 'B' schedule properties, 'B' schedule property is the suit property in this case. When bequeathing the 'B' schedule property, Mrs.Desu Chandramma said that the respondent has to enjoy the 'B' schedule property for his life without power of sale, mortgage etc., and from the income of the 'B' schedule property, he should pay the Corporation tax, other taxes, public charges and should keep the property in good condition. He is absolutely entitled to the net income from the property during his life time. For better appreciation, the exact recitals in the Will is extracted hereunder:-
7(b) I hereby give devise and and bequeath the house, ground and premises at No.30., Sarojini Street, T.Nagar, Madras-17, more particularly described in Schedule 'B' hereunder to the said Natha Muralikrishna to be enjoyed by him for his life without power of sale, mortgages etc., The said Natha Muralikrishna shall out of the income of the 'B' schedule property pay the Corporation Taxes, Tax Urban Land and other public charges pertaining to it and meet all other 11/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 charges to keep the property in good condition. He shall be entitled absolutely to the net income from the said property during his life time.
16. After his life time, the property will pass on to his wife Natha Mathu Sudhana with the same life interest. On her death, the property shall be taken by their children in a specified manner. Those details are not relevant now, because they have no children. In the event of Natha Murali Krishna, the respondent herein dying without leaving any issue, male or female by Natha Mathu Sudhana, then the 'B' schedule property shall be taken with all absolute right of ownership by Veda Padmapriya, the appellant herein. For the better appreciation, the exact recitals is extracted hereunder:
(v) In the event of Natha Muralikrishna dying without leaving any issue male or female by Mathusudhana, then this 'B' schedule property shall be taken with all absolute rights of ownership by Veda Padma Priya who is the daughter of Late Kaliimidi Sulochanamma, wife of C.N.Alwar Chetty who died in 30.10.1969.12/25
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17. Admittedly, the respondent and Natha Mathu Sudhana has no children. As per the terms of this Will, after the life time of the respondent, the appellant is entitled to take the suit property with absolute right of ownership. Now, the Letters of Administration has been granted in favour of the appellant in respect of Ex.A1 Will.
18. The suit was filed in August 2014 seeking the relief of permanent injunction apprehending that the respondent is trying to encumber the suit property with a view to thwart the claim of the appellant in the suit property after his life time. It is true that the appellant has not produced any tangible evidence to show that the respondent attempted to encumber the suit property before the Trial Court. That was the main reason for the dismissal of the suit by the Trial Court. In Appeal in A.S.No.196 of 2016, the appellant filed C.M.P.No.919 of 2017 under Order XLI Rule 27 for receiving the certified copy of the lease deed dated 01.09.2014 executed by the respondent in favour of Mr.A.Syed Ibrahim in respect of the suit property. Unfortunately, this application was dismissed by the First 13/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 Appellate Court on the reason that the conditions stipulated in Order XLI Rule 27 had not been satisfied by the appellant.
19. It is submitted by the learned counsel for the appellant that the appellant was not aware of the existence of the lease agreement dated 01.09.2014 when the suit was pending before the Trial Court. After coming to know of its existence, she filed C.M.P.No.919 of 2017 before the Appellate Court. May be that lease deed dated 01.09.2014 had come into existence before the commencement of trial. Merely because it was not produced before the Trial Court, the Appellate Court cannot refuse to receive this document in Appeal, if the document aids the Court for disposal of the case and for rendering substantial justice to the parties. The Appellate Court may receive any document or any evidence to enable to pronounce judgment or for any other substantial cause. Order 41 Rule 27(b) of C.P.C., deals with it.
If the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, 14/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
20. It is now necessary to find out how important the lease deed dated 01.09.2014 for the disposal of this case. This lease agreement is produced before this Court along with records in Criminal Revision Petition No.4199 of 2018. This is an unregistered lease agreement. It came to be executed on 01.09.2014 between the respondent and one A.Syed Ibrahim, S/o, Abdul Lathif. It contained about 24 clauses. It is relevant to take note of the following clauses.
i. It is made clear through clause 11 of this lease agreement that the respondent received a total sum of Rs.25,00,000/- as deposit for leasing the suit property.
ii. Clause (2) shows that the lease is for a period of 29 years and renewable for 2 further terms of like periods by executing a fresh lease deeds and the monthly rent is Rs.4,000/-.
15/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 iii. Clause (4) authorises the lessee to do any modification, changes in the suit property including structural changes, demolition and rebuilding of the premises either partially or completely as may be required by the lessee.
iv. Clause (8) gives unfettered right to the lessee to borrow money by using the premises as security and it also authorises the lessee, right to mortgage the suit property with banks, financial institutions and non- banking finance companies and others.
Clause (19) authorises the lessee to partially or completely sub-lease the premises.
21. Learned counsel for the appellant drew the attention of this Court that these clauses make it clear the respondent's only evil intention is that the appellant will not get the suit property after his life time. The terms of the lease agreement show that absolute right is given to the lessee to deal with the property by effecting mortgage, lease, making structural changes and demolition of the building. If such a third party right is created, the appellant's right would be greatly affected. Learned counsel for the 16/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 appellant drew the attention of this Court that the respondent claimed himself as an absolute owner of the suit property in this lease deed, whereas, he is only a life interest holder.
22. Reading of this lease agreement shows that the respondent himself claimed to the absolute owner of the suit property. As rightly pointed out by the learned counsel for the appellant that the respondent is only a life interest holder of the suit property and he is not a absolute owner of the suit property. Therefore, the claim of the appellant that he is the absolute owner of the suit property is not correct. What is disturbing is that certain clauses created unfettered right in favour of the lessee Syed Ibrahim through this lease agreement. If these terms are given effect, there is absolutely no possibility of the appellant getting the suit property after the life time of respondent. Those clauses are clause nos.2,4,8 and 19. Clause (2) reads that lease is for a period of 29 years. At the time of execution of this lease agreement, the respondent was aged about 78 years. This lease agreement gets terminated as per this clause, only when he attains the age of 107 years. We may not know whether he would live for such a long period. 17/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 It further recites that this lease is a renewable for two further terms by executing fresh deeds. If he lives to see the extension for further two like periods, the lease would come to an end only when he attains the age of 165 years. This clause is incorporated in the lease agreement only to deny her right in the suit property after the death of the respondent. Clause (4) gives authorization to the lessee to modify, change the existing structure/premises including structural changes, demolition and rebuilding the building partially or completely. In fact, the respondent authorizes the lessee to totally demolish the existing building and to construct a new one. This right is as an alien to lease hold right and against law. Clause(8) shows the unfettered right to borrow money by suing the suit property as security with banks, financial institutions, non-banking finance companies and others. There is also a right given for effecting partial or complete sub-lease by the lessee.
23. These recitals, we do not normally see in any kind of lease agreement. The right to mortgage is not given to the respondent in Ex.A1 Will, but he gives the right to mortgage the suit property to the lessee. One 18/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 cannot convey a better right than what he has. Therefore, it is apparent that the recitals in the lease agreement dated 01.09.2014 are made only to jeopardize the right of the appellant ie., her absolute right, ownership in the suit property. This is an important document to decide the lis between the parties. This document come into existence after filing of the suit. Therefore, the First Appellate Court ought to have received the document as additional evidence and disposed the first appeal, for the reason that this document would change the outcome of the result. Unfortunately, the First Appellate Court dismissed the petition and this dismissal is not correct. Under Order XLI Rule 27 of CPC., additional document/evidence can be received if it enables the Court to pronounce the judgment or for any substantial cause. This document helps the Court in pronouncing the judgment and rendering substantial justice to the parties. Therefore, the order of the learned VII Additional Judge, City Civil Court, Chennai passed in C.M.P.No.919 of 2017 is setaside and the copy of the lease agreement dated 01.09.2014 is received as an additional evidence and marked as Ex.A5.
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24. As indicated above, Ex.A5 lease agreement dated 01.09.2014 prima- facie, shows that it is created only to encumber the suit property to deny her the suit property and entangle the appellant into litigation. No doubt, the respondent is not entitled to create any right than what was conferred to him through Ex.A1 Will and whatever the right that was created by the respondent through the Ex.A2 lease agreement dated 01.09.2014, would come to an end on the death of the respondent. But the fact remains that execution of the lease agreement dated 01.09.2014 shows that the respondent is hellbent upon creating encumbrance over the suit property to harm the appellant. Therefore, this Court of the considered view that the appellant is entitled for the relief of permanent injunction as prayed in the suit.
25. The judgment reported in AIR 1996 Madras 318 [In Re:P.D.Rajan and Others], it was observed that in Probate proceedings, there is no property in dispute. Therefore, application for injunction retraining the respondent from taking possession of the property of the deceased is not sustainable. In the judgment reported in AIR 1949 20/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 Madras 45 [ Namagiri Ammal Vs. T.Subba Rao], it was observed that in a proceeding for Probate of a Will or for the grant of Letters of Administration is not a suit in which there is a dispute in respect of immovable property. Therefore, there is no question of invoking the provision of Order 39 Rule 2 C.P.C., Only Civil Court can grant the preventive relief of injunction. For the reasons aforestated, on substantial question of law No.1, this Court finds that the Courts below ignored the settled principles of law that it is for the Civil Court to grant preventive relief of injunction as held by our High Court reported in A.I.R 1949 Madras 45 and A.I.R.1996 Madras 318 and on substantial question of law No.2, this Court finds that the First Appellate Court wrongly ignored the lease agreement dated 01.09.2014 by dismissing the petition to receive additional document.
26. In fine, this Court sets aside the order dated 09.08.2008 passed in C.M.P.No.919 of 2017 in A.S.No.196 of 2016 on the file of the VII Additional Judge, City Civil Court, Chennai and allows C.R.P.(NPD)No.4199 of 2018. Similarly, the judgment and decree dated 21/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 09.08.2018 passed in A.S.No.196 of 2016 on the file of the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 04.04.2016 passed in O.S.No.4662 of 2014 on the file of the XI Assistant Judge, City Civil Court, Chennai is set aside and the suit filed by the appellant for the relief of permanent injunction that the respondent, his men, agent or servant should be restrained from encumbering the suit property is decreed and the decree for permanent injunction as prayed for is granted in favour of the appellant with costs of the appellant throughout.
27. Resultantly, the second appeal is allowed with costs of the appellant throughout. Consequently, connected miscellaneous petition, if any, is closed.
09.02.2022 mfa Index:yes Speaking Order: Yes/No 22/25 https://www.mhc.tn.gov.in/judis S.A.No.60 of 2019 The following Additional Document marked on the side of the appellant/plaintiff:
Exhibit Date Description of the document
Ex.A5 01.09.2014 Copy of the unregistered lease agreement
dated 01.09.2014 between the respondent and
A.Syed Ibrahim.
09.02.2022
mfa
To
1. The VII Additional Judge,
City Civil Court,
Chennai.
2.The XI Assistant Judge,
City Civil Court,
Chennai.
Copy to
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S.A.No.60 of 2019
The Section Officer,
VR Section,
High Court,
Chennai.
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S.A.No.60 of 2019
G.CHANDRASEKHARAN J.
mfa
Pre-deliery order made in
S.A.No.60 of 2019
&
C.M.P.No.1256 of 2019
and
C.R.P.No.4199 of 2018
09.02.2022
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