Madras High Court
S.Parimala vs S.Saradha .. Caveator/Defendant
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.01.2017
DELIVERED ON : 03.02.2017
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
T.O.S.No.1 of 2014
in
OP.No.468 of 2013
and
C.S.No.743 of 2013
T.O.S.No.1 of 2014
S.Parimala ..Petitioner/Plaintiff
Vs.
S.Saradha .. Caveator/Defendant
Original Petition No. 468 of 2013 was filed under Sections 232 and 276 of Indian Succession Act, XXXIX of 1925 for the grant of Probate. Against this petition a Caveat was filed on 12.08.2013 by the Caveator. As per order of this Court dated 11.12.2013, the Original Petition No.468 of 2013 was converted into Testamentary Original Suit No.1 of 2014.
C.S.No.743 of 2013
1.S.Parimala
2.S.Manoj Kumar
3.S.Madhan Kumar .. Plaintiffs
Vs.
1.R.Sarangapani
2.S.Saradha
3.S.Shivaji
4.S.Sethuraman
5.S.Seenivasan .. Defendants
C.S.No.743 of 2013: Plaint filed under Section IV Rule 1 of Original Side Rules Read with Order VII Rule 1 of CPC praying for a judgment and decree against the defendants;
a. to Declare that the plaintiffs are the absolute owner of the suit property namely the building and premises bearing Door No.6/73 B, Senthil Nagar, 4th Street, Periyar Padhai West, Choolaimedu, Chennai 600 094, more fully described in the Schedule hereunder;
b. consequently direct the defendants to deliver peaceful and vacant possession of the suit property namely the building and premises bearing Door No.6/73 B, Senthil Nagar, 4th Street, Periyar Padhai, West, Choolaimedu, Chennai 600 094, more fully described in the Schedule hereunder to the plaintiffs;
c. to direct the defendants to render proper accounts in respect of the income earned from Sri Balaji Powder Coating run in the suit property from 02.05.2005 till the date of decree and to pay to the plaintiffs such amount found due on rendition of accounts;
d. to direct the defendants to pay damages to the plaintiffs at Rs.30,000/- (Rupees Thirty thousand only) per month from 15.09.2005 till date of delivery of possession of the suit property for illegal use and occupation of the suit property by the defendants and
e. direct the defendants to pay the plaintiffs the costs.
For plaintiff in
TOS.No.1 of 2014
and 1st plaintiff in
C.S.No.743 of 2013 : Mr. P.L.Narayanan
For defendant in
TOS No.1 of 2014 and : No appearance
For 2nd defendant in
C.S.No.743 of 2013
C O M M O N J U D G M E N T
The petition in O.P.No.468 of 2013 originally filed for grant of Probate has been converted as testamentary suit being TOS.No. 1 of 2014 in view of the caveat filed by the second defendant therein.
The Civil Suit in C.S.No.743 of 2013 has been filed for declaration to declare the absolute possession of the suit property and direct the defendants to deliver the vacant possession of suit property, render proper accounts and to pay a sum of Rs.30,000/- to the plaintiffs as damages and costs.
2.The brief facts of the Testamentary Original Suit in T.O.S.No.1 of 2014 are as follows:
The plaintiff is the wife of the deceased Sundararaj. He died on 02.05.2005 at 2005 leaving behind his wife viz., S.Parimala and his two sons viz., S.Manoj Kumar (minor) and S.Madhan Kumar (minor). The deceased Sundararaj executed a Will dated 04.03.2004 bequeathing his properties to the plaintiff and his two minor children. The said Will has been traced out only in the year 2012, as the Will was kept in the Trunk Box in the house. Hence, the Testamentary Original Suit has been filed to grant Probate of the Will dated 04.03.2004.
3.The brief facts of the case of the plaintiffs in C.S.No.743 of 2013 are as follows:
(i)The first plaintiff is the wife and plaintiffs 2 and 3 are sons of the of late Sundararaj. The said Sundararaj started his life from a scratch and single-handedly coupled with unceasing and tireless effort and industry backed up by extraordinary intelligence. Later, he started business on his own in the name and style of "Sri Saradha Pharmacy".
(ii)When Sundararaj reached his economical independence, he brought the defendants to Madras, as all of them were tottering for survival in their native village. At this juncture, said Sundararaj decided to start a new business, namely, Powder Coating Factory in the name and style of "Sri Balaji Powder Coating Company" in a rental premises. The first defendant did not like urban atmosphere and therefore, he was frequently visiting Madras along with the second defendant. Whereas the defendants 3 to 5 wanted to work independently and took jobs elsewhere.
(iii)In the year 2005, the first plaintiff's husband Sundararaj purchased the suit property namely, the building and premisses bearing Door No.6/73 B, Senthil Nagar, 4th Street, Periyar Padhai West, Choolaimedu, Chennai 600 094 after obtaining loan from the Standard Chartered Bank. The first plaintiff occupied the house in the suit property along with her husband Sundararaj. Since the said house was quite accommodative, the defendants joined the plaintiffs in the said house and occupied the different portions. The first plaintiff and her husband did not object the same.
(iv)When the matter stood thus, the husband of the first plaintiff died in a motor accident on 02.05.2005. Taking advantage of the poor plight of the plaintiffs, the defendants started ill-treating them, which resulted in the plaintiffs moving out of their own house. The defendants were adamant in their intention to chase out the plaintiffs and with the coercion, they made the first plaintiff to sign on a 50 rupee stamp paper containing the recitals that defendants 1 and 2 are having 1/4th share in the suit property. Therefore, the above document is not in force of law.
(v)While so, the plaintiffs lodged a police complaint and a CSR was also issued by the police. Due to the said complaint, the defendants agreed to run the business of the plaintiffs and out of the income earned from the business, they assured to pay the loan installments to the Mortgagee Bank as well as the monthly rent to the plaintiffs. But, the defendants failed to keep up their words. Hence, the plaintiffs issued a legal notice dated 09.09.2011 calling upon the defendants to vacate the suit property.
(vi)When the matter stood thus, in the first week of August 2012, the third plaintiff expressed his desire to the first plaintiff that he decided to go to Sabarimala like that of his father. Hence, on 16.8.2012, after demise of her husband, the first plaintiff first time opened the religious trunk box, in which, the Sundararaj used to keep the Sabarimala Ayyappan Pooja items and clothings. In the trunk box, she found the Original Will dated 04.03.2004, which is kept in one of the religious books. To know about the same, she enquired one D.Kandasamy, who is the first witness of the said Will. The said Kandasamy, who is a friend of her deceased husband confirmed that the Will was executed in his presence along with the second witness A.Chokkalingam and the same is genuine and carried his wish.
(vii)As the first plaintiff has no support and she being a widow lady, the defendants were trying to dispose of the suit property by approaching the mortgagee Standard Chartered Bank, but, the mortgagee refused to give the original document to the defendants as the mortgagor was the husband of the first plaintiff. In such circumstances, the first plaintiff issued an independent legal notice to the second defendant on 02.11.2012 and thereafter, the plaintiffs filed O.P.No.468 of 2013 to grant probate in respect of the Will dated 4.3.2004. On contesting the same, the said Original Petition was converted into Testamentary Original Suit.
(viii)Though the plaintiffs are the legal heirs of the deceased Sundararaj, who was the absolute owner of the suit property and he bequeathed the same to the plaintiffs by the Will dated 04.03.2004, due to the abundant caution given by the defendants, the plaintiffs filed the civil suit for declaration of title, ownership and possession of the suit property and damages at the rate of Rs.30,000/- per month from the defendants.
4.Though notice was served on the defendants in C.S.No.29.11.2013 and in T.O.S.No.1 of 2014 on 19.02.2014, they have not chosen either to appear in person or through counsel. Therefore, they set ex-parte.
5.On the side of the plaintiffs, the first plaintiff examined herself as P.W.1 and Ex.P.1 to Ex.P.17 were marked.
6. Heard the learned counsel for the plaintiffs and perused the records. The details of the documents are hereunder:
Exhibits produced on the side of the plaintiff in C.S.No.743 of 2013:
Sl.
No. Exhibits Date Description of documents
1.
P-1 NIl Photocopy of the Income Tax Returns for the assessment year 2002-2003
2. P-2 07.03.2004 Photocopy of the Sale Agreement
3. P-3 15.06.2004 Photocopy of the acknowledgment given by the Standard Chartered Bank in respect of the receipt of the title deeds
4. P-4 06.05.2004 Certified copy of the Sale deed registered as Doc.No.1830/2004 at SRO, Kodambakkam.
5P-5 Photocopy of the death certificate of S.Sundararaj, who died on 02.05.2005, issued by the Birth and Death Registrar, Corporation of Chennai.
6P-6 04.03.2004 Photocopy of the Will Executed by S.Sundararaj 7 P-7 01.04.2004 Photocopy of the Proforma Invoice 8 P-8 09.09.2011 Photocopy of the legal notice sent by the plaintiffs' counsel to the defendants.
9P-9 12.04.2004 Photocopy of the letter sent by the Kotak Mahindra Bank.
10P-10 26.10.2005 Photocopy of the letter sent by the Kotak Mahindra Bank to the first plaintiff's husband.
11P-11 21.03.2005 Photocopy of the letter sent by the IDBI Bank to the first plaintiff's husband.
12P-12
-
Photocopy of the legal heirship certificate of Sundararaj issued by the Egmore-Nungambakkam Taluk.
13P-13 07.02.2009 Puplic notice published in "Makkal Kural" Tamil daily.
14P-14 27.12.2011 Photocopy of the receipt issued by the Sub Inspector of Police, F-5, Choolaimedu Police Station for the complaint given by the first plaintiff.
15P-15 02.11.2012 Office copy of the legal notice sent by the plaintiffs' counsel to the second defendant.
16P-16 02.11.2012 Office copy of the legal notice sent by the plaintiffs' counsel to the second defendant along with the postal receipts.
17P-17 21.12.2012 Legal notice sent by the defendant's counsel to the plaintiffs' counsel Witnesses examined on the side of the plaintiff:
P.W.1. - S.Parimala P.W.2. - D.Kandasamy Exhibits marked on the side of the plaintiff in T.O.S.No.1 of 2014:
Ex.P.1 - Original Will dated 04.03.2004 executed by S.Sundararaj
7.The Testamentary Original Suit in T.O.S. No.1 of 2014 has been filed to grant probate in respect of the Will dated 04.3.2004 left by the husband of the plaintiff. The plaintiff in T.O.S.No.1 of 2014 filed a Memo dated 12.01.2017 stating that suit in C.S.No.743 of 2013 filed for declaration is between the same parties and the subject matter is also one and the same. Therefore, she filed a Memo for adopting the evidence and recorded in C.S.No.743 of 2013 to the Testamentary Original Suit. Apart from that, the Original Will also marked as Ex.P.1 in Testamentary suit.
8.To prove the Will one Mr.D.Kandasamy was examined as P.W.2 in C.S.No.743 of 2013. He has categorically stated in his evidence that he is the first attesting witness and Mr.A.Chokkalingam, is the second attesting witness to the Will executed by S.Sundararaj. The testator signed the Will in their presence and the Will is a genuine one and it carries the wishes of the deceased Sundararaj.
9.It is seen from his evidence that both the attesting witnesses have signed in the Will in the presence of the testator and similarly, the testator signed in the Will in the presence of the attesting witnesses. The deceased Sundararaj executed the Will in favour of the plaintiffs in C.S.No.743 of 2013 and he appointed the first plaintiff in C.S./plaintiff in T.O.S. as the executor of the Will. His evidence also proves the testamentary capacity of the testator at the relevant time.
10.From the evidence of P.W.1 and P.W.2 and the exhibits produced on the side of the plaintiffs in C.S.No.743 of 2013 it is proved that the deceased Sundararaj bequeathed the suit property in favour of the plaintiffs in C.S.No.743 of 2013 by executing the Will dated 04.03.2004 and the Will is also proved before the Court of Law.
11.It is pertinent to note that the evidence adduced on the side of the plaintiffs remain unchallenged and that the defendant has not come forward to cross examine the witnesses. They remained ex parte even on 12.08.2014 itself in C.S.No.743 of 2013.
12.Having regard to the evidence available on record and also considering the entire pleadings and documents, this Court hold that the Will propounded by the plaintiff in the aforementioned Testamentary Suit has been proved as per law. Hence, the ownership is established and probate of the Will in respect of the plaintiff is granted Accordingly, T.O.S.No.1 of 2014 Suit is allowed. No costs.
13.To prove the case of the plaintiffs in C.S.No.743 of 2013, the first plaintiff was examined as P.W.1. In her evidence, she categorically deposed on her behalf and on behalf of other plaintiffs that her husband purchased the suit property by his own independent income and she filed Exs.P.1 to P.17.
14. Ex.P.1, the photocopy of the Income Tax Returns filed in the name of Sundararaj in the year 2003 shows that the deceased Sundararaj had his own independent income. Ex.P.4, the certified copy of the sale deed dated 06.05.2004 shows that the suit property was purchased by the deceased Sundararaj in the year 2004. Exs.P.7 and other documents were only the xerox copies of the documents. Therefore, this Court cannot give much credence to them. Ex.P.8 shows that the plaintiffs sent a legal notice dated 09.9.2011 to the defendants through their counsel calling upon them to vacate the premises occupied by them. Ex.P.7 is the photo copy of the proforma invoice shows that the husband of the plaintiff purchased the vehicle.
15.The legal heirship certificate Ex.P.12 shows that apart from the plaintiffs, the father and mother have also been shown as legal heirs of the deceased. Ex.P.13 is the public notice published in respect of the property. Though public notice has been published in the news paper, none has come forward to claim title or possession in respect of the suit property.
16.Evidence of P.W.1 and P.W.2 would show that the suit property has been purchased in the name of S.Sundararaj and the same has been proved by Ex.P.4, sale deed dated 06.05.2004, which has been executed by one Srikumar Goturu in favour of the first plaintiff's husband deceased S.Sundararaj at SRO, Kodambakkam. Once the Will has been proved in the manner known to law even though the mother is a class one legal heir of the deceased Sundararaj, she cannot claim any share in the property. Hence, the defendants have no right over the suit property. Therefore, this Court is of the view that the plaintiffs have established their title to the suit property. Hence, certainly, they are entitled for grant of declaration.
17.Since, the defendants are in possession of the suit property without having any right over the suit property, the defendants are liable to pay damages at the rate of Rs.10,000/- per month from the date of the suit till the date of delivery of possession of the suit property. So far as the rendition of the accounts is concerned, this Court is of the view that no decree is necessary, since the damages were ordered to be paid by the defendants to the plaintiffs.
18.Since declaration is granted that the plaintiffs are the absolute owners of the suit property, the defendants are directed to deliver the vacant possession of the suit property to the plaintiffs. The defendants are also directed to pay damages to the plaintiffs at the rate of Rs.10,000/- p.m. from the date of the suit till the date of realisation.
19.In the result, the suit is decreed on the above terms. However, there shall be no order as to costs.
Index:Yes/no Internet: Yes 03.02.2017 cla N.SATHISH KUMAR.J. cla Pre-delivery Judgment in T.O.S.No.1 of 2014 (O.P.No.468 of 2013) and C.S.No.743 of 2013
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