Madras High Court
Chinnu @ Sugarna vs Saraswathi on 3 December, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.12.2014 Coram: THE HONOURABLE Mrs.JUSTICE ARUNA JAGADEESAN C.R.P.(NPD).No.2344 of 2011 and M.P.No.1 of 2011 Chinnu @ Sugarna .. Petitioner Vs. 1. Saraswathi 2. Gunavathi. 3. Renugadevi 4. Sivagamusundari .. Respondents Prayer Civil Revision Petition filed under Article 227 of the Constitution of India against the petition and order dated 26.10.2010 unnumbered in I.A.No..... of 2010 in O.S.No.525 of 2007 on the file of the District Munsif, Pollachi. For Petitioner : Mr.L.Chandrakumar For Respondents : Mr.S.Vijayakumar for R1 to R3 Mr.C.Veeraraghavan for R4. O R D E R
This revision is preferred against the order dated 26.10.2010 passed in unnumbered I.A. in O.S.No.525 of 2007 by the learned District Munsif, Pollachi, refusing to transpose the 2nd defendant as the 4th plaintiff in the original suit. The respondents 1 to 3 have instituted the suit against one Sivagamusundari/ 1st defendant and the petitioner herein/ second defendant for declaration that the plaintiffs have vested interest over the suit property and for permanent injunction restraining the 1st defendant from alienating or encumbering the suit property.
2. According to the plaintiffs, the suit property originally belonged to the father of the plaintiff, namely Veluswamy Gounder and he bequeathed the suit properties in favour of his younger son namely Arumugam under a registered Will dated 26.09.1996. The testator namely Veluswamy died on 24.02.2001. The first defendant is the wife of Arumugam, the younger brother of the plaintiffs. The first defendant and her husband Arumugam had no issues and the parents of the said Arumugam also pre-deceased him. Arumugam died of cancer and while he was alive, he executed a Will in favour of the plaintiffs and the defendants. As per the Will, the first defendant has to enjoy the suit properties without the power of alienation and after her life time, the properties would devolve upon the plaintiffs and the second defendant equally. The plaintiffs and the first defendant were not in cordial terms with Eswarasamy who is the elder brother of the plaintiffs. Though the first defendant was given only the life estate in the suit property, the plaintiffs have come to know that she is making an attempt to encumber the suit property and therefore, they have filed the suit for the above said reliefs.
3. The first defendant filed the written statement denying the averments and allegations made in the plaint and also disputed the Will said to have been executed by her husband Arumugam on 19.07.2002. On the other hand, the second defendant filed a written statement admitting the execution of the Will by the deceased Arumugam and further stated that she has no objection to declare her rights in the suit property. Pending suit, the second defendant filed an application seeking to transpose her as 4th plaintiff on the ground that she has got vested interest and right over the suit property and as such her interest and right has to be declared in the present suit. The said application was dismissed by the learned District Munsif, Pollachi, as against which, the present revision has been filed.
4. Even before the trial Court, the petitioner/ 2nd defendant admitted that she had filed a separate suit in O.S.No.673 of 2010 ARUNA JAGADEESAN,J.
vsi for declaration that she has got vested interest in the suit property which is pending before the same Court. As rightly pointed out by the trial Court that when a separate suit is filed by the petitioner/2nd defendant for the same relief and the same is pending, she cannot seek the same remedy by transposing her as 4th plaintiff in the present suit. The trial Court has observed that the 2nd defendant is claiming interest on the basis of the Will dated 19.07.2002 executed by the 1st defendant's husband, namely Arumugam and it is open to her to agitate her right in the suit filed by her in O.S.No.673 of 2010. Therefore, the trial Court dismissed the said petition, which in my opinion does not call for any interference. Therefore, the civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
03.12.2014 Index:Yes/No Internet:Yes/No vsi ToThe District Munsif, Pollachi.
C.R.P.(NPD).No.2344 of 2011