Madras High Court
Siriya Pushpam vs V.Mary on 6 February, 2019
Author: R. Tharani
Bench: R. Tharani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 14.02.2019
DELIVERED ON : 21.02.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.R.P.(NPD)(MD)No.1951 of 2015
1.Siriya Pushpam
2.Mariya Deva Shagayam
3.Kuppammal (Died)
4.C.Sivakanimathan
5.S.Chidambaranathan
6.S.Ulaganathan
7.S.Arasappan
8.C.Meenambikai .. Petitioners
(the petitioners 4 to 8 are impleaded as legal heirs of the
deceased the third petitioner as per order dated 06.02.2019
in C.M.P.(MD)No.7243 of 2017 in C.R.P.(MD)No.1951 of 2015 by RTJ)
Vs.
1.V.Mary
2.V.Francis Devammal
3.A.Maria Thangathai
4.K.Pathima Saroja .. Respondents
Prayer : This Civil revision petition is filed under Article 227 of the Constitution of India,
to set aside the fair order and decretal order made in I.A.No.87 of 2015 in O.S.No.90 of
2014 on the file of the 4th Additional District Judge, Tirunelveli dated 22.06.2015.
For Petitioners : Mr.S.Balasubramanian
For Respondents : Mr.K.Chengiz Khan
For Mr.G.Prabhu Rajadurai
ORDER
Heard Mr.S.Balasubramanian, learned counsel appearing for the petitioners http://www.judis.nic.in 2 and Mr.K.Chengiz Khan, learned counsel appearing for the respondents.
2.This petition has been filed against the order passed in I.A.No.87 of 2015 in O.S.No.90 of 2014 on the file of the learned IV Additional District Judge, Tirunelveli dated 22.06.2015.
3.The petitioners are the defendants and the respondents are the plaintiffs in the suit. The respondents have filed a suit in O.S.No.90 of 2014 for a relief of partition of 8/5th share in the suit properties. The respondents have filed a petition in I.A.No.87 of 2015 before the learned IV Additional District Munsif, Tirunelveli stating that the defendants has to initiate the trial and the defendants side witnesses have to be examined first in the trial. The trial Court has allowed the petition. Against which, the petitioners have filed the present revision petition.
4.On the side of the petitioners, it is stated that the plaintiffs and the defendants 1 and 2 belonged to the same family and the third defendant is the owner of the Nanja land mentioned in the second schedule property and that the plaintiffs predecessor were the cultivating tenants and the suit is filed for a share in the cultivation right in the second schedule property and that the first defendant is the wife of the late Annathurai. Annathurai has executed a Will in favour of his only son, the second defendant.
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5.On the side of the petitioners, it is stated that as per the Tenancy Act, all the legal heirs cannot automatically become tenants only a persons who bestow his physical labour along with the tenant alone can be a tenant and not all the legal heirs. It is stated that all the plaintiffs are ladies and they are married and they are residing in their husbands house and that they have never contributed any physical labour and there cannot be a tenancy by birth.
6.On the side of the petitioner, it is stated that Annathurai has executed a Will and there cannot be a partition with regard to the first schedule property and that the plaintiffs have claimed the Will as a forged one and those who claim forgery has to prove the same. The burden is upon the plaintiffs to prove forgery and that even the first schedule property is not absolutely belonged to the family and that the house was constructed on the vacant site of the Wakf Board and the father Annathurai was only a tenant under Wakf Board and that still rent is paid to the Wakf Board. It is further stated that it is the duty of the plaintiffs to prove the case and to prove the availability of family properties and it is the duty of the plaintiffs to prove that the Will is a forged one. The question of ownership of the first schedule property has to be proved only by the plaintiffs and that the Wakf Board is not impleaded as a party and that it is the duty of the plaintiffs to prove that all the necessary parties are impleaded in the case and prayed the petition to be allowed.
7.On the side of the respondents, it is stated that the property belonged to http://www.judis.nic.in 4 Annathurai and there is no dispute regarding the ownership of the property and that Annathurai died on 23.02.1998 and that the defendants forged the Will dated 24.02.1998 and that there is no chance for execution of the Will, as the executor of the Will was not alive on 24.02.1998 and that the probater of the Will has to prove the Will and that if the Will is proved, there is no case for the plaintiffs and that the first issue to be decided in this case is the validity of the Will. It is stated that under Section 65 to 67 of the Indian Succession Act, a probater of the Will has to prove the case and that the burden is upon the defendants and it is the duty of the defendants to examine their side witness first.
8.On the side of the petitioners, it is stated that the burden is upon the petitioners to prove the Will but the issue to be decided in this petition is not the validity of the Will but who has to initiate the trial.
9.Two points are raised on the side of the petitioners. One is that the suit first item belonged to a Wakf Board and that the father of the plaintiffs has leased out the first schedule property and the second schedule property is a tenancy right and that this suit is for partition and that it is the duty of the plaintiffs to prove the ownership of the first schedule property and to prove whether the tenancy right can be partitioned. Though the burden is upon the defendants to prove the Will, the plaintiffs cannot shrink away from their liability to prove their case. Hence, it is decided that it is the duty of the plaintiffs to initiate the trial.
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10.Hence, the Civil Revision Petition is allowed and the order passed in I.A.No.87 of 2015 in O.S.No.90 of 2014 on the file of the learned IV Additional District Judge, Tirunelveli is set aside. No Costs.
21.02.2019
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The 4th Additional District Judge, Tirunelveli.
http://www.judis.nic.in 6 R. THARANI, J.
mrn C.R.P.(PD)(MD)No.1951 of 2015 21.02.2019 http://www.judis.nic.in