Madras High Court
P.S.Benjamin Nesamani vs P.S.Saragrace Abegail on 3 February, 2015
A.S.(MD)No.85 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 21.08.2023
Delivered on : 10.11.2023
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
A.S(MD)No.85 of 2015
and
M.P(MD)No.1 of 2015
P.S.Benjamin Nesamani : Appellant/ Defendant
Vs.
1.P.S.Saragrace Abegail
2.Elizabeth
3.Immanuvel : Respondents/Plaintiffs
PRAYER:- Appeal Suit filed under Order 41 Rule 1 of C.P.C., to set aside the
decree and judgment in O.S.No.63 of 2012, dated 03.02.2015 on the file of the
I Additional District (PCR) Judge, Tiruchirappalli.
For Appellant : Mr.S.Muthu Krishnan
For Respondents : Mr.R.Suresh
JUDGMENT
The Appeal Suit is directed against the judgment and decree passed in O.S.No.63 of 2012, dated 03.02.2015 on the file of the I Additional District (PCR) Judge, Tiruchirappalli.
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2. The suit is for declaration and recovery of possession.
3. Admittedly, the plaintiffs and the defendant are brothers and sisters and are the children of the deceased P.A.S.Manickkam.
4. The case of the plaintiffs is that their father P.A.S.Manickkam has purchased the suit property vide sale deed dated 19.11.1980 and put up constructions therein; that their father allowed his elder son/defendant to reside in the suit property; that the said P.A.S.Manickkam during his life time has executed a Will on 23.03.2001, giving the suit property to the plaintiffs; that after the demise of the said P.A.S.Manickkam, the Will was probated in the proceedings in T.O.S.No.11 of 2007 on the file of the High Court of Madras; that the plaintiffs sent a legal notice to the defendant on 30.04.2012, demanding the defendant to vacate and surrender the vacant possession of the suit property; that the defendant having received the notice, sent a reply with false and untenable allegations, that since the defendant denied the title of the plaintiffs and refused to comply with the notice demand, they were constrained to file the above suit to declare that the plaintiffs are the absolute owners of the suit property and for consequential relief, directing the defendant to vacate and 2/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 surrender the possession of the same and for payment of future profits to be fixed under Order XX Rule 12 of the Code of Civil Procedure.
5. The defence of the defendant is that he purchased the suit property as a vacant site on 19.11.1980, but taken the sale deed in the name of his father; that the defendant constructed a building in 1987 by spending Rs.2 lakhs; that the defendant has been in possession and enjoyment of the suit property since 1987; that the defendant alone has been paying the house tax, electricity consumption charges, water consumption charges and that too in his name; that since the suit property is owned by the defendant, his father P.A.S.Manickkam has no right to execute any Will in favour of the plaintiffs in respect of the suit property; that his father has already filed a suit in O.S.No.740 of 2004 on the file of the District Munsif Court, Tiruchirappalli, against the defendant in respect of the suit property and since the other legal representatives were not impleaded in the suit, after his demise, the suit was ordered to be dismissed as abated, that the plaintiffs have no cause of action to the above suit and that therefore, the suit is liable to be dismissed.
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6. Based on the above pleadings, the trial Court has recasted the issues:
(i) Whether the plaintiffs are entitled for the relief of declaration of title and consequential relief of possession ?
(ii) Whether the defendant is the absolute owner of the properties which is the subject matter of suit ?
(iii) To what relief ?
7. During trial, the plaintiffs have examined the first plaintiff as P.W.1 and exhibited eight documents as Ex.A.1 to Ex.A.8. The defendant has examined himself as D.W.1 and one Thiru.G.Vincent as D.W.2 and exhibited 27 documents as Ex.B.1 to Ex.B27.
8. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment dated 03.02.2015, granting the reliefs of declaration and possession as prayed for with costs and also granted liberty to take separate proceedings for future profits under Order XX Rule 12 C.P.C. Aggrieved by the impugned judgment and decree, the defendant has preferred the present appeal. 4/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015
9. The learned counsel for the appellant would submit that the father of plaintiffs was an ex-service man and he was serving in other States of India till his retirement and after his retirement, he settled at Chennai and thereafter, he was living in his native village in Lalgudi Taluk for two years prior to his death and that he never lived in Trichy at any point of time and never claimed any right over the suit property till his life time.
10. The learned counsel for the appellant would further submit that the trial Court has failed to consider that the plaintiffs have not produced any documents to show that the suit property was purchased by their father from his own funds and constructed the building therein with the help of his own funds and that the learned trial Judge has failed to notice an important fact that the original documents with respect to the suit property were very much available with the defendant and the same were produced by the defendant before the trial Court. He would further submit that though the defendant has proved all the six aspects laid down by the Hon'ble Supreme Court in considering the real owner of the property, the trial Court has miserably failed to consider those aspects; that the trial Court has arrived at the findings only on the basis of the presumption and assumption and that therefore, the impugned judgment and decree are liable to be interfered with.
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11. The learned counsel for the respondents/plaintiffs would submit that they have proved that the suit property was purchased by their father through Ex.A.5 and Ex.A.6 and their father was permitted to withdraw Rs.9,100/- as non refundable amount by his employer National Seeds Corporation; that the appellant/defendant was only a student and was an apprentice in the year 1983 and as such, he was not getting any income; that though the defendant had initially contested the probate proceedings in T.O.S.No.11 of 2007 subsequently, remained ex-parte; that the defendant has not challenged the order passed in the probate proceedings; that the defendant has miserably failed to prove that the constructions were made by him with his own funds; that the plaintiffs were not parties to the suit in O.S.No.740 of 2004 filed by their father and the plaintiffs were not having any knowledge about that suit; that the cause of action to file the present suit has arisen only after getting the probate from this Court; that the receipts for payment of house tax, electricity consumption charges and water charges will not create or confer title on the defendant; that the defendant has absolutely no title or interest over the suit property and that the plaintiffs being the owners of the property are entitled to get the relief claimed and on that basis, the trial Court has rightly granted the decree as prayed for.
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12. The points for consideration are :
(i) Whether the trial Court erred in rendering a finding that the suit property was purchased and constructions were made by the father of the plaintiffs and defendant, despite showing that the transaction held on 19.11.1980 was a benami transaction and the defendant is the true owner and his father was only an ostensible owner by proving six guidelines/circumstances spelt out by the Hon'ble Apex Court to determine the nature of the transaction in [Valliammal (dead) by LRs Vs. Subramaniam and others reported in 2004(7) SC 233, and that the defendant has proved that he has been in possession and enjoyment of the suit property since 1987 by paying house tax and the charges for consumption of electricity and water. ?
(ii) Whether the impugned judgment and decree dated 03.02.2015 on the file of the I Additional District (PCR) Judge, Tiruchirappalli, is liable to be interfered with ?
(iii) To what reliefs, the parties are entitled ?
13. According to the plaintiffs, their father P.A.S.Manikkam has purchased the suit property and constructions were made therein by him from his own funds, whereas according to the defendant, the suit property was purchased by him and construction were made by him from his own funds. 7/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015
14. Before entering into the legal plea with regard to the benami transaction, let us consider the case factually.
15. Admittedly, the sale deed in respect of the suit property, dated 19.11.1980 under Ex.A.1 (Ex.B.3) stands in the name of P.A.S.Manicakm/father of the plaintiffs and the defendant. It is not in dispute that the said P.A.S.Manikkam, was in defence service and after his retirement, he was working in the National Seeds Corporation and more particularly, when the suit property was purchased in the year 1980.
16. The plaintiffs have produced the letter sent by National Seeds Corporation Limited to P.A.S.Manikkam, dated 05.01.1980 and the reply sent by P.A.S.Manikkam to his employer/ National Seeds Corporation Limited, dated 10.02.1981 under Ex.A.5 and Ex.A.6 respectively. It is evident from Ex.A.5 and Ex.A.6 that his employer/ National Seeds Corporation Limited has requested P.A.S.Manikkam to submit utilisation report for incurring non- refundable advance, which was sanctioned to him and for that P.A.S.Manikkam has sent a reply giving the particulars as to how that amount was utilized by him. It is clearly evident from the above that the National Seeds Corporation 8/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 Limited has permitted his staff P.A.S.Manikkam to withdraw the non- refundable amount of Rs.9,100/- for purchase of land and the same was utilized by him.
17. The defendant has produced the original sale deed under Ex.B.3 along with receipts issued for payment of registration charges. As rightly observed by the learned trial Judge that there are slight variations, but the fact remains that the non-refundable advance amount received by the said P.A.S.Manikkam, is higher than the sale consideration under Ex.B.3.
18. According to the plaintiffs, the defendant was a student and was working as an apprentice in the year 1980. The defendant, during his cross examination would admit that he has completed his diploma course in the year 1979. The defendant has alleged that he had worked in various concerns in Coimbatore, Trichy and Chennai, but, he has not produced any documents or materials to prove that he was employed in various concerns, after completing his course in 1979 and was getting surplus income so as to enable him to purchase the suit property. The defendant has only produced the identity card issued by E.S.I Corporation to the defendant on 27.04.1981 and the letter given by the Regional Provident Fund Commissioner to Indian Overseas bank, dated 02.12.1983, but no documents for the period between 1979 and 1980. 9/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015
19. D.W.1 would specifically say that he joined in Tamily Nadu Electricity Board as a tester and was getting Rs.1,000/- per month. But, he would add that though he was having the documents to prove the above aspects, he has not produced the same. He would say that he was working as an apprentice in TNEB in the year 1980, but he has not produced any documents to show the income received by him at that time and his evidence is extracted hereunder for better appreciation.
“ehd; 1980 y; ntiy bra;njd; vd;W fhl;Ltjw;F Mtzq;fs; vJt[k; jhf;fy; bra;atpy;iy. ...
1980 y; ,Ue;J 1983 tiu tUkhdj;ij fhl;lf;Toa Mtzq;fs; jhf;fy; bra;Js;nsdh vd;why; ,y;iy. ...
1979 Kjy; gy;ntW jdpahh; epWtdj;jpy; ntiy bra;njd; vd;W fhl;Ltjw;F Mtzq;fs; vJt[k; jhf;fy; bra;atpy;iy. ehd; nrkpg;g[f; fzf;if itj;J jpUr;rpapy; kid thq;fpndd; vd;W brhy;ypa[s;nsd; vd;Wk; me;j nrkpg;ig fhl;Ltjw;F Mjhuk; jhf;fy; bra;Js;nsdh vd;why; ,y;iy.”
20. Even according to the defendant, the first plaintiff was residing with him in Trichy for sometime for her educational purpose. It is pertinent to note that D.W.1 in his cross examination would deny the suggestion that his father alone had provided money for him and her sister while they were at Trichy. 10/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015
21. According to the defendant, his relationship with his father got strained at that time and hence, he was managing his affairs and expenses by himself. If that be so, the defendant has not produced any evidence or material to show that he was employed and was getting good income so as to enable him to maintain himself and to purchase the suit property in the year 1980.
22. Considering the above, this Court has no hesitation to hold that the defendant has miserably failed to prove that the suit property was purchased by him from his own funds. But on the other hand, the plaintiffs have proved that the property was purchased by their father.
23. As already pointed out, the defendant in his written statement has taken a stand that he constructed building in the year 1987 by spending Rs.2 lakhs. In his chief examination affidavit, he would say that he had constructed a small house in the year 1987 at the first instance and subsequently, improved the same stage by stage. In an attempt to prove that the building were made by him, he has produced the records to show that he obtained jewel loan, house building loan and loans from his employer/Electricity Board under Ex.B.6 to Ex.B.15. But, as rightly observed 11/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 by the learned trial Judge, Ex.B.13 letter issued by the Electricity System Employees' Co-op Thrift Society is dated 02.06.1989 and all other documents are for the period from 1992 – 1995. In cross examination D.W.1 would say that he constructed the first house in 1987 by spending Rs.25,000/- and that amount was borrowed by him. Though he would say that he was having the records to show that he borrowed Rs.25,000/-, he has not chosen to produce the same.
24. Admittedly, the defendant has not produced any permission or approved plan obtained from the Panchayat or other authorities for making constructions. As rightly contended by the learned counsel for the plaintiffs, the defendant has not produced any iota of evidence to show that he obtained loan in the year 1987 for constructing the buildings and the same were repaid by him. Considering the entire evidence available on record, the trial Court has rightly come to a decision that the defendant has failed to prove that constructions were made by him in the suit property.
25. It is not in dispute that the defendant has been in possession and enjoyment of the suit property and that he has been paying the house tax, electricity and water consumption charges. According to the plaintiffs, since the 12/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 defendant was in Trichy at that time, their father has permitted the defendant to reside in that property and on that basis, he has been in possession and enjoyment of the suit property. The defendant has examined his neighbor- mason, who allegedly constructed the building in the suit property as D.W.2and as rightly observed by the learned trial Judge, D.W.2 evidence has not advanced the case of the defendant further.
26. Now turning to the legal plea, it is the main contention of the plaintiffs that after the enactment the Benami Transaction (Prohibition) Act 1988), plea of benami cannot be taken either by way of suit or any claim or by means of written statement and hence, the defendant cannot set up the plea of benami and claim that he is the real owner and his father is ostensible owner.
27. The learned counsel for the appellant/defendant would submit that the sale transaction dated 19.11.1980 is a benami transaction wherein, the defendant is the true owner; that the plaintiffs are duty bound to prove that the property has been purchased by their father and that the person, who is claiming ownership have to prove the same and relied on the judgment of the Hon'ble Supreme Court in Valliammal (dead) by LRs Vs. Subramaniam and others reported in (2004) 7 SCC 233, wherein the Hon'ble Apex Court has 13/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 specifically held that the burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami and spelt out the following six circumstances, which can be taken as a guide to determine the nature of the transaction and the relevant passage is extracted hereunder :
“13.This Court in a number of judgments has held that it is well- established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Referred to Jaydayal Poddar Vs. Bibi Hazra, 1974 (1) SCC 3; Krishnanand Vs. State of Madhya Pradesh, 1977 (1) SCC 816; Thakur Bhim Singh Vs. Thakur Kan Singh, 1980 (3) SCC 72; His Highness Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi & Ors., 1994 (Supp.
(1) SCC 734; and Heirs of Vrajlal J. Ganatra Vs. Heirs of Parshottam S. Shah, 1996 (4) SCC 490. It has been held that in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out following six circumstances which can be taken as a guide to determine the nature of the transaction:14/25
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1. the source from which the purchase money came;
2. the nature and possession of the property, after the purchase;
3. motive, if any, for giving the transaction a benami colour;
4. the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
5. the custody of the title deeds after the sale; and
6. the conduct of the parties concerned in dealing with the property after the sale."
14.The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia.”
28. In the above decision case, the property was sold in execution of decree in the year 1927 and the sale deed in favour of the plaintiffs's wife was executed in the year 1933. Moreover, the above appeal was preferred before the Hon'ble Apex Court challenging the judgment passed in second appeal in S.A.No.1324 of 1983.
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29. As rightly contended by the learned counsel for the plaintiffs, previously the concept of benami was accepted and recognized and the position got changed subsequent to the enactment of the Benami Transactions (Prohibition) Act, 1988. No doubt, the Hon'ble Supreme Court after listing out six guidelines, has held that the above circumstances are not exhaustive and are given as a guidelines to find out the nature of the transactions.
30. At this juncture, it is necessary to refer Section 4 of Benami Transactions (Prohibition) Act.
Section 4 : Prohibition of the right to recover the property held benami. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 16/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 (3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
Section 4 (3) contemplates that sub Sections 1 and 2 shall not apply where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
31.It is necessary to refer the decision of the Delhi High court in JM Kohli Vs. Madan Mohan Sahni and another reported in 2012 DHC 3107:
“8. In a way, therefore, there may be some ostensible conflict between the provision of Section 4(3)(b) of the Benami Act and 17/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 Section 7 of the same Act which repeals the provisions of the Indian Trusts Act, 1882, however, one has to read and interpret Section 4(3)
(b) in a manner which is in accord with the legislative intention to bar claims against properties held as benami. The concept of trust was always inbuilt once a transaction was a benami transaction as the benamidar was the trustee for the real owner. But in spite of the concept of trust being inbuilt in benami transactions, the Benami Act provided that no rights could be asserted in a benami property by the actual/de jure owner.
Putting it differently, once Sections 81, 82 and 94 of the India Trusts Act, 1882 have been repealed, they cannot be brought in from the back door, so to say, by giving the same content contained in the repealed provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 to Section 4(3)(b) of the Benami Act. If we give such an interpretation, the entire Benami Act will fall and it will be as if the same has not been enacted. Therefore, Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity, although the real owner is somebody else.
9. Two of the examples where the Supreme Court has held the property to be held as a trustee in terms of Section 4(3)(b) of the Benami Act are the judgments in the cases of C. Gangacharan 18/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 V. C. Narayanan, 2000 (1) SCC 459 and P.V. Sankara Kurup V. Leelavathy Nambiar, 1994(6) SCC 68. In the case of C. Gangacharan (supra), the Supreme Court has held that the property was held as a trustee as per Section 4(3)(b) of the Benami Act, and the person in whose name the property stood cannot take up a plea of the bar of Benami Act, inasmuch as, actually the owner had given moneys for the property to be purchased under his name, however, the moneys were in fraud utilized to get the property purchased in the name of defendants in that suit. In the case of P.V. Sankara Kurup (supra) also the obvious fraud which was perpetrated was that the property was to be purchased in the name of the plaintiff by his attorney holder and which the defendants did not do and instead got the property purchased directly in their name. In the case of P.V. Sankara Kurup (supra), the Supreme Court was dealing with Section 66 of CPC as it existed before its repeal by Section 7 of the Benami Act and in the facts of the case as stated above it was held that the purchaser had acted in fiduciary capacity as an agent and consequently the bar of the Benami Act would not apply. In the said judgment, the Supreme Court held that when the agent was employed to purchase the property on behalf of his principal, however does so in his own name, i.e. the agent's name then upon conveyance or transfer of the property to the agent, he stands as a trustee for the principal.
10. Therefore, in certain cases where there is obvious breach of trust in purchasing the property in the name of a person, whereas it ought to have been purchased in the name of the principal or the real owner, Supreme Court has, to that limited extent, held that such 19/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 actions are covered under Section 4(3)(b) of the Benami Act and such transactions are not hit by the Benami Act.”
32. In the case on hand, it is not the specific case of the defendant that he gave the money to his father and requested him to purchase the property in his favour, but his father has taken the sale deed in his name.
33. It is the specific case of the defendant that he purchased the property in the name of his father. As rightly contended by the learned counsel for the plaintiffs, the defendant has canvassed a reason that he had taken the sale deed in the name of his father as a mark of respect. But, subsequently canvassed another reason that since he was unmarried at that time, he had taken the sale deed in the name of his father. But the defendant in his evidence would say that there was no cordial relationship between himself and his father.
34. In cross examination, he would say “mth; ve;j tUlj;jpy; ,Ue;J ,e;jpa tpij thhpaj;jpy; ntiy bra;jhh; vd;why; mtUf;Fk; vdf;Fk; ve;j bjhlh;g[ ,y;yhjhYk;> vd; tPl;ow;F tuhjjhYk;> ,e;j nfs;tpf;F vd;dhy; gjpy; brhy;y KoahJ. ....
mg;nghjpypUe;nj vdf;Fk;> vd; jfg;gdhUf;Fk; ngr;R thh;j;ij ,y;iy vd;why; rhpay;y. ngr;R thh;j;ij ,Ue;jJ> g[hpjy; ,y;iy. ... 20/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 vdf;Fk;> vd; jfg;gdhUf;Fk; g[hpjy; ,y;yhjnghjpYk; brhj;J mth; bgahpy; thq;fpajw;F fhuzk; khpahij epkpj;jk;jhd;...
35. D.W.1 would say that his marriage was conducted by his father-in- law and not by his father. But he would admit that Ex.A8/marriage invitation does not contain the name of his father-in-law. As rightly contended by the learned counsel for the plaintiffs, even according to the defendant, he was not cordial with his father and if that be so, he has not offered any acceptable reason or explanation for taking the sale deed in the name of his father. According to the defendant, he got married in the year 1983. Though the defendant has alleged that he had taken the sale deed in the name of his father as he was unmarried at that time, he has not advanced any reason or explanation for not getting the property back from his father, after his marriage. As rightly contended by the learned counsel for the plaintiffs, except the reasons contemplated under clauses (a) and (b) of Section 4(3) of the said Act, there is absolutely no scope for the defendant to raise the plea of benami and claim that he is the real owner.
36.Admittedly, the defendant's father has filed a suit in O.S.No.740 of 2004 against the defendant in respect of the suit property and that since the legal representatives were not impleaded subsequent to the death of the said 21/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 P.A.S.Manikkam, the suit was dismissed as abated. The learned counsel for the defendant would submit that the plaintiffs have not taken any steps to get themselves impleaded and as such, they are estopped from filing the present suit and claiming the relief of declaration and possession with respect to the suit property.
37. Admittedly, the plaintiffs were not parties to the suit in O.S.No.740 of 2004. Moreover, the said P.A.S.Manikkam by alleging that he is the owner of the suit property, has laid the suit against the defendant for recovery of possession. According to the plaintiffs, their father P.A.S.Manikkam has executed a Will dated 23.03.2001 in favour of the plaintiffs and since the same was executed in Chennai, they have applied for probate in T.O.S.No.11 of 2007 by impleading the defendant as a party therein and that though the defendant had initially contested the said case, subsequently remained ex-parte and this Court has granted probate.
38. As rightly contended by the learned counsel for the plaintiffs, though the defendant has alleged that he had challenged the order granting probate, he has not furnished the particulars of the proceedings taken by him before this Court or any other Court. Moreover, as rightly contended by the learned 22/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 counsel for the plaintiffs, cause of action for the plaintiffs to file the present suit has arisen after getting the order probating the Will.
39. Considering the above, the finding of the learned trial Judge that the plaintiffs being the owners of the property are entitled to get the reliefs of declaration and possession, cannot be found fault with and this Court is in entire agreement with the findings recorded by the learned trial Judge. Hence, this Court concludes that the appeal is devoid of merits and the same is liable to be dismissed. Considering the facts and circumstances of the case and also the relationship between the parties, this Court decides that the parties are to be directed to bear their own costs and the above points are answered accordingly.
40. In the result, the above Appeal Suit is dismissed and the impugned decree and judgment in O.S.No.63 of 2012, dated 03.02.2015 on the file of the I Additional District (PCR) Judge, Tiruchirappalli, is confirmed. Parties are to be directed to bear their own costs. Consequently, connected Miscellaneous Petition is closed.
10.11.2023 NCC : Yes :No Index : Yes : No Internet : Yes : No das 23/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 To
1.The I Additional District (PCR) Judge, Tiruchirappalli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
24/25 https://www.mhc.tn.gov.in/judis A.S.(MD)No.85 of 2015 K.MURALI SHANKAR,J.
das Pre-delivery order made in A.S(MD)No.85 of 2015 and M.P(MD)No.1 of 2015 10.11.2023 25/25 https://www.mhc.tn.gov.in/judis