Madras High Court
M.Goutham Chand vs J.Damien on 29 October, 2021
Author: N.Seshasayee
Bench: N.Seshasayee
C.S.No.399 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 23.08.2021
Judgment Pronounced on : 29.10.2021
CORAM : JUSTICE N.SESHASAYEE
C.S.No.399 of 2014
1.M.Goutham Chand
2.M.Prakash Chand
3.M.Mahendra Chand
4.M.Narendra Chand ... Plaintiffs
Vs.
1.J.Damien
2.Jesintha Mathew
3.M.Cathereen Rosalle
4.M.Jones Joseph ... Defendants
Prayer : Civil Suit filed under Order IV Rule 1 of the Original Side Rules
read with Order VII Rule 1 of CPC., praying for
(a) for dividing the property being land and buildings, standing in
Old Door No.2/3 (formerly Old Door No.3, Jubilee House,
Japamalai Madha Church Road) and Old Door No.5 & 6, Mat-
ilda Villa and present Door Nos.8,9 and 10, Rosary Church
Road, Mylapore, Chennai – 600 044. comprised in Old Survey
No.1720, C.C.No.1746, R.S.No.2588/1 in Block No.52, having a
total extent of 4 grounds or thereabouts, more clearly described
in the Schedule into two halves and hand over possession of one
half to the plaintiffs jointly;
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C.S.No.399 of 2014
(b) for a permanent injunction restraining the defendants, their men,
servants, agents or any one acting under them, from in any man-
ner dealing with the property being land and buildings, standing
in Old Door No.2/3 ( formerly Old Door No.3, Jubilee House,
Japamalai Madha Church Road) and Old Door No.5 & 6, Mat-
ilda Villa and present Door Nos.8,9 and 10, Rosary Church
Road, Mylapore, Chennai – 600 044. comprised in Old Survey
No.1720, C.C.No.1746, R.S.No.2588/1 in Block No.52, having a
total extent of 4 grounds or thereabouts, more clearly described
in the schedule hereunder, in a manner contrary to the right, title,
interest and entitlement of the defendants;
(c) for cost of the present suit.
For Plaintiffs : Mr.V.Kuberan
for M/s. Rank Associates
For Defendants : Mr.D.Senthil Kumar [D1]
Mr.P.Sunil alias Sunil Prakash
[D2 to D4]
JUDGMENT
1. The suit is laid for partition of plaintiffs’ half share in the suit property and for other ancillary relief. The subject matter of the suit is a plot of land meas- uring about four grounds with residential and non-residential buildings.
2. The case of the plaintiffs can be summarised:
● The suit property originally belonged to a certain Joseph Swaminathan. https://www.mhc.tn.gov.in/judis/ 2/19 C.S.No.399 of 2014 He was married twice. Through his first wife he had two sons, Mathew and Damien, who is the first defendant in the suit. Of these two sons, Mathew had passed away, and his branch is represented by heirs who are defendants 2 to 4.
● Joseph Swaminathan's 2nd wife is Leela Joseph. Through her, Joseph Swaminathan had four daughters.
● While so, Joseph Swaminathan had executed a Will dated 06-05-1992, bequeathing half share in the suit property to his two sons, Damien (the 1st defendant), and Mathew. The other half share was bequeathed to his four daughters. Life estate was given to his second wife Leela Joseph.
● The Will executed by Joseph Swaminathan came to be probated by this Court in T.O.S.No.43 of 1995 (Ext.P7). This was challenged in O.S.A.No.17 of 2002 (Ext.P8). There was a further challenge in Spe- cial Leave Appeal (Civil CC.No.12337 of 2007) before the Hon'ble Supreme Court, it also came to be dismissed.
● Be that as it may, the plaintiffs have purchased the shares of the four daughters of Joseph Swaminathan born through his second wife Leela https://www.mhc.tn.gov.in/judis/ 3/19 C.S.No.399 of 2014 Joseph under four separate sale deeds, on 29.06.1998 (Exts.P1 to P4). Leela Joseph joined as a co-executant in each of the sale deeds.
3. The defence taken by the defendants in the written statement is that Leela Joseph was mandate to perform certain obligations under the Will and they were not performed. The grounds on which the defendants resisted the suit can be bullet pointed:
● That under the Will of Joseph Swaminathan, Leela Joseph was given life estate, and that until her death sale to the plaintiffs cannot take place. And plaintiffs cannot claim partition during the life time of Leela Joseph. And, Leela Joseph is a necessary party to the suit. The suit is bad for non-joinder of necessary party at one level, and is pre- mature at another level.
● On the date when Leela Joseph and her daughters sold the property to the plaintiffs as legatees under the Will of Joseph Swaminathan, the Will was yet to be probated. Therefore, the property cannot validly vest in the plaintiffs even though the Will came to be probated sub- sequently.
https://www.mhc.tn.gov.in/judis/ 4/19 C.S.No.399 of 2014 ● That the property was not the exclusive property of Joseph Swaminathan, but was purchased due to the joint efforts of Joseph Swaminathan and his two sons. Hence, if at all any, Joseph Swaminathan is only entitle to a fractional share and even if the plaintiffs have acquired any right in the property, it would be no more than a fraction in the fractional share of Joseph Swaminathan. ● The plaintiffs themselves have laid O.S.No.6068 of 2012 before the XIII Asst Judge, City Civil Court, Chennai, seeking a direction to the defendants to pay the rent and for certain other reliefs. In that suit, the plaintiffs have taken up a plea that they would institute a suit for parti- tion only after the life time of Leela Joseph.
● The suit is bad for under valuation since the plaintiffs admittedly are not in physical possession of the property.
Issues & Trial:
4. On the above pleadings, following issues were framed:
1.Whether the plaintiffs are entitled to a decree of partition dividing the property being land and buildings, standing in https://www.mhc.tn.gov.in/judis/ 5/19 C.S.No.399 of 2014 Old Door No.2/3 (formerly Old No.3, Jubiliee House, Japamalai Madha Church Road) and Old Door No.5 & 6, Matilda Villa and present Door Nos.8,9 and 10, Rosary Church Road, Mylapore, Chennai – 600 004, comprised in Old Survey No.1720, C.C.No.1746, R.S.No.2588/1 in Block No.52 of a total extent of 4 Grounds or thereabouts, more clearly described in the schedule to the plaint, into two halves and for jointly taking over possession of one half of the same?
2. Whether the plaintiffs are entitled to a decree of perman-
ent injunction restraining the defendants, their men, ser- vants, agents or any one acting under them, from in any manner dealing with the property being land and buildings standing in Old Door No.2/3 (formerly Old No.3, Jubilee House, Japamalai Madha Church Road) and Old Door No.5 & 6, Matilda Villa and present Door Nos.8,9 and 10, Rosary Church Road, Mylapore, Chennai – 600 004, com-
prised in Old Survey No.1720, C.C.No.1746, R.S.No.2588/1 in Block No.52 of a total extent of 4 Grounds or thereabouts, more clearly described in the schedule to the plaint,in a manner, contrary to the right, title, interest and entitlement of the defendants?
3. Whether filing of the suit in O.S.No.6068 of 2012 will operate as a bar for filing the present suit?
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4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether Mrs.Leela Joseph have complied with the terms and conditions of the Will executed by Mr.Joseph Swaminathan?
6. Whether the plaintiffs are in possession and enjoyment of the suit property?
7. Whether the above suit is barred under Order II Rule 2 of CPC?
8. Whether the plaintiffs have paid proper court fee under Section 37 of the Tamil Nadu Court Fees and Suit Valu- ation Act?
9. Whether the sale deed dated 29.06.1998 executed by Mrs.Leela Joseph and others in favour of the plaintiff, was valid?
10. Whether the parties are entitled to any other relief?
5. The suit was tried by Additional Master - IV. During trial, the 2nd plaintiff https://www.mhc.tn.gov.in/judis/ 7/19 C.S.No.399 of 2014 examined himself as P.W.1. He is the only witness for the plaintiffs. They have produced Exts. P-1 to P-13. For the defendants, the defendants 1 and 2 have examined themselves respectively as D.W.1 and D.W.2.
6. Of the various documents produced by the plaintiffs, Ext.P-1 to P-4 are the sale deeds in their favour.
The Arguments:
7. The learned counsel for the plaintiffs argued:
● It is an indisputed fact that the Will of Joseph Swaminathan is now probated. It would mean that whatever that would accrue to his second wife Leela Joseph and his four daughters through the former would ne- cessarily be passed on to the plaintiffs by operation of law. ● The present suit is not barred by Order II Rule 2 CPC, since the suit is for partition. Secondly, the Will under which Leela Joseph was gran- ted life estate had authorised her to collect rents. And, the plaintiffs having purchased the shares of Leela Joseph’s four daughters to which the Leela Joseph herself had joined as a co-executant of Ext.P-1 to P-4 https://www.mhc.tn.gov.in/judis/ 8/19 C.S.No.399 of 2014 sale deeds, became entitled to all that which their vendors were en- titled to. This is fortified by the fact that in paragraph 30 of Ext.P.8 judgment in OSA.No.17 of 2002, the Division Bench of this Court has upheld the validity of Exts.P.1 to P.4, sale deeds. ● The plaintiffs are entitled to collect rents which Leela Joseph was en-
titled to receive. The earlier suit does not deal with the inter se rights of Leela Joseph and her daughters and that which the defendants have. In this connection it is relevant to mention that the plaintiffs have laid O.S.6068 of 2012 (Ext.P9), but that suit came to be dismissed not be- cause the plaintiffs did not have right to property, but because they did not prove that any of the defendants in that suit had restrained them from collecting rent.
● When Leela Joseph joined the execution of Exts.P-1 to P-4 sale deeds, her life interest in the property too has been transferred. It is her absolute right to alienate, or to hold on to her rights, and hence the de- fendants cannot question it.
https://www.mhc.tn.gov.in/judis/ 9/19 C.S.No.399 of 2014 ● Possession of the property was handed over by the vendors of the plaintiffs under Ext.P-5 document dated 08.02.2000.
8. The learned counsel for the defendants argued:
● The suit property is purchased out of the joint efforts of Joseph Swam-
inathan and his two sons, the first defendant and his now deceased son Mathew. In this regard, the testimony of the said aspect by the second defendant as D.W.2 was not cross-examined by the plaintiffs. Secondly, as per Ext.P.12, the sale deed in favour of Joseph Swaminathan, he is seen to have paid only part consideration, and as to the rest he had only created a mortgage over the property, this mort- gage was redeemed by the first defendant.
● The plaintiffs ought to have impleaded their vendors to the suit and hence the suit is bad for non-joinder of necessary parties. ● The plaintiffs have purchased the property sometime in 1998 under Ext.P.1 to P.4. Admittedly, they have not taken possession of the prop- erty. Hence, the present suit is clearly barred by limitation. The defend- https://www.mhc.tn.gov.in/judis/ 10/19 C.S.No.399 of 2014 ants have also prescribed title by adverse possession. ● In this regard, the learned counsel for the first defendant addressed the Court that plaintiff's reliance on Ext.P-5 dated 8.02.2000 to evidence handing over of possession by the plaintiffs vendor to the plaintiffs. ● So far as the credibility of Ext.P-5 (under which the plaintiffs claim that they were handed over the possession), this is a manufactured document as it was not whispered in Ext.P.9 plaint in O.S.No.6068/2012, and secondly, Ext.P.5 was signed only by Leela Joseph and not by her children.
Discussion & Decision:
9. There is no dispute that the plaintiffs have not purchased the half share of four daughters of Leela Joseph under Exts.P-1 to P-4. The defendants however, would contend that the sale deeds would not confer any right inas- much as the Will under which the executants of the sale deeds claim right was not probated. The second line of their contention was that no sale can take place during the subsistence of the life estate of Leela Joseph. This now https://www.mhc.tn.gov.in/judis/ 11/19 C.S.No.399 of 2014 takes to addressing Issue 9, and Issue 1 and 2.
10. The defendants have trapped themselves in a horrendous misconception on vesting of right under the Will and the Probate of the Will per se. Vesting of right does not depend on probating a Will, and it happens on the death of the testator. See: Meyappa Chetty v Supramanian Chetty [AIR 1916 PC 202], Crystal Developers v Asha Lata Ghosh [(2005) 9 SCC 375], FGP Ltd. v. Saleh Hooseini Doctor [(2009) 10 SCC 223], Sheonath v Madanlal [AIR 1959 Raj 243], Raja Kakarklhpudi Venkata Sudarsana Sundara Narasayamma Garu Vs Andhra Bank Ltd. Vijayawada [AIR 1960 AP 273], Cherichi Vs Ittianam [AIR 2001 Kerala 184]. Probating a Will only vali- dates the vesting of right. This can also be viewed in another way. If it were to be remotedly presumed that the contention of the defendants has some degree of sustainability, still the fact remains that when once the legatees un- der an Will perfect their title on probating the Will, it will immediately feed it to strengthen the title of their transferees in terms of Sec.43 of the Transfer of Property Act. Turning to the ancillary contention founded on the life estate of Leela Joseph, it needs to be emphasised that a life estate is a transferable interest, and with the life estate holder joining the sale in favour of the plain- https://www.mhc.tn.gov.in/judis/ 12/19 C.S.No.399 of 2014 tiffs, no exception can be taken to it. And, the defendants do not have locus standi to question it, for the life estate is the personal right of Leela Joseph.
11. Then there is a third aspect. Defendants would claim that the suit proper- ty is not the exclusive property of Joseph Swaminathan but was purchased out of the joint efforts of his two sons (of who the first defendant is one) born to him through his first wife. The only piece of argument is that D.W.2 has spoken about it in the chief examination and it was not pointedly cross exam- ined. In other words, it is their contention that this fact of joint ownership must be considered as an admission. Admission, however, is a weak piece of evidence will zero evidentiary value in determining the right to immovable property. It is settled law that admission can neither create title nor can it vest title. Hence, the defendants ought to have travelled beyond their solitary statement in their oral testimony to prove their joint ownership along with Joseph Swaminathan. But they opted not to strain themselves in proving their assertion of joint ownership. This plea too fails. Consequently, Issue 9 is held in favour of the plaintiffs and its resultant effect is that plaintiffs are entitled to have their half share divided. Necessarily, Issues No1 and 9 are decided in favour of the plaintiffs.
https://www.mhc.tn.gov.in/judis/ 13/19 C.S.No.399 of 2014 12.1 The next aspect is if the plaintiffs are in joint possession of the suit property with the defendants. This pertains to Issues 2, 6 and 8. The an- swer to these issues lie in understanding the difference between a co-sharers’ right and a co-owners’ right. In the case of a co-sharer, there is a presump- tion that possession of one is possession of all. This is not available to a pur- chaser from a co-sharer of an undivided interest in an immovable property. Indeed, while law permits a co-sharer to transfer the undivided interest in the property, the purchaser thereof is not entitled to immediate possession, and the latter’s right is to seek partition. In other words, the purchaser of an undi- vided share is not entitled to be in joint possession of the property till posses- sion is obtained through partition. This will not suffer any dent even if Ext.P-5, the document under which the plaintiffs contend that they are given possession by Leela Joseph and her daughters, whose genuineness the defen- dants contend, were true. Secondly, even if the plaintiffs were given right to collect rent by Leela Joseph, it has to be understood only as an incidence of transfer of right of life estate by her, but not as a transfer of title to be in joint possession of the undivided half share in the suit property with the co-sharers of Leela Joseph and her daughters. It is therefore, held that plaintiffs are not https://www.mhc.tn.gov.in/judis/ 14/19 C.S.No.399 of 2014 in joint possession of the suit property. Issue No:6 is decided accordingly. 12.2 Its consequence on Issue 8 is that plaintiffs would now be liable to pay court fee under Sec.37(1) of the Tamil Nadu Court Fees & Suit Valuation Act, as was in force when the suit was laid.
13. The next set of issues are Issues 3 and 7. Whether suit in O.S. 6068 of 2012 (Ext.P9) is bar to the present suit more particularly Under Order II Rule 2 CPC? The answer is in the negative. First, the cause of action for O.S.No. 6068 of 2012 and the present suit are different; secondly, right to claim partition is a substantial right and is a recurring right too. These issues are decided against the defendants.
14. Other issues are Issue No:4 and 5. This Court holds that the vendors of the plaintiffs are not necessary parties to the suit, as they do not have any right in the suit property for them to oppose. Issue 4 is decided against the defendants. The last of the issues to be decided is that Issue No:5. There was no argument as to the nature of obligation imposed on Leela Joseph, and hence it fails.
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15. In conclusion, the suit is decreed as follows:
1. Plaintiffs ½ share in the suit property is declared and that a preliminary decree be passed accordingly, but subject to (2) below, and are also en-
titled to a decree of prohibitory injunction as prayed for.
2. Plaintiffs are directed to pay balance court fee as per Sec.37(1) of the Tamil Nadu Court Fee & Suit Valuation Act as in 2014, when the suit was laid.
3. No costs.
.10.2021 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds https://www.mhc.tn.gov.in/judis/ 16/19 C.S.No.399 of 2014 APPENDIX I. Witnesses :
Plaintiffs :
PW1 M.Prakash Chand
Defendants :
DW1 J.Damien
DW2 Jesintha Mathew
II. Exhibits :
Plaintiffs :
Ex.P1 29.06.1998 Certified copy of Sale Deed bearing Doc.No.1326 of
1998 executed by Mrs.Leela Joseph and her children in favour of M.Prakash Chan, (second plaintiff) (Objected. Marked subject to admissibility) Ex.P2 29.06.1998 Certified copy of Sale Deed bearing Doc.No.1323 of 1998 executed by Mrs.Leela Joseph and her children in favour of M.Narendra Chand (fourth plaintiff) (Objected. Marked subject to admissibility) Ex.P3 29.06.1998 Certified copy of Sale Deed bearing Doc.No.1324 of 1998 executed by Mrs.Leela Joseph and her children in favour of M.Goutham Chand (first plaintiff) (Objected. Marked subject to admissibility) Ex.P4 29.06.1998 Certified copy of Sale Deed bearing Doc.No.1325 of 1998 executed by Mrs.Leela Joseph and her children in favour of M.Mahendra Chand (third plaintiff) (Objected. Marked subject to admissibility) Ex.P5 08.02.2000 Letter from Leela Joseph addressed to the first plaintiff confirming handing over of possession by herself and her children (the vendors) (Objected. Marked subject to admissibility) Ex.P6 Certified copy Encumbrance Certificate showing registra-
tion of sale deeds in favour of the plaintiffs. Ex.P7 Photocopy of extract from the Permanent Land Register, bearing the name of the plaintiffs (Objected. Marked sub- ject to admissibility) https://www.mhc.tn.gov.in/judis/ 17/19 C.S.No.399 of 2014 Plaintiffs :
Ex.P8 23.07.2007 Certified copy of judgment in O.S.A.No.17 of 2002 Ex.P9 27.08.2012 Certified copy of plaint in O.S.No.6068 of 2012 Ex.P10 02.07.2013 Certified copy of the written statement filed by second defendant in O.S.No.6068 of 2012 Ex.P11 26.02.2014 Certified copy of the judgment and decree in O.S.No.6068 of 2012 Ex.P12 30.09.1969 Sale Deed bearing Doc.No.1641 of 1969 executed by Re-
v.Fr.M.Nellikunnam, Director and Secretary of The South Arcot Diocesan Corporation Private Limited in fa- vour of Mr.Joseph P.Swaminathan Ex.P13 27.03.2001 Letter of Administration annexed with last Will dated 06.5.1992 Defendants : No Documents .10.2021 https://www.mhc.tn.gov.in/judis/ 18/19 C.S.No.399 of 2014 N.SESHASAYEE.J., ds Pre-delivery Judgment in C.S.No.399 of 2014 29.10.2021 https://www.mhc.tn.gov.in/judis/ 19/19