Kerala High Court
Gracy vs Prof.T.J. Joseph on 13 February, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 13TH DAY OF FEBRUARY 2014/24TH MAGHA, 1935
RSA.No. 1426 of 2012 ()
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AS. NO.88/2011 OF SUB COURT, PALA.
OS. NO.124/2010 OF MUNSIFF COURT, ERATTUPETTA.
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APPELLANT/APPELLANT/PLAINTIFF:
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GRACY, W/O.MATHEW,
THENGANAKUNNEL HOUSE,
THIDANADU KARA, KONDOOR VILLAGE,
NOW RESIDING AT ATTARAMACKAL HOUSE,
PALAMBRA P.O.,PALAMBRA KARA,
EDAKKUNNAM VILLAGE.
BY ADVS.SRI.PHILIP T.VARGHESE,
SRI.THOMAS T.VARGHESE,
SMT.ACHU SUBHA ABRAHAM,
SMT.MINI ELIZABETH GEORGE.
RESPONDENT/RESPONDENT/DEFENDANT:
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PROF.T.J. JOSEPH, S/O.JOSEPH,
THENGANAKUNNEL HOUSE,
NEAR NIRMALA COLLEGE,
MUVATTUPUZHA P.O., PIN- 686 661.
BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE.
ADVS. SRI.SAJU.S.A.,
SRI.K.C.KIRAN,
SRI.JAMSHEED HAFIZ.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 13-02-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
P. BHAVADASAN, J.
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R.S.A. No. 1426 of 2012
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Dated this the 13th day of February, 2014.
JUDGMENT
The plaintiff instituted the suit on the basis that the property involved belonged to her husband who obtained it under Exts.A1 and A2 gift deeds dated 30.4.1999 and 16.3.1993 respectively. The defendant is the elder brother of the husband of the plaintiff. The husband of the plaintiff died intestate and according to the plaintiff, the property has devolved on her and her children. There was a mortgage executed by her husband and she repaid the loan amount. According to the plaintiff, she is in absolute possession and enjoyment of the property. Alleging that the defendant is trying to trespass into the property, the suit was laid.
2. The defendant resisted the suit pointing out that the plaintiff though married to his brother, had left him long ago and his brother married again and he had a second wife and child. It is pointed out that his brother had filed a petition RSA.1426/2012.
2seeking divorce from the plaintiff. While that was pending, he had committed suicide. It is pointed out that the brother of the defendant had executed Ext.B3 Will by which 25 cents was bequeathed to his son, 25 cents was bequeathed to the daughter of his brother in the second marriage and the rest of the property was set apart to the person who looks after the mother of the defendant who is also the mother of the husband of the plaintiff. It was pointed out that the plaintiff is not in possession of the property and she is not entitled to any relief in the suit.
3. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 5 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendant had examined D.Ws. 1 to 3 and had Exts.B1 to B14 marked. Ext.C1 is the commission report.
RSA.1426/2012.
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4. The trial court mainly on the premise that Ext.B3 is a genuine document held that the plaintiff is not in possession of the property and therefore dismissed the suit. The aggrieved plaintiff carried the matter in appeal as A.S.88 of 2011 before the Sub Court, Pala. The lower appellate court was of the opinion that it was unnecessary to go into the genuineness or validity of the Will in a suit for injunction. However, the lower appellate court also found that the present suit is hit by Order IX Rule 9 of the Code of Civil Procedure, and the remedy of the plaintiff is to challenge the Will. Holding so, the lower appellate court confirmed the finding of the trial court though on a different ground. The aggrieved plaintiff has come up in appeal before this Court.
5. The following substantial questions of law were raised in this second appeal:
"1. Has not the lower appellate court erred in holding that the mother of a deceased Christian, who has left behind a widow and lineal descendant, is also his RSA.1426/2012.4
legal heir and the suit without her as regards the property left behind by the deceased is not maintainable?
2. Has not the lower appellate court erred in holding that the dismissal on default of an earlier suit for injunction creates a bar for a subsequent suit for injunction as per Order IX Rule 9 of the Code of Civil Procedure, when the cause of action for both suits are admittedly distinct and different?
3. When the propounder of Ext.B3 Will Deed has not proved the execution of the said Will and dispelled the suspicious circumstances regarding the same, has not the trial court erred in holding that it is proved and it is a genuine document?"
6. Learned counsel appearing for the appellant contended that the courts below were in error in non-suiting the plaintiff on the grounds mentioned by them. Two courts have non-suited the plaintiff on two different grounds and the findings of both the courts are not sustainable in law. It is contended on behalf of the appellant that there is no dispute RSA.1426/2012.
5regarding the fact that the property had been released from mortgage by the plaintiff and that would show that she is in possession of the property. She has also produced several documents to show that actual possession is with her. These aspects have been overlooked by both the courts and the findings of the courts below are unsustainable in law.
7. According to the learned counsel for the respondent most of the documents produced by the plaintiff are dated after the filing of the suit and those were created with the intention to show that she was in actual possession. There is nothing to show that the plaintiff was in actual physical possession of the property. Therefore, the courts below were justified in non-suiting the plaintiff.
8. The lower appellate court is justified in its conclusion that the genuineness of the Will does not arise for consideration in a suit for injunction. May be that Order IX Rule 9 of CPC bars a fresh suit on the same cause of action RSA.1426/2012.
6but not on a different cause of action. The cause of action in the present suit is alleged to be different one than in the suit dismissed for default.
9. The present suit is for injunction. There is considerable controversy as to who exactly is in possession of the property. The courts below have found that the plaintiff is out of possession.
10. Learned counsel for the appellant brought to the notice of this Court that the appellant has filed a suit as O.S.301 of 2012 before the Sub Court, Pala seeking declaration of title and for recovery of possession on the strength of title. It is also pointed out that the plaintiff is entitled to the property left behind by late Mathew Joseph.
11. In the light of the above fact, it is only appropriate to dispose of this second appeal making it clear that none of the findings by the lower appellate court or by the trial court will preclude the plaintiff from agitating her claim in RSA.1426/2012.
7the suit before the Sub Court, Pala, i.e., O.S. 301 of 2012.
With the above observation, this appeal is disposed of. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.