Madras High Court
Petchiammal (Died) vs Karupayee Ammal on 23 October, 2018
Equivalent citations: AIRONLINE 2018 MAD 1501
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.10.2018
RESERVED ON : 01.10.2018
DELIVERED ON : 23.10.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A (MD) No. 781 of 2005
and CMP(MD) No. 5053 of 2005
and M.P (MD) No. 1 of 2008
1. Petchiammal (Died)
2. Ayaru
3. Ponraman
4. Sathyavathi
5. Latha .. Appellants
Vs.
Karupayee Ammal .. Respondent
PRAYER : This Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 31.03.2005 passed by the
learned III Additional Subordinate Judge, Madurai in A.S.No. 238 of 2003,
reversing the Judgment and Decree dated 23.07.2003 in O.S.No. 326 of 2002 on
the file of the District Munsif Court, Thirumangalam.
!For Appellants : Mr.N. Murugesan
^For Respondent : Mr.PT.S. Narendravasan
****
:JUDGMENT
The plaintiff in O.S.No.326 of 2002 on the file of the District Munsif Court, Thirumangalam is the appellant herein. O.S.No. 326 of 2002 has been filed, seeking Judgment and Decree for permanent injunction restraining the defendant or anybody acting under the defendant, from interfering with the possession and enjoyment of the suit schedule properties. This suit came up for consideration before the learned District Munsif, Thirumangalam and by Judgment and Decree dated 23.07.2003, the suit was decreed.
2. Challenging the said Judgment and Decree, the defendant had filed A.S.No.238 of 2003 which came up for consideration on 31.03.2005 before the learned III Additional Subordinate Judge, Madurai. The learned Subordinate Judge, Madurai allowed the appeal and reversed and set aside the Judgment in O.S.No.326 of 2002.
3. Aggrieved by that Judgment, the plaintiff had filed the present Second appeal. Pending the appeal, the plaintiff had died and her legal representatives were brought on record as appellants-2 to 5. The Second appeal had been admitted and the following substantial questions of law had been framed.
1.Is the lower Court correct in believing a document i.e., Ex.B.1, which is false itself on the face of document itself?
2.In a suit for bare injunction is not the one and the only question to be considered is whether plaintiff was in possession or not on the date of the suit and are the Courts to go into the question of title?
3.Is the lower Court correct and justified in holding that the document Ex.B.1 to B.5 proves the possession of suit property on the date of filing of suit?
4.Is the lower Court correct and justified in disbelieving the documents Ex.A.1 to A.11 which clearly goes to show that the appellant/plaintiff is in possession and enjoyment of the suit property?.
4. O.S.No.326 of 2002 :
The plaintiff Petchiammal and the defendant Karupayee Ammal are sisters. The plaintiff is the elder sister. The suit property originally belonged to their mother Rakkiammal. The plaintiff left the house after her marriage. The defendant continued to live with her mother even after her marriage. The plaintiff claimed that she gave financial help to put up construction to dig Well and to install motor pump set. The plaintiff claimed that Rakkiammal had executed a registered Will dated 08.10.1993 whereby she bequeathed 'A' and 'B' schedule properties to the plaintiff and the defendant respectively. The plaintiff paid Kist for her share of the lands. The plaintiff claimed that the defendant was continuously interfering with her possession. It is under these circumstances that the suit was filed, seeking permanent injunction restraining the defendant or anybody acting under her from interfering with the plaintiff's possession of the suit properties.
5. In the written statement filed by the defendant, it had been denied that the plaintiff gave financial assistance for putting up construction, digging Well and installing motor pump set. It had also been denied that their mother Rakkiammal executed a registered Will on 08.10.1993. It was stated that their mother Rakkiammal had actually executed a registered Will only on 27.07.1999 and bequeathed the suit properties in favour of the defendant. It was stated that the mother was living with the defendant in Karuvelampatti Village. The house was constructed by the husband of the defendant. It was stated that the defendant was in possession of the suit properties. She conducted the funeral ceremonies of her mother. She stated that the Will dated 27.07.1999 had come into effect. She therefore stated that there was no cause of action for the suit and claimed that the suit should be dismissed.
6. On the basis of the above pleadings, the learned District Munsif, Thirumangalam framed the following issues for trial:
1.Whether the plaintiff is entitled to the relief of permanent injunction?
2.To what reliefs is the plaintiff entitled to?
7. During trial, the plaintiff was examined as P.W.1 and two other witnesses Mayandi and Kandasamy were examined as P.W.2 & P.W.3. The defendant was examined as D.W.1 and also examined two other witnesses Kasirajan and Mariyappan as D.W.2 and D.W.3. The plaintiff had filed Ex.A.1 to Ex.A.11. Ex.A.1 is the registration copy of the Will dated 08.10.1993. Ex.A.2 to Ex.A.5 are Kist receipts. Ex.A.9 and Ex.A.11 are the Patta in the name of mother of the plaintiff and in the name of the plaintiff. Ex.A.10 is the Kist receipt in the name of the plaintiff. The defendant had marked Ex.B.1 to B.5. Ex.B.1 is the registration copy of the Will dated 27.07.1999. Ex.B.2 to Ex.B.5 are the sale deeds in the name of Rakkiyammal dated 02.09.1957, 09.05.1960, 28.07.1965 and 26.07.1972. On the basis of the oral and documentary evidence, the learned District Munsif held that Ex.B.1 Will had not been proved in accordance with law. The scribe to the Will alone had been examined as witness. The witness to the Will have not been examined as witnesses. On the other hand, the witness to the Will Ex.A.1 had been examined as witness. The learned trial Judge also held that the plaintiff had also filed revenue documents to show that she was in possession. Consequently, the learned trial Judge granted the relief of permanent injunction as sought for by the plaintiff.
8. A.S. No. 238 of 2003 :
Challenging the said Judgment and Decree, the defendant had filed A.S.No.238 of 2003. This appeal came up for consideration before the III Additional Subordinate Judge, Madurai. By Judgment and Decree dated 31.03.2005, the learned III Additional Subordinate Judge, Madurai, re-
examined the evidence on record and also framed points for determination. The learned III Additional Subordinate Judge, Madurai also found that in Ex.B.1 Rakkiyammal had given reasons for bequeathing the entire properties only to the defendant. It was stated in Ex.B.1 that it was only the defendant/second daughter Karuppayammal who was looking after her. The learned III Additional Subordinate Judge, Madurai also found that it was only natural that Rakkiyammal bequeathed the properties to the defendant and also found that Ex.B.1 was the subsequent Will and consequently it had revoked Ex.A.1, the earlier Will by implication. The learned first Appellate Judge also found that revenue documents are not sufficient to prove the possession. The learned first Appellate Judge held that the plaintiff had not proved her possession. It was also found that Ex.B.1 Will was more probable and consequently the learned first Appellate Judge reversed the findings of the trial Court and allowed the appeal and dismissed the suit.
9. S.A.No.781 of 2005 :
The plaintiff had filed the present Second appeal challenging the said Judgment and Decree of the learned III Additional Subordinate Judge, Madurai in A.S.No.238 of 2003 dated 31.03.2005. The Second appeal had been admitted on the following substantial questions of law:
1.Is the lower Court correct in believing a document i.e., Ex.B.1, which is false itself on the face of document itself?
2.In a suit for bare injunction is not the one and the only question to be considered is whether plaintiff was in possession or not on the date of the suit and are the Courts to go into the question of title?
3.Is the lower Court correct and justified in holding that the document Ex.B.1 to B.5 proves the possession of suit property on the date of filing of suit?
4.Is the lower Court correct and justified in disbelieving the documents Ex.A.1 to A.11 which clearly goes to show that the appellant/plaintiff is in possession and enjoyment of the suit property?.
10.Heard arguments advanced by Mr.N. Murugesan, learned counsel for the appellants and Mr. PT.S. Narendravasan, learned counsel for the respondent.
11. For the sake of convenience the contesting parties shall be referred to as Plaintiffs and Defendant. The plaintiff had filed the present Second appeal and during the pendency of the Second appeal she died and her legal representatives have been brought on record. The plaintiffs are the appellants and the defendant is the respondent.
12. The plaintiff Petchiammal is the elder sister of the defendant Karupayee Ammal. The suit had been filed in O.S.No.326 of 2002, seeking a Judgment and Decree for permanent injunction restraining the defendant or anybody acting under the defendant from interfering with the plaintiff's possession and enjoyment of the suit schedule properties. The suit schedule properties are lands in Karuvelampatti village, Thiruparangundram, Madurai in S.No.411/1 measuring 90 cents, in new S.No.144/1 measuring 0.03.5 hectares, in new S.No.222/3 measuring 0.55.0 hectares and in S.No.372/3 measuring 1.27 acres. The plaintiff claimed title to the said properties through a registered Will executed by her mother dated 08.10.1993. The defendant however claimed that her mother Rakkiyammal had executed a registered Will on 27.07.1999 and had bequeathed the entire suit properties to her and further claimed that she was in possession of the suit properties. The trial Court had examined Ex.A.1 & Ex.B.1. Ex.A.1 is the registered Will dated 08.10.1993 and Ex.B.1 is the registered Will dated 27.07.1999. In Ex.A.1 Rakkiammal had bequeathed the properties to both the plaintiff and defendant. They were given separate shares. She stated that she had married Mayandi and had two daughters, Petchiyammal and Karupayee Ammal. She also stated that Petchiammal married M.Ayaru and Karupayee Ammal married S.Rasu. She stated that both the daughters were residing in their respective houses. In the Will, she had bequeathed the 'A' schedule properties to Petchiammal/plaintiff and the 'B' schedule properties to Karupayee Ammal/defendant. She also bequeathed another 1 + acres to both of them and stated that they should enjoy it common. The 'A' schedule property and 'B' schedule property had been distinctly described in the Will. This Will had been attested by two witnesses namely, Mohammed Iman and Kandasamy. Kandasamy had been examined as a witness in the suit. He was examined as P.W.3. On other hand, in Ex.B.1, Rakkiammal had stated that she had only one daughter Karupayee Ammal. She totally ignored the plaintiff and she did not even mention that she had a daughter called, Petchiammal. The entire properties had been bequeathed to Karupayee Ammal. Eventhough there were two witnesses mentioned in the document, only the scribe was examined as P.W.3. The witnesses to the document were not examined.
13. The learned counsel for the defendant had relied on, 2007 (4) CTC 70, Chinna Nachiappan and another Vs. PL. Lakshmanan. In the said Judgment, it was held that a suit for permanent injunction without seeking a relief of declaration, is bad in the absence of a prayer for declaration of title. In this case, the plaintiff seeks her relief of possession based on the Will Ex.A.1. The Will has been proved by examining P.W.3. It was only in the written statement that the existence of a subsequent Will Ex.B.1 had been stated. The defendant had not challenged the title of the plaintiff prior to the institution of the suit. She disturbed possession. Consequently, the suit for injunction is maintainable.
14. Taking note of the facts that the plaintiff was in possession, the learned trial Judge had stated that execution of Ex.A.1 has been proved. He also took into consideration Ex.A.2 to Ex.A.5 which are the Kist receipts in the name of the plaintiff. Further Ex.A.11 is the Patta pass book in the name of the plaintiff. These documents were examined and it was held that the plaintiff had established her possession of the properties. With respect to title, both Wills have to be proved in manner known to law. In so far as the proof is concerned, the witness in Ex.A.1 had been examined as P.W.3. On the other hand, the witness in Ex.B.1 had not been examined. On the basis of the evidence, the suit had been decreed. The first Appellate Court, on the other hand stated that since Ex.B.1 is the subsequent Will, Ex.A.1 is deemed to have been revoked. However, Ex.B.1 has not been proved in manner known to law. In a suit for injunction, the primary aspect to examine as possession. In this case, the plaintiff had proved, through revenue documents that she is possession. The plaintiff has established that she is in possession. The substantial question of law which had been raised at the time of on admission also concerns the issue of possession and the validity or genuineness of Ex.B.1.
15. In view of the fact that the plaintiff had established her possession through Kist receipts and Patta. Ex.B.1 has not been proved in manner known to law. I hold that the suit being one for bare injunction has to be decreed. Consequently, the Judgment and Decree of the first Appellate Court has to be interfered with. The Judgment and Decree of the trial Court is confirmed and upheld. The Second appeal is allowed.
16. In the result,
(i). The Second Appeal is allowed. However since it is a suit between two sisters, without costs.
(ii). The Judgment and Decree dated 31.03.2005 in A.S.No.238 of 2003 passed by the learned III Additional Subordinate Judge, Madurai, is set aside.
(iii). The Judgment and Decree dated 23.07.2003 in O.S.No.326 of 2002 passed by the learned District Munsif, Thirumangalam, is confirmed.
(iv). Consequently, connected Miscellaneous Petitions are closed.
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