Madras High Court
T.S.Dayalan vs P.L.Suresh
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 28.03.2012 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA S.A.NO.277 OF 2006 T.S.Dayalan ..Appellant vs P.L.Suresh ..Respondent Second Appeal is filed against the judgment and decree made in A.S.No.324/2004 dated 25.2.2005 on the file of the III Fast Track Additional District and Session Judge, Chennai confirming the judgment and decree made in O.S.No.8819/1997 dated 30.06.2004 on the file of the XI Assistant City Civil Judge, Chennai. for appellant : Mr.G.R.S.Chandra Rao for Mr.T.Thirumaran for respondent : Mr.A.Seshan .............. JUDGMENT
The present Second Appeal is brought by the unsuccessful plaintiff-T.S.Dayalan, after the suit for permanent injunction against the defendant-P.L.Suresh, the respondent herein, from interfering with his possession and administration of the house and ground bearing Corporation Door No.28, Ela Kandappa Mudali Street, Elephant Gate, Chennai 600 003 was dismissed and on appeal, the same was also confirmed by the First Appellate Court. Aggrieved by the same, the present Second Appeal is filed.
2(i) The plaintiff-T.S.Dayalan is the brother-in-law of the defendant/respondent-P.L.Suresh since T.S.Dayalan has married one of the sisters of the defendant-P.L.Suresh.
(ii)The plaintiff filed the suit on the ground that he was the executor of the will executed by his father-in-law late P.R.Loganatha Mudaliar. The plaintiff's father-in-law late P.R.Loganatha Mudaliar was the absolute owner of the house bearing Door No.28, Ela Kandappa Mudali Street, Elephant Gate, Chennai-600 003 properly described in the schedule mentioned in the suit and the same has been bequeathed to P.R.Loganatha Mudaliar absolutely under the last will and testament of his grandfather-P.Duraisamy Mudaliar dated 14.9.1933 and registered as Document No.10 of 1934 in the office of the Sub-Registrar, Sowcarpet. The said will of P.Duraisamy Mudaliar was also probated in O.P.No.32/1939 in the original side of the High Court of Judicature at Chennai. The plaintiff's father-in-law late P.R.Loganatha Mudaliar had executed the registered will and testament dated 13.8.1997 bequeathing his absolute property bearing Door No.28, Ela Kandappa Mudali Street, Elephant Gate, Chennai 600 003 in favour of his six legal heirs, namely (i)Mohana(wife) (ii)P.L.Shanthi alias P.L.Nirmala(daughter),(iii)P.L.Suresh(son), (iv) P.L.Sharala (daughter) (v)P.L.Bhanumathi (daughter) (vi) P.L.Sheela (daughter) and appointed his first son-in-law, the plaintiff/appellant herein as the executor of the will and directed the executor-the plaintiff/appellant herein to take possession of the property soon after his death, to administer the same and also to sell the same and thereafter, out of the sale proceeds to discharge the subsisting debts if any and to divide the balance into six shares and to give 1/6th share to his wife and to each one of his four daughters and the remaining 1/6th share due to his son P.L.Suresh-defendant/respondent herein is to be invested in the Fixed Deposit in the names of the sons of P.L.Suresh and not to give any amount to P.L.Suresh since he was leading reckless and misguided life not looking after his family. After the execution of the will, when the plaintiff's father-in-law P.R.Loganatha Mudaliar died on 30.09.1997 it was averred in the plaint that the defendant/respondent started interfering with the possession and administration of the suit property by the plaintiff and as a result, a legal notice dated 03.11.1997 was issued by the plaintiff/appellant to the defendant/respondent herein to restrain himself from interfering with the administration of the property.
(iii)The defendant/respondent herein on receipt of the legal notice, sent a reply dated 13.11.1997 contending that the will of his father is not a genuine one and the same has been obtained by the other legal heirs of the deceased P.R.Loganatha Mudaliar and therefore, the same is a bogus one. Again by claiming the right to the suit property, he also filed O.S.No.7575/1997 on the file of the VII Assistant Judge, City Civil Court, Chennai against his mother and sisters who are the legal representatives of P.R.Loganatha Mudaliar and injunction in I.A.No.19624/1997 was obtained against all of them. A counter affidavit was filed contending that the suit property was the absolute property of P.R.Loganatha Mudaliar and even if it is considered as the ancestral property, the defendant/respondent herein is entitled to only 7/30th share as there are three other co-parceners under the provisions of Tamil Nadu Amendment Act 1 of 1990 to the Hindu Succession Act 1956. However, considering the merits of I.A.No.19624/1997, the trial Court dismissed the injunction application by order dated 10.12.1997.
(iv) In the meanwhile, the plaintiff/appellant herein has also taken out proceedings for the probate of the will of his father-in-law P.R.Loganatha Mudaliar by filing Probate O.P.in Diary No.27581 of 1997 on the original side of the trial Court and the same is pending in the High Court. In the meanwhile, the defendant/respondent was unnecessarily and illegally interfering with the administration of the suit property by collecting rent from the tenants. Therefore, it was pleaded that if the defendant/respondent was allowed to interfere with the administration of the estate by the plaintiff/appellant herein and collecting rental income from the tenants, the plaintiff/appellant would be prevented from discharging his obligations under the will and undertaking given by the plaintiff in the probate proceedings. Therefore, it was further contented that the defendant has no right or any other authority to interfere with the due administration of the estate by the plaintiff and on that basis, the plaintiff prayed for permanent injunction against the defendant/appellant from interfering with the possession and administration of the suit property.
3.(i)A detailed written statement was filed by the defendant/respondent stating that the suit property was originally owned by one Singaravelu Mudaliar and after his death, Duraisamy Mudaliar acquired the property and Duraisamy Mudaliar died leaving his only son-D.Ramasamy Mudaliar and his daughter Ekkadu Kuppammal @ Krishnaveni Ammal. The said Duraisamy Mudaliar left a registered will bequeathing all his properties except the property at Old Door No.27, New No.28, Elakandappan street, Park Town, Chennai 3 in favour of his son and daughter. His son Ramasamy Mudaliar having acquired the property covered under the will enjoyed the suit property in the capacity as the only male descendant of the family till his life time and the suit property was also probated in O.P.No.32/39 in which the property of Duraisamy Mudaliar was divided into two as per the affidavit of assets allotting property described in the schedule "B" to Ramasamy Mudaliar and schedule "A" to Ekkadu Kuppammal. Thereafter, Ramasamy Mudaliar died intestate leaving his only son P.R.Loganatha Mudaliar and three daughters, viz., (i) Sabitha (ii) Thatchayani and (iii) Hemavathi. Subsequently, the said P.R.Loganatha Mudaliar, father of the defendant and father-in-law of the plaintiff having inherited the property described in schedule "B" in O.P.No.32/39 after enjoying the same during his lifetime, died on 30.9.1997 leaving behind his only son-defendant/appellant herein, his daughters and his wife-Mohanambal as his legal heirs, and leaving the suit property be inherited by the defendant alone for enjoyment. Therefore, it was the case of the defendant being the only male legal heir of P.R.Loganatha Mudaliar, after his death as the only male descendant started administering the said property by receiving the rents from the existing tenants and by residing in a residential portion of the said property along with his mother who has been taken by the daughters for claiming the suit property.
(ii)It was further stated that the daughters of P.R.Loganatha Mudaliar, namely, the sisters of the defendant/respondent herein were given in marriage by spending huge amount out of the ancestral nucleus and the earnings of the defendant. From the date of their respective marriages they have been living with their respective husbands and children. But, unfortunately, P.R.Loganatha Mudaliar fell sick. The daughters visited the house frequently and started picking up quarrels with the defendant and his wife. As a result of frequent quarrels the defendant left the house. Taking advantage of the situation the daughters have made arrangements to prepare a will to suit their own purpose even though P.R.Loganatha Mudaliar was not having sound health and mind and got it registered. As a result, the daughters got a bogus will registered and started threatening the existing tenants occupying the suit property with a view to collect the rent and to cause wrongful loss to the defendant and at the same time, threatened the defendant to dispossess the said property with a view to sell the same to any third party. In view of that, the defendant filed O.S.No.7575/1997 on the file of the VII Assistant, City Civil Court, Madras against the daughters of late P.R.Loganatha Mudaliar and obtained interim order of injunction. But, subsequently, the learned trial Court finding that no injunction can be granted against co-owners, vacated the injunction. However, the defendant/respondent filed an appeal in C.M.A.No.21/1998 on the file of the III Additional City Civil Judge, against the said order.
(iii) In the meanwhile, the plaintiff/appellant herein filed the suit O.S.No.8819/1997 in the capacity as the Administrator and obtained an exparte order of injunction. Taking advantage of the exparte order of injunction the plaintiff/appellant threatened the defendant/respondent from receiving the rent from the tenants of the suit property.
(iv) One of the important stands taken by the defendant/respondent before the trial Court is that the recitals in the will mentioned that P.R.Loganatha Mudaliar got the suit property only under a will executed by the grandfather Duraisamy Mudaliar because Duraisamy-grandfather of P.R.Loganatha Mudaliar had executed the will bequeathing half of his share in favour of his son Ramasamy Mudaliar and the rest of the share in favour of the grandson-P.R.Loganatha Mudaliar. Therefore, in the half share given in favour of Loganatha Mudaliar, Duraisamy Mudaliar has not mentioned the suit property. Even a perusal of the probated will in O.P.No.32/39, will prove that the suit property is not included either in the said will or in the affidavit of assets. Therefore, it was contended that the said P.R.Loganatha Mudaliar has no absolute right over the suit property. Therefore, the will dated 13.8.1997 bequeathing the entire suit property in favour of his daughters is not valid and it cannot be enforced.
(v) Further, it was stated that even when the very will dated 13.8.1997 is under challenge questioning the genuineness of the will in O.S.No.7575/1997, which is pending on the file of the VII Assistant City Civil Court, Madras, the present suit filed by the plaintiff/appellant herein for permanent injunction against the defendant who is the true owner of the suit property without even probating the will is unsustainable.
(vi) It was further submitted that during the year 1973 when a sum of Rs.19,000/- was borrowed from Lakshmi Ammal by mortgaging the suit property by Ramasamy Mudaliar, his son P.R.Loganatha Mudaliar, and his son-P.L.Suresh, the defendant/respondent herein, on the basis of registered deed of mortgage bearing Document No.575/73 on the file of Sub-Registrar's Office, Sowcarpet, the defendant and his father paid the principal and interest only out of the rental income and by receiving advance from the tenant occupying the suit property. However, when a suit was filed by the mortgagee bringing the suit property for public sale, only the defendant/respondent herein and his father jointly filed a suit in O.S.No.3793/1981 on the file of XVIII Assistant City Civil Judge, and the same was also dismissed. Aggrieved by the said judgment, the defendant and his father filed an appeal in A.S.No.361/1985 which was allowed in their favour. As against that Second Appeal No.1/1990 has been filed by the said mortgagor and the same is pending on the file of the High Court.
(vii)Again on yet another occasion when the defendant's father borrowed a further sum of Rs.25,000/- on 24.12.1980 from Narasimhan by executing pro-note for effecting repair in the suit property, the abovesaid amount was repaid by the defendant's father from the advance amount received from the tenants. But the promisees under the pro-note filed a suit in O.S.No.1446/1981 and obtained a decree on the file of XVIII Assistant, City Civil Court, which was reversed on appeal and S.A.No.1384/1989 is pending on the file of High Court.
(viii)Neither the plaintiff nor the legal heirs of P.R.Loganatha Mudaliar are aware of the said facts since the defendant/respondent alone has been prosecuting the appeal. On this basis it was contended that the plaintiff has no manner of right or interest and hence, no injunction can be granted as the suit is not maintainable.
4. The trial Court framing an important issue as to whether the plaintiff/appellant is entitled to the relief of permanent injunction as prayed for, dismissed the suit holding that the plaintiff/appellant is not entitled to the relief of permanent injunction by giving a specific finding that the defendant/respondent being the only son of P.R.Loganatha Mudaliar, has a right in the ancestral property and therefore, the deceased P.R.Loganatha Mudaliar is not entitled to execute a will in respect of the entire suit property and on this basis, the plaintiff/appellant cannot claim that he is entitled to administer the entire suit property.
5. Aggrieved by the judgment and decree when the first appeal was filed by the plaintiff/appellant, the learned first appellate court finding that the defendant/respondent is the only son of late P.R.Loganatha Mudaliar, concurring with the findings of the trial Court that the only son, P.L.Suresh, defendant/respondent has got right in the ancestral property of the deceased P.R.Loganatha Mudaliar, the plaintiff/appellant cannot claim that he is entitled to the suit property and accordingly, dismissed the first appeal.
6. Aggrieved by the concurrent findings of both the courts below, the present Second Appeal was filed by the plaintiff.
7. This Court at the time of entertaining the present Second Appeal framed the following substantial questions of law.
"1.Whether the lower appellate court has committed an error of law in summarily dismissing the appeal without considering the case of the appellant, the rival claim raised by the respondent and the indifferent finding given by the trial judge?
2.Whether the misinterpretation of the document Ex.B15 has caused injustice and injuries to the appellant?
3.Whether the courts below erred in deciding the title in the absence of any pleading, issue and evidence, when the title suit filed by the Respondent in OS.No.7575/1997 is pending on the file of the VII Assistant, City Civil court, Chennai?
4.Whether the lower appellate court has committed the error of law in not considering the admission of the respondent/defendant that he is not in possession of the suit property and the appellant alone is in administration of the suit property and collecting the rent?
8.(i)Under this background, the learned counsel for the appellant submitted that the lower appellate court has committed serious error of law in summarily dismissing the appeal without considering the case of the appellant and the rival claims made by the respondent. He further contended that the Courts below have misinterpreted the document Ex.B15-affidavit of C.Varadharajulu Naidu in O.P.No.32/1939.
(ii) The learned counsel appearing for the appellant would further submitted that under the Hindu Law the son would inherit the property of his father as karta of his own family. But the Hindu Succession Act has modified the rule of succession. The Act lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Accordingly, the defendant having been excluded from Class I, it would not legally viable for the defendant to have a share in the suit property for the reason that when Duraisamy Mudaliar-grandfather of late P.R.Loganatha Mudaliar had executed by one will dated 14.9.1933 bequeathing half of his share in the property in favour of late P.R.Loganatha Mudaliar and the second half share to his son-Ramasamy Mudaliar and after the death of Ramasamy Mudaliar, the entire property had gone to Loganatha Mudaliar. Therefore, he is entitled to execute his will dated 13.8.1997 appointing the plaintiff as his executor to execute his last will dated 13.8.1997.
(iii) In support of his submission the learned counsel for the appellant relied upon the decision rendered in COMMISSIONER OF WEALTH-TAX, KANPUR V. CHANDER SEN (AIR 1986 SUPREME COURT 1753) to say that as per the first rule of the Hindu Succession Act modifying the rule of succession, the property of a male Hindu dying intestate shall devolve upon according to the provisions Chapter II and Class I of Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Accordingly, since Loganatha Mudaliar, at the relevant point of time is son of Duraisamy Mudaliar, the defendant has no legal basis to claim any share.
9. (i) Opposing the above arguments, learned counsel appearing for the respondent would stenuously contend that the questions of law cannot be considered as substantial questions of law for the reason that a substantial question of law must be
(i)debatable;
(ii)not previously settled by law of the land or a binding precedent,and
(iii)must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned.
(ii) The learned counsel appearing for the respondent would further submit that when the defendant has already filed a Civil Suit in O.S.No.7575/1997 questioning the genuineness of the will said to have been executed by his father late Loganatha Mudaliar dated 13.8.1997, during the pendency of the same, the plaintiff/appellant herein has filed the present Suit-O.S.No.8817/1997 for permanent injunction against the defendant who is the true owner of the suit property, since no injunction can be granted against any co-owner, as he is the only son of late Loganatha Mudaliar, the refusal of the prayer for bare injunction by both the Courts below is well within the settled legal principle that no injunction can be granted against the true owner and therefore, the Second Appeal is liable to be dismissed.
10. Heard the learned counsel for the parties.
11.(i)In the present case, the Courts below, without ignoring the material evidence produced by both sides, acting on the same evidence, have correctly drawn a final conclusion from the proved facts holding that the plaintiff/appellant is the only brother-in-law of the defendant/respondent and he being the only alleged executor of the will dated 13.8.1997, failed to prove his case that his father-in-law, late P.R.Loganatha Mudaliar who is also father of the defendant/respondent herein at the time of executing the alleged will dated 13.8.1997 was the full owner of the suit property, because when the plaintiff/appellant has set up his case for granting permanent injunction against the co-owner, the defendant, son of P.R.Loganatha Mudaliar on the ground that the said P.R.Loganatha Mudaliar acquired the suit property through the will executed by grand-father-Duraisamy Mudaliar dated 14.9.1993, the said P.R.Loganatha Mudaliar became the absolute owner of the suit property, however the trial Court has gone into this question by perusing the copy of the will dated 14.9.1993 and a copy of the order passed in O.P.No.32/39 marked as Ex.B.15 and finally came to the conclusion that a perusal of Ex.B.15 shows that in the said will description of the property has not been given. However, when Duraisamy Mudaliar has given half share in favour of his grand son P.R.Loganatha Mudaliar and the other half share to his son Ramasamy Mudaliar, it is not in dispute that the suit property is one of the properties of the family of Duraisamy Mudaliar. So, on this basis, both the courts below have rightly came to the conclusion that Duraisamy Mudaliar has executed the will including his share in the suit property. Therefore, by virtue of this will when the deceased P.R.Loganatha Mudaliar, father of the defendant and father-in-law of the plaintiff became the absolute owner only in respect of half share in the suit property, the other half share acquired by P.R.Loganatha Mudaliar by inheritance, through his father was the ancestral property in which the defendant has got a right of share by birth. Therefore, the defendant/respondent herein, namely, P.L.Suresh, the only son of late Loganatha Mudaliar has become a co-owner in the ancestral property. Under these background, the deceased P.R.Loganatha Mudaliar is not entitled to execute the will in respect of the entire suit property. As a result, the plaintiff who is claiming to be the executor of the will dated 13.8.1997 said to have been executed by his father-in law, P.R.Loganatha Mudaliar, father of the defendant, is not entitled to get any injunction. This conclusion being well founded on the basis of proper evidence, both oral and documentary, produced by both sides, this Court does not find any error in the concurrent findings of both the Courts below. Therefore, the concurrent findings holding against the plaintiff/appellant that he is not entitled to get any relief against his own brother-in-law who is also co-owner is to be affirmed by confirming concurrent findings of both the courts below.
(ii) That apart, admittedly, the defendant/respondent herein has filed independent suit in O.S.No.7575/1997 on the file of VII Assistant City Civil Court, Madras against the daughters of late P.R.Loganatha Mudaliar. During the pendency of the same, the present suit filed by the plaintiff seeking injunction against his own brother-in-law goes to show that the plaintiff/appellant is not in possession of the suit property. Because two other suits, namely, one in O.S.No.3793/1981 filed by the defendant and his father jointly on the file of XVII Assistant City Civil Court, which gave rise to A.S.No.361/1985 decided in favour of the defendant/respondent and S.A.No.1/90 pending on the file of this Court and the other suit in O.S.No.1446/1981 decreed against the defendant by XVII Assistant City Civil Court, after being reversed by the first appellate court on first appeal, S.A.No.1394/89 filed which is pending on the file of this Court, clearly show that the plaintiff/appellant cannot file the suit for permanent injunction against his own co-sharer.
(iii) It is an undisputed fact by both parties that one Duraisamy Mudaliar, father of Ramasamy Mudaliar and grandfather of P.R.Loganatha Mudaliar who is the father-in-law of the plaintiff and father of the defendant, was having sufficient properties in his possession and enjoyment. By a will dated 14.9.1933 Duraisamy Mudaliar has given half share to his son-Ramasamy Mudaliar and the rest of the half share to P.R.Loganatha Mudaliar, grandson of Duraisamy Mudaliar and son of Ramasamy Mudaliar. Under these circumstances, if this Court considers whether P.R.Loganatha Mudaliar has acquired the suit property through the will executed by his grandfather-Duraisamy Mudaliar dated 14.9.1933, admittedly though the said will was probated by the plaintiff as the executor of the will before this Court in O.P.No.32/39 which has been marked as Ex.B.15, a perusal of Ex.B.15 shows that the description of the suit property has not been given. Accordingly, the substantial question of law No.2 is answered against the appellant. Further, the said Duraisamy Mudaliar has also stated in the will that he is disposing of his share alone in the family properties. In this context para 2 of the will executed by Duraisamy Mudaliar is necessary to be extracted below:
"2.I have already become divided in status from my only son P.Ramasamy Mudaliar, having made an unequivocal intention of being divided from him in status and the same has been duly acquiesced in by him. I am therefore entitled to a half share in the entire family properties and my son to the other half share. By this will, I am disposing of my share in the family properties only".
A mere reading of the above passage of the will dated 14.9.1933 executed by Duraisamy Mudaliar goes to show that the grandfather of late P.R.Loganatha Mudaliar has executed only half share in the family properties in favour of late P.R.Loganatha Mudaliar and the remaining half share was given to his son Ramasamy Mudaliar by partition. Therefore, the half share which was acquired by the deceased Late P.R.Loganatha Mudaliar through his father was ancestral property in which the defendant has a right by birth. Accordingly, under the Hindu Law since the son would inherit the property of the father as Karta of his own family, the contentions advanced by the learned counsel for the appellant that when schedule under Section 8 of the Hindu Succession Act 1956 includes heirs in Class I and only includes son and does not include son's son, but does include son of the pre-deceased son, would legally exclude son's son, namely, the defendant as he is the son's son (Loganatha Mudaliar's son) is wholly misconceived, inasmuch as the defendant being a son of late Loganatha Mudaliar is not claiming any share in the half share devolved upon Loganatha Mudaliar from will dated 14.9.1933 executed by Duraisamy Mudaliar, but claiming his due share from the other half share given to Ramasamy Mudaliar, father of Loganatha Mudaliar. Yet another reason being, during his life time, the said Duraisamy Mudaliar by giving half share to his son Ramasamy Mudaliar and other half share to his grandson P.R.Loganatha Mudaliar settled his properties. Subsequently, P.R.Loganatha Mudaliar, while executing the controvertial will dated 13.8.1997 has not only conveyed his half share that he has received through will dated 14.9.1933 from Duraisamy Mudaliar but also bequeathed the other half share of his father Ramasamy Mudaliar that was inherited as an ancestral property from Duraisamy Mudaliar. Therefore, the half share which was acquired by the deceased Loganatha Mudaliar through Duraisamy Mudaliar was a settled ancestral property in which the defendant has got an absolute right by birth. This view finds support from the decision of the Hon'ble Apex Court rendered in COMMISSIONER OF WEALTH TAX, KANPUR V. CHANDRASEN AND OTHERS (1986 (3) SCC 567) and the Apex Court has held in para 15 as under:
"19.In (1986) 3 SCC 567 (supra), the Hon'ble Apex Court has held as follows:
"15.It is clear that under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu Family with him. But the question is:is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view."
A reading of the above clearly shows that the moment a son is born, he gets a share in the father's property and becomes a co-parcener. This right accrues not on the death of his father or inheritance from the father, but the very fact of his birth. Therefore, it is amply clear that when the father of the defendant late Loganatha Mudaliar gets a property from his grandfather Duraisamy Mudaliar, the defendant, son of late Loganatha Mudaliar should have a share in that and it will become a part of the Joint Hindu Family of his son and grand son and the other members who form Joint Hindu Family with him. Under these circumstances, if we look at Section 8 of the Hindu Succession Act 1956, the property of the father, who dies intestate devolves on his son as his individual capacity and not as karta of the own family. Under this count also the defendant, son of Loganatha Mudaliar is entitled to have a share from the ancestral property. Therefore, execution of the will dated 13.8.1997 by late Loganatha Mudaliar appointing the plaintiff as the executor, without giving anything to his son-the defendant/appellant herein is opposed to the well settled position that the co-parceners are entitled to a share in the ancestral properties. Accordingly, the substantial question of law No.1 is answered against the appellant. Therefore, when the defendant is also having a share in the suit property, rightly both the courts below have dismissed the suit, concurrently holding against the appellant that one co-owner has not in law any right to appropriate land to himself out of the joint land against the consent of his co-owners. Reference can be had from PRABHOO V. DOODH NATH( AIR 1978 ALL 178) wherein the learned single Judge of Allahabad High Court while considering grant of injunction in favour of one co-owner against other co-owners has held that one co-owner has not in law any right to appropriate land to himself out of a joint land against the consent of his co-owners. High handed action by one co-owner cannot be encouraged by Courts of law unless some special equity is shown in favour of the co-owner. Further, admittedly, when O.S.No.7575/1997 filed by the defendant/respondent is pending on the file of VII Assistant City Civil Court at Chennai claiming declaration of title in the suit property, the courts below have rightly rejected the suit for mere bare injunction. This does not mean that the courts below have decided the title of the parties. Thus, with respect to the substantial questions of law Nos.3 and 4, this court finding that the lower appellate court has not committed any error of law in not considering the admission of the defendant/respondent herein that he is not in possession of the suit property, is hereby answering the same against the appellant for the reason that when the plaintiff/appellant has been in possession as a co-sharer, as I held above, even possession of property belonging to several co-sharers by one co-sharer shall be deemed to be on behalf of other co-sharers unless there has been clear ouster by denying the title. It is also useful to refer the decision of the Apex Court in MOHD.MOHAMMAD ALI V, JAGADISH KALITA ( 2004 (1) SCC 271) wherein it has been held in para 19 as under:
"19.Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a construction trustee of other co-sharer and the right of the appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees."
Further, in para 25 of the said decision it is held as under:
"25.Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed."
Para 32 of the said decision is also extracted hereunder:
'32.Yet again in Darshan Singh v. Gujjar Singh it is stated : (SCC pp.65-66, para 7) "It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers."
It has further been observed that : (SCC p.66, para 9) "9.In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."
(iv) Though it can be presumed that the property which devolves upon the heirs mentioned in Class I of the schedule under Section 8 of the Hindu Succession Act constitutes the said property as absolute property and therefore, his sons have no right by birth in such properties, in the present case, as argued by the learned counsel for the appellant, the defendant has no right to have any share in the suit property since the entire properties have been bequeathed by late Loganatha Mudaliar, father of the defendant through registered will dated 13.8.1997, is devoid of any merits, because, the properties covered in the will dated 13.8.1997 cannot constitute absolute properties of Loganatha Mudaliar since the said Loganatha Mudaliar has also included his half share of his father Ramasamy Mudaliar to which the defendant is entitled to have a share as it is an ancestral property.
(v) In view of the above, looking at the case of the appellant from any angle, finding no merits, this Court is not inclined to interfere with the concurrent findings of both the Courts below.
11. Consequently, this Second Appeal fails and the same is dismissed. The judgments and decrees of the courts below are confirmed. No costs.
28.03.2012 index:yes internet:yes sal To
1.The III Fast Track Additional District and Session Judge, Chennai
2.The XI Assistant, City Civil Judge, Chennai.
T.RAJA,J.
(sal) Pre-delivery judgment in S.A.NO.277/2006 28.03.2012