Madras High Court
Gunda Ramani vs N.Ratnakumar on 2 March, 2022
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.S.No.299 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.03.2022
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.S.No.299 of 2016
1. Gunda Ramani
2. Rangavalli
3. Pathi Lakshmi Kiran ... Plaintiffs
Vs.
1. N.Ratnakumar
2. N.Narasimha Rao ...Defendants
Civil Suit filed under Order IV Rule 1 of O.S.Rules read with Order
VII Rule 1 of the Code of Civil Procedure, 1908 praying for the following
Judgment and Decree against the defendants:
a) To grant partition and allotment of 1/5th share to each of the
plaintiffs in the property bearing No.2, (Old No.87) 4th main road, Gandhi
Nagar, Adyar, Chennai – 600 020, by metes and bounds morefully
described in the schedule to the plaint and for an enquiry into the mesne
profits;
b) To grant costs of this suit;
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C.S.No.299 of 2016
For Plaintiffs : Mr.Rahul Vivek
For Defendants : Mr.A.R.Sakthivel
JUDGMENT
The plaintiffs filed the present suit seeking for partition and allotment of 1/5th share, to each of the plaintiffs [i.e. 3/5th share] in the property bearing No.2, (Old No.87) 4th main road, Gandhi Nagar, Adyar, Chennai – 600 020 by metes and bounds.
2. The case of the plaintiffs are as follows:-
(i) The plaintiffs and the defendants are brothers and sisters. The suit schedule property originally belong to one N.L.Kantha Rao, who is the father of the plaintiffs and the defendants and he has purchased the same under a valid sale deed dated 09.01.1965 in Document No.443/1965 registered before the Sub Registrar, Saidapet. The said N.L.Kantha Rao executed sale deed and bequeathed the suit schedule property to all the children, namely, the plaintiffs and defendants.
(ii) The plaintiffs and the defendants were to divide the suit schedule property equally, after the lifetime of their mother, Mrs. Nalam Hemalatha.
The said Nalam Hemalatha appointed one Mr.Karthik Chander as the 2/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 executor of the Will and the said N.L.Kantha Rao died on 25.02.2009. After the demise of N.L.Kantha Rao, the executor, viz., Karthik Chander filed O.P.No.128 of 2011 for grant of probate. During the pendency of the probate proceedings, Mrs.Nalam Hemalatha died on 28.12.2013, who had lifetime interest. The plaintiffs and the defendants became absolute owner of the suit schedule property.
(iii) This Court, on 23.01.2015, had granted Probate and accordingly, Legal heirs of N.L.Kanta Rao, except the 2nd defendant, consented to the grant of probate order. Inspite of the repeated request made by the plaintiffs to amicably partition the suit schedule property, as per the Will of their father, the defendants refused the same, hence the plaintiffs were constrained to file the present suit seeking for 1/5th share to each of them in the suit schedule property.
3. The case of the defendants are as follows:-
(i) The defendants admit that their father, viz., N.L.Kantha Rao purchased the suit schedule property. The defendants have been residing in the suit schedule property eversince their birth. The said N.L.Kantha Rao had proclaimed during the marriages of the defendants that the suit 3/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 schedule property should go only to his male heirs. In furtherance of the said proclamation, their father had orally bequeathed the suit schedule property to them.
(ii) The parents of the plaintiffs as well as defendants resided in the suit schedule property during their life time and the defendants are in continuous possession and enjoyment of the suit schedule property. After the demise of N.L.Kantha Rao, on 25.02.2009, the plaintiffs, during the end of 2010, brought out a fraudulent Will and claimed right over the suit schedule property. The 2nd defendant filed an application before this Court in O.P.No.128 of 2011 to set aside the exparte order passed against him and this Court dismissed the said application and proceeded to grant Probate on 24.04.2015.
(iii) Taking advantage of the fact that the defendants are unable to locate any document to fortify the contention that N.L.Kantha Rao wanted only his male heirs to succeed to his estate, the plaintiffs have brought about a fraudulent Will and obtained the probate order. Hence seeks to dismiss the present suit.
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4. The learned counsel for the plaintiffs would contend that the said N.L.Kantha Rao, father of the plaintiffs as well as defendants executed sale deed and bequeathed the suit schedule property to all the children, namely, the plaintiffs and defendants. Hence the plaintiffs have the right in the suit schedule property. After the demise of N.L.Kantha Rao, the executor, viz., Karthik Chander filed O.P.No.128 of 2011 for grant of probate. During the pendency of the probate proceedings, Mrs.Nalam Hemalatha died on 28.12.2013, who is the wife of N.L.Kantha Rao and had lifetime interest. The plaintiffs and the defendants became absolute owner of the suit schedule property. This Court, on 23.01.2015, had granted Probate and the same is not performed, further, at present, we are in the year 2022, any such application for dismissal for letters of administration has never brought before this Court. Further, the learned counsel for the plaintiffs contends that the evidence of the parties would show the father's contention clearly that the plaintiffs, who are legal heirs, also have equal rights and prayed to grant the relief prayed in the suit. Moreover, the learned counsel for the plaintiffs in support of his contention has relied on the Judgment of Hon'ble Supreme Court reported in 1958 SCR 548 [Surinder Kumar and Others Vs. Gian Chand and Others] 5/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016
5. On the other hand, the learned counsel for the defendants would submit that the suit schedule property was orally bequeathed to the defendants jointly and after the marriage, the defendants have been in possession of the said property with their families. Further, the father and mother of the plaintiffs as well as defendants had been residing in the said property till their demise on 25.02.2009 and 28.12.2013 respectively. That apart, the defendants have been paying the property tax to the Corporation of Chennai, electricity charges to TANGEDCO, Water & Sewerage Board Taxes to Chennai Metropolitan Water Supply and Sewerage Board. The defendants have obtained family card, voters identity card and aadhar card, which would reflect the possession and enjoyment of the property by the defendants.
6. Futher, the learned counsel for the defendants would contend that after the demise of the father of the plaintiffs and defendants, viz., Dr.N.L.Kantha Rao, on 25.02.2009, the plaintiffs suddenly and fraudulently, during the end of the year 2010, brought out a Will dated 03.12.2007 claiming that the same had been executed by their father and as per the said Will, the property had been bequeathed to their mother for life time and thereafter, equally to all the plaintiffs and defendants. Since the 6/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 alleged Will was brought out after a period of almost two years from the date of demise of their father, the defendants had disputed the execution of the Will and the genuineness of the said Will. In the meanwhile, 2nd defendant received a notice in O.P.No.128 of 2011 from this Court for grant of probate of the alleged Will filed by the executor, who is the power of Attorney of the 1st and 3rd plaintiffs. The 2nd defendant's advocate, who was entrusted with the task of disputing the alleged Will, had failed to pursue the said matter diligently, as a result, the 2nd defendant was set exparte. Thereafter, on the advice of the advocate of the 2nd defendant, he has filed an application to set aside the exparte order, however, this Court dismissed the said application, as not maintainable and observed that he ought to have filed a caveat and the probate was granted on 24.04.2015. After the grant of probate of the said Will, the plaintiffs have taken law into their hands and continuously harassing the defendants.
7. That apart, the learned counsel for the defendants put forth a plea that the defendants have been residing in the suit property for more than 6 decades and it had been the last wish of their father that the said property shall have to devolve upon the defendants alone. But the plaintiffs by fabricating the Will have included themselves as beneficiaries to the said 7/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 Will along with the defendants and thereby vesting upon themselves with joint rights over the said property. Thereafter, the 2nd defendant filed a suit in O.S.No.2652 of 2016 before the learned VI Assistant Judge, City Civil Court, Chennai for injunction restraining the plaintiffs herein from interfering with the peaceful possession and enjoyment of the said property. The plaintiffs have been set exparte in the said suit and an application to set aside the exparte order has been filed and the same is pending. Moreover, the application filed by the 2nd defendant in the said O.P.No.128 of 2011 for revocation of the grant of probate vide Sr.No.16562 of 2016 is being pursued by him for getting the said application numbered. In the said situation, it has to be construed that the order of probate has not become final. Therefore, the plaintiffs cannot maintain and sustain the above suit, hence prayed for dismissal of the suit.
8. Heard the learned counsel on either side and perused the documents placed on record.
9. In the present suit, the documents viz., Exs.P.1 to P.9 were marked by the plaintiffs on 17.09.2018 before the learned Additional Master II, High Court, Madras and two witnesses, viz., P.W.1 – Mrs.Rangavalli and 8/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 P.W.2 – Mr.Karthik Chander were examined. Further, documents, Exs.D.1 to D.9 were marked on behalf of the defendants and two witnesses, viz., D.W.1 – Mr.N.Narasimha rao and D.W.2 – Mr.N.Ratnakumar were examined.
10. On going through the documents placed on record it is seen that P.W.1, namely, Mrs.Rangavalli was examined in chief and she was cross examined by the learned counsel for the defendants. Further, P.W.2, Karthik Chander was examined in chief and cross examined by the learned counsel for the defendants. On the defendants' side, the 2nd defendant, namely, Mr.N.Narasimha Rao was examined in chief as D.W.1. Further, Mr.N.Ratnakumar, 1st defendant was examined as D.W.2 and was cross examined by the learned counsel for the plaintiffs. This Court, on 19.07.2018 had framed the following issues for consideration and the same reads as follows:-
“1. Whether the plaintiffs are entitled for 1/5th shares each in the suit property?
2. Whether the Court Fee paid is correct?
3. To what other reliefs?” 9/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016
11. It is significant to point out that during the cross examination of D.W.2 by the learned counsel for the plaintiffs, D.W.2 admitted that Mr.N.L.Kantha Rao is the father and owner of the property till his demise and there is no documentary evidence to prove that his father, subsequent to the purchase of the property, intended to provide the property only to his male heirs after his life time and it was only a oral arrangement. Further, D.W.2 in his cross examination also admitted that his sisters have filed a suit for partition based on the Will executed by the father. The father's Will was disclosed by his sisters in the presence of their mother Mrs. Nalam Hemalatha and in the presence of others.
12. It is pertinent to mention that the defendants have not produced any document expressing the intention of their father to bequeath the property to his male legal heirs. Besides the above, D.W.2 in his cross examination does not deny that the Will, viz., Ex.P.4 executed by the father was granted probate on 22.01.2015 by this Court. When there is a admission made by either parties; there was no valid written document filed to prove that the father had intention to bequeath the properties in favour of sons only; further, when there is a Will filed for Probate, this Court on earlier occasion came to a definite conclusion and granted probate only on 10/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 the basis of the evidence produced, it should be presumed that same has been obtained only by following due procedure prescribed under Law. The said issuance of probate is Judgment in rem and the objections raised by the defendants was also dismissed by this Court in an earlier proceedings and so far, no other judgment other than decree has been filed before this Court to substantiate the contention in favour of the defendants.
13. That apart, once the co-owner is in possession of the property and when the other owners claim their respective share, the same should be partitioned and given to them. In the present case on hand, the plaintiffs, who are female members have got married and shifted their residence to their respective homes in their husband's place, the said action does not mean that the defendants does not have any right over the property in their father's home. It is also found that the plaintiffs had valued property under Tamil Nadu Court Fees & Suit Valuation Act, 1956 and Appendix 1A of High Court Fees Rules and the defendants have not raised any such plea to show what was the exact value of the said property.
14. It is brought to the notice of this Court by the learned counsel for the defendants that the payment for electricity charges and taxes were 11/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 made to the public authorities namely, TANGEDCO CMDA and CMWSS by the defendants. All these acts would prove that the defendants are in possession and enjoyment of the said property, because after the marriage daughters are residing in their respective house, but it cannot be said that the daughters / plaintiffs does not have right over the property. The defendants are residing in the suit schedule property as care taker of their shares. The Will, was produced by the executor in the presence of all the family members and there is no evidence produced by the defendants to prove that the said Will was a forged one and this Court is also in agreement with the plaintiffs in this regard. As the defendants were not in a position to prove their case beyond doubt that the plaintiffs are not entitled for their respective shares as per Will, this Court is inclined to allow the claim made by the plaintiffs, as per Will which has been probated by this Court on 23.01.2015 in O.P.No.128 of 2011. Hence the plaintiffs have proved their case.
In the result, a preliminary decree is passed for partition of the suit property into five equal shares and allot 1/5th share to each of the plaintiffs.
02.03.2022 Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Judgment ssd 12/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 Exhibits produced on the side of the plaintiffs:
S.No. Exhibits Date Description
1. P-1 10.08.2015 Xerox copy of the power of attorney [Doc.No.2206 of 2015]
2. P-2 10.08.2015 Xerox copy of the power of attorney [Doc.No.2207 of 2015]
3. P-3 25.02.2009 Online death certificate of Kantha Rao
4. P-4 23.01.2015 Xerox copy of Probate Order along with the Will passed in O.PNo.128 of 2011
5. P-5 28.12.2013 Online death certificate of Nalam Hemalatha
6. P-6 Xerox copy of the legal heirship certificate of Mrs.Nalam Hemalatha
7. P-7 15.03.2016 Original notice
8. P-8 10.08.2015 Original General Power of Attorney
9. P-9 10.08.2015 Original General Power of Attorney Witnesses examined on the side of the plaintiffs:
P.W.1. - Mrs.Rangavalli P.W.2. - Mr.Karthik Chander 13/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 Exhibits produced on the side of the defendants:
S.No. Exhibits Date Description
1. D-1 09.01.1965 Certified Copy of the sale deed (Document No.443 of 1965)
2. D-2 27.04.2016 Certified copy of death certificate of N.L.Kantha Rao
3. D-3 31.12.2013 Certified copy of the death certificate of Nalam Hemalatha
4. D-4 Certified copy of the property tax demand card
5. D-5 Certified copy of Water and Sewerage Tax cum water charges / Sewerage service charges card
6. D-6 Certified copy of current consumption charges card
7. D-7 20.03.2008 Certified copy of passport of the 2nd defendant
8. D-8 Certified copy of family card of 2nd defendant from 2005-2009
9. D-9 15.12.2007 Certified copy of voter identity card of 2nd defendant Witnesses examined on the side of the defendants:
D.W.1. - Mr.N.Narasimha Rao D.W.2. - Mr.N.Ratnakumar 02.03.2022 14/15 https://www.mhc.tn.gov.in/judis C.S.No.299 of 2016 V.BHAVANI SUBBAROYAN, J., ssd C.S.No.299 of 2016 02.03.2022 15/15 https://www.mhc.tn.gov.in/judis