IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/03/2004
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
SECOND APPEAL No.1029 of 1993
1. C.Subramanian
2. C.Siddherthan
3. C.Muthaiyan .. Appellants
-vs-
1. Subramaniyan
2. Arunachalam
3. Gangeyan .. Respondents
This second appeal is preferred under Sec.100 of the Code of Civil
Procedure against the judgment and decree made in A.S.No.75 of 1985 dated
16.11.1987 on the file of the Sub Court, (and in West Thanjavur District Court
A.S.No.81 of 1985) Thanjavur, confirming the judgment and decree made in
O.S.No.152/81 dated 30.11.1983 on the file of the District Munsif,
Thiruvaiyaru.
!For Appellants : Mr.A.Thamizharasan
^For Respondents : Mr.V.K.Vijayaraghavan
for RR2 and 3
R1 - No appearance
:JUDGMENT
The unsuccessful plaintiffs before the Courts below in a suit for
permanent injunction or in the alternative, for recovery of possession, is the
appellants herein.
2. Necessary facts for the disposal of this second appeal are as
follows:
The suit properties were the absolute properties of one Muruganantham
Pillai, who was the maternal grandfather of the plaintiffs. He executed a
registered Will on 4.12.1973 in respect of his properties including the suit
properties. As per the terms of the Will, the property comprised in ‘A’
Schedule was given to the plaintiffs. Muruganantham Pillai died on
17.12.1978. Thus, the Will came into force, and consequently, the plaintiffs
have become entitled to ‘A’ Schedule property under the said Will. The
plaintiffs were in possession and enjoyment of the properties in ‘A’ Schedule.
While so, the defendants made an attempt to interfere in the lawful possession
of the plaintiffs, which constrained the plaintiffs to file the suit for
permanent injunction. If the Court was to come to the conclusion that the
plaintiffs were not entitled to the properties, they were entitled to recovery
of possession.
3. The first defendant was absent and set ex-parte. The suit was
vehemently resisted by the defendants 2 and 3 stating that the suit properties
were the absolute properties of Muruganantham Pillai; that he has not executed
any Will; that even assuming that he executed any Will, Muruganantham Pillai
had no right in the properties to execute such a Will; that after the death of
Muruganantham Pillai, when the said Will was produced for registration, the
second defendant objected to the same; that he also made it clear during the
registration proceedings that his father Muruganantham Pillai had not executed
any Will, and thus, the plaintiffs have not become entitled to ‘A’ Schedule
property in the Will; that the properties in question belonged to the joint
family; that the plaintiffs have suppressed an important fact that the
document of the year 1920, on the basis of which Muruganantham Pillai
purported to deal with the said properties, was not a Will; but, it was an
arrangement by the second defendant’s grandfather Arunachalam Pillai for the
management of the joint family properties during the minority of their father;
that a perusal of the document of the year 1920 would make it clear that
Arunachalam Pillai merely appointed a guardian under the terms thereof, and
thus, he has not executed any Will; that the plaintiffs were also not in
possession of the properties, and thus, they were neither entitled for
injunction nor for recovery of possession, and hence, the suit was to be
dismissed.
4. The trial Court framed the necessary issues, tried the suit and
dismissed the same. An appeal filed by the aggrieved plaintiffs was also
dismissed by the first appellate Court. Hence, this second appeal has been
brought forth by the plaintiffs.
5. At the time of admission, the following substantial questions of
law were formulated for consideration by this Court:
(1) Was the lower appellate Court right in dismissing the application for
reception of additional documents, and whether such rejection has affected the
case of the appellants?
(2) Were the Courts below right in holding that no right flowed to the
plaintiffs/appellants on the basis of the Will dated 4.12.1973?
6. This Court heard the learned Counsel for the appellants and also
the learned Counsel for the respondents 2 and 3 on those contentions.
7. This Court is unable to notice any substance in this appeal.
8. As could be seen from the averments in the plaint, the
plaintiffs/appellants sought for the reliefs of injunction and in the
alternative, recovery of possession, basing their title in respect of ‘A’
Schedule property, alleging that one Muruganantham Pillai executed a Will, the
registration copy of which was marked as Ex.A4 dated 4.12.197 3; that he died
on 17.12.1978, and thus, the Will has come into force; that they became
entitled to the properties, and they were also in possession of the same. The
second defendant, the son of the said Muruganantham Pillai, contested the suit
by stating that neither his father executed a Will as found under Ex.A4, nor
had he got any right to execute so, since the properties belonged to the joint
family; and that the anterior document, relied on by the plaintiffs would also
stand contra to the plaintiffs case. Many are the circumstances, which stood
against the case of the plaintiffs. The plaintiffs have not produced the
original Will, alleged to have been executed by Muruganantham Pillai on
4.12.1973. No satisfactory explanation was tendered why the original Will was
not produced before the trial Court. It is not the case, where the defendants
have admitted the existence or the execution of the Will; but they have
strongly denied the same. In such circumstances, a duty was cast upon the
plaintifs to prove the truth and genuineness of the Will, as contemplated
under law. Not even one witness was examined to prove the alleged Will, and
the original Will was not produced. Also no proof as to the execution and
attestation of the Will was forthcoming from the plaintiffs’ side.
9. The plaintiffs relied on an earlier Will alleged to have been
executed by Arunachalam Pillai, the father of Muruganantham Pillai and
grandfather of the second defendant. Both the Courts below have clearly
pointed out that the document alleged to have been executed by Arunachalam
Pillai in the year 1920 would clearly reveal that the properties in question
belonged to the joint family. Under such circumstances, Muruganantham Pillai
was also not competent to execute a Will, as alleged by the plaintiffs. It
remains to be stated further that the three properties were covered under the
said Will. But, the plaintiffs have come forward in respect of only one item
of property, while the other two properties have already been dealt with.
There is no evidence that there was any partition between the said
Muruganantham Pillai and the second defendant. In such situation,
Muruganantham Pillai was not competent to execute any Will, as alleged by the
plaintiffs, in respect of the suit item, which belonged to the joint family.
All the above would clearly indicate that the plaintiffs have not proved the
case to obtain the relief of either injunction or recovery of possession.
Hence, both the Courts below were perfectly correct in recording a concurrent
finding that the Will alleged to have been executed by Muruganantham Pillai,
was not proved in any way, and the plaintiffs claiming title under the Will,
could not get any relief. This Court is unable to notice any reason to
disturb the concurrent finding recorded by the lower Courts.
10. For the foregoing reasons, this second appeal fails, and the same
is dismissed, confirming the judgments and decrees of the lower Courts and
leaving the parties to bear their costs.
Index: Yes
Internet: Yes
To:
1. The Subordinate Judge
Thanjavur
2. The District Munsif
Thanjavur
3. The Record Keeper
V.R. Section
High Court, Madras.