ORDER
M. Karpagavinayagam, J.
1. Nagarathinam, the plaintiff filed a suit seeking for direction to the defendants to pay a sum of Rs. 11,00,000/- as damages, mandatory injunction directing the defendants 5 and 6 to comply with the relevant rules, so far as it may relate to the planning permission issued to them to put up construction at No. 29-A, Nowroji Road. Chennai, direction to the defendants 5 and 6 not to up construction on the northern side of the plaintiffs property and direct them to keep the passage free for the use of the plaintiff, mandatory injunction directing the defendants 5 and 6 to remove unauthorised construction presently existing and for permanent injunction restraining the defendants from interfering with the peaceful possession and prescriptive rights of the plaintiff enjoyed in passage shown in the plan.
2. The averments made in the plaint are as follows :–
“The plaintiff and the fourth defendant are brothers. The first defendant is the Wife of the fourth defendant and the defendants 2 and 3 are their sons. V.N. Subbarayan is the paternal uncle of the plaintiff and the fourth defendant. On 8-4-1981, the said Subbarayan executed a Codicil modifying the Will dated 24-10-1979 by giving life interest in property bearing Door No. 29, Nowroji Road, Chennai to the first defendant and after her life time, the property would devolve upon absolutely on the defendants 2 and 3 in equal shares. The adjacent property bearing Door No. 30, Nowroji Road was settled in favour of the plaintiff through the Will dated 24-10-1979. Contrary to the terms of the Codicil, the property was sold by the defendants 1 to 3 to the defendants 5 and 6 by two sale deeds dated 13-11 -1997 and the space for passage was also sold to the defendants 5 and 6 on 1-11-1999. They are now putting up construction there violating the building rules and preventing the plaintiffs access to the northern side of his property. The plaintiff has a clear prescriptive and easementary right for a pathway. Meanwhile, on 26-9-1999. the defendants 2 to 4 nailed the door on the northern side of the plaintiffs house wherein ingress and egress from that door was prevented. Hence, the suit.”
3. Pending the suit, the plaintiff filed these applications, namely, O.A. No. 31 of 2000 seeking for interim injunction restraining the respondents 5 and 6 to put up any construction in any manner either permanent or of a temporary nature, measuring 600 sq. ft. which is shown in the plan annexed with the plaint at No. 29-A, Nowroji Road, Chetpet, Chennai-31 and also directing the respondents that the passage on the southern side of the applicant’s property is kept totally free as passage for the use of the applicant and his family, O.A. No. 32 of 2000 for interim injunction restraining the defendants/respondents from interfering with the peaceful possession and prescriptive rights of the plaintiff/applicant and his family enjoyed in the said passage and O.A. No. 95 of 2000 for interim Injunction restraining the respondents to proceed with any construction in any manner either permanent or of a temporary nature, at No. 29-A, Nowroji Road, Chetpet, Chennai-31 and also directing the respondents not to proceed with the construction of the second floor in the said building.
4. The contents of the counter-affidavit filed by the defendants 1 to 4 are these :–
“Navaneethammal, wife of V. N. Subbarayan purchased a vacant building sjte on 27-9-1930 and she constructed a building and the same is Door No. 29. In 1936, Subbarayan purchased adjacent properties, namely. Door Nos. 30 and 31, Nowroji Road and constructed houses there. On 28-9-1970, the said Navaneethammal died is-sueless. So, V. N. Subbarayan had become the sole legal heir. Under the settlement deed dated 11-2-1976 Subbarayan settled his house bearing Door No. 31 in favour of Gajalakshmi Padmakoti, the sister of the plaintiff and the fourth defendant. On 24-10-1979 under registered Will, V. N. Subbarayan bequeathed Door no. 29 in favour of the defendants 2 and 3 and Door No. 30 in favour of the plaintiff absolutely. On 8-4-1981, a Codicil had been executed modifying the Will by giving the life interest in favour of the first defendant without any right of alienation and after her life time giving the absolute right to the defendants 2 and 3 On 17-4-1981 Subbarayan died. The probate was issued by the High Court on 13-10-1982. Due to the family necessities, one portion of Door No. 29 was offered to be sold.
On 13-11-1997 the defendants 1 to 3 have sold two portions to the defendants 5 and 6 through separate sale deeds. At that time, the defendants 1 to 3 retained a portion lying between the Door No. 29 and Door No. 30 for the purpose of using the same as a passage from their house to Nowroji Road on the western side. Subsequently, on 1-11-1999 that portion was also sold to the fifth defendant. Thus, the defendants 5 and 6 have become absolute owners and possessors of the portion of the western side of their property. By the sale, the first defendant has given up her right of life interest over the said portion and executed the sale deeds along with the defendants 2 and 3. Therefore, these three sale deeds are perfectly valid. The defendants 5 and 6 have obtained approved building plans and put up constructions in the portions purchased by them. The said construction is in no way preventing the air and light to the plaintiff’s property. The plaintiff filed a writ petition against the defendants 5 and 6 for constructing building in violation of the rules. But; this Court ultimately was pleased to direct the Commissioner, Corporation of Chennal totake action in accordance with law. Therefore, the applications for interim reliefs are liable to be dismissed.”
6. Before dealing with the respective pleas, it would be appropriate to refer to the chronological events to have clear picture of the whole case.
“(a) Subbarayan and Navaneethammal were husband and wife. The plaintiff-Nagarathinam, the fourth defendant-Ramakrlshnan and one Gajalakshmi Padmakoti are the children of one Somasundaram, viz., the brother of the said Subbarayan. The first defendant-Padmadevi is the wife of the fourth defendant and the defendants 2 and 3 are their sons.
(b) Navaneethammal under sale deed dated 27-9-1930 purchased a vacant site bearing plot No. 5A, Door No. 29, Nowroji Road, Chetpet from one Sambaslvam Piliai of Aminjikarai. In 1931, she constructed a building therein. On 9-5-1936, her husband Subbarayan purchased the adjacent properties on the southern side, namely Door Nos. 30 and 31 from one Rorlusji Nowroji. In the said sale deed, it is mentioned that the southern boundary is Nowroji Road and the premises of Navaneethammal.
(c) 28-9-1970, Navaneethammal died.
On 11-2-1976 Subbarayan settled his house bearing Door No. 31 (old Door No. 28) in favour of Gajalakshmi Padmakoti, his brother’s daughter i.e. the sister of the plaintiff and the fourth defendant. In this document, it is mentioned that certain portion of the land appurtenant to houses Door Nos. 27 (30) and 28 (31) are intended for the common use of the two houses and the settlee’s right over this area is subject to right of way for the owner of the house No. 27 (30). In the schedule, it is mentioned that house No. 28 (31) is in one ground and 160 sq. ft. with a right of way over 823.5 sq. ft. for the owner of 27 [30) and the southern boundary of the said 28 (31) is Nowroji Road and 27 (30).
(d) On 24-10-1979 Subbarayan executed a Will bequeathing Door No. 29 In favour of the defendants 2 and 3 and Door No. 30 in favour of the plaintiff absolutely. Through this Will he revoked the earlier Will executed on 3-9-1977 and the Codicil on 30-3-1978. By this Will, he appointed Vedachalam Mudaliar, Ramakrtshna, Nagarathinam (plaintiff) Ramakrishnan (fourth defendant) and Padmakoti as executors to carry out his instructions contained in the Will. On 8-4-1981, Subbarayan executed a Codicil amending the bequest contained in para 7 of the Will dated 24-10-1979 and bequeathing property Door No. 29 to Padmavathi (first defendant) giving life interest to enable her to enjoy the rents and profits out of the same without any right of alienation. After the life time of the said Padmavathi, the said property would devolve absolutely in equal shares on the two sons, viz., the defendants 2 and 3 with full powers of alienation.
(e) On 17-4-1981 Subbarayan died. Nagarathinam, the plaintiff filed O.P. No. 204 of 1982 to issue probate in respect of the Will and Codicil after obtaining the consent affidavits of the parties concerned. This Court by the order dated 29-7-1982 issued probate after obtaining the undertaking from Nagarathinam to administer the properties and to make a true inventory and produce the same before the Court within the stipulated period.
(f) On 13-11 -1997, the defendants 1 to 3 executed two sale deeds in respect of the western portion of the Door No. 29, one in favour of the fifth defendant and another in favour of the sixth defendant. In these documents, the eastern boundary was shown as the remaining portion of Door No. 29 and southern boundary was the portion of the property earmarked for passage retained by the defendants 1 to 3.
(g) Thereafter, the defendants 5 and 6 commenced construction. Since the construction was in deviation of the sanctioned plan, on behalf of the plaintiffs side, a writ petition was filed in W.P. No. 13703 of 1998. This was disposed of on 18-8-1999 directing the petitioner to approach the Corporation Commissioner to take action for the said deviations. In pursuance of the said direction, on 18-8-1999 itself a letter from the plaintiffs side was sent to the Commissioner of Corporation indicating that the defendants 5 and 6 constructing the building with deviations. By the letter dated 21-8-1999, the Corporation Commissioner sent a reply stating that on inspection they noticed the deviations and action would be taken to demolish the same. Since there were deviations as per the letter dated 21-8-1999, a request was made before this Court in the same writ petition W.P. No. 13703 of 1998′ on being mentioned stating that there was deviation and praying for appointment of Advocate Commissioner.
(h) The learned counsel for the purchasers (defendants 5 and 6) represented before the Writ Court that his clients already demolished the offending portion of the construction. Since this was controverted by the learned counsel for the writ petitioner, the Advocate Commissioner was appointed by the order dated 23-8-1999. Accordingly, the Advocate Commissioner filed a report after inspection giving the details of the deviation before the learned single Judge. After hearing the counsel for the parties, this Court on 13-10-1999 directed the Corporation Commissioner to inspect the property and to take appropriate action and till such time, the respondents 3 and 4, namely defendants 5 and 6 were directed not to continue the construction. Challenging this, they filed a writ appeal in W.A. No. 2237 of 1999.
(i) At that stage, on 1-11-1999 the defendants 1 to 3 sold the portion retained by them for passage on the southern side boundary of 29-A measuring 21/2 ft. x 60 ft. i.e. 150 sq. ft. to the fifth defendant stating that the vendors are selling a small strip of land in the western part of the property which has become totally useless because of narrowness. It is mentioned in the schedule of property that vacant land including compound wall (56 feet very old) measuring 150 sq. ft. is bounded by East to West on both side 60 feet, North to South on both side 21/2 feet and southern boundary is S.R. No. 376/22, namely, the plaintiffs land.
(j) Thereafter, by the order dated 11-11-1999, the Division Bench, while disposing of W.A. No. 2237 of 1999 directed the Commissioner of Corporation to inspect the property and to decide whether the construction effected by the appellants (5th and 6th defendants) is in accordance with approved plan. It was further directed that the inspection must be made after notice and report shall be filed before the single Judge and that till the Commissioner conducts inspection, the appellants shall not proceed with the construction. Accordingly, after inspection, the Commissioner of Corporation filed a report before the learned single judge on 30-11-1999 stating that there were so many deviations on all sides.
(k) On perusal of the report, by the order dated 3-12-1999, the learned single Judge observed that there are contraventions in the construction and, therefore, the Corporation shall take appropriate action in respect of the unauthorised construction and if the petitioner is aggrieved by the inaction on the part of the Corporation, it is open to him to approach this Court for further relief by way of separate proceedings. Despite the said order, the construction continued. Therefore, the plaintiff gave a letter on 27-12-1999 to the Corporation Commissioner to take suitable action as per the Court’s order.
(1) In the meantime, the plaintiffs door and window which is on the northern side of the plaintiff and the southern side of the defendants which opens on to the passage was nailed shut and locked on 26-9-1999.
(m) The Corporation issued stop work notice and demolition before on 12-1-2000. However, the construction continued. In the meantime, the defendants 5 and 6 applied for regularisation for the deviation. Since the regularisation could not be permitted as per the G.O. No. 76 Housing and Urban Development, dated 27-2-1999, the said application was rejected on 12-1-2000. The defendants 5 and 6 filed writ petition in W.P. No. 4069 of 2000 against the rejection order and obtained interim injunction against the Corporation on 9-3-2000.
(n) In the meantime, the plaintiff filed this suit in C.S. No. 21 of 2000 on 13-1-2000. On 21-1-2000 status quo was ordered by this Court. Even then, it is stated that the construction continued. Even during the course of hearing, this Court directed the defendants 5 and 6 not to continue the construction. The plaintiff had sent several telegrams and letters to the defendants as well as to their counsel.”
6. From the above, the following four vital factors would emerge :–
(1) Through the Will dated 24-10-1979 and Codicil dated 8-4-1981 Door No. 29 had been bequeathed in favour of the first defendant giving life interest to her without right of alienation and after her lifetime bequeathed to the defendants 2 and 3, the sons of the first defendant giving absolute right. In violation of the mandate of the Will, the defendants 1 to 3 sold the western portion of Door No. 29-A except the passage situate on the southern side which leads to Nowroji Road on the western side, total area measuring 2825 sq. ft. under two sale deeds dated 13-11-1997 for a sale consideration of Rs. 11,15,870/- to the defendants 5 and 6. Again on 1-11-1999, defendants 1 to 3 sold the portion of the passage retained by them earlier through sale deed to the defendants 5 and 6, as the same became useless land.
(2) After purchase of 29-A measuring 2825 sq. ft. through the sale deeds on 13-11-1997, defendants 5 and 6 obtained sanction of the plan from the authorities concerned and began to construct two storeyed building. Since the construction was violating the rules and terms of the sanction, the party of the plaintiff filed a writ petition in W.P. No. 13703 of 1998 for directing the Corporation authorities to take action against them. Defendants 5 and 6 were the parties in the writ petition. After hearing the parties, the learned single Judge in the said writ petition on 18-8-1999 directed the Corporation Commissioner to take action after inspection. Subsequently, on being mentioned, the Court appointed an Advocate Commissioner to inspect the premises and file a report. Accordingly, the report had been filed. Again, this Court by the order dated 13-10-1999 directed the Commissioner to inspect and file a report. This was challenged by the defendants before the Division Bench. On 11-11-1999 the Division Bench ordered directing the Corporation Commissioner to inspect and file report before the learned single Judge. Accordingly, the Commissioner filed the report giving the details of deviation. On 3-12-1999 the learned single Judge directed the Corporation Commissioner to take action for the same against the defendants 5 and 6. Even then, the construction continued. In the meantime, the defendants 5 and 6 filed a petition for regularisation. The same was rejected. Therefore, the defendants 5 and 6 filed W.P. No. 4069 of 2000 against the said rejecting for regularisation and the same is pending.
(3) The passage retained by the defendants 1 to 3 while executing the sale deeds dated 13-11-1997 was sold by them to the defendants 5 and 6 on 1-11-1999. The sale deeds dated 13-11-1997 in respect of Door No. 29-A were executed to discharge the loans. But, the sale deed dated 1-11-1999 was executed selling the space of passage earlier retained by them, as it became useless. The plaintiff party questioned the construction by deviation by giving complaint to the Commissioner of Corporation and by filing writ petition in W.P. No. 13703 of 1998. These proceedings culminated into the order of the Division Bench dated 11-11-1999. Thus, during the pendency of these proceedings, the sale deed dated 1-11-1999 was executed selling the area of the passage to the defendants 5 and 6. This was being done hurriedly by the defendants on being aggrieved over the action taken by the plaintiff party, who questioned the deviation of construction of the sanctioned plan before various forums.
(4) The sale deeds dated 13-11-1997 would state that only the western portion of 29-A is being sold to the defendants 5 and 6 retaining the passage earmarked on the southern side by the defendants 1 to 3 for the use. The plaintiff’s door and window on the northern side of their property, that is, south side of the passage opens on to the passage. Since the door was nailed shut and locked on 26-9-1999, a criminal complaint was filed by the plaintiff party to the police. This passage was used by both the plaintiff and the defendants 1 to 3 to go to Nowroji Road situated at the western side. Furthermore, there is a deviation of construction by projection towards southern side also by the defendants 5 and 6 even earlier to the sale deed dated 1-11-1999. Therefore, the plaintiff’s easementary right is affected due to the continuance of the construction and the locking of the door. Hence, the suit for various reliefs including the claim for easementary right. Even subsequent to the status quo order passed by this Court on 3-2-2000 there were exchanges of various letters, telegrams, complaint, etc., violating the orders of this Court through continued construction as well as and not allowing them to use the passage.
7. Let us deal with these four points one by one.
8. The first point relates to the execution of the sale deeds dated 13-11-1997 and 1-11-1999 in respect of the properties bequeathed in favour of the defendants 1 to 3 through the Will and Codicil, in violation of the conditions mentioned therein. Admittedly, the Will dated 24-10-1979 bequeathing the suit property in favour of the defendants 2 and 3 had been modified through the Codicil dated 8-4-1981, thereby life interest alone was given to the first defendant prohibiting alienation and giving absolute right to the defendants 2 and 3 only after the death of the first defendant. The Will dated 24-10-1979 would show that the plaintiff had been nominated as one of the executors. The said testator died on 17-4-1981. Thereafter, after obtaining consent affidavits, the plaintiff-Nagarathinam filed O.P. No. 204 of 1982 requesting for the issue of probate in respect of the Will and Codicil. Accordingly, this Court appointed the plaintiff as an executor of the properties both Door Nos. 29 and 30 imposing certain conditions on the plaintiff by directing him to give periodical reports to this Court. This is dated 28-7-1982.
9. When such being the case, the first defendant who has got only life interest has sold the property to the defendants 5 and 6 even though she has no right of alienation. In fact, the recitals of the Will would mandate that she should not alienate. Similarly, the defendants 2 and 3 who have no right over the property whatsoever during the lifetime of the first defendant have executed the sale deed joining with the first defendant in favour of the defendants 5 and 6. The only reason mentioned in the sale deeds dated 13-11-1997 is that the property, namely, Door No. 29 was subjected to the simple mortgage with Janopakara Saswatha Nidhi Limited for Rs. 3,00,000/- and for discharge the said loan, the property was being sold for Rs. 11,14,875/-. Admittedly, this had been done without the concurrence of the plaintiff who is the executor appointed by this Court.
10. In the same way, the other portion retained as passage situate at the southern side also was sold by the sale deed dated 1-11-1999 by the defendants 1 to 3 in favour of the defendants 5 and 6. This also does not show that the sale was executed with the concurrence of the plaintiff-Nagarathinam, the executor. All these sale deeds would show that the fourth defendant and another had signed as witnesses. Thus, there is no indication that this was sold with the knowledge of the executor.
11. Furthermore, the respective properties, namely, Door Nos. 29 and 30 were already in possession of the respective parties and they have been in lawful enjoyment of the same on obtaining the probate from this Court in O.P. No. 204 of 1982. If any necessity arises with regard to the administration or alienation, the parties must have approached this Court which issued probate for getting permission for the same. Either the plaintiff could have been approached by the defendants 1 to 3 to move the Court for such permission or the defendants 1 to 3 who have earlier filed consent affidavits before this Court to appoint Nagarathinam, the plaintiff, as executor could have directly approached the Court explaining the necessity for such an alienation. This is not admittedly done. Therefore, it is clear that the sale deed has been executed by the first defendant who has no absolute right and has no right of alienation and by the defendants 2 and 3 who had no absolute right during the lifetime of the first defendant in violation of the mandate and intention of the testator explicitly mentioned in the Will and Codicil and also in violation of the order passed by this Court in O.P. No. 204 of 1992 dated 29-7-1982 appointing the plaintiff as executor to administer the properties.
12. As a matter of fact, the Will dated 24-10-1979 would reveal that the earlier Will executed by the testator in the year 1977 and Codicil in 1978 were revoked and absolute right was given to the defendants 2 and 3 in respect of Door No. 29 and absolute right to the plaintiff-Nagarathinam in respect of Door No. 30. But, the Codicil executed in 1981 modified the Will dated 24-10-1979 amending the bequest in favour of the defendants 2 and 3 by bequeathing Door No. 29 to the first defendant giving only life interest for the purpose of enjoying the rents and profits out of the same without any right of alienation of any nature. But, there was no such modification in respect of Door No. 30 which was bequeathed in favour of the plaintiff conferring absolute right. Therefore, it is clear that the defendants 1 to 3 have not given due respect to the mandate of the testator and as such, they have not given effect to the Will and intention of the testator.
13. If any necessity arises, as noted above, the parties concerned must have approached this Court which had issued probate explaining the situation for the sale to be accelerated and obtained permission either through the executor or by filing a necessary application before the Court directly. In the sale deed dated 13-11-1997, it is mentioned that already there was simple mortgage in respect of the suit property in the year 1994 in favour of some Nidhi Limited. Even this also was against the intention of the testator, as the Will would recite that there is no right of alienation of any nature to the beneficiaries. It would further reveal that the properties have been sold for Rs. Eleven lakhs and odd to discharge the mortgage loan of Rs. Three lakhs.
14. A perusal of the sale deed dated 1-11-1999 would show that it does not contain any reason relating to family necessity. Thus, the properties have been sold by the persons who have no right in contravention of the intention of the testator and in violation of the Court’s order even without acceptable reasons. However, it shall be noticed that the suit has not been filed for declaration that the sale deeds executed on 13-11-1997 and 1-11-1999 are not valid in law. Therefore, the question of interim reliefs sought for by the plaintiff in these applications need not be decided on the basis of the title being questioned incidentally by the plaintiff. However, I cannot but observe that the sale of properties had been accelerated and effected by the defendants 1 to 3 in respect of which probate had been issued by this Court, without adhering to the intention of the testator and without getting permission of this Court and the same, in my view, is highly improper, though not illegal.
15. It is vehemently contended on the strength of the decisions (Usha Subbarao v. B. E. Vishveswariah) and (Mahesh Chand Sharma v. Raj Kumari Sharma) on behalf of the defendants that though under the Will the testator bequeathed the property to the first defendant for life and after her death to the defendants 2 and 3, her sons, since bequest in the Will squarely falls within the four corners of Section 119 and in particular of illustration (iii) thereto, the. legacy to the defendants 2 and 3 becomes vested even on the date of death of the testator,
16. It is further reiterated by the counsel for the defendants that even though according to the Will, the house was to devolve upon the defendants 2 and 3 only on the death of the first defendant and not at any earlier point of time, the said Will has to be understood and construed in the light of the statutory rules governing the Will, namely, Section 119 of the Indian Succession Act, 1925 which would say that where a property is bequeathed to ‘A’ for life and after his death to ‘B,’ the legacy to ‘B’ becomes vested in interest in ‘B’ on the death of the testator.
17. This argument, in my view, does not hold good, in view of the fact that the facts of the cases in and would not apply to the present facts of the case, as the conclusion arrived at in those decisions is on the basis of the Will executed by the testator bequeathing his property giving life interest to his wife, the legal heir and after her death to the other legal heirs, namely, son and daughters of the testator.
18. For the purpose of determining the date of vesting of the interest in the bequest it is necessary to bear in mind the distinction between a vested interest and a contingent interest. An interest is said to be a vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interest. The Transfer of Property Act, 1882 as well as the Indian Succession Act, 1925 recognises this distinction between a vested interest and contingent interest.
19. Vested Interest has been defined in Section 19 of the Transfer of Property Act, 1882.Contingent interest is defined in Section 21 of the said Act. In the Indian Succession Act, provision with regard to the date of vesting of a legacy when payment or possession is postponed is contained in Section 119. Section 120 of the Indian Succession Act makes the provision for date of vesting when legacy is contingent upon specified uncertain event.
20. By virtue of Section 119, in a case where
bequest is of a vested interest and by the
terms of the bequest the legatee is not entitled to immediate possession of the thing
bequeathed, the right to receive it at the
proper time becomes vested in the legatee on
testator’s death and in the event of the death
of the legatee without having received the
legacy the said right to receive it passes to
the legal representatives of the legatee. This
is subject to a contrary Intention being ex
pressed in the Will. But in the case of a
contingent bequest, Section 120.prescribes that
the legacy vests in the legatee only after the
happening or not happening of the contingency which means that in the event of the
legatee dying prior to happening of that,
contingency no interest passes to his legal
representatives.
21. The question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the Will creating the interest. Of course, the Court while construing the Will has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary in the Will is definite and clear. Therefore, we shall construe the Will to find out the real intention of the testator in this regard. With regard to construction of the Will, the law is well settled that intention has to be ascertained from the words used keeping in view the surrounding circumstances, the position of the testator, his family relationship and that the Will must be read as a whole.
22. In the present case, it cannot be contended that the defendants 3 and 3 are the direct legal heirs of the testator. The interest created in the first defendant under the Codicil is a life estate and not a widow’s estate. It is true that the life estate holder is entitled to surrender her interest in favour of the remindermen. But, the requirement of a total and complete surrender applicable in the case of widow’s estate is not applicable in the case of limited estate. The Codicil, as indicated above, placed an express prohibition against alienation or transfer of her interest by the first defendant. Therefore, on the clear language of the Will, Section 119 of the Indian Succession Act is not attracted.
23. The Will clearly indicates that the devolution of interest upon the defendants 2 and 3 was to take place only on the death of the first defendant. Therefore, in view of the contrary intention in the Will, I am not able to accept that Section 119 is attracted. On the other hand, it can be said that it is a case of bequest to a class within the meaning of the exception to Section 111.
24. Under those circumstances, the duty of Court in the case of construction of a Will is always to give effect to the intention of the testator. It is clearly declared in the Will that during the lifetime of the first defendant, she shall have the exclusive right to reside and get the rents and other profits but she shall not be entitled to transfer the property In any way whatsoever.
25. In the light of the above settled principles of law, I am not able to accept the contention of the defendants that the defendants 1 to 3 have got vested interest even before the required contingency and that therefore, they would be entitled to accelerate the same.
26. However, I am not deciding the said point, inasmuch as the plaintiff himself would say that he would not be competent to question the sale deeds and as such, I am not called upon to decide with reference to the legality of the sale deed executed by the defendants 1 to 3 in favour of the defendants 5 and 6. But, in view of the circumstances mentioned above, I cannot but hold that the properties have been old even without the knowledge of the plaintiff, the executor of the properties as per the probate issued by the Court and without getting permission from the Court which issued probate, which, in my view, is improper.
27. Let us now deal with the second factor. This is with reference to the violation of the rules and terms of the sanction of the plan obtained by the defendants 5 and 6 for construction of the two storeyed building.
28. As noted above, the defendants 5 and 6 purchased two portions of the property in Door No. 29A and began to construct after obtaining the sanction of the plan. Since the construction was in deviation of the sanctioned plan causing inconvenience to the plaintiff who was residing at the southern portion of the premises, the plaintiff filed writ petition in W.P. No. 13703 of 1998 in September, 1998 and obtained stay of the construction.
29. It was specifically stated in the said writ petition that the defendants 5 and 6 were putting up construction and the same is not at all in conformity with the sanctioned plan and if the illegal construction by the defendants 5 and 6 is completed, the petitioner/plaintiffs right to have free light and air for his residential house and his right to enter through the doorway on the northern side would be severely affected. It was further specifically mentioned that the peaceful enjoyment of the passage left in between Door Nos. 29 and 30 is affected because of the construction by the defendants 5 and 6 contrary to the planning permission.
30. In the counter dated 19-4-1999 filed in the writ petition, the fifth defendant slated that they demolished the column and thereby created a space of 10 feet in the passage and thus, as of today, there was no violation of the plan approved by the CMDA. But, it is further stated in the counter that since the defendants 5 and 6 have demolished the offending portions as well as having corn-plied with the set back direction of the authorities, there is no impediment to proceed with the construction.
31. When the matter came up during August, 1999 before the learned single Judge, the learned counsel appearing for the defendants 5 and 6 has stated that they have removed all the deviations found in the building and sought for vacating stay of the earlier order. On the basis of the said representation, on 18-8-1999 the writ petition was disposed of with the direction that the defendants 5 and 6 shall put up construction in accordance with the revised plan and if there was any violation, the Corporation of Chennai was directed to take appropriate action.
32. Thereafter, the plaintiff gave a letter to the Corporation of Chennai requesting for the report of deviations. The Corporation of Chennai on 21-8-1999 sent a letter to the plaintiff stating that the deviations which were earlier found are still in existing in the building. This would show that the statement in the counter filed in the writ petition and the submission made by the counsel for the defendants 5 and 6 that the offending portions have been demolished was not true.
33. Under those circumstances, the plaintiff brought to the notice of the learned single Judge in the same W.P. No. 13703 of 1998 on 23-8-1999 and sought for an order of appointment of a Commissioner to submit a report on inspection. Accordingly, an Advocate Commissioner was appointed and inspection report also was filed confirming the deviations.
34. Since there was an objection to the Advocate Commissioner’s report, the learned single Judge passed the following order :–
“Hence, I am of the view that it would be appropriate to direct the Commissioner of Corporation of Chennai to make a personal inspection of the disputed construction that is being carried on by the respondents 3 and 4 herein with the assistance of the report of the Advocate Commissioner and the revised plan, if any, sanctioned by the appropriate authorities and find out as to whether the building is in conformity with the Rules and Regulations of the Chennai Metropolitan Development Authority. If there is any contravention in the construction of the building either of the Rules and Regulations of the CMDA or’ the sanctioned plan by the authorities, then the respondents 1 and 2 are directed to take immediate steps, directing the respondents 3 and 4 to remove such illegal or unauthorised or contravening portion of the construction. The second respondent is granted two weeks’ time from today to make the personal inspection after issue of notice to both the parties and further two weeks’ time from the date of the personal inspection to take appropriate action. Till such time, the respondents 3 and 4 are directed not to carry on or continue the construction. The writ petition is ordered accordingly.”
35. The above order was challenged in W.A. No. 2237 of 1999 before the First Bench of this Court on the ground that the defendants 5 and 6 were not given opportunity to file objection to the Commissioner’s report. However, by the order dated 11-11-1999, the Division Bench confirmed the order of the learned single Judge with reference to the direction given to the Commissioner of Corporation, though the Advocate-Commissioner’s report was directed to be Ignored and the operative portion of the said order is as follows :–
“In the result, we direct that the Commissioner of Corporation shall follow the other directions and the report of the Advocate-Commissioner shall not be used for the purpose of deciding whether there is any Illegal or unauthorised construction by the appellant. However, the Commissioner shall decide whether the construction effected by the appellants is in accordance with approved plan. The appellants and the respondent shall be given notice when the inspection is made and the appellants would be at liberty to raise objection, if any. The order for demolition, if any shall be passed in accordance with the provisions contained in the Madras City Municipal Corporation Act, 1919. Till the Commissioner conducts inspection, the appellants shall not proceed with the construction. Writ appeal is disposed of. Consequently, C.M.P. No. 18794 of 1999 is dismissed.”
36. These orders would show that this court from the beginning had not allowed the defendants 5 and 6 to proceed with the construction.
37. In pursuance of the said order, “the Commissioner of Corporation of Chennai inspected the premises on 20-11-1999 and filed his detailed report on 30-11-1999 along with the plan before this Court. This report also confirmed the deviation of construction on all sides including the southern side of the site where the premises of the plaintiff situate. On this report, the learned single Judge finally disposed of the matter in W.P. No. 13703 of 1998 on 3-12-1999 in the following namely :–
“Now that the report has been filed. There is no need to keep the matter pending any further and as per the report, admittedly, there are certain contraventions in the construction put up by the respondents 3 and 4 and as such, it is open to the second respondent herein to issue necessary notice in accordance with law and take action against respondents 3 and 4 in respect of the unauthorised or violative construction. If the petitioner is aggrieved by the inaction on the part of the second respondent, it is open to him to approach this Court for further relief by way of separate proceedings.”
38. Thereafter, by letter dated 27-12-1999 the plaintiff sent a representation to the Corporation Commissioner to take action as per the orders of this Court against
the deviation of construction being put up by the defendants 5 and 6. Subsequently, the Corporation issued stop work notice and demolition notice in respect of the suit premises to the defendants 5 and 6. However, despite the orders of this Court and despite the receipt of the notice issued by the Corporation of Chennai, the defendants 5 and 6 have continued to put up second floor in total violation of all the building rules.
39. Now. it is seen from the counter filed in these applications by the defendants 5 and 6 that they have applied for regularisation of the unauthorised construction. As noted above, the defendants 5 and 6 have not been allowed to proceed with the construction. But even then, even without finishing the construction, they now claim that they have applied for the regularisation of uncompleted and unauthorised construction.
40. Now, it is pointed out during the pendency of the applications before this Court that the said application for regularisation was rejected, as the said regularisation would apply only to completed buildings as on 29-2-1999, It is further pointed put during the course of arguments that the defendants 5 and 6 have filed a writ petition challenging the order rejecting the request for regularisation.
41. These factors would clearly reveal that there are deviations from the sanctioned plan on all the sides and even though the defendants 5 and 6 have earlier represented through the counter and through oral submission before the Court that the offending portions have been demolished, the said statement was not correct, in view of the report of the Corporation Commissioner Filed as per the direction of the First Bench of this Court. Thus, it is quite clear that the defendants 5 and 6 have not only purchased the properties from the defendants 1 to 3 without getting permission from the Court which issued probate but also have deviated from the sanctioned plan and even though they have made representation that they have demolished the unauthorised construction, it is found from the report of the Corporation Commissioner that they neither demolished the unauthorised construction despite the notice nor stopped the construction, even though there is an order of injunction passed by this Court.
42. The very fact that they have applied for regularisation itself would show that they have made an attempt to seek for regularisation on the ground that unauthorised construction had been completed. It is now represented that in pursuance of the status quo order passed by this Court, the defendants 5 and 6 have stopped continuing the construction. If that be so, there is no reason as to why they seek for regularisation on the ground that the unauthorised construction had been completed. This shows that the defendants 5 and 6 have not come with clean hands and have not placed correct materials before this Court.
43. The third point relates to the execution of the sale deed by the defendants 1 to 3 in favour of the fifth defendant on 1-11-1999 even though the writ proceedings are pending in respect of the deviation of construction causing hindrance to the usage of the passage by the plaintiff.
44. As stated above, the piece of land which was used as a passage has been the point of dispute between the plaintiff and the defendants from the beginning. The sale deeds executed by the defendants 1 to 3 on 13-11-1997 describes the piece of land which is in dispute as a passage mentioned in the schedule as “south by; the portion the property earmarked as a passage and retained by the vendors.”
45. The reason mentioned in the sale deeds for the sale of the portion of the property 29A retaining the passage situate on the southern side of 29A is for the discharge of the loans. After execution of the said sale deeds, the defendants 5 and 6 obtained sanctioned plan and began to construct the building therein. Since there was a deviation in the construction causing inconvenience to the usage of the passage situate between the plaintiff’s house and the defendant’s house by attempting to make construction in that space, the plaintiff filed writ petition in W.P. No. 13703 of 1998 in September, 1998 and obtained interim stay against the defendants 5 and 6 from putting up construction.
46. It is specifically stated in the said writ petition as follows :–
“The peaceful enjoyment of the passage left in between Door Nos. 29 and 30 is affected because of the construction of respondents 3 and 4. The respondents 3 and 4, as per planning permit has to leave 10 feet North of passage and sufficient space in the
frontage. ……… The width of the passage is now reduced to below 4 feet. ……. .The passage has become impassible now because of the heap of debries, thatched screens (thatti) and other unwanted materials strewn by respondents 3 and 4 in the same. The petitioner’s enjoyment of passage as of right is indisputable. Presumably, the vendors of respondents 3 and 4 have joined hands with them for obvious reasons to cause loss and hardship to the petitioner herein and his right of way and it is reliably understood by petitioner, the vendors of respondents 3 and 4 are actively aiding and abetting the illegal construction.”
47. It is also specifically stated in the writ petition that before filing of the writ petition, the plaintiff/writ petitioner made several representations orally to the defendants 5 and 6 and as the said representation did not evoke any response, the representation was sent by the registered post to the Corporation Commissioner on 27-8-1998 to take action against the unauthorised and unlawful construction and since there was no response, he had to file a writ petition. Thus, it is clear that when the enjoyment of the passage in between Door Nos. 29A and 30 by the plaintiff was affected because of the unlawful and unauthorised construction of the defendants 5 and 6 in that passage, the plaintiff took up the matter to the authorities concerned and having failed in that, the plaintiff/petitioner had to approach the writ Court.
48. Though in the counter filed by the fifth defendant dated 19-4-1999 before the writ court, it is stated that the deviation and projection constructed by them were removed and demolished, he had admitted in the counter that there was a space left for the passage for the enjoyment of the plaintiff as directed by the Corporation officials. Those admitted portions in the counter are as follows :–
“In fact at certain places, the deviation was less by 5 feet and 6 inches. However, the respondents 1 and 2 (the Corporation officials) at the instigation of the writ petitioner had directed me to demolish certain portions of the building as per their inspection of the premises. ……… I had therefore removed the constructions/deviations made contrary to the plan since I did not want any further delay and also on account of the threat held out by the statutory respondents. ……. The respondent had however
directed me to leave some more space from the southern side of the property so as to accommodate the writ petitioner. I state that in accordance with the direction of 2nd respondent as we had done in the case of the respondent, we demolished the column and thereby created a space of 10 feet. Thus as of today, there is no violation of the plan approved by the CMDA.”
49. These statements would show that the defendants 5 and 6 have admitted in the counter that there was a space between the Door No. 30 and 29A and on the request of the Corporation authorities, they removed the construction to leave some more space of 10 feet from southern side of the property so as to accommodate the plaintiff.
50. On this basis, the learned single Judge of the writ Court passed an order on 18-8-1999 directing the Commissioner of Corporation to make an inspection of the disputed construction and on inspection, if there is any contravention, they shall take immediate steps to remove such illegal or unauthorised or contravening portion of that construction and till such time the puri chasers, namely, defendants 5 and 6 were directed not to carry on or to continue the construction. Despite this, the construction continued. Therefore, the plaintiff sent a letter to the Corporation Commissioner to take action in pursuance of the orders of the High Court. In reply, the Corporation Commissioner sent a letter dated 21-8-1999 intimating the plaintiff that they noticed the deviations and action would be taken to demolish the same.
51. Since the order of the Court was not obeyed, the plaintiff reported the matter to the Court in the same writ petition on being mentioned and consequently an Advocate Commissioner had to be appointed to inspect and give a report by the order dated 23-8-1999. The Advocate Commissioner after inspection filed a report stating that there is deviation of the construction. Ultimately, this court on 13-10-1999 directed the Corporation Commissioner to take appropriate action. However, the defendants 5 and 6 filed writ appeal in W.A. No. 2237 of 1999 against the order of the single Judge on 22-10-1999 challenging the order mainly on the ground that the Advocate Commissioner ought not to have been appointed in the writ petition which had already been disposed of.
52. Though the affidavit filed in the writ appeal is dated 22-10-1999, it is mentioned in the memo of writ appeal that the writ appeal is dated 1-11-1999. This writ appeal was contested by the plaintiff/respondent by filing counter dated 9-11-1999. Ultimately, after hearing the parties, the Division Bench by the order dated 11-11-1999 directed the Commissioner of Corporation to follow the direction given by the single Judge and decide whether the construction effected by the writ appellants in accordance with the approved plan by making fresh inspection and thereafter, the order of demolition shall be passed in accordance with the provision.
53. Again, the matter came up before the same single judge in W.P. No. 13703 of 1998. In pursuance of the direction of the Division Bench, the Corporation Commissioner after inspection filed a report before the learned single Judge on 30-11-1999 mentioning the deviations on all sides including the southern side where the disputed passage is situated. Thereafter, after hearing the counsel for the parties, it directed the Commissioner of Corporation to take necessary action against the respondents 3 and 4, i.e., defendants 5 and 6 in respect of the unauthorised violative construction. This order is dated. 3-12-1999.
54. At this stage, it is quite relevant to note that the disputed passage had been sold by the defendants 1 to 3 in favour of the 5th defendant on 1-11-1999. It is curious to note that this fact of having purchased the passage from the defendants 1 to 3 had not at all been mentioned either in the writ appeal field on 1-11-1999 before the Division Bench or to the Division Bench while the final order passed on 11-11-1999.
55. Similarly even when the report of deviation on the southern side was filed by the Corporation Commissioner before the single Judge on 30-11-1999 and when the matter was finally heard and the order was passed on 3-12-1999 by the learned single Judge in W.P. No. 13703 of 1998, the defendants 5 and 6 who were the respondents 3 and 4 therein had not chosen to inform this to the learned single Judge.
56. As a matter of fact, when there was no further action in spite of the orders of the Court dated 3-12-1999, there was a letter sent by the plaintiff to the Corporation Commissioner dated 27-12-1999 requesting to take action as per the Court’s order. Ultimately, on 12-1-2000 the Corporation Commissioner sent a notice to the defendants 5 and 6 to stop the further construction and the notice of demolition. However, neither the defendants 5 and 6 nor the defendants 1 to 3 have informed about the sale deed executed on 1-11-1999 in respect of the disputed passage either to the Corporation Commissioner or to the plaintiff. But, despite the receipt of the stop work notice, the construction continued.
57. In the mean time, on 26-9-1999 itself, the plaintiffs door with a window which opens on the disputed passage was nailed shut and locked on by the defendant, for that matter a criminal complaint also was filed against the defendants by the plaintiff.
58. Under those circumstances, the plaintiff filed the present suit on 13-1-2000 before this Court and obtained the order of status quo for further construction on 21 -1 -2000 In the interim applications. In these applications, the defendants 5 and 6 filed a counter on 2-3-2000. Even in this counter there is no mention about the purchase of the passage from the defendants 1 to 3 by the sale deed dated 1-11-1999. On the contrary, the defendants 5 and 6 would state in the counter dated 3-2-2000 as follows :–
“I state that there has never been a passage In the property. None of the sale deeds reval any passage. Hence, the applicant cannot claim what Is not in existence.”
59. This statement, this is quite unfortunate, is contrary to the statement in the counter made before the writ Court where he admitted that 10 feet space was left for the plaintiff for his usage. But, whatever It is, I am at a loss to understand as to why the defendants 5 and 6 had to hurriedly purchase the disputed passage from the defendants 1 to 3, especially when the relief sought for against the disturbance from using the passage is the subject matter of the writ petition and the writ appeal.
60. However, in the counter affidavit filed by the defendants 1 to 4 on 6-3-2000. they have admitted that they have sold the portion retained by them for the purpose of using the same as passage to the 5th defendant on 1-11-1999 by the registered sale deed. Only on that date, the plaintiff came to know that the disputed passage portion was sold by the defendants 1 to 3 to the 5th defendant.
61. Yet another aspect of the matter is quite interesting. As stated above, the sale deed executed by the defendants 1 to 3 in favour of the defendants 5 and 6 on 13-11-1997 would show that the portion, the property earmarked as a passage between the Door No. 30, the Plaintiffs property and Door No. 29A, is retained by the vendors, viz., defendants 1 to 3 for using as the passage. But, strangely In the sale deed executed on I-11-1999, it is stated that the said space was being sold as it has become useless.
62. In this context, it is quite relevant to note that the statement made by the plaintiff in the writ petition that the vendors, the defendants 1 to 3 of the defendants 5 and 6 have joined hands with them to cause loss and hardship to the plaintiff and to his right of way and it is reliably understood by the plaintiff that the vendors, viz., defendants 1 to 3 are actively aiding and abetting the Illegal construction done by the defendants 5 and 6. This statement made by the plaintiff in his writ petition filed on 2-9-1998 has actually become true when the disputed passage was sold on 1-11-1999 by the defendants 1 to 3 to the 5th defendant, thereby helping the defendants 5 and 6 in order to overcome the orders of the single Judge as well as the Division Bench of this Court and also to thwart the demolition notice issued by the corporation authorities.
63. Under those circumstances, the sale deed executed by the defendants 1 to 3 in favour of the 5th defendant hurriedly on 1-11-1999, especially when there was hot contest pending before the High Court, cannot be said to be a bona fide one. This has again become so obvious from the fact that this was not intimated to any of the authorities including the Court by the defendants 5 and 6 at any point of time till it is known to the plaintiff when the counter was filed by the defendants 1 to 4 on 6-3-2000, Thus, it is manifest that the defendants 5 and 6 have been actively abetted by the defendants 1 to 3 for the continued construction and deviation from the sanctioned plan causing disturbance to the usage of the passage by the plaintiff.
64. The fourth point relates to the easementary right claimed by the plaintiff to enjoy the portion of the passage situate between Door No. 30 belonging to the plaintiff and Door No. 29A belonging to the defendants 5 and 6.
65. It is not disputed that the sale deeds dated 13-11-1997 executed by the defendants 1 to 3 in favour of the defendants 5 and 6 would clearly state that the passage earmarked on the southern side was retained by the defendants 1 to 3. It is also made clear now through the counter-affidavit filed by the defendants 1 to 3 that the passage retained by the defendants 1 to 3 earlier was sold by them on 1-11-1999 to the defendants 5 and 6.
66. In the common counter-affidavit dated 6-3-2000 filed by the defendants 1 to 4, they have clearly stated in paragraphs 10 and 11 as follows :–
“We have retained a portion lying between the said area and our southern wall, measuring 21/2 x 60′ for the purpose of using the same as a passage from our house to the Nowroji Road on the Western side. Subsequently, under sale deed dated 1-11-1999, we have also sold the portion retained by us for the purpose of using the same as passage viz., the portion on the southern side measuring 21/2ft. x 60ft. i.e. 150 sq. ft. to the fifth respondent.”
67. The fifth defendant also had stated in the counter dated 19-4-1999 filed in W.P. No. 13703 of 1998 that they have left sufficient space in the southern side so as to accommodate the writ petitioner (plaintiff). His admission is referred to in paragraphs 7 and 8 of the counter which is as follows :-
The respondent had however directed me to leave some more space from one southern side of the property so as to accommodate the writ petitioner.
I state that in accordance with the direction of the 2nd respondent as we had done in the case of the 1st respondent, we demolished the column and thereby created a space to feet. Thus as of today, there is no violation of the plan approved by the CMDA.”
68. These statements in the counter would clearly show that the act of demolition of the projected portion as per the direction of the Corporation Commissioner is to accommodate the plaintiff by creating a space of 10 feet in the southern side which is a disputed portion situate between Door No. 30 and Door No. 29A.
69. As as matter of fact, the plaintiff kept quiet even though the portion of the property 29A was sold by the defendants 1 to 3 in the year, 1997 to the defendants 5 and 6, even though the said sale is effected by the persons who do not have the absolute ownership, in view of the mandate of the Will, probably because the disputed portion of the passage situate on the northern side of the Door No. 30 which leads to Nowroji Road, Js retained by the defendants 1 to 3 so as to be used by the plaintiff also.
70. It is also clear that the plaintiff did not raise the accusing finger so long as there was no disturbance for the use of the passage retained by the defendants 1 to 3. It shall further be noticed that the portion of the Door No. 29A was stated to have been sold due to the family necessity. But, no such necessity had been mentioned in the sale deeds executed by the defendants 1 to 3 in favour of the defendants 5 and 6 on 1-11-1990. Whatever it is. It is obvious from the admitted documents, namely, the sale deeds and other records that there is a passage which can be used both by the defendants 1 to 3 and by the plaintiff as a common passage to reach the Nowroji Road.
71. It is also made clear from the fact that when there is a violation of the construction by the defendants 5 and 6 so as to make the passage narrow preventing the plaintiff to have a free access and use of the passage, the plaintiff was constrained to object to the same by approaching the authorities concerned and thereafter, before the Writ Court in the year 1998.
72. The consistent case of the plaintiff from the beginning, as mentioned in paragraphs 5 and 6 of the affidavit filed in W.P. No. 13703 of 1998, is that the doors and windows fixed on the northern wall of the plaintiffs house are openable in the common passage provided in between Door No. 29 and 30, which is in existence for several decades and the plaintiff has been enjoying the free light, air through the windows and also unrestricted ingress and egress to the passage through the doors on the northern wall and the peaceful enjoyment of the passage is affected because of the deviation of construction by the defendants 5 and 6, though as per the planning permit, the defendants have to leave 10 feet north of passage and originally, the width of the passage was 7 feet and because of the deviation, the width of the passage had reduced to below 4 feet and consequently, the passage has become impassible.
73. This case projected by the plaintiff/ writ petitioner had not been specifically denied by the defendants 5 and 6 in the counter filed in the writ petition. Furthermore, the plan annexed with the report dated 30-11-1999 filed by the Corporation Commissioner in the writ petition as per the direction of the Division Bench clearly shows that the disputed passage which has been shown in green colour is with deviation of portion constructed by the defendants 5 and 6 obstructing the passage.
74. As indicated above, even before the culmination of the writ appeal proceedings, the passage had been sold by the defendants 1 to 3 to the defendants 5 and 6 hurriedly, i.e. on 1-11-1999 on the pretext that the passage has become narrow. Furthermore, it is also mentioned in the plaint as well as in the affidavit that the defendants 2 to 4 on 26-9-1999 nailed the door on the northern side of the plaintiffs house wherein ingress and egress from that door was prevented and with reference to the said incident, the plaintiff and his daughter had preferred a complaint with G-3 Kilpauk Police Station and the said case is pending. This complaint copy also has been filed in the typed set.
75. It is specifically mentioned in the plaint that the plaintiff has a clear prescriptive and easementary right for a pathway, air and light to the disputed portion of the passage. It is also specifically stated that these rights have been acquired from the time the building Door No. 30 in which the plaintiff is living was constructed, by the uncle of the plaintiff in the year 1960 and the disputed portion of the passage was left for the use of the persons living in the plaintiffs house.
76. It cannot be disputed that there is a window opening and door on the northern side of the house of the plaintiff leading to the passage from the plaintiff’s house. It is contended by the plaintiff that the door which was locked cannot be opened, if the plaintiff is not allowed to use the passage.
77. It Is contended on behalf of the defendants, on the strength of the various decisions, such as Krushna Kishore v. Sankarsan, (FB), Lalit Mohan v. Samirendra Kumar , K. Mohideen v. M. M. Abdullah, ; Kamla v. Bhanwarlal Void, ; K. Panduranga Nayak v. Jayashree, and Vasudeva Prabhu v. Madhava Prabhu, AIR 1993 Ker 68 that the plaintiff cannot claim easementary right in the disputed portion.
78. This contention does not appear to be sound because all these decisions would relate to the proposition that the co-owner cannot seek easementary right against other co-owner. That is not the situation here. According to the plaintiff, the disputed portion of the passage situated in Door No. 29 which belongs to the defendants 1 to 3 had been used as a passage to reach Nowroji Road even from the time when the Door No. 30 was constructed. The plaintiff is the owner of the Door No. 30, whereas the defendants are the owners of the Door No. 29. Therefore, those authorities would not apply to the present facts of the case.
79. In the light of the records placed before this Court and also in view of the fact that there is a door and window on the northern side of the Door No. 30 which opens on to the passage leading to Nowroji Road, there is no difficulty in holding that there is a passage which was admittedly retained by the plaintiff while the sale deed executed on 13-11-1997 and the same was used by both the plaintiff and the defendants 1 to 3.
80. But unfortunately, the defendants 5 and 6 have staled in the counter filed before this Court on 2-3-2000 that there was no such passage ever. He stated in para 12 as follows :–
“I state that there has never been a passage in the property. None of the sale deeds reveal any passage hence, the applicant cannot claim what is not in existence.”
81. This statement, in my view, is purely incorrect and the same is made to mislead this Court. As indicated above, the very same defendant as respondent in the writ petition had admitted in the counter that they had left 10 feet space on the southern side of their property to accommodate the plaintiff for his use.
82. It is pointed out by the plaintiff that despite the orders of the single Judge and Division Bench restraining the defendants 5 and 6 from constructing further and the stop work notice and demolition notice issued by the Corporation, the defendants 5 and 6 had continued to go on with the construction. It is also noticed that the defendants 5 and 6 have applied for regularisation and the same has been rejected on the ground that the regularisation would be applicable only for the building which had been completed before 29-2-1999.
83. As pointed out, both the interim order dated 13-10-1999 and the final order dated 3-12-1999 in W.P. No. 13703 of 1998 and the orders in W.A. No. 2237 of 1999 dated 11-11-1999 directed the defendants 5 and 6 not to continue the construction. Even before the completion of construction, it is seen that the defendants 5 and 6 applied for regularisation as if the construction was completed and as such, G.O. would be applicable to them.
84. There is no doubt in the fact that their request for regularisation has been rejected by the CMDA by the order dated 12-1-2000. But, in para 9 of the counter filed in O.A. No. 32 of 2000 in the present suit, they had stated that their application for ratification of the deviation in the plan is pending with MMDA and hence, there is no cause of action for the present suit. This counter dated 3-2-2000 has been filed before this Court on 2-3-2000. This statement is factually incorrect, inasmuch as the defendants 5 and 6 had earlier received the rejection order dated 12-1-2000.
85. Furthermore, it is noticed, as pointed out by the learned counsel for the plaintiff, that the defendants 5 and 6 have filed a writ petition in W.P. No. 4069 of 2000 before this Court against the said order dated 12-1-2000 on 7-3-2000. It is further submitted by the learned counsel for the plaintiff that in the said writ petition the plaintiff was not made as a party, but the defendants 5 and 6 obtained injunction against demolition of the deviations in W.M.P. No. 6264 of 2000 in W.P. No. 4069 of 2000 even without mentioning the ‘earlier orders passed by this Court which directed the Corporation Commissioner to issue notice of demolition.
86. On seeing the copy of the affidavit filed by the fifth defendant as writ petitioner in W.P. No. 4069 of 2000, it is clear that the fifth defendant has suppressed the vital factors relating to the directions given by the learned single Judge as well as the Division Bench of this Court to the Corporation Commissioner to take immediate action for demolition of the deviated portion of the building. The paragraph 4 of the affidavit in W.P. No. 4069 of 2000 would clearly show that he has not given clear and true facts. The said paragraph is as follows :–
“I respectfully state an inspection was made by the Corporation of Madras, Chennai.
I respectfully submit that the 2nd respondent had made an inspection and after satisfying itself with the correctional steps taken by us, it had approved the plan. The plan was approved on 4-3-1999. At certain manner, objections have pointed out in order to avoid any further harassment at the instance of the 2nd respondent who seem to have functioned at the instance of my neighbour who had keen on harassing me. I had applied for regularisation of my plan as per the amended Act.”
87. The above paragraph would show that only the Corporation Commissioner, the second respondent therein, harassed the writ petitioner at the instance of his neighbour. There is no reason as to why he did not give the details about the earlier writ petitions and writ appeal and the orders passed thereon directing the Commissioner to take action to remove the deviations found in the Commissioner’s report.
88. However, this Court is not called upon to decide about the suppression of vital fact in W.P. No. 4069 of 2000. But at the same time, this Court cannot but notice the conduct of the defendants 5 and 6 who have given different versions at different stages before different forums. From this, it is clear that the defendants 5 and 6 have bent upon to give a wrong picture, thereby misleading the forum concerned.
89. It is also contended that under Section 15 of the Easements Act, it must have been established that the plaintiff was using the easementary right for about 20 years. It is the specific stand taken by the plaintiff both in the affidavit and in the plaint and also in the reply affidavit that be was enjoying the easementary right in the passage for more than 40 years.
90. Under those circumstances. I am not able to accept the arguments of the learned counsel for the defendants, especially when the plaintiff has taken a uniform stand from the beginning, i.e. from the time when he filed a writ petition in the year 1998 till now that his usage of the passage situate between Door Nos. 30 and 29A has been disturbed by all the defendants. Therefore, prima facie I find that the plaintiff would be entitled to easementary right as claimed by him pending disposal of the suit.
91. It is settled law that the plaintiff while seeking the interim relief has to come with clean hands and equally so in the case of defendants as well.
92. The conduct of the defendants in hurriedly selling the disputed portion of the passage which is the subject matter of the writ petition on 1-11-1999 even without any necessity and the statement of the defendants 5 and 6 through the counter filed before this Court that there was never a passage, would clearly show that they have not come with clean hands.
93. It is held in the decision in Gujarat Bottling Co. Ltd. v. Coca Cola Co., that under Order XXXIX of the Code of Civil Procedure, the jurisdiction of the Court to pass interim order in favour of the plaintiff or to vacate the said order in favour of the defendant is purely equitable. Therefore, the Court will, apart from other consideration, also look into the conduct of the parties invoking the jurisdiction of the Court either to seek for interim relief or to vacate the interim order. Since the relief is wholly equitable in nature, the party invoking the said jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing of the state of things complained of, and that he was not unfair or equitable, in his dealings with the parry against whom he was seeking relief. His conduct should be fair and honest.
94. While applying these principles to the present case, It appears to me that it is desirable to grant the interim reliefs sought for in these applications, as, in my view, the “balance of convenience” lies in favour of the plaintiff/applicant, more particularly when the plaintiff/applicant has a prima facie case and if the prayer for interim reliefs is disallowed, the plaintiff/applicant would suffer an irreparable injury.
95. In the light of the discussion made and reasons indicated above, the applicant is entitled to the interim reliefs sought for in these applications pending disposal of the suit.
96. In the result, all the applications are allowed.
