Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1380 (MAD)

Maruthathal v. Agnimuthu

2005-08-19

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 24.01.2003 passed by the learned Subordinate Judge, Sankarankovil in C.M.A.No.16 of 2002, as stated therein.) This Civil Revision Petition is directed against the order dated 24.01.2003 of Subordinate Court, Sankarankovil in C.M.A.No.16 of 2002, confirming the order dated 05.06.2002 of Principal District Munsif, Sankarankovil in I.A.No.316 of 2001 in O.S.No.69 of 2001. The Defendant is the Revision Petitioner. 2. O.S.No.69 of 2001:- The First Plaintiff claims to be the Wife of Muthukumara Thevar. The Second Plaintiff is the Daughter of the First Plaintiff and the said Muthukumara Thevar. The Defendant is the First Wife of Muthukumara Thevar. The said Muthukumara Thevar had executed a Settlement Deed dated 04.07.1973 settling some items of properties in favour of the Defendant. As per the Settlement Deed, the Defendant is to enjoy those settled items of property during her lifetime without any alienation and after her lifetime, the properties are to devolve upon the heirs of Muthukumara Thevar. The Suit Properties and some other Items of Property were bequeathed to the Plaintiffs by the said Muthukumara Thevar executing a Registered Will dated 21.08.1988. After the death of Muthumumara Thevar, the Plaintiffs are in possession and enjoyment of the Suit Property. The Defendant without the knowledge of the Plaintiffs attempted to get Patta in her favour, which was prevented by the Plaintiffs. Hence, the Plaintiffs have filed the Suit for Declaration and also for Permanent Injunction restraining the Defendant from in any way alienating the Suit Property and causing interference to the possession of the Plaintiffs in the Suit Properties. 3. Along with the Suit, the Plaintiffs have filed I.A.No.316 of 2001 seeking Temporary Injunction restraining the Defendant from in any way alienating the Suit Properties in favour of her relaltives and from interfering with peaceful possession and enjoyment of the Plaintiffs in the Suit Properties. The Defendant resisted the Application denying the legal status of the First Plaintiff. According to the Defendant, the Defendant is the only Legal Heir of Deceased Muthukumara Thevar. The First Plaintiff and the Second Plaintiff are not the Legal Heirs of Muthukumara Thevar. The said Muthukumara Thevar had executed a Settlement Deed in favour of the Defendant on 04.07.1973 settling the properties with the recitals thereon not to alienate those properties. According to the Defendant, the Defendant is the only Legal Heir of Deceased Muthukumara Thevar. The First Plaintiff and the Second Plaintiff are not the Legal Heirs of Muthukumara Thevar. The said Muthukumara Thevar had executed a Settlement Deed in favour of the Defendant on 04.07.1973 settling the properties with the recitals thereon not to alienate those properties. The alleged Will relied upon by the Plaintiffs is the forged one, which has been created for making a false claim to the Suit Properties. The Defendant has taken steps for obtaining Patta in her name. Since the Suit Properties belong to the Defendant and the Plaintiffs cannot obtain any order of Temporary Injunction. 4. Even in the Interlocutory Application, onbehalf of the Plaintiffs, P.W.1 – Attestor to the Will was examined. Parties adduced number of documentary evidence in support of their respective plea. Upon consideration of the evidence adduced and the materials produced, the Courts below found that the Plaintiffs have proved prima facie possession. Finding that the materials produced prima facie shows that the First Plaintiff is the Wife of Muthukumara Thevar and the Second Plaintiff being the Daughter of Muthukumara Thevar, the Courts below have granted Injunction restraining the Defendant from in any way alienating the Suit Property and also restraining her from interfering with peaceful possession and enjoyment of the Suit Properties by the Plaintiffs. 5. Aggrieved over the order of Temporary Injunction, the Defendant has preferred this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner / Defendant has submitted that when the evidence regarding the proof of Will is full of contradictions, the Courts below ought not to have relied upon the Will in support of the Plaintiffs. Drawing the attention of the Court to the Settlement Deed executed by Muthukumara Thevar, learned Counsel for the Revision Petitioner / Defendant has submitted that when the Defendant has been vested with the right to be in possession of the properties of Muthukumara Thevar, the Courts below erred in granting a blanket order of Temporary Injunction and the Order of Injunction cannot be sustained. Learned counsel for the Revision Petitioner has further submitted that the Defendant has no intention of alienating the properties and the Injunction restraining the Defendant from alienating the properties cannot be maintained. 6. Learned counsel for the Revision Petitioner has further submitted that the Defendant has no intention of alienating the properties and the Injunction restraining the Defendant from alienating the properties cannot be maintained. 6. Countering the arguments, learned counsel for the Respondents / Plaintiffs has submitted that the Suit Properties are not covered under the Settlement Deed in favour of the Defendant. Placing reliance upon the number of documents filed by the Plaintiff, learned counsel for the Respondents submitted that on the numerous documentary evidence filed by the Plaintiffs, the Courts below have rightly found that the Plaintiffs are proved to be the Wife and Daughter of Muthukumara Thevar and that they have established a prima facie case, evidencing their possession and the Courts below have rightly granted Temporary Injunction and the same is to be maintained. Learned counsel for the Respondents / Plaintiffs has further submitted that the Trial in O.S.No.69 of 2001 has already commenced and any interference in the concurrent orders of the Courts below would cause serious prejudice to the Plaintiffs. 7. The only point that arises for consideration is whether the concurrent findings of the Courts below in granting Temporary Injunction suffer from perversity and whether there is improper exercise of discretion warranting interference? 8. The Defendant has denied that the First Plaintiff is the Legally wedded Wife of Muthukumara Thevar and has raised plea denying the Legal Status of the Second Plaintiff as the Daughter of Muthukumara Thevar. To prove the marriage of the First Plaintiff with Muthukumara Thevar, the Marriage Certificate (Ex.P.8) issued by Kurukkuthurai Arulmighu Subramaniya Swamy Thirukkovil and other relevant documents have been produced. To show that the First Plaintiff is the Wife of Muthukumara Thevar, the Plaintiffs have also produced Ex.P.3-Voter's Identity Card issued by the Election Commission in the name of the First Plaintiff. To prove the paternity of the Second Plaintiff, the 10th Standard Mark Sheet of the Second Plaintiff (Ex.P.10) and the Community Certificate of the Second Plaintiff (Ex.P.11) have been produced. The number of documents filed by the Plaintiffs prima facie shows that the First Plaintiff is the Wife and the Second Plaintiff is the Daughter of Muthukumara Thevar. At this stage, the legal status evidenced from the documents cannot be discarded. Any dispute regarding the Legal Status of the Plaintiffs is to be adjudicated only at the time of Trial. 9. At this stage, the legal status evidenced from the documents cannot be discarded. Any dispute regarding the Legal Status of the Plaintiffs is to be adjudicated only at the time of Trial. 9. The Suit Properties – as many as 19 Items of Properties are the Punja lands. The Plaintiffs claim to be in possession of the Suit Properties pursuant to Ex.P.1 – Unregistered Will (dated 21.08.1988). In support of their case that they are in possession of the Suit Properties, the Plaintiffs have also produced Ex.P.2 series – Kist Receipts. 10. As noted earlier, the Suit Properties relate of 19 Items of landed Properties and the Plaintiffs claim to be in possession of the Suit Properties pursuant to Ex.P.1 – Will. To prove the Unregistered Will – Ex.P.1, P.W.1 – Attestor – Krishnasamy was examined as Witness. P.W.1 has elaborately spoken about the Execution of the Will and the Attestation thereon. Attacking the evidence of P.W.1, learned counsel for the Revision Petitioner / Defendant has submitted that the evidence of P.W.1 is replete with contradiction and that Ex.P.1 cannot be taken into consideration to accept the prima facie case of the Plaintiffs. The parties are yet to go on for Trial. It would be pre-mature to express any opinion on the genuineness or otherwise of Ex.P.1 – Will. Suffice it to point out that the Plaintiffs have established their prima facie case. Learned Subordinate Judge has rightly found that the correctness of the Will could be gone into only at the time of Trial. 11. The Suit Property relate to 19 Items of Property. Stating that the Defendant is in possession of the Suit Properties, the Defendant has produced Ex.R.2 – House Tax Receipts, Ex.R.5-Draft Patta and Ex.R.7 – Kist Receipts. She has also produced Receipts issued by Primary Agricultural Co-operative Bank, Vannikovanthal. The House Tax Receipts regarding Door No.60 have also been produced. The Courts below have found that the documents produced by the Defendant do not show the possession of the Revision Petitioner / Defendant. Learned Subordinate Judge has found. There is no reason to take a different view. 12. The Possession of the Suit Properties by the Plaintiffs is evidenced by Ex.P.2 series – Kist Receipts. The Plaintiffs have also paid the House Tax as is seen from Ex.P.13 series - House Tax Receipts. Prima facie case of possession of the Plaintiffs have been made out. There is no reason to take a different view. 12. The Possession of the Suit Properties by the Plaintiffs is evidenced by Ex.P.2 series – Kist Receipts. The Plaintiffs have also paid the House Tax as is seen from Ex.P.13 series - House Tax Receipts. Prima facie case of possession of the Plaintiffs have been made out. The Courts below have rightly granted Temporary Injunction finding that the Plaintiffs have made out prima facie case. 13. Learned counsel for the Petitioner has taken exception in granting Temporary Injunction regarding possession. It is submitted that under the Settlement Deed, the Defendant is entitled to be in possession of the Suit Property during her lifetime and the Courts below erred in granting Temporary Injunction, which is in contradiction to the recitals in the document. Countering the arguments, learned counsel for the Respondents / Plaintiffs submitted that the Suit Properties are not covered under the Settlement Deed. The Defendant has not produced documents demonstrably showing that the Suit Properties are covered under the Settlement Deed. In fact, the Revision Petitioner / Defendant has not even produced the Settlement Deed, but only the Plaintiffs have produced the copy of the Settlement Deed (Ex.P.16). While so, it is not possible to accept the contention of the Revision Petitioner / Defendant that the Temporary Injunction granted is contradictory to the recitals of the Settlement Deed in her favour. 14. By the concurrent findings, the Courts below have granted Temporary Injunction. Whenever the Courts below have passed an order either granting or refusing an order of Temporary Injunction. Only in exceptional cases, where it is shown that the order is going to cause irreparable loss or failure of justice, or where the findings are based on no material, then only the High Court would interfere with the order of Temporary Injunction granted by the Courts below. In this case, there is nothing to suggest that the Temporary Injunction granted by the Courts below are unreasonable or perverse warranting interference. This Civil Revision Petition has no merits and the same is liable to be dismissed. 15. For the foregoing reasons, the order dated 24.01.2003 of the learned Subordinate Judge, Sankarankovil in C.M.A.No.16 of 2002 (confirming the order dated 05.06.2002 of Principal District Munsif, Sankarankoil in I.A.No.316 of 2001 in O.S.No.69 of 2001) is confirmed and this Civil Revision Petition is dismissed. 15. For the foregoing reasons, the order dated 24.01.2003 of the learned Subordinate Judge, Sankarankovil in C.M.A.No.16 of 2002 (confirming the order dated 05.06.2002 of Principal District Munsif, Sankarankoil in I.A.No.316 of 2001 in O.S.No.69 of 2001) is confirmed and this Civil Revision Petition is dismissed. Consequently, the connected C.M.P.No.9665 of 2003 is dismissed. In the circumstances of the case, there is no order as to costs. The learned District Munsif, Sankarankovil is directed to expedite the Trial of the Suit in O.S.No.69 of 2001 and dispose the same in accordance with law expeditiously.