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2008 DIGILAW 2067 (MAD)

Sridharlal v. Nirdosh

2008-06-27

S.MANIKUMAR

body2008
Judgment :- 1. This Civil Revision Petition is filed against the order passed by the XV Assistant City Civil Judge, Chennai in I.A. No.3636 of 2002 in O.S. No.7913 of 1997 dated 4. 2002. 2. For convenience, the parties are arrayed as found in the Suit proceedings. Facts of the case are as follows: Respondent herein had instituted a Suit on O.S. No.7913 of 1997 before the City Civil Court, Chennai for effecting division of the suit property in six equal shares and allotment of one such share in his favour and also for a direction to the first defendant, the petitioner herein to pay mesne profit at the rate of Rs.500/-per month from the date of Plaint till the date of separate possession of his shares. The main contention of the plaintiff, who is the respondent in the present Civil Revision is that the suit schedule property is an ancestral property inherited, by his maternal uncle in the year, 1940. Thereafter, the possession and enjoyment of the property went to the hands of Tmt. Parvathi Bai, widow of the plaintiffs uncle. Even during her life time, Tmt. Parvathi Bai executed a registered Will dated 11. 1969, bequeathing the property in favour of the plaintiffs mother Tmt. Lakshmi Devi. The plaintiffs father was appointed as an executor of the Will. Till her death, the plaintiffs mother had been enjoying the suit property. After her death, the plaintiff and the defendants were put in joint possession of the property in question. Plaintiffs father pre-deceased his wife, viz. the mother of the plaintiff, who had left the plaintiff and the defendants as here legal heirs. To his shock and surprise, the plaintiff came to know of the fact that the 1st defendant, after obtaining a false legal heirship certificate in his favour, had changed the name in the electricity consumption card and in the patta register in respect of the suit property, as if the property exclusively belonged to him. While the plaintiff and the defendants were in joint possession of the property, the first defendant and the third defendant alone were enjoying the major portions of the joint family property and deriving the benefits towards rental income. 3. While the plaintiff and the defendants were in joint possession of the property, the first defendant and the third defendant alone were enjoying the major portions of the joint family property and deriving the benefits towards rental income. 3. Hence plaintiff issued a lawyers notice to the first defendant, who in turn, according to the plaintiff had gone to the extent of even denying the blood relationship by using the legal heirship certificate obtained fraudulently and had been enjoying the property illegally. On the other hand, in his written statement, the first defendant, the revision petitioner, has alleged that the plaintiff (respondent herein) and defendants 2 to 6 were not actually born to his parents, but they were the children of one Lakshmi Devi, who was the concubine of Munmohanial and hence the plaintiff and defendants 2 to 8 cannot claim any right over the property, merely by taking advantage of the similarity in the names of the wife and concubine of the said Munmohanial. Actually, the plaintiffs mother was residing somewhere else and she was just maintained by the father of the first defendant. The plaintiff and defendants 2 to 7 are not the legal heirs of late Munmohanial and therefore they do not have any legal right in the property. The first defendant alone is entitled to the possession of the suit property. According to the first defendant, the plaintiff never succeeded to the property and there is no non-residential portion in the property as alleged by the Plaintiff and he cannot also claim mesne profits. 4. Pending Suit, the revision petitioner herein filed an Application before the Court below for rejecting the certified copy of the Will, alleged to have been filed by the plaintiff, who is the respondent in the present Revision, on the ground that marking of the certified copy of the Will which is not probated does not have validity and cannot be relied on for any purpose, especially when there are no pleadings in that regard. 5. Rebutting the averments made in the above Application, the Plaintiff/respondent in his counter affidavit has explained the ownership of the property and the admissibility of the certified copy of a Will for marking the same as one of the exhibits to substantiate his claim. 6. The Court below after considering the submissions made by both parties, rejected the application on the ground that the document viz. 6. The Court below after considering the submissions made by both parties, rejected the application on the ground that the document viz. the Will dated 11. 1961, stated to have been executed by Tmt. Parvathi Bai was a registered Will and whether the Will was probated or not, can be decided only during the cross-examination of witness of P.W.1. The petitioner seeks interference of the said order under Article 227 of the Constitution of India before this Court. 7. Learned counsel appearing for the Revision Petitioner would attack the order of the Court below on the ground that the respondent/Plaintiff, cannot rely on an unprobated Will, to establish his title on the basis of the Will for the simple reason that the property in question is situated in Chennai City. As per the relevant provisions of Indian Succession Act, a Will has got to be probated by the appropriate Court. Learned counsel appearing for the revision petitioner would then submit that even though the revision petitioner has approached the Court below were in advance, the Court below has chosen to reject the same by holding that the said Application was taken out belatedly. According to him, a document which is in-admissible in evidence cannot at all be relied and acted upon, and that the revision petitioner was not even given an opportunity to establish his ownership of the property. In support of his contentions, learned counsel for the petitioner also relied the decisions of the Apex Court in Hem Noline Judah v. Isolyne Sarojbashini Bose and others, AIR 1962 SC 1471 ; Ajit Kumar Hazra and others v. Rathindra Nath Roy, AIR 1980 Cal.117; and a Division Bench Judgment of this Court, in a similar issue in Vaidurayamma v. Suryanarayana and others, 1997 (1) MLJ 2 . 8. On perusal of the materials available on record and hearing the arguments advanced by learned counsel appearing for the revision petitioner this Court is of the view that the respondent/plaintiff cannot rely on an unprobated Will to establish his title for the simple reason that the property in question is situated within Chennai City. As per the provisions of Hindu Succession Act, a Will has got to be probated. In these circumstances, even though the Will was registered, when it was not probated, it ought not have been permitted to be marked as evidence. As per the provisions of Hindu Succession Act, a Will has got to be probated. In these circumstances, even though the Will was registered, when it was not probated, it ought not have been permitted to be marked as evidence. The decisions relied on by the learned counsel for the petitioner can be applied to the facts of this case. It is open to the respondent to take appropriate steps to get the Will probated and then approach the Court below for permission to mark the same. The order passed by the XV Assistant City Civil Judge, Chennai in I.A. No.3636 of 2002 in O.S. No.7913 of 1997 dated 4. 2002 is set aside and the Civil Revision Petition is allowed. Consequently the connected C.M.P. No.20488 of 2003 is closed. No costs.