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2010 DIGILAW 4577 (MAD)

D. Vimala v. P. Gunasekaan

2010-10-18

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision has been filed against the judgment and decree passed in C.M.A.No.73 of 2006 dated 24.06.2008 by the lower appellate court in setting aside the order passed by the trial court namely the Additional Sub Judge Coimbatore against the order passed in I.A.No.211 of 2006 in O.S.No.227 of 2006 dated 26.06.2006. 2. For convenience sake the rank of parties before the trial court is maintained in this revision. 3. The petitioner as plaintiff has filed a suit for declaration and injunction against the defendant who is none other than the brother of the petitioner on the foot of a Will executed by the mother dated 15.06.2001 bequeathing the immovable property belonging to her in favour of the petitioner on her own volition and in the sound and disposing state of mind. The said mother Amirtham died on 04.01.2003, and the father Ponnusamy had predeceased her. The Will came into effect and the petitioner was in possession and enjoyment of the suit property even from the year 1992 and she continued her possession. Thereafter, on 09.04.2006, the respondent has come along with some other unknown persons, and threatened the petitioner with dire consequences and he would also proclaim that if the petitioner did not hand over the possession, he would forcefully take the possession. Therefore, the petitioner gave a criminal complaint against the defendant and also filed the suit for declaration and permanent injunction against the respondent. 4. The respondent would deny the execution of the will dated 15.06.2001 of their mother as not a true one. The respondent also denied that the Will was not executed by the testator voluntarily on her own volition in a sound and disposing state of mind. He would further submit that the said Amirtham was along with her daughter Geetha and her grand daughter Rajani who were brutally murdered by unknown persons on 04.03.2003 and the investigation in Cr.No.137 of 2003 before the B6 Peelamedu police station is still pending. Since the mother was murdere,d the petitioner who was residing at Tiruppur and the respondent who was residing at Cheran Nagar, Coimbatore have come to the suit property and they started staying in the suit property and actually both the petitioner and the respondent are in possession and enjoyment of the suit property. Since the mother was murdere,d the petitioner who was residing at Tiruppur and the respondent who was residing at Cheran Nagar, Coimbatore have come to the suit property and they started staying in the suit property and actually both the petitioner and the respondent are in possession and enjoyment of the suit property. The claim of the petitioner that she is in exclusive possession of the suit property is not correct and she cannot also seek for any injunction against the co-owner in the absence of the Will. The alleged Will is a forged one, created fraudulently, and it is an unregistered document and it is not a true and valid document. Therefore, the possession and enjoyment of the respondent cannot be disturbed by the way of injunction ordered with the aid of the court. The allegations that the petitioner with his henchmen had threatened the petitioner were all invented for the purpose of the case. The petitioner did not approach the court with clean hands. The petitioner has no prima facie case and the balance of convenience is not in favour of the petitioner. Much hardship and inconvenience will be caused to the respondent in the event of grant of interim injunction. Therefore, the petition has to be dismissed. 5. The trial court did not record oral evidence but admitted Exs.P1 to P.12 and Exs.R1 to R9 on either side and had appraised the documentary evidence and had come to the conclusion that the petitioner was in exclusive possession of the suit property and therefore, it had granted temporary injunction till the disposal of the suit. 6. Aggrieved against the said order, an appeal was preferred by the respondent/defendant before the Principal District Judge, Coimbatore in C.M.A.No.73 of 2006 and the said court had come to the conclusion that there is no prima facie case for the petitioner and therefore, it set aside the order of temporary injunction granted by the trial court in favour of the petitioner and consequently the appeal was allowed. Aggrieved by the said order passed by the lower court, the present revision has been launched by the petitioner/plaintiff. 7. The records of the lower court was called for and they have been produced for perusal of this court. 8. Heard Mr. N. Damodaran,learned counsel for the petitioner. No representation for the respondent despite the respondent appeared through counsel. Aggrieved by the said order passed by the lower court, the present revision has been launched by the petitioner/plaintiff. 7. The records of the lower court was called for and they have been produced for perusal of this court. 8. Heard Mr. N. Damodaran,learned counsel for the petitioner. No representation for the respondent despite the respondent appeared through counsel. I have perused the lower court records. 9. I have given anxious thoughts to the arguments advanced by the learned counsel for the revision petitioner. The records of this court and the lower court records summoned were carefully perused. The suit was filed by the petitioner as plaintiff seeking for the reliefs of declaration and permanent injunction against the defendant in respect of the suit property. The petitioner has claimed an exclusive right in the suit property by virtue of the will executed by mother Amirtham in favour of the petitioner/plaintiff. The allegation made before the trial court would be that the petitioner was in an exclusive possession of the suit property from the year 1992 when her mother was alive and after the death of her mother on 04.03.2003, the Will came into existence and she became the exclusive owner of the property and she, by exercising her right continued to be in possession. 10. However, the respondent had claimed that their mother was murdered and after the said incident only both the petitioner and respondent came to the suit property and started staying in the said house. There, the occupation of the petitioner in the suit property has not been denied by the respondent. However he pleads joint possession of the suit property. The lower appellate court had come to a conclusion that the Will was not produced and in the absence of production of the Will, the prima facie case was not established by the petitioner and therefore, no temporary injunction could be granted in favour of the petitioner. No doubt it is true that in a suit for declaration of title to the suit property the plaintiff has to establish his or her prima facie title by producing the documents. As far as this case is concerned the title to the property is claimed through a Will. Admittedly, the plaintiff and the defendant are sister and brother and both are equally entitled in the property if there is no testamentary succession. As far as this case is concerned the title to the property is claimed through a Will. Admittedly, the plaintiff and the defendant are sister and brother and both are equally entitled in the property if there is no testamentary succession. Therefore, they would be treated as co-owners in the absence of the Will. The Will could be established in the trial only after examining attesting witnesses subject to the provisions of Section 68 of Indian Evidence Act and in accordance with the provisions of Section 63 (c) of Indian Succession Act. Only after the said proof, the title under the Will can be decided and the plaintiff will be declared as the exclusive owner. However, during the pendency of the suit, it cannot be said that the Will produced by the petitioner is a true and genuine document. Therefore, there cannot be any prima facie case for the petitioner that he is in exclusive possession of the suit property. No doubt, it has been admitted by the respondent that both the petitioner and respondent are in joint possession of the suit property. Therefore, the dismissal of the application by the first appellate court is not correct because it should have ordered "status quo" to be maintained by both parties, in the interest of justice. But it has negatived the claim of the petitioner for injunction. Therefore, the order of the first appellate court should be a conversion of the absolute temporary injunction granted by the trial court into that of a "status quo" to be maintained by both parties. But it had dismissed the prayer for interim injunction in toto. Therefore, the order passed by the lower appellate court is liable to be interfered and modified. 11. When records were perused by this court, it could see that the respondent did not appear before lower court. Therefore, an ex-parte decree was passed in favour of the petitioner/plaintiff on 11.08.2009. In the said circumstances, the status quo order passed by this court should have been continued till the date of disposal of the suit. Now it has become necessary for this court to issue directions that in the event of the ex-parte decree passed against the defendant is set aside, the order of status quo to be maintained by both parties and it shall continue till the disposal of the suit, on merits. 12. Now it has become necessary for this court to issue directions that in the event of the ex-parte decree passed against the defendant is set aside, the order of status quo to be maintained by both parties and it shall continue till the disposal of the suit, on merits. 12. With the aforesaid observations, the revision is ordered. However, there shall be no order as to costs. Connected miscellaneous petition is closed.