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Madras High Court · body

2012 DIGILAW 4493 (MAD)

C. Ponnusamy v. Muniammal

2012-10-31

R.S.RAMANATHAN

body2012
Judgment :- 1. The tenant is the revision petitioner herein. 2. One Mrs. Muniammal, filed R.C.O.P.No.215 of 2001, for eviction against the revision petitioner. The Petition was ordered, on 25.06.2001. Aggrieved by the said order of eviction, the revision petitioner filed an Appeal in R.C.A. No.889 of 2004 and that was dismissed as abated, as the landlord-Muniammal died and her legal representatives were not impleaded. Thereafter, the respondents filed an Execution Petition, claiming to be the legal representatives of the deceased Muniammal. They also filed M.P.No.565 of 2006 to permit them to prosecute the Execution Petition filed by them to execute the order passed in R.C.O.P.No.215 of 2001. That Petition was dismissed, holding that the respondents herein failed to prove that they are the legal representatives of the late Muniammal. Challenging the same, the respondents filed C.R.P.No.2255 of 2007, and that Revision Petition was also dismissed with an observation, permitting the respondents herein to substantiate their case by producing the original documents before the Authority below and get necessary orders, if so advised. As per the observation made by this Court, in C.R.P.No.2255 of 2007, the respondents filed M.P.No.370 of 2007, and that Petition as allowed. Aggrieved by the same, the revision petitioner/tenant filed C.R.P. (PD) No.562 of 2011, wherein, the order passed in M.P.No.370 of 2007, dated 14.12.2010, was set aside and the matter was remanded to the Court below to pass fresh orders, after considering the entire matter in issue. Thereafter, the Executing Court allowed M.P.No.370 of 2007, by order, dated 29.06.2011 and this order is challenged in the present Civil Revision Petition. 3. Mr. N. Vanaraj, the learned counsel appearing for the revision petitioner submitted that the court below, without properly appreciating the order passed in C.R.P.No.2255 of 2007 and the various exhibits filed by the respondents, erred in holding that the respondents have proved that they are the legal representatives of late Muniammal. The learned counsel submitted that in M.P.No.565 of 2006, filed by the respondents to implead themselves as legal representatives of the late Muniammal, the respondents herein filed Exhibits P.1 to P.8 and those exhibits were not believed and the same was also confirmed by this Court in C.R.P.No.2255 of 2007 and therefore, the Court below ought not to have relied upon those exhibits to arrive at a conclusion that the respondents proved that they are the legal representatives of the late Muniammal. 4. 4. The learned counsel for the revision petitioner further submitted that P.W.1, who was also examined as R.W.3 and R.W.4, are not trustworthy witnesses, and their evidence are contrary to the documents produced by them. As per the documents produced by the respondents, they could not be the legal representatives of Muniammal. Even as Ex.P.3, it is admitted that prior to the death of Kanaiyan, the husband of the first respondent, the father of the respondents 2 to 4, his parents died and admittedly, Kanaiyan died on 02.01.1998. As per the statement of the first respondent given before the Revenue Inspector, who was examined as P.W.1, she has stated that the parents of her husband died, prior to the death of her husband and according to the death certificate of Muniammal, she died on 31.10.2004. Therefore, the respondents, who claimed to be the widow and children of Kanaiyan, cannot be the legal representatives of Muniammal and Kanaiyan, could not be the son of Muniammal. 5. The learned counsel for the revision petitioner further submitted that the age recorded in the death certificate of Muniammal and Kanaiyan, would also make it clear that Kanaiyan, cannot be the son of Muniammal. The learned Counsel submitted that as per the death certificate of Muniammal, her age was 75, in the year 2004 and as per the death certificate of Kanaiyan, his age was 70 on 02.01.1998. Hence, in the year, 2004, he must have been 76 years old and therefore, Kanaiyan, who claims to be the son of Muniammal, cannot be 76 years of age and that would also prove that Kanaiyan, could not be son of Muniammal, whose age is 75 in the year 2004. Therefore, the learned counsel submitted that the Court below, without appreciating all these aspects, erred in allowing M.P.No.370 of 2007. 6. On the other hand, the learned counsel for the respondents submitted that, though C.R.P.No.2255 of 2007 was dismissed, liberty was given to the respondents to agitate the matter before the Authority below by filing original documents and therefore, M.P.No.370 of 2007 was filed, by producing necessary documents and hence, it cannot be stated that the order passed in C.R.P.No.2255 of 2007, operates as res judicata. The learned counsel further submitted that the age mentioned in the death certificate of Kanaiyan and Muniammal, should not be taken as gospel truth and the entries made in the death certificates are the name, and the date of death and therefore, age cannot be a deciding factor to decide whether Kanaiyan, was the son of Muniammal or not. 7. The learned counsel for the respondents further submitted that the Revenue Inspector, who obtained the statement from Muthuammal, also gave evidence explaining the reason for recommending the respondents as legal representatives of Muniammal and he admitted that, though Muniammal was alive, when Kanaiyan was dead, when the legal heirship certificate was issued, Muniammal was not alive. Hence, it has been specifically mentioned in Ex.P.5, that the Muniammal died on 31.10.2004 and Ex.P.5 is the original legal heirship certificate issued to the legal representatives for Kanaiyan. Hence, having regard to the explanation given by P.W.1, it cannot be stated that Kanaiyan was not the son of Muniammal, and after enquiry, the Revenue Inspector has re-commended the issuance of legal heirship certificate and on that basis, the legal heirship certificate was issued by the Tahsildar and the Court below, rightly accepted the contention of the respondents and allowed the Petition. 8. The learned counsel for the respondents further submitted that the wife of the revision petitioner, by name Mrs. Vasantha, projected herself, as landlord and obtained the property from Muniammal and also filed exhibits, as if, Muniammal, executed a Will in her favour and the revision petitioner was not able to prove his case and the application filed by the wife of the revision petitioner, under order 21, Rule 58 of Cr.P.C., was also rejected and against that, she has not preferred any Revision Petition and the case of the revision petitioners is that, Muniammal, died issueless and prior to her death, she gave the property to his wife and that was not proved by the revision petitioner and considering all these aspects, the Court below rightly allowed the Petition. 9. In the case, we will have to see whether the respondents proved themselves as legal representatives of late Muniammal. 10. As stated supra, Muniammal filed R.C.O.P. No.215of 2001, for eviction against the revision petitioner and that was ordered and the Appeal filed by the revision petitioner was dismissed as abated, as Muniammal died and no legal representatives were impleaded. 9. In the case, we will have to see whether the respondents proved themselves as legal representatives of late Muniammal. 10. As stated supra, Muniammal filed R.C.O.P. No.215of 2001, for eviction against the revision petitioner and that was ordered and the Appeal filed by the revision petitioner was dismissed as abated, as Muniammal died and no legal representatives were impleaded. Therefore, the order of eviction passed in R.C.O.P.No.215 of 2001, has become final. The respondents filed M.P.No.565 of 2006, seeking permission of the Court to prosecute the Execution Petition filed by them to execute the order passed in R.C.O.P.No.215 of 2001, by the learned Rent Controller and that Petition, viz., M.P.No.565 of 2006, was dismissed, holding that the respondents failed to prove that they are the legal representatives of late Muniammal and the same was also affirmed by this Court in Revision, viz., C.R.P.No.2255 of 2007. Though the said Revision Petition was dismissed, an opportunity was given to the respondents to substantiate their case by producing the original documents and therefore, as rightly contended by the learned Counsel for the respondents, the order passed in C.R.P.No.2255 of 2007 cannot be put against respondents. 11. According to the respondents, Muniammal was the wife of one Suburayan and they had a son by name Kanaiyan and the said Kanaiyan died on 02.01.1998, leaving behind Muniammal and his wife and children, who are the respondents herein. Admittedly, the respondents have not obtained any legal heirship certificate for Kanaiyan, till the death of Muniammal and they started the process, only in the year 2006, after eviction was ordered in R.C.O.P.No.215 of 2001. From June, 2001, till August, 2006, no steps were taken by the respondents to get the legal heirship certificate for Kanaiyan or Muniammal, and only in September, 2006, they applied to the Revenue Officials for issuance of legal heirship certificate for Muniammal, who died on 31.10.2004. Pursuant to the application filed by the first respondent, an enquiry was conducted by the Revenue Inspector, who was examined as P.W.1 and R.W.3 and as per the statement given by Muthuammal, as evidenced in Ex.P3, she has stated that the parents of her husband Kanaiyan, died before him. As a matter of fact, Ex.P3 is the enquiry conducted by P.W.1/Revenue Inspector for issuance of legal heirship certificate for Kanaiyan, who died on 02.01.1998. As a matter of fact, Ex.P3 is the enquiry conducted by P.W.1/Revenue Inspector for issuance of legal heirship certificate for Kanaiyan, who died on 02.01.1998. In that statement, the first respondent has stated that her husband’s parents died before him. Therefore, as per Ex.P3, the mother of Kanaiyan, died prior to his death, viz., on 02.01.1998. The respondents produced the legal heirship certificate of Kanaiyan, wherein, it is stated that the mother of Kanaiyan, died on 31.10.2004. The endorsement made in the legal heirship certificate of Kanaiyan, that his mother Muniammal, died on 31.10.2004, is taken advantage by the respondents to buttress their claim that Kanaiyan, was the son of Muniammal, and the explanation given by P.W.1, was also taken advantage by the respondents to contend that on the date of issuance of legal heirship certificate, Muniammal, was dead and therefore, her name was not mentioned in it. 12. I am unable to accept the contention of the respondents. As stated supra, eviction order was passed in the year 2001 and Muniammal died on 31.10.2004, and steps were not taken till August, 2006. When Petition was filed by the respondents to implead themselves as legal representatives of Muniammal, the requisition for issuance of legal heirship certificate was made by the first respondent, and on 26.09.2006, an enquiry was conducted on their requisition and R.W.1 appears to have stated before P.W.1 Revenue Inspector that the parents of her husband died prior to him. This is by the evidenced by Ex.P3. Nevertheless, in Ex.P4, the certificate issued by the Tahsildar, it is stated that the mother Muniammal died on 31.10.2004. In Ex.P5, the original legal heirship certificate issued by the Tahsildar to the legal heirs of Kanaiyan, the endorsement that the mother of the deceased Kanaiyan, died on 31.10.2004, has been interpolated subsequently and it does not appear to be written by the same person, who wrote the other entries in the legal heirship certificate. The inks are different and the endorsement “(LANGUAGE)” is written in different ink from that of the other writings in Ex.P.5. 13. The inks are different and the endorsement “(LANGUAGE)” is written in different ink from that of the other writings in Ex.P.5. 13. Further, as per Ex.P.6, the death certificate of Muniammal, her age was 75, on 31.10.2004 and she resided at No.2, Chokattan Salai, Nungambakkam and the son Kanaiyan, died on 02.01.1998, as evidenced by the death certificate and his age as on 02.01.1998, was 70 years and therefore, in the year 2004, he must be 76 years old and when Muniammal, died, her age was 75 and the age of her alleged son Kanaiyan, would be 76, had he not died, on 02.01.1998. This would also make it clear that Kanaiyan, could not be son of Muniammal. 14. Further, Kanaiyan, died in Pushpanagar, whereas, Muniammal, died at No.2 Chokattan Salai. As rightly pointed out by the learned counsel for the revision petitioner, the respondents have to entered into the box to speak about the discrepancies in the age and the address. According to me, the first respondent is the competent person to speak about the age of Kanaiyan, when he died and she is the competent witness to speak about the statement given before the Revenue Inspector for getting the legal heirship certificate of her deceased husband. 15. As stated supra, in Ex.P3, the affixed her thumb impression and Ex.P3 is the statement recorded by the Revenue Inspector, wherein, it is stated that the parents of Kanaiyan, died before him. Therefore, the first respondent is the proper and competent person to speak about the discrepancies and she could have given explanation by entering into the box what she has stated before the Revenue Inspector. 16. Therefore, non-examination of the first respondent is fatal to the respondents’ case and in the absence of any evidence, we will have to rely on the statement of the first respondent given before the Revenue Inspector in Ex.P3 and as per Ex.P3, the parents of Kanaiyan, died prior to him and in that case, Muniammal, could not be the mother of Kanaiyan. Admittedly, Muniammal died on 31.10.2004. Further, Ex.R.1, is the death certificate of Subrayan and as per the death certificate, he died on 06.03.1980 and he died at Pushpanagar, and his wife name was mentioned as Anjalai. 17. Admittedly, Muniammal died on 31.10.2004. Further, Ex.R.1, is the death certificate of Subrayan and as per the death certificate, he died on 06.03.1980 and he died at Pushpanagar, and his wife name was mentioned as Anjalai. 17. It is the case of the respondents that Kanaiyan, was the son of Subrayan and Kanaiyan, was also living in Pushpanagar and the wife of the Subrayan was Muniammal. The evidence of R.W.1, would also probalise that Kanaiyan, could not be son of Muniammal and Muniammal could not be the wife of Subrayan, as claimed by the respondents. These facts were not properly appreciated by the Court below. 18. Further, the evidence of P.W.1, cannot also be relied upon, as he has given evidence contrary to Ex.P3, the statement obtained from Muthammal. Further, the Revenue Inspector-P.W.1 has to speak only through document and though he claimed that he made enquiries, there is no material to substantiate the case. Therefore, having regard to the death certificate of Kanaiyan, the age mentioned therein and the statement of the first respondent given before P.W.1 that the parents of Kanaiyan died prior to his death and the non-examination of the first respondent and the age mentioned in the death certificate of Muniammal and Kanaiyan, it is clear that the respondents cannot be legal representatives of Muniammal. 19. The arguments of the learned counsel for the respondents that the revision petitioner has not proved his case and he failed to prove the Will, alleged to have been executed by Muniammal, cannot be accepted. The burden is on the respondents to prove that they are the legal representatives of the late Muniammal, and they are entitled to prosecute the eviction order passed in R.C.O.PNo.215 of 2001. When they failed to prove the same, they cannot be permitted to prosecute the Execution Petition, irrespective of the fact that the revision petitioner was not able to prove that his wife-Mrs. Vasantha is landlord. 20. For the reasons stated hereinabove, the respondents had failed to prove that they are the legal representatives of deceased Muniammal. Hence, the order of the Court below is liable to be set aside. Accordingly, the order impugned herein is set aside and this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.