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Madras High Court · body

2018 DIGILAW 2080 (MAD)

Thanupillai v. V. Lakshmi

2018-07-10

M.V.MURALIDARAN

body2018
JUDGMENT : 1. Challenging the order dated 05.12.2017 passed in E.P.No.36 of 2014 in O.S.No.6 of 2002 on the file of the learned I Additional Sub-Court, Nagercoil, allowing E.P.No.36 of 2014 and ordering delivery of the properties by 05.01.2008, the petitioner has filed this Civil Revision Petition. The petitioner herein is the third defendant and the first respondent is the plaintiff in the suit. 2. For convenience, the petitioner herein is referred to as judgment- debtor and the first respondent is referred to as the decree- holder. 3. The decree-holder has filed the suit being O.S.No.6 of 2002 for passing a preliminary decree for partition and separate possession of her 1/8th share in the suit properties by metes and bounds and also past and future mesne profits. 4. By the judgment and decree dated 19.04.2004, preliminary decree for partition of 1/8th share in the suit properties was passed by the trial Court in favour of the plaintiff. 5. The first defendant filed I.A.No.601 of 2005 seeking to pass a supplementary preliminary decree in her favour. By an order dated 28.11.2005, the trial Court had passed supplementary preliminary decree in favour of first defendant. Pursuant to the preliminary decree, the first defendant filed I.A.No.264 of 2012 under Order 20, Rule 18 of C.P.C. for passing a final decree for partition of 1/8th share in the suit properties alleging that the plaintiff had filed E.P.No.34 of 2010 and took delivery through the Court and the said E.P. was terminated on 27.08.2012. By an order dated 17.07.2013, the trial Court had passed final decree, thereby allotting II portion to the first defendant as shown in the Commissioner's plans in Item No.1 to 10 of the suit properties. 6. The decree-holder has filed E.P.No.36 of 2014, seeking delivery of the property, which was allotted to the share of the first defendant from the hands of fourth defendant alleging that the first defendant Thangammal died on 16.09.2013 while she was staying with the decree-holder. According to the decree-holder, while Thangammal was alive, on 19.05.2003 she executed a Will bequeathing her share to be allotted in O.S.No.6 of 2002 in favour of the decree-holder. Hence, the decree-holder has filed E.P.No.36 of 2014 for delivery of the properties, which were allotted to the share of the first defendant in O.S.No.6 of 2002. 7. According to the decree-holder, while Thangammal was alive, on 19.05.2003 she executed a Will bequeathing her share to be allotted in O.S.No.6 of 2002 in favour of the decree-holder. Hence, the decree-holder has filed E.P.No.36 of 2014 for delivery of the properties, which were allotted to the share of the first defendant in O.S.No.6 of 2002. 7. Resisting E.P.No.36 of 2014, the judgment-debtor filed counter stating that the Execution Petition is not maintainable and the Executing Court has no jurisdiction to travel beyond the final decree already passed. It is stated that the Executing Court cannot take the role of a trial Court and the word “execution” does not include deciding of title. As such the execution proceedings initiated by the decree-holder was totally wrong and ought not to have been numbered. It is stated that if the decree-holder wants to claim right as a legatee she should have filed separate probate proceedings or succession proceedings. The decree-holder wants to engulf the whole property. On the death of mother, the properties will be inherited by all legal heirs and the share of the parties will be enlarged. It is stated that deciding validity of a Will amounts to deciding the title of the party. If the execution is ordered that amounts to denying the right of his appeal against the decree for title. 8. The judgment-debtor has also filed E.A.No.151 of 2016 under Order 7, Rule 11 read with Section 151 of C.P.C. to reject E.P.No.36 of 2014. 9. Before the trial Court, both the petitions were taken up together. On the side of the decree-holder, three witnesses were examined and Exs.P1 to P11 were marked. On the side of the judgment-debtor, four witnesses were examined and no documents were marked. 10. Upon consideration of the rival submissions, the Executing Court, allowed E.P.No.36 of 2014 thereby ordered delivery of possession of the properties on 05.01.2018 and dismissed E.A.No.151 of 2016 filed by the judgment-debtor. Aggrieved by the order passed in E.P.No.36 of 2014 ordering delivery of possession of the properties, the judgment-debtor has filed the present Civil Revision Petition. 11. I heard Mr. G.Prabhu Rajadurai, learned counsel for the judgment-debtor and Mr. V.Meenakshi Sundaram, learned Senior Counsel for Mr. D.Nallathambi, learned counsel for the decree-holder/1st respondent and also perused the materials available on record. 12. 11. I heard Mr. G.Prabhu Rajadurai, learned counsel for the judgment-debtor and Mr. V.Meenakshi Sundaram, learned Senior Counsel for Mr. D.Nallathambi, learned counsel for the decree-holder/1st respondent and also perused the materials available on record. 12. The learned counsel for the judgment-debtor submitted that on the death of his mother, the 1/8th share allotted to his mother under the final decree came to be devolved upon the judgment-debtor, first respondent and other respondents being her heirs. The decree-holder filed E.P.No.36 of 2014 for delivery of possession by alleging that she became the sole owner of the properties by virtue of Will allegedly executed by the mother of the judgment-debtor on 19.06.2003. According to the learned counsel, the Execution Petition is not maintainable as the genuineness of the Will gives rise to a separate cause of action and that the same can be decided in a properly constituted suit or probate petition. He argued that the Executing Court instead of considering judgment-debtor's objection, proceeded to take evidence as if it is a trial and by the impugned order, allowed the Execution Petition. Since the judgment-debtor's valuable right to defend the alleged Will as provided under law was affected, he has filed the present Civil Revision Petition seeking to set aside order of the Executing Court passed in E.P.No.36 of 2004. In support of his submissions, the learned counsel cited the following decisions : (i) (1993) 2 SCC 507 (Chiranjilal Shrilal Goenka (deceased) through Lrs v. Jasjit Singh and others) (ii) AIR 1999 Madras 374 (I.Basha Khan v. K.Selvaraj and others) (iii) (2010) 1 SCC 277 (Dashrath Rao Kate v. Brij Mohan Srivastava) 13. Per contra, the learned senior counsel appearing for the decree-holder submitted that in its order the Executing Court found that it had jurisdiction to entertain E.P.No.36 of 2014 on the basis of Will dated 19.05.2003 and also having jurisdiction to decide the validity of the Will. The Executing Court had also held that the Will has been proved as per Section 68 of the Indian Evidence Act read with Section 63 of Indian Succession Act. The learned counsel submitted that the Civil Revision Petition is not maintainable without challenging the order and findings dated 05.12.2017 in E.A.No.151 of 2016. To fortify his submissions, the senior learned counsel relied upon the following decisions: (i) 1955 (1) MLJ (SC) 220 (Jugalkishore Saraf v. Messrs. The learned counsel submitted that the Civil Revision Petition is not maintainable without challenging the order and findings dated 05.12.2017 in E.A.No.151 of 2016. To fortify his submissions, the senior learned counsel relied upon the following decisions: (i) 1955 (1) MLJ (SC) 220 (Jugalkishore Saraf v. Messrs. Raw Cotton Co., Ltd.) (ii) AIR 1976 SC 1645 (Lonankutty v. Thomman and another) (iii) (1968) 2 MLJ 610 (Rangaswami Naicker v. Rangammal (died by proposed LR) 14. The point that arises for consideration is whether the Executing Court was right in allowing E.P.No.36 of 2014. 15. The following are the admitted facts: Filing of O.S.No.6 of 2002 by the decree-holder for partition of the suit properties into eight equal share and allot one such share to the decree- holder and for separate possession. Passing of preliminary decree for partition in the suit. Decree-holder had taken delivery of possession of her 1/8th share by filing Execution Petition. Filing of application to pass supplementary decree and the same was ordered. Application for passing final decree has been filed by the first defendant Thangammal. After passing final decree, the first defendant died on 16.09.2013. 16. The main grievance of the judgment-debtor is that the Will dated 19.05.2003 allegedly executed by the first defendant in favour of the decree-holder is not genuine and on the death of the first defendant, the properties allotted to her share under the final decree have to be shared upon all the legal heirs. According to the judgment-debtor, the Executing Court had no jurisdiction to look into the legality/genuineness of the Will. He argued that the Executing Court, exceeding its jurisdiction, considered the genuineness of the Will and arrived at a finding that E.P.No.36 of 2014 filed by the decree-holder was maintainable. 17. Power of the Executing Court to determine the genuineness of the Will has been considered by this Court in Rangaswami Naicker v. Rangammal, supra, wherein, it has been held as under: “5. It is quite clear therefore that the executing Court is the proper Court to determine the question whether the will is genuine and the property in question was bequeathed to the claimant Venkateswami Naidu thereunder. The appeal is therefore dismissed, but without costs. No leave.” 18. It is quite clear therefore that the executing Court is the proper Court to determine the question whether the will is genuine and the property in question was bequeathed to the claimant Venkateswami Naidu thereunder. The appeal is therefore dismissed, but without costs. No leave.” 18. Section 2(11) of the C.P.C., provides as under : “(11) ''legal representative'' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” 19. It is relevant to extract Section 146 of C.P.C., which provides as under : “146. Proceedings by or against representatives. - Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.” 20. From the above, it is clear that any legal representatives of the estate of a deceased person can initiate proceedings and file application to assert their right and get appropriate relief’s. Such questions can be decided by the Executing Court under Section 47 of C.P.C., which provides as follows : “47. Questions to be determined by the Court executing decree (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Amendment Act, 1976 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I. “For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation I. “For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.” (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” 21. In view of the aforesaid provisions and also as per the decision in Rangaswami Naicker v. Rangammal, supra, the Executing Court was having all powers to decide the validity of the Will dated 19.05.2003 executed by the first defendant in favour of her daughter, the decree-holder under Section 47 of C.P.C. Thus, this Court is of the view that the decree-holder was having right to file E.P.No.36 of 2014 and the same is maintainable. 22. Coming to proving of the Will is concerned, the decree-holder examined herself as P.W.1. In her evidence, she deposed that while her mother was in sound state of mind during 2003, she executed a Will in favour of decree-holder bequeathing her share to be allotted in O.S.No.6 of 2002. 23. The decree-holder has produced the Will before the Executing Court and the same has been marked as Ex.P6. The attesting witnesses to Ex.P6-Will namely Thiruvalargal Velappan and Ravi Ashok were examined as P.W.2 and P.W.3 respectively, who categorically deposed execution of Ex.P6-Will by the Testator Thangammal. To disprove Ex.P6-Will, the judgment-debtor has not produced any material. 24. Upon analysis of the oral and documentary evidence, the Executing Court, while ordering delivery of possession of the properties, observed as under : “TAMIL” 25. The aforesaid factual finding of the Executing Court would clearly establish that the decree-holder has proved the execution of Ex.P6-Will and she had also satisfied the ingredients of Section 68 of the Indian Evidence Act. 26. The aforesaid factual finding of the Executing Court would clearly establish that the decree-holder has proved the execution of Ex.P6-Will and she had also satisfied the ingredients of Section 68 of the Indian Evidence Act. 26. Taking through the decisions in Lonankutty v. Thomman and another, supra and Premier Tyres Limited v. Kerala State Road, Transport Corporation, reported in AIR 1993 SC 1202 , the learned counsel for the decree-holder argued that without challenging the order and/or findings in E.A.No.151 of 2016 filed by the judgment-debtor, the present Civil Revision Petition has been filed and the same is not maintainable and hit by principles of res judicata. 27. In the decisions cited supra, applicability of res judicata in connected suits were considered. In both the decisions, res judicata pleaded on the final judgment passed in the matter. But in the case on hand, it is an interlocutory order and principles of res judicata will not apply to interlocutory proceedings. 28. In U.P.E. Supply Co. v. T.N. Chatterjee, reported in AIR 1972 SC 1201 , the Hon'ble Supreme Court held that the principles of res judicata will not applicable to interlocutory orders as they are not final orders. 29. Therefore, no force in the argument advanced by the learned counsel for the decree-holder that the present Civil Revision Petition is hit by the principles of res judicata. 30. Though E.A.No.151 of 2016 to reject E.P.No.36 of 2014 filed by the first respondent for delivery of possession of the allotted properties and E.P.No.36 of 2014 were tried together and a common order was passed, it is for the judgment-debtor to decide and file a separate revision and/or appeal against E.A.No.151 of 2016 or E.P.No.36 of 2014. Since common questions involved in both E.A.No.151 of 2016 and E.P.No.36 of 2014, filing of the present Civil Revision Petition would not affect the rights of the judgment- debtor in any manner. 31. In view of the categoric finding as aforesaid based on the materials on record, I do not propose to delve into the various decisions relied by the learned counsel for the petitioner and decisions cited by the judgment-debtor are in different factual matrix. 32. For the foregoing discussions, this Court is of the view that there is no infirmity in the order impugned in this Civil Revision Petition and the Civil Revision Petition is liable to be dismissed. 33. 32. For the foregoing discussions, this Court is of the view that there is no infirmity in the order impugned in this Civil Revision Petition and the Civil Revision Petition is liable to be dismissed. 33. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.