Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3109 (MAD)

S. Muthukrishnan v. M. Brinda

2018-09-20

P.T.ASHA

body2018
JUDGMENT : 1. The above Civil Revision Petition is filed challenging the order passed by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Tiruppur, Coimbatore in I.A.No.1626 of 2011 in O.S.No.38 of 2010 in and by which the learned Judge has allowed the petition filed by the 1st respondent herein directing the revision petitioner, who is the plaintiff in the connected suit O.S.No.618 of 2010 to commence the evidence at the first instance. Aggrieved by this order, the petitioner has filed this revision. 2. The brief facts which are essential for disposing of this Civil Revision Petition are narrated herein below: The revision petitioner had filed a suit O.S.No.109 of 2009 against the respondents 1 and 4 herein and one S. Divyasundari and D. Kannappan for declaration of title to the “A” Schedule property and for a consequential injunction. He had also sought for a mandatory injunction, directing the respondents 1, 4 and Divyasundari and Kannappan, to remove the compound wall put up by them in the “B” Schedule property belonging to the revision petitioner. 3. The revision petitioner has claimed absolute right to the “A” Schedule property under a registered Partition Deed entered into between himself and his father Subbarayalu Naidu dated 22.09.1968. It was his case that his father Subbarayalu Naidu had executed a Will with reference to his share in the property on 03.05.1995 and 10.05.1995. The father had died in the year 1997. It was the further case that the 4th respondent herein is his own sister and the 1st respondent and Divyasundari are her daughters. Kannappan a close relative of the family, had started causing problem and trying to create a wedge between the revision petitioner and his sister and the other sister of the revision petitioner one Jayalakashmi had died even during the life time of her father and the 4th respondent, who had become a widow 24 years back was being taken care of by the revision petitioner and her daughters were given in marriage by the revision petitioner. It was also the case of the revision petitioner that he had sold an extent of 21 cents to the 4th respondent and a house was constructed by him for the 4th respondent by spending huge amounts. It was also the case of the revision petitioner that he had sold an extent of 21 cents to the 4th respondent and a house was constructed by him for the 4th respondent by spending huge amounts. It was his case that the respondents 1, 4 and the other defendants had attempted to trespass into the suit property on 14.10.2009 and 28.11.2009 which was thwarted by the plaintiff, but however, the 4th respondent had encroached into an extent of 2 = feet both on the Southern and Eastern side. Therefore, the suit. 4. The 4th respondent had filed a Written Statement which was adopted by defendants 2 and 4 in the suit in which she has categorically contended that there was no love lost between the revision petitioner and his father. She would also contend that the property in question is an ancestral property belonging to her father Subbarayalu Naidu and his two brothers B.K. Chinnasamy Naidu and B.K. Gopalsamy Naidu. Both Chinnasamy Naidu and Gopalsamy Naidu were bachelors and Gopalsamy Naidu had died much earlier and his share devolved on Subbarayalu Naidu and his brother Chinnasamy Naidu. It was her specific case that Chinnasamy Naidu had executed a Will dated 10.11.1975 and the 4th respondent and her sister Jayalakshmi were entitled to a half-a-share in the property along with 1/3rd share which they had in their father's share. They would contend that the revision petitioner was not the owner and further, the 1st respondent herein was given in adoption to the other sister Jayalakshmi and her husband Mylswamy. 5. The 1st respondent herein had filed a Written Statement in which she had contended that she has already filed a suit O.S.No.38 of 2010 [from out of which, the present revision arises] for a Partition and separate possession of five shares in the suit properties. In the said suit, the 1st respondent had raised a plea that the two Wills put forward by the revision petitioner were not created when Subbarayalu Naidu was in a sound disposing state of mind. She would also adopt the Written statement of the 4th respondent herein in all other respects and would further contend that the suit O.S.No.38 of 2010 also includes the prayer to cancel the Partition Deed said to have been executed between the revision petitioner and his father on 22.09.1968 as null and void and not binding on the plaintiff. 6. She would also adopt the Written statement of the 4th respondent herein in all other respects and would further contend that the suit O.S.No.38 of 2010 also includes the prayer to cancel the Partition Deed said to have been executed between the revision petitioner and his father on 22.09.1968 as null and void and not binding on the plaintiff. 6. The suit O.S.No.38 of 2010 was filed by the 1st respondent for Partition, in which, in addition to the details given in her Written Statement in O.S.No.109 of 2009, the 1st respondent would further submit that Subbarayalu Naidu had attested the Will dated 10.11.1975 executed by Chinnasamy Naidu and he was very much aware of the ownership with reference to those properties and therefore, he could not have executed the Wills dated 03.05.1995 and 10.05.1995. The 1st respondent herein had further submitted that even the attesting witnesses are people close to the revision petitioner and therefore, the entire Will is the creation of the revision petitioner. 7. The revision petitioner has filed his written statement denying the various statements made in the suit and once again reiterating his pleadings in O.S.No.109 of 2009. 8. The 1st respondent herein had filed an application to transfer the suit O.S.No.109 of 2009 (re-numbered as O.S.No.618 of 2010) pending before the Sub Court, Udumalpet, to the District Court, Coimbatore, to be tried along with the suit O.S.No.38 of 2010 pending on the file of the learned Additional District and Sessions Judge, Fast Track Court No.IV, Tiruppur, Coimbatore. The said application was ordered as prayed for. Thereafter, when the matter was due for trial, the 1st respondent has moved the impugned petition directing the revision petitioner to commence the evidence. The said application was moved on the premise that the revision petitioner herein has claimed title to the suit property on the basis of two Wills dated 03.05.1995 and 10.05.1995 and this being his main defence, the same ought to be proved by him. 9. The revision petitioner herein had objected to the said petition inter alia contending that the suit filed by the 1st respondent for Partition is the comprehensive suit in which she has claimed right on the basis of Will dated 10.11.1975 and further, she had also prayed for the cancellation of the Partition Deed dated 22.09.1968. 9. The revision petitioner herein had objected to the said petition inter alia contending that the suit filed by the 1st respondent for Partition is the comprehensive suit in which she has claimed right on the basis of Will dated 10.11.1975 and further, she had also prayed for the cancellation of the Partition Deed dated 22.09.1968. The learned Additional District and Sessions Judge, Fast Track Court No.IV, Tiruppur, Coimbatore, allowed the said application. Aggrieved over the same, the revision petitioner is now before this Court. 10. Mr. N. Manokaran appearing on behalf of Mr. D.R. Arun Kumar for the revision petitioner would contend that the revision petitioner has filed the application directing the revision petitioner to commence evidence on the ground that the suit instituted by the revision petitioner is prior in time and that the revision petitioner has contended that he is the owner of the suit property on the basis of two Wills both of which were to be proved by the revision petitioner. However, the learned counsel would argue that the suit O.S.No.38 of 2010 filed by the 1st respondent is the comprehensive suit where she has not only sought for a Partition, but has also sought for the cancellation of Partition Deed entered into between the revision petitioner and his father in the year 1968. She has in her suit O.S.No.38 of 2010 made allegations of fraud and forgery upon the revision petitioner all which has to be proved by her. He would contend that this being the comprehensive suit, the learned Judge has erred in allowing the application filed by the 1st respondent herein. He would rely upon the following Judgments : (1) 2010 (6) CTC 225 Bajaj Auto Ltd., Bombay Pune Road, Akurdi, Pune - 411 035, State of Maharashtra rep. by S. Ravikumar v. TVS Motor Company Ltd., Jayalakshmi Estates, No.8, Haddows Road, Chennai - 600 006. (2) (2006) 5 SCC 558 Anil Rishi v. Gurbaksh Singh 11. Mr. M. Sriram appearing on behalf of Mr. S. Bhargavan for the 1st respondent would contend that the suit filed by the revision petitioner is earlier in point of time and it is for him to first prove his right, title or interest to the suit property. 12. Heard the submissions of both the counsels and perused the material available on record. 13. S. Bhargavan for the 1st respondent would contend that the suit filed by the revision petitioner is earlier in point of time and it is for him to first prove his right, title or interest to the suit property. 12. Heard the submissions of both the counsels and perused the material available on record. 13. It is seen from the pleadings in O.S.No.38 of 2010 that the plaintiff therein namely, the 1st respondent herein, has narrated in detail the devolution of title in respect of the suit property and has also claimed title to a portion on the basis of a Will which is prior in time to the Will put forward by the revision petitioner, though executed by a different person. The 1st respondent has further come down heavily on the revision petitioner with reference to the Partition Deed dated 22.09.1968 and has contended that this Deed is a forged document and Subbarayalu Naidu, the father of the revision petitioner was not in sound and disposing state of mind and the entire documents have been created by the revision petitioner. Therefore, it is very clear that if the 1st respondent is able to establish the statements made by her in her petition, the same would enure to the suit O.S.No.109 of 2009 and that the suit for Partition being a comprehensive suit, it would be easier for the Court to record the evidence. The 1st respondent has also contended that she is the adopted daughter of the deceased Jayalakshmi and therefore, entitled to her entire share since, the 5th respondent herein, her adoptive father, has released his interest in Jayalakshmi's share in her favour. Further, the revision petitioner in the course of the arguments in this revision has also produced the documents relating to a connected suit O.S.No.1714.2010 filed by the 4th respondent herein against the revision petitioner and others with reference to certain shares in the 2nd and 3rd defendants Companies therein. The 4th respondent has filed an application for transferring that the suit also to be tried along with the suit O.S.No.38 of 2010 and the reason for seeking transfer is on the ground that the suit O.S.No.38 of 2010 is the comprehensive suit. The transfer has also been ordered by this Court dated 14.02.2018 in Tr.C.M.P.No.643 of 2014. 14. The 4th respondent has filed an application for transferring that the suit also to be tried along with the suit O.S.No.38 of 2010 and the reason for seeking transfer is on the ground that the suit O.S.No.38 of 2010 is the comprehensive suit. The transfer has also been ordered by this Court dated 14.02.2018 in Tr.C.M.P.No.643 of 2014. 14. It is no doubt true that the suit filed by the revision petitioner is earlier in point of time and therefore, the burden to prove his case rests on the revision petitioner. However, the 1st respondent has not only denied the claim of the revision petitioner but has also put forward a case of fraud, forgery, lack of title to the property, etc., and this being the substantial issue, the onus of proof lies heavily upon the 1st respondent and as held by the Hon'ble Supreme Court in the case of Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558], the question of onus of proof has greater force and the onus in the instant case rests heavily upon the 1st respondent, in view of the factors mentioned supra. Further, the 1st respondent has also set up title to a portion of the property on the basis of a Will which is prior in point of time and which she claims was attested by the father of the revision petitioner. The learned Additional District and Sessions Judge, Fast Track Court No.IV, Tiruppur, Coimbatore has simply gone by the date of institution of two cases on an erroneous presumption that the suit for Partition is not a comprehensive suit. The order of the learned Additional District and Sessions Judge deserves to be reversed. In the result, this Civil Revision Petition is allowed. There shall be no order as to costs. Consequently connected Miscellaneous Petition is closed.