Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3218 (MAD)

R. Pounraj v. R. Vijaya

2018-09-25

S.RAMATHILAGAM

body2018
JUDGMENT S. Ramathilagam, J. The Second Appeal has been preferred against the Decree and judgment made in A.S.No.4 of 2006 on the file of the Principal District Court, Theni, confirming the judgment and decree made in O.S. No. 332 of 1997 on the file of the District Munsif-cum- Judicial Magistrate Court, Bodinayakkanur. 2. The brief facts of the case in O.S.No.332 of 1997 is that the plaintiff has filed the above suit for the following relief’s : (a) to declare that the whole of A schedule property exclusively belongs to plaintiff and as a consequence of such declaration, restrain the defendant, his men and agents from interfering or disturbing plaintiff's possession of A schedule property excluding B schedule property which is part of A schedule property (b) as a consequence of the same declaration, directing the defendant to vacate and deliver peaeful possession of B Schedule and in case of failure, cause the same to be delivered through process of Court. 3. The case of the plaintiff is that the suit property is the A schedule property and it is the self acquired property of the plaintiffs' father Ramasamy Naicker. The defendant is one of the sons of Ramasamy Naicker. It is the case of the plaintiff that none of the sons of Ramasamy Naicker looked after him and it is the plaintiff who cared for him and out of love and affection, the said Ramasamy Naicker while he was in hale and healthy condition executed a Will with regard to A schedule property on 18.2.1990. The said Ramasamy Naicker died on 18.7.1991. As per the Will, the plaintiff became exclusive owner of the A schedule property. 4. The defendant being the son of said Ramasamy Naicker making use of the absence of the plaintiff, encroached into the A schedule property. Hence, the plaintiff preferred a complaint before the Police but as per his undertaking he has not handed over the B schedule property and hence the plaintiff has preferred the suit in O.S.No.332 of 1997, on the file of the District Munsif-cum-Judicial Magistrate Court, Bodinayakkanur for the reliefs as stated above 5. On the other hand, the defendant in his written statement has stated that he is totally denying the plaintiff's version that none of the sons took care of their father Ramasamy Naicker. On the other hand, the defendant in his written statement has stated that he is totally denying the plaintiff's version that none of the sons took care of their father Ramasamy Naicker. It is the plaintiff who after completion of her studies have served in many places and it is the defendant along with his family members residing in the suit property. Further the said Ramasamy Naicker also obtained a Power Deed from the defendant and his brothers for dealing with the property on 9.1.1986. Hence the said Ramasamy Naicker has no right to execute the Will in favour of the plaintiff. Further the defendant and his brothers have right in the suit property. The Will executed by Ramasamy Naicker is not a valid one and hence the suit has to be dismissed. 6. The trial court after considering the oral and documentary evidence relied on both sides, has framed the following issues for consideration. 1. Whether the plaintiff is entitled to the relief of declaration declaring that the A schedule property belongs to her as sought for in the plaint? 2. Whether the plaintiff is entitled to the vacant possession of the B schedule property? 3. Whether the defendant has the right over the suit property based on the Power Deed dated 19.1.1986.? 4. To what other relief’s the plaintiff is entitled to? 7. The trial Court after analysing the evidence and the documents filed on both sides, decreed the suit filed by the plaintiff. Aggrieved against the same, the defendant preferred appeal in A.S.No.4 of 2006 before the Principal District Court, Theni and the First Appellate Court, on analysing the evidence and documents on either side, confirmed the decree and judgment passed by the trial court. Aggrieved against the judgment and decree passed by the First Appellate Court, the defendant as appellant has preferred the present Second Appeal. 8. At the time of admitting the Second Appeal, the following substantial questions of law are framed for consideration. '1. Whether the Courts below are right in decreeing the suit relying upon Ex.A.1 Will when the Will has not been proved in the manner known to law? 2. Whether the Courts below are right in presuming that the property is a self acquired property without considering Ex.B.1 the Power document obtained by the father of the appellant.' 9. '1. Whether the Courts below are right in decreeing the suit relying upon Ex.A.1 Will when the Will has not been proved in the manner known to law? 2. Whether the Courts below are right in presuming that the property is a self acquired property without considering Ex.B.1 the Power document obtained by the father of the appellant.' 9. It is observed from the evidence and documents filed by the plaintiff that the Will dated 18.2.1990 by Ramasamy Naicker was the registered one. It is also not denied by the defendant that the said Ramasamy Naicker died on 18.7.1991. It is observed from the pleadings of the defendant that he never denied the content of the said Will or the execution of the Will. It is only the averment in the pleadings and also the argument that the said Ramasamy Naicker has no right to execute the Will in view of Ex.B.1-Power Deed. Hence the substantial question of law arises in this Second Appeal that whether the Will has been proved in the manner known to law may not be an issue in this second appeal Since the defendant has not denied the execution of the Will. Only the right of Ramasamy Naicker in executing such a Will has been vehemently opposed by the appellant/defendant. 10. It is the argument of the defendant that the suit property is a joint family property of the plaintiff's father and all his sons including the defendant, but there is no document filed by the defendant to prove that the property belongs to their family. 11. On perusal of Ex.B1-Power Deed, it is found that the property belongs to the Ramasamy Naicker. Even in Ex.B.2 it has been described that the property is a self acquired property of Ramasamy Naicker. Hence in view of the fact that the property belongs to Ramasamy Naicker, the execution of the Will in favour of the plaintiff cannot be objected. It is also observed from Ex.B.2 which is a sale deed of the year 1952, it has been mentioned that the suit proeprty is the self acquired property of Ramasamy naicker. Hence the perusal of the said document does not prove the fact that the suit property is the joint family property, in which, the defendant has also right in the same and the deceased Ramasamy Naicker has no right to execute the said Will. 12. Hence the perusal of the said document does not prove the fact that the suit property is the joint family property, in which, the defendant has also right in the same and the deceased Ramasamy Naicker has no right to execute the said Will. 12. The defendant has also deposed before the trial Court that he is residing in the B schedule property. The said B schedule property is the part of A schedule property and the defendant has acknowledged the same is the case of the plaintiff. Hence the only objection and defence taken by the appellant/defendant is that the suit property is the ancestral property of Ramasamy Naicker, in which, the defendant has also a share in the same and the deceased Ramasamy Naicker has no right to execute the said Will in favour of the plaintiff. But the contents of the documents Ex.B.1 and B2 and also Ex.A.1 have clearly proved that the suit proeprty is the self acquired property of the deceased Ramasamy Naicker and it is also a registered document. Hence by the said document, the plaintiff is the rightful person to the suit property and as per the admission by the defendant that he himself is residing in the suit property, he has to vacate and deliver possession to the plaintiff. 13. Hence in view of the facts and evidence and the contents of the documents, the Will is not disputed by the defendant and only the nature of the property which is very much questioned by the defendant was not proved by him. The relief sought by the plaintiff is hereby ordered and the findings of the trial court decreeing the suit, which was confirmed by the First Appellate Court are need not be interfered with. 14. In the result, the Second Appeal is dismissed. The judgment and decree passed by both the Courts below are hereby confirmed. No costs.