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2022 DIGILAW 3371 (MAD)

N. Aravazhi v. N. Arulmozhi

2022-09-16

R.N.MANJULA

body2022
JUDGMENT (Prayer: This Appeal has been filed under Section 96 of C.P.C., to set aside the judgment and decree passed in O.S.No.2396 of 2013 dated 30.11.2016 by the learned XV Additional Judge, City Civil Court, Chennai.) 1. This Appeal Suit has been filed to set aside the judgment and decree passed in O.S.No.2396 of 2013 dated 30.11.2016 by the learned XV Additional Judge, City Civil Court, Chennai. 2. Heard Mr.S.Baskaran, learned counsel for the appellant and Mr.P.Rajendra Kumar, learned counsel for the respondents and perused the materials placed on record. 3. The appellant is the plaintiff who has filed a suit for partition and separate possession of 1/4th share in the suit property and for permanent injunction. The said suit was dismissed. Aggrieved over that, the plaintiff has preferred this Appeal. 4. The short facts of the case of the plaintiff are as follows: The suit property belonged to the parents of the plaintiff and the respondents and it consists of ground floor, first floor and second floor. The parents were in enjoyment of the property till their life time. The plaintiff got married in the year 1985 by choosing a girl of his choice. Since it is not agreeable to his family members, he was residing away from his family. His mother Saraswathi died intestate on 25.02.2010 and his father Natarajan also died on 24.05.2010. The plaintiff and the defendants are the only legal heirs of the deceased Saraswathi and Natarajan. Hence the plaintiff is entitled to claim 1/4th share in the suit property. The suit property derives a rental income of Rs.52,000/- per month and the same was enjoyed by the defendants alone. Since the plaintiff being the co-owner and co-sharer of the suit property entitled to 1/4th share. The defendants should be directed to pay 1/4th share in the future rental income from the date of the plaint till the date of delivery of possession. 4.1. Before filing the suit, the plaintiff sent a legal notice on 22.09.2012, calling for settling the issue amicably. The defendants received the notice and sent the reply notice on 02.10.2012 with false and frivolous allegations. The defendants claim falsely that the mother of the plaintiff viz., Saraswathi, had executed a Will by bequeathing the suit property in the name of the defendants alone. But the Will was not probated. The defendants received the notice and sent the reply notice on 02.10.2012 with false and frivolous allegations. The defendants claim falsely that the mother of the plaintiff viz., Saraswathi, had executed a Will by bequeathing the suit property in the name of the defendants alone. But the Will was not probated. Since the Will was created and forged one, that will not prevent the plaintiff from getting his due share of 1/4th in the suit property. 5. The written statement filed by the defendants reads as follows: The defendants filed a written statement by stating that the property belongs to their mother Saraswathi who had executed a Will dated 12.06.2005 and bequeathed the suit property in separate portions and boundaries to each of the defendants by excluding the plaintiff. The probate O.P. filed to probate the Will is still pending. The wishes of the mother can not be dishonoured, by giving share to the plaintiff, who left the family without being grateful. After marriage, he never visited the family and cared his parents. The plaintiff has amassed several properties. So, their mother had lost faith on the plaintiff and executed the Will in favour of the other children. The plaintiff purchased property at Neelankarai with the fund provided by the father. Since the mother executed a Will in respect of the only property which is the suit property, the defendants alone should acquire title. Since the suit has been filed before completion of the proceedings filed to probate the Will, the suit itself is a prematured one. 6. On the basis of the above pleadings, the learned Trial Judge had framed the following issues: 1. Is it true that the mother Smt.N.Saraswathi Ammal had executed a Will on 12.06.2005 regarding the suit schedule property in favour of defendants 1 to 3? 2. Whether the plaintiff is entitled for a decree of partition as prayed? 3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed? 4. Whether the plaintiff is entitled for future mense profits as prayed? 5. To what relief the plaintiff is entitled? 7. During the course of the trial, on the side of the plaintiff, P.W.1 was examined and Ex.A1 to Ex.A8 were marked. On the side of the defendants, D.W.1 & D.W.2 were examined and Ex.B1 to Ex.B4 were marked. 4. Whether the plaintiff is entitled for future mense profits as prayed? 5. To what relief the plaintiff is entitled? 7. During the course of the trial, on the side of the plaintiff, P.W.1 was examined and Ex.A1 to Ex.A8 were marked. On the side of the defendants, D.W.1 & D.W.2 were examined and Ex.B1 to Ex.B4 were marked. At the conclusion of the trial and on considering the materials placed on record, the learned Trial Judge dismissed the suit. Aggrieved over that, the plaintiff has preferred this Appeal. 8. Mr.S.Baskaran, learned counsel for the appellant submitted that the respondents themselves did not deny the title of their mother over the suit property; since the title deed in favour of the mother of the appellant Saraswathi was very old and damaged, the appellant could not produce the same; but the same was not taken into consideration by the learned Trial Judge and that has been taken as a reason for dismissing the suit; though the respondents claim right over the suit property in view of the alleged Will, the Will was not probated and the proceedings to probate the Will was also not expedited; since the mother of the appellant died intestate leaving behind the appellant and the respondents alone as legal heirs, the appellant is entitled to 1/4th share in the suit property; even if the appellant got strained relationship with the family, that will not dis-entitle him from becoming the legal heir and inheriting the shares in the property as one of the class I legal heirs; hence the judgment of the learned Trial Judge should be set aside. 9. Mr.P.Rajendra Kumar, learned counsel for the respondents submitted that the appellant / plaintiff who was examined as P.W.1 has himself admitted the signatures of the mother in the Will, when the signatures were shown to him during his cross-examination; since the probate O.P. filed to probate the Will is pending at this Court in O.P.No.40176 of 2013, the suit is a prematured one; the appellant had never maintained his parents and he was living away from his parents; since the mother had executed the Will excluding the appellant, the wish and intention of the mother should be given significance; hence, the judgment of the Trial Court does not require any interference. 10. Point for consideration: Whether the judgment and decree of the Trial Court is fair and proper? 10. Point for consideration: Whether the judgment and decree of the Trial Court is fair and proper? 11. The fact that the suit property belongs to the parents of the appellant and the respondents is not denied. The appellant and the respondents are the children of Saraswathi and Natarajan. While the appellant claims that both of his parents died intestate, the respondents claim that the mother Saraswathi had executed the Will in favour of the respondents by excluding the appellant. Admittedly, the mother of the parties died on 25.02.2010 and the father of the parties viz., Natarajan died on 24.05.2010. The learned Trial Judge has observed that the appellant / plaintiff who has filed the suit, has got the duty to prove that the suit property belongs to his mother Saraswathi. But he has not produced the title deeds in favour of his mother in respect of the suit property. 12. The appellant is one of the children of deceased Saraswathi, who had chosen his life partner by himself without the consent of his parents and he was not cordial. He started to live away from the family and his parents and his siblings were also indifferent to him. Under such circumstances, it is not possible for the appellant to have the custody of the title deeds in the name of his mother. 13. The learned counsel for the appellant submitted that the appellant was unable to produce the registration copy of the sale deed in the name of the mother, because the concerned Sub-Registrar has stated that the document in question is in a mutilated condition and it is beyond recognition and hence, it is not possible for him to produce the document. 14. Despite he submitted certain information obtained from the Sub- Registrar in this regard, the same was not produced as a document before the Trial Court. No petition also filed to receive any additional documents. However, the respondents did not have any objection that the suit property belonged to their mother Saraswathi. Only because of that it is claimed by the respondents that the mother had executed the Will while she was alive. And it is further submitted by them that the said Will was executed during the life time of the father. 15. However, the respondents did not have any objection that the suit property belonged to their mother Saraswathi. Only because of that it is claimed by the respondents that the mother had executed the Will while she was alive. And it is further submitted by them that the said Will was executed during the life time of the father. 15. If the father Natarajan had title in respect of the suit property, it cannot be said by the respondents that the mother had executed a Will in their favour. Though the copy of the sale deed in the name of Saraswathi cannot be produced by the appellant due to the mutilated nature of the document, the town survey of land in the survey register extract is produced as Ex.A1. That will show that the suit property had stood in the name of the appellant’s mother Saraswathi. Since the respondents did not have any quarrel about the fact that the mother is the owner of the suit property, the non-production of the copy of the title deed can not be the reason to doubt about the original ownership. 16. But the one and only contention raised by the respondents is that the mother had executed the Will during her life time by way of bequeathing the suit property in favour of the respondents alone by excluding the appellant. It if further submitted that the appellant was away from the family and he did not take care of his parents and so there was love lost between himself and the mother. 17. The learned counsel for the respondents submitted that during the cross-examination, the signature in the Will was shown to the appellant / plaintiff (P.W.1) and the plaintiff has stated that it looks like his mother's signature. But the whole reading of the evidence of P.W.1 would only show that P.W.1 has stated about the resemblance in the signature. He added in his evidence that his mother's signature will be more beautiful than the one shown to him. So, with the above evidence it can not be concluded that P.W.1 had admitted the execution of the Will. 18. He added in his evidence that his mother's signature will be more beautiful than the one shown to him. So, with the above evidence it can not be concluded that P.W.1 had admitted the execution of the Will. 18. It is strange to note that the respondents who know about the plaintiff's suit in the year 2013 itself, did not take any fruitful steps to probate the Will by filing a Probate O.P. A reference about the Probate O.P.No.40176 of 2013 is made in the judgement of the learned Trial Judge by stating that the said probate O.P has been filed by the respondents and it is still pending. A clarification is made to the Registry of this court about the stage of the above Probate Original Petition. The information received from the Registry makes the defence of the respondents off-putting. It is learnt that the above O.P. filed in D.No.40176 of 2013, has been returned for certain defects on 02.01.2014. So far it was not represented and taken on file. So, the respondents on the pretext that a probate O.P. is pending to probate the alleged Will cannot exclude the plaintiff from claiming right of his due share in the suit property. 19. The respondents who knew about this pending suit had taken the defence that a Will was executed. Without probating the said Will, the respondents keep on telling that the Probate O.P. is pending. The records would show that the respondents filed the Probate O.P for name sake, but did not pursue it. The Probate O.P. which was returned in the year 2014 is still not re-presented. The conduct of the respondents 1 and 2 would show that they had chosen not to probate the Will. Hence the respondents cannot claim any right on the alleged Will. 20. The learned counsel for the appellant submitted that the second defendant who was examined as D.W.2 is non-committal about the Will during his cross-examination and said that the facts about the Will is known to DW3 alone. The above conduct of the respondents and the manner in which they were shying away to represent the Probate Original Petition, would only show that the story of Will is for the purpose of this case. In the absence of any legal authentication, the respondents can not rely on the alleged Will. The above conduct of the respondents and the manner in which they were shying away to represent the Probate Original Petition, would only show that the story of Will is for the purpose of this case. In the absence of any legal authentication, the respondents can not rely on the alleged Will. So the only inference is that the mother of the appellant Saraswathi died intestate by leaving behind her children as her legal heirs. 21. As one of the class I legal heir of his deceased mother who died intestate, the appellant has the right to claim 1/4th share in the suit property. Since the right of the appellant is proved the learned trial judge ought to have passed decreed the suit as prayed for. 22. In view of the above stated reasons, this Appeal Suit is allowed and the judgement and decree of the learned XV Additional Judge, City Civil Court, Chennai, made in O.S.No.2396 of 2013 dated 30.11.2016, is set aside and a preliminary decree for partition of the appellant’s ¼ share in the suit property and future mesne profits is passed as prayed for with costs.