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Parimalam and Others Vs. P. Mohanraj and Another - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberS. A.No. 269 of 2011 & M.P.Nos.1 of 2011 & 1 of 2012
Judge
AppellantParimalam and Others
RespondentP. Mohanraj and Another
Excerpt:
.....court held that defendants have failed to establish authenticity of wills for claiming right over suit property and granted relief of permanent injunction in favour of plaintiffs, till plaintiffs work out remedy of partition of suit property court held plaintiffs are not entitled to obtain relief of permanent injunction particularly, when suit for partition is found to be bad in law courts below have rejected claim for partition in suit property on various grounds co-owner, even assuming to be in possession of suit property, is not entitled to obtain relief of permanent injunction as against other co-owners till he works out remedy of partition in respect of suit property appellate court has erred in granting relief of permanent injunction in favour of plaintiffs appeal..........and the deceased lingammal. the second plaintiff is the minor son of the first plaintiff. the suit property is the property of the deceased k.palani. however, the deceased k.palani, on account of his bad habits, was not looking after the family and it is only the first plaintiff, who had been looking after the family and also, put up the construction on the suit property and it is only, the first plaintiff, who had performed the funeral ceremony of his parents and it is only, the first plaintiff, who had spent for the marriage of his sisters viz., the defendants. while so, after the death of k.palani, the defendants had started making some claims over the suit property and also, they have set up the wills said to have been executed by the deceased k.palani in their favour in respect.....
Judgment:

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree of the learned First Additional District Judge, Coimbatore made in A.S.No.106 of 2009 dated 02.11.2010 in partly confirming the judgment and decree of the learned Principal Subordinate judge, Coimbatore made in O.S.No.588 of 2005 dated 04.12.2008.

1. Challenge in this second appeal is made by the defendants against the judgement and decree dated 02.11.2010 made in A.S.No.106 of 2009 on the file of the First Additional District Court, Coimbatore, in partly confirming the judgment and decree dated 04.12.2008 made in O.S.No.588 of 2005 on the file of the Principal Subordinate Court, Coimbatore.

2. The suit has been laid for partition and permanent injunction.

3. Shorn of unnecessary details, the plaintiffs' case is as follows:

The first plaintiff is the only son and the defendants are the daughters of the deceased K.Palani and the deceased Lingammal. The second plaintiff is the minor son of the first plaintiff. The suit property is the property of the deceased K.Palani. However, the deceased K.Palani, on account of his bad habits, was not looking after the family and it is only the first plaintiff, who had been looking after the family and also, put up the construction on the suit property and it is only, the first plaintiff, who had performed the funeral ceremony of his parents and it is only, the first plaintiff, who had spent for the marriage of his sisters viz., the defendants. While so, after the death of K.Palani, the defendants had started making some claims over the suit property and also, they have set up the Wills said to have been executed by the deceased K.Palani in their favour in respect of the suit property. However, the alleged Wills said to have been executed by the deceased K.Palani in favour of the defendants in respect of the suit property are fabricated documents and based upon the same, the defendants are not entitled to claim any right or share over the suit property. As such, it is only the plaintiff, who is in possession and enjoyment of the suit property and inasmuch the defendants, without any valid title or right, had started making claim over the suit property and also, attempted to interfere with the first plaintiff's possession and enjoyment of the suit property and as the second plaintiff is also entitled to claim share in the suit property, as such, the suit has been laid for partition of the plaintiffs' 2/5 share in the suit property and also, for the relief of permanent injunction.

4. The defendants' case in the written statement are briefly stated as follows;

The suit is not maintainable either in law or on facts. The relationship between the parties is admitted. It is correct to state that the suit property belonged to the deceased K.Palani, but, it is false to state that the deceased K.Palani was not maintaining the family on account of his bad habits. The Patta, in respect of suit property, was granted in favour of the deceased K.Palani and it is the deceased K.Palani, who had contributed his money and labour for putting up the construction on the suit property. It is false to state that the first plaintiff had put up the construction on the suit property out of his income and money and he had celebrated the marriage of the defendants. The deceased K.Palani, out of his love and affection towards his daughters, had executed three separate Wills dated 19.05.2000 bequeathing the suit property in favour of the defendants and the suit Wills were registered and therefore, based upon the said Wills, it is only the defendants, who are entitled to the suit property and the First plaintiff much less the second plaintiff are not entitled to claim any share or right over the suit property. It is false to state that the first plaintiff is in possession and enjoyment of the suit property and that, the defendants are attempting to interfere with their possession and enjoyment. The second plaintiff is not entitled to claim any share in the suit property. The suit property is bad for misjoinder of parties and also, bad for non joinder of all the properties. Hence, the suit is liable to be dismissed.

5. In support of the plaintiffs' case, PWs1 and 2 were examined and Exs.A1 to 10 were marked. On the side of the defendants, DWs1 to 3 were examined and Exs.B1 to 7 were marked.

6. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to dismiss the suit as not maintainable on the footing that the suit is bad for partial partition and also, mis joinder of unnecessary parties and that, the defendants have established the Wills executed by their father deceased K.Palani in their favour and as such, the plaintiffs are not entitled to claim any share in respect of the suit property and also negatived the relief of Permanent injunction. As against the judgement and decree of the trial Court, the plaintiffs preferred the first appeal and the first appellate court also concurred with the finding of the trial court that the suit is bad for partial partition and also, for mis joinder of unnecessary parties. However, the first appellate Court has, in its finding, held that the defendants have failed to establish authenticity of the Wills dated 19.05.2000 projected by them for claiming right over the suit property and further, the first appellate Court has also granted the relief of permanent injunction in favour of the plaintiffs, till the plaintiffs work out the remedy of partition of the suit property. Aggrieved over the above said judgment and decree of the first appellate court, the defendants have preferred this second appeal.

7. The second appeal was admitted and the following substantial questions of law are formulated in this second appeal.

1. When the execution and genuineness of Ex.B5 to Ex.B7 Wills have been proved, as required under Section 68 of the Indian Evidence Act beyond any suspicious circumstances, whether the first appellate court is right in law in discarding Ex.B.5 to Ex.B7?

2. Even assuming without admitting that the Wills under Ex.B5 to Ex.B7 are not proved in accordance with law, whether the judgment and decree of the appellate Court, in granting decree for permanent injunction is against the co-owners, is maintainable in law?

8. The short point that arise for consideration in this second appeal, whether the defendants have established the authenticity of the Wills dated 19.05.2000 projected by them for claiming right over the suit property. The above said Wills are marked as Exs.B5 to 7. The relationship between the parties is admitted. As against the dismissal of the plaintiffs' suit by the Courts below on the footing that the suit is bad for partial partition and mis joinder of unnecessary parties, the plaintiffs have not preferred any separate appeal or cross objection in this appeal.

9. It is admitted that the suit property belongs to the deceased K.Palani, the father of the first plaintiff and the defendants. The trial Court has upheld the case of the defendants that they had established the truth and validity of the Wills projected by them. However, it could be seen that the trial Court has not given any reason for holding as to how the defendants have established the authenticity of the Wills projected by them, other than stating that the defendants have examined DW2, the attestor and DW3, the scribe of the Wills. The trial Court has not discussed anything about their evidence and has simply given a finding that based upon their evidence, the defendants have established the truth and validity of the Wills marked as Exs.B5 to 7. However, the appellate Court has one into the issue in detail and found that the evidence of attestor viz., DW2 Daniel is not sufficient and reliable to hold that the Wills projected by the defendants are true and valid. In this connection, the first appellate Court has noted that the attestor DW2 has, in his evidence, not stated that the deceased K.Palani had witnessed his attestation and that, he had witnessed the signing of the Wills by the deceased K.Palani. That apart, the first appellate Court has also found that the attestor has also deposed that inasmuch as the deceased K.Palani was not in his full senses to comprehend the nature of the document, his signature has been found to be different in the Wills projected by the defendants. It was therefore held that the defendants have failed to establish that the deceased K.Palani had executed the Wills, in question, out of his free will and consent and on his own volition. That apart, the first appellate Court has also found that no acceptable reason has been projected by the defendants for the deceased K.Palani to disregard his only son viz., the first plaintiff and bequeathe his property to the daughters viz., the defendants alone. So holding, that in view of the failure of the defendants to establish the truth and validity of the Wills as prescribed by law and as suspicious circumstances are also found to be encircling the Wills in question, it has disbelieved the case of the defendants and held that the Wills marked as Exs.B5 to 7 cannot be held to be true and valid documents.

10. As regards the above findings of the first appellate Court on the Wills in question, the defendants' counsel has not projected any material to disregard the same. Though he would contend that the first appellate court has not properly appreciated the evidence of the parties in the right perspective, still he is unable to point out his little finger to deviate from the finding of the first appellate Court as regards the Wills in question. When the defendants have examined one of the attestor to the Wills Viz., DW2 and when his evidence has been found to be not acceptable in any manner, it could be seen that as rightly found by first appellate Court, the defendants have failed to establish the authenticity of the Wills in question and it could also be seen that the defendants have failed to establish the requirements of the proof of Wills as contemplated under Section 63-C of the Indian Succession Act and Section 68 of the Indian Evidence Act and as adumbrated by the Apex Court in the decision reported in 2003 (1) CTC 308 (Janki Narayan Bhoir Vs. Narayan Namdeo Kadam). Therefore, it could be seen that the defendants have failed to establish that the deceased K.Palani had executed the Wills in question in their favour in a free state of mind and full knowledge of the nature of the document and also with his consent.

11. In this appeal, the defendants have filed M.P.No.1 of 2012 to mark a document as an additional evidence in support of their case. According to the defendants, the additional document viz., patient book dated 15.11.2002 issued by Coimbatore Medical College Hospital, Coimbatore in respect of one Palanisamy would go to show that the deceased K.Palani was in his full sense and able to comprehend the Wills in question at the time of the execution of the same and therefore, according to the defendants, the above said document projected as additional evidence in this second appeal would establish their case beyond reasonable doubt. The above petition filed by the defendants is seriously resisted by the plaintiffs. According to the plaintiffs, the defendants have not satisfied the requirements of Order 41 Rule 27 to allow the additional document and also further, contended that the additional document projected by them do nt pertain to the deceased K.Palani.

12. On the face of it, it could be seen that the defendants have failed to establish that they had satisfied the requirements of Order 41 Rule 27 for the reception of the document. Nothing has been whispered in the petition that the document which is projected as additional evidence, was not known to the defendants during the course of trial or was out of their reach and therefore, unable to place the same before the trial Court during the course of trial. Nothing has also been stated as regards the above facts in the affidavit appended to the petition, but merely stated that the additional document would be essential for arriving at a just decision of the case. However, I am unable to subscribe to the view of the defendants. When the defendants have failed to establish that they are entitled to produce and mark the additional document in compliance of the provisions adumbrated under Order 41 Rule 27 CPC, no safe credence or consent could be given to the defendants for marking the additional document in support of their case.

13. That apart, it has also not been established by the defendants prima facie that the additional document viz., Patient book pertains to the deceased K.Palani. A perusal of the additional document would go to show that it is issued in the name of one Palanisamy, no description of Palanisamy has been noted in the document. The plaintiffs are contesting the truth and validity of the document and argued that, it does not pertain to the deceased K.Palani. Therefore, when there is nothing to indicate that the additional document pertains to the deceased K.Palani, it could be seen that no safe reliance could be placed on the additional document to sustain the case of the defendants. Therefore, it could be seen that the additional document would not be required, in any manner, for arriving at the just decision of the case. I, therefore, hold that the petition filed by the defendants for the reception of the additional document does not merit acceptance.

14. As far as the relief of Permanent injunction granted by the appellate court, it is strenuously argued by the counsel for the defendants that the first appellate court without any basis has granted the relief of permanent injunction in favour of the plaintiffs. It is argued that even assuming that the defendants have failed to establish the truth and validity of the Wills projected by them, de hors the same, inasmuch as the defendants being the daughters of the deceased K.Palani, it is obvious that the defendants are the co owners of the suit property along with the first plaintiff and in such view of the matter, the first appellate court has erred in granting the relief of permanent injunction in favour of the first plaintiff as against the other co owners viz., the defendants.

15. Countering the same, it is argued by the plaintiffs' counsel that there is nothing wrong in the decision of the first appellate court in granting the relief of permanent injunction in favour of the plaintiffs and further contended that inasmuch as the plaintiffs are found to be in possession of the suit property, their possession has to be protected and hence, the first appellate court has granted the relief of permanent injunction and in this connection, he placed reliance upon the decision reported in CDJ 1997 DHC 074 (Ranbir Singh and Anoher Vs. Attar Singh and Others).

16. Per contra, it is argued by the defendants counsel that prior to partition, possession of one co owner would establish the possession on behalf of all the co owners and therefore, there is no question of granting injunction in favour of one co-owner against the other co-owners. In this connection, he placed reliance on the decision of the apex court reported in (2002) 9 Supreme Court Cases 608 (Sakhahari Parwatrao Karahale And Another Vs. Bhimashankar Parwatrao Karahale). Further, in the decision reported in 2010-3- L.W.33 (S.Venkatesh Babu Vs. Ms.Swetha), it has been held that injunction against co-owner is not maintainable. The first appellate Court has held that till the plaintiffs work out the remedy of partition of the suit property, they are entitled to obtain the relief of Permanent injunction. Even assuming that the plaintiffs alone are in exclusive possession and enjoyment of the suit property, no material as such has been projected other than the ipse dixit testimony of the first plaintiff that the defendants are attemptiing to interferre with the plaintiffs possession and when it is found that the first plaintiff and the defendants are the co owners of the suit property, the relief of permanent injunction granted in their favour cannot be sustained.

17. I am of the firm view that the plaintiffs are not entitled to obtain the relief of permanent injunction particularly, when the suit for partition is found to be bad in law and also, in view of the fact that the Courts below have rejected the claim for partition in the suit property on various grounds. In such view of the matter, I am unable to subscribe to the view of the Delhi High Court relied on by the plaintiffs' counsel and following the decisions of Apex Court and our High Court projected by the defendants counsel, I hold that co-owner, even assuming to be in possession of the suit property, is not entitled to obtain the relief of permanent injunction as against the other coowners till he works out the remedy of partition in respect of the suit property. I therefore hold that the first appellate court has erred in granting the relief of permanent injunction in favour of the plaintiffs.

18. In the light of the above discussion, I hold that the judgement and decree dated 02.11.2010 made in A.S.No.106 of 2009 on the file of the First Additional District Court, Coimbatore, as regards the grant of relief of permanent injunction, in favour of the plaintiffs are set aside and the judgment and decree dated 04.12.2008 made in O.S.No.588 of 2005 on the file of the Principal subordinate Court, Coimbatore, as regards the prayer for the relief of permanent injunction are confirmed and accordingly, the second appeal is allowed. No costs. Consequently, M.P. No. 1 of 2011 is closed and M.P.No.1 of 2012 is dismissed.


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