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2010 Supreme(Mad) 3909
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
Rau Padma & Others
Versus
Gayatri Devi & Others
O.S.A. Nos.337 to 341 of 2009
Decided On :Decided On : 03-09-2010
T.V. Ramanujam, Sr. Counsel, for M. Aravind Subramaniam, Advocate.
For the Respondents:S. Prabhkaran, for M/s. K. Sridhar Associates, Advocates.
The judgment emphasizes the importance of establishing prima facie right to possession based on title and legal principles regarding possession, title, and adverse possession by co-owners.
Headnote:
Interlocutory Injunction - Property Dispute - Will, Probate, and Partition - [FACT OF THE CASE] Respondents filed a suit for partition and declaration of nullity of sale deed executed by the first appellant. The first appellant claimed title as a residuary legatee and sold the property to appellants 2 to 5. The court granted an order of interlocutory injunction restraining the appellants from interfering with the peaceful possession and enjoyment of the suit property by the respondents. [FINDING OF THE COURT] The court found that the suit property should be in joint possession of the appellants and respondents pending disposal of the suit. The interlocutory injunction was set aside, but the injunction against construction during the pendency of the civil suit was confirmed. [ISSUES] The core issue was the claim of possession made by the respondents in light of the rival claim made by the appellants based on revenue records. [RATIO DECIDENDI] The court considered the Will, probate, and agreements to determine the prima facie right claimed by the respondents and their claim to possession. The court also highlighted the legal principles regarding possession, title, and adverse possession by co-owners. [FINAL DECISION] The Original Side Appeals were disposed of with the suit property to be in joint possession, the interlocutory injunction set aside, and the injunction against construction confirmed.
K.K.SASIDHARAN, J.
1. These original side appeals are directed against the common order and decretal order dated 26 August 2008 in O.A.Nos.523 and 524/2009 and A.Nos.2962 to 2964 & 2931 of 2009 in C.S.No.438 of 2009 whereby and whereunder, the learned Single Judge granted an order of interlocutory injunction restraining the appellants from interfering with the peaceful possession and enjoyment of the suit property by the respondents, besides restraining them from putting up construction or creating third party interest in the suit property.
Background facts :
2. Respondents filed a suit in C.S.No.438/2009 before the original side of this Court, against the appellants praying for a decree of partition of the suit property into five shares and to allot four such shares to them and for a decree of declaration to invalidate the sale deed dated 29.05.2006, executed by the first appellant and registered as Document Nos. 630, 631, 632 and 633/2006 in favour of the appellants 2 to 4.
3. In the plaint filed in C.S.No.438/2009, respondents would contend thus:-
(a) The property more fully descried in the schedule was part of a larger extent of land measuring about 50 grounds in R.S.No.3847/121. The suit property is situated at Plot No.6, (previously plot No.6), Cenotaph Road, II land, Teynampet, Chennai, measuring an extent of 4 grounds. The property originally belonged to Mrs.Rau Indira Devi, she having purchased the same as per sale deed dated 17.08.1939. The said Mrs.Rau Indira Devi was the first wife of late R.V.M.Surya Rao, grandfather of respondents 2 to 4. The original owner Mrs.Rau Indira Devi expired in the year 1942 leaving behind her husband R.V.M.Surya Rao and daughter Chinnamamba. R.V.M.Surya Rao had married the first appellant Mrs.Rau Padma in the year 1944. In the said marriage, two children were born to them viz., Mrs.Rao Suhasa and R.V.M.Pradeep Rao. R.V.M.Surya Rao executed a Will dated 15.11.1911 in respect of his property. The first appellant was appointed as the executor of the Will. As per the said Will, 50 grounds of land along with a house known as "Indira Vihar" was bequeathed to R.V.M.Pradeep Rao, husband of the first respondent and father of respondents 2 to
4. Subsequently, R.V.M.Surya Rao died. The first appellant initiated probate proceedings to probate the Will. The daughter of R.V.M.Surya Rao, born through his first wife objected to the grant of probate. The matter was subsequently mediated and as per the settlement, 12 grounds and 98 sq.ft. of land was given to Mrs.Chinnamamba besides a sum of Rs.1,30,000/-. The application for probate was numbered as O.P.No.16/1963 and ultimately probate was also granted.
(b) In view of the Will duly probated as per order in O.P.No.16/1963, Pradeep Rao became the absolute owner of the House known as "Indira Vihar" along with 50 grounds of land. Since Pradeep Rao was a minor, the property was looked after by the first appellant as his mother as well as in her capacity as the executrix of the Will. Later, on attaining majority, Pradeep Rao formed a partnership along with his mother and sister in the year 1981. Subsequently, Pradeep Rao developed a portion of the property by constructing flats. After such construction, only an extent of 4 grounds remained vacant. In the meantime, Pradeep Rao died on 10.01.1988 and as such, his right in the property devolved on the first appellant being the mother and the respondents being his wife and children.
(c) While the matters stood thus, the first appellant sold the suit property in favour of appellants 2 to 5 by way of registered documents dated 29.05.2006. According to the respondents, those sale deeds are sham documents and as such, they are not binding on them. The first appellant has got only 1/5 share in the property and as such, it was not open to her to assign the entire property. In such circumstances, the respondents filed a suit for partition as well as for declaration of nullity in respect of the documents exe
