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2015 Supreme(Mad) 786
HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Rani – Appellant
Versus
Rajamani & Others – Respondents
A.S. No. 39 of 2006 & C.M.P. No. 1118 of 2006
Decided on: 10-02-2015
For the Appellant:R. Parthasarathy, Senior Counsel for R. Srinivas, Advocate.
For the Respondents:R1 to R3, R6, R7 & R10, S. Premanand, R5, Srinath Sridevan, R8 & R9, V. Ayyathurai for M/s. Vedantam Srinivasan, Advocates.
Headnote:
Hindu Succession Act, 1956 - Section 8 - Order of interim injunction - Separate possession claiming share in suit properties – Claim of compensation - Respondents 1 to 3 herein filed on file of trial court for partition and separate possession claiming share in suit properties to each one of respondents 1 to 3 plaintiffs 1 to 3 - Suit was filed based on plaint averment that suit properties belonged to son and he died leaving a registered Will as his last Will and testament that by execution of said Will revoked an earlier Will which according to respondents 1 to 3 plaintiffs 1 to 3 was obtained by appellant herein defendant by exercising undue influence and prevailing upon was revoked by a will that said will was again superseded by a subsequent will that said will was also revoked by last Will and testament that as per said last will his entire properties were bequeathed on all his seven daughters in equal shares that their request for partition in accordance with terms of Will was not conceded by defendants especially 4th defendant appellant herein and that hence they were constrained to file suit for partition – Held, Neither plaintiffs nor contesting defendants chose to make widow and daughter as parties to suit so that they would get a chance of disputing will propounded by both sets of parties to suit - In case will is defeated then suit for partition shall be bad for non-joiner of necessary parties - In case will is upheld even then same shall not be end of litigation as it shall be open to widow and daughter to challenge same in a subsequent proceeding - Hence in order to avoid multiplicity of proceedings also it is not only proper but also necessary to imp lead widow and daughter in suit - When this aspect was brought to light counsel appearing for contesting parties in appeal submitted that they were ready to take an order of remand so as to enable them to cure defect by imp leading widow and daughter predeceased son - This court is also of considered view that presence of those persons are very much necessary for rendering a complete justice in this matter and that therefore preliminary decree passed by trial court is bound to be set aside and suit shall be remitted back to trial court for fresh disposal after affording an opportunity to plaintiffs to imp lead widow and daughter of predeceased and permitting parties to adduce further evidence - In view of fact that necessary parties have not been imp leaded question regarding genuineness and validity of will propounded by plaintiff and will propounded by defendants 3 and 4 cannot be finally decided and issues are left open to be decided after imp leading necessary parties - Appeal Suit is allowed
1. The 4th defendant Rani in the original suit is the appellant in the present appeal. The plaintiffs in the original suit are the respondents 1 to 3. One Gnanambal, who figured as the first defendant is no more. Defendants 2, 3 and 5 to 9 are the respondents 4 to 10 in the appeal.
2. For the sake of convenience and for easy reference, the parties are referred to in accordance with their ranking in the original suit and in appropriate places wherever it is necessary their rankings in the first appeal shall also be furnished.
3. The respondents 1 to 3 herein filed O.S.No.13/2004 on the file of the trial court for partition and separate possession claiming 1/7th share in the suit properties to each one of the respondents 1 to 3/plaintiffs 1 to 3. The suit was filed based on the plaint averment that the suit properties belonged to Palanivelu, son of Kuppusamy and he died on 01.09.1997 leaving a registered Will dated 24.08.1997 as his last Will and testament; that by the execution of the said Will, Palanivelu revoked an earlier Will dated 06.03.1992, which according to the respondents 1 to 3/plaintiffs 1 to 3 was obtained by the appellant herein/4th defendant by exercising undue influence and prevailing upon Palanivelu was revoked by a will dated 07.02.1993; that the said will dated 07.02.1993 was again superseded by a subsequent will dated 02.01.1995; that the said will was also revoked by the last Will and testament of Palanivelu dated 24.08.1997; that as per the said last will dated 24.08.1997, his entire properties were bequeathed on all his seven daughters (plaintiffs 1 to 3 and defendants 1 to 4) in equal shares; that their request for partition in accordance with the terms of the Will was not conceded by the defendants, especially the 4th defendant/appellant herein and that hence they were constrained to file the suit for partition.
4. Defendants 1, 2 and 5 to 9 remained ex-parte. The third defendant Dhamayanthi and the 4th defendant Rani (appellant herein) alone contested the suit by filing written statements. The 3rd defendant Dhamayanthi denied the plaint averments and especially the averment that the Will dated 24.08.1997 was the last will and testament of Palanivelu. She also denied and disputed the plaint averments regarding the alleged undue influence exercised by the appellant herein/4th defendant (Rani) to bring about the Will dated 06.03.1992 and the further averment that when all the daughters of Palanivelu objected to the same, Palanivelu revoked the said will dated 06.03.1992. The third defendant Dhamayanthi and the 4th defendant Rani (appellant herein) took a plea that no such wills dated 07.02.1993 and 02.01.1995 came to be executed. The 4th defendant (Rani)/the appellant herein took a further plea that even during the lifetime of C.K. Palanivelu, he repudiated the said will alleged to have been executed by him on 07.02.1993 and the same was the reason for his filing the above said suit for injunction against his other daughters. They also contended that the will dated 24.08.1997 propounded by the plaintiffs as the last will and testament of Palanivelu was not genuine. The third defendant contended further in her written statement that out of the suit properties, a terraced house bearing old door No.41C (new door No.1/57) had been in possession and enjoyment of her husband ever since 1975; that the land measuring five cents was orally sold by Palanivelu to Arunachalam, the husband of the third defendant Dhamayanthi on payment of Rs.3,000/- as consideration, with an assurance that, if it would be necessary, proper sale deed would be executed by him; that pursuant to the same, the husband of the third defendant constructed a house in the vacant site spending a sum of Rs.60,000/- in the year 1975 and that they are in possession and enjoyment of the same thereafter by paying the house tax to the said property to the panchayat and obtaining electric service connection in the name of the husband of the third d
