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2016 Supreme(Mad) 3236
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Sekar - Appellant
Vs.
Ganesan Represented by his Power Agent, Thiruvengadam - Respondent
S.A.No.73 of 2011 and M.P.No.1 of 2011
Decided On : 18-10-2016
For the Appellant : Mr. A. Muthukumar.
For the Respondent: Mr. S. Sounthar.
Headnote:
Civil Suit - Suit for Permanent Injunction - Trespass into schedule property – Will – Execution of - Whether courts below erred in law in holding that Parvathy Ammal had died prior to suit in absence of any evidence such as Death Certificate or examination of any one of her heirs - Whether Courts below erred in law in holding that Will, said to have been executed by Parvathy Ammal, is true and genuine when plaintiff, propounder of Will, failed to examine himself and in absence of any explanation - Suit "A" schedule property is an old house in survey and suit "B" schedule property is a shop in same survey number, which were purchased by plaintiffs maternal grandmother Parvathi Ammal through a registered sale deed - Said Parvathiammal had four daughters and two sons and plaintiffs mother, who is one of her daughters, was alone given in marriage in India and other sons and daughters of Parvathi Ammal are residing in Singapore - Parvathi Ammal often goes to Singapore and plaintiffs grandfather died in year 1980 - Plaintiffs grandmother Parvathi Ammal, before leaving for Singapore, executed a Will bequeathing her properties in favour of plaintiff and Parvathi Ammal died and Will executed by her has come into force and as per Will plaintiff is entitled to suit property - Held, plaintiff, having failed to establish that Parvathi Ammal had died, resultant conclusion could only be that the plaintiff has no title to the suit property and that he is not in possession and enjoyment of the suit property - As rightly argued by learned counsel for appellant, suit filed by plaintiff appears to be a speculative one - If really, plaintiff had a valid title over suit property as projected by him, nothing prevented him from taking steps against defendant in respect of "B" schedule property, which is admittedly to be in possession and enjoyment of defendant and which is also property of Parvathi Ammal. However, for reasons best known to plaintiff, he has cleverly not filed suit against defendant in respect of "B" schedule property and has reserved lis in respect of same, to a future date and has laid suit against defendant only in respect of "A" schedule property - Plaintiff having failed to establish legal title, possession and enjoyment in respect of suit property - Second appeal is allowed.
Challenge in this second appeal is made by the defendant against the Judgment and Decree dated 27.08.2010 passed in A.S.No.24 of 2010 on the file of the Court of Additional Subordinate Judge, Mayiladurai, confirming the Judgment and Decree dated 20.04.2009 passed in O.S.No.237 of 2004 on the file of the Court of District Munsif, Sirkali.
2. The suit is for Permanent Injunction.
3. The plaint averments are briefly stated as follows:
The suit "A" schedule property is an old house in survey No.65/5B and the suit "B" schedule property is a shop in the same survey number, which were purchased by the plaintiff's maternal grandmother Parvathi Ammal through a registered sale deed dated 06.07.1973. The said Parvathiammal had four daughters and two sons and the plaintiff's mother Thaiyalnayaki @ Dhanalakshmi, who is one of her daughters, was alone given in marriage in India and the other sons and daughters of Parvathi Ammal are residing in Singapore. Parvathi Ammal often goes to Singapore and the plaintiff's grandfather Manickam died in the year 1980. The plaintiff's grandmother Parvathi Ammal, before leaving for Singapore, on 20.12.1980, executed a Will bequeathing her properties in favour of the plaintiff and Parvathi Ammal died and the Will executed by her has come into force and as per the Will dated 20.12.1980, the plaintiff is entitled to the suit property. The front portion of the suit property is a small shop building, which is rented out to the defendant and marked as “CDEG” in the plaint plan. In respect of this property, no relief is sought for in the present suit and in respect of the remaining property “ABCDEF”, the plaintiff is in possession and there is a house in the said property and the same has been described in "A" Schedule. The plaintiff demanded the defendant to vacate the "B" Schedule property and hand over possession, but, the defendant did not yield to the same and threatened the plaintiff that he is going to trespass into "A" schedule property and making attempts to encroach into "A" schedule property. Hence, the suit for Permanent Injunction.
4. The averments contained in the written statement are briefly stated as follows:
The suit property belongs to Parvathi Ammal. It is false to state that Parvathi Ammal had executed a Will dated 20.12.1980 bequeathing the suit property in favour of the plaintiff. The will is a forged document and the signature in the Will is not that of Parvathi Ammal. After the death of plaintiff's mother in a suspicious manner, Parvathi Ammal did not have any contact with the plaintiff's family. The certificate of Village Administrative Officer declaring the death of Parvathi Ammal is not admissible. Parvathi Ammal came to India during the death of her husband and before leaving for Singapore, she handed over her property to the defendant asking him to take care of it. When she came to India in the year 1983, she opened a joint account with the defendant in State Bank of India, Tiruvengadu and asked the defendant to act as her power agent and enquired about drafting the document through her letter dated 25.12.1987. The signature of Parvthi Ammal in the said letter and her signature in the Will would disclose that the Will is a forged document. If she had executed a Will, there is no need to execute the power of attorney deed. The defendant is residing in the house which was handed over to him by Parvathi Ammal. The defendant had constructed the shop building in the suit property and it is enjoyed by him. The defendant had not attempted to trespass into the suit "A" schedule property as claimed by the plaintiff. The suit is a false one and is liable to be dismissed.
5. In support of the plaintiff's case, PWs1 to 3 were examined and Exs.A1 to 4 were marked and on the side of the defendant, DWs1 and 2 were examined and Exs.B1 to 35 were marked.
6. On consideration of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to decree the suit as pr
