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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
A. SELVAM AND N. AUTHINATHAN, JJ.
Amaladoss Stephen - Appellant
Vs.
Srimathi Seethalakshmi Ammal - Respondent
A.S.(MD).No.122 of 2014 and C.M.P.(MD).No.12124 of 2016
Decided On : 11-04-2017
Civil Procedure Code - Order 20 Rule 5 - Evidence Act - Section 114 - Suit property - Sale deed - Letters of Administration - Recovery of possession - Plaintiff claims title to suit property under sale deed executed (D3) through his power agent (P.W.1). Leslie Stephen (D3) claims title to the suit property under a Will (Ex.A.3) said to have been executed died (D3) filed Succession O.P. on the file of the Principal Subordinate Judge for grant of Letters of Administration to the registered Will (Ex.A.3) and the Court has granted Letters of Administration (D1) has applied for revocation of the grant of Letters of Administration in I.A. - Principal Subordinate Judge revoked the Letters of Administration by his order - Third defendant filed C.M.A. on file of Court against the order of revocation - Held, It is also important to note that the third defendant has not been examined as a witness to dispel the above mentioned suspicious circumstances surrounding the Will. P.W.1 is only a power of attorney agent. His evidence is not sufficient to dispel the suspicious circumstances. All the above mentioned suspicious circumstances were not dispelled by the propounder of the Will. The registration of the Will by itself is not sufficient to remove the above suspicions - Trial court has not chosen to consider the above suspicious circumstances and arrive at a conclusion with regard to the same. In the circumstances, we hold that the plaintiff has not established genuineness of the Will/Ex.A.3. - Genuineness of the Will having been not established, the suit is bound to fail. Therefore, points are answered against plaintiff - Judgment and decree of the trial court are liable to be set aside and accordingly are set aside - Appeal is allowed
N. AUTHINATHAN, J.
The above first appeal arises out of the judgment and decree, dated 04.09.2013 passed in O.S. No. 299/2004 on the file of the II Additional District Judge, Tiruchirappalli.
2. Parties herein are hereinafter referred to as they were arrayed in the original suit.
3. A house site measuring 4,379 sq.ft together with a building thereon bearing door No.1-B and 1-G, Block No.19 Benwels road, Cantonment, Trichirappalli is the suit property. This property originally belonged to Mabel Dhanabakkiam w/o. Rev.G.Stephen having been purchased by her under a sale deed dated 09.03.1964 (Ex.A1). Amaladoss Stephen (D1), John Stephen (D2) and Leslie Stephen (D3) are her sons. Violet Stephen (D4) and Daisy Liese Stephen (D5) are her daughters.
4. The plaintiff claims title to the suit property under a sale deed dated 03.03.2000 (Ex.A.5), executed by Leslie Stephen (D3) through his power agent Gopalakrishnan (P.W.1). Leslie Stephen (D3) claims title to the suit property under a Will (Ex.A.3) dated 22.12.1983 said to have been executed by Mabel Dhanabakkiam. Mabel Dhanabakkiam died on 01.01.1985 (Ex.A.22-Death Extract). Leslie Stephen (D3) filed Succession O.P.No.13/1996 on the file of the Principal Subordinate Judge, Trichirappalli for grant of Letters of Administration to the registered Will (Ex.A.3) and the Court has granted Letters of Administration on 25.04.1997 (Ex.A.2). Amaladoss Stephen (D1) has applied for revocation of the grant of Letters of Administration in I.A.No.100/2000 in S.O.P.No.13/1996. The Principal Subordinate Judge revoked the Letters of Administration by his order dated 05.09.2001(Ex.B4). The third defendant filed C.M.A.No.424/2002 on the file of this Court against the order of revocation. The order of revocation was upheld by this Court.
5. The daughters of Mable Dhanapackiyam filed a suit in O.S.No.97 of 1996 on the file of the Principal District Judge, Trichy for declaration of title of the suit property and for injunction against her brothers. The plaintiff filed the present suit initially before the Subordinate Judge, Trichy in O.S.No.985 of 2001. Subsequently, the suit was transferred to the Fast Track Court, No. I, Trichy and renumbered as O.S.No.299 of 2004. The plaintiff has filed I.A.No.196 of 2005 in O.S.No.97 of 1996 for getting herself impleaded in the suit. However, it was dismissed. The plaintiff preferred C.R.P.(PD).No.1352 of 2007 against the order of dismissal. This Court by an order dated 26.03.2008 dismissed the revision.
6. In pursuance of the observation made in the said order of this Court, the plaintiff herein has filed Tr.O.P.No.43 of 2008 on the file of the Principal District Judge, Trichy, for joint trial of O.S.No.97 of 1996 with O.S.No.299 of 2004 (present suit). The plaintiff has also filed O.S.No.488 of 2001 on the file of the Principal District Munsif, Trichy restraining the defendants 1 to 4 from alienating the suit property in favour of the 8th defendant. The Principal District Judge, Trichy passed an order for joint or simultaneous trial of the suits in O.S.No.97 of 1996, 488 of 2001 and 299 of 2004. The suit in O.S.No.97 of 1996 and S.O.P.No.13 of 1996 were allowed to be dismissed for default.
7. The present suit has been filed for declaration of title, recovery of possession and for past and future mesne profits. According to the plaintiff, the 8th defendant was allowed by the first defendant to occupy a portion of the property. The ninth defendant was allowed to occupy another portion of the property by 8th defendant. The 10th defendant, son of the first defendant claimed to be a tenant with respect of a portion of the suit property and he filed O.S.No.10 of 2001 on the file of the District Munsif Court, Trichy for permanent injunction against the plaintiff. The defendants 6 and 7 were tenants. However, they have denied the title of the plaintiff.
8. The 10th defendant is the son of the 1st defendant. The first and 10th defendant contested the suit. They have admitted
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