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2019 Supreme(Mad) 2011
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
R. Pongiappan, J.
Ramasamy - Appellants
Vs.
Senathipathy and Ors. - Respondent
S.A. (MD) No. 768 of 2009
Decided On : 04-06-2019
For the Appellant : M.P. Senthil for D. Venkatesh
For the Respondents: H. Arumugam for M. Thevan Kumar
Headnote:
Hindu Succession Act - Section 63 - relief of injunction - relief of permanent injunction restraining - trial Court - whole reading of the evidence - Before the trial Court, the plaintiff/appellant Ramasamy filed a suit against the respondents/defendants seeking the relief of declaration declaring that the plaintiff is entitled the suit property and consequently, the relief of permanent injunction restraining the defendants and their men from interfering with the plaintiff peaceful possession and enjoyment. The learned District Munsif, Palani, by judgment and decree dated 22.08.1994 decreed the suit declaring that the plaintiff is the absolute owner of the property in S.F. No. 118/1 of Chinthalavadampatti village only to an extent of 3 Acre 19 Cents situated on the northern side. Further, granted the relief of declaration that the plaintiff is entitled only 5/7th share in the well situated in S.F. No. 127/2. Accordingly, the trial Court has not granted the relief in favour of the plaintiff in respect to 5.40 acres, since the same was claimed by the defendants 2 and 3 as they are the absolute owner of the said property through the Will executed by Alameluammal. In the appeal, the learned Subordinate Judge has also confirmed the findings arrived by the trial Court – Held, In this regard, the learned counsel appearing for the appellant would rely upon the judgment of this Court reported in 2018 (5) LW 124 in the case of J. Rani Vs. G. Manoharan and others, for applying the said principle laid down by this Court, now it is necessary for this Court to find out whether any suspicious circumstances are arised in respect of the execution of the Will. Taking into consideration that the evidence given by P.W. 1 is very clear that after the death of Sivagiri Palanisamy Gounder, the first defendant Alameluammal was resided with his brother, who is the father of the defendants 2 and 3. It is natural for the lady, who is not having any support, having the affection towards the person who gave support to her life. Secondly, when we go through the evidence given by D.W. 2 and D.W. 3, who are the attestor and scribe respectively, it will appear from the evidence of D.W. 2 that the left thumb impression found in the Will is belonged to the first defendant Alameluammal. He has stated before the trial Court as in the said Will, one Thangavel has also signed as a witness along with him. He specifically stated that only after read over the contention of the Will by the scribe to the first defendant, she put her left thumb impression in their presence. The said evidence is duly corroborated through the evidence - It is the contention of the learned counsel appearing for the appellant/plaintiff that even though the property measuring an extent of 5.4 Acres and well right was given to the first defendant, she is not in actual possession. In the said circumstances, we cannot come to the conclusion that the property now under dispute was handed over to the first defendant through the Will and the settlement is came into effect. In this regard, the first appellate Court in its judgment has clearly relied the judgment reported in 2002 (1) CTC 776 and concluded in favour of the defendant. In the said judgment our Honble Apex Court has observed as follows - Appeal is dismissed
JUDGMENT :
R. Pongiappan, J.
1. Aggrieved over the concurrent findings made in O.S. No. 338 of 1983 and A.S. No. 40 of 1996 on the file of the District Munsif Court, Palani and Subordinate Court, Palani, respectively the appellant/plaintiff filed this second appeal prayed to set aside the findings arrived at by the Courts below.
2. Before the trial Court, the plaintiff/appellant Ramasamy filed a suit against the respondents/defendants seeking the relief of declaration declaring that the plaintiff is entitled the suit property and consequently, the relief of permanent injunction restraining the defendants and their men from interfering with the plaintiff peaceful possession and enjoyment. The learned District Munsif, Palani, by judgment and decree dated 22.08.1994 decreed the suit declaring that the plaintiff is the absolute owner of the property in S.F. No. 118/1 of Chinthalavadampatti village only to an extent of 3 Acre 19 Cents situated on the northern side. Further, granted the relief of declaration that the plaintiff is entitled only 5/7th share in the well situated in S.F. No. 127/2. Accordingly, the trial Court has not granted the relief in favour of the plaintiff in respect to 5.40 acres, since the same was claimed by the defendants 2 and 3 as they are the absolute owner of the said property through the Will executed by Alameluammal. In the appeal, the learned Subordinate Judge has also confirmed the findings arrived by the trial Court. However, the said Court granted the relief of injunction in favour of the plaintiff for the entire property by stating that as of now the entire property is in possession of the plaintiff. Aggrieved over the said findings, the plaintiff/appellant filed this present second appeal.
3. For the sake of convenience, the parties are referred to as, as described by the trial Court.
4. The averments made in the plaint, in brief, are as follows:-
(i) The suit property and some other properties originally belonged to the family of the plaintiff's father and his one another brother namely, Semba Gounder. In the year of 1955, the said two brothers and the sons of Semba Gounder partitioned their properties by virtue of a registered partition deed dated 03.03.1955. In that partition deed, 'A' schedule properties were allotted in favour of the plaintiff's father. 'B' schedule properties were allotted to Semba Gounder and to his sons. Right from that date till his life time, the plaintiff's father was enjoying 'A' schedule properties with all rights. The father of the plaintiff had three wives namely Mangayammal, Alamelu Ammal and Rengammal. Alamelu Ammal is none other than the present first defendant. Mangayammal is predeceased her husband long back without any issues. Alamelu Ammal also had no issues. The plaintiff is the only issue to his father Sivagiri Palanisamy Gounder through his third wife Rangammal. The Rangammal died immediately after the birth of the plaintiff. The plaintiff's father bequeathed all his properties including the suit properties except item No. 5 of 'A' schedule in the above said partition deed to his only son through a registered Will dated 12.03.1955. The said Will is the last Will of plaintiff's father Sivagiri Palanisamy Gounder.
(ii) As per the said Will, the property described in Item No. 5 of 'A' schedule in the partition deed, should vested upon the first defendant Alamelu Ammal and she would enjoy the same without any encumbrance till her lifetime and after her lifetime, it also should go to the plaintiff. There is absolutely no dispute in respect to the properties given to the first defendant in lieu of maintenance. Subsequently, after the death of the plaintiff's father, some of the properties owned by the plaintiff were notified as excess land by the Tamil Nadu Government under the Land Ceiling Act. In that notification, the suit properties were allowed to be continued with the plaintiff along with some other properties. Consequently, all the revenue records has been chang
