Back
2019 Supreme(Mad) 3254
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
K. Sakthivel and Another – Appellants
Versus
Kalaivani and Another – Respondents
A.S. No. 666 of 2014
Decided On : 12-12-2019
Advocate Appeared:
For the Appellant : S. Kalyanaraman.
For the Respondent: C. Veeraraghavan.
Headnote:
Civil Procedure Code, 1908 - Section 96 - Settlement deed - Suit properties in favour of first defendant - Plaintiffs in brief is that first defendant is their brother and plaintiffs and first defendant are daughters and son and their mother died leaving suit properties and after her demise plaintiffs and first defendant are in joint possession and enjoyment of suit properties - Plaintiffs requested first defendant to allot their lawful shares in respect of suit properties - Plaintiffs requested first defendant to allot their lawful shares in respect of suit properties - First defendant did not come forward to effect partition and refused same and furthermore also attempted to alienate suit properties to third parties with view to deprive rights of plaintiffs over same and second defendant has been imp leaded as party to suit according to plaintiffs suit for appropriate reliefs – Held, Rightly put forth by defendants counsel considering reasoning’s set out by testatrix as to why she had chosen to bequeath her properties in entirety to first defendant and when furthermore it is noted that had died nearly years after execution of Will and as put forth by defendants counsel if there had been any element of prevalent on part of her husband in execution of Will would have chosen to cancel same during her lift time and on other hand when it is seen that had died leaving Will in question and execution of Will by her had been duly established as per law by defendants in such view of the matter trial Court is found to be not justified in disbelieving Will in question - Light of above said discussions when it is found that suit properties had been bequeathed in entirety by testatrix in favour of first defendan in such view of matter plaintiffs are found to be not entitled to claim any share in suit properties as put forth by them and claim of share in suit properties as projected by plaintiffs does not merit acceptance. - Reasons foretasted hold that Will true valid and binding on plaintiffs and hold that plaintiffs are not entitled to obtain partition and separate possession share in suit properties as claimed further hold that plaintiffs are not entitled to obtain relief of permanent injunction as put forth – Accordingly Point are answered – Petition closed
JUDGMENT :
T. RAVINDRAN, J.
Prayer: First Appeal has been filed under Section 96 of CPC against the judgment and decree dated 20.03.2014 passed in O.S. No. 145 of 2011 on the file of IV Additional District and Sessions Court, Coimbatore.
1. Aggrieved over the judgment and decree dated 20.03.2014 passed in O.S. No. 145 of 2011 on the file of IV Additional District and Sessions Court, Coimbatore, the defendants have preferred the first appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. Suit for partition and permanent injunction.
4. The case of the plaintiffs in brief is that the first defendant is their brother and the plaintiffs and the first defendant are the daughters and son of R.A. Kandasamy and their mother is S.K. Kamalam and S.K. Kamalam died on 01.08.2006 leaving the suit properties and after her demise, the plaintiffs and the first defendant are in the joint possession and enjoyment of the suit properties. The plaintiffs requested the first defendant to allot their lawful shares in respect of the suit properties. However, the first defendant did not come forward to effect the partition and refused the same and furthermore, also attempted to alienate the suit properties to the third parties with a view to deprive the rights of the plaintiffs over the same and the second defendant has been impleaded as a party to the suit and hence, according to the plaintiffs, the suit for appropriate reliefs.
5. The defendants resisted the plaintiffs' suit contending that the suit properties belonged to S.K. Kamalam, the mother of the plaintiffs and the first defendant, however, disputed the claim of the plaintiffs that after the demise of S.K. Kamalam on 01.08.2006, the plaintiffs and the first defendant are in the joint possession and enjoyment of the suit properties. According to the first defendant, the deceased S.K. Kamalam bequeathed the suit properties in his favour by way of the Will dated 29.01.2003 and therefore, the claim of the plaintiffs that they have share in the suit properties is false. After the demise of S.K. Kamalam, the Will executed by her had come into force and the first defendant became the absolute owner of the suit properties by virtue of the abovesaid Will and the first defendant and his wife had put up construction in the items 1 and 2 of the suit properties and they are no more vacant sites as put forth in the plaint. Further, the first defendant settled the suit properties in favour of his wife viz., the second defendant on 21.10.2010 and she is a necessary party to the suit and on account of the non impleadment of his wife, the suit is bad for non-joinder of necessary party. The case of the plaintiffs that the first defendant is attempting to alienate the suit properties to third party is false and to the notice issued by the plaintiffs, suitable reply had been given by the first defendant and even in the reply notice, the first defendant had stated about the Will executed by the mother and the plaintiffs are aware of the existence of the Will and therefore, the suit is liable to be dismissed.
6. On the basis of the abovesaid pleas set out by the respective parties, the following issues and additional issues were framed by the trial Court for consideration:
“1. Whether the plaintiff entitled for partition as prayed for in the suit?
2. Whether the plaintiff entitled for permanent injunction as prayed for in the plaint?
3. Whether the plaintiff and defendant are in joint possession of the suit properties?
4. To what other relief?
Additional Issues
1. Whether the Will dated 29.01.2003 in favour of the defendant is true, valid and binding?
2. Whether the settlement deed dated 21.10.2010 executed by the first defendant in favour of his wife is valid and binding?”
7. In support of the plaintiffs' case, PW-1 was examined and Exs.A1 and A6 were marked. On the side of the defendant, DWs. 1 and 2 were examined and Exs.B1 to B6 were marked.
8. On a consideration of the
