Madras High Court
C.Andiappan vs T.V.Kailasam on 10 March, 2021
S.A.(MD)No.165 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.165 of 2021 and
CMP(MD) No.2381 of 2021
1.C.Andiappan
2.Smt.Rajamani
3.A.Vairamani
4.A.Kannan
5.A.Kumar Appellants
Vs.
T.V.Kailasam Respondent
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, against the Judgment and Decree dated 04.09.2019, in
A.S.No.84 of 2015, on the file of II Additional Subordinate Court at
Trichy, reversed the judgment and decree dated 05.03.2015, in O.S.No.
600 of 2010, on the file of the II Additional District Munsif Court at
Trichy.
For Appellant : Mr.G.Vidhyamaheswaran
JUDGMENT
The defendants in O.S.No.600 of 2010 are the appellants.
They are aggrieved by the reversal of the judgment of the trial Court,
dismissing the suit. The plaintiff sued for permanent injunction claiming
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S.A.(MD)No.165 of 2021
that the suit property belonged to his sister in law, namely, Meenakshi.
The said Meenakshi had no issues and therefore, she executed a
Registered Will, dated 08.12.1983, bequeathing the suit property and
other properties to her younger sister, namely, Sivagami. On the death of
Meenakshi on 11.05.2006, the property devolved on the legatee, namely,
Sivagami. Claiming that the said Sivagami had executed a settlement
deed, in favour of the plaintiff, her husband, on 01.02.2010, the plaintiff
would seek decree for permanent injunction, on the ground that the
defendants attempted to interfere with his possession.
2.The suit was resisted by the defendants contending that
Meenakshi had entered into an agreement of sale with them on
29.11.1997 and she died before the sale deed could be executed. They
would also contend that they are in possession of the property pursuant
to the said agreement.
3.At trial, the plaintiff was examined as PW 1. Exs.A1 to A8
were marked. The defendants 5,4 & 2 were examined as DW 1, DW 2
and DW 3 respectively. One Subramanian was examined as DW 4.
Exs.B1 to B4 were marked.
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S.A.(MD)No.165 of 2021
4.The trial Court, upon consideration of the evidence on
record, concluded that the suit property is not found place in Ex.A1,
Will. The trial Court also found that the Will has not been proved as
required under Section 68 of the Evidence Act. On the said findings, the
learned trial judge dismissed the suit. Aggrieved, the plaintiff preferred
an appeal in A.S.No.84 of 2015. The learned Appellate Judge, upon
reconsideration of the evidence on record, concluded that even de hors
the Will, the plaintiff's wife Sivagami would get right to the property as
the sister of Meenakshi. Therefore, non-proving of the Will or the
absence of the suit property in the Will, will not prevent the plaintiff
from claiming title under the Settlement Deed executed by Sivagami,
who happened to be the sister of Meenakshi. The lower Appellate Court
also concluded that the suit property does not form part of the alleged
agreement dated 29.11.1997, said to have been entered between
Meenakshi with the defendants. Going by preponderance of the
properties, the learned Appellate Judge found that the plaintiff has made
out a better title than the defendants, the learned Appellate Judge decreed
the suit for injunction. The contentions of the defendants that the
plaintiff should be sought for declaration of title on the ground that since
both parties admitted the title of Meenakshi Ammal and what is to be
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S.A.(MD)No.165 of 2021
decided is only the question of devolution and therefore, failure on the
part of the plaintiff to seek declaration would not vitiate the suit. It is this
judgment and decree that is under challenge in this second Appeal.
5.I have heard Mr.C.Vidhyamaheswaran, the learned counsel
appearing for the appellant. The learned counsel appearing for the
appellant would vehemently contend that the Appellate Court had erred
in concluding that the plaintiff has made out title, in the light of the
factual finding of the trial Court that the property does not find place in
the Will would show that Meenakshi did not intend to bequeath the
property to the plaintiff's wife. According to the learned counsel for the
appellant, non inclusion of the property in the Will is only because of the
fact that Meenakshi had entered into an agreement of sale with the
defendants with reference to the suit property. I am unable to
countenance the contentions of the learned counsel for the appellant. The
Appellate Court had in fact found that the suit property is not included in
the agreement dated 29.11.1997, under which, the defendants set up a
right over the suit property. As rightly pointed out by the Appellate
Court, even de hors the Will, the wife of the plaintiff, Sivagami, would
be the heir of Meenakshi, in her own right under Section 15 of Hindu
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S.A.(MD)No.165 of 2021
Succession Act. Therefore, she would be entitled to inherit the property
and transfer the same. I do not find any question of law, much less a
substantial question of law in this appeal.
6.Accordingly, this second appeal is dismissed without
being admitted. No costs. Consequently, connected miscellaneous
petition is closed.
10.03.2021
Index : Yes/No
Internet: Yes/No
vrn
To
1.The II Additional Subordinate Court, Trichy.
2.The II Additional District Munsif Court at Trichy.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
S.A.(MD)No.165 of 2021
R.SUBRAMANIAN,. J.
vrn
Judgment made in
S.A.(MD)No.165 of 2021 and
CMP(MD) No.2381 of 2021
Dated 10.03.2021
http://www.judis.nic.in
