Madras High Court
R.Dhanasekaran vs The District Revenue Officer on 28 January, 2022
W.P.Nos.28476 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.01.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.28476 of 2017
and
W.M.P.No.30585 of 2017
R.Dhanasekaran .. Petitioner
..Vs..
1.The District Revenue Officer,
Villupuram,
Villupuram District.
2.The Revenue Divisional Officer,
Kallakurichi,
Villupuram District.
3.The Tahsildar,
Chinna Salem Taluk,
Villupuram District.
4.Sundarrajan .. Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
pertaining to the impugned dated 26.05.2017 (served on 27.09.2017) made
in Na.Ka.No.A3/13184/2016 passed by the 1st respondent reversal of the
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W.P.Nos.28476 of 2017
order dated 24.06.2016 made in Na.Ka.No.A4/1290/2015 passed by the 2nd
respondent, quash the same and consequently direct the authorities to restore
the mutation entries in respect of 51 cents exclusively in my name in Patta
No.1365 relating to S.F.No.103/2B, Vadakanandal Village, Chinna Salem
Taluk, Villupuram District.
For Petitioner : Mr.N.Manokaran
For R1 to R3 : Mr.V.Jeevagiridharan,
Additional Government Pleader
For R4 : Mr.T.Sundaravadanan
ORDER
This writ petition is filed to issue a Writ of Certiorarified Mandamus,
to call for the records pertaining to the impugned dated 26.05.2017 made in
Na.Ka.No.A3/13184/2016 passed by the 1st respondent by reversing the
order dated 24.06.2016 made in Na.Ka.No.A4/1290/2015 passed by the 2nd
respondent, quash the same and consequently direct the authorities to restore
the mutation entries in respect of 51 cents exclusively in petitioner's name in
Patta No.1365 relating to S.F.No.103/2B, Vadakanandal Village, Chinna
Salem Taluk, Villupuram District.
2.The case of the petitioner is that the property ad-measuring 1.39
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W.P.Nos.28476 of 2017
acres comprised in S.No.103/2, Vadakananthal Village, Chinna Salem
Taluk, Villupuram District originally owned by one A.Arumugam Pillai. He
executed a Will dated 20.07.1959 registered by Doc.No.8/1959 in favour of
his 2nd wife and also his 3rd wife in respect of the Schedule A and B
properties. After the demise of the said Arumugam Pillai in the year 1962,
the Will dated 20.07.1959 came into effect. While that being so, the 2 nd
wife's daughter one Rajathiammal filed a suit in O.S.No.585 of 1964 on the
file of the District Munsif Court, Kallakurichi for declaration and permanent
injunction and the same was decreed by judgment and decree dated
27.11.1965 in respect of the property for an extent of 1.39 acres, in which
the said Rajathiammal was allotted 88 cents and the 3rd wife Jagadambal
was allotted 51 cents. Again, the 3rd wife Jagadambal filed another suit in
O.S.No.284 of 1987 on the file of the District Munsif Court, Kallakurichi as
against the daughter of the 2nd wife, i.e. Rajathiammal for declaration of title
over 51 cents and also for permanent injunction. The said suit was decreed
by judgment and decree dated 25.09.1991 in O.S.No.284 of 1987 by
confirming the title and possession of the property, ad-measuring 51cents in
favour of the 3rd wife Jagadambal.
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W.P.Nos.28476 of 2017
3.On verification of Revenue Records and Encumbrance Certificate, it
is seen that the petitioner's father had purchased the said property, ad-
measuring 51 cents comprised in S.No.103/2 by registered sale deeds dated
07.08.1997 and 26.02.2001, ad-measuring for 25 ½ cents. Thereafter, the
petitioner's father was also issued Patta in Patta No.309, by sub-division of
the property as S.F.No.103/2B.
4.While that being so, the 4th respondent, who is the son of the 2nd
wife's Rajathiammal daughter filed another suit in O.S.No.471 of 1996 on
the file of the District Munsif Court, Kallakurichi, as against the petitioner's
father's vendor namely, Jagadammal and others, for declaration and recovery
of possession in respect of the subject property, which was purchased by the
petitioner's father. The property ad-measuring 39 cents out of the total extent
of 1.39 acres comprised in S.No.103/2 is part of the property purchased by
the petitioner's father. The said suit was dismissed by judgment and decree
dated 02.07.1999 and the same was also confirmed in the Appeal Suit in
A.S.No.56 of 2002 by judgment and decree dated 20.06.2002 on the file of
the Additional District Court, Kallakurichi. After purchase of the subject
property by the petitioner's father, he executed a settlement deed in favour of
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W.P.Nos.28476 of 2017
the petitioner by a registered settlement deed dated 10.02.2010. On the
strength of the settlement deed, the petitioner applied for Patta and he had
obtained Patta in Patta No.1365.
5.While that being so, the 4th respondent, after dismissal of the Appeal
Suit in A.S.No.56 of 2002 by judgment and decreed dated 20.06.2002, filed
an application before the 2nd respondent on 07.04.2015 to cancel the patta
issued in favour of the petitioner in Patta No.1365. The 2 nd respondent, after
considering the judgment and decree passed in the suits, rejected the
application filed by the 4th respondent. Aggrieved by the said order, the 4th
respondent filed revision petition before the 1 st respondent. The 1st
respondent had concluded that the 4th respondent is entitled to get title in
respect of the property comprised in S.No.103/2 for an extent of 39 cents as
per Will dated 20.07.1959. Since the property should ultimately go to the
male class heir, the 4th respondent is the grand-son of the said Arumugam
Pillai, born through his daughter Rajathiammal, who born to the second wife
of the said Arumugam Pillai.
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W.P.Nos.28476 of 2017
6.A perusal of the counter affidavit filed by the 4th respondent revealed
that before execution of the Will dated 20.07.1959, the said Arumugam
Pillai had executed the settlement deed in favour of his second wife Panjali
on 10.07.1942 in respect of property comprised in S.No.103/2 for an extent
of 88 cents. However, the 4th respondent failed to aver about the settlement
deed dated 10.07.1942. The 4th respondent further claimed that the third
wife Jagadammal was allocated with other landed property of 2 acres and 90
cents and apart from the lands, one house was also allocated with tobacco
garden of an extent of 50 cents and 600 sq.ft and other properties. The
subject property was allocated with 1 acre, since the calculation was
mistaken and would not have taken place, since after execution of settlement
deed, the remaining extent of 51 cents alone would have to be divided into
two shares, but it has not been done after allocation of 39 cents to the 4 th
respondent's mother and only 12 cents were left out and it ought to have
been allocated, but it was mistakenly entered as 1 acre in the Will.
7.As stated supra, after execution of Will dated 20.07.1959, there
were two suits and two suits were decreed as per Will dated 20.07.1959.
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W.P.Nos.28476 of 2017
Accordingly, the 3rd wife namely, Jagadammal was allotted 51 cents and in
both the suits, she had been declared in respect of the subject property, ad-
measuring 51 cents, comprised in S.No.103/2, as per Will dated 20.07.1959.
Though the suit filed by the 4th respondent in O.S.No.471 of 1996 for
declaration and recovery of possession, was dismissed, the Trial Court
concluded the first issue therein against the 3 rd wife, namely, the petitioner's
father's vendor on the ground that the Will dated 20.07.1959 was executed
by the said Arumugam Pillai bequeathing the subject property in favour of
the third wife with the condition that the subject property can be enjoyed by
the 3rd wife and thereafter by her daughter Sadayammal and thereafter, the
absolute right goes to the male issues of the daughter of the third wife.
8.Admittedly, the third wife had grand-son through her daughter
Sadayammal. The petitioner's father had purchased the subject property
from Jagadammal, the third wife of the said Arumugam Pillai, Sadayammal
who is the daughter of the third wife Jagadammal and sons namely,
Jaishankar and Gopi sons of the said Sadayammal by the registered sale
deed dated 26.02.2001. Therefore, as per the Will, the grand-sons of the 3 rd
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W.P.Nos.28476 of 2017
wife of Arumugam Pillai had got absolute right over the subject property.
They, along with their mother and grand-mother executed, the sale deed in
favour of the petitioner's father. Therefore, the Will dated 20.07.1959 had
been acted upon. Without considering these issues and without reading the
entire recital of the Will dated 20.07.1959, the Trial Court answered the
issues against the petitioner's father's vendor and other male legal
representatives. The 1st respondent, as per the findings of the Trial Court
made in O.S.No.471 of 1996, cancelled the patta in favour of the petitioner
and directed to issue patta in favour of the 4th respondent.
9.In view of the above facts and circumstances of the case, the
impugned order passed by the 1st respondent dated 26.05.2017, cannot be
sustained and it is liable to be set aside. Accordingly, the impugned order
made in Na.Ka.No.A3/13184/2016 dated 26.05.2017 passed by the 1st
respondent is set aside. The writ petition is allowed. No costs. Consequently,
connected writ miscellaneous petition is closed. However, the 4th respondent
is at liberty to workout his remedy in manner known to law.
28.01.2022
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W.P.Nos.28476 of 2017
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
smv
To,
1.The District Revenue Officer,
Villupuram,
Villupuram District.
2.The Revenue Divisional Officer,
Kallakurichi,
Villupuram District.
3.The Tahsildar,
Chinna Salem Taluk,
Villupuram District.
G.K.ILANTHIRAIYAN, J.
smv
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W.P.Nos.28476 of 2017
W.P.No.28476 of 2017
and
W.M.P.No.30585 of 2017
(1/2)
28.01.2022
https://www.mhc.tn.gov.in/judis
