Madras High Court
Selvi vs S.Madurai on 15 June, 2022
S.A.No.1150 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.No.1150 of 2010
and M.P.No.1 of 2010
1.Selvi
2.Rajamanickam
3.Velu ...Appellants
Vs.
1.S.Madurai
2.Elumalai
3.Saraswathi
4.Bommi
5.Krishnan
6.Victoria ...Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 18.12.2009 in A.S.No.536 of 2005 on the file of
the IV-Additional City Civil Court, Chennai confirming the judgment and
decree dated 17.11.2004 in O.S.No.700 of 2000 on the file of the XIV-
Assistant City Civil Court.
1/8
https://www.mhc.tn.gov.in/judis
S.A.No.1150 of 2010
For Appellants : Mr.Poovendra Perumal
for Mr.Sai Krishnan
For Respondents : Ms.Tamizh Selvi for R2, R3 & R6
- No Appearance
Mr.A.Vivek for R4 & R5
- No Appearance
JUDGMENT
The defendants in O.S.No.700 of 2000 on the file of the 14th
Assistant City Civil Court, Chennai who had suffered a decree on
17.11.2005 and had also suffered an adverse judgment in A.S.No.536 of
2005 which was on the file of the IV-Additional District Court at Chennai
dated 18.12.2009 are the appellants herein.
2.The suit in O.S.No.700 of 2000 had been filed for partition and
separate possession of two schedule mentioned properties which were given
as 'A' schedule and 'B' schedule. The plaintiffs therein, sought that the
property should be divided into 17 equal parts and that they must each be
given one part each. The other parts would go to the defendants.
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S.A.No.1150 of 2010
3.The brief background of the facts would indicate that the
properties, originally belonged to one Govindasamy Mudaliar who had
purchased the 'A' schedule property by way of a sale deed dated 05.10.1933.
His wife, Veerammal was the owner of the 'B' schedule property having
purchased the same by sale deed dated 07.08.1943. They had one daughter,
Neelaveniammal. The plaintiffs are the daughters and son of
Neelaveniammal and the defendants are the legal representatives of another
son, Natarajan.
4.It is stated that Natarajan was looking after Veerammal after the
death of Govindasamy Mualiar and therefore, out of love and affection, she
had executed a registered Will in favour of Natarajan which Will was dated
04.06.1968 and which was marked as Ex.B2 during the course of trial.
Thereafter, Natarajan had executed another Will on 21.09.1993 which had
been marked as Ex.B1 in favour of his two sons who are shown as 2nd and
3rd defendants in the suit. Assailing execution of the Will and seeking
partition and separate possession, the suit had been filed.
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S.A.No.1150 of 2010
5.During the course of trial, to uphold the validity of the Will
unfortunately, on the side of the appellants / defendants, no witnesses were
examined. The 1st appellant / 1st defendant, Selvi, wife of Natarajan was
alone examined as witness. Both the Wills were not proved in manner
known to law. Both the Courts below held that the Will could not have been
executed by Veerammal over a property to which she had no right, title or
interest.
6.The learned counsel for the appellants however, made a
submission that Veerammal had a right to execute the Will with respect to
'B' schedule property. It is claimed that she had purchased the said property
out of her own belongings and therefore, she has title and interest over the
said property. But, again that fact was not established during the course of
trial or even during the First Appeal where opportunity always subsist to the
appellants to file additional evidence under Order 41 Rule 27 of C.P.C.
Unfortunately, the appellants herein / defendants did not prove either the
execution of the Wills were able to satisfy both the Courts below that
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S.A.No.1150 of 2010
Veerammal had right, title and interest in the property over which she had
executed the Will.
7.The learned counsel for the appellant placed arguments assailing
Section 213 of the Indian Succession Act stating that the said provision is
violatory of Article 15 of the Constitution of India in that, it discriminates
between religious denominations by making it compulsory for the Wills of
Hindus, Jains and Sikhs to be probated before a Court of law whereas the
Wills executed by Christians, Muslims and Mohammadians are exempted.
It was also stated that the Law Commission in its Report No.209 had also
recommended that Section 213 of the Indian Succession Act should be
struck down from the enactment.
8.This is an issue beyond the scope of the Second Appeal and I
would refrain from being drawn into a discussion on it.
So long as the said provision holds, and is still in the statute, there is a duty
cast to follow the said provision
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S.A.No.1150 of 2010
9.There is no reason given by the appellants / defendants for not
taking any steps to probate either one of the two Wills or both the Wills.
They could have perfected title. On the basis of the said Wills, they could
have sought declaration of title over the said properties. They have not
done so. Their non-action had handed the opportunity for the other legal
heirs of Neelaveniammal / brother and sisters of Natarajan to file a suit for
partition. Partition had been granted. Preliminary decree in the suit had
been granted and confirmed. The ratio in which the preliminary decree
granted is not under question or challenged.
10.I hold no question of law arises for consideration much less
substantial questions of law. This Second Appeal is dismissed.
11.The Trial Court is directed to follow the dictum laid down by
the Hon'ble Supreme Court in Kattukandi Edathil Krishnan & Others Vs.
Kattukandi Edathil Valsan & Others, in Civil Appeal Nos.6406 - 6407 of
2010, dated 13.06.2022, and proceed further with the final decree
application and make an endeavour to dispose of the same at the earliest.
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S.A.No.1150 of 2010
12.This Second Appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
15.06.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking / Non-speaking order
To:-
1.The IV-Additional Judge,
City Civil Court,
Chennai.
2.The XIV-Assistant Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.1150 of 2010
C.V.KARTHIKEYAN, J.
KKN
S.A.No.1150 of 2010
and M.P. No.1 of 2010
15.06.2022
https://www.mhc.tn.gov.in/judis
