Madras High Court
Guruvammal vs Durai on 7 December, 2023
Author: N.Seshasayee
Bench: N.Seshasayee
CMA.Nos.2663 & 2664 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2023
CORAM: JUSTICE N.SESHASAYEE
CMA.Nos.2663 & 2664 of 2023
& CMP.Nos.24762 & 24775 of 2023
1.Guruvammal
2.Chandrasekar
3.Annakili
4.Jayanthi
5.Jayalakshmi
6.Lakshmi
7.Bakiyalakshmi
8.Maniyammal
9.Vijaya
10.Sengalaiyammal ... Appellants in both CMAs
-Vs-
1.Durai
2.Jagadesan
3.Manosanker
4.Srinivasan
5.Gopi
6.Anand
7.Devi
8.P.Rajasekar
9.Viji
10.Yuvaraj
11.Balasubramani
12.Mohan
13.Udhaya
14.Mageswari ...Respondents in both CMAs
1/10
https://www.mhc.tn.gov.in/judis
CMA.Nos.2663 & 2664 of 2023
Common Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1
of Civil Procedure Code, against the fair and decretal order dated
02.09.2023 in I.A.Nos.3 & 4 of 2023 in O.S.No.4607 of 2023, XXI
Additional City Civil Court at Allikulam, Chennai
In both CMAs
For Appellants : Mr.D.Rajagopal
For R1 to R4 : Mr.V.Raghavachari, Senior Counsel
Asst. by M/s.S.Thamizharasi
For R5 to R10
& R12 : No appearance
For R11, R13
& R14 : Mr.E.Viswanathan
COMMON JUDGMENT
These twin appeals are preferred by the plaintiffs in OS.No.4607 of 2023
on the file of the XXI Additional City Civil Court, Chennai. The suit is
laid for cancellation of a decree dated 18.03.1948, a settlement deed
dated 09.12.2010 and few other sale deeds, all executed in 2021 before
the trial Court and consequent to these relief, the plaintiffs also seek
partition of their share in the property.
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CMA.Nos.2663 & 2664 of 2023
2.The case of the plaintiffs is that;
● the suit property originally belonged to a certain Periapiratti
Ammal, that on 17.03.1928, she had settled the property in favour
of her nephews creating only life interest for her and after her
demise constituted one of her nephews as the trustee to collect the
income and to utilize half the income for his up-keeping as well as
for the up-keeping of his children and to deposit the remaining
50% in a bank and post the demise of the appointed trustee, the
property was to be taken equally between the sons of the trustee.
Subsequently, a suit came to be filed in OS.No.393 of 1947 as
between the trustee and another settlee and that came to be
decreed. This was followed by few other documents. The case of
the plaintiffs is that at the time when the settlor executed the
document, some 95 years from now, she was not in a sound state
of mental disposition.
● Turning to OS.No.393 of 1947, the plaintiffs allege it is a collusive
decree. Plaintiffs, therefore proceed to build the cause of action for
their suit on the contention that as per the settlement deed dated
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CMA.Nos.2663 & 2664 of 2023
17.03.1928, after the demise of the settlor, the trustee constituted
under the settlement deed takes charge of the management of the
property, who shall collect the income and was authorized to spend
50% thereof inter alia for the up keep of his children, which
implies that such up keep will also enure to the benefit of the
daughters and the plaintiffs are the great grandchildren of the
trustees so constituted through the daughters.
● Along with the suit, the plaintiffs had taken out I.A.No.3 of 2023
and I.A.No.4 of 2023 respectively for an order of injunction against
putting up construction by the defendants 1 to 4 and also against
alienation of the property pende lite. It may have to be stated that
the defendants 1 to 4 are the settlees and purchasers of the
property.
● These Applications came to be dismissed by the learned trial Judge
on the ground that the plaintiffs have not established the triple
criteria required to be established for granting an order of interim
injunction. The correctness of these orders are now under challenge
in these appeals before this Court.
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CMA.Nos.2663 & 2664 of 2023
3.The learned counsel for the appellants/plaintiffs submitted that the
settlement deed dated 17.03.1928 on its face provides an arguable case
and hence, the trial Court ought not to have entered a finding on its
construction and when once it is admitted that the plaintiffs/appellants
herein are great grandchildren of Ayyavu Nadar, the trustee constituted
under the settlement deed dated 17.03.1928, then they ought to be
considered as sharers. After all, possession by one co-sharer is possession
for all and the trial Court has lost site of the same and when once the
plaintiffs could prima facie establish that they are the co-sharers then,
they are entitled to preserve the present status quo vis-a-vis the physical
features of the suit property pende lite and also required to preserve the
ownership of the property. The trial Court has over looked it and hence,
its orders deserve to be interfered with by this Court.
4.Per contra, the learned senior counsel appearing for the respondents 1
to 4 submitted that the suit is a grant demonstration of how judicial
process can be abused. Here is a document executed in 1928, but is
challenged in 2023. This apart, a decree passed in 1948 is also
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CMA.Nos.2663 & 2664 of 2023
challenged after 75 years. It may be that the clock might have stopped on
the plaintiffs and their predecessors in title, but not the law of limitation.
It should not be lost site of that the plaintiffs herein are not even the
granddaughters of the trustee Ayyavu Nadar but, are the great
granddaughters, who today are around 70 years. The contention of the
appellants that the property is held in co-ownership itself is a matter of
presumption but, on facts the parties have begun enjoying the property.
5.This apart, the settlor under the settlement deed dated 17.03.1928 has
indicated how the property shall be dealt with on the demise of the trustee
Appavu Nadar. When rights have devolved and vested in the manner
contemplated, it is improbable that some right could still be kept alive for
the benefit of the plaintiffs. Turning to the order of injunction, at the end
of the day, no civil court can grant an order of interim injunction unless
the triple criteria is satisfied.
6.Here, even if the statement of the learned counsel for the appellants vis-
a-vis establishing a strong prima facie case is taken on its face value,
which the plaintiffs fail to establish, how the balance of convenience is
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CMA.Nos.2663 & 2664 of 2023
tilted in their favour is not established. The learned counsel also added,
here is a strange case where the plaintiffs claim a right under the
settlement deed, even as they allege that the executor of the document
was not mentally sound.
7.Rival submissions are weighed carefully.
8.So far as the prima facie case is concerned, this Court does not intend
to interfere much except to the limited extend that the plaintiffs status as
great granddaughters of the trustees constituted under the settlement deed
is not disputed. How the document has to be constructed is something
that has to be attempted at a later stage in the suit. The arguments of the
learned counsel for the contesting respondents that the suit is a abuse of
judicial process is something, on which, this Court does not want to make
an immediate statement and the issue is left open.
9.Turning to the merit of the impugned orders in this case, this Court
subscribes to the line of reasoning of the trial Court. Here, this Court
cannot disturb a status quo that has been there for the last 75 years and
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CMA.Nos.2663 & 2664 of 2023
merely because the plaintiffs have come forward with a case, does not
ipso facto imply that they deserve an order of interim injunction.
10.In the result, both the Civil Miscellaneous Appeal are dismissed. No
costs. Consequently, the connected miscellaneous petitions are closed.
07.12.2023
Tsg
https://www.mhc.tn.gov.in/judis
CMA.Nos.2663 & 2664 of 2023
To
1.The XXI Additional City Civil Court at Allikulam,
Chennai.
2.The Section Officer,
V.R.Section, High Court, Madras.
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CMA.Nos.2663 & 2664 of 2023
N.SESHASAYEE, J.,
Tsg
CMA.Nos.2663 & 2664 of 2023
07.12.2023
https://www.mhc.tn.gov.in/judis
