Madras High Court
Saji Thomas vs Naniyamma (Died) on 2 March, 2023
S.A.No.721 of 2007 & M.P. No.1 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.721 of 2007 &
M.P. No.1 of 2007
Saji Thomas ...Appellant
Vs.
1. Naniyamma (died)
2. Saminathan
3. Sasikumar
4. Sasankan ... Respondents
RR2 to 4 brought on record as LRs of the deceased
sole respondent vide order of Court dated 14.11.2019
made in CMP No.23351, 23353 and 23355 of 2019 in
S.A. No.721/2007)
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 08.03.2007 passed in A.S. No.70 of 2006, on
the file of the Subordinate Judge, Nilgiris, Udagamandalam, reversing
the decree and judgment dated 27.06.2006 passed in O.S. No.12 of 1994,
on the file of the District Munsif, Gudalur.
For Appellant : Mr. Rathina Asohan
For Respondents : No appearance.
Page 1 of 8
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S.A.No.721 of 2007 & M.P. No.1 of 2007
JUDGMENT
The appellant is the defendant in O.S. No.12/1994 on the file
of the District Munsif, Gudalur and respondent in A.S. No.70 of 2006 on
the file of the Subordinate Judge, Nilgiris, Udagamandalam.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeal would also be indicated.
3. The case of the plaintiff in nutshell:
The respondent/plaintiff, filed the suit in O.S.No.12/1994 for
recovery of possession of the suit property morefully described in the
plaint schedule as a land measuring one acre in old Survey No.12/5 and
new Survey No.778/1 of Gudalur village, Nilgiris District, and a house in
Survey No.12/341 of Gudalur Town Panchayat, within the boundaries
stated therein. The case of the plaintiff is that the suit property was
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S.A.No.721 of 2007 & M.P. No.1 of 2007
originally owned by her husband and he, during his life time, executed a
Will in favour of the plaintiff and the same was also registered on
12.02.1978. According to the plaintiff, the defendant who does not have
any right over the suit property, partially demolished the house and also
trespassed into the suit property. Hence, she filed the suit seeking for the
relief of recovery of possession of the suit property.
4. The suit was resisted by the defendant on the following
grounds:
i. The plaintiff's husband never executed a registered Will in favour
of the plaintiff.
ii. The defendant purchased the land from the son of the plaintiff
through a registered sale deed dated 15.08.1988 (Ex.B4)
iii. The defendant also constructed a house in the suit property and the
plaintiff who was keeping quiet all these years, is estopped from
contending that she is the owner of the suit property.
iv. Since the plaintiff has no title over the suit property, the suit filed
by the plaintiff is liable to be dismissed.
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S.A.No.721 of 2007 & M.P. No.1 of 2007
5. On the basis of the above pleadings, the the trial court
framed the following issues:
i. Whether the plaintiff has right over the suit property through the
Will?
ii. Whether the defendant has right over the suit property through the
sale deed?
iii. Whether the plaintiff is entitled for the relief as prayed for by her?
6. After full full contest, the learned District Munsif, Gudalur,
dismissed the suit vide his decree and judgment dated 27.06.2006.
Aggrieved over the same, the plaintiff filed an appeal in A.S. No.70/2006
before the Subordinate Judge, Nilgiris, Udagamandalam. The learned
Subordinate Judge, after analysing the oral and documentary evidence
adduced on both sides, allowed the appeal vide his decree and judgment
dated 08.03.2007 and set aside the decree and judgment passed by the
trial court.
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S.A.No.721 of 2007 & M.P. No.1 of 2007
7. Now the present second appeal is filed by the defendant on
the following substantial questions of law.
1) Whether the lower appellate court is justified in rejecting the Sale
deed which is marked as Ex.B4 in favour of the
appellant/defendant by invoking Section 15 of the Gudalur
Janmam Estate (Abolition and conversion into Ryotwari) Act,
1969 and at the same time accepting the Will which is marked as
Ex.A1 in favour of the respondent/plaintiff which will also be a
transfer hit by the very same provisions of Section 15 of the Act.
2) Whether the first appellate court is justified in relying upon the
evidence of PW1, who is the Power of Attorney of the
respondent/plaintiff, who can never depose in favour of his
principal as a witness as held by the Apex Court, which is reported
in Janaki Vashdeo Bhojwani and another vs. Indusind Bank
Ltd., and others [(2205) 2 SCC 217].
3) Whether the first appellate court is justified in relying upon the
Will, which is marked as Ex.A1 by the respondent/plaintiff, and
thereby not testifying the abovesaid document in the teeth of the
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S.A.No.721 of 2007 & M.P. No.1 of 2007
provisions as contemplated under the Indian Evidence Act, Section
68 read with Section 63 of the Indian Succession Act.
4) Whether the first appellate court is justified by relying upon the
provisions of Gudalur Janmam Estate (Abolition and conversion
into Ryotwari) Act, 1969, even though the respondent/plaintiff has
not pleaded any relief under the abovesaid Act.
8. Heard Mr. Rathina Asohan, learned counsel for the
appellant. There is no representation on behalf of the respondents when
this matter is posted today for the appearance of the respondents.
9. Mr. Rathina Asohan, learned counsel appearing for the
appellant/defendant contended that the first appellate court allowed the
appeal on the ground that the present appellant/defendant cannot
purchase the property from the son of the plaintiff since the plaintiff was
given only a life estate in respect of the suit property as per the Will
(Ex.A1). His further contention is that during the pendency of the present
Second Appeal, the plaintiff died and her legal heirs who were impleaded
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S.A.No.721 of 2007 & M.P. No.1 of 2007
as respondents 2 to 4 cannot claim for recovery of possession of the suit
property since as per the Will (Ex.A1) dated 12.02.1978, the plaintiff had
only life estate. In view of the same, the Second Appeal is allowed.
10. In the result,
i. the second appeal is allowed. No costs. consequently
connected miscellaneous petition is closed.
ii. The decree and judgment dated 08.03.2007 passed in
A.S. No.70 of 2006, on the file of the Subordinate
Judge, Nilgiris, Udagamandalam, is set aside.
iii. The suit filed by the respondent/plaintiff in O.S. No.
12 of 1994 on the file of the District Munsif, Gudalur,
is dismissed.
02.03.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
https://www.mhc.tn.gov.in/judis
S.A.No.721 of 2007 & M.P. No.1 of 2007
R. HEMALATHA, J.
bga
To
1. The Subordinate Judge, Nilgiris, Udagamandalam.
2. The District Munsif, Gudalur.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.721 of 2007 &
M.P. No.1 of 2007
02.03.2023
https://www.mhc.tn.gov.in/judis
