Vanitha Robert vs Vinoo Austin
2023 Latest Caselaw 13106 Mad

                                                                              C.R.P.(MD).No.2104 of 2018


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 25.09.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE C.KUMARAPPAN

                                           C.R.P.(PD)(MD)No.2104 of 2018
                                                        and
                                             C.M.P(MD) No.9280 of 2018


                     Vanitha Robert                                       ... Petitioner/Petitioner/
                                                                              Defendant

                                                          -vs-
                     1. Vinoo Austin
                     2. Ravi Austin                                   ... Respondents/Respondents/
                                                                         Plaintiffs

                     PRAYER: Civil Revision Petition is filed under Article 227 of the
                     Constitution of India, against the fair and decreetal order dated 21.06.2018
                     made in I.A.No.285 of 2017 in O.S.No.121 of 2016 on the file of the
                     I Additional District Court (PCR), Tiruchirapalli.


                                        For Petitioner     : Mr.A.Arumugam
                                                             for M/S.Ajmal Khan Associates


                                        For Respondents : Mrs.J.Maria Roselin




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https://www.mhc.tn.gov.in/judis
                                                                                C.R.P.(MD).No.2104 of 2018




                                                            ORDER

The instant Civil Revision Petition is filed under Article 227 of the

Constitution of India, against the fair and decreetal order dated 21.06.2018

made in I.A.No.285 of 2017 in O.S.No.121 of 2016 on the file of the

I Additional District Court (PCR), Tiruchirapalli.

2. The learned Senior Counsel appearing for the petitioner would

vehemently contend that in respect of the succession among the Christians,

there is no doctrine of joint family and the concept of undivided family

property, whereas, in the plaint in respect of the second item of the property,

the plaintiffs took a specific ground that though the property stands in the

name of their mother, namely, Mrs.Sarala Austin, they took a specific defence

that the property is a joint family property. The learned Senior Counsel would

contend that such an argument is alien to the Christian succession. Therefore,

he would submit that the very plaint is barred under law. In support of his

case, the learned Senior Counsel has also relied upon the following

judgements:

https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2104 of 2018

(i) 2016 SCC online Mad 12885 (S.Jesuraj vs.M.A.R Sathiyagu and three others),

(ii) 2019 SCC Online Mad 28035 (Lourthunathan Vs.Pathinathan and others)

(iii) 2014 (10) SCC 731 (Lalitha Theresa Sequeria (since died) by legal representatives Vs. Dolfya Pias Alias Adolphys Joseph Pais and another)

Where, it has been held that the joint family concept is alien to the

Christianity Religion.

3. Per contra, the learned counsel appearing for the respondents would

vehemently submit that, in their plaint, apart from the concept of joint family,

they seriously challenged the very execution of the settlement deed and has

contended that the mother qua the settlor was not hale and healthy and she

was in her advanced age, and that there is serious doubt in respect of the very

execution of the settlement. Therefore, she would submit that, when the very

execution of settlement is under challenge, automatically, they are entitled to

have their share in the item No.2 of the property. The learned counsel for the

respondents has also relied upon the two judgments reported in 2002 0

Supreme (SC) 1259 (Saleem Bhai and others Vs. State of Maharashtra and

others) and (2020) 17 (SCC) 260 (Shakti Bhog Food Industries Limited Vs.

https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2104 of 2018

Central Bank of India and another) and would vehemently submit that

whenever an application is being considered under Order 7 Rule 11 of C.P.C,

it is the duty of the Court to only see the plaint averments. This Court is in

full agreement with the submissions made by the learned counsel for the

respondents.

4. While perusing the paragraph No.18 of the plaint, apart from the

other ground, the plaintiff has raised the very pertinent issue in respect of

challenging the very execution of the settlement deed. Therefore, in such an

event, this Court is of the view that the prayer sought for in respect of the

item No.2 of the property cannot be held to be barred under law.

5. Therefore in view of the above discussion, this Court is of the view

that the findings recorded by the Court below is liable to be confirmed.

https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2104 of 2018

6. In the result, this Civil Revision Petition is dismissed. There shall be

no order as to costs. Consequently connected Miscellaneous Petition is

closed.

                                                                                                 25.09.2023
                     NCC      : Yes/No                                                               1/2
                     Index    : Yes / No
                     Internet : Yes / No
                     ebsi

                     To

1. The 1 Additional District Court (PCR), Tiruchirapalli.

https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2104 of 2018

C.KUMARAPPAN,J.

ebsi

C.R.P(PD)(MD)No.2104 of 2018

25.09.2023

https://www.mhc.tn.gov.in/judis