Aggrieved over the judgment and decree, dated 12.02.2010, passed in A.S.No.164 of 2009, by the learned Principal Sub Judge, Madurai, the appellants herein, who are the respondents 2 and 10 in the said appeal has filed this second appeal praying to set aside the judgment and decree passed by the learned Principal Sub Judge, Madurai.
2. In earlier, the deceased appellant/plaintiff, Meena filed an original suit in O.S.No.1611 of 2004 on the file of the learned Principal District Munsif, Madurai, and seeking the relief of injunction simpliciter restraining the defendants and his agents from interfering http://www.judis.nic.in 3 with her peaceful possession and enjoyment of the suit schedule property and for costs.
3. The learned Principal District Munsif, Madurai, by the judgment dated 07.09.2009, granted a decree in favour of the plaintiff. Aggrieved over the said findings, the respondents herein filed an appeal in A.S.No.164 of 2009 before the learned Principal Sub Judge, Madurai. After elaborate enquiry, by the judgment and decree, dated 12.02.2010, the learned Principal Sub Judge, Madurai, has allowed the appeal and set aside the findings arrived by the learned Principal District Munsif, Madurai, by holding that the plaintiff is not having any title over the suit schedule property. Aggrieved by the same, the appellant/plaintiff is before this Court with this second appeal. After the demise of the plaintiff-Meena, R2 and R7 in this appeal have been transposed as appellants 2 and 3 herein.
4. For the sake of convenience, the parties are referred to as, as described before the Court below.
5. The averments made in the plaint, in brief, are as follows: All the suit schedule properties are the absolute properties of one Azhagu Moopanar, husband of the plaintiff. In earlier, the said http://www.judis.nic.in 4 Azhagu Moopanar was employed in the company of M/s.Madura Coats Pvt. Ltd., Madurai. He purchased all the suit properties through the income derived from the said employment in the years, viz., 1955, 1969, 1972, 1975, 1976, 1977, 1980, 1981 and 1982. Eversince from the date of purchase, he was in possession and enjoyment of the suit schedule property without any hindrance from anywhere. Mutations were effected in the revenue records in favour of the said Azhagu Moopanar.
6. Through the Will dated 09.01.1995, the said Azhagu Moopanar bequeathed the entire suit schedule properties in favour of the plaintiff-Meena, with a condition to hand over the said properties to one Puliammal, who is the adopted daughter of Alagu Moopanar. In fact, the said Puliammal is the daughter of one Gopal, who is the brother of the deceased Azhagu Moopanar. Since the said Azhagu Moopanar is not having any issues, he adopted the said Puliammal as his daughter. Thereafter on 11.06.1999, the said Azhagu Moopanar passed away. Immediately, the Will came into effect.
7. The first defendant-Periyakkal is the first wife of Late Azhagu Moopanar. She is not having any issues. Through the settlement deed, dated 17.06.1959, she permitted the said Azhagu Moopanar for second marriage. The second defendant is nothing but the adopted http://www.judis.nic.in 5 daughter of the plaintiff and Late Azhagu Moopanar. Except the plaintiff, no one is having right over the title and enjoyment of the suit schedule properties. After the demise of the plaintiff-Meena, the second defendant has to enjoy the suit schedule properties in the capacity of the guardian to her son Balamurugan. Since 7 to 9 defendants have purchased a portion of the suit schedule properties, they were added as parties. As of now, all the defendants are attempting to interfere with the peaceful possession of the plaintiff. Hence, the suit.
8. The averments made in the written statement filed on behalf of the first defendant are as follows:
The plaintiff is not the wife of Late Azhagu Moopanar. This defendant was given in marriage with the said Azhagu Moopanar about 50 years back. For the purchase of the suit schedule properties, this defendant gave her gold ornaments to her husband. By utilising the same, all the properties were purchased by the said Azhagu Moopanar. The plaintiff is the wife of one Karadi @ Azagar, who is the brother of the said Azhagu Moopanar. The alleged Will now stated by the plaintiff is not a genuine one. In the year of 1995, the said Azhagu Moopanar was not in a sound and disposing state of mind. At that time, due to paralytic attack, he was admitted in Thempavani Hospital at Madurai. It is, therefore, clear that the alleged Will is a http://www.judis.nic.in 6 fabricated one. The said Azhagu Moopanar has never adopted the second defendant as his daughter. It is fraudulent to state that the plaintiff is in the possession and enjoyment of the suit properties. On 11.06.1999, the said Azhagu Moopanar was died, after leaving the first defendant-Periyakkal as his sole legal heir to succeed the estate left behind him. The first defendant submitted a petition to the Tahsildar, Madurai North Taluk, for transferring the patta in her name and the same was favourably considered in her name. Thereafter, the first defendant alone is doing cultivation in the suit properties. She never gave any consent to the said Azhagu Moopanar for second marriage. The suit filed by the plaintiff is liable for dismissal.
9. The averments made in the written statement filed by the defendants 7, 8 and 9 are as follows:
The plaintiff has no locus standi to file the suit for permanent injunction. The 7th defendant, without knowing the Court proceedings, purchased the plaint item Nos.7,10,11 and 12 from the first defendant for valuable consideration under the sale deed dated 14.10.1999. Likewise, the 8th defendant has purchased the plaint item Nos.3 and 8 landed properties. The 9th defendant has also purchased the plaint item Nos.5 and 6 from the first defendant. The first defendant had not whispered anything regarding those Court proceedings at any point of http://www.judis.nic.in 7 time. As far as their knowledge, the first defendant is in the possession and enjoyment of the suit properties. The first defendant by saying that her husband, Azhagu Moopanar died intestate and since they have no issues, the first defendant, being the wife of the Azhagu Moopanar, sold the properties and therefore, these defendants have purchased the suit properties from the bonafide vendor. In fact, there is no marriage at all between the plaintiff- Meena and Azhagu Moopanar. The contents of the Will, dated 09.01.1995, is a fabricated one. Hence, the defendants 7, 8 and 9 are bonafide purchasers.
10. Based on the above pleadings, the learned Principal District Munsif, Madurai, had framed necessary issues and tried the suit.
11.Before the trial Court, during the trial, the plaintiff examined herself as PW1. She examined two other witnesses as PW2 and PW3 and marked 38 documents as Ex.A1 to Ex.A38. On the side of the defendants, the 8th defendant examined himself as DW1 and one Thangam examined as DW2. Further, the defendants marked 4 documents as Ex.B1 to Ex.B4.
12. Having considered all the above, the learned Principal District Munsif, Madurai, came to the conclusion that the suit http://www.judis.nic.in 8 schedule properties are in the possession and enjoyment of the plaintiff and ultimately, granted the relief of injunction in favour of the plaintiff.
13. In the appeal, the said finding was set aside by the learned Principal Sub Judge, Madurai. Feeling aggrieved by the same, the plaintiff filed the present second appeal.
14. In the said circumstances, at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
“1. Whether the lower Appellate Court is right in dismissing the suit when the appellant claimed title under the Will, Ex.A.18 and the testator died on 11.06.1999 and the suit was filed within a months time and the Will is not disputed?
2. Whether the Lower Appellate Court is right in dismissing the suit when title is proved by the appellants and possession follows title?”
15. Substantial Questions of Law Nos.1 and 2:
The suit pertaining to this appeal was filed by one Meena, who is alleged to be the wife of the deceased Azhagu Moopanar. After the http://www.judis.nic.in 9 disposal of the suit, by the trial Court as well as the appeal by the First Appellate Court, during the time of pending this appeal, the said Meena was died. Further, it is alleged on the side of the plaintiff before the trial Court as one Puliammal, who is the second defendant, is the adopted daughter of the plaintiff and the Azhagu Moopanar. Further, it is alleged that the 10th defendant Balamurugan is the son of the above said Puliammal. So, based on the application filed in M.P.No.2 of 2014 in this second appeal, the second and seventh respondents in this appeal are transposed as second and third appellants, since they are alleged to be the legal heirs of the deceased appellant Meena.
16. It is the specific case of the plaintiff-Meena that she is the wife of the deceased Azhagu Moopanar. Further, as per the Will dated 09.01.1995 (Ex.A.18), the said Azhagu Moopanar bequeathed the entire suit schedule properties in favour of the deceased Meena. Further, the said Will provided only the life-estate right to the said Meena. It is observed from the recitals found in the said Will (Ex.A.
18) that the said Azhagu Moopanar bequeathed the entire suit properties in favour of the third appellant herein, namely, Balamurugan, after the demise of the said Meena. Only in accordance with the above condition, being the guardian of the third appellant, the second appellant proceeded with this appeal. Hence, both of them http://www.judis.nic.in 10 are transposed as second and third appellants in this second appeal.
17. It is admitted on either side that the suit properties are the self-acquired properties of Late Azhagu Moopanar.
18. In the said circumstances, the learned counsel appearing for the appellants would submit that the deceased Azhagu Moopanar, in sound state of mind, executed the Will in favour of his wife-Meena. Further, it is stated on the side of the plaintiff that after the demise of the said Meena, the second and third appellants herein are entitled the suit properties.
19. On the other hand, the contention made by the learned counsel appearing for the defendants that Meena, who is alleged to be the wife of the said Azhagu Moopanar was no way having the relationship with the said Azhagu Moopanar as his wife. In fact, she is the wife of one Karadi @ Azhagar, who is the brother of the said Azhagu Moopanar. Further, it is the case of the defendants that Puliammal is not the adopted daughter of Azhagu Moopanar. There is no blood relationship between the appellants and Azhagu Moopanar. The first defendant in the suit, namely, Periyakkal, is the only wife of Azhagu Moopanar, thereby, after the demise of Azhagu Moopanar, she alone inherited the suit properties as the sole legal heir of the http://www.judis.nic.in 11 deceased Azhagu Moopanar. In other words, since the said Azhagu Moopanar did not have any heirs, the defendants 7 to 9 purchased suit properties from the first defendant Periyakkal. Further, from the date of purchase, the defendants 7 to 9 are in the possession of the suit schedule properties.
20. Since the relationship between the said Azhagu Moopanar and the plaintiff Meena, the second and third appellants-Puliammal and Balamurugan was denied on the side of the defendants, it is necessary to verify whether those persons are related to Azhagu Moopanar as alleged by them.
21. In this regard, before the trial Court, the settlement deed, dated 17.06.1959, executed by the first defendant-Periyakkal was marked as Ex.A.1. As per the said document, after retaining some immovable property in her favour, she had given consent to Azhagu Moopanar for second marriage. However, at the time of giving evidence, the genuinety of the said document was disputed on the side of the defendants. In the said circumstances, even though, the defendants raised objection to the said document since the document (Ex.A1-settlement deed) was registered one, it will create a prima facie case in favour of the appellants in this regard. Secondly, during the time of giving evidence as PW.1, the deceased Meena has http://www.judis.nic.in 12 admitted that with respect to her marriage with Azhagu Moopanar, no document is available. Further, she has stated before the trial Court as for adopting the third appellant as her son, no document is available. She has subsequently stated that the deceased Azhagu Moopanar orally took the third appellant as his adopted son.
22. In this regard, it is to be noted that since it is admitted on either side that the suit properties are the self acquired properties of the said Azhagu Moopanar, it is not necessary to the plaintiff to prove her relationship with Azhagu Moopanar. The deceased Azhagu Moopanar was having every right to alienate the said properties as per his will. So, it is not necessary for this Court to decide whether the deceased Meena is the wife of Azhagu Moopanar and also the second appellant is his adopted daughter or not.
23. It is the case of the plaintiff that the deceased Azhagu Moopanar bequeathed the entire suit properties through the registered Will, dated 09.01.1995. The said document was marked before the trial Court as Ex.A.18. Before the trial Court, in order to prove the same, the persons, who attested in the said Will have been examined as PW2 and PW3. The trial Court, while, at the time of disposing the suit, has carefully considered the evidence and came to the conclusion that the Will was proved under Section 63 of the http://www.judis.nic.in 13 Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872. But in the first Appellate Court, the learned Principal Sub Judge, Madurai came to the conclusion that since the suit is filed for the relief of injunction, proving the Will is unnecessary and thereby only possession has to be proved for considering the relief prayed by the plaintiff. In other words, the first Appellate Court has not entered into the findings arrived at by the trial Court with respect to proving of the Will. In this regard, it is to be noted that the first Appellate Court did not follow the principle that title follows the possession and came to the conclusion that it is necessary as who prayed the relief of injunction is to prove that the properties in dispute are in her possession. Further, it is necessary for the Courts below to make sure that the said relief is not against the true owner of the suit properties.
24. Accordingly, for deciding the said issue as to whether the first defendant Periyakkal, who is the first wife of Azhagu Moopanar, is the legal heir of the deceased Azhagu Moopanar or as per the Will, whether the plaintiff-Meena is the owner of the suit properties, proving the Will is very much necessary. In this regard, on going through the evidence given by PW2 and PW3, it is seen that they have categorically stated about the place in which the Will was prepared and about the person, who prepared the said Will. Moreover, both of them have specifically stated as only in their presence, the said http://www.judis.nic.in 14 Azhagu Moopanar put his signature in the said Will. In other words, in order to shake the credibility of the said Will, no contra evidence is available from the evidence let in on the side of the defendants. More than that, when, at the time of giving evidence as DW1, the 8th defendant has himself admitted in his cross examination as follows:
@mHFK:g;gdhh; vGjpitj;j capypd;go 10k; gpujpthjp ikdh; ghyKUfDf;F jhthr; brhj;jpypUe;J chpik Vw;gl;oUf;fpwJ vd;W brhd;dhy; rhpjhd;/@
25. The said admission made by the 8th defendant itself makes it clear that the Will alleged to be executed by Azhagu Moopanar was admitted as genuine on the side of the defendants.
26. Therefore, as already pointed out by the learned counsel for the appellants that the said Azhagu Moopanar was having every right to alienate the suit properties, since the same was his self acquired properties.
27. It is further to be noted that the sale deeds executed in favour of Azhagu Moopanar at the time when he purchased the suit properties were marked as Ex.A2 to Ex.A8. In the said circumstances, if the case of the defendants that the plaintiff is noway related to the said Azhagu Moopanar is true one, definitely, after the demise of the http://www.judis.nic.in 15 said Azhagu Moopanar, all the documents (Ex.A2 to Ex.A8) would have gone to the hands of the first defendant, who is the vendor to the defendants 7 to 9. But in this case, no such things had happened and only the plaintiff-Meena has produced the said documents and marked the same as Exhibits. So, the said situation is another one situation to support the case of the plaintiff. Further, before the trial Court, Chitta extract with respect to the suit properties have been marked as Ex.A10 to Ex.A17. The entries made in the said documents reflect that all the properties stands in the name of Azhagu Moopanar.
28. Since the suit has been filed within one month from the date of death of the said Azhagu Moopanar, we cannot expect that the revenue records are necessarily is in the name of the plaintiff-Meena. Furthermore, it is also admitted on the side of the defendant that before filing the suit by the plaintiff, the first defendant-Periyakkal filed a suit for the relief of permanent injunction against the plaintiff and others and the same was dismissed for default. The said details are available from the documents marked as Ex.A20, A21 and A22. In other words, the suit filed in O.S.No.928 of 1999 on the file of the learned Sub Judge, Madurai, by one Subramaniam, who is the purchaser is no way connected with the case in our hand. http://www.judis.nic.in 16
29. While, at the time of disposing the appeal filed by the 8th defendant, the first Appellate Court allowed the appeal mainly for the reason that the plaintiff has not proved her possession and therefore, she is not entitled to the relief of injunction. Further, for the reasons that the suit has been filed for the relief of injunction without asking the relief of declaration.
30. In this regard, it is true, if a cloud over the title was indicated on the side of the defendants, necessarily, the plaintiff has to ask the relief of declaration. In this case, it is true, in the written statement itself, the title held by the plaintiff has been denied on the side of the defendants. However, it is to be noted, as already stated, the possession of title documents in respect to the suit properties with the plaintiff alone proved the prima facie case that the properties are in the hands of the plaintiff. More than that, the defendants 7 to 9 have purchased the properties from the first defendant between the period of 1976 to 1982. If really they have purchased the properties with bonafied intention, necessarily, they would have filed an application before the revenue authority to change the patta in their name. But, here is the case, where the order passed by the Revenue Authority in changing the name of the first defendant in the revenue records has also been set aside as per Ex.A33. Thereafter, the same has been confirmed by this Court, vide http://www.judis.nic.in 17 order, dated 22.11.2006 in W.P.No.9040 of 2004. Further the suit has been filed in the year 1999, ie., after 17 years from the date of purchase made by the defendants.
31. Further during the pendency of the appeal, the first defendant-Periyakkal through sale deed Ex.B2 and Ex.B3, sold out the properties in favour of the 8th defendant. In the same circumstances, after the disposal of the first appeal, the plaintiff-Meena has also died. In the meanwhile, the third appellant-Balamurugan attained majority and after passing orders in M.P.No.2 of 2014, both the respondents 2 and 7 have been styled as second and third appellants. Now, as per the Will executed by Azhagu Moopanar, both of them become the title holder of the said properties.
32. In the said circumstances, since the tile itself is disputed on the side of the defendants, it is easy for the appellants to amend the plaint for the relief of declaration. If the suit is amended for the relief of declaration, necessarily, the alleged Will executed by the said Azhagu Moopanar will come into picture. As already pointed out in earlier paragraphs, the evidence of PW1 is not sufficient to accept Ex.A.18(Will) is a genuine one. If the suit is for the relief of declaration, necessarily, both the Courts below are having the duty to http://www.judis.nic.in 18 analyse the validity of the Will and answer the same. But, in this case, the issue in respect to the genuinety of the Will was discussed by the trial Court without framing any issues. The first Appellate Court has pointed out the said discrepancies and then only allowed the appeal. Accordingly, we are also not in a position to accept the contention raised by the appellants that without any issue, answering the specific question raised by the trial Court cannot be looked into. Accordingly, as of now, since the original plaintiff-Meena is no more, the appellants have to necessarily ask the relief of declaration. Further, since the said Meena was died during the pendency of the second appeal, it is necessary to give an opportunity to the appellants to file the suit for declaration in respect to the suit schedule properties. Eventhough the principle title follows possession is necessary to decide this appeal, without framing necessary issues with respect to the title by the Courts below, we cannot follow the said principle to the case in our hand. Therefore, the Substantial Questions of Law 1 and 2 are answered in favour of the respondents/ defendants.
33. In fine, the appeal is dismissed with liberty to file a fresh suit on the basis of the same cause of action, if so advised for http://www.judis.nic.in 19 the appropriate relief, within a period of two months from the date of receipt of a copy of this judgment. No costs.
26.06.2019 Index : Yes/No Internet: Yes/No PJL To
1. The Principal Sub Judge, Madurai.
2. The Principal District Munsif, Madurai.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 20 R.PONGIAPPAN, J.
PJL Pre-delivery Judgment made in S.A.No.234 of 2010 26.06.2019 http://www.judis.nic.in