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Wednesday, April 2, 2014

Suit for eviction by way of Mandatory injunction - vs- partition suit - Property of sister - claim by legal heirs of brother - sister suit was decreed and claim by legal heirs of brother partition suit was dismissed - pending appeal sister died - she executed 3 will deeds - appellant added as legal heir of deceased sister - 3 Will deeds not proved yet - whether the appellant can get the fruits of the said decree and is competent to file the execution or not would depend upon her proving that she has inherited the suit property and is the sole owner thereof. - Apex court held that we set aside that part of the judgment vide which appeal has been allowed partly and the parties are directed to file fresh suit with regard to the title over the suit property as stated in Paras 14 to 16 of the said impugned judgment.While setting aside that portion, we substitute it by the following directions: The Appeal No. 1175/2004 filed by the respondents before the High Court stands dismissed. At the same time the question as to who is the successor in interest of the deceased Jagadambal is left open as that was not the scope of the proceedings. It would be open to the appellant to claim that she has inherited the entire property, by filing execution of the said decree or by filing fresh suit, which ever is permissible in law. In those proceedings or independently it would be open to the respondents also to stake their claim of inheritance on the basis of succession or otherwise. Needless to mention, since there are three wills of the deceased Jagadambal, it would be for the court in appropriate proceedings, to determine as to which will is genuine and determine the rights of the person as per the will found to be genuine. and allowed The appeal = Gowri …....... Appellant (s) Versus Shanthi and Anr. ….......Respondent= 2014 (March. Part ) http://judis.nic.in/supremecourt/filename=41368

   Suit for eviction by way of Mandatory injunction - vs- partition suit - Property of sister - claim by legal heirs of brother - sister suit was decreed and claim by legal heirs of brother partition suit was dismissed - pending appeal sister died - she executed 3 will deeds - appellant added as legal heir of deceased sister - 3 Will deeds not proved yet - whether the appellant can get the  fruits of the said decree and is competent to file the execution or not  would depend upon her proving that she has inherited the suit property and is the sole owner thereof. - Apex court held that we set aside that  part  of the judgment vide which appeal has been allowed partly and the  parties are directed to file fresh suit with regard to the title over the  suit property as stated in Paras 14 to 16 of  the  said  impugned  judgment.While setting aside that portion, we substitute  it  by  the  following directions: The Appeal No. 1175/2004 filed by  the  respondents  before  the High Court stands dismissed. At the same time the question as to who is the successor in interest of the deceased Jagadambal is  left  open  as that was not the scope of the proceedings. 
It  would  be  open  to  the  appellant to claim that she  has  inherited  the  entire  property,  by filing execution of the said decree or by filing fresh suit, which ever
is permissible in law. In those proceedings or independently  it  would be open to the respondents also to stake their claim of inheritance  on the basis of succession or otherwise. Needless to mention, since  there are three wills of the deceased Jagadambal, it would be for  the  court in appropriate proceedings, to determine as to which  will  is  genuine and determine the rights of the person as per  the  will  found  to  be genuine. and allowed  The appeal =


1.     Whether Ex. A12 has been  issued  in  favour  of  the
                plaintiff or not?


                2.     Whether the second defendant had got the  title  over
                the suit property in term of Ex. A1?


           It is not in dispute  that  Chidambaram  has  one  son  and  one
           daughter namely the plaintiff's  father  Sundaramurthy  and  the
           second defendant. The suit property is  the  ancestral  property
           which has been evident from Ex. A1, settlement deed executed  by
           the Sundaramurthy in favour of the second defendant. It is  also
           clear that the Sundaramurthy executed a lease deed at first  and
           on that basis became the owner of the property  and  hence,  the
           superstructure alone belongs to the plaintiff's  father  and  in
           turn he has executed a settlement deed in favour of  the  second
           defendant. Ex. B6, sale deed which  has  been  executed  by  the
           temple  authorities  in  favour  of  the  second  defendant   on
           31.3.1950 would made clear that the property has been  purchased
           by  the  second  defendant  after  the  settlement   deed.   The
           subsequent payment of rist and receipts would show that she  has
           been continuously enjoying the property on her own.  As  rightly
           contented by the learned Counsel  for  the  respondents,  it  is
           evident from Exs. B7, 15, 16 and 20 that the property  has  been
           mortgaged by the  second  defendant  and  she  has  subsequently
           discharged the same. Hence, the second defendant  has  exercised
           the  right  over  the  suit  property.  Therefore,  from   these
           documents it has  been  clearly  proved  that  the  property  in
           question  after  the  settlement  deed  was  in  possession  and
           enjoyment of the second defendant. Therefore, I am of  the  view
           that the contention raised by the appellant in this  regard  has
           to be rejected”.


    14.    Even after the service of the notice upon the  respondent  twice
    in this case none has appeared on their behalf. In these  circumstances
    we had no option but to hear the Counsel for  the  appellant  only.  We
    have also perused the record.
    15.    From the narration of events and the findings of  the  Court  as
    noted above, the admitted position which  emerges  on  record  is  that
    Settlement Deed dated 25.4.1949 executed by Sundaramurthy in favour  of
    his sister Jagadambal is found to be genuine. The Courts have  rejected
    the challenge of the respondents to  the  said  settlement  deed.  This
    finding has become final. Another finding which has  attained  finality
    is that Jagadambal had subsequently purchased  the  leasehold  property
    from the temple authorities and had become the absolute  and  exclusive
    owner of the suit property. There is thus, no question  of  inheritance
    of this property by the  respondents  as  daughters  of  Sundaramurthy.
    Since Jagadambal was found to be the absolute owner  of  the  property,
    the possession of the part of this property with the respondents has to
    be permissive as rightly found by the Trial Court. It is not their case
    that they were inducted as tenants or in any other capacity which would
    confer upon them any right to stay therein. On the contrary,  the  case
    put up by them was that they are entitled to  inherit  one-third  share
    each in the said property by virtue of succession which is found to  be
    a baseless scheme. On these facts, we are of the opinion that the trial
    court was right in passing the decree of mandatory injunction in a suit
    which was filed by Jagadambal. The lis was between Jagadambal  and  the
    respondents. It  is  only  when  during  the  pendency  of  the  appeal
    Jagadambal died,  the  present  appellant  was  brought  on  record  in
    substitution of the deceased as her legal heir. In the appeal the  High
    Court was concerned with the validity of the judgment and decree passed
    by  the  Trial  Court  wherein  Jagadambal  was  the  plaintiff.  After
    dismissal of appeal i.e. A.S. No. 1173 of 2004 on 24.8.2011,  the  High
    Court should have dismissed other appeal i.e. A.S. No. 1175 of 2004  as
    well. Inter se rights of the appellant herein  as  the  respondents  as
    sisters was neither an issue before the High  Court  nor  could  it  be
    dealt with. Notwithstanding the above, we find that the High Court  has
    relegated parties to fresh proceedings on the premise that there  is  a
    dispute over the title and  that  needs  to  be  determined  for  which
    appropriate suit needs to be filed.  These  observations  of  the  High
    Court that there is a dispute over the title is clearly erroneous.
    16.    So far so good. It would mean that the suit which was decreed by
    the Trial Court in favour of Jagadambal was  rightly  decreed  and  the
    High Court could not have upset the decree, more particularly  when  it
    had dismissed another appeal of the respondents i.e. A.S. No.  1173  of
    2004 vide judgment dated 24.8.2011 holding that  sale  deed  which  had
    been executed by the temple authorities in  favour  of   Jagadambal  on
    31.3.1950 was valid and Jagadambal had become the absolute owner of the
    property. Thus, she had a right to file suit for  mandatory  injunction
    seeking  to  evict  the  respondents  herein  who  were  in  permissive
    possession. However, Jagadambal has since passed away and the  question
    of inheritance of the property of Jagadambal is at large  and  has  not
    been decided in the instant proceedings. No  doubt,  on  the  death  of
    Jagadambal appellant herein was impleaded as her LR. However, that  may
    be because of the reason that the respondents who are  also  neices  of
    Jagadambal, were already on record.
    17.    Even when no fresh suit is required, the issue will still be  as
    to
whether the appellant has a right to execute the  decree  passed  in
    favour of deceased Jagadambal. 
It would depend  on  the  other  related
    question viz. who are the successor-in-interest  of  the  deceased  and
    whether the respondents also get share in the property  as  LR  of  the
    deceased. 
The appellant  is  claiming  to  be  the  sole  successor  in
    interest, who has inherited the property on  the  basis  of  some  will
    executed by Jagadambal in her favour. 
Here, the High Court has observed
    in the impugned judgment that the deceased had admittedly written three
    wills under different  circumstances  which  require  scrutiny  of  the
    Court. 
Nobody, has filed any suit for relief of  declaration.  This  is
    the  reason which has prompted the High Court to direct the parties  to
    file fresh suit with regard to title over the suit  property.  
However,
    we are of the view that for this reason appeal  should  not  have  been
    allowed as mentioned above.
The decree passed in favour  of  Jagadambal
    by the Trial Court was justified  and  the  appeal  of  the  respondent
    should have been dismissed affirming that decree.  
At  the  same  time,
    High Court could clarify that whether the appellant can get the  fruits
    of the said decree and is competent to file the execution or not  would
    depend upon her proving that she has inherited the suit property and is
    the sole owner thereof. 
This can be claimed  in  the  execution  or  by
    filing the fresh suit with regard to title over the said property, more
    so when there are three wills  purportedly  executed  by  the  deceased
    Jagadambal which has surfaced.
    18.    In view of our aforesaid discussion,
we set aside that  part  of
    the judgment vide which appeal has been allowed partly and the  parties
    are directed to file fresh suit with regard to the title over the  suit
    property as stated in Paras 14 to 16 of  the  said  impugned  judgment.
    
While setting aside that portion, we substitute  it  by  the  following
    directions: 

The Appeal No. 1175/2004 filed by  the  respondents  before  the
    High Court stands dismissed. 
At the same time the question as to who is
    the successor in interest of the deceased Jagadambal is  left  open  as
    that was not the scope of the proceedings. 
It  would  be  open  to  the
    appellant to claim that she  has  inherited  the  entire  property,  by
    filing execution of the said decree or by filing fresh suit, which ever
    is permissible in law. 
In those proceedings or independently  it  would
    be open to the respondents also to stake their claim of inheritance  on
    the basis of succession or otherwise. 
Needless to mention, since  there
    are three wills of the deceased Jagadambal, it would be for  the  court
    in appropriate proceedings, to determine as to which  will  is  genuine
    and determine the rights of the person as per  the  will  found  to  be
    genuine.
    20.    The appeal is allowed in the aforesaid terms. No costs.
2014 (March. Part ) http://judis.nic.in/supremecourt/filename=41368
SURINDER SINGH NIJJAR, A.K. SIKRI

                                                           NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 4245 / 2014
       [Arising out of Special Leave Petition (Civil) No. 259 of 2012]




    Gowri                                              …....... Appellant
    (s)


                                   Versus


    Shanthi and Anr.                                   ….......Respondent
    (s)


                               J U D G M E N T


    A.K. SIKRI, J.


 1. Leave granted.
 2. Before we narrate the  facts,  we  trace  out  below  the  relationship
    between the parties that would make it easier to understand the dispute
    which has arisen between them and is the subject matter of the  present
    appeal.
                                  CHIDAMBARAM












 3. As is clear from the above, Chidambaram  was  the  grandfather  of  the
    appellant  and  the  two  respondents.  The  appellant  and   the   two
    respondents i.e. all three of  them  are  the  daughters  of  Mr.  C.P.
    Sundaramurthy.
 4. Chidambaram had one son, viz. Sundaramurthy  and  one  daughter  namely
    Jagdambal. Admittedly, Chidambaram was having leasehold rights over one
    property situated in Door No. 11(Old No. 10) Karaneeswarar Koil Garden,
    2nd  Street, Saidapet, Chennai (hereinafter referred to  as  the  'Suit
    Property'). The owner of the said property was one  Trust,  managing  a
    temple,  which  had  given  the  suit  land  on  lease.  However,   Mr.
    Chidambaram had constructed superstructure thereupon with his own funds
    and was the owner thereof. He died much before year 1956 and as per the
    Hindu  Law  succession  prevalent  at  that  time,  on  his  death  the
    superstructure along with  leasehold  rights  over  the  suit  property
    vested with his son Mr. Sundaramurthy.
 5. According to the appellant, Sundaramurthy executed a Settlement Deed so
    as to transfer the superstructure along with the lease hold rights over
    the  property  in  favour  of  his  sister  Jagadambal  (the   original
    plaintiff). Subsequently, Jagadambal purchased the suit  property  from
    the temple authorities thereby becoming the  undisputed  owner  of  the
    said property. Jagadambal, being an old widow and without  any  issues,
    permitted the respondents, who  were  daughters  of  Sundaramurthy,  to
    reside in the front portion of the suit property. Prior  to  this,  the
    respondents were living in  their  respective  matrimonial  homes.  The
    behaviour of the respondents changed subsequent to moving into the suit
    property and they began to interfere  and  quarrel  with  the  tenants,
    apart from abusing Jagadambal, as a  result  of  which  Jagadambal  was
    forced to move out and stay with the appellant herein.
 6. Finally, being fed up with the behaviour of the respondents, Jagadambal
    called upon the respondents to vacate the suit property with all  their
    belongings, vide legal notice dated 9.11.1995. The respondents  replied
    to the said legal notice refuting the claim of Jagadambal.
 7. On the aforesaid averments, Jagadambal filed mandatory injunction  suit
    for possession i.e. O.S. No. 15814  of  1996  against  the  respondents
    before the City Civil Court, Chennai.
 8. This suit was contested by the respondents on the ground that they  had
    inherited  2/3rd  of  the  suit  property,   being   legal   heirs   of
    Sundaramurthy  and  the  so  called   Settlement   Deed   executed   by
    Sundaramurthy to transfer the suit property in favour of his sister was
    a sham document.  During  the  pendency  of  the  aforesaid  suit,  the
    respondents also filed suit for partition (i.e. O.S. No. 8637 of  1998)
    before the City Civil Court, Chennai stating that the suit property was
    ancestral property of their father Sundaramurthy  and  as  legal  heirs
    they had one-third share each in this property and the other one  third
    belonged to the appellant, being the third daughter.
 9. Both the suits were decided by the Trial  Court  vide  judgments  dated
    10.11.2003. The Trial Court was pleased to decree  O.S.  NO.  15814  of
    1996 in favour of Jagadambal entitling her to the relief  of  mandatory
    injunction to evict the respondents from the  suit  property.  It  was,
    inter alia, held that the entire right in respect of the suit  property
    devolved on Jagadambal through the Settlement Deed dated 25.4.1949  and
    the sale deed dated 31.3.1950; that  the  suit  property  is  owned  by
    Jagadambal alone; that  the  respondents  were  staying  in  the  front
    portion  as  per  the  permission  given  by  Jagadambal  and  due   to
    differences that arose between them, notice was sent to the respondents
    revoking the permission and, therefore, the respondents were liable  to
    vacate the suit property.
10. In so far as  Suit  Property  O.S.  No.  8637  of  1988  filed  by  the
    respondents is concerned, this was dismissed by the  Trial  Court.  The
    Trial Court did not accept the contention  of  the  respondents  herein
    that the  Settlement  Deed  was  a  sham  document.  Holding  the  said
    settlement deed to be a genuine document executed by Sundaramurthy, the
    Trial Court returned the finding that Jagadambal was the absolute owner
    of the property and, therefore, there was no question of  partition  of
    the suit property and giving the respondents 2/3rd share therein.
11. Aggrieved by the dismissal of O.S. No. 8637 of  1998,  the  respondents
    herein preferred A.S. No. 1173 of 2004. Aggrieved by the  judgment  and
    decree passed in  O.S.  NO.  15814  of  1996,  the  respondents  herein
    preferred A.S. No. 1175 of 2004. During the pendency of  the  aforesaid
    appeals, Jagadambal died. The respondents herein filed a  memo  stating
    that the appellant herein alone is the legal heir of Jagadambal. On the
    application of the respondents, the High Court was pleased  to  implead
    the appellant herein as the sole legal heir of the deceased Jagadambal.
    Both these appeals came up for consideration before the High Court  and
    were heard together. After hearing the parties A.S. No.  1173/2004  was
    dismissed by the High Court vide judgment dated 24.8.2011, inter  alia,
    holding that Ex. B6 sale deed which had been  executed  by  the  temple
    authorities in favour of Jagadambal on 31.3.1950 would  make  it  clear
    that the property had been purchased by Jagadambal after the settlement
    deed. The High Court also affirmed the finding of the Trial Court  that
    it had been clearly proved that the property  in  question,  after  the
    Settlement Deed, was in possession and enjoyment of Jagadambal.
12. The second appeal i.e. A.S. NO. 1175 of 2004 filed by  the  respondents
    against the decree passed by the Trial  Court  in  the  suit  filed  by
    Jagadambal has been partly allowed by  the  High  Court  vide  judgment
    dated 25.8.2011. Two appeals are decided by the same judge of the  High
    Court in quick succession.  In  the  second  appeal  preferred  by  the
    respondent which is allowed partly, the High Court has held that  there
    was no specific evidence to show that the property was  given  only  as
    permissive occupation and the same has been revoked by  the  respondent
    on a particular day and that since there is a dispute over  the  title,
    it is for the parties concerned to file appropriate  suit  and  in  the
    event of succeeding in that suit only, the appellant herein has a right
    to evict the respondents herein. It becomes clear from the  reading  of
    this judgment that in making such observations,  the  High  Court  went
    into the issue of the rights inter-se between the parties, as sister.
13. It is the submission of the appellant that  the  High  Court  has  lost
    sight of the fact that  the  appellant  herein  was  not  claiming  any
    independent right of her own and was impleaded as the sole  legal  heir
    of the deceased Jagadambal. In view of  the  fact  that  the  title  of
    Jagadambal has been upheld by the learned Trial Court as  well  as  the
    High Court in its judgment in A.S. No. 1173 of 2004 and in view of  the
    admission of the respondents herein that the appellant  herein  is  the
    sole legal heir of the deceased Jagadambal, the  appeal  filed  by  the
    respondents herein ought to have been dismissed. There was  no  further
    dispute regarding the title  as  the  same  had  been  decided  in  the
    parallel proceedings by the High Court itself. While so, the  direction
    of the High Court to the  appellant  to  file  a  fresh  suit  and  re-
    establish the admitted and already established right of  the  appellant
    herein is  erroneous  and  unsustainable.  Further,  there  is  also  a
    categorical finding of the learned trial  court  that  the  respondents
    were permitted to occupy the suit property and that the said permission
    was revoked by Jagadambal based on the material on  record.  Therefore,
    the finding of the High Court that there was no  specific  evidence  to
    show that the property was given  only  as  permissive  occupation  and
    terminated on a particular day, that too without any discussion of  the
    material on record or contentions in this regard, is totally  erroneous
    and contrary to the material on record and, therefore, liable to be set
    aside. In support of this submission learned Counsel for the  appellant
    referred to the following portion of judgment dated  24.8.20911  passed
    by the High Court in A.S. NO. 1173/2004.:
           “10. The points that arises for consideration in the appeal  are
           as follows:


                1.     Whether Ex. A12 has been  issued  in  favour  of  the
                plaintiff or not?


                2.     Whether the second defendant had got the  title  over
                the suit property in term of Ex. A1?


           It is not in dispute  that  Chidambaram  has  one  son  and  one
           daughter namely the plaintiff's  father  Sundaramurthy  and  the
           second defendant. The suit property is  the  ancestral  property
           which has been evident from Ex. A1, settlement deed executed  by
           the Sundaramurthy in favour of the second defendant. It is  also
           clear that the Sundaramurthy executed a lease deed at first  and
           on that basis became the owner of the property  and  hence,  the
           superstructure alone belongs to the plaintiff's  father  and  in
           turn he has executed a settlement deed in favour of  the  second
           defendant. Ex. B6, sale deed which  has  been  executed  by  the
           temple  authorities  in  favour  of  the  second  defendant   on
           31.3.1950 would made clear that the property has been  purchased
           by  the  second  defendant  after  the  settlement   deed.   The
           subsequent payment of rist and receipts would show that she  has
           been continuously enjoying the property on her own.  As  rightly
           contented by the learned Counsel  for  the  respondents,  it  is
           evident from Exs. B7, 15, 16 and 20 that the property  has  been
           mortgaged by the  second  defendant  and  she  has  subsequently
           discharged the same. Hence, the second defendant  has  exercised
           the  right  over  the  suit  property.  Therefore,  from   these
           documents it has  been  clearly  proved  that  the  property  in
           question  after  the  settlement  deed  was  in  possession  and
           enjoyment of the second defendant. Therefore, I am of  the  view
           that the contention raised by the appellant in this  regard  has
           to be rejected”.


    14.    Even after the service of the notice upon the  respondent  twice
    in this case none has appeared on their behalf. In these  circumstances
    we had no option but to hear the Counsel for  the  appellant  only.  We
    have also perused the record.
    15.    From the narration of events and the findings of  the  Court  as
    noted above, the admitted position which  emerges  on  record  is  that
    Settlement Deed dated 25.4.1949 executed by Sundaramurthy in favour  of
    his sister Jagadambal is found to be genuine. The Courts have  rejected
    the challenge of the respondents to  the  said  settlement  deed.  This
    finding has become final. Another finding which has  attained  finality
    is that Jagadambal had subsequently purchased  the  leasehold  property
    from the temple authorities and had become the absolute  and  exclusive
    owner of the suit property. There is thus, no question  of  inheritance
    of this property by the  respondents  as  daughters  of  Sundaramurthy.
    Since Jagadambal was found to be the absolute owner  of  the  property,
    the possession of the part of this property with the respondents has to
    be permissive as rightly found by the Trial Court. It is not their case
    that they were inducted as tenants or in any other capacity which would
    confer upon them any right to stay therein. On the contrary,  the  case
    put up by them was that they are entitled to  inherit  one-third  share
    each in the said property by virtue of succession which is found to  be
    a baseless scheme. On these facts, we are of the opinion that the trial
    court was right in passing the decree of mandatory injunction in a suit
    which was filed by Jagadambal. The lis was between Jagadambal  and  the
    respondents. It  is  only  when  during  the  pendency  of  the  appeal
    Jagadambal died,  the  present  appellant  was  brought  on  record  in
    substitution of the deceased as her legal heir. In the appeal the  High
    Court was concerned with the validity of the judgment and decree passed
    by  the  Trial  Court  wherein  Jagadambal  was  the  plaintiff.  After
    dismissal of appeal i.e. A.S. No. 1173 of 2004 on 24.8.2011,  the  High
    Court should have dismissed other appeal i.e. A.S. No. 1175 of 2004  as
    well. Inter se rights of the appellant herein  as  the  respondents  as
    sisters was neither an issue before the High  Court  nor  could  it  be
    dealt with. Notwithstanding the above, we find that the High Court  has
    relegated parties to fresh proceedings on the premise that there  is  a
    dispute over the title and  that  needs  to  be  determined  for  which
    appropriate suit needs to be filed.  These  observations  of  the  High
    Court that there is a dispute over the title is clearly erroneous.
    16.    So far so good. It would mean that the suit which was decreed by
    the Trial Court in favour of Jagadambal was  rightly  decreed  and  the
    High Court could not have upset the decree, more particularly  when  it
    had dismissed another appeal of the respondents i.e. A.S. No.  1173  of
    2004 vide judgment dated 24.8.2011 holding that  sale  deed  which  had
    been executed by the temple authorities in  favour  of   Jagadambal  on
    31.3.1950 was valid and Jagadambal had become the absolute owner of the
    property. Thus, she had a right to file suit for  mandatory  injunction
    seeking  to  evict  the  respondents  herein  who  were  in  permissive
    possession. However, Jagadambal has since passed away and the  question
    of inheritance of the property of Jagadambal is at large  and  has  not
    been decided in the instant proceedings. No  doubt,  on  the  death  of
    Jagadambal appellant herein was impleaded as her LR. However, that  may
    be because of the reason that the respondents who are  also  neices  of
    Jagadambal, were already on record.
    17.    Even when no fresh suit is required, the issue will still be  as
    to whether the appellant has a right to execute the  decree  passed  in
    favour of deceased Jagadambal. It would depend  on  the  other  related
    question viz. who are the successor-in-interest  of  the  deceased  and
    whether the respondents also get share in the property  as  LR  of  the
    deceased. The appellant  is  claiming  to  be  the  sole  successor  in
    interest, who has inherited the property on  the  basis  of  some  will
    executed by Jagadambal in her favour. Here, the High Court has observed
    in the impugned judgment that the deceased had admittedly written three
    wills under different  circumstances  which  require  scrutiny  of  the
    Court. Nobody, has filed any suit for relief of  declaration.  This  is
    the  reason which has prompted the High Court to direct the parties  to
    file fresh suit with regard to title over the suit  property.  However,
    we are of the view that for this reason appeal  should  not  have  been
    allowed as mentioned above. The decree passed in favour  of  Jagadambal
    by the Trial Court was justified  and  the  appeal  of  the  respondent
    should have been dismissed affirming that decree.  At  the  same  time,
    High Court could clarify that whether the appellant can get the  fruits
    of the said decree and is competent to file the execution or not  would
    depend upon her proving that she has inherited the suit property and is
    the sole owner thereof. This can be claimed  in  the  execution  or  by
    filing the fresh suit with regard to title over the said property, more
    so when there are three wills  purportedly  executed  by  the  deceased
    Jagadambal which has surfaced.
    18.    In view of our aforesaid discussion, we set aside that  part  of
    the judgment vide which appeal has been allowed partly and the  parties
    are directed to file fresh suit with regard to the title over the  suit
    property as stated in Paras 14 to 16 of  the  said  impugned  judgment.
    While setting aside that portion, we substitute  it  by  the  following
    directions:
    19.    The Appeal No. 1175/2004 filed by  the  respondents  before  the
    High Court stands dismissed. At the same time the question as to who is
    the successor in interest of the deceased Jagadambal is  left  open  as
    that was not the scope of the proceedings. It  would  be  open  to  the
    appellant to claim that she  has  inherited  the  entire  property,  by
    filing execution of the said decree or by filing fresh suit, which ever
    is permissible in law. In those proceedings or independently  it  would
    be open to the respondents also to stake their claim of inheritance  on
    the basis of succession or otherwise. Needless to mention, since  there
    are three wills of the deceased Jagadambal, it would be for  the  court
    in appropriate proceedings, to determine as to which  will  is  genuine
    and determine the rights of the person as per  the  will  found  to  be
    genuine.
    20.    The appeal is allowed in the aforesaid terms. No costs.


                          …...............................................J.
                                                     [SURINDER SINGH NIJJAR]








                           …..............................................J.
                                                                [A.K. SIKRI]


    New Delhi
    March 31, 2014
ITEM NO.1B               COURT NO.6             SECTION XII


            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS

Civil Appeal No.4245 Of 2014
@ Petition(s) for Special Leave to Appeal (Civil) No(s).259/2012

GOWRI                                             Petitioner(s)

                 VERSUS

SHANTHI AND ANR.                                  Respondent(s)

Date: 31/03/2014  This Appeal was called on for  pronouncement  of  judgment
today.

For Petitioner(s)
                     Mr.Senthil Jagadeesan,Adv.


For Respondent(s)


            Hon'ble Mr. Justice A. K. Sikri pronounced the judgment  of  the
       Bench comprising Hon'ble Mr. Justice Surinder Singh  Nijjar  and  His
       Lordship.
            Leave granted.
            The appeal is allowed in  terms  of  the  signed  non-reportable
       judgment.






       [Nidhi Ahuja]                      [Indu Bala Kapur]
       Court Master                          Court Master

           [Signed non-reportable judgment is placed on the file.]
                           -----------------------
                             C.P. SUNDARAMURTHY
                                    (Son)

                                 JAGADAMBAL
                                 (Daughter)

                                  Plaintiff
                              (Since Deceased)

                                    GOWRI
                                 (Appellant)
                                     as
                               LR of Plaintiff

                                   SHANTHI
                                (Respondent/
                                 Defendant)

                                 PADMAWATHI
                                (Respondent/
                                  Defendant


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