IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.1.2011
Coram:
The Honourable Mr.Justice G.RAJASURIA
S.A.No.161 of 2006
S.Mohammed Hanifa .. Appellant
vs.
1.Tmt.Fathima Bivi
2.R.Dharam Chand
3.T.Manoharan
4.Chokalingam ... Respondents
Second appeal is filed against the judgment and decree dated 14.3.2005 passed by the Principal Judge, Chennai, in A.S.No.529 of 2004 confirming the judgment and decree dated 25.8.2004 passed by the XI Assistant Judge, City Civil Court, Chennai, in O.S.No.6033 of 1998.
For Appellant : Mr.V.Manohar
For Respondents : Mr.Vi.K.Rajagopal
JUDGMENT
This second appeal is filed by the plaintiff, inveighing the judgment and decree dated 14.3.2005 passed by the Principal Judge, Chennai, in A.S.No.529 of 2004 confirming the judgment and decree dated 25.8.2004 passed by the XI Assistant Judge, City Civil Court, Chennai, in O.S.No.6033 of 1998, which was filed for getting permanent and mandatory injunctions.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. The factual matrix relating to this case would run thus:
(a) The appellant herein, as plaintiff, filed the suit seeking the following reliefs:
"to grant permanent injunction restraining the defendants, their men, agents etc., from interfering with the plaintiff's peaceful possession of the suit property and for mandatory injunction directing the defendants 2 to 4 yo pay rent totaling of Rs.3,300/- per month to the plaintiff from the date of the plaint.
(b) Resisting the said suit, the defendants filed the written statement.
(c) Whereupon issues were framed by the trial Court. The plaintiff on his side examined himself as P.W.1 and marked Exs.A1 to A14. On the defendants' side one K.Mohamed Ismail was examined as D.W.1 and Exs.B1 to B5 were marked.
(d) Ultimately, the trial Court dismised the suit, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
4. Challenging and impugning the judgments and decrees of the Courts below, the second appeal has been filed on various grounds inter alia to the effect that the Courts below have not considered the evidence properly and also the subsequent execution of the Gift Deed, but erroneously insisted upon the non probating of the 'Will'.
5. Accordingly, the following substantial questions of law are found suggested in the memorandum of second appeal:
"1. Whether or not the courts below concurrently failed to frame necessary issues as contemplated under Or.14 Rule 5 of C.P.C.?
2. Whether the lower appellate Court is correct in disposing of the case in summary manner without adverting to independent appreciation of facts and evidence?
3. Whether or not the Courts below committed the error in insisting the probation of the Will despite the fact that there is subsequent execution of the Gift?
4. Whether or not the Courts below instead of deciding the case on the facts made the selection of material to suit the pre-determined conclusion, which resulted in miscarriage of justice?
5. Whether the courts below are correct in expecting the evidences to be pleaded in the case and non disclosure of the evidence of title is fatal to the case?
6. However, my learned predecessor framed the following substantial question of law.
"In the facts and circumstances of the case, whether the courts below are right in non-suiting the appellant a Mohammedan for the relief under the Will by pointing out Section 213 of the Succession Act without referring to the specific provision, which has made the section not (sic) applicable in respect of Mohammedan? "
7. Heard both.
8. The learned counsel for the plaintiff would, at the out set itself submit that as per Section 213 of the Indian Succession Act, a 'Will' executed by a Mohammedan is not expected to be probated, however, the Courts below fell into error in not taking into account the said exception.
9. By way of refuting and challenging the case of the plaintiff, the learned counsel for the defendants would submit that the plaintiff approached the Court with prevaricative stands. The trial Court appropriately and appositely took into account the fact that the plaintiff holus-bolus invoked the plea based on Hiba, when that is not found set out in the plaint itself. As such, the trial Court dismissed the suit itself on the ground that the plaintiff did not approach the Court with proper pleas.
10. Whereas, the learned counsel for the plaintiff would submit that the plaintiff was not even given the opportunity to produce the 'Will' and mark it and in such a case, the matter has to be remanded back to the trial Court for being dealt with as per law.
11. I would like to point out that the Courts below failed to read Sub-Section (2) of Section 213 of the Indian Succession Act. They only took into consideration Sub-Section (1) of Section 213 of the Act. Hence, it is just and necessary to extract the full Section 213 of the Indian Succession Act.
"Sec.213. Right as executor or legatee when established (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of a authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 962 (6 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits."
12. Even a mere cursory reading of the above provision would highlight the fact that a 'Will' executed by a Mohammadan is exempted from being probated. But, the Courts below threw away the case of the plaintiff on the ground that the said 'Will' was not probated, warranting interference in second appeal.
13. The contention as put forth by the learned counsel for the defendants that the plaintiff all of a sudden put forth a new plea of 'Hiba', without the backing of plea, deserves consideration also. A mere perusal of the judgment of the trial Court would leave much to be decided. The issues framed, in my opinion, are far from satisfactory. An issue relating to the maintainability of the suit on the ground of want of a prayer for declaration should have been framed, but that was not done. Similarly, relating to the validity of the 'Will' also, an issue should have been framed, which also was not framed. The status claimed by the parties also ought to have been probed and looked into, after framing necessary issues, but that was not done. As such, I am of the view that the matter should necessarily be remitted back to the trial Court for framing appropriate additional issues. Both the parties should be given ample opporutnity to adduce additional oral and documentary evidence, keeping in view the current provisions of law.
14. Accordingly, the substantial question of law is answered to the effect that the Courts below fell into error in treating that Section 213 of the Indian Succession Act is applicable to a Mohammadan 'Will' when in fact Sub-Section (2) of Section 213 mandates that probating of a 'Will' executed by a Mohammadan is not required.
15. In view of the ratiocination adhered to above, the judgments and decrees of the Courts below are set aside and the matter is remanded to the trial Court for framing appropriate additional issues and after giving ample opportunity to both the parties to adduce additional oral and documentary evidence, keeping in view the current provisions of law, the matter has to be dealt with and disposed of by the the trial Court.
16. The parties shall appear before the trial Court on 24.2.2011. The trial Court shall dispose of the matter as per the direction of this Court within a period of four months from the date of receipt of a copy of this judgment.
17. The second appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Msk 28.1.2011
Index:Yes
Internet:Yes
Note to Office:
Issue order on 31.1.2011
Records shall be sent back to the
trial Court immediately.
G.RAJASURIA,J.
msk
S.A.No.161 of 2006
28.1.2011
