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
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
