Mr. Hariharan vs Mrs. Sudhandira Jackson (NRI) By her GPA holder and Mr. V. Chandran

Huluvad I.G. Ramesh

This appeal is by the defendant challenging the judgment and decree passed by the XXVI Addl. City Civil Judge in O.S.No. 25712/2008 dated 19.1.2011.

Suit was filed by the plaintiff for vacant possession of the suit schedule property by way of mandatory injunction and for damages and future mesne profits. According to the plaintiff,'' suit property belonged to his father late Narayanswamy Marrie purchased during July 1954. He died on 30.8.1976. During his lifetime, he had executed a registered Will bequeathing the movable and immovable property in favour of his wife Smt Pushanam. The mother of the plaintiff was in physical possession and enjoyment of the suit schedule property and she has permitted the defendant to stay in the suit property for a temporary period and thereafter, due to differences that arose between the defendant and plaintiffs mother, the mother of the plaintiff was residing with the plaintiff and the property was gifted by her in favour of the plaintiff under a registered gift deed dated 3.2.2005. On 5.12.2006, plaintiff issued a legal notice to the defendant calling upon him to vacate the suit premises and to pay the rental/damages at the rate of Rs. 700/- per day till he vacates the premises. The suit was contested by the defendant. While admitting the Will made by his father in favour of his mother, the defendant has denied the other averments in the plaint, According to the defendant, the Will was executed in his mother''s favour only to look after the family members and to Safeguard the family and not to alienate or gift to third parties. The mother has no right to alienate the property bequeathed by Narayanswamy under the Will. Defendant had also filed O.S.No. 15610/2003 for partition and separate possession of the suit property and the said suit came to be dismissed for non-prosecution. Based on the pleadings, the trial Court has raised as many as six issues for consideration and after hearing, it has decreed the suit of the plaintiff directing the defendant to hand over the vacant possession of the schedule premises to the plaintiff and also ordered for payment of Rs. 48,000/- towards damages and also to pay Rs. 3.000/- per month from the date of suit till actual delivery of possession is handed over to the plaintiff. As against the said order, the defendant is before this Court in appeal.

Heard.

At the outset, the counsel for the appellant has raised an objection that plaintiff is a Non Resident Indian and the gift made in her favour by his mother is void in view of the provisions of Foreign Exchange Regulation Act (FERA) and also contended that the property was bequeathed in favour of his mother to look after the welfare of the family. The gilt made in favour of the daughter without taking note of the interest of the defendant is defeating the very purpose of the Will. Suit for mandatory injunction is not maintainable and also in a suit for possession, appropriate court fee ought to have been paid on the market value. Accordingly, he has sought for to set aside the impugned order passed.

Per-contra, Learned Counsel appearing for the respondent has submitted that, there is no illegality in the order passed. The defendant: has not taken tenable grounds at the time of trial before the trial Court. Only for the first time he is taking a contention regarding payment of Court fee and other aspects. It is also contended that FERA Act is not applicable to the case on hand and rightly, the property had been gifted in favour of the respondent-plaintiff.

In the light of the arguments advanced, the points that would arise for consideration are:

(i) Whether the trial Court is justified in injuncting the defendant by way of mandatory injunction and directing to hand over the possession by holding that plaintiff is entitled for possession?

(ii) What order?

So far as the Will said to have been executed by the father of the parties in favour of their mother is concerned, the same is not in dispute. The death of the testator is on 30.8.1976. After that it appears, there was a dispute among the family members i.e., plaintiff and the defendant. It is the case of the plaintiff that their mother started living with her and out of affection, she has executed the gift deed in her favour. Of course, as to the contents of the Will and also on the point of gifting the property, defendant had filed a suit, which has been dismissed for default. Might be the defendant could assert his right elsewhere. So far as conferring the right on the plaintiff by way of gift deed made by her mother is concerned, the trial Court has taken a view that the property is the self acquired property of Narayanswamy bequeathed in favour of his wife. As per the contents of the Will what is being noticed is, the suit property has also been bequeathed in favour of all the four sons who were minor at that time and as per the condition of the Will, the mother was required to perform the marriage of daughters and in a passing reference it is mentioned about the obligation on the mother to bring up the sons and to educate them. The trial Court noting that, it is not the ease of the defendant that her mother has not discharged her obligation, all the male issues have attained majority and are residing elsewhere, has formed an opinion that the by virtue of the Will executed in favour of the mother of the plaintiff as per Ex. P17, the mother of the plaintiff became the absolute owner of the suit property. Since there was a gift in favour of the daughter, in order to challenge the propriety of the mother in executing the gift deed when the defendant has maintained a separate suit, it was for him to pursue further course of action. But for the present, in view of the gift deed in favour of the plaintiff and also taking into consideration the permissive possession granted in favour of the defendant, rightly the trial Court has ordered for possession.

Even though by way of mandatory injunction it has been ordered to deliver vacant possession, in a suit for possession, as rightly contended by the appellant, appropriate court fee has to be paid. In the circumstances, however, while endorsing the order of the trial Court directing delivery of possession, it is hereby ordered to the respondent to pay the requisite Court fee, as per law.

Appeal is dismissed. However, another one year''s time has been granted to the appellant to vacate and hand ever the vacant possession of the premises subject to payment of damages @ Rs. 3,000/- per month and also directing to pay all the arrears of rental as ordered by the trial Court. It is needless to say, it is for the appellant to light out his case with regard to any violation of the conditions of the Will or regarding execution of the gift deed in favour of the plaintiff before the appropriate forum. The amount in deposit be paid to the respondent. Accordingly, I.A.No. 3/2011 filed for withdrawal of the amount in deposit is allowed.

Misc. Cvl. 10588/2011 filed for additional documents is accordingly disposed of.