Sulochana vs Prakash

P.R. Shivakumar, J.—The arguments advanced by Mr. S. Ramesh, learned counsel for the petitioner and by Mr. M. Siddharthan, learned counsel for the respondent are heard. The plaintiff in the Original Suit in O.S. No. 7 of 2008 on the file of the learned District Munsif -cum- Judicial Magistrate, Lalgudi is the petitioner herein. The defendant in the said suit is the respondent in the Civil Revision Petition. The revision petitioner filed the above said suit for a declaration that the suit property absolutely belongs to her, for recovery of possession of the same from the respondent herein/defendant and for mesne profits. The said prayer was made on the strength of her pleading that the property originally belonged to Late Ramaiah Naidu, the father of the revision petitioner and on the death of Ramaiah Naidu, the property devolved upon Veerammal, the mother of the revision petitioner and also the revision petitioner as the legally wedded wife and legitimate daughter respectively of Ramaiah Naidu and that one Rajamani Ammal, who was the second wife of Ramaiah Naidu, did not acquire the status of a legally wedded wife because her marriage with Ramaiah Naidu took place after the Tamil Nadu Act 6 of 1949 came into force. The revision petitioner/plaintiff has made her claim of absolute title to the suit property based on the alternative plea that even if Rajamani Ammal had got any right in the property either as a legal heir of Ramaiah Naidu or by virtue of any partition by way of family arrangement, since according to the petitioner, Rajamani Ammal died intestate, the property devolved upon the revision petitioner as the legal heir.

The suit is being resisted by the respondent herein/defendant contending that the marriage of Rajamani Ammal with Ramaiah Naidu was legally valid and the contention of the plaintiff that the marriage was invalid as it took place subsequent to the enactment of Tamil Nadu Act 6 of 1949 was false; that after the death of Ramaiah Naidu, there was a partition in which the suit property was allotted in its entirety to Rajamani Ammal and that by virtue of the last Will left by Rajamani Ammal making the respondent herein/defendant as the sole legatee, he became entitled to the suit property as absolute owner.

When the trial was in progress, the petitioner in the Civil Revision Petition/plaintiff chose to file an application in I.A. No. 269 of 2011 for amending the plaint to include an alternative prayer for partition of the suit property directing division of the same into two equal shares and allotment of one such share to the petitioner/plaintiff.

The learned Trial Judge, after hearing, dismissed the said application by order dated 05.08.2011, which is impugned in the present Civil Revision Petition, on the ground that the said petition was vexatious and was aimed at protracting the case. The correctness and legality of the said order is challenged in the present Civil Revision Petition filed under Article 227 of the Constitution of India.

It is the argument advanced by the learned counsel for the petitioner that even assuming that Rajamani Ammal was one of the legally wedded wives of Ramaiah Naidu, she would have got only half share in the properties left by Ramaiah Naidu; that the family arrangement/partition pleaded by the respondent/defendant is not true and that hence, at the best, Rajamani Ammal would have got only an undivided half share in the suit property; that even if the Will propounded by the respondent/defendant shall be true, that would bind only the half share of Rajamani Ammal and that hence, it had become necessary for the revision petitioner/plaintiff to seek amendment of the plaint to include an alternative prayer for partition and separate possession of half share allegedly belonging to the petitioner/plaintiff.

On the other hand, it is the contention of the learned counsel for the respondent that the petitioner, after having chosen to file the suit solely on the basis of her claim that the marriage between Rajamani Ammal and Ramaiah Naidu was legally invalid and having failed to dispute the execution of the Will propounded by the respondent/defendant, came forward with the petition for amendment to incorporate a prayer for partition as an alternative relief only as an attempted vexation and to protract the case, that too, even after an admission having been made by herself that there was a partition in which the suit property was allotted in its entirety to Rajamani Ammal. It is the further contention of the learned counsel for the respondent that the present attempt made by the petitioner/plaintiff is only to nullify the admission made by the petitioner as P.W. 1 and that therefore, the amendment petition filed at a belated stage for including a prayer for an alternative relief of partition was correctly dismissed by the trial Court and the same cannot be interfered with in exercise of the power of superintendence conferred on the High Court under Article 227 of the Constitution of India.

This Court paid its anxious considerations to the above said submissions made on both sides.

Admittedly, the suit property was the absolute property of Late Ramaiah Naidu. It is also not in dispute that he had two wives Veerammal and Rajamani Ammal. Admittedly, Ramaiah Naidu died in 1954 before the advent of Hindu Succession Act, 1956 under which alone a daughter in the presence of wife was made a legal heir entitled to a share in the property of the father. As Ramaiah Naidu admittedly died in 1954 leaving behind him Veerammal, Rajamani Ammal and also the petitioner Sulochana, Sulochana would not have inherited the property of Ramaiah Naidu. This position has been admitted by the learned counsel for the petitioner. However, the respondent/defendant in his written statement has taken a stand that on the death of Ramaiah Naidu, the property devolved on Veerammal, Rajamani Ammal and Sulochana and in a partition that took place in the family, the suit property in its entirety was allotted to Rajamani Ammal. Irrespective of the fact whether the marriage of Rajamani Ammal with Ramaiah Naidu was before or after the passing of Tamil Nadu Act 6 of 1949, if at all there was a partition as pleaded by the respondent/defendant, then she would have become the owner of the suit property. Even in case of the rejection of the plea that there was a partition in which the suit property was allotted to Rajamani Ammal, if her marriage is proved to be a valid one, then she would have become entitled to the property of Ramaiah Naidu on his death along with Veerammal, the other legally wedded wife to the exclusion of the petitioner herein/plaintiff. In either case, if the Will propounded by the respondent/defendant is defeated, naturally the petitioner/plaintiff shall be the person entitled to succeed to her property by virtue of Section 15(2)(b) of the Hindu Succession Act, 1956.

Admittedly, the petitioner, while deposing as P.W. 1, made an admission that there was a partition in which the suit property was allotted to Rajamani Ammal. By such an admission, the petitioner has admitted the absolute title of Rajamani Ammal to the suit property. Whether the property will go to the respondent/defendant as a testamentary legal heir by virtue of the Will propounded by the respondent/defendant or to the petitioner/plaintiff as a non-testamentary legal heir u/s 15(2)(b) of the Hindu Succession Act, 1956 is the question that arises for consideration in the suit. In case the Will propounded by the respondent/defendant is upheld, the petitioner/plaintiff shall not be entitled to any relief. In case it is defeated, the petitioner/plaintiff shall take the entire property. In either case, there won''t be any question of the petitioner and the respondent being co-sharers/co-legal heirs of Rajamani Ammal entitled to equal share in the property. Therefore, as rightly contended by the learned counsel for the respondent, the present attempt made by the petitioner by filing the petition to amend the plaint is nothing but an attempt to nullify the admission made by the petitioner as P.W. 1 and to protract the case as long as possible and that the dismissal of the same as belated and lacking in bona fide cannot be found fault with. Moreover, no case of exercise of jurisdiction not conferred on the Court below or failure to exercise the jurisdiction conferred on the Court below has been made out. The order challenged has not been shown to be one passed in a proceedings tainted with irregularity. The order cannot be assailed as one encouraging abuse of process of Court. On the other hand, the attempt made by the petitioner can be termed an attempt at vexation and abuse of process of Court. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the Civil Revision Petition and the same deserves dismissal. Accordingly, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.