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Angammal (Died) Rajam alias Rajammal (Died) v. Kasi Pandaram @ Kasirajan

Madras HC7 Jan 2025CRP(MD)/1244/2024

Case brief

AI extract

What is this about?

C.R.P(MD)No.1244 of 2024, Madurai Bench of Madras High Court, G.ILANGOVAN, J., 07.01.2025 — execution petition — permanent injunction decree — poojariship — proof of Will — Section 68 Indian Evidence Act — Section 115 C.P.C — Will dated 08.06.1996 — E.A.No.3 of 2022 — legal heir — remand to execution Court — Om Prakash v. Kasi Pandaram @ Kasirajan.

What did the court decide?

Civil Revision Petition allowed: the dismissal order dated 04.03.2024 in E.P.No.12 of 2020 in O.S.No.154 of 1995 passed by the District Munsif, Thuraiyoor is set aside; the matter is remitted back to the District Munsif, Thuraiyoor; liberty is granted to Om Prakash to establish the Will as per law; no costs. ¶42

Angammal (Died) Rajam alias Rajammal (Died) Vs Kasi Pandaram @ Kasirajan — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Will dated 08.06.1996 relied upon by Om Prakash was duly proved, so as to entitle him to prosecute/maintain the execution petition after the death of Rajam @ Rajammal. +1 more

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Court's answer

As per Section 68 of the Indian Evidence Act, unless a Will is proved by examining a witness, no right can be claimed under it.

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Ratio / Principle

The mere fact that the respondent has not denied or disputed the Will does not take away the duty of the claimant to prove the Will.

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Key takeaways

Since the Will was not properly proved, the execution Court rightly came to the conclusion that it was not properly proved; nevertheless, the primary question is whether the violation occurred during the lifetime of Rajam @ Rajammal, which must be decided on evidence, warranting remand rather than final rejection.ratio¶31
Whether the violation of the injunction took place, as alleged during the lifetime of Rajam @ Rajammal, must be decided on the basis of evidence, and the matter is accordingly remitted to the execution Court for that purpose.ratio¶36
Om Prakash did not state that his own right was violated nor produce any additional evidence that the violation continued even on the date of filing E.A.No.3 of 2022; his asserted independent right was only a secondary issue, the primary cause of action being that arising during the lifetime of Rajam @ Rajammal.

Detailed headnote1 paragraphs

Civil Revision Petition under Section 115 C.P.C against dismissal of execution petition — Decree for permanent injunction (O.S.No.154 of 1995, decreed 22.06.1999) regarding right of poojariship; confirmed in A.S.No.129 of 1999 — Original decree-holder Angammal died after decree; daughter Rajam @ Rajammal filed E.P.No.12 of 2020 alleging violation; on her death, Om Prakash was brought on record in E.A.No.3 of 2022 claiming under a Will dated 08.06.1996 — Execution Court dismissed the E.P. holding the Will was not proved — Held: proof of the Will by examining a witness is required under Section 68 of the Indian Evidence Act, and mere non-denial or non-dispute by the respondent does not dispense with that duty — However, whether the injunction was violated during the lifetime of Rajam @ Rajammal is a question requiring evidence; Om Prakash's independent grievance being secondary and unsupported by additional evidence — Dismissal order set aside; matter remanded to the District Munsif, Thuraiyoor with liberty to Om Prakash to establish the Will as per law — Civil Revision Petition allowed, no costs.

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C.R.P(MD)No.1244 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 07.01.2025

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CORAM :

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THE HONOURABLE Mr. JUSTICE G.ILANGOVAN

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C.R.P(MD)No.1244 of 2024

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Angammal (Died) ... Plaintiff

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Rajam @ Rajammal (Died) ... Petitioner

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OM.Prakash ... Petitioner / Legal heir of Rajammal

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Kasi Pandaram @ Kasirajan ... Respondent / Defendant

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Prayer : This Civil Revision Petition is filed under Section 115 of C.P.C, to allow this Civil Revision Petition by setting aside the fair order and decreetal order made in E.P.No.12 of 2020 in O.S.No.154 of 1995 dated 04.03.2024 on the file of the District Munsif Court, Thuraiyoor.

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For Petitioner : Mr.M.Thirunavukkarasu

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For Respondent : No appearance

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.1244 of 2024

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ORDER

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This Civil Revision Petition is filed to set aside the fair order and decreetal order made in E.P.No.12 of 2020 in O.S.No.154 of 1995 dated 04.03.2024 on the file of the District Munsif Court, Thuraiyoor.

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The facts in brief is that the suit in O.S.No.154 of 1995 was decreed on 22.06.1999 which was filed by the deceased Angammal, seeking the relief of permanent injunction, restraining the defendants not to interfere into the right of the poojariship for the period of eight days in a month and five days in a month through her husband and father. The suit was decreed as prayed for without cost. Against which the defendants filed appeal before the appellate Court in A.S.No.129 of 1999 before the Subordinate Court, Trichi. The appeal was filed by the first defendant. At that time Angammal was dead and legal representatives were brought on record. The appellate Court also concurred the judgment decree passed by the trial Court. There upon there was no second Appeal. Alleging that the injunction order was violated by the respondent E.P.No.12 of 2020 was filed by the revision petitioner with the following averments:

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.1244 of 2024

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i) The respondent violated the injunction order passed in the original suit, they must be punished for violating the injunction order. That was resisted by the respondent / first defendant stating that in the appeal suit, a compromise was reached between the parties. Moreover, it is only a suit for permanent injunction and decree was passed only in personam. Apart from that it is also contended that they have not violated the injunction order. After hearing both sides, the execution Court by order dated 04.03.2024, dismissed the petition observing that the second petitioner who is the revision petitioner herein has not established the Will executed by the main execution petitioner namely Rajam @ Rajammal who died after that. The Will dated 08.06.1996 was not established as per the law. So the revision petitioner namely Om Prakash has no right to prosecute the execution petition. Against which this revision petitioner is preferred.

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Eventhough learned counsel for the revision petitioner would

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submit that the validity of the Will was not challenged by the respondent in the counter, but the Court on its own has recorded such a finding that the Will was not proved. So according to him, the order passed by the

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.1244 of 2024

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execution Court is per se illegal. But perusal of the entire records shows that the original plaintiff namely Angammal died after the decree. Later her daughter namely Rajam @ Rajammal filed the main execution petition. Pending the execution petition, Rajam @ Rajammal died. So E.A.No.3 of 2022 was filed by Om prakash by virtue of the Will, he was brought on record as second petitioner. Now according to the execution Court since the Will has not been established or proved as per section 68 of the Indian evidence Act, he is not entitled to maintain the petition.

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Eventhough it is submitted by the revision petitioner that the above said Will is not disputed by the respondent herein but as per Section 68 of the Indian Evidence Act, unless the Will is proved by examining any one of the contesting witness, no right can be claimed by anyone. Simply because the respondent has not denied or disputed the Will, the duty of the revision petitioner is not taken away. So the execution Court rightly came to the conclusion that the Will is not properly proved. Apart from that it is also seen that the right of the revision petitioner namely Om Prakash need not be a matter for consideration because the original cause of action arose when Rajam @

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.1244 of 2024

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Rajammal was alive. According to Rajam @ Rajammal, the respondent violated the injunction order. Whether the cause of action arose on that date is a matter for consideration. So that can be decided only on the basis of evidence. Om Prakash has not stated anything that his right was also violated by the respondent herein. That is only a secondary issue. No additional evidence was produced by Om Prakash stating that the above violation continues, even on the date of filing E.A.No.3 of 2022.

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As mentioned above, we need not concentrate much upon the right of Om Prakash but it must be decided on the basis of the alleged cause of action alleged to have been taken place during the lifetime of Rajam @ Rajammal. In this regard, there is no evidence on both sides. For that purpose, I am of the considered view that the matter can be remitted back to the execution Court to decide the issue as to whether the violation really took place as contended by deceased Rajam @ Rajammal, for which evidence must be let in by this petitioner.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.1244 of 2024

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With the above said, the dismissal order in E.P.No.12 of 2020 in

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O.S.No.154 of 1995 dated 04.03.2024 passed by the learned District Munsif, Thuraiyoor. is set aside. The matter is remitted back to the file of learned District Munsif, Thuraiyoor. However, liberty is granted to the petitioner herein namely OM Prakash to establish the Will as per law.

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