RAMASWAMY KALINGARYAR Vs. MATHAYAN PADAYACHI

JUDGEMENT

(1.) This appeal by special leave is against the judgment and decree dated 27th October, 1977 passed by the Madras High Court in Second Appeal No. 363 of 1975.

(2.) The litigating parties are two brothers. We would refer to them by short names as Ramasamy and Muthiah. Their father Rangasami Kalingaraya, besides holding vast freehold properties held leasehold rights in two small parcels of land, whereon there was a hut obtained from Dharmapuram Adheenam, since many years prior to his death on 1-4-1962. After his death, dispute over the leasehold properties arose between the brothers. According to Ramasamy, eversince 1962, he was in possession of the leased properties in his own right as a lessee. On the other hand Muthiah claimed that these -properties had been bequeathed to him by his father under a Will. This led Ramaswamy file a suit for permanent injunction against Muthiah to preserve his possession. The suit was resisted by Muthiah asserting that he was in possession of the suit property on the basis of the Will as well as by allotment in his favour. On the pleadings of the parties, the trial Court raised the following issues on the subject :