M KABALI DECEASED Vs. ARULMIGHU SHRI ELLAIAMMAN KOIL

JUDGEMENT

(1.) THE unsuccessful 2nd defendant and the Legal Representatives of the 1st defendant are the appellants.

(2.) THE respondent/ plaintiff filed the suit for recovery of possession of the suit property from the appellants and for damages for use and occupation. THE case of the respondent/ plaintiff was that the suit property originally belonged to one Pandurangan and he bequeathed the suit property in favour of the Temple and the deceased 1st defendant was the tenant of the suit property and agreeing to pay the rent at the rate of Rs.40/- per month and he committed wilful default and even after the Temple became the owner of the property by virtue of the Will executed by Pandurangan. THE 1st defendant did not pay the rent and therefore notice to quit was issued terminating the tenancy of the 1st defendant and even after the receipt of notice the 1st defendant failed to vacate and also questioned the right of the plaintiff/ respondent in respect of the suit property and also denied the relationship between the parties and therefore the suit was filed for eviction.

(3.) THE learned counsel for the appellants submitted that except one letter alleged to have been written by the 1st defendant, no document was produced by the respondent Temple to prove their title in respect of the suit property and admittedly, the suit property belonged to one Pandurangan and the respondent Temple derived title under a Will Ex.A2 alleged to have been executed by Pandurangan and the said Will was not proved and the Will cannot be also looked into as the Will was not probated and as per Section 213 of the Indian Succession Act, no one can claim any right under a Will which is liable to be probated as per the provisions of Indian Succession Act and therefore the respondent Temple failed to prove their title and hence they cannot file the suit for recovery of possession. THE learned counsel for the appellants further submitted that taking advantage of the illiteracy of the deceased 1st defendant, his signatures were obtained in blank papers and that was used as a document as if the 1st defendant accepted the tenancy in favour of the Temple and contended that in the absence of any title to the suit property the respondent Temple cannot maintain the suit for eviction. He further submitted that the Government has issued notices to the appellant/ 1st defendant as evidenced by Exs. B1 to B4 and that would prove that the property is a Government Poramboke and without appreciating that both the Courts below granted the decree in favour of the respondent Temple and it is liable to be set aside.