K M RAMASAMY Vs. THANGAVEL

JUDGEMENT

(1.) THE 1st defendant in O.S.No.106 of 2004 and the plaintiff in O.S.No.115 of 2004 on the file of the District Munsif Court, Gobichettipalayam, is the appellant.

(2.) O.S.No.106 of 2004 was filed by the 1st respondent herein for declaration and injunction or in the alternative for partition and separate possession. The case of the 1st respondent/ plaintiff in that suit was that the suit property originally belonged to one Karuppamoopachi who was the paternal grandmother of the 1st respondent and she died leaving behind her only son Kaliappa Nadar who was the father of the 1st respondent and he was enjoying the property as her legal heir and Kaliappa Nadar had two daughters the respondents 2 and 3 and a son the 1st respondent and both daughters were given in marriage and two months prior to his death the Kalaiappa Nadar expressed his oral Will bequeathing the suit property to the 1st respondent and due to the old age the said Kaliappa Nadar was not able to execute the Will in favour of the 1st respondent and as per the oral Will the 1st respondent is entitled to the suit property and if the oral Will is not believed, as the legal heir the 1st respondent is entitled to 1/3rd share in the suit property and therefore he also prayed for partition as alternative relief. In that suit the appellant herein was the 1st respondent/1st defendant and he disputed the oral Will stated by the 1st respondent and pleaded that Kaliappa Nadar while in sound disposing state of mind executed a registered Will dated 9.5.1991 bequeathing the suit property in his favour and therefore the appellant became the absolute owner of the property and the respondent has no right or claim over the suit property. The appellant is also in possession of the property and therefore the 1st respondent is not entitled to the relief prayed for. The appellant also raised the issue that the suit filed by the 1st respondent is also barred as per Order 2, Rule 2 of C.P.C.,

(3.) THE trial Court tried both the cases together and delivered a common Judgement, dismissing the suit filed by the appellant in O.S.No.115 of 2004 and granted a decree of partition in O.S.No.106 of 2004 filed by the 1st respondent stating that the 1st respondent is entitled to 1/3rd share in the suit property. THE first appellate Court also confirmed the Judgement and Decree passed by the trial Court and also dismissed the cross objection filed by the 1st respondent. Hence, the two Second Appeals are filed.