SAROJA Vs. CHENNIMALAI

JUDGEMENT

(1.) The two appeals are directed against the common judgment rendered by the Second Additional Subordinate Judge, Erode in O.S.No.930 of 1980 and O.S.No.10 of 1986 dated 2.5.1986. A common question that arises in both the appeals is regarding the validity and genuineness of the will dated 28.9.1979 executed by one Muthusami Pillai. Muthusami Pillai had also executed a will dated 15.3.1972 and if the will dated 28.9.1979 is found to be genuine, the rights of the parties would be governed by the terms contained in the later will, and if the will dated 28.9.1979 is found to be not genuine, then the question will arise whether the rights of the parties would be governed by the will dated 15.3.1972. The plaintiffs in O.S.No.930 of 1980 and the defendants in that suit are also parties in the suit in O.S.No.10 of 1986 apart from certain other parties. In the trial Court, both the suits were tried together and the evidence was recorded in O.S.No.930 of 1980.

(2.) A.S.No.1177 of 1986 is filed against the judgment and decree in O.S.No.930 of 1980 and Tr.A.S.No.121 of 2000 is filed against the judgment and decree in O.S.No.10 of 1986. O.S.No.930 of 1980 is a suit for partition and O.S.No.10 of 1986 is a suit for declaration of title of the plaintiff in the said suit in plaint A-schedule property and for consequential injunction.

(3.) The facts are common in both the appeals and hence, we propose to refer to the pleadings in O.s.No.930 of 1980 for understanding of the issues that arise in both the appeals and the parties are also hereinafter referred to as arrayed in O.S.No.930 of 1980. The suit properties belonged to one Muthusami Pillai and there is no dispute that the suit properties were his absolute properties. Muthusami Pillai had two sons, namely, Chinnappa Pillai and Ayyasami Pillai and Chinnappa Pillai pre-deceased his father Muthusami Pillai. The defendants 1 to 3 in the suit are the sons of Chinnappa Pillai and 4th defendant Marayee Ammal, who has instituted the other suit, is the wife of Chinnappa Pillai and the daughter-in-law of Muthusami Pillai. The plaintiffs are the sons and daughters of the other son, Ayyasami Pillai. According to the plaint, the plaintiffs' grandfather Muthusami Pillai, while he was in a sound disposing state of mind, executed a registered will dated 15.3.1972 by which he has bequeathed the suit properties in favour of the plaintiffs and the defendants 1 to 3 to be enjoyed them equally and absolutely. In the said will, the mother of the plaintiffs, Thangammal was appointed as their guardian during the minority of the plaintiffs 1 to 3 and similarly, Marayee Ammal, the 4th defendant, was appointed as the guardian for the minor 3rd defendant. Muthusami Pillai died on 10.6.1980. According to the plaintiffs, the will dated 15.3.1972 came into effect on the death of Muthusami Pillai and the will dated 15.3.1972 is the only and last will of Muthusami Pillai. In spite of demands made by the plaintiffs, there was no partition of the suit properties and hence, the plaintiffs have come forward with the suit for partition and separate possession.