GOVINDAMMAL Vs. THULASI PILLAI

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 19.4.1989 rendered in A.S.No.89 of 1987 by the Court of Subordinate Judge, Tindivanami, thereby confirming the judgment and decree dated 30.9.1987 rendered in O.S.No.405 of 1983 by the Court of District Munsif, Chengee.

(2.) Tracing the history of the above second appeal coming to be preferred, what comes to be known is that the appellants herein have filed the suit for declaration that the suit properties belong to the plaintiffs and for permanent injunction restraining the defendants from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties on averments such as that the suit properties and the other properties originally belonged to one Kathavarayapillai which he got in the oral partition held among himself and his brother Thandavarayapilloai whose son is the first defendant; that Kathavaraya Pillai was in enjoyment of the same;that Kathavarayapillai had sold the house which was allotted to him to the defendants' family and that Kathavarayapillai was in possession and enjoyment of the suit properties till his death open to the knowledge of the defendants and he was paying kist in respect of the suit properties; that Kathavarayapillai executed a registered Will on 2.10.1954 bequeathing his properties including the suit properties in favour of the plaintiffs 1 and 2 who are respectively his wife and daughter; that the 3rd plaintiff was born after the death of Kathavarayapillai; that the Will was attested by Thandavarayapillai, father of the first defendant; that the scribe of the Will is Village Karnam; that the plaintiffs are jointly in possession and enjoyment of the suit properties; that since the joint patta was granted in favour of the 3rd plaintiff who is the male member of the family, he has been impleaded as a party to the suit; that after the death of her husband, the first plaintiff was paying kist in respect of the suit properties; that on 2.10.1954 the father of the first defendant due to love and affection executed a settlement deed in respect of some of the items of properties in favour of the 3rd plaintiff and he is in possession and enjoyment of the same; that the defendants insisted the 3rd plaintiff to hand over the properties settled in his favour and since the plaintiffs refused to do so, the defendants are trying to interfere with the peaceful possession and enjoyment of the suit properties saying that they are entitled to a share in the suit properties and hence the plaintiffs have come forward to file the above suit praying for the reliefs extracted supra.

(3.) In the written statement filed by the first defendant, which was adopted by the 2nd defendant, the defendants, besides generally denying the allegations contained in the plaint, would submit that the suit filed by the plaintiffs is not maintainable; that the alleged Will is not true and valid; that even though Thandavarayapillai had attested the Will the plaintiffs are not entitled to the suit properties; that the defendants are not asked to return the properties as alleged in para 4 of the plaint; that no settlement deed was executed on 2.10.1954; that in the year 1962, there was an oral arrangement in between Kathavarayapillai and Thandavarayapillai in respect of the properties and as such items 1 and 2 of the suit properties were given to Thandavarayapillai by exchanging some of the properties belonging to him; that ever since he is in possession and enjoyment of the suit properties and is paying kist to the suit properties; that since the plaintiffs are in possession and enjoyment of the properties which were given through oral arrangement and having benefited through the properties, they are not entitled to claim items 1 and 2 of the suit properties. On such grounds the defendants would ultimately pray to dismiss the suit with costs.