SUBRAMANIAM Vs. SIVAGANGAI

JUDGEMENT

(1.) THE plaintiff in O.S.No.91 of 1990 and the defendant in O.S.No.105 of 1989 on the file of Sub Court, Mayiladuthurai is the appellant in both the appeals. The appellant filed O.S.No.91 of 1990 for declaration of title and for recovery of possession on the basis of a Will executed by his mother dated 5.5.69 in his favour. The defendant in that suit is his sister and she filed O.S.No.105 of 1989 for partition of the suit property that belonged to her mother by stating that her mother died intestate. The trial Court tried both the suits together and rendered a common judgment, decreeing the suit filed by the first respondent in O.S.No.105 of 1989, and dismissed the suit filed by the appellant in O.S.No.91 of 1990. Aggrieved by the same, these two appeals were filed.

(2.) THE case of the appellant, as pleaded in O.S.No.91 of 1990, is as follows. The property belonged to his mother Sivakami Achi and while she was in a sound and disposing state of mind, on 5.5.69, she executed a registered Will in his favour, giving life interest in respect of a portion of the property in favour of her sister Sambalatchi and vested remainder to the plaintiff -appellant and the appellant was enjoying the property after the death of his mother as the owner. The first respondent -defendant, who is the sister of the appellant, was allowed to reside in a portion of the suit property as a tenant on a monthly rent of Rs.100/ - and she committed default in the payment of rent and therefore, R.C.O.P.No.30 of 1986 was filed by the appellant - plaintiff for eviction of the tenant and that petition was dismissed, as his sister claimed a right over the property and therefore the suit was filed for declaration and for recovery of possession.

(3.) ON the basis of the above pleadings, the following issues were framed: -