SATHAPPAN Vs. SANTHAYEE

JUDGEMENT

(1.) The plaintiff, who failed in his attempts before the Courts below in getting a decree in a suit for declaration of title and for permanent injunction, has brought forth this second appeal.

(2.) The averments in the plaint are as follows: The plaintiff is the son of Thangamuthu and Santhayee. The first defendant was a minor at the time his mother died. The plaintiff and his mother Santhayee were living in the house belonging to the father of Santhayee. They were looking after the property and the house belonging to the maternal grandfather of the plaintiff. The plaintiff was working at Kaveri Spinning Mill in the year 1953. Out of his income, he purchased 92 cents out of 2.77 acres in Survey No.199/4 from Samiyappa Balandar in the name of his mother benami. His maternal grandfather purchased lands in the name of the first defendant out of the plaintiff's income. Out of his income, a property measuring 1.85 acres in Survey No.119/4 was purchased in the name of his mother benami. The plaintiff was enjoying those properties. After the death of his grandfather, the plaintiff, his mother and the first defendant were living together for sometime. Thereafter, the plaintiff and his mother were living separately. When the plaintiff's mother demanded partition in her father's property, the first defendant beat her and broke her hand. She gave a complaint before the police, and a criminal case was pending before the Judicial Magistrate's Court. The first defendant filed a suit in O.S.No.557/67 stating that the suit properties were purchased in the name of the plaintiff's mother benami out of his own income. The plaintiff filed a suit in O.S.No.677/67 for damages. Both these suits were dismissed, which was also confirmed by the appellate forum. Apart from the suit property, the plaintiff was owning 4 acres of lands. His mother died in April 1984. After her death, the first defendant created a sale deed, as if she sold half of 'A' Schedule property in his favour. The plaintiff's mother has no interest in the suit properties. The house was constructed out of his own money. Since the consideration found in the said sale deed was Rs.9,425/-, the document itself is invalid. Even assuming that the plaintiff's mother has got any interest in the properties, after her death, it should come to the plaintiff as her heir. The first defendant issued a notice stating that he was in possession and enjoyment of 'B' Schedule property. Hence, there arose a necessity for filing the suit.

(3.) The suit was resisted by the defendants stating that the allegations that the plaintiff and his mother were living in the plaintiff's maternal grandfather's house and that out of the plaintiff's income, the suit properties were purchased in the name of his mother benami were false; that the plaintiff had frequent quarrels with his mother; that the plaintiff's mother lived in the first defendant's house; that in the criminal case, the first defendant was acquitted; that when plaintiff interfered with the first defendant's possession, he filed a suit in O.S.No.557/67; that from the date of purchase of the suit properties, the plaintiff's mother was living with the first defendant, and they were in possession of the suit properties; that the plaintiff has knowledge about the sale deed executed by his mother in favour of the first defendant; that when the plaintiff's mother was sick, she was admitted in the hospital and was looked after by the first defendant; that the plaintiff's mother executed a will on 12.7.1983 in respect of the properties other than the properties mentioned in the said sale deed, in a sound and disposing state of mind; that the properties which were sold in favour of the first defendant, were in the possession of the plaintiff's mother only; that she got the right of sale over the same; that the said Will has come into force, and hence, the suit was to be dismissed.