S SUSILA Vs. VIRUDHUNAGAR HINDU NADARKALUKKU PATHIYAPATTA V V VANNIAPERUMAL WOMENÏ¿½S COLLEGE MANAGING BOARD VIRUDHUNAGAR

JUDGEMENT

(1.) THE first defendant, who succeeded in the trial court and failed in the appellate court, has preferred this appeal. THE respondent has filed the suit for declaration of its title to the suit property and for delivery of possession besides mesne profits, past and future. Alternatively the respondent has prayed for a preliminary decree for partition of its half share in the suit property and delivery of possession of the same with mesne profits.

(2.) THE suit property belonged admittedly to one Mariappa Nadar, who had no issues. On 26.4.1952 he executed a will (Ex.A-1) bequeathing the suit property in favour of his wife Sornammal for her life and the vested reminder in favour of the appellant herein. He has referred to the appellant as his adopted daughter. Under the said will, two other items are bequeathed absolutely to Sornammal. THE will refers to the fact that the appellant was at that time unmarried and that the testator would perform her marriage during his life time and in case he dies suddenly, his wife Sornammal should perform the marriage. THE appellant's marriage took place within a year thereafter. According to the plaintiff, the testator cancelled the will by a deed dated 15.11.1954 (Ex.A-2). THE testator died on 13.4.1972. Sornammal was in enjoyment of the property and she executed a will on 22.5.1972 (Ex.A-4) by which she has bequeathed the property to the plaintiff. She died on 13.10.1992. According to the plaintiff, the first defendant agreed to deliver possession within two months after the death of Sornammal, but failed to do so. To a notice issued by the plaintiff, the first defendant has sent a reply claiming to be entitled to the entire property and disputing the title of the plaintiff. THE second defendant, who is a tenant of a portion of the property, has refused to pay the rent to the plaintiff and notice sent to him has not been replied to by him. In such circumstances, the plaintiff has filed the suit for the reliefs stated already.

(3.) THE trial court held that Ex.A-2 is not true or valid and consequently, Ex.A-4 is not valid, though the execution of Ex.A-4 by Sornammal was satisfactorily established. On that basis, the trial Court dismissed the suit. On appeal, the Principal District Judge, Ramanathapuram has reversed the findings of the trial court and upheld the genuineness and validity of Ex.A-2 and the validity of Ex.A-4. Consequently, a decree has been passed for declaration of title of the plaintiff and recovery of possession. THE appellate court has, however, negatived the prayer for mesne profits.