A S MURUGAN Vs. NEELAVATHI

JUDGEMENT

(1.) SECOND Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree of the learned Additional Subordinate Judge of Chengalpattu dated 24.01.1994 in A.S.No.49 of 1993 confirming the Judgment and Decree of the learned District Munsif of Maduranthakam dated 29.07.1993 in O.S.No.335 of 1992. The short point of legal issue involved in this case is as to whether the will marked as Ex.A9 dated 04.08.1986 said to have been executed by one Raji Gounder in favour of Dhanalakshmi, who is the vendor of the plaintiff is valid and the same has been proved and alternatively, if there are any defects in the will, can a lesser relief be granted in respect of some of the properties forming part of the will, since in respect of few items of properties there has been a rectification regarding Survey Numbers.

(2.) THE unsuccessful plaintiff in both the Courts below is the appellant herein. He stated to have purchased four items of suit properties from one Dhanalakshmi under a sale deed dated 20.07.1992 marked as Ex.A12. THE four items of properties said to have been purchased by the plaintiff under the sale deed are all situated in Amayapattu Village, Maduranthakam Taluk as follows:

(3.) TO substantiate his contention, he would rely upon the Judgment of this Court rendered in Kesavalu Naidu V. Doraiswami Naidu (died) and Others (1958 1 MLJ 189). That was a case wherein, a suit for declaration of joint ownership of property set apart for and used as a passage while, there was a finding that claim to ownership has not been proved. The question arose as to whether a restricted relief of user of passage can be granted. It was in those circumstances, this Court has held granting lesser relief. While the plaintiff claims more than what he is entitled to, the Court will not dismiss the suit but give the relief to which he is entitled to. This Court has also held that it is the duty of the Court to mould the relief to be granted to the parties according to the facts proved. The relevant portion of the Judgment are as follows: