JEYAMMAL Vs. ALAGAMMAL

JUDGEMENT

(1.) THE unsuccessful defendants 2 and 3 before the Trial Court are the appellants. The first respondent filed a suit for partition claiming one-third share in respect of the suit property. It is an admitted fact that the plaintiff and defendants 1 and 2 are sisters and the suit property belonged to their father Natesa Nainar. The suit for partition is defended by defendants 2 and 3 on the basis that Natesa Nainar, who is the owner of the property, by a Will executed by him on 15. 6. 1964, marked as Ex-B1, has bequeathed the entire property in favour of the second defendant. It is also the further case of the second defendant that it was based on that Will executed by her father, she had sold the property to the third defendant under a registered sale deed dated 21. 6. 1984 marked as Ex-B2. Both the Courts below have found that the plaintiff is entitled for one-third share with a definite finding that the defence taken by the second defendant that she has got the suit property absolutely from her father under a Will executed by him dated 15. 6. 1964, marked as Ex-B1, has not been proved and also factually found that the second defendant had only acted on behalf of the plaintiff and the first defendant in collecting rent from the suit property and therefore, there was no question of ouster.

(2.) IT is the contention of the learned counsel for the appellants that the plaintiff and the first defendant were aware of the Will executed by their father on 15. 6. 1964 and that the plaintiff had waited for more than 20 years for the purpose of filing the suit and from the date of execution of the Will till date, the defendants have been in possession and therefore, the third defendant should be treated as having perfected title by adverse possession in having enjoyed the property for a long period. However, the fact remains that claim of the third defendant herself is based on EX-B2, which was only on 21. 6. 1984.

(3.) ON the other hand, the learned counsel appearing for the first respondent/plaintiff would submit that both the Courts below have found that the second defendant, who has claimed exclusive right over the suit property based on the Will of her father Natesa Nainar dated 15. 6. 1964 has failed to prove the genuineness of the Will and both the Courts found, on facts, that the second defendant had been enjoying the property, for and on behalf of the plaintiff and the first defendant, being sisters and therefore, there is absolutely nothing warranting interference in the second appeal since, there is no question of law involved in this case.