GANESAN Vs. THANGAVEL

JUDGEMENT

(1.) The plaintiff in the suit is the appellant. Aggrieved by the judgment of the lower appellate Court reversing the trial Court decree passed in his favour the second appeal is preferred.

(2.) The case of the plaintiff is that the suit property was purchased by his mother Parvathi ammal on 27.01.1950. She bequeathed the property in favour of the plaintiff through unregistered sale deed dated 13.12.1984. After the demise of the said Parvathiammal on 05.01.1985, the plaintiff has become the absolute owner of the suit property as per the Will. In the year 1988, the plaintiff mortgaged the suit property in favour of one Ponnuvel, which was later redeemed on 18.04.1990. The defendant, who is another son of Parvathi ammal claiming right over the property trying to interfere his lawful right of enjoyment. Hence, the suit for permanent injunction restraining the defendant from interfering the peaceful possession.

(3.) The suit was resisted by the defendants on the ground that Parvathi ammal died intestate leaving behind two sons and two daughters. The suit property was purchased by Manicka mudaliar in the name of his wife Parvathiammal. One Krishnan oldest son of Manickam left the family after executing a release deed in the year 1963. The plaintiff and the defendant are sons of Parvathiammal. The marriage of the defendant in the year 1969, they all were living jointly. After 1969, the plaintiff started living on the eastern portion of the suit property and the defendant on the western portion. Parvathi ammal died after prolonged illness. 11 months after her demise, the defendant shifted his family to Puthiragoundanpalayam from Athapur. In the year 1988, he started a tea shop at Puthiragoundanpalayam. He mortgaged his portion of the property to one Marimuthu for Rs.4,000/- and permitted him to occupy the western side of the property. Thereafter, in the year 1989, the defendant and his father jointly remortgaged the western portion to one Subramani Chettiar for Rs.6,000/-. The Will purported to have been executed by Parvathiammal in favour of his son is denied as false and forged. She was not keeping good health before her death. She was not conscious for 40 days before her death. She was also speechless. The thumb impression found in the Will denied. Without seeking declaration of title, relief of bare injunction is not maintainable. The suit property is undervalued and the suit is bad for non-joinder of necessary parties.