P.KUPAMMAL Vs. KESAVAN

JUDGEMENT

(1.) The suit in C.S.No.562 of 2011 is filed for declaration that the first plaintiff is the absolute owner of the 'B' schedule property; for permanent injunction restraining the defendant and his men, servants,

(2.) The case of the plaintiffs is that the property situate at Door No.94, Plot No.429, 7th Cross Street, Trustpuram, Pullyur Village, Kodambakkam, Chennai 600 024 in T.S.No.26, Block No.26 measuring an extent of 880 sq.ft. belonged to them. Originally, the said property was allotted by the Tamil Nadu Slum Clearance Board (in short, "the TNSCB"?) to the first plaintiff's father, viz., Ponnan, who died on 01.03.1998, leaving behind his wife Kathayee Ammal and the first plaintiff. After the demise of the said Ponnan, the first plaintiff's mother Kathayee Ammal got a sale deed executed in her favour on 05.08.2005 and registered as Document No.3281 of 2005. During the life time, the plaintiff's father, Ponnan had put up a hut in an extent of 380 sq.ft in the front portion and a tiled house in an extent of 400 sq.ft. in the rear portion of the suit property and they were living there. The defendant is the nephew of the first plaintiff's father. The said Kathayee Ammal, the mother of the first plaintiff, died on 02.05.2006 leaving behind the sole surviving legal heir, namely, the first plaintiff and she continued to be in possession of the property. It is also stated that the first plaintiff, out of love and affection, had settled the entire "A" schedule property in favour of her three children. It is stated by the first plaintiff that during the life time of her father-Ponnan, he had permitted the defendant, who is his nephew, to occupy the front portion of the suit property. Thus, the defendant was in occupation of the front portion of the property measuring an extent of 380 sq.ft, which is described as "B" schedule property in the plaint. The first plaintiff alone is the sole legal heir of the deceased Ponnan and Kathayee Ammal, whereas the defendant claimed to be their legal heir based on the fabricated legal heirship certificate. Knowing the motive of the defendant, the plaintiff requested him to vacate and handover the possession of the "B" schedule property. While so, the defendant had approached this Court in O.P.No.222 of 2011 for probate of the alleged Will said to have been executed by the said Ponnan. In the said Will, the defendant has alleged that the said Ponnan was his father, who had executed the Will in his favour. Earlier, the defendant had also filed a suit in O.S.No.2813 of 2000 on the file of the City Civil Court seeking permanent injunction against the first plaintiff in respect of the "B" schedule property, which was dismissed on 31.01.2007. In such circumstances, the suit has been filed by the plaintiffs.

(3.) In the written statement, the defendant had denied all the facts contending that the Ponnan was married to one Kathayee and out of the said wedlock, they had one son by name P.Kesavan, who is the defendant and one daughter, viz., Kuppammal, who is the first plaintiff. According to the defendant, in respect of "A" and "B" schedule properties, the said Ponnan had executed his last Will and Testament dated 03.09.1997 and the same was registered as Document No.126 of 1997 on the file of the Sub Registrar Office, Kodambakkam. The defendant had also filed O.P.No.222 of 2011 for probate of the same. According to the defendant, as per the said Will, bequest was made in favour of the defendant to an extent of 380 sq.ft with superstructure forming the front portion of "A" and "B" schedule properties with the condition that the defendant's mother Kathayee Ammal shall be entitled to enjoy the "A" schedule property throughout her life time as life estate holder. Therefore, on the death of the said Kathayee Ammal on 02.05.2006, the defendant became the absolute owner of the property. One of the witnesses, namely, Kumaresan had filed an affidavit before this Court for probate of the Will. The defendant further denied the fact that he is the nephew of the first plaintiff's father, but he is the son of the deceased Ponnan. The other allegations set out in the plaint are all denied and the defendant prayed for dismissal of the suit excepting 380 sq.ft. described in the "B" schedule property. T.O.S.No.13 of 2015 :