N. SEKARAN Vs. NALLAMMAL AND ANR.

JUDGEMENT

(1.) THE question of considering whether the suit will Ex.A. 4 is genuine arises in this second appeal. The suit filed by the plaintiff Nallammal, first respondent herein, against two defendants for declaration of title and injunction has been decreed by the trial court. First defendant is the mother and second defendant is her son. The second defendant is the appellant in this second appeal.

(2.) ONE Nallasamy Gounder in a partition between himself and his son second defendant obtained suit items 1 to 7 for his share. According to the plaintiff Nallammal, he executed a will Ex. A. 4 on 5 -84971 bequeathing in her favour the properties items 1 to 7 along with item 8. Item 8 had been already sold to her on 9 -8 -1968 by Nallasamy. Nallasamy died on 13 -6 -1975. From that date onwards the plaintiff had been in possession and enjoyment of the properties. While so the defendants without any manner of right attempted to disturb the plaintiff's possession and therefore the suit for declaration of plaintiff's title to the said properties and for injunction. The first defendant -wife of Nallasamy remained ex parte. But the second defendant son of Nallasamy filed a written statement contesting the suit. He would admit that in a partition suit items 1 to 7 fell to the share of his father Nallasamy and Nallasamy had already sold item No. 8 in favour of the plaintiff. But he would not admit that Nallasamy executed the alleged will and would state that there was no necessity for executing such a will. It was also contended that at the time of the alleged will Nallasamy was not in a disposing state of mind. It is further contended that after the death of Nallasamy, the defendants being the only heirs of his, they were entitled to items 1 to 7 and they have been in possession of the properties and not the plaintiff, and therefore no question of interfering with the plaintiff's alleged possession arises.

(3.) ON consideration of the evidence in the case the trial court (Principal District Munsif, Karur) held that the alleged will dated 5 -8 -1971 is true and valid and therefore the plaintiff is entitled to the suit items 1 to 7; It also held that the plaintiff is entitled for injunction as prayed for. Accordingly the trial Court decreed the suit. Second defendant filed an appeal. The learned appellate Judge (Subordinate Judge, Karur) concurred with the findings of the trial Court and confirmed its judgment and dismissed the appeal.