KOTHAI AMMAL Vs. S KADIRESAN

JUDGEMENT

(1.) Challenge in this second appeal is to the Judgment and decree dated 27.03.1992 passed in Appeal Suit No.15 of 1988 by the Sub Court, Sivagangai, wherein the Judgment and decree dated 29.10.1987 passed in Original Suit No.290 of 1983 by the District Munsif Court, Sivagangai are reversed.

(2.) The respondents 1 to 9 herein as plaintiffs have instituted Original Suit No.290 of 1983 on the file of the trial court for the reliefs of declaration and perpetual injunction, wherein the present appellants 1 to 11 have been shown as defendants.

(3.) It is averred in the plaint that the suit properties are situate in the villages namely Vannikudi, Peruvelangudi, Siruvelangudi and Sithalangudi. The father name of the plaintiffs 1 to 8 is Chinniah Pillai. The ninth plaintiff is his wife. The brother's name of the said Chinniah Pillai is Samiya Pillai. The first defendant is his daughter and the second defendant is his wife. The third defendant is the husband of the first defendant. The said Samiya Pillai has passed away during December 1967. The father of the plaintiffs 1 to 8 by name Chinniah Pillai and his brother Samiya Pillai have divided their ancestral properties during the month of Chithirai, Vikirama year under a Palmyra leaf deed. After partition, both of them have purchased some properties separately as well as jointly. The said Samiya Pillai has suffered from illness. On 29.11.1967 he executed a will in the presence of his close relatives in favour of his brother Chinniah Pillai and also in favour of the defendants 1 and 2. After his demise, the said will has come into existence. The defendants 1 to 3 have known the execution of the said will. The defendants 1 and 2 have filed a succession original petition with regard to the amount due to Samiya Pillai and the same has been numbered as Original Petition No.9 of 1968. In the said petition, they purposely suppressed the existence of the will. After knowing the suppression of the existence of the will, Chinniah Pillai has impleaded himself in Original Petition No.9 of 1968. One of the creditors of Samiya Pillai has instituted a suit in Original Suit No.159 of 1979 against the defendants 1 and 2, in which, the land which is being called peeche has been brought for sale. The said Chinniah Pillai has filed a claim petition in EA.No.267 of 1973 and the same has been allowed. The said Peeche is referred to the present suit items 1 to 5. The said Chinniah Pillai has executed a settlement deed in favour of the first defendant on 27.09.1976. In the said settlement deed also, the will alleged to have been executed by Samiya Pillai has been referred to. The suit items 1 to 5 have been purchased under a registered sale deed dated 14.08.1952 in the names of Chinniah Pillai and Samiya Pillai. The suit item 6 has been purchased under a registered sale deed dated 29.09.1953 in the names of Chinniah Pillai and Samiya Pillai. The suit item 8 has been purchased under a registered sale deed dated 15.06.1954 in the name of Chinniah Pillai. The suit items 9 and 10 have been allotted to the share of Chinniah Pillai and Samiya Pillai respectively. The suit items 11 to 13 have been divided in between the said two brothers. Suit item 14 has been purchased under a registered sale deed dated 05.11.1951 in the name of Chinniah Pillai. The Suit items 15 and 16 have been divided between two brothers. Since with regard to suit properties, the brother of Chinniah Pillai viz., Samiya Pillai has executed the will dated 29.11.1967 and since the said Chinniah Pillai has passed away, the present plaintiffs are having right, title and interest over the same. The third plaintiff by name Balasubramaniam has married one Poomayil and her brother by name Rajangam has executed a will in her favour and also in favour of her sons and daughters. After the said demise of the said Rajangam and Poomayil the third plaintiff and his minor sons and daughters have been enjoying the properties covered under the said will. The seventh defendant by name Ramsamy Pillai is an agnate of the said Rajangam. He and others have created a will and claimed over the properties covered under the said will and they also filed a civil suit and ultimately lost the same. The defendants 1 to 3 are being helped by other defendants and further the second defendant has sold some items of properties in favour of some of the defendants. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint.