This appeal challenges the dismissal of a suit for recovery of property based on a Will which the trial and appellate courts found unproved due to inadequate witness testimony and lack of evidence regarding execution.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2021
CORAM:
THE HONOURABLE MS. JUSTICE P.T.ASHA
S.A. No.321 of 2008 and M.P.No.1 of 2008
Varadarajan ... Appellant/Plaintiff/Appellant Vs 1. Kalimurthy 2. Baskaran 3. Ilanjiyam 4. C. Usha 5. R. Sudha
...Respondents/Defendants/Respondents
Appeal filed against the Judgment and Decree of Additional Sub-Court, Mayiladuthurai, dated 16.02.2006 made in A.S.No.90 of 2005 confirming the judgment and decree of Additional District Munsif Court, Mayiladuthurai dated 18.04.2005 made in O.S.No.598 of 1999.
For appellant : Mr.A. Muthukumar For respondents : Mr. S. Sadasharam for R2 to R5 R1-Died
The plaintiff is the appellant before this Court. He has challenged the concurrent judgment and decree, in and by which his suit which was originally filed for a decree for permanent injunction and subsequently amended into one for recovery of possession, was dismissed and the appeal also ended in a dismissal.
Plaintiff's Case:
Written Statement of the First Defendant:
Govindarasu. However the Will dated 18.05.1997 was denied and it is also the case of the defendants that even assuming such a Will is in existence, the same has been obtained fraudulently. The defendants had denied the contention of the plaintiff that the plaintiff was in possession of the suit property. On the contrary it is their contention that originally they were living along with Govindarasu as a joint family in the said property and it is the defendants income which has been spent for the expenditure of the family. The suit property was enjoyed as a joint family property. Since dispute arose between the parties there was a panchayat in which the suit property was divided into two shares with the first defendant being alloted the Western half and the plaintiff the Eastern half and that they are in possession of their respective shares. Hence he sought for the dismissal of the suit.
Additional Written Statement of the First Defendant:
Trial Court:
Appellate Court:
Additional Subordinate Judge, Mayiladuthurai, who by his judgment and decree dated 16.02.2006 confirmed the judgment and decree of the Trial Court stating that the suit has been filed only on the strength of the Will which has not been proved and therefore the suit should have been filed seeking a declaration and recovery to the extent enjoyed by the plaintiff. Considering the fact that the plaintiff had miserably failed to prove the case, the appellate court has also dismissed the suit. Challenging the same, the plaintiff is before this Court.
Discussion:
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
mrn
To
S.A. No.321 of 2008 and M.P.No.1 of 2008
MG(CO) SU(16/11/2021)
3 issues framed by the court
Whether the suit must be dismissed as the plaintiff failed to prove the Will on which the claim for recovery of possession was based.
Whether there is any substantial question of law warranting the High Court's interference with the trial and appellate courts' findings.
Whether the appellant's second appeal can be admitted when the higher appellate court has already dismissed it without admitting the appeal.
Varadarajan
Kalimurthy
Baskaran
Ilanjiyam
C. Usha
R. Sudha
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
