A plaintiff asserting rights via a Will must seek a declaration of title to establish claims, especially in the context of disputed possession and ancestral property.

JUDGMENT :

K. VINOD CHANDRAN, J.

Leave granted.

2. The present appeal arises from a suit filed by Rajammal against Munuswamy, her brother, for injunction simpliciter, one, to restrain alienation or encumbrance of the suit property and the other to restrain interference with the peaceful possession & enjoyment of the plaint schedule property. The plaintiff claimed absolute right over the property being half share of 1.74½ acres coming to 0.87¼ acres of dry landed property with all appurtenances attached thereto. The claim was made specifically on the ground that by a Will dated 30.09.1985, Rangaswamy Naidu, their father had bequeathed the said property equally in favour of the plaintiff and another brother, Govindarajan. The plaintiff’s contention itself was that the defendant was continuing in the property as a tenant while the defendant claimed that he came into possession as a co-owner and later there was an arrangement, by which in the lifetime of his father, the property was equally divided between the brothers i.e. the defendant and Govindarajan.

3. The trial court found the Will to have been proved and decreed the suit injuncting the defendant from alienating the property and from interfering with the plaintiff’s peaceful possession. On appeal, the appellate court found that the bequest was made of an ancestral land, on which the testator had no right to execute the Will. The trial court judgment was upset and the suit was dismissed. In the second appeal, the High Court formulated two questions of law as to whether the appellate court was correct in finding the suit property to be a joint family property and whether Ex.B5 document produced by the defendant was properly construed.

4. The property was found to be the absolute property of the plaintiff’s father though it was purchased by the grandmother of the plaintiff. The title of the plaintiff’s father was neither questioned by the grandmother in her lifetime nor did she claim a right over the said property. Ex. A6 Will was found to have been proved since the signature of the testator was affirmed by PW1, the plaintiff and the signature of one of the testators, who was deceased, was affirmed by his own son, PW2. In the context of both the testators having passed away, the evidence was found to be sufficient to prove the Will. Based on the above findings, the right of the plaintiff over the property was established and the possession was found to follow title thus enabling both the injunctions sought for. The first appellate court’s order was set aside, and the suit was allowed restoring the trial court’s judgment & decree.

5. Before us, the legal heirs of the defendant, the appellants, contended that they have been always in possession of the land, as admitted by the plaintiff. The suit was filed without any prayer for declaration and the injunction simpliciter ought not to have been granted. It was contended that by Ex. B1 agreement entered into by Rangaswamy Naidu, Govindarajan and the original defendant, there was a division of the properties in the year 1983 itself. The plaintiff was unable to produce any ocular or documentary evidence to establish possession. The plaintiff’s own admission was that the defendant was in possession of the property.

6. The learned Senior Counsel appearing for the respondent-plaintiff, however, would point out that there are two different properties, as has been noticed by the High Court, one purchased in the year 1934 and another in the year 1984. The house property is said to have been purchased in the year 1984 with which the plaintiff was not concerned in the suit. In fact, a specific pleading was made reserving her right to