The main legal point established in the judgment is the requirement for evidence of possession and the execution of mortgage documents to establish property rights.

R. MALA, J.

1. The plaintiff, who last the legal battle before both the Courts below, has come forward with this Second Appeal challenging the Judgment and Decree dated 24.10.2005, passed in A.S. No. 30 of 2005, on the file of the learned District Judge, Kanyakumari at Nagercoil, by confirming the Judgment and Decree dated 13.12.2004, passed in O.S. No. 178 of 2003, on the file of the learned Subordinate Judge, Padmanabhapuram.

2. Heard the learned counsel for the appellant and the learned Counsel for the respondents and perused the materials available on record.

3. The appellant, as a plaintiff filed a suit in O.S. No. 178 of 2003 for declaration of title and injunction restraining the defendants from interfering with her possession and enjoyment of the suit properties by stating that the suit properties are originally belonged to Thankayyan, Nesayyan and Nesamony, who are brothers. Nesamony, who was the eldest brother executed a mortgage deed for him and for his brothers as guardian, on 13th Karkatakam 1107 M.E. (28.07.1932) in favour of one Chellammal Nadachy, daughter of Rahel Nadachy. The mortgage is not redeemed so far and by efflux of time, the mortgagee Chellammal became the owner of the properties. On 05.07.2000, Chellammal executed a registered will deed 47 of 2000 (05.07.2000) in favour of the plaintiff to an extent of 1 Acre 36 cents and 593 square links in Resurvey No. 141/8 of Ponmanai Village. On 30.03.1993, Chellammal Nadachy sold 35 cents and 218 square links in R.S. No. 141/8 to the plaintiff. On 30.03.1993, Kanakammal Nadachy, daughter of Rahel Nadachy executed a sale deed in favour of the plaintiff to an extent of 10 cents in R.S. No. 141/8. Thus the plaintiff is the absolute owner of the suit properties. The defendants have no right, title and possession over the suit properties and they are trying to enter into the properties by claiming that they are the owners of the suit properties. Hence, she is constrained to file the suit for declaration of title and injunction restraining the defendants from interfering with her possession and enjoyment of the suit properties.

4. Resisting the same, the defendants 1 to 10 filed a written statement stating that the plaintiff has no manner of ownership, right or possession and enjoyment in respect of the suit properties. Nesamony had no power to execute a mortgage for and on behalf of his brothers in favour of Chellammal Nadachi and the said mortgage is not supported by consideration. Chellammal Nadachi and Kanagammal Nadachi were incompetent to execute the will dated 05.07.2000 and the sale deed dated 30.03.1993. Since the executants had no right, the plaintiff did not get any right over the suit properties. The defendants are the absolute owners of the suit properties and they never attempted to trespass into the suit properties. Patta and tax receipts will not confer any right on the plaintiff and hence, they prayed for dismissal of the suit.

5. The defendants 11 to 13 filed a detailed written statement by stating that there is no usufructuary mortgage in 1107 M.R. and it is a false and nominal document and no such document is followed by possession. The sale deed dated 30.03.1993 in favour the plaintiff executed by Chellammal Nadachy and the sale deed dated 30.03.1993 in favour of the plaintiff executed by Kanagammal Nadachy are invalid and fraudulent documents. The mortgage in favour of Chellammal Nadachy and Kanagammal Nadachy are not followed by possession. Hence, they prayed for dismissal of the suit.

6. The 14th defendant filed a written statement stating that the plaintiff is enjoying the property comprised in S. No. 141/8 as the wife of this defendant and the mortgage was redeemed already by his father. Chellammal Nadachy has no right to execute the Will deed regarding the plaint schedule properties, since she had already surrendered her right. T