The main legal point established is that a remand for identification of property may not be necessary when the main issue revolves around the validity of a deed executed after the death of the original executor.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(U) of the Code of Civil Procedure, to set aside the judgment and decree, dated 11.08.2010, passed in A.S.No.42 of 2009 on the file of the Sub Court, Sankarankoil, reversing the judgment and decree, dated 29.06.2009, passed in O.S.No.66 of 2008, on the file of the Principal District Munsif Court, Sankarankoil.)

1. This Appeal is filed to set aside the judgment and decree, dated 11.08.2010, passed in A.S.No.42 of 2009 on the file of the Sub Court, Sankarankoil, reversing the judgment and decree, dated 29.06.2009, passed in O.S.No.66 of 2008, on the file of the Principal District Munsif Court, Sankarankoil. The appellant herein is the first defendant, the first respondent herein is the plaintiff and the respondents 2 and 3 herein are the defendants 2 and 3 in the original suit.

2. The first respondent herein / plaintiff filed a suit in O.S.No.66 of 2008, on the file of the Principal District Munsif, Sankarankoil, for a prayer of declaration and for recovery of possession. The suit was dismissed by the trial Court. Against the same, the first respondent herein / plaintiff filed an appeal in A.S.No.42 of 2009, on the file of the Sub Court, Sankarankoil. In the appeal, the first appellate Court has passed an order remanding the case again to the trial Court for fresh disposal, after appointing a Court Commissioner. Against that order, the the first defendant / appellant herein has filed this appeal.

3. Brief substance of the plaint in O.S.No.66 of 2008 is as follows:-

The suit property and other properties originally belonged to one Ganapathy Raman. He executed a Will on 25.07.2001. The first schedule property was bequeathed to his daughter -Seethalakshmi, the second schedule property was bequeathed to the first defendant-Vellaiammal, The third schedule property was bequeathed to the plaintiff. On 21.03.2007, the above said Ganapathy Raman executed a sale deed with regard to the second schedule property in favour of the plaintiff. The plaintiff is in enjoyment of the property till date. Ganapathy Raman died on 10.04.2007. Since Ganapathy Raman executed a sale deed during his life time itself, the Will with regard to the particular property is not valid and the first defendant is not having any right over the property. The Will is valid with regard to the share holders. The properties are in the enjoyment of the respective legal heirs. In the sale deed, the Door number and boundaries were wrongly mentioned and hence, Ganapathy Raman executed a rectification deed on 31.12.2007, the son of the plaintiff, by name, Kanagaraj, married the third defendant and the second defendant is their child. The plaintiff permitted his son, daughter-in-law and the child to live in the suit property. The permission is cancelled now. It is stated that the first defendant has executed a sale deed in favour of the second defendant, who was represented by the third defendant, as the guardian. The sale deed is not valid. The plaintiff prayed for a relief of declaration and for recovery of possession.

4. Brief substance of the written statement in O.S.No.66 of 2008 is as follows:-

The suit is not maintainable. The allegations in the plaint are false. The plaintiff is bound to prove the same. There is no cause of action. Court fee paid is wrong.

5. The Trial Court framed the following issues:-

1. Whether the Will, dated, 25.07.2001 alleged to have been executed by Ganapathy Raman is valid?

2. Whether Ganapathy Raman executed a sale deed in favour of the plaintiff with regard to the property allotted to the first defendant in the Will?

3. Whether the plaintiff is entitled to a relief of declaration and recovery of possession?

4. What are the reliefs available to the plaintiff?

6. On the side of the plaintiff, 1 witness was examined and 6 documents were marked. On the side of the defendants, 1 witness was examined and 1 document was marked. The trial Court after considering both