The central legal point established in the judgment is the right of legal heirs to claim their share in the property, the importance of proving ownership, and the conduct of parties in pursuing legal proceedings.

JUDGMENT

(Prayer: This Appeal has been filed under Section 96 of C.P.C., to set aside the judgment and decree passed in O.S.No.2396 of 2013 dated 30.11.2016 by the learned XV Additional Judge, City Civil Court, Chennai.)

1. This Appeal Suit has been filed to set aside the judgment and decree passed in O.S.No.2396 of 2013 dated 30.11.2016 by the learned XV Additional Judge, City Civil Court, Chennai.

2. Heard Mr.S.Baskaran, learned counsel for the appellant and Mr.P.Rajendra Kumar, learned counsel for the respondents and perused the materials placed on record.

3. The appellant is the plaintiff who has filed a suit for partition and separate possession of 1/4th share in the suit property and for permanent injunction. The said suit was dismissed. Aggrieved over that, the plaintiff has preferred this Appeal.

4. The short facts of the case of the plaintiff are as follows:

The suit property belonged to the parents of the plaintiff and the respondents and it consists of ground floor, first floor and second floor. The parents were in enjoyment of the property till their life time. The plaintiff got married in the year 1985 by choosing a girl of his choice. Since it is not agreeable to his family members, he was residing away from his family. His mother Saraswathi died intestate on 25.02.2010 and his father Natarajan also died on 24.05.2010. The plaintiff and the defendants are the only legal heirs of the deceased Saraswathi and Natarajan. Hence the plaintiff is entitled to claim 1/4th share in the suit property. The suit property derives a rental income of Rs.52,000/- per month and the same was enjoyed by the defendants alone. Since the plaintiff being the co-owner and co-sharer of the suit property entitled to 1/4th share. The defendants should be directed to pay 1/4th share in the future rental income from the date of the plaint till the date of delivery of possession.

4.1. Before filing the suit, the plaintiff sent a legal notice on 22.09.2012, calling for settling the issue amicably. The defendants received the notice and sent the reply notice on 02.10.2012 with false and frivolous allegations. The defendants claim falsely that the mother of the plaintiff viz., Saraswathi, had executed a Will by bequeathing the suit property in the name of the defendants alone. But the Will was not probated. Since the Will was created and forged one, that will not prevent the plaintiff from getting his due share of 1/4th in the suit property.

5. The written statement filed by the defendants reads as follows:

The defendants filed a written statement by stating that the property belongs to their mother Saraswathi who had executed a Will dated 12.06.2005 and bequeathed the suit property in separate portions and boundaries to each of the defendants by excluding the plaintiff. The probate O.P. filed to probate the Will is still pending. The wishes of the mother can not be dishonoured, by giving share to the plaintiff, who left the family without being grateful. After marriage, he never visited the family and cared his parents. The plaintiff has amassed several properties. So, their mother had lost faith on the plaintiff and executed the Will in favour of the other children. The plaintiff purchased property at Neelankarai with the fund provided by the father. Since the mother executed a Will in respect of the only property which is the suit property, the defendants alone should acquire title. Since the suit has been filed before completion of the proceedings filed to probate the Will, the suit itself is a prematured one.

6. On the basis of the above pleadings, the learned Trial Judge had framed the following issues:

1. Is it true that the mother Smt.N.Saraswathi Ammal had executed a Will on 12.06.2005 regarding the suit schedule property in favour of defendants 1 to 3?

2. Whether the plaintiff is entitled for a decree of partition as prayed?

3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed?

4. Whethe