JUDGMENT :

V. LAKSHMINARAYANAN, J.

1. The present appeal arises out of the Judgment and Decree in A.S.No. 18 of 1994, on the file of the Sub Court, Pattukkottai dated 31.07.1995 in confirming the judgment and Decree in O.S.No. 438 of 1991 dated 29.07.1994 on the file of the District Munsif Court at Pattukkottai. The appellant before me is the 1st Defendant in the suit. The suit had been presented by one Rengammal and Banumathi (a person who was born with hearing and speech challenges). The relief sought for in the suit was for a declaration that the plaintiffs are the owners of the property and for a consequential order of injunction restraining the defendants 1 & 2 from interfering with their peaceful possession and enjoyment of the property. The core facts are not in dispute.

2. The father of the plaintiff was one Rathinam Sethuruyar. The plaintiffs were born from the wedlock between said Sethuruyar and Silambayi, the 2nd defendant. Ratnam Sethurayar had a younger brother by name Kannuswami Sethurayar. The said Kannusami Sethurayar had gone to Singapore, earned income and purchased the suit schedule property. Both parties agree that Ratnam Sethuruyar died in the year 1967, and Kannusami died in the year 1975. The 2nd defendant, as the mother and natural guardian of the plaintiff, had sold the suit schedule property to Manickam Kandiar, the appellant, on 08.03.1976.

3. The claim of the plaintiff is that their mother had sold the property as if she was the owner of the property when they are the Class-II heirs of the deceased Kannusami Sethuruyar and therefore, the document is void ab initio. In fine, nothing was conveyed to the 1st Defendant and therefore, they are entitled to the property.

4. As is not unusual in such kind of litigations, the 1st Defendant took all kinds of defences including accusing the second defendant of living with the Deceased Kannusami Sethuruyar, after the death of Ratnam Sethuruyar, as man and wife. He had pleaded that this is as per the custom and practice in their community and in the area where they were residing. He would also plead that the Sethuruyar brothers had one more brother by name Chidambaram, who had two children and they had not been made as parties to the suit. Ignoring these frills, his case was that he purchased the property for a valuable consideration and had been in possession and enjoyment of a major portion of the property. He pleaded the revenue records had been mutated in his favour. He further stated that on a plea of the 2nd defendant, as she had two minor girls at the time of sale, he had permitted the plaintiffs and their mother (the 2nd defendant and her children) to reside in the North-Eastern corner of the property. He took a plea that he put up the superstructure, for their sake, so as to enable them to reside therein. He also pleaded that suit is barred by Limitation. He would also plead that the frame of the suit is untenable because the plaintiffs had not sought for setting aside the sale deed dated 08.03.1976 executed by Silambayi in his favour. It is needless to state but as it happens in all such cases as the present case, the 2nd Defendant remained ex-parte. However, it is on record that the plaintiffs and the 2nd defendant are residing in the same house.

5. The Trial Court framed the following issues:

OTHERS LANGUAGE

6. The 1st plaintiff examined herself and another person and marked three documents. On the side of the defendants, the 1st defendant examined himself and a neighbour and marked 7 documents. The Advocate Commissioner, appointed by the Court to note down the physical features of the property, submitted Exs. C1 and C2. The parties went to Trial on the aforesaid issues in which the Trial Court found:

(i) That the Claim of the defendant that the Sethuruyar Brothers had another brother had not been proved.

(ii) That there is no proof of marriage between Silambayi, the 2nd defendant and the Deceased Kannusami.

(iii) The sale deed is void because it had been execu