JUDGMENT :

K.MURALI SHANKAR, J.

The Second appeal is directed against the judgment and decree, dated 24.03.2014 in A.S.No.2 of 2014 on the file of the Principal Subordinate Court, Trichy, reversing the decree and judgment in O.S.No.828 of 2009, dated 20.09.2013 on the file of the III Additional District Munsif Court, Trichy.

2. The deceased first appellant is the sole defendant. The deceased first respondent as plaintiff filed the suit claiming permanent injunction restraining the defendant and his men from in any way trespassing or trying to encroach in the suit property or interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

3. Pending second appeal, the appellant/sole defendant died and his legal representatives got themselves impleaded as appellants 2 and 3. Pending second appeal, the respondent/sole plaintiff also died and his legal representatives were impleaded as respondents 2 to 6.

4. For the sake of convenience and brevity, the parties herein after will be referred as per their ranking/status before the trial Court.

5. The case of the plaintiff in brief is as follows :

a)The plaintiff and the defendant are the sons of one Late.M.Periyakaruppan. The said Periyakaruppan had two wives, namely Kamalam and Mariyayee. The plaintiff was born to the said Periyakaruppan through his first wife Kamalam. The said Periyakaruppan had sons by name Subaramani/defendant and two daughters namely Parameshwari and Pushpa. Periyakaruppan's father Muthuveeran and the deceased Periyanna Vathiyar are brothers. The Periyanna Vathiyar adopted his brother's son Periyakaruppan,

b) Originally, the suit property belonged to the said Periyanna Vathiyar. He executed a registered Will, dated 05.09.1938 and died in the year 1940. As per Will, 'A' schedule property shows therein was allotted to Chinnapponnu Ammal, who is the wife of Periyanna Vathiyar, for her lifetime and thereafter, to her daughter Achammal and then to vest with his granddaughters Kamalam and Mariyayee and their successors. The 'C' schedule property was allotted to his wife and the second item of 'B' schedule property was allotted to his son Periyakaruppan. The first item of 'B' schedule property, which is agricultural land coconut grove/ the suit property herein, was allotted for charitable purposes.

c) As per Will, the first male legal heir of male successor has right to continue in possession and enjoyment of the suit property and he has to perform the duties to the local temple from the revenue obtained from the suit properties. After the death of the said Periyakaruppan in the year 1994, the plaintiff being the eldest son, had automatically acquired the suit property and he has been performing all his obligations to the local temples regularly. The Revenue authorities granted patta in favour of the plaintiff and he is regularly paying necessary tax to the Government.

d) The defendant has absolutely no right, title or interest over the suit property, but he has been attempting to trespass into the suit property. Hence, the plaintiff was constrained to file the above suit claiming permanent injunction.

6. The defence of the defendant is of total denial.

a) The defendant denied and disputed the validity, attestation, execution and genuineness of the Will. It is the further defence of the defendant that since the Will is burdened with conditions, the same is invalid. It is his further stand that after the death of Periyakaruppan, the suit properties and other properties were commonly enjoyed by the plaintiff and the defendant and that thereafter, both of them entered into an oral partition in respect of family properties, wherein an extent of 0.14 acres in S.No.248/1D and an extent of 0.62 acres in S.No. 222/2E both in Athavathur east village were allotted to the defendant and since it was deficit, the plaintiff allotted 0.40 cents in S.No.331/1C part of the suit property and that due to escalation of land value in which, the suit property is situated, the p