IMPORTANT POINT
Court cannot go into question of identity of property when there is no dispute regarding identity of property.

JUDGMENT (COMMON)

R. Subramanian, J.—

S.A.No.401 of 2016:

This Appeal is by the plaintiff in OS No.1099 of 1990, which was originally filed in the District Munsif Court, Virudhachalam. The same was transferred to District Munsif Court, Kattumannarkoil, and was renumbered as OS No.164 of 2001. The said suit was filed by the plaintiff seeking declaration of title and for permanent injunction restraining the defendants from interfering with her possession.

2. The case of the plaintiff as set out in the plaint is as follows:

The suit properties numbering about 12 items originally belonged to the father of the plaintiff Chinnaswamy Padayachi. The said Chinnaswamy Padayachi had another daughter and one son Pattusami. It is stated that Pattusami predeceased Chinnaswamy Padayachi, leaving behind the defendants as his legal heirs, the first defendant is the wife and the second defendant is the daughter of the Late Pattusami. According to the plaintiff the said Chinnaswamy Padayachi was in possession and enjoyment of the suit property till his lifetime. On 08.05.1989, he executed a Registered Will bequeathing the suit properties to the plaintiff. The said Chinnaswamy Padayachi, died in March 1990 and his wife Periyammal died in April 1990. On the death of Chinnaswamy Padayachi, the plaintiff became the absolute owner in view of the Will dated 08.05.1989 and therefore, the plaintiff is entitled to the relief of declaration and injunction.

3. The suit was resisted by the defendant contending that suit items 4 and 11 have not been properly described. Suit items 1, 3 and 7 have been sold by Chinnaswamy Padayachi to the first defendant under the registered Sale Deed dated 12.06.1986. Suit items 2, 4, 6, 8 and 11 were settled by Chinnaswamy Padayachi in favour of the second defendant, who is the granddaughter. As regards suit 12th item, it was claimed that one Govindappa Padayachi has obtained a decree against the Chinnaswamy Padayachi in SC No.783 of 1973 and execution of the said decree, the suit item 12, was sold to one Rajamanicka Padayachi on 18.09.1974, and the said sale was confirmed on 02.02.1979. The said Rajamanicka Padayachi took possession of the property on 24.12.1979. Subsequently the said Rajamanicka Padayachi sold the property to the first defendant on 24.04.1987. Therefore, according to the defendants, the deceased Chinnaswamy Padayachi was not the owner of items 1, 2, 3, 4, 6, 7, 8, 11 and 12 on the date of execution of the Will.

4. It is also claimed that Gangachalam, husband of the plaintiff had filed TR No.21 of 1989, on the file of the Revenue Court seeking to recognise him as a tenant under the first defendant, thereby admitting the title of the first defendant. The execution of the Will dated 08.05.1989 was also denied by the defendants. On the above contentions, the defendants sought for dismissal of the suit.

5. The Courts below on the consideration of the oral and documentary evidence concluded that the Sale Deed dated 12.06.1986 (Ex.B2), executed by Chinnaswamy Padayachi, conveying items 1, 3 and 7 in favour of the first defendant, the settlement deed dated 15.06.1986 (Ex.B4), executed by Chinnaswamy Padayachi settling items 2, 4, 6 8 and 11 in favour of the second defendant as well as the sale deed dated 24.04.1987 (Ex.B14) were all true and valid documents and as such the plaintiff is not entitled to any relief with reference to those properties.

6. The Trial Court, however, did not pronounce on the validity of the Will. The Lower Appellate Court pointing out certain contradictions in the evidence of P.W.2, viz. the attestor to the Will and the fact that there is some alteration in the Will concluded that the plaintiff has not proved the Will. On the above findings, the Courts below dismissed the suit.

7. Aggrieved the plaintiff is on appeal.

8. The following questions of law were framed at the time of admission.

1. Whether the examination of all the attestors is necessary to prove a Will?

2. Whether the examinat