J U D G M E N T

1. The third defendant in the suit has filed the above Second Appeal and pending this Second Appeal, the sole appellant died and the appellants 2 to 4 were brought on record as his legal heirs.

2. The present Second Appeal has been filed as against the judgment and decree dated 16.06.2005 in A.S.No.162 of 1997 passed by the Additional District and Sessions Judge, Fast Track Court-IV, Chennai, confirming the judgment and decree dated 26.06.1996 in O.S.No.3247 of 1993 passed by the First Assistant Judge, City Civil Court, Madras.

3. For the sake of convenience, the parties will be referred to according to their litigative status as before the Trial Court.

The brief facts, which give rise to the instant second appeal, are as follows:

4. According to the plaintiffs, they are the absolute owners of the entire premises, bearing New No.16/2, Aziz Mulk 1st Street, Madras- 6, measuring 1200 sq.ft. The plaintiffs and their mother were residing in the back portion of the said premises, measuring 530 sq.ft., which is terraced having first floor and the rest of the said property measuring 670 sq.ft is tiled, which is occupied by the defendants.

5. Further, according to the plaintiffs, the said premises was originally a part of the property bearing old D.No.16, in all measuring

1430 sq.ft, which belonged to the plaintiffs' grandfather Dakshinamurthy. The said Dakshinamurthy had executed a Will dated 28.07.1980 by bequeathing the rear portion measuring an extent of 1200 sq.ft to the plaintiffs. After the death of the plaintiffs' grandfather Dakshinamurthy on 29.01.1982, they have filed an Original Petition in O.P.No.185 of 1984 before this Court for Letters of Administration with the Will annexed.

6. According to the plaintiffs, D.Yashodha/mother of the plaintiffs, was appointed as natural guardian of the plaintiffs and the Letters of administration was issued in her favour. Since the plaintiffs were intending to develop the property bequeathed in their favour, they came up with the suit for recovery of possession.

7. The said suit was resisted by the defendants by filing written statement by disputing the Will. According to the defendants, the Will is a forged one and not sustainable in law. Further, the property is measuring 1430 sq.ft, but in the Will, it is mentioned as only 1200 sq.ft.

8. According to the defendants, Late Dakshinamurthy had got four female issues and two male issues in addition to his wife. Neither of them was consulted and they had no knowledge about the Will executed by Late Dakshninamurthy. The defendants further contended that in the probate proceedings, no notice was issued and they were not made as parties. Since no notice was issued, they have taken steps to revoke the probate. Hence, they prayed to dismiss the suit.

Evidence and documents:

9. During trial, on the side of the plaintiffs, the plaintiffs'

mother/D.Yasodha was examined as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendants, the third and first defendants were examined as D.W.1 and D.W.2 and no documents were marked.

Findings of the Courts below:

10. After appreciating the evidences and documents, the Trial Court decreed the suit. Aggrieved by the same, the first and third defendants filed an appeal in A.S.No.162 of 1992. The Lower Appellate Court, after re-appreciating the evidences, dismissed the appeal. Challenging the same, since the first appellant in the appeal died pending the appeal, the third defendant has come up with the present Second Appeal.

Substantial question of law:

11. At the time of admission, this Court, by an order dated

18.08.2007, admitted the Second Appeal and framed the following substantial question of law:

“1.Whether the Courts below are right in granting a decree for possession and damages when the right derived under the Testamentary disposition dated 28.07.1980, forming the subject matter of O.P.No.185 of 1985 and present T.O.S.No.30 of 1988 is yet to be granted to them?” Submissions on both sides:

12. The le