JUDGMENT

The Appeal Suit is directed against the judgment and decree passed in O.S.No.24 of 2009, dated 29.07.2011, on the file of Principal District Court, Theni, decreeing the suit as prayed for.

2. The gist of the plaint is as follows:

The plaintiff and the defendant are sister and brother and are children of K.Shanmugavel Nadar and Avudaiammal. The suit property was originally purchased by the said Avudaiammal from one Virumandi Thevar, vide registered sale deed dated 29.01.1965. After the death of the said Avudaiammal, the plaintiff and the defendant succeeded to the properties as her only legal heirs. The plaintiff has been in joint possession and enjoyment of the suit property along with the defendant. Hence, the plaintiff is entitled to get ½ share in the suit property. Though the defendant has assured the plaintiff to give her ½ share, later he refused to give her share. Since the defendant had tried to create encumbrance, the plaintiff sent a legal notice dated 31.05.2007 to the defendant demanding partition of the suit property and allotment of ½ share to her. The defendant, having received the notice, has neither sent any reply nor complied with the notice demand. The plaintiff has then made a paper publication in Dinamalar dated 26.12.2007 warning the general public not to deal with the defendant in respect of the suit property and the plaintiff has also sent a copy of the paper publication to the defendant. Despite repeated request of the plaintiff for the division of the property, the defendant has not come forward to partition the suit property. Hence, the suit.

3. The defence pleaded by the defendant is as follows:

(a) The plaint contentions that the plaintiff and the defendant are the children of K.Shanmugavel Nadar and Avudaiammal, that their mother Avudaiammal had purchased the suit property vide sale deed dated 29.01.1965, that their father K.Shanmugavel Nadar died on 31.07.1983 and their mother Avudaiammal died on 01.02.1999 are admitted . But it is false to state that their mother Avudaiammal had died intestate. Avudaiammal at her age of 84 years while she was hale and healthy, has executed a Will on 26.01.1998 bequeathing the suit property to her son – the defendant herein and handed over the original Will to her brother A.Rajamanickam for safe custody. After the death of Avudaiammal, the Will dated 26.01.1998 came into force and the defendant has become the absolute owner of the suit property and that he along with his children had been in possession and enjoyment of the same. The plaintiff, at the time of her marriage, was given sufficient Sreedhana and she was given monetary help very often by his mother.

The plaintiff is having no right, title or possession over the suit property.

(b) The defendant and his children have sold the suit property to one S.Ilangao and R.R.Sathyanarayanan for valuable consideration on 01.08.2007 and thereafter, they have been in possession and enjoyment of the suit property. Moreover, the defendant and his children have executed a registered Power of Attorney on 01.08.2007 permitting the said Ilango and Sathyanarayanan to sell the suit property to third parties. The plaintiff has no cause of action for filing the suit and the cause of action alleged is false. The purchasers Ilango and Sathyanarayanan are the necessary parties to the above suit and as such, their non- impleadment is fatal to the suit. Hence, the suit is liable to be dismissed.

4. On the basis of the above pleadings, the trial Court has framed the following issues:

(1) Whether the Will dated 26.01.1998 alleged by the defendant is true and legally valid?

(2) Whether the plaintiff is entitled to get preliminary decree in respect of ½ share in the suit property, as claimed by her? and (3) What relief, the plaintiff is entitled to?

5. During trial, the plaintiff has examined herself as P.W.1 and exhibited 5 documents ad Exs.A.1 to A.5. The defendant has examined himself as D.W.4 and examined three persons viz., Thiru.Sa