J U D G M E N T

The appellants are the plaintiffs before the District Munsif Court at Gudiyatham (hereinafter referred to as Trial Court) in O.S.No.235 of 2006. The suit was filed by the appellants herein for declaration, permanent injunction and mandatory injunction to direct the second respondent Tahsildar to alter the Patta issued in the name of the first respondent. The Trial Court had decreed the suit based on the evidences and the deposition of the parties.

2. On further appeal in A.S.No.3 of 2011 filed by the first respondent, the Subordinate Judges Court at Gudiyatham (hereinafter referred to as First Appellate Court) has partly allowed the appeal vide impugned Judgment and Decree dated 30.11.2011 in A.S.No.3 of 2011 by modifying the Judgment and Decree of the Trial Court by restricting the relief of the appellants for permanent injunction alone. As far as the relief for declaration of title and for mandatory injunction to direct the second respondent Tahsildar to alter the Patta is concerned, the First Appellate Court has come to a conclusion that the appellants have not proved that there were other legal representatives of late Thimmaiya Naidu. Therefore, the relief cannot be granted to the appellants.

3. The operative portion of the impugned Judgment and Decree reads as under:-

i. The plaint is silent about the relationship of Ist plaintiff with the deceased Thimmaiya Naidu. No legal heir Certificate was filed. Anyhow court assumes that Ist plaintiff is the daughter of deceased Thimmaiya from the long cause title para of the plaint.

ii. The plaint is silent about the any other legal heir/legal representatives of the deceased Thimmaiya Naidu, i.e. whether the Ist plaintiff is having sisters or brothers. Because the plaint does not consist word "only daughter of deceased Thimmaiya Naidu.

iii. If suppose some other children of deceased Thimmaiya Naidu is there, then how the Ist plaintiff and wife of deceased Thimmaiya Naidu by name Muthilammal alone jointly execute will in respect of the suit property. The reason of not adducing evidence regarding 'legal heir ship' of deceased Thimmaiya Naidu by plaintiffs is best known to them.

iv. Suppose the Ist plaintiff is having any brother and sister, children if any of those brothers and sisters and all children if any of Ist plaintiff are having right by birth in the suit property unless the property of the deceased Thimmaiya Naidu is partitioned among his legal heir / legal representatives as the property in the hands of Ist plaintiff and the wife of the deceased Thimmaiya Naidu is the ancestral property / co-partionary property.

v. No one can alienate the ancestral property / co-

partionary property through will. So will executed by the Ist plaintiff and her mother is a void will as they are not competent to execute that will in favour of some of the grandsons of Ist plaintiff, so, based on void will plaintiffs 2 to 5 cannot be declared as title holder of entire suit property it will result in granting of exclusive ownership to her. She is not the exclusive owner, she is only the joint owner if she is having some brothers and sisters. If she is not having some brothers and sisters, then also she is not exclusive owner, because her children are vested with the right of title in the suit property by birth itself. The Ist plaintiff who is P.W.1 is not a 'only issue' to her parents and she is also having several issues. This is evident from deposition of cross examination of P.W.1 which runs as follows:-

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