O.A.No.81 of 2023

in C.S.No.552 of 2019

SENTHILKUMAR RAMAMOORTHY,J.

Originally the suit was instituted only against the 1^st and 2^nd

defendants. The allegation of the applicants/ plaintiffs is that the father of

the 1st and 3rd plaintiffs had appointed a watchman, who was given a

small room for purposes of taking care of the property. The said

watchman and his sons and daughters have unlawfully put up

construction in the suit schedule property. Therefore, the present

application is to restrain them from alienating, encumbering and dealing

with the property and also to prevent them from continuing with the

construction.

2.Learned counsel for the applicants invited my attention to the

Will dated 23.09.1980. In particular, he pointed out that the boundaries

of the property are described thereunder and that the said Will dealt with

1060 sq.ft. He also referred to the sale deed dated 14.03.1975 and

pointed out that the said sale deed was restricted to 400 sq.ft.

3.Learned counsel also pointed out that there are two versions of

Page:1/7

https://www.mhc.tn.gov.in/judis

the death certificate of A.Kannabiran and that the place of death as

specified in these two death certificates does not tally. By drawing

reference to the unregistered Will of 20.05.1990, he submits that this is a

fabricated document and purportedly deals with 4996 sq.ft in S.No.95,

from and out of 2 acres and 60 cents.

4.Since the 3rd to 9th respondents have proceeded with unlawful

construction by relying upon fabricated documents, he submits that they

should be restrained from dealing with the property or proceeding with

such construction.

5.The 3rd to 9th respondents have filed a counter affidavit. In the

said counter affidavit, these respondents trace title on the basis that the

late Mr.Kannabiran married Muniyammal in the year 1948. The said

Munniyammal is said to be the maternal grandmother of the 3rd to 7th

respondents. Learned counsel for these respondents relies on the Will

dated 23.09.1980. In terms thereof, it is stated that the property was

bequeathed in favour of the 6th and 7th defendants and that the Will has

not been challenged or questioned till date. Learned counsel, therefore,

Page:2/7

https://www.mhc.tn.gov.in/judis

submits that even if the Will dated 26.05.1990 is disregarded for

interlocutory purposes, these respondents are entitled to rights over the

suit schedule property.

6.Learned counsel states that these respondents agree not to

alienate or encumber the property. Pursuant to a direction, the 3^rd to 9^th

respondents have provided details of rental agreements entered into by

them with about five tenants. They have also placed on record a

sanctioned plan dated 17.12.2020. Therefore, it is stated that the

construction was authorised by the planning authorities and the

Corporation and that such construction should not be restrained at this

juncture.

7.Upon examining the material documents and considering the

above submissions, it appears that there are rival claims in respect of the

property. Although learned counsel for the applicants has pointed out the

discrepancies in the extents and boundaries of the relevant property, no

definitive finding can be recorded at this juncture in relation thereto.

Page:3/7

https://www.mhc.tn.gov.in/judis

8.The photographs on record indicate that the construction has

reached an advanced stage. The rental agreements, in fact, indicate prima

facie that tenants have been put in possession. These documents,

however, would need to be tested in the course of trial.

9.In order to balance the equities at this stage, the following

directions are issued:

(i)Respondents 3 to 9 are restrained from alienating or

encumbering the suit schedule property in any manner

pending disposal of the suit.

(ii)No further construction shall be