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2016 DIGILAW 589 (MAD)

S. Rajeswari v. N. Rasayee

2016-02-15

C.S.KARNAN

body2016
JUDGMENT : 1. The brief facts of the case are as follows:- The plaintiffs have submitted that the suit property is the self acquired property of one Nallianna Goundar S/o Selambana Goundar of Manavadi Village, Karur Taluk. The said Nallianna Goundar is none other than the husband of the first defendant and the father of the defendants 2 to 5. The plaintiffs 1 and 2 are the issues of the fifth defendant. The plaintiffs had submitted that the said Nallianna Goundar acquired an extent of Ac.1.12 1/2 cents in S.F. No. 705, an extent of Ac.0.48 3/4 cents in S.F. No. 706 and an extent of Ac.0.38 cents in S.F. No. 707 of Manavadi Village by means of registered sale deeds with which they are not concerned in this suit. Considering his long and continuous possession and enjoyment of the suit properties and other properties referred above, patta has also been issued in the name of the said Nallianna Goundar. The true copies of Chitta and Adangal extracts for Fasli 1393 standing in the name of Nallia Goundar in respect of the suit property are herewith produced as Plaintiffs' document Nos.1 and 2 and the same may be read as part and parcel of this plaint. The plaintiffs had submitted that the first defendant had acquired an extent of Ac.1.12 1/2 cents in S.F. No. 705, an extent of Ac.0.48 3/4 cents in S.F. No. 706 and an extent of Ac.0.38 cents in S.F. No. 707 of Manavadi Village through her parents. She did not acquire any other properties except the above said properties either from her parents or through any other means. 2. The plaintiffs had further submitted that the above said Nallianna Goundar and the first defendant, being husband and wife, had been in possession and enjoyment of their respective properties. In such course of their possession and enjoyment, the said Nallianna Goundar and the first defendant at their own volition, without any compulsion or coercion had executed a Registered Will and Testament in respect of their respective properties in favour of the plaintiffs 1 and 2 herein on 23.09.1991. The above said Will was duly executed, attested by witnesses and registered according to law. It was the last Will of the said Nallianna Gounder. The above said Will was duly executed, attested by witnesses and registered according to law. It was the last Will of the said Nallianna Gounder. The registration copy of the original Will dated 23.09.1991 is herewith produced as Plaintiffs' document No.3 and the same may be read as part land parcel of this plaint. The plaintiffs had submitted that the said Nallianna Goundar died on 02.12.1991. The original death extract of Nallianna Goundar is herewith produced as Plaintiffs' document No.4 and the same may be read as part and parcel of this plaint. The plaintiffs had submitted that after the demise of Nallianna Goundar, the Will executed by him on 23.09.1991 came into effect and as per the recitals of the said Will, the properties belonging to the said Nallianna Goundar, which forms part of the Will, devolved upon the plaintiffs 1 and 2 herein and they have become absolute owners of the properties belonging to the Testator Nallianna Goundar which includes the suit property. When the facts are so, the first defendant who is yet another Testator in the Will dated 23.09.1991 has cancelled the Will dated 23.09.1991 by way of Will Cancellation Deed dated 11.12.1992 in entirety. It is pertinent to note that the first defendant is not entitled to cancel the Will in respect of the properties belonging to the said Nallianna Goundar. Even then, she with ulterior motive, without knowledge and consent of the plaintiffs 1 and 2, has cancelled the Will. The plaintiffs had submitted that at best the first defendant is at liberty to cancel the Will in respect of her properties alone and not the properties of her husband Nallianna Goundar. 3. The plaintiffs had submitted that the first defendant, not stopping with that, in order to defeat and defraud the proprietary rights of the plaintiffs 1 and 2, with her money and muscle power, appears to have submitted her name in the UDR patta in place of Nallianna Goundar and along with her issues namely, Rasayee, Palaniammal, Arukkani and Palanimalai (Defendants 2 to 5) appears to have sold the suit property to the sixth defendant herein by means of a registered sale deed dated 03.01.1994. It is pertinent to note that the deceased Nallianna Goundar did not own any property on the date of his death, besides the suit property and others are the self acquired property of Nallianna Goundar and during his life time he had executed the Will dated 13.09.1991 and hence his legal heirs have no manner of right, title, interest over the suit property. The plaintiffs 1 and 2 came to know about the sale deed as and when they have been making arrangements to deal with the suit property. Immediately they have applied for certified copy of the sale deed dated 03.01.1994 and at that time only they came to know about the illegal and collusive acts of the defendants 1 to 6 herein. Further, there are recitals in the sale deed dated 03.01.1994 that the plaintiffs 1 and 2 being then minors were represented by their father. But the fifth defendant who had adverse interest against the plaintiffs 1 and 2 from their early years, had no legal right to represent the interests of the minors in the alleged sale deed. The registration copy of the Will Cancellation Deed dated 11.12.1992 and the registration copy of the sale deed dated 03.01.1994 are herewith produced as document Nos.5 and 6 and the same may be read as part and parcel of this plaint. 4. The plaintiffs reiterate that the suit property and other properties were self acquired property of the said Nallianna Goundar and during his life time, he had bequeathed all his properties in favour of the plaintiffs 1 and 2 by means of a Will dated 13.09.1991. Therefore on the date of death of Nallianna Goundar, he did not own any property and therefore the legal heirs of the Nallianna Goundar cannot claim any right over the suit property and other properties of the said Nallianna Goundar. Therefore, the defendants 1 to 4 herein with ulterior motive and sinister design colluding with the fifth defendant have created a sale deed dated 03.01.1994 as though they are the owners of the suit property and therefore the sale deed is non-est in the eye of law and it will not affect the right, title interest of the plaintiffs over the suit property and the sale deed dated 03.01.1994 has to be declared as null and void. The plaintiffs had submitted that as soon as the illegal and unlawful acts of the defendants came to the knowledge of the plaintiffs 1 and 2, the plaintiffs 1 and 2 have approached the sixth defendant through the defendants 1 to 5 on 29.10.2005 and questioned their acts and requested them to surrender possession of the suit property. But the defendants are not amenable. Therefore necessity has arisen for the plaintiffs 1 and 2 to file this suit for Declaration and consequential relief of possession. 5. The sixth defendant namely Ravikumar has filed written statement which are as follows:- (i) The sixth defendant emphatically denied that the suit property is the self acquired property of Nallianna Goundar son of Selembana Goundar. It was not the property of Nallianna Goundar. The plaint does not disclose how Nallianna Goundar became entitled to the suit property. On the other hand the vague averments have been made in the plaint that considering his long and continuous possession and enjoyment of the suit properties and other properties, patta was issued in the name of Nallianna Goundar and true copies of Chitta and Adangal standing, in the name of Nallianna Goundar for Fasli 1393 are produced. This clearly shows that the entire case is built up on the alleged patta. The alleged patta if at all is standing in the name of Nallianna Goundar it ought to have been created clandestinely. When Nallianna Goundar had got no interest or right or title in the suit property, he can not claim any right in the suit property and the alleged patta in his name will not confer any right in respect of the suit property. (ii) On the other hand in fact the new suit survey field S.F.No.8 corresponding to old number for the same 335 with an extent of Ac.9.72 cents originally was granted to one Dhasi Ammani for performing dance at the time of the festivals in Karur Pasupatheeswaraswamy Temple. As she was doing dancing service in the said temple, she was given that property for the said service. Later on, the grant was enfranchised and Ryatwari Patta was given to her and she become absolute owner of the same. Thus from the date of grant, Dhasi Ammani was in possession and enjoyment of S.F.No.8. Her possession and enjoyment of the entire extent in the suit S.F. was also recognized in the revenue records. Later on, the grant was enfranchised and Ryatwari Patta was given to her and she become absolute owner of the same. Thus from the date of grant, Dhasi Ammani was in possession and enjoyment of S.F.No.8. Her possession and enjoyment of the entire extent in the suit S.F. was also recognized in the revenue records. (iii) Dhasi Ammani had two daughters. After the death of Dhasi Ammani, her two daughters became entitled to the property. Among the two daughters, they orally partitioned. Southern half was retained by one daughter and norther half was retained by another daughter. Kaliammal who was the successor of one of the daughters of Dhasi Ammani became entitled to northern half. Thus Kaliammal (i.e.) first defendant got the northern half from her mother side. As such it was her absolute and exclusive property. Except the first defendant no other person got any right over the northern half of the suit survey field. Now the northern half is the suit property. With regard to the southern half one of the daughters of Dhasi Ammani who was in possession and enjoyment of it dealt with the property by selling to third parties. Now the successors of the southern half of the suit survey field are Chinnappa Goundar and Mottaiyappa Goundar. In pursuance of their possession and enjoyment in the suit survey field No.8 by the above said persons, the Sub division has been effected and the property that was in enjoyment of the first defendant is assigned with 8/1 and the property in the enjoyment of Mottaiyappa Goundar is assigned by 8/2 and Chinnappa Goundar is assigned with 8/3 in the revenue records. Thus with regard to the suit property (i.e.) S.F.8/1 only the first defendant was entitled to it and she had been in exclusive and absolute possession and enjoyment of the same as a successor to in her mother's side. That being so, her husband Nallianna Goundar has got no manner of right whatsoever over the suit property. That being so the averments that considering long and continuous possession and enjoyment of the suit property patta has been issued in the name of Nallianna Goundar is absolutely false and as stated above it ought to have been obtained clandestinely by him when he has got no right over the same. That being so the averments that considering long and continuous possession and enjoyment of the suit property patta has been issued in the name of Nallianna Goundar is absolutely false and as stated above it ought to have been obtained clandestinely by him when he has got no right over the same. (iv) Further when Kaliammal was entitled to the suit property, the averments made that she did not acquire any property except the property in S.F. No. 705, 706 and 707 either from her parents or through any other means are denied. The suit property has been acquired by Kaliammal through her mother side and as such it was her absolute and exclusive property. It is true that Kaliammal-first defendant had been in possession and enjoyment of the suit property and other acquired properties separately. It is denied that on 23.09.1991 Nallianna Goundar and the first defendant at their own volition, without any compulsion or coercion had executed a registered Will and testament in respect of their respective properties in favour of the plaintiffs on 23.09.1991 and it was duly executed, attested by witnesses and registered according to law and it was the last Will of Nallianna Goundar. It is again denied that on the death of Nallianna Goundar the properties belonging to Nallianna Goundar devolved upon the plaintiffs and they have become absolute owner of the same which includes the suit property. Whatever it may be, the first defendant eventhough she is also another testator in the alleged Will dated 23.09.1991 had got every right to deal with the same in her own way. She is entitled to cancel the alleged Will. As the plaintiffs as well as fifth defendant were not properly caring or maintaining the first defendant, she thought of cancelling the Will dated 23.09.1991 by way of Will cancellation deed dated 11.12.1992 in entirety. She has got every right to deal with it and rightly she cancelled the same. That being so it is absolutely false and untenable to state that the first defendant is not entitled to cancel the Will in respect of the properties belonging to Nallianna Goundar. Whatever it may be the suit property did not belong to Nallianna Goundar and as stated above it was the property of the first defendant. She has got every right to cancel with regard to the suit property as well as her other properties. Whatever it may be the suit property did not belong to Nallianna Goundar and as stated above it was the property of the first defendant. She has got every right to cancel with regard to the suit property as well as her other properties. Rightly she has done so. That being so the plaintiffs are totally debarred from disputing or questioning the first defendant's right in canceling her own Will. (v) The averments that in order to defeat and defraud the proprietary rights of the plaintiff, the first defendant with her money and muscle power appears to have substituted her name in the UDR patta in place of Nallianna Goundar and appears to have sold the suit property in favour of this defendant on 03.01.1994 was denied. On the other hand in the place of the first defendant the name of Nallianna Goundar has been substituted without the knowledge of the first defendant rather behind her. Rightly as the successor to Dhasi Ammani, rightly the first defendant name has been included in the UDR patta. As the first defendant has been owner of the suit property and as she is in possession and enjoyment of the same, the first defendant on 22.02.1993 executed General Power of Attorney deed in favour of her two daughters namely Arukkani and Palaniammal and later on 28.12.1993 she cancelled the General Power of Attorney deed and on the same date, she along with her daughters namely Rasayee, Palaniammal and Arukkani and also his son and for minor daughters (i.e.) the plaintiff herein executed another general power of attorney deed. As the General Power of Attorney was not properly and correctly drafted by the Document writer, it was cancelled on 03.01.1994 and straightly this defendant has purchased the property on 03.01.1994 from the first defendant. Eventhough, the first defendant alone was the exclusive owner of the suit property, as this defendant insisted the daughters and son and grand daughters should join, the first defendant along with her daughters and son the fifth defendant for himself and on behalf of the plaintiffs have executed the sale deed in favour of this defendant for a good and valuable consideration of Rs.1,00,000/-. Eventhough the daughters and son and grand daughters (i.e.) plaintiffs are made as parties to the sale deed, they have got no right with regard to the same. Eventhough the daughters and son and grand daughters (i.e.) plaintiffs are made as parties to the sale deed, they have got no right with regard to the same. On the other hand only the first defendant was entitled to and she was the absolute and exclusive owner over the suit property. By way of abundant caution, they are also added as parties as this defendant wanted them to join. Therefore only the first defendant had got right over the suit property and others are only as formal parties and they have got no right or interest over the same. From the date of purchase this defendant has been in possession and enjoyment of the same. (vi) This defendant and the first defendant and their predecessors in title have been in exclusive, continuous and adverse possession and enjoyment of the suit property for more than the statutory period to the knowledge of all including the defendants and in their own right they have perfected title to the same by adverse possession also. Therefore except this defendant, the plaintiffs or other persons have got no right whatsoever over the suit property. It is absolutely false and untenable to state that when the plaintiffs applied for certified copy of the sale deed then only they came to know about the illegal and collusive acts of the defendants 1 to 6. As stated above, even though the plaintiffs are added as parties to the sale deed 03.01.1994 they had no right whatsoever. Only the first defendant was the exclusive owner of the same. It is once again emphatically denied that the suit property and other properties were self acquired properties of Nallianna Goundar and he bequeathed the same in favour of the plaintiffs by the Will dated 13.09.1994. On the contrary since the alleged Will has been cancelled, the plaintiffs cannot claim any right under the alleged Will. It is also false to state that the plaintiffs approached this defendant and questioned the acts and request them to surrender possession of the suit property but the defendants are not amenable. No such alleged incident took place. On the other hand, originally the first defendant was in exclusive possession and enjoyment of the suit property and after purchase by this defendant, he has been in possession and enjoyment of the same. No such alleged incident took place. On the other hand, originally the first defendant was in exclusive possession and enjoyment of the suit property and after purchase by this defendant, he has been in possession and enjoyment of the same. Therefore, the plaintiffs are not entitled to any declaration that the sale deed in favour of this defendant is null and void or this defendant is liable to surrender possession of the same since he has purchased the suit property from the rightful owner of the same. 6. Reply statement filed by the first plaintiff reads as follows:- (i) It is false to state that the suit property is the self acquired property of Nalliyanna Goundar S/o Selambana Goundar. It is false to state that the plaint does not disclose how Nalliyanna Goundar became entitled to the suit property and the plaint has been made with vague averments that considering his long and continuous possession and enjoyment of the suit properties, patta was issued in the name of Nalliyanna Goundar and the alleged patta ought to have been created clandestinely. (ii) The averments that the new survey field No.8 corresponding to old number for the same 335 with an extent of Ac.9.72 cents was originally granted to one Dhasi Ammani for performing dance at the time of the festivals in Karur Pasupatheeswaraswamy Temple and as she was doing dancing service in the said temple, she was given the property for the said service, and later on the grant was enfranchised and Ryatwari Patta was given to her and she has become absolute owner of the same and thus from the date of grant Dhasi Ammani was in possession and enjoyment of S.F.No.8 and her possession and enjoyment of the entire extent in the suit survey field was also recognized in the revenue records are all specifically denied as false and incorrect. The alleged grant in favour of Dhasi Ammani is specifically denied as false and incorrect and the defendants are put to strict proof of the same. (iii) The averments that the said Dhasi Ammani had two daughters and after the death of Dhasi Ammani her two daughters became entitled to and among the two daughters they orally partitioned and southern half was retained by one daughter and northern half was retained by another daughter are all false and incorrect. (iii) The averments that the said Dhasi Ammani had two daughters and after the death of Dhasi Ammani her two daughters became entitled to and among the two daughters they orally partitioned and southern half was retained by one daughter and northern half was retained by another daughter are all false and incorrect. The averments that Kaliyammal who was successor of one of the daughters of Dhasi Ammani had become entitled to northern half, thus the first defendant got the northern half from her mother side and the same was her absolute and exclusive property are all specifically denied as false and incorrect. It is false to state that except the first defendant no other person got any right over the northern half of the suit survey field. On the other hand, there was no grant in favour of Dhasi Ammani and therefore the averment that the first defendant has succeeded the northern half are all false and incorrect and it has been stated in order to suit the false defence on the defendant. (iv) It is submitted that originally an extent of Ac.9.72 cents was in possession and enjoyment of one Nalliyanna Goundar and Sellappa Goundar S/o Vaiyapuri Goundar. Recognising their possession and enjoyment of the said extent, Ryatwari Patta has been granted under Minor Inam Abolition Act by the Settlement Tahsildar on 21.09.1967. The plaintiffs are producing herewith the Xerox copy of True copy of order passed by Settlement Tahsildar. So, the above said extent was the absolute and exclusive property of the above said Nalliyanna Goundar and Sellappa Goundar. Subsequent to the patta granted, they orally divided the said extent and in that oral partition the suit property was allotted to Nalliyanna Goundar. So on and from the oral partition, he was in possession and enjoyment of Ac.4.86 out of Ac.9.72 in the survey, i.e. S.F. No. 8 as his own, exclusive and absolute property. Since it is the self acquired property of the said Nalliyanna Goundar, his wife Kaliyammal-first defendant herein cannot claim any right over the same. Only after considering his long possession and enjoyment patta has been issued in his favour regarding the suit property. As already stated in the plaint, Kaliyammal-first defendant herein had acquired property from her mother and by other modes only in S.F.No.705, 706 and 707 and not in the suit survey field. Only after considering his long possession and enjoyment patta has been issued in his favour regarding the suit property. As already stated in the plaint, Kaliyammal-first defendant herein had acquired property from her mother and by other modes only in S.F.No.705, 706 and 707 and not in the suit survey field. (v) It is false to deny the Will dated 23.09.1991 executed by Nalliyanna Goundar along with the first defendant herein. In fact the said Nalliyanna Goundar had bequeathed the suit property in favour of the plaintiffs herein. Though the said Will was jointly executed by the said Nalliyanna Goundar and Kaliyammal regarding their exclusive properties, after the demise of Nalliyanna Goundar the Will came into effect and the plaintiffs have become absolutely entitled to the properties bequeathed by the said Nalliyanna Goundar in the said Will dated 23.09.1991. The first defendant has no locus standi to cancel the Will in regard to the properties bequeathed by the said Nalliyanna Goundar. It is further submitted that subsequent to the demise of Nalliyanna Goundar as per the recitals of the said Will, the plaintiffs have become absolutely entitled to the suit property and considering their right, title, interest and possession patta has been mutated in their names. It is pertinent to note that on the date of death of Nalliyanna Goundar, he did not possess any property and therefore the first defendant cannot claim any right over the properties bequeathed by the said Nalliyanna Goundar in general and the suit property in particular. (vi) When the first defendant's right over the suit property is specifically denied by the plaintiffs, the alleged General Power Deed executed by her on 22.02.1993 in favour of her two daughters namely Arukkani and Palaniammal is non est in the eye of law. Further averments that the first defendant had cancelled the power granted in favour of her daughters on 28.12.1993 and executed general power of attorney deed along with her daughters in favour of sixth defendant and it was also cancelled as it was incorrectly written by the Document Writer and after canceling the same, the first defendant and others sold the same to the sixth defendant are all specifically denied as false and incorrect. As the first defendant has no manner of right over the suit property either as her self acquired property or as a successor to her husband Nalliyanna Goundar, any document executed by her will not bind upon the plaintiffs who on the other hand acquired the same by virtue of the Will dated 23.09.1991 executed by the said Nalliyanna Gounder. The Will had been duly executed, attested and registered and it was the last Will of the said Nalliyanna Goundar. In any event, the plaintiffs have sold the suit property to V. Elangovan, son of Veeramalai, residing at 12, Teachers Colony Extension, Chinnandankoil Road, Karur Town (1) M. Loganathan son of Marappan, residing at 37, Karunalliyagoundanoor, Jegathabi Post, Karur Taluk (2) P. Subramani, son of Perumal Goundar, residing at Narikattiyur, Sanapiratti Village, Karur Taluk and (3) P. Murugesan, son of Bomma Naicker, residing at Kodangipatti, Thantoni Post, Karur Taluk for a good and valuable consideration under registered sale deed dated 28.01.2008. Therefore, it is prayed that this Court may be pleased to decree the suit as prayed for. 7. The sixth defendant has filed additional written statement which are as follows:- "It is emphatically denied that the plaintiffs 3 to 6 have purchased the entire suit properties from the plaintiffs 1 and 2 under a sale deed dated 28.01.2008 for Rs.4,80,000/-. The truth, validity and binding nature of the alleged sale deed is not admitted. It is a created and fabricated document. Knowing full well that the plaintiffs 1 and 2 have got no case at all in the present suit, with a view to give trouble now they have set up the plaintiffs 3 to 6 to coerce this defendant to yield to the terms of the plaintiffs 1 and 2. It is well settled law that if any person purchases the suit property during the pendency of the suit, he is bound by the decree that is to be passed against his vendor and he is not at all necessary party to the suit as the sale is affected by lispendense. In this case also, the alleged sale is affected by lispendense. Under such circumstances, the plaintiffs 3 to 6 have got no independent case. Inspite of hot contest by this defendant, they have been impleaded. In this case also, the alleged sale is affected by lispendense. Under such circumstances, the plaintiffs 3 to 6 have got no independent case. Inspite of hot contest by this defendant, they have been impleaded. Therefore the averments that the plaintiffs 1 and 2 have represented that they have got decree on 19.01.2006 in their favour and they are the absolute and exclusive owners of the suit property and as such now the plaintiffs 3 to 6 are the absolute and exclusive owners of the suit property are all absolutely false and they are denied. Neither the plaintiffs 1 and 2 nor the plaintiffs 3 to 6 have got any manner of right or title or interest whatsoever with regard to the suit property. In fact, the suit property originally belonged to first defendant. She was the absolute and exclusive owner of the same. When this defendant purchased the suit property on 03.01.1994 from her by way of abundant caution, the daughters, sons and granddaughters were also added as a party as this defendant wanted them to join. So, rightly they have executed the sale deed in favour of this defendant for valuable consideration as stated in the original statement. Subsequent to the purchase, this defendant has been in exclusive possession and enjoyment of the same in his own right. Except this defendant, no other person has got any right whatsoever over the same. Further he has also perfected title to the same by adverse possession also. Once again this defendant reiterates that the suit is hopelessly barred by limitation. Therefore, it is prayed that this Court may be pleased to dismiss the suit with the cost of this respondent." 8. After considering the averments of both parties, the trial Court has framed three issues namely (i) whether the plaintiffs are entitled to get declaration as prayed for? (ii) whether the plaintiffs are entitled to get possession as prayed? (iii) what other relief are the plaintiffs entitled to? 9. After considering the averments of both parties, the trial Court has framed three issues namely (i) whether the plaintiffs are entitled to get declaration as prayed for? (ii) whether the plaintiffs are entitled to get possession as prayed? (iii) what other relief are the plaintiffs entitled to? 9. On the side of the plaintiffs, 7 witnesses were examined and 9 documents were marked namely Ex.P1-True copy of Ryotwari Patta issued by the Settlement Tahsildar issued to Nalliyanna Goundar and Chellappa Gounder for suit survey number dated 21.09.1967; Ex.P2-True copy of Chitta issued for fasli 1393 in the name of Nalliyanna Gounder and Chellappa Gounder; Ex.P3-Copy of Adangal account in the name of Nalliyanna Gounder; Ex.P4-Certified copy of Will dated 23.09.1991; Ex.P5-Death Certificate of Nalliyanna Gounder dated 18.04.2005; Ex.P6-Copy of Will cancellation deed dated 11.12.1992; Ex.P7-Copy of sale deed dated 03.01.1994; Ex.P8-Original of registered sale deed dated 28.01.2008; Ex.P9-Copy of sale deed dated 29.05.1973. 10. On the side of the defendants, one witness was examined as DW1 and 16 documents were marked as Exhibits D1 to D16 namely Ex.D1-Copy of sale deed dated 04.11.1938; Ex.D2-Survey and resettlement register dated 10.08.2007; Ex.D3-Land Tax receipt dated 19.01.1986 in the name of first defendant; Ex.D4-Land Tax receipt dated 11.01.1988 in the name of first defendant; Ex.D5-Land Tax receipt dated 22.01.1990 in the name of first defendant; Ex.D6-Land Tax receipt in the name of first defendant; Ex.D7-Land Tax receipt dated 20.12.2005 in the name of sixth defendant; Ex.D8-Land Tax receipt dated 20.12.2005 in the name of sixth defendant; Ex.D9-Copy of order dated 18.01.2006 passed by Settlement Tahsildar; Ex.D10-Copy of order passed in writ petition No.1 of 2007 by the Madurai Bench of Madras High Court dated 24.01.2008; Ex.D11-Copy of general power of attorney dated 22.02.1993; Ex.D12-Cancellation of general power of attorney dated 28.12.1993; Ex.D13-Registered general power of attorney dated 28.12.1993; Ex.D14-Registered general power of attorney deed dated 03.01.1994; Ex.D15-Registered sale deed dated 03.01.1994; Ex.D16-Details of lands possessed by the sixth defendant. 11. Seven documents were marked as X1 to X7 as third party exhibits namely Ex.X1-Copy of order dated 21.09.1967 passed by settlement Tahsildar; Ex.X2-Copy of resettlement Faisalathi register; Ex.X3-Copy of Will dated 23.09.1991; Ex.X4-Land survey register pertaining to the period from 17.09.1991 to 11.09.1992; Ex.X5-Copy of patta No.912 pertaining to document P2; Ex.X6-Copy of 'A' register; Ex.X7-Copy of chitta standing in the name of Kaliammal. 12. 12. PW1, in her evidence has stated that the Settlement Tahsildar has issued Ryotwari patta for the suit survey number in the name of Nalliyanna Gounder and Chellappa Gounder (Ex.P1) and that the copy of the chitta for the suit property in 1393 fasli and adangal stands in the name of Nalliyanna Gounder (Ex.P2 and Ex.P3). She has further adduced evidence that Nalliyanna Gounder had executed a Will for the suit property and other property in favour of her and the second plaintiff and that the copy of the Will has been marked as Ex.P4. She has further marked the death certificate of Nalliyanna Gounder as Ex.P5 and copy of Will cancellation deed of first defendant as Ex.P6. She has further stated that the defendants 1 to 5 had executed a sale deed to and in favour of the sixth defendant and had marked a copy of it as Ex.P7. She has further stated that the first and second plaintiffs had executed a sale deed to and in favour of the plaintiffs 3 to 6 and had marked the sale deed as Ex.P8. She further stated that Chellappan and others had executed a sale deed to and in favour of Chellappan and Motayappan and had marked the copy of sale deed as Ex.P9. She has asked for grant of relief as prayed for in the suit. PW2 to PW6 have also adduced evidence which is corroborative of evidence of PW1. 13. The sixth defendant DW6 had adduced evidence that the general power of attorney given to the first daughter of the first defendant (Ex.D11) had been cancelled as per document marked as Ex.D12. He stated that the first defendant and her daughter had executed a power of attorney deed in his name (Ex.D13) and that it had been cancelled as per document marked as Ex.D14. He further adduced evidence that the first defendant and her children had executed a sale deed to and in his favour (Ex.D15) and that as per the sale deed he had been issued patta marked as Ex.D16. Hence, he has prayed for dismissal of the suit. 14. The trial Court, after scrutiny of oral and documentary evidence and after hearing the arguments of the learned counsels on either side dismissed the suit. Aggrieved by the dismissal of their suit, the plaintiffs have filed an appeal before the Additional Subordinate Judge, Karur. Hence, he has prayed for dismissal of the suit. 14. The trial Court, after scrutiny of oral and documentary evidence and after hearing the arguments of the learned counsels on either side dismissed the suit. Aggrieved by the dismissal of their suit, the plaintiffs have filed an appeal before the Additional Subordinate Judge, Karur. The learned Judge, after scrutiny of oral and documentary evidence, dismissed the appeal and confirmed the order passed by the trial Court. Aggrieved by the dismissal of the appeal, the appellants/plaintiffs have preferred the present appeal before this Court. 15. The learned counsel for the appellants has raised the following grounds and substantial questions of law in his appeal. Grounds: "1. The judgment and decree passed by the Courts below are contrary to law and liable to be set aside. 2. The Courts below ought to have decreed the suit as prayed for. 3. The Courts below ought to have held that the suit joint Will cannot be revoked unilaterally by one person. 4. The Courts below ought to have held that the joint Will executed by both the husband and wife could not be cancelled by one person alone that too after the life time of her husband. 5. The Courts below erred in holding that the suit Will is mutual Will and not a joint Will. 6. The Courts below erred in holding that the suit Will has not been proved. 7. The Courts below ought to have seen that in as much as there is a deed of revocation of the Will, ought to have presumed that the execution of the original Will is admitted. 8. The Courts below failed to take into account the admissions made by the defendants. 9. The Courts below ought to have held that none marking or production of the original Will will not vitiate the case of the plaintiffs. 10. The Courts below ought to have held that the father of the original plaintiffs namely Palanimalai was not competent to sell the properties gifted to his minor children namely Rajeswari and Sudha when the mother has been nominated as executant of the Will. 11. The Courts below erred in observing that the suit property belongs to Arulmighu Kalyanapasupatheeswarar Temple, Karur when it is not the case of either of the parties. 12. 11. The Courts below erred in observing that the suit property belongs to Arulmighu Kalyanapasupatheeswarar Temple, Karur when it is not the case of either of the parties. 12. The conclusion of the Courts below that failure to implead the temple will come in the way of granting declaratory relief is not correct. 13. The issue of non-joinder of the temple is wholly irrelevant in the instant case. 14. The Courts below ought to have seen that the relief sought for is that the registered sale deed dated 03.01.1994 in respect of the suit property executed by original defendants 1 to 5 in favour of K. Ravikumar is null and void and no relief regarding declaration of title has been sought for. 15. The Courts below ought to have held that the order passed by the Settlement Tahsildar as evidenced under Ex.A1 has become final and that the same has not been set aside in the manner known to law. 16. The Courts below erred in holding that the suit property belonged to Kaliammal exclusively. 17. The Courts below ought to have seen that sufficient evidence has been placed to show that the properties belong to Nalliyanna Gounder and Chellappa Gounder. 18. The Courts below ought to have seen that Ex.A9 which is an ancient document and which came into existence as early as on 29.05.1973 clearly proves the right of Nalliyanna Gounder. 19. The Courts below ought to have seen that in as much as the properties were originally Inam Lands and after its Abolition patta was granted to the above said persons, the Courts below ought to have relied on the same and come to the conclusion that the property belongs to Nalliyanna Gounder viz., the grand father of the plaintiffs 1 and 2 and husband of the first defendant. The Courts below have erred in relying upon Ex.A1 and looking the same with suspicion. The conjoined look at Ex.A1 as well as B9 would indicate that both are the same. In Ex.B9 alone, there is a mistake committed with reference to the serial number of the case and the name of the person. Other wise both the documents are one and the same. In this context, the Courts below have not given importance to Ex.A9. In Ex.B9 alone, there is a mistake committed with reference to the serial number of the case and the name of the person. Other wise both the documents are one and the same. In this context, the Courts below have not given importance to Ex.A9. Similarly the other revenue records filed by the plaintiffs into Courts below are corroborated by the documents produced by the Government and exhibited as X series. The entire approach by the Courts below in not relying on Ex.A1 is erroneous. 20. The Courts below have failed to see that both the plaintiffs and as well as the defendants are claiming rival title. The plaintiffs have established by convincing documentary evidence that the entire property belonged to Nallianna Gounder and Sellappa Gounder. When once the contesting defendant makes rival claim of title the burden also equally on him to establish his title dehorns the facts that the principle of law that the plaintiff has to prove his case. There is an exception to the General Rule that in the case where there are rival claims of title made, every claimant must prove title. A perusal of the documents filed by the defendant into Court would indicate that the case set up by them in the written statement has not been established. In the written statement, the contention of the sixth defendant is that the first defendant is one of the daughters of late Thasi Ammani. This fact has not been established by the contesting defendants. No records are filed into Court to show that the first defendant is the daughter of Thasi Ammani. 21. The Courts below ought to have seen that similarly a perusal of Ex.B1 also indicates that the executant of the document was not that of Thasi even in 1938 at the time when Thasi Service was in force. If really the executant of Ex.B1 who is said to be sister of the first defendant was a thasi she would not have described her as wife of an individual. Hence the Courts below ought not to have relied on the defence that the first defendant and the executant of Ex.B1 are thasis and are the daughters of Thasi Ammani. 22. Hence the Courts below ought not to have relied on the defence that the first defendant and the executant of Ex.B1 are thasis and are the daughters of Thasi Ammani. 22. The Courts below have failed to see that the contesting defendant has not filed any records into Court that the mother of the first defendant was treated as thasi and in recognition of her service as thasi any patta has been given. Except producing the settlement register extract marked as Ex.B2 which discloses the temple as the pattadhar and not Thasi Ammani as pattadhar, the contesting defendant has not filed any document into Court. If really recognizing her services as thasi, patta would have been given to Ammani and patta mentioned in the above document is not before Court. 23. The Courts below failed to see that there are many inconstant stands taken by the first defendant at various points of time regarding the title to the suit property. A perusal of the power of attorney filed into Court that one point of time the first defenant would claim exclusive title to the property on the basis of sale deed and at different points of time as of Thasi Ammani. Admittedly the 6th defendant is a stranger to the family who is not competent to give evidence in respect of all these aspects. Under these circumstances, the Courts below ought to have held that in addition to the fact that the plaintiffs have established title to the property and the contesting 6th defendant has failed to establish that the title was with the first defendant. 24. The observation of the Courts below that the PW.1 herself had admitted the division and hence the case of the plaintiffs cannot be accepted is erroneous. 25. The Courts below ought to have seen that at the time when the first plaintiff gave evidence as PW.1 she was hardly 24 years of age. She was not born at the time when Ex.B1 was executed. The case of the 6th defendant is that the properties of Ammani were divided between two sisters and one sister sold the property allotted to her under Ex.B1 which is of the year 1938. Under these circumstances, the observation of the Courts below that there had been admission made by the first plaintiff herself about the division and so the case of the plaintiffs cannot be accepted is erroneous. Under these circumstances, the observation of the Courts below that there had been admission made by the first plaintiff herself about the division and so the case of the plaintiffs cannot be accepted is erroneous. 26. The Courts below ought to have seen that more over a proper perusal of the testimony of the PW.1 would indicate that after filing of the suit, she made enquiry about the name of the mother of the first defendant and on that it was stated that whether the mother's name of the first defendant was Ammani and the answer is 'No'. 27. The Courts below ought to have looked into and examination of evidence of PW.1 in toto and relying portion of the evidence and leaving the rest is not a proper appreciation of oral evidence. 28. The Courts below ought to have held that the sale deed alleged to have been executed by the first defendant in favour of the 6th defendant marked as Ex.B.15 is invalid and not binding on the rights of the plaintiff. The first defendant who is now dead is not competent to revoke the Will. In as much as the execution of the same is admitted it has come into force after the life time of the first defendant in which case also the sale deed executed by first defendant assuming it to be true will not ensure since she is not competent to revoke the Will. 29. The other reasons assigned by the Courts below are materially irregular and unsustainable in law and liable to be set aside. Substantial questions of law: A. Whether the Courts below are justified in construing the Ex.A.4 Will dated 23.09.1991 as a mutual Will and not as a joint Will? B. Whether the deceased first defendant Kaliammal was competent to revoke Ex.A.4 by executing Ex.A.6 dated 11.12.1992 after the demise of her husband Nallianna Gounder? C. Whether the findings of the Courts below that the suit property belonged to D.1 Kaliammal and not that of her husband Nallianna Gounder is vitiated for failure to take into account the Ex.A.1, A.2 and A.3 dated 21.09.1967 and A.9 dated 29.05.1973? D. Whether failure to produce the original Will can be a fatal to the case of the plaintiffs in view of the admission made by the defendants both orally and vide Ex.A.6 dated 11.12.1992? D. Whether failure to produce the original Will can be a fatal to the case of the plaintiffs in view of the admission made by the defendants both orally and vide Ex.A.6 dated 11.12.1992? E. Whether Ex.A.7, dated 03.01.1994 executed by the original defendants 1 to 5 in favour of D.5 Ravikumar is null and void since the properties have been settled in favour of the minor children and the mother has been shown as the guardian? F. Whether one executor can revoke a joint Will when the Will has already partially came into effect? 16. From the above discussion, it is evident from Ex.P6 i.e. Copy of Will cancellation deed dated 11.12.1992 that there was an original Will as per certified copy of Will dated 23.09.1991 (Ex.P4). Further, it is seen that the said Will is a joint will executed by both the husband and wife and as such it cannot be cancelled by one person alone, moreso, after the expiry of her husband. Even, in the event of cancellation of a joint Will, the first defendant has right only to cancel her share of the property gifted to the plaintiffs and she has no right to cancel the gift of lands owned by her husband, as she has become the executrix of the Will after the death of her husband. Further, it is seen that as per Ex.P1, the settlement Tahsildar has passed orders for issuance of Ryotwari patta in the name of Nallianna Gounder after scrutiny of records and as such the issue of non-production of original of ryotwari patta is not of much relevance, more so as the said order has not been set aside. Further, from Ex.P9, copy of sale deed dated 29.05.1973, it is seen that Nallianna Gounder had absolute rights over the suit property. The non appearance of the first defendant to dispute the Will and the fact that the defendants 1 to 5 have not chosen to give evidence is also a point in favour of the plaintiffs. 17. Further, from Ex.P9, copy of sale deed dated 29.05.1973, it is seen that Nallianna Gounder had absolute rights over the suit property. The non appearance of the first defendant to dispute the Will and the fact that the defendants 1 to 5 have not chosen to give evidence is also a point in favour of the plaintiffs. 17. On considering the facts and circumstances of the case and on perusing the typed set of papers and on perusing the records of the Courts below, the Second Appeal is hereby allowed and the judgment and decree of the trial Court made in O.S.No.987 of 2005 by the Additional Subordinate Judge, Karur, dated 01.10.2010 and the judgment and decree dated 09.11.2011 made in A.S.No.12 of 2011 by the Principal District Munsif, Karur are hereby set aside. 18. In the result, the above second appeal is allowed. There is no order as to cost.