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2025 DIGILAW 176 (MAD)

M. Sumathi v. R. Bharathi

2025-01-07

T.V.THAMILSELVI

body2025
JUDGMENT : (T.V. THAMILSELVI, J.) These appeals have been filed to set aside the judgement and decree dated 04.03.2024 passed in A.S No. 119 of 2023, on the file of II Additional District and Sessions Judge, Tirupur, confirming the judgement and decree dated 05.09.2023 passed in OS No. 582 of 2010, on the file of the Principal Subordinate Judge, Tirupur. 2. The suit in OS No. 582 of 2010 was filed by the first respondent herein, on the file of the Principal Subordinate Court, Trippur, against the appellants herein/defendants 1 & 2 and 3rd defendant/Karai Vinayagar Temple represented by Assistant Commissioner, HR & CE, Tirupur, to declare the judgement and decree dated 29.04.2010 in OS No. 145 of 2010 as Null and void. The said suit was decreed by the Trial Court and the same was confirmed by the First appellate Court. Challenging the concurrent findings of the Courts below, the defendants 1 and 2 filed these second appeals. 3. The brief facts of the plaintiff case as follows: The suit property was originally belonged on Kuppusamy Gounder Son of Muthusamy Gounder( father of the plaintiff ) by ancestral. Kuppusamy Gounder bequeathed a registered Will on 07.10.1947 with respect to the suit properties in favour of Karai vinayagar Temple ( in short ''Temple'' ) which was constructed by the said Kuppusamy Gounder. The said Kuppusamy Gounder had one son namely Rathinsamy @ Muthurathinasamy Gounder and two daughters namely Punniyavathi and R.Bharathi/plaintiff. The said Bharathi is plaintiff herein, the defendants 1 and 2 are the son of of the said Rathinasamy Gounder/brother of the plaintiff. According to the plaintiff, the suit properties as described in the plaint schedule in S.No. 11/1, 12, 13 & 14 with large extent of the land was bequeathed by his father through registered Will dated 07.10.1947 in favour of Karai Vinayagar Temple, which was constructed by him during his life time, with the condition that, if he died and his son namely Rathinasamy Gounder @ Muthurathinasamy Gounder has not became major then the said Kuppusamy Gounder's brother namely Chinnasamy Gounder along with the Narayanasamy, Kuppanda Gounder, N.Avinashiappa Gounder and Arunachalam Thambiral being appointed as to execute and perform the pooja and other functions to the Karai Vinayagar Temple out of the earnings from the suit property which is his last Will. In the year 1964, plaintiff's father died leaving behind son and two daughters as his legal heirs and thereafter her mother was died in the year 1978. Subsequently, her brother Rathinasamy was died in the year 1990 and her another sister Punniavathi was died in the year 1997. After the death of his father, her brother Rathinsamy acted as a trustee to the said Temple. As per the partition deed, C schedule property was allotted to the Karai Vinayagar Temple, in which no one has right including her brother Rathinasamy, who was permitted to perform poojas to the said ''Temple''. Thereby, the suit property is absolutely belongs to the ''Temple'', the legal heirs of the deceased Kuppusamy Gounder have no rights or title over the suit property but the defendants 1 and 2 who are Rathinasamy's children filed OS No. 145 of 2010 and obtained collusive decree in respect of the suit property as if her father executed a another Will dated 27.07.1964 through which their father gave a suit property absolutely to the first defendant and cancelled the previous Will dated 07.10.1947. The plaintiff claimed that the second Will was fabricated one created by the defendants 1 and 2 for unalawful gains and based on the said Will they obtained collusive decree in order to grab the property which belongs to the ''Temple''. Thereby, she claimed that, judgment and decree passed in OS No. 145 of 2010 based on the said Will is null and void. 4. The said suit was contested by the defendants 1 and 2, 3rd defendant/Karai Vinayagar Temple represented by HR & CE remains exparte. 5. The contested defendants admitted the relationship with the plaintiff but denied the Will executed by the Kuppsamy Gounder in favour of the Karai Vinayagar Temple and also denied that it is a last Will as alleged by the plaintiff. They submitted that Kuppsamy Gounder and Rathinasamy Gounder have entered into partition on 31.12.1961 in which Kuppusamy Gounder allotted with A schedule property and his son was allotted with B schedule property but it is false to state that suit properties was allotted to the '' Temple'' as ''c'' Schedule with life time enjoyement of Kuppsamy gounder and thereafter, his son Rathinasamy Gounder was appointed as trustee to use the earnings arises from the property to maintain the '' Temple''. Further they contend that after the said partition, Kuppusamy Gounder/grand father executed a Will dated 27.07.1964 whereby he bequeathed the properties situated in S.No. 11/1, 12, 13 and 14 in favour of his son Rathinasamy Gouner and after his demise properties devolved upon his children/defendants 1 and 2 absolutely thereby the defendants being the legal heirs of the Rathinasamy Gounder, having absolute right over the property. Further, they contended that after execution of the partition deed dated 31.12.1961, the alleged earlier Will dated 07.10.1947 became invalid and terms are unenforceable in the eye of law. Their father Rathinasamy Gounder also exercised all his ownership, after his demise as per the Will dated 27.07.1964 these defendants succeeded the suit properties and for amicable partition the defendant filed OS No. 145 of 2010 against her brother/second defendant, who also consented for her claim of 3/4 share in that suit property. Accordingly, decree was passed in said suit as per the manner known to law. The plaintiff has no right and title over the suit property at any point of time. Hence, prayed to dismiss the suit. 6. Before the Trial Court, the plaintiff was examined as PW.1, the defendant was examined as D.W.1. Both the parties were adduced the documents which were marked as Ex.A1 to 14 and Ex.B1 to 12. Based on that an issue was framed whether the decree and judgment passed in OS No. 145 of 2010 on the file of the Principal Sub Court, Tiruppur is liable to be declared as Null and Void? Considering the submissions on either side, the Trial Court held that the suit property belongs to plaintiff's father Kuppusamy Gounder, who executed a Will in the year of 1947 subsequently there was partition between his son/Rathinasamy Gounder. The recitals of the both the documents reveals that suit property was allotted to the ''Temple'' which was established by the plaintiff and those documents were marked as Ex.A8 and A9, which are admitted by the defendants therefore, if at all any other will relied by the defendants, they are bound to prove the same but without proof they obtained the decree. Besides, as per the recitals of Ex.A9/Will the legal heirs of the testator Kuppusamy Gounder was given right over the ''Temple''. Besides, as per the recitals of Ex.A9/Will the legal heirs of the testator Kuppusamy Gounder was given right over the ''Temple''. Accordingly, the plaintiff who is daughter of Kuppusamy Gounder , is having locus standi to file the suit thereby the Court declared the alleged decree obtained by the defendants 1 and 2 as Null and Void. Against which, the defendants filed the appeal in AS No. 119 of 2023, wherein the first appellate judge independently analysed the oral and documentary evidence finally held that the suit decreed in OS No. 145 of 2010 based on the alleged memo filed by the defendants, which clearly proves that it is collusive suit and the Will also not been proved by the parties and decree obtained by advancing the hearing. Hence, the decree is collusive in nature a extent of the property also varies comparing to extent mentioned in Will of the year 1947 as well as Will of the year 1964 and also observed that the original testator Kuppusamy also not given any right to make any encumbrance over the suit property, which is absolutely belongs to the ''temple'', so also his son Rathinasamy Gounder, has not given any absolute right to the defendants 1 and 2, based on the alleged partition deed tried to convert the suit property as if it is absolutely belongs to their father Kuppusamy. Thereby, the findings rendered by the Court below was confirmed by dismissing the appeal. 7. Challenging the concurrent findings of the Courts below, the defendants 1 and 2 filed these second appeals on the following prime grounds. i. The judgment and decree of the Trial court and the first appellate Court are vitiated by misconception of law and the entire facts, when the suit itself is not maintainable being a stranger to the suit property. The Trial Court failed to appreciate the facts of the case in the proper perspective of the law. The findings and the decisions relied upon are not relevant and are against all principles of law and as such the impugned judgment of the First Appellate Court and that of the Trial Court are liable to be set aside. ii. The courts below had grossly erred and committed a fallacy of justice by entertaining a suit at the instance of the 1st respondent herein, without any cause or interest in the suit properties. ii. The courts below had grossly erred and committed a fallacy of justice by entertaining a suit at the instance of the 1st respondent herein, without any cause or interest in the suit properties. The right to seek for a remedy recognised under common law principles, more particularly under Section 9 of the C.P.C., being ' the jurisdiction of the Court to try the suit'' has to be only when a cause as to the existing right is shown. Pertinently, the two essential prerequisites that need to be fullfilled before entertaining a civil suit would be (1) there must be a ''cause of action'' for the person suing and (2) that the person who institutes the suit should have a right over the subject matter and decree sought for. iii.. Further on the same point, our Hon'ble Court in the case of P. Suresh vs. R. Rangasamy and Ors. (30.11.2020 - MADHC). reported in MANU/TN/6417/2020 as held that A simple relief for declaring that the decree passed in the earlier suit, without a corresponding prayer for declaration of his right in the suit property achieves nothing. A Decree declaring an earlier Decree as void is a mere enabling Decree, passing which the Court would be in a position to declare the right of the plaintiff. A suit where the plaintiff seeks only an enabling relief but omits to seek a substantial relief is plainly not maintainable. iv. The Trial Court and the First Appellate Court had failed to appreciate the well settled position of law that though the Will is not registered one, the subsequent Will prevail over the previous Will, which would cancel the previous Will and only the later Will will prevail. v. The Trial Court and the First appellate court has failed to appreciate the facts that the Will in respect to the suit property and other properties dated 07.10.1947 marked as Ex.A9 does not have a force in law as the subsequent partition Deed Ex.A8 dated 31.12.1961 will take effect and supersede the existence of the said the Will. vi. v. The Trial Court and the First appellate court has failed to appreciate the facts that the Will in respect to the suit property and other properties dated 07.10.1947 marked as Ex.A9 does not have a force in law as the subsequent partition Deed Ex.A8 dated 31.12.1961 will take effect and supersede the existence of the said the Will. vi. The Trial Court and the First appellate Court have wrongly made a findings that in Ex.A8 partition deed executed between Kuppusamy Gounder and his son Rathinasamy Gounder, it is stated that the 'C schedule properties were allotted to Karai Vinayagar Kovil as per Will dated 07.10.1947 and that Kuppusamy Gounder will perform the poojas as Trustee in the said Temple and that after his death, his son Rathinasamy Gounder has to continue the Trust activities and poojas in the Temple and other Charitable Activities from the income of the 'C ' schedule properties. vii. The Trial Court and the First appellate Court failed to consider the facts that there was no condition whatsoever which was imposed upon Rathinasamy Gounder @ Muthu Rathinasamy Gounder , who is the father of the appellants herein to act as a trustee of the said Karai Vinayagar Temple after the death of Kuppusamy Gounder in the Exhibit A8, the partition deed dated 31.12.1961. viii. The Trial Court and First appellate Court failed to note the fact that the plaintiff herein is the class II legal heir of Rathinasamy Gounder, since the properties has been allotted to Rathinasamy Gounder, the properties allotted to his will pass on to the Class I legal heir, i.e. the Defendants in the suit, therefore the plaintiff whatsoever have no right to claim anything against the properties of Defendants' father i.e/. Rathinasamy Gounder. ix. The first appellate Court wrongly held that the total extent of the land is 16.96 acres, whereas the suit for partition in OS No. 145 of 2010 is with respect of an extend of 27.17 acres which is supported by documentary evidence, which is completely a non-issue and that the fact pleaded was as to the non existence of any such temple. x. The Trial Court has wrongly and without any proper reasoning held that the declaration of 3/4 share in the suit property based on the Will, without impleading the legal heirs of Kuppusamy Gounder and Rathinasamy Gounder, granting of Judgment and Decree by the Court in O.S. No. 145/2010 is not proper and baseless. Whereas the suit property was already allotted to Rathinasamy Gounder after partition between the legal heirs of Kuppusamy Gounder, no need arises as to implead the legal heirs of Kuppusamy Gounder. XI. The First appellate Court failed to note that since the Will dated 07.10.1947 has lost its validity, when there was partition deed dated 31.12.1961 and further there was another Will dated 27.07.1964 executed, superseding the earlier Will which stands revoked as per Section 70 of Indian Succession Act. Hence the need does not arise to produce the extinguished Will before the Court in O.S No. 145/2010 and that cannot be a reason to dismiss the case of the defendants and decree the suit. XII. The First appellate Court has failed to note that, the Appellants were in peaceful possession for a longer period of time. Even as per the oral evidence as let in and documentary evidence produced, the appellant has clearly proved that Appellant herein is the rightful co-owner of the suit property. As such brushing aside the intention of the executor of the Will i.e., Kuppusamy Gounder, both the Courts had erroneously negatived the case of the appellant and decreed in favour of the plaintiff. XIII. The Trial Court has wrongly examined section 67 of Indian Evidence Act in the instant case, to show that the Will should be proved by witness to the document and held that the Will dated 1964 as invalid. However, the court did not consider that when the Will dated 1964 was executed, the Appellant was a minor and currently all the witness to the document are no more. The first appellate Court further erred in confirming the said findings of the Trial Court that the Will dated 1964 was created by the defendants with intention to alienate the property. 8. The first appellate Court further erred in confirming the said findings of the Trial Court that the Will dated 1964 was created by the defendants with intention to alienate the property. 8. The learned counsel for the appellants submitted that the alleged Will relied by the plaintiff dated 07.10.1947 became redundant and in- operative for the reason that in respect of suit schedule property and other properties belongs to the Kuppusamy Gounder was subject matter of partition deed dated 31.12.1961 held between the Kuppusamy Gounder and his son Rathinasamy Gounder, which was marked as Ex.A8 in which A schedule was allotted to Kuppusamy Gounder, B schedule allotted to Rathinasamy Gounder(father of the defendants 1 and 2 ), the suit properties was mentioned as C schedule properties, the Kuppusamy Gounder/father of the plaintiff, created the trust in respect of suit property and accruals arising out of the said properties shall be used for the purpose of poojas in ''Temple'' till his life time entire alone and not intended to give such right of maintenance to his sons, who was given absolute right over the said C schedule properties after their father but the Court below erroneously failed to appreciate recital of Ex.A8 and misinterpreted both the Ex.A8 and Ex.A9 erroneously held that the suit property absolutely belongs to the Temple which is illegal and perverse findings totally against fact of law and liable to be set aside. Further, argued that both the Court below erroneously mis-interpretted the recitals of the alleged Ex.A9/will and erroneously held that plaintiff's is being the legal heir of the Kuppusamy Gounder having locus standi to file the suit as such is illegal for the reason that as per the recitals of the Ex.A9 it gives right to son of the Testator and son's legal heirs and not to the plaintiff who is daughter having no right over the suit property. Therefore, the he prayed to set aside the findings of the Courts below as erroneous. 9. Further, the learned counsel for the appellant pointed out that even the HR & CE has no right over the Karaivinayagar Temple since it is private temple at no point of time the HR & CE have control over the said Temple. Therefore, the he prayed to set aside the findings of the Courts below as erroneous. 9. Further, the learned counsel for the appellant pointed out that even the HR & CE has no right over the Karaivinayagar Temple since it is private temple at no point of time the HR & CE have control over the said Temple. Besides, the report of the HR & CE department, reveals that the temple is not in existence nor any trustee was formed but the Court below failed to appreciate the above facts and evidence properly. Hence, the findings rendered by the Courts below is liable to be set aside. Further, pointed out that prior to the year of 1956 co-parcenor cannot execute the Will in respect of property as it is a coparcenery property any such document is ab-initio void. So also, Will dated 07.10.1947 executed by Kuppusamy Gounder claiming entire suit properties as ancestral in nature, who executed Will in respect of entire properties though at that time his son Rathinasamy who has acquired right by birth as coparcener in ancestral property thereby contended that alleged Will would not bind the Rathinasamy Gounder but the said legal preposition was not argued at the time of the appeal not raised such defence before the Courts below. 10. By way of reply, the learned counsel for the respondents submitted that as per Will dated 07.10.1947 father of the plaintiff namely Kuppusamy Gounder given suit property to the to the Karai Vinayagar Temple, the income derived from the property is to be utilised for the said ''Temple'' and given absolute right over the property also been given in favour of ''Temple''. However, his legal heirs hereditary entitled to perform and conduct poojaa in the ''Temple'' and if the legal heirs not accepted to run the Temple any person who can form the Trust to run the Temple. Furthermore, the said Will was marked as Ex.A7 and as per the Will subsequent partition deed of the year 1961 also reiterate the contents of the said Will that the suit property belongs to ''Temple'' and not to be sold or encumber at any point of time nor given absolute right to his son/Rathinasamy Gounder and the Court below rightly appreciated the recitals of those documents which needs no interference. Further, he would submits that alleged Will relied by the first defendant dated 27.07.1964 not been proved as per manner to law. Hence, the decreed obtained by the defendants in OS No. 145 of 2010 is collusive in nature and the same was rightly appreciated by the Courts below which needs no interference, thereby no substantial questions of law involved in this case. He prayed to dismiss the suit. 11. This Court admitted the appeal on the following substantial questions of law (1) Whether the courts below are right in decreeing a suit for declaration to declare the judgment and decree in O.S.No.145 of 2010 dated 29.04.2010 as null and void when the plaintiff is neither a party to the decree nor is affected by the decree? (2) Whether the plaintiff has any cause of action for institution of the suit when she is not directly affected by the compromise decree and when she has no legal right with respect to the subject matter? (3) Whether the courts below are right in not applying the principles under Sec.34 of the Specific Relief Act, particularly when the plaintiff has omitted to either seek for a relief for herself or sought to declare the public character of the non-existing institution? (4) Whether the courts below are justified in attributing status to a non-existent temple? (5) When the H.R. and C.E. department themselves have stated that no such temple was under their control, are the courts below right in assuming the existence of alleged temple? 12. Heard both sides. 13. Both parties admitted their relationship. The suit properties was originally belongs to the Kuppusamy gounder/father of the plaintiff through partition deed of the year 1936. The said Kuppusamy Gounder had one son Rathinasamy Gounder(father of the defendants 1 and 2) and two daughters, one was died and the plaintiff is the surviving daughters. The plaintiff's brother Rathinasamy Gounder died. The plaintiff/Bharathi filed the suit against his brother's sons/defendants 1 and 2 stating that they filed the suit in OS No. 145 of 2010 and obtained collusive decree in respect of the suit properties for which they are not entitled for the reason that entire suit property was absolutely belongs to the Karai Vinayagar Temple/third defendant as per the Will executed by her father/Kuppusamy Gounder dated 07.10.1947. Thereafter partition deed executed between her father and brother in which suit properties was denoted as C schedule and given to the Temple and income derived from the properties were permitted to be used to maintain the ''Temple'' after her father/Kuppusamy Gounder till demise of her brother/Rathinasamy Gounder Poojas were performed in the Temple by utilising the benefits from the suit property. Now , she came to know that there was collusive decree between the defendants 1 and 2 in order to grab the suit property as if it is absolutely belongs to them by way of Will dated 27.07.1964, which said to be executed by her father as such is illegal. Hence, she approached the Court to declare the said decree as Null and Void. 14. As per the the defence of the defendants 1 and 2 is that subsequent to the first Will there was partition held between the Kuppusamy Gounder and his son Rathinasamy Gounder in which suit properties was described as C schedule, as per partition deed only life interest was given to the Kuppusamy Gounder thereafter absolute right was given to his son/Rathinasamy Gounder. Thereafter, there was a Will executed by the Kuppusamy Gounder by cancelling the earlier Will dated 07.10.1947 whereby, the defendants/legal heirs of Rathisamy Gounder became the absolute owner. Therefore, they entered into a amicable partition by filing OS No. 145 of 2010 and obtained decree as such is valid one. At any point of time, the plaintiff has no locus standi to file the suit nor temple is available in the suit property. Both parties relying the Will of the year 1947 as well as partition deed of the year 1961. As per the recitals of the 1947 Will plaintiff's father Kuppusamy Gounder executed Will in respect of ancestral properties which was allotted to him by way of partition, as such in S.No. 13 there is Vinayagar statue worshipped by him for near about 15 years and his son Rathinasamy Gounder (father of the defendants 1 and 2) was aged about 10 years at that time, to continue the pooja '' if he died before his son attaining majority, his brothers and others are appointed to execute the same given power to dharma and not to make any encumbrance over the said property as it is belongs to the ''Temple'' . Thereafter, the said poojas to be performed by his first legal heir of the family, if any trustee or legal heirs are not interested, any devotee along with any of his legal heirs family perform poojas to the ''Temple'' from the income derived from properties pertaining to the Temple in S.No. 11/1, 12, 13 and 14 near about 20 acres. Thereafter, partition held between the said Kuppusamy Gounder and his son Rathinasamy Gounder in the year 1961 as his sons attaining majority by that time said document marked as Ex.A8 subject to partition in which A schedule was allotted to the Kuppusamy Gounder, B schedule was allotted to his son Rathinasamy Gounder, C schedule was given life interest to the Kuppusamy Gounder and thereafter C schedule was given to Rathinasamy Gounder absolutely. 15. The learned counsel for the defendants/appellant herein submitted that as per the partition deed life interest alone was given to the Kuppusamy Gounder thereafter absolute right was given to his son Rathinasamy Gounder in respect of C schedule properties. Countering, the learned counsel for the plaintiff/first respondent herein submitted that neither Kuppusamy Gounder nor Rathinasamy Gounder given absolute right over the property, as per the recitals of Will C schedule was given absolutely to the Temple as he created 1964 Will poojas to be performed by utilising income arising out of C schedule property thereby denied the absolute claim made by the defendants' father. But on perusal of the said partition deed/Ex.A8 in respect of C schedule it is mentioned as follows: 16. The entire recitals of Ex.A8 shows that after the life time of Kuppusamy Gounder his son Rathinasamy Gounder was given absolute right to enjoy the property additionally C schedule property is forming part of the suit property herein. But, in the partition deed there is no mentioning about the existence of the Temple. As per the evidence of P.W.1, after the demise of her father she along with her brother sold the the properties to third parties in respect of A schedule allotted to his father as per the partition deed. Admittedly, Ex.A8 was acted upon. But, in the partition deed there is no mentioning about the existence of the Temple. As per the evidence of P.W.1, after the demise of her father she along with her brother sold the the properties to third parties in respect of A schedule allotted to his father as per the partition deed. Admittedly, Ex.A8 was acted upon. Though Will dated 07.10.1947 as mentioned in the subsequent partition deed dated but entire contents of the Will dated 1947 alleged to be executed by the Kuppusamy Gounder became redundant on account of operation of the partition deed dated 31.12.1961 entered during the life time of the the alleged Kuppusamy Gounder. 17. The intention of the Kuppusamy Gounder has changed in respect of C Schedule properties as per the recitals of the partition deed till his life time he retained to worship perform poojas. Thereafter, given absolute right to his son. But the Court below failed to appreciate the recitals of the said documents which is improper appreciation of both law and facts. 18. Furthermore, the plaintiff herein is the daughter of the Kuppusamy Gounder and maternal aunt of the defendants 1 and 2. As per the recitals of the Ex.A9/Will entire properties are ancestral in nature. Admittedly, plaintiff's father/Kuppusamy Gounder has no right to execute the alleged Will dated 1947. Even assuming that it is true one it is not bind his son/Rathinasamy Gounder as he is the coparcener his right accrued by birth before 1956. Therefore the Will executed for entire suit property by the Kuppusamy Gounder is void altogether to that effect he relied the following Judgment of the Court in the case of Thamma Venkata Subbamma Vs. Thamma Rattamma and others reported in 1987 (3) SCC 294 : 7. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. 19. The above judgement is squarely applicable to the facts of the case. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. 19. The above judgement is squarely applicable to the facts of the case. Even assuming that Will is valid one subsequent partition of the year 1961 executed between the testator and his son Rathinasamy Gounder, will of the 1947 became redundant to that effect argument advanced on the defendant are sustainable one. Even as per the recitals of Ex.A8/partition deed life interest was given to his father and thereafter right absolutely given to his son. But, subsequently, Will relied by the defendants 1 and 2 said to be executed by their grand father in the year 1964 through which suit property was given to them who are the legal heirs of the Rathinasamy Gounder. Thereafter, the Kuppusamy Gounder was died in the year 1964 and subsequently patta was transferred in favour of the defendants 1 and 2 mutation also effected. To settle the issue amicable the defendants 1 and 2 filed the suit on OS No. 145 of 2010 based on the Will of the year 1964 said to be executed by their grand father for which the defendant expressed the consent. Accordingly, compromise decree was granted in favour of the defendants 1 and 2. 20. Now, the contention of the plaintiff is that the said decree is collusive one and in fact their father not executed the Will of the year 1964 thereby she claimed the decree is fraudulent one. Near about 35 years after the demise of her father she caused interference in the suit property she has not filed the suit as worshipper of the Temple as partition was held in the year of 1961 itself she has no right to claim share in the property. In the prayer column of the present suit she want to declare the decree obtained by the defendants 1 and 2 as Null and Void and other consequential relief has not been claimed. Therefore, without corresponding prayer for declaration of her right, she achieves nothing to that effect they relied the judgement of the Supreme Court in the case of Vasantha(dead) thr.LRs. Vs. Rajalakshmi (dead) thr. LRs. reported in MANU/SC/0105/2024: 29. ........... 53. Therefore, without corresponding prayer for declaration of her right, she achieves nothing to that effect they relied the judgement of the Supreme Court in the case of Vasantha(dead) thr.LRs. Vs. Rajalakshmi (dead) thr. LRs. reported in MANU/SC/0105/2024: 29. ........... 53. In Ram Saran V. Ganga Devi, this Court categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by proviso of Section 34 of Specific Relief Act, 1963 and thus, not maintainable. 21. The above judgment is squarely applicable to the facts of this case. Accordingly, question of law 3 is answered.Further, the plaintiff contended that as a legal heir of the Kuppusamy Gounder she is entitle to proceed with the suit but even assuming that Ex.A9 Will is valid one recitals of the document clearly denotes that first legal heir of the Kuppusamy Gounder namely Rathinasamy Gounder and his children born to them alone are entitle not by this plaintiff. Therefore, she has no locus standi to file the suit. Accordingly, third questions of law is answered. 22. Therefore, the plaintiff have no locus standi to file the suit but the Courts below failed to appreciate the above facts erroneously decreed the suit which is liable to be set aside. Accordingly, questions of law 1&2 are answered. 23. Before filing the suit, the plaintiff given objection, based on that officials of HR & CE visited the suit property and submitted their report which was marked as Ex.A13 and Ex.A14. Ex.A14/report clearly shows shows that there is no such Temple was existed on the ground. Even as per the evidence she was not aware whether Temple was in existence and evidence not disclosed that from the year 1947 there was Temple exist in suit property. Even as per the recitals of partition deed Ex.A8 there is no mentioning about the existence of the Temple in any of the survey number, more particularly in C schedule property. All those facts reveals that there is no temple in existence. Even assuming that there is Temple in private land in which the HR & CE has no right and title. The objection given by the plaintiff is unwarranted one it is only family dispute, in which, HR & CE has no role. At the instigation of son-in-law she come forward with the present vexatious suit. Even assuming that there is Temple in private land in which the HR & CE has no right and title. The objection given by the plaintiff is unwarranted one it is only family dispute, in which, HR & CE has no role. At the instigation of son-in-law she come forward with the present vexatious suit. Though she sold the property belongs to her fater allotted in the partition along with her mother in the year 1971, 1967, after selling all the properties now, they want to grab the property belongs to the defendants filed the present suit but the Court below failed to appreciate the facts and evidence properly. 24. Even assuming that Will of the year 1964 not been proved but as per the partition deed/Ex.A8 after lifetime of Kuppusamy entire property devolves upon his son/Rathinasamy Gounder as a legal heirs of the Rathinasamy Gounder the defendants 1 and 2 are entitled for the suit property. Therefore, the plaintiff has no right and title over the property. Furthermore, she failed to establish the existence of the Temple in suit property for near about 35 years, she was not aware about the nature of the property but the Courts below erroneously granted relief in favour of the plaintiff by relying the lackness of the defence evidence by forgetting the principle that the plaintiff who approached the Court for declaration bound to prove the same should not fall upon the weakness of the defendants. Therefore, the findings of the Courts below totally perverse and liable to be set aside. Accordingly, questions of 4 and 5 are answered. 25 In the result, these appeals are allowed and suit is dismissed. No Costs. Consequentially, pending petition(s), if any, is/are closed.