S.Ganesan v. S.Kuppuswamy & Ors.

plaintiff, bequeathing the 'A' scheduled property, whichincludes 'B' and 'C' scheduled properties of the plaint.In fact, the plaintiff happened to be the adopted son ofthe said Chinna Kannu Reddy.(d) After the death of Chinna Kannu Reddy on 29.7.1985, asrevealed by Ex.A3-the death certificate, the plaintiffbecame the absolute owner of the suit properties. (e) Notice was sent revoking the licence granted in favourof D1 and D2, which, instead of evoking positive responsefrom them, resulted in they sending replies, setting upuntenable claims. A rejoinder also was sent by theplaintiff. Hence, the suit for obtaining delivery ofpossession of the suit properties; for mesne profits andfor damages for illegal use and occupation of theproperties by the defendant.3. Inveighing and impugning, refuting and remonstrating the caseof the plaintiff, the defendants filed the written statement andaddition written statements, the gist and kernal, the pith and marrow ofthem would run thus:-(i) the properties, which are under the occupation of thedefendants were purchased by them, as per Section 9 and 54of the Transfer of Property Act, from the said Chinna KannuReddy by virtue of oral sale, as those properties were lessthan Rs.100/-. (ii) the defendants acquired prescriptive title over thesuit property by virtue of their continuous, uninterruptedand open enjoyment as owners of the said properties formore than 20 years. (iii) The defendants are not in possessionandenjoyment of the suit properties under the alleged leaveand licence referred to in the plaint.(iv) At the time of purchase of those properties fromChinna Kannu Reddy 20 years ago, they paid a saleconsideration of Rs.90/- in total and it was in adilapidated condition, after such purchase, the defendantsreconstructed the house.(v) over and above that, they also occupied a sizableextent of poramboke land, adjoining the said property. (vi) Absolutely there was no liability to pay any damagesfor use and occupation as claimed in the plaint. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the defendants prayed for dismissal of the suit.4. The trial Court framed the relevant issues. During trial, theplaintiff examined himself as P.W.1 and Exs.A1 to A17 were marked on hisside. On the defendants' side D1 examined himself as D.W.1 along withone other person as D.W.2 and no document was marked on the defendants'side.5. Ultimately, the trial Court dismissed the suit. Beingaggrieved by and dissatisfied with the judgement and decree of the trialCourt, the appellant preferred this appeal on the following groundsamong others.(a) the judgement and decree of the trial Court are againstlaw and weight of evidence.(b) the trial Court, after correctly disbelieving theversion of the defendants that they purchased theproperties under oral sale, fell into error in expectingthe plaintiff to prove his title over the suit property.(c) the trial Court was also not justified in holding thatEx.A17-the 'Will' was not proved as per law.Accordingly, the appellant/plaintiff prayed for setting aside thejudgement and decree of the trial Court and for decreeing the originalsuit as prayed for.6. The parties are referred to here under, for convenience sake,according to their litigative status before the trial Court.7. The points for consideration are as to:(i) Whether the Will Ex.A17 cannot be relied on bythe plaintiff for want of probating it as per IndianSuccession Act?(ii) What was the quantum of evidence required tobe adduced by the plaintiff to make the Court to act uponEx.A17-the 'Will' and whether such evidence is available insupport of the plaintiff's case?(iii) Whether the plea of oral sale, as put forthby the defendants, was proved by them?(iv) Whether the plaintiff is the adopted son ofdeceased Chinna Kannu Reddy and whether he is entitled tothe reliefs as prayed for in the plaint? https://hcservices.ecourts.gov.in/hcservices/ (v) Whether there is any infirmity in the judgementand dismissal decree of the trial Court?8. The warp and woof, the nitty-gritty of the arguments of thelearned counsel for the appellant/plaintiff, succinctly and preciselycould be portrayed to the effect that the trial Court, after correctlynegativing the plea of oral sale as put forth by the defendants, adopteda wrong approach in expecting that the 'Will' should have been proved bythe plaintiff strictly as per Section 68 of the Indian Evidence Act,when in fact, such strict proof of the 'Will' is not required when thedefendants are not in any way related to the testator of the 'Will',namely, Chinna Kannu Reddy; no probating of the 'Will' is also requiredin the facts and circumstances of this case; the plaintiff establishedhimself as the legal heir of deceased Chinna Kannu Reddy, but the trialCourt held otherwise, ignoring the documentary and oral evidenceavailable in favour of the plaintiff and accordingly, he prayed forsetting aside the judgement and decree of the trial Court. 9. Pithily and precisely, the arguments of the learned counselfor the respondents/defendants could be parodied to the effect that theplaintiff is not justified in laying claim over the suit property basedon the Will which has not been probated as per the provisions of theIndian Succession Act; Sections 57 and 213 of the Indian Succession Actare clear on the point that such unprobated Will executed within thecity of Chennai cannot be the basis for laying claim over the subjectmatter referred to in the Will; the plaintiff is having absolutely noright to seek for the relief prayed in the suit.POINT NO:110. The plaintiff being the beneficiary and propounder of theWill placed reliance on Ex.A17, the Will to claim right over the suitproperty. A bare perusal of Ex.A17 would leave no doubt in the mind ofthe Court that Ex.A17 was executed in Chennai city having permanentresidence in Chennai City as revealed by evidence in this case and itwas registered at the Office of the Sub Registrar within Chennai city.In such a case, Section 57 of the Indian Succession Act is attracted.For ready reference, it is reproduced hereunder:"57. Application of certain provisions of Part to aclass of Wills made by Hindus, etc.- The provisions of thisPart which are set out in Schedule III shall, subject to therestrictions and modifications specified therein, apply-(a) to all Wills and codicils made by any Hindu,Buddhist, Sikh or Jaina, on or after the first day ofSeptember, 1870, within the territories which at the saiddate were subject to the Lieutenant-Governor of Bengal orwithin the local limits of the ordinary original civiljurisdiction of the High Courts of Judicature at Madras and https://hcservices.ecourts.gov.in/hcservices/ Bombay; and(b) to all such Wills and codicils made outsidethose territories and limits so far as relates to immovableproperty situate within those territories or limits; and(c) to all Wills and codicils made by any Hindu,Bhuddhist, Sikh or Jaina on or after the first day ofJanuary, 1927, to which those provisions are not applied byclauses (a) and (b):Provided that marriage shall not revoke any suchWill or codicil."11. No doubt, the immovable property contemplated in the Will issituated outside Chennai city, but the testator having his regular placeof aboard in Chennai before his death and at the time of executing theWill executed Ex.A17 and thereby attracted Section 57 of the IndianSuccession Act, which mandates that such a Will should be probated. Butin this case, unassailably and incontrovertibly the said Will was notprobated. The consequence of such non probating of the Will is founddepicted in Section 213 of the Indian Succession Act. Section 213 isreproduced hereunder for ready reference:"213. Right as executor or legatee whenestablished.- (1) No right as executor or legatee can beestablished in any Court of Justice, unless a Court ofcompetent jurisdiction in India has granted probate of theWill under which the right is claimed, or has grantedletters of administration with the Will or with a copy of anauthenticated copy of the Will annexed.(2) This section shall not apply in the case ofWills made by Muhammkadans or Indian Christians, and shallonly apply-(i) in the case of Wills made by any Hindu,Buddhist, Sikh or Jaina where such Wills are of the classesspecified in clauses (a) and (b) of section 57; and(ii) in the case of Wills made by any Parsi dying,after the commencement of the Indian Succession (Amendment)Act, 1962 (16 of 1962), where such Wills are made within thelocal limits of the [ordinary original civil jurisdiction]of the High Courts at Calcutta, Madras and Bombay, and wheresuch Wills are made outside those limits, in so far as theyrelate to immovable property situated within those limits].12. It is therefore crystal clear that Ex.A17 in the absence ofit having been probated cannot be relied on by the propounder of the https://hcservices.ecourts.gov.in/hcservices/ Will for placing reliance on it to seek recovery of possession. Thelearned counsel for the defendants would fruitfully cite the decision ofthe Hon'ble Apex Court reported in AIR 1962 SC 1471 [Mrs.Hem NoliniJudah (since deceased) and after her legal representative Mrs.MarleanWilkinson vs. Mrs.Isolyne Sarojbashini Bose and others]. An excerpt fromit would run thus:"7. We have already pointed out that though it wassaid that Dr Miss Mitter had executed a will in favour ofher mother Mrs Mitter in June, 1925 bequeathing the house indispute to her, no probate or letters of administration wereever obtained by Mrs Mitter. It is true that Mrs Mitter inher turn made a will in favour of the appellant and sheobtained letters of administration of that will. In thatwill the house in dispute was mentioned as the property ofMrs Mitter and was bequeathed to the appellant and in theletters of administration granted to her this property wasmentioned as one of the properties coming to her by the willof her mother. The question therefore that arises is whetherit was necessary before the appellant could take advantageof the bequest in favour of Mrs Mitter that letters ofadministration of the will of Dr Miss Mitter should havebeen obtained by Mrs Mitter. Section 213(1) which governsthis matter is in these terms:-“(1) No right as executor or legatee can beestablished in any Court of Justice, unless a Court ofcompetent jurisdiction in India has granted probate of thewill under which the right is claimed, or has grantedletters of administration with the will or with a copy of anauthenticated copy of the will annexed.”This Section clearly creates a bar to the establishment ofany right under will by an executor or a legatee unlessProbate or letters of administration of the will have beenobtained. It is now well-settled that it is immaterialwhether the right under the will is claimed as a plaintiffor as a defendant; in either case Section 213 will be a barto any right being claimed by a person under a will whetheras a plaintiff or as a defendant unless Probate or lettersof administration of the will have been obtained: (seeGanshamdoss Narayandoss v. Gulab Bi Bai, ILR 50 Mad 927:(AIR 1927 Mad 1054( (FB). But it is urged on behalf of theappellant that this Section will not bar her because sheobtained letters of administration of the will of her motherMrs Mitter under which she is claiming and that it was notnecessary for Mrs Mitter to have obtained Probate of thewill of Dr Miss Mitter in her favour. Now it is not indispute that the grant of Probate or letters ofadministration does not establish that the person making the https://hcservices.ecourts.gov.in/hcservices/ will was the owner of the property which he may have givenaway by the will, and any person interested in the propertyincluded in the will can always file a suit to establish hisright to the property to the exclusion of the testator inspite of the grant of Probate or letters of administrationto the legatee or the executor, the reason being thatproceedings for Probate or letters of administration are notconcerned with titles to property but are only concernedwith the due execution of the will. Therefore, when theplaintiff-respondent contended in effect that the appellantcould not establish her right to the full ownership of thisproperty on the basis of the will of Mrs Mitter because MrsMitter had not obtained Probate or letters of administrationof the will of Dr Miss Mitter, she was really contendingthat Mrs Mitter was not the full owner of this property sothat she could dispose it of as she willed. The plaintiff-respondent was thus disputing the title of Mrs Mitter todispose of the entire disputed house by her will on theground that Mrs Mitter was not the sole owner of this houseafter the death of Dr Miss Mitter. In order therefore thatthe appellant should succeed on the basis of the letters ofadministration of the will of Mrs Mitter which had beengranted to her with respect to this house, she had to showthat Mrs Mitter was the full owner of this house at the timeshe made the will in her favour. Now the appellant couldshow this by other evidence; but if the appellant wanted torely on any will of Dr Miss Mitter in favour of Mrs Mitter,in proof of full ownership of Mrs Mitter of this house, itwould amount to this that the appellant was saying that MrsMitter was the owner of the house as the legatee under thewill made by Dr Miss Mitter. The appellant would thus beasserting the ownership of Mrs Mitter of the whole house asa legatee, and this is what sub-section (1) of Section 213clearly forbids, for it says that no right as a legatee canbe established in a Court of Justice, unless the Probate orletters of administration have been obtained of the willunder which the right as a legatee is claimed. It is truethat so far as the will of Mrs Mitter in favour of theappellant is concerned, she has obtained letters ofadministration of that and she can maintain her right as alegatee under that will; but that will in her favour onlygives her those properties which really and truly belongedto Mrs Mitter, that will however does not create title inthe appellant in properties which did not really and trulybelong to Mrs Mitter but which Mrs Mitter might have thoughtit fit to include in the will. Therefore, as soon as theappellant, in order to succeed on the basis of the will inher favour of which she obtained letters of administration,alleges that Mrs Mitter was full owner of the property ableto will it away to her, she had to prove the title of Mrs https://hcservices.ecourts.gov.in/hcservices/ Mitter to the property. Now if that title rests on MrsMitter's being a legatee of Dr Miss Mitter the appellantwill have to prove that Mrs Mitter had the right as alegatee under the will of Dr Miss Mitter. As soon as theappellant wants to prove that, Section 213 will immediatelystand in her way for no right as an executor or a legateecan be proved unless Probate or letters of administration ofthe will under which such right is claimed have beenobtained. The words of Section 213 are not restricted onlyto those cases where the claim is made by a person directlyclaiming as a legatee. The Section does not say that noperson can claim as a legatee or as an executor unless heobtains Probate or letters of administration of the willunder which he claims. What it says is that no right as anexecutor or legatee can be established in any Court ofJustice, unless Probate or letters of administration havebeen obtained of the will under which the right is claimed,and therefore it is immaterial who wishes to establish theright as a legatee or an executor. Whosoever wishes toestablish that right, whether it be a legatee or an executorhimself or somebody else who might find it necessary inorder to establish his right to establish the right of somelegatee or executor from whom he might have derived title,he cannot do so unless the will under which the right as alegatee or executor is claimed has resulted in the grant ofa Probate or letters of administration. Therefore, as soonas the appellant wanted to establish that Mrs Mitter was thelegatee of Dr Miss Mitter and was therefore entitled to thewhole house she could only do so if the will of Dr MissMitter in favour of Mrs Mitter had resulted in the grant ofProbate or letters of administration. Admittedly that didnot happen and therefore Section 213(1) would be a bar tothe appellant showing that her mother was the full owner ofthe property by virtue of the will made in her favour by DrMiss Mitter. The difference between a right claimed as alegatee under a will and a right which might arise otherwiseis clear in this very case. The right under the will whichwas claimed was that Mrs Mitter became the owner of theentire house. Of course, without the will Mrs Mitter was anequal heir with her daughters of the property left by DrMiss Mitter, as the latter would be taken to have diedintestate, and would thus be entitled to one-fourth. It willbe seen from the judgment of the High Court that it has heldthat the appellant is entitled to the one-fourth share towhich Mrs Mitter was entitled as an heir to Dr Miss Mitterand granted the plaintiff-respondent a declaration withrespect to only half the house. Therefore, the High Courtwas right in holding that Section 213 would bar theappellant from establishing the right of her mother as alegatee from Dr Miss Mitter as no Probate or letters of https://hcservices.ecourts.gov.in/hcservices/ administration had been obtained of the alleged will of DrMiss Mitter in favour of Mrs Mitter. The contention of theappellant on this head must therefore fail.13. The aforesaid excerpt and the reading of the entire judgmentwould highlight and spotlight the proposition that in the absence ofprobating Will or obtaining letters of administration relating to theWill executed in cities like Madras, the propounder of the Will or thebeneficiary under the Will cannot claim any right.14. In the words of the Hon'ble Apex Court, such Will like Ex.A17unaccompanied by probate or letters of administration, it is immaterial,where the right under the Will is claimed as a plaintiff or as adefendant, in either case, Section 213 of the Indian Succession Act willbe a bar to any right being claimed by a person under such Will, whereas a plaintiff or as a defendant unless probate or letters ofadministration of the Will have been obtained. The same proposition isfound reiterated and enunciated in the decision of the Hon'ble ApexCourt reported in (2008)4 SCC 300 [Krishna Kumar Birla v. Rajendra SinghLodha and others]15. As such, it is beyond any pale of controversy that a Willexecuted within Chennai city, but not probated or accompanied by lettersof administration cannot be relied on by the beneficiary to lay claimover a property based on such Will. However, the learned counsel forthe plaintiff cited the decision of the Hon'ble Kerala High Courtreported in AIR 2001 KERALA 184 [Cherichi v. Ittianam and others] andtried to canvass his point that parties like the defendants who havenothing to do with the testator and his property, cannot put forth theplea of absence of probate or letters of administration as contended bythem in this case. 16. A bare perusal of the cited decision of the Kerala High Courtwould at once make the point clear that the said decision is inconcinnity and in consonance with the judgment of the Hon'ble Apex Courtcited supra and it in no way supports the proposition as put forth bythe learned counsel for the plaintiff. Placing reliance on an unprobatedWill or a Will unaccompanied by letters of administration for a purposeother than laying claim over the subject matter of the Will asbeneficiary is different. Here the plaintiff is relying on Ex.A17 forthe purpose of recovering the suit property as a beneficiary under theunprobated Will Ex.A17. Hence the Point No.1 is decided as against theplaintiff, but in favour of the defendants that Ex.A17 Will cannot berelied on by the plaintiffs for the purpose of evicting the defendants.POINT NO.2:17. In the wake of point No.1 having been decided as against theplaintiff, this point relating to the quantum of proof required to proveEx.A17 loses its significance. However, for the purpose of https://hcservices.ecourts.gov.in/hcservices/ comprehensively deciding the appeal, I would like to discuss on meritsthis point also.18. In view of the decision of the Hon'ble Apex Court reported in(2008)4 SCC 300 (cited supra)when a person having no cavetable interestor in any way related to the testator cannot insist upon the Will beingproved strictly in accordance with Section 68 of the Indian EvidenceAct. In this case, the defendants admittedly are not in any way relatedto the deceased and obviously they are not the legal heirs of thedeceased testator and in such a case, the defendants cannot call uponthe plaintiff to prove Ex.A17, the Will in accordance with Section 68 ofthe Indian Evidence Act. Ex.A17 is a registered Will and in such acase, the decision of the Hon'ble Apex Court reported in 2006(2)LW 658SC [Pentakota Satyanarayana & others vs. Pentakota Seetharatnam &others] is relevant and an excerpt from it would run thus:"25. A perusal of Ex.B9 (in original) would showthat the signatures of the Registering Officer and of theidentifying witnesses affixed to the registrationendorsement were, in our opinion, sufficient attestationwithin the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before himexecution did also amount to attestation. In the originaldocument the executants signature was taken by the sub-registrar. The signature and thumb impression of theidentifying witnesses were also taken in the document.After all this, the sub-registrar signed the deed. Unlikeother documents the Will speaks from the death of thetestator and so, when it is propounded or produced before acourt, the testator who has already departed the worldcannot say whether it is his Will or not and this aspectnaturally introduces an element of solemnity in thedecision of the question as to whether the documentpropounded is proved to be the last Will and the testamentof departed testator.26. In the instant case, the propounders werecalled upon to show by satisfactory evidence that the Willwas signed by the testator, that the testator at therelevant time was in a sound and disposing state of mind,that he understood the nature and effect of thedispositions and put his signature to the document on hisown freewill. In other words, the onus of the propoundercan be taken to be discharged on proof of the essentialfacts indicated above. It was argued by learned counselfor the respondent that popounders themselves took aprominent part in the execution of the Will which willconfer on them substantial benefits. In the instant case,propounders who were required to remove the said suspicionhave let in clear and satisfactory evidence. In the https://hcservices.ecourts.gov.in/hcservices/ instant case, there was unequivocal admission of the Willin the written statement filed by P.Srirammurthy. In hiswritten statement, he has specifically averred that he hadexecuted the Will and also described the appellants as hissons and Alla Kantamma as his wife as the admission wasfound in the pleadings. The case of the appellants cannotbe thrown out. As already noticed, the first defendant hasspecifically pleaded that he had executed a Will in theyear 1980 and such admissions cannot be easily brushedaside. However, the testator could not be examined as hewas not alive at the time of trial. All the witnessesdeposed that they had signed as identifying witnesses andthat the testator was in sound disposition of mind. Thus,in our opinion, the appellants have discharged their burdenand established that the Will in question was executed bySrirammurthy and Ex.B9 was his last will. It is true thatregistration of the Will does not dispense with the need ofproving, execution and attestation of a document which isrequired by law to be proved in the manner as provided inSection 68 of the Evidence Act. The Registrar has made thefollowing particulars on Ex.B9 which was admitted toregistration, namely, the date, hour and place ofpresentation of document for registration, the signature ofthe person admitting the execution of the Will and thesignature of the identifying witnesses. The document alsocontains the signatures of the attesting witnesses and thescribe. Such particulars are required to be endorsed by theRegistrar along with his signature and date of document.A presumption by a reference to Section 114 of the EvidenceAct shall arise to the effect that particulars contained inthe endorsement of registration were regularly and dulyperformed and are correctly recorded. In our opinion, theburden of proof to prove the Will has been duly andsatisfactorily discharged by the appellants. The onus isdischarged by the propounder adducing prima facie evidenceproving the competence of the testator and execution of theWill in the manner contemplated by law. In suchcircumstances, the onus shift to the contestant opposingthe Will to bring material on record meeting such primafacie case in which event the onus shift back on thepropounder to satisfy the court affirmatively that thetestator did know well the contents of the Will and insound disposing capacity executed the same.27. It is settled by a catena of decisions that anyand every circumstance is not a suspicious circumstance.Even in a case where active participation and execution ofthe Will by the propounders/beneficiaries was there, it hasbeen held that that by itself is not sufficient to createany doubt either about the testamentary capacity or the https://hcservices.ecourts.gov.in/hcservices/ genuineness of the Will. It has been held that the merepresence of the beneficiary at the time of execution wouldnot prove that the beneficiary had taken prominent part inthe execution of the Will. This is the view taken by thisCourt in Sridevi & Ors vs. Jayaraja Shetty & Others, (2005)2 SCC 784 = 2005-2-L.W.89. In the said case, it has beenheld that the onus to prove the will is on the propounderand in the absence of suspicious circumstances surroundingthe execution of the will proof of testamentary capacityand the proof of signature of the testator as required bylaw not be sufficient to discharge the onus. In case, theperson attesting the Will alleges undue influence, fraud orcoercion, the onus will be on him to prove the same andthat as to what suspicious circumstances which have to bejudged in the facts and circumstances of each particularcase.28. Mr.Narsimha, learned counsel for therespondents submitted that the natural heirs were excludedand legally wedded wife was given a lesser share and,therefore, it has to be held to be a suspiciouscircumstance.We are unable to countenance the saidsubmission. The circumstances of depriving the naturalheirs should not raise any suspicion because the whole ideabehind the execution of the Will is to be interfered in thenormal line of succession and so natural heirs would bedebarred in every case of the Will. It may be that in somecases they are fully debarred and some cases partly. Thisis the view taken by this Court in Uma Devi Nambiar andOthers vs. T.C.Sidhan (Dead) (2004) 2 SCC 321 = 2004-2-L.W.852. 19. In view of the aforesaid trite proposition of law, eventhough the the two attesting witnesses of Ex.A17 were not examined onthe plaintiff's side in accordance with Section 63 of the IndianEvidence Act, nonetheless, it cannot he held that the plaintiff has notproved the due execution of the Will Ex.A17 by the testator. 20. The learned counsel for the defendants cited the decision of thisCourt reported in 2007(5) CTC 513 [L.Bakthavatsalam and others vs.R.Alagiriswamy (died) and others) so as to highlight the point that aWill has to be proved in accordance with Section 63 of the IndianEvidence Act. To the risk of repetition without being tautologous, Iwould state that the said decision is not applicable to the facts andcircumstances of this case for the reason that the Will is sought to bepressed into service as against the defendants who are not the legalheirs or in any way interested in the suit property having somecovetable interest in it. https://hcservices.ecourts.gov.in/hcservices/

21. The learned counsel also cited the decision of the Hon'bleApex Court reported in AIR 1959 SC 443 [H.Venkatachala Aiyengar v.B.N.Thimmajamma and others]. The same comments afford for highlightingthe inapplicability of the decision of this Court reported in 2007(5)CTC513 (cited supra) shall also be applicable to the aforesaid decision ofthe Hon'ble Apex Court cited by the learned counsel for the respondents.22. The learned counsel for the plaintiff would appropriately andappositely would cite the decision of this Court reported in (2001) 1TNLJ 71 [Valliammal vs. S.Arumugha Gounder and another] to buttress hisstand that truth and validity of a Will cannot be questioned by astranger to the family of the testator. It is therefore crystal clearthat in this case, the defendants contention that the Will Ex.A17 wasnot proved in accordance with Section 63 of the Indian Evidence Actfails to carry conviction with the Court. Accordingly, this issue isdecided to the effect that the plaintiff proved the due execution of theWill Ex.A17 by the testator, however in view of the decision under pointNo.1, such unprobated Will cannot be relied on by the plaintiff insupport of his claim and prayers in the plaint.POINT NO.3:23. This point is with regard to plea of oral sale as put forthby the defendants relating to the suit property. A bare perusal of thelower Court's judgment would reveal that the trial court in itsdiscussion under points 1 and 2 elaborately dealt with the plea of oralsale and disbelieved it. It is the contention of the defendants thatfor a sum of Rs.90/-, the suit property with a dilapidated buildingthereon was purchased by them and they renovated the building andstarted enjoying the same. Absolutely there is no iota or speck, shredor shard, miniscule or dot of evidence in support of the plea of oralsale. I am constrained to hold that no man having head over shoulderwould ever be able to believe that for a sum of Rs.90/- the suitproperty with an alleged dilapidated building was purchased by thedefendants after 1966. 24. The fact remains that as per Ex.A2, the partition deed dated27.02.1966, the suit property and other properties were allotted to theshare of the admitted original owner, namely Chinna Kannu Reddy and evenat that time those properties were worth Rs.9,000/-. The lower Courtcorrectly under paragraph 9 of the judgment analysed the improbabilitiesin the plea of oral sale and gave a coup de grace to it, which warrantsno interference by this Court. The lower Court also dealt with the pleaof prescription relating to 'B' and 'C' schedules of the property andnegatived it under issue no.3. The contention of the defendants thatover and above the suit property they have also enlarged theiroccupation in the adjoining poramboke property is not at all germane fordeciding this case. As per the plaint, the plaintiff prays for evictingthe defendants from 'B' and 'C' schedule properties of the plaint. The'B' schedule property is described as one measuring an extent of 200 https://hcservices.ecourts.gov.in/hcservices/ sq.ft. and the 'C' schedule property is measuring an extent of 800sq.ft. and nothing more. Whereas, the contention of the defendants isto the effect that they have also occupied an extent of 11 cents ofporombake land. As such, the plea of the defendants as against theprayer of the plaintiff in the plaint do not hang together relating tothe extent of property over which the plaintiff lays claim. Accordinglythis point is decided to the effect that the defendants have not provedtheir plea of oral sale or their right to occupy the suit property.Accordingly, this point is decided as against the defendants.POINT NO.4:25. This point is relating to the right of the plaintiff torecover 'B' and 'C' scheduled properties of the plaint. Even thoughunder point No.1 I have held that based on the Will the plaintiff cannotseek any relief in the suit, nonetheless, it is to be found out as towhether in any other capacity the plaintiff can claim the reliefs. Thelearned counsel for the plaintiff would stress upon the fact that thedefendants failed miserably in proving their pleas; over and above thatthey exposed themselves that they had put forth false pleas of oral saleetc.; such illegal occupiers of the suit property can be evicted by theCourt at the prayer of the plaintiff and that too when the plaintiff isthe adopted son of deceased Chinna Kannu Reddy.26. The records would exemplify and evince that absolutely thereis no molecular or miniscule extent of evidence to prove that theplaintiff is the adopted son of Chinna Kannu Reddy. By way of addingfuel to the fire and fanning the flame in addition to making worse theplea of the plaintiff, the very recital in the Will would unambiguouslyand unequivocally demonstrate that the plaintiff is the foster son ofthe deceased Chinna Kannu Reddy. An excerpt from Ex.A17 - the Will isextracted hereunder for ready reference."vdf;F taJ Rkhh; 75 MfpwJ/ eP vd;Dila cld; gpwe;jrnfhjhpahfpa mk;khfz;Qq mk;khspd; Fkhudhfpa br';fHdp vd;gthpd; Fkhudhfpav!;/fnzrd; vd;gtid ehd; vdf;F re;jjpfs; xUtUk; ,y;yhjjpdhy; vd; tsh;g;g[ Fkhudhf vLj;Jf; bfhz;L mJ Kjy; eh';fs; $Ptpjkha; ,Ue;J tUfpnwhk;/ehd; vd;Dila tsh;g;g[ Fkhudhfpa v!;/fnzrd; vd;gtDf;F ey;y Kiwapy;gof;fitj;Jk;. cj;jpnahfj;jpy; mkh;j;jpa[k;. vd;Dila brhe;j brytpdhnynamtDf;F jpUkzk; bra;J itj;Jk; mtd; vd;Dlndna $Ptpjkha; ,Ue;JtUfpnwd;/"27. The term 'valarpu magan' in Tamil would connote foster sonand not adopted son. But simply, the plaintiff cannot wriggle out ofhis liability to prove that he is the adopted son of Chinna Kannu Reddyby merely pleading that he is the adopted son. Apart from examininghimself, no other witness was examined on his side to buttress andfortify his plea of adoption. Precisely there is nothing to indicatethat he was treated as the adopted son by Chinna Kannu Reddy. In fact,in the very plaint itself the plaintiff described himself as the son of https://hcservices.ecourts.gov.in/hcservices/ his biological father viz., Sengazhani Reddy. If at all the plaintiffis really the adopted son of Chinna Kannu Reddy, in the cause title ofthe plaint his name should have been indicated therein as son of ChinnaKannu Reddy. Even in the Will Ex.A17, he was described only as thebiological son of Sengazhani Reddy. 28. As such, absolutely there is nothing to display and evidencethat the plaintiff de hors the Will Ex.A17 possesses any right to evictthe defendants, eventhough the defendants have not proved their right tocontinue in possession of the suit property. As has been already heldabove, based on the Will - Ex.A17, the plaintiff cannot seek any reliefin this suit. Accordingly, this point is decided as against theplaintiff.POINT NO.5:29. In view of the ratiocination adhered to in deciding theaforesaid points, I could see no infirmity in the judgment and decree ofthe trial Court and consequently the appeal is dismissed. However, thereshall be no order as to costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrargms/mskTo 1.Subordinate Judge, KancheepuramCopy to : The Section Officer, V.R.Section, High Court, Madras.+ 1 CC to Mr.N.D.Bahety,Advocate,SR.4665+ 1 CC to M/s.P.V.S.Giridhar & Sai Associates,SR.4517A.S.No.629 of 1996 KV(CO)EM/12.2.09