Madras High Court
Murali Doss vs Tmt. B. Saroja Ammal W/O Balaram And Ors. on 30 July, 2007
Author: S.R. Singharavelu
Bench: S.R. Singharavelu
JUDGMENT S.R. Singharavelu, J.
Page 1971
1. The suit is for declaration, declaring that the plaintiff is the owner of the suit property and for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for costs.
2. The averments in the plaint are as follows: Mr. P. Balaraman and Sarojini, who are husband and wife between themselves, had three sons and three daughters. Fifth defendant's father deceased Rajini, 6th defendant Sridhar, Plaintiff Muralidoss are three sons and defendants 2 to 4 are three daughters. Balaraman died in 1995. The suit property situate at Door No. 5, Krishnappa Mudali Street, Purasawalkkam, Madras, originally belonged to one Mr. R.S.P. Naidu, who purchased the same from out of his self acquired funds from the original owner Vijayarathinam, by a registered sale deed dated 28.06.1943. He had also purchased another property bearing Door No. 16, Muthiyal Naickier Street, Purasawalkkam, Madras and enjoyed both the properties till his life time. R.S.P. Naidu died on 26.10.1956, after the Hindu Succession Act 1956 came into force. R.S.P. Naidu had two wives by name Kuppammal and Dhanammal. The first wife predeceased him in the year 1951. R.S.P. Naidu and Balaraman were employed in Burma Railways. At the time of Second World War both the families migrated to India and settled at Madras. R.S.P. Naidu retired from service at that time. He had no issues through either of his two wives. At that time when the family came from Burma to Madras, Balaraman had only one daughter and the plaintiff was born at Madras on 2.3.1945. R.S.P. Naidu had great affection and concern for Balaraman as well as Dhamodaran, brother of Dhanammal aforesaid. Therefore R.S.P. Naidu executed a settlement deed in the year 1945, settling his properties in favour of his two wives Kuppammal and Dhanammal for life interest and thereafter to Balaraman and to his brother-in-law Dhamodaran. The said settlement deed was not given effect to and was revoked by the settlor himself by another deed in the year 1950. Since R.S.P. Naidu had no issues he had adopted plaintiff with the consent of Dhanammal and the natural parents of plaintiff. That adoption happen to be in or about the middle of June 1951 and as per the Hindu Rights and Customs. R.S.P. Naidu and Dhanammal alone brought the plaintiff as their adoptive son. When R.S.P. Naidu died on 26.10.1956 Dhanammal and the plaintiff were the legal heirs. He died intestate. Plaintiff got married in the year 1968 and that was performed by his adoptive mother Dhanammal. Since then the natural parents were living at No. 3, Kumarappa Mudali Street, Seven Wells, Madras. In 1970 at the request of Dhanammal, Balaraman and his family was brought by Page 1972 plaintiff. There was some quarrel between Dhanammal and the sisters of plaintiff and so Dhanammal asked Balaraman and his family to get out of the suit property in 1976. Dhanammal died on 31.12.1981, leaving behind her the plaintiff as sole heir. The second defendant started giving trouble and other defendants also joined together. They made wrongful claim over the suit property. The plaintiff alone was in possession of the suit property. There was issue of notices and rejoinder between the parties regarding the claim of suit house. Suit is to be decreed declaring the plaintiff as owner of the suit property and granting permanent injunction.
3. The averments found in the written statement of the first defendant are as follows: Balaraman the husband of first defendant was the grand-son of R.S.P. Naidu's sister. Both worked in Burma Railways at Rangoon before the Second World War. Due to affection and the fact that R.S.P. Naidu had no issues, Balaraman was treated by him as his own son. Likewise Dhamodaran, the brother-in-law of R.S.P. Naidu who was also employed in Burma Railways was also equally treated with love and affection. As per the settlement deed executed on 29.11.1945 by R.S.P. Naidu he reserved for himself a life interest in the suit property and thereafter to his first wife Kuppammal for life interest and later by Balaraman Naidu absolutely. Regarding the other property bearing Door No. 16, Muthialu Naicken Street, Purasawalkkam, Chennai, it was first in favour of his second wife Dhanammal for life interest and thereafter in favour of his brother-in-law Dhamodaran absolutely. That is also take place after the life interest of settler himself. The settler continued in possession only as life interest holder. The said settlement was given effect to and acted upon. The revocation deed dated 7.11.1950 is inoperative, illegal and not given effect. Balarama Naidu died in 1995. Therefore the defendants and the plaintiff were the surviving legal heirs. It is false to state that plaintiff exclusively entitled to the suit property. Plaintiff was never given in adoption to R.S.P. Naidu. Since Balarama Naidu was transferred as TTR to Guntakkal in the year 1951 and in view of such transfer alone the plaintiff was left under the care and custody of Dhanammal and R.S.P. Naidu, so that the plaintiff can have uninterrupted academic career. In 1961 the plaintiff was taken back into their hold from Dhanammal and the plaintiff's marriage was performed by the first defendant and her husband and not by Dhanammal. The other defendants also lived along with the first defendant in the suit property. Even after the death of Dhanammal in 1981, the lawful possession of the entire suit property came to the hands of the first defendant, who subsequently paid all taxes and electricity charges. Even when Dhanammal suffered Paralytic stroke before her death, it was this defendants to looked after her. This defendant and her family occupied the suit property in 1970, even while Dhanammal was alive and continued to live there. After the plaintiff's induction into suit property by first defendant only in 1994 and more particularly in 1996, the plaintiff began to set up and assert exclusive title. The payment of taxes and electricity charges by plaintiff had only of recent origin after induction in 1996. The suit as framed is not maintainable. Defendants are co-owners and Page 1973 co-sharers in suit property. So the suit is to be dismissed with costs.
4. Based on the above pleadings of the parties the following issues are framed:
i) Whether the plaintiff is the adopted son of R.S.P. Naidu, and whether the adoption is true, legal and valid?
ii) Whether the Settlement Deed dated 29.11.1945 is legal, valid and binding and given effect to?
iii) Whether the Revocation Deed dated 7.11.1950 is legal and valid?
iv) Whether there was a family arrangement and whether the suit property was allotted to the plaintiff?
v) Whether the plaintiff is the sole and absolute owner of the suit property and whether he perfected his title by adverse possession?
vi) Whether the plaintiff and the defendants are co-owners and co-sharers and whether they are entitled to equal shares in the suit property?
vii) Whether the plaintiff is entitled to the suit reliefs?
viii) To what reliefs the parties are entitled to?
5. Issue Nos. (ii) and (iii): It is not in dispute that one R.S.P. Naidu was intimately close to one Balaraman while both were serving in Burma. Balaraman had a wife Sarojini (first defendant), who had three sons by name Muralidoss (plaintiff), Late. Rajini (father of 5th defendant) and Sridhar (6th defendant); and three daughters (defendants 2 to 4). Balaraman expired in 1995. R.S.P. Naidu expired earlier in October 1956, without any issues leaving his second wife Dhanammal who died in 1981. The first wife of R.S.P. Naidu, Kuppammal predeceased him in 1951.
6. Even after returning to India, the family of R.S.P. Naidu and Balaraman were very much close to each other. In respect of the suit property and other properties, there was a settlement deed executed on 29.11.1945 through Ex.P3 by R.S.P. Naidu, whereby the settlor reserved his rights therein for the life interest upon him and thereafter for the life interest of his two wives and the remainder to Damodharan in respect of items not covered by this suit; in respect of suit property after reserving his right for the life interest upon him, the same right in the suit property was given to Kuppammal the first wife and the remainder to Balaraman. There was a right of revocation reserved under Ex.P3. Accordingly the said deed of settlement through Ex.P3 was revoked by the settlor on 7.11.1950 through Ex.P4, whereby the settlor reserved his rights over the entire property found therein upon him for his life, time, thereafter jointly for his two wives for their life time with vested remainder to surviving wife and ultimately desired to create an endowment by founding a trust for the benefits of the Naidu community and appointed Damodharan as trustee with direction to do certain obligations upon vesting title on the trust.
7. The plaintiff who was examined as P.W.1 had set up a case of adoption of himself by both R.S.P. Naidu and Dhanammal somewhere in June 1951 Page 1974 and claimed the entire right over the suit property by right of inheritance (sic) both by Dhanammal and R.S.P. Naidu. In that connection plaintiff contended that Ex.P3 was not a settlement; and as if it was only a Will. When once plaintiff contended that Ex.P3 might be a Will, he may not be permitted to say that it is irrevocable, because Will is always revocable. By construing it as a settlement deed also it is found in that document that the settlor had reserved his rights of revocation. It is by such revocation only the settlor later executed another document under Ex.P4 dated 7.11.1950, whereby the settlor reserved his rights for life interest upon him and then reserved the same rights joinly for his two wives with the vested remainder to the surviving wife, and after whose life the said properties were vested with a Trust and the management of which was given to Damodharan as trustee thereof with certain directory obligations to be performed by him. Thus by construing Ex.P3 as revocable and permitting Ex.P4 to come in vogue, none of the children of Balaraman including the plaintiff may get any share under Ex.P4 in the suit property. As per Ex.94, the settlor had proposed to form a trust and vest the properties including the suit property into that trust and he has also proposed (sic) Damodharan has to be the administrator of the trust, for the cause of his community as a whole.
8. Mr. Thulasiraman, learned Counsel for the defendants submitted that in the event of Ex.P3 becoming irrevocable and was found acted upon, then it is not only the plaintiff but also his other three sisters (D2 to D4), one brother's daughter (D5) and one brother (D6) may also get 1/6 share each in the suit property. It was further pointed out by the learned Counsel for the defendants that as per Ex.P3 the settlor retained the interest thereon for his life time and after which to the life of his wife Kuppammal and after which Balaraman is to get the property. Kuppammal died six years after Ex.P3 and during the life time of the settlor, who outlived her up to 1956. It is found in evidence that upon the death of settlor, Balaraman took the property in possession and his possession from 1970 was proved by Exs.D10 and D13, which are Pension Payment Order and death certificate, in all of which his living in the suit house was mentioned. In order to show this was an element in proof of the fact that Ex.P3 was acted upon, reliance was placed by the learned Counsel for the defendants upon a case law reported in Govindammal and Ors. v. Ammasi Kouknder (1998) (III) MLJ 268, wherein delivery of gifted property was distinguished from acceptance of the same and it was further found that even though delivery was not essential as per Section 123 of the Transfer of Property Act, there can be acceptance of gift. By relying upon this, learned Counsel for the defendants submitted that in our case there is acceptance of gift by Balaraman and so it was argued that Ex.P3 was acted upon.
9. Mr. Thulasiraman, learned Counsel for the defendants further submitted that once it is proved that Ex.P3 was acted upon, and the gifted property went to the hands of Balaraman, the settlor may lose any right of revocation even if he had reserved in that document. It was further pointed out that Page 1975 mere fact that settlor had divested of his rights in the suit property under Ex.P2 excepting his life interest would go to show his incapacity to execute any revocation deed including Ex.P4. In support of this position reliance was placed upon Namburi Basava Subrahmanyam v. Alapati Hymavathi and Ors. , in which the following were the facts: One Seshamma had two daughters, namely, Hymavathi and Vimalavathy. She had bequeathed her properties to her daughters by two settlement deeds executed and registered on 1.12.1958. The appellant is the husband of Vimalavathy, who died on May 4, 1970. On August 21, 1970, Seshamma had revoked the settlement deed Ex.B1 and executed Will Ex.A1 giving the properties gifted in favour of Vimalavathy to her daughter Hymavathi. Seshamma died on January 26, 1976. Hymavathi filed a suit. The trial Judge held that Ex.B1 is a settlement deed and therefore the Will Ex.A1 is not valid in law, ultimately dismissed the suit. The learned single Judge confirmed the decree of the trial Court. The Division Bench decreed the suit as claimed by Hymavathi. In the SLP while considering the questions as to whether the document confers right and interest in the property in presenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor, it was observed that the said recital would clearly indicate that the settlement deed executed on that date is take effect on that day. It was observed that she created rights thereunder intended to take effect from that date. But a combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. Thus she had created herself a life interest in the property in her favour and vested remainder in favour of her second daughter. It was observed that it is settled law that executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the sttlee with absolute rights on settlor's demise. By construing it as a settlement deed it was further observed that having divested self thereunder, right and title thereunder she had thereafter, no right to bequeath the same property in favour of her daughter Hymavathi.
10. Therefore, the learned Counsel for the defendants submitted that even in the present case Clause (1) found under Ex.P3 shows that there was immediate divestment of settlor's, right so as not to have any further right to make sale or gift or exchange or mortgage of the same. Thus it was argued that when once such divestment and incapacity to make further gift is promulgated and effectuated under Ex.P3 there may not be anything for the settlor to rewrite that document including his own capacity by reserving his right of revocation therein. It was further submitted that when once Page 1976 the document is effectuated on the same day by creating self interest on the settlor he had no right to gift the same under Ex.P4. Therefore any clause repugnant to the same found in Ex.P3 including that clause as if settlor reserved his right of revocation would become redundant. Thus it was contended that Ex.P3 is irrevocable.
11. Mr. Sundaresan, learned Counsel for the plaintiff submitted that the above argument may hold good so long as Ex.P3 is considered as a settlement deed; but when once it is found as a Will and not as a settlement deed then even without mention made under Ex.P3 about the reservation of right of revocation, there will be such a right available for the testator. True it is in Sellayya Pillai v. Devaraya Pillai (1972) I MLJ 297, the following two passages in Halsbury's Laws of England, Simonds Edition, Vol.39, at pages 888 and 844 respectively were relied:
A Will is of its own nature revocable and therefore though a man should make his testament and last Will irrevocable in the strongest and most express terms, yet he may revoke it, because his own act and deed cannot alter the judgment of law to make that irrevocable which is of its own nature revocable. The revocable nature of a Will cannot be lost even by a declaration that it is irrevocable or a covenant not to revoke it.
12. Even in a case law Sagar Chandra Mandal v. Digamber Mandal (1909) 10 Cal. L.J. 644 Mookerjee, J., observed as follows:
If therefore an instrument is on the face of it of a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's case (1619) 8 Coke 82 (a), (a) If I make my testament and last Will irrevocable, yet I may revoke it for my act or my words cannot alter the judgment of the law to make that irrevocable. The principal test to be applied, is whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his death. If it is really of this latter, nature, it is ambulatory and revocable during his life.
13. Reference was made to Gangaraju v. Somanna AIR 1927 Mad. 197, where no power of revocation was reserved in the document. Yet the learned Judge construed the document as a whole relying upon the other clauses showing that the donee would get the property only after the life time of the testator, found it as a Will and observed that the absence of a clause relating to revocation or the mention of a clause that having to revocation or mention to the contrary may not be decisive.
14. In Ponnuchami Servai v. Balasubramanian alias Suresh 1994 L.W. 796 the tests for determination of a document whether it is a Will or settlement was vividly discussed and it was found as follows:
1. The real and the only reliable test for the purpose of finding out whether a document constitutes a Will or a gift; is to examine the nature of the disposition under the document to see whether it had Page 1977 transferred any interest in presenti in favour of the setlee or whether it intended to transfer interest in favour of the beneficiary only on the death of the executant.
2. Whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a Will or a gift.
3. The caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a Will or a gift.
4. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a Will, it would operate only as a gift.
5. If a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document even if the parties call it a settlement, it would only a Will.
15. In this case under Ex.P3 the end of the document contains the following:
Any or all of the foregoing provisions, the settlor may at any time hereinafter supply any or revoke all or any of the dispositions herein before declared concerning whole or any part of the properties described in schedules A and B hereunder.
Thus there is right of revocation. This by itself may not decide the nature of the disposition made under Ex.P3. But immediately after Clause (1) of the document Ex.P3, where the settlor divested his right excepting his life interest and make it vested with the beneficiaries only after the life time of the settlor. The first two clauses found in Ex.P3 would go to show that the settlor reserves his right in suit property for his life time and that after the life time of settlor there is a particular mode of disposition. Thus the disposition takes place only after the death of the settlor. A restricted covenant as if settlor himself has no right to execute any gift sale mortgage may not by itself go to show that it is a gift irrevocable. When once disposition under Ex.P3 took place only after the life time of the executor viz., R.S.P. Naidu, the very fact that he has restricted his right to a life interest may not take away the character as a Will. This is so because the disposition is made only after his life time. There is also no transfer in presenti because during his life time R.S.P. Naidu was to possess and enjoy the property. In other words during his life time excepting R.S.P. Naidu, the property could not be enjoyed by any one. In this angle also there is no disposition up to the life time of the testator. So the document Ex.P3 can be safely construed as a Will.
16. Mr. Sundaresan, learned Counsel for the plaintiff submitted that when once Ex.P3 is found as a Will, then it is needless to mention in any document (sic) character of the Will, it automatically becomes revocable. Even if it has mentioned as irrevocable, no such mentioning of the document will take away the character of the Will being revocable. The execution of such revocation-cum-settlement deed under Ex.P4 dated 7.11.1950 was not under dispute. Thus, Ex.P3 is Page 1978 found validly revoked under Ex.P4. Therefore, disposition would follow only in accordance with the terms of Ex.P4, according to which the settlor will enjoy the property for life time and then the two wives for their life will enjoy jointly with vested remainder to surviving wife and then it will be endowed to the community of Naidu by making a trust appointing Damodharan as a trustee, who is none but the brother of Dhanammal. As Dhanammal died in 1981 and Kuppammal first wife of R.S.P. Naidu died much earlier in 1951, after the enjoyment of the property by Dhanammal it will vest upon the trust whose administrator would be Damodharan, the brother of Dhanammal. Thus issue No. (ii) is answered to the effect that the Will dated 29.11.1945 was found validly revoked. Issue No. (iii) is answered to the effect that Ex.P4 the revocation deed dated 7.11.1950 is found valid.
17. Issue Nos.(i): Now coming to the issue of adoption alleged by the plaintiff, it was pleaded in the plaint that he has been adopted in June 1951 by R.S.P. Naidu and Dhanammal, whereas in Ex.P39 his reply dated 31.7.1998 it was mentioned on behalf of the plaintiff as if he was given in adoption to R.S.P. Naidu while he was three years old. As the plaintiff was born in 1945 he would be three years old somewhere in 1949. Thus, the plaintiff is not clear about the year of adoption. While plaintiff was confronted about this he said that both periods were correct. The fact that at that time plaintiff was the only son of Balaraman is also against the theory of adoption because as observed in Addagada Raghavamma and Anr. v. Addagada Chenchamma and Anr. it is highly improbable and unless there are special circumstances, it is well known that ordinarily the only son is neither given nor taken in adoption.
18. However, the burden of proving the case of adoption lies squarely upon plaintiff as held in (supra) in the following lines:
It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.
Exs.P19 and P16 are the documents of the year 1962 and 1997, the first is S.S.L.C. book of plaintiff and the second is a certificate issued by the M. Ct. M. Chidambaram Chettiar Memorial Preparatory School, Purasawalkam, in both of which Dhanammal was described only as guardian of plaintiff, by scoring the printed word "parent". There is no other document worth mentioning to indicate that plaintiff was adopted son of Dhanammal, excepting Ex.P22 dated 11.11.1967 purported to have written by Dhanammal to the Army officer under whom plaintiff was employed. In this document plaintiff was shown to be her adopted son, but it had not seen the light of the day earlier. The signature purported to be of Dhanammal in that document was stoutly resisted by the other side. Excepting the interested testimony of plaintiff there was no corroborative evidence in order to prove Page 1979 the same. Moreover that letter was typed in English and Dhanammal who was not very much literate was shown to have subscribed her signature. There is no other evidence in support of her signing Ex.P22. In fact the description of Dhanammal as guardian of plaintiff in Ex.P19 (in the year 1962) and Ex.P16 (in the year 1997) by scoring the printed word 'parent' from there would go to belie the contents of Ex.P22. Therefore failure to satisfactorily prove the signature of Dhanammal in Ex.P22 has to be taken into consideration and it looms large in the above circumstance.
19. Mr. Sundaresan, learned Counsel for the plaintiff submitted that while all the other daughters of Balaraman wedded after printing invitation cards therefor through Exs. P45 to Ex.P47, the fact that there was no similar invitation card for plaintiff's marriage which was made out by registration under Ex.P5 would show that he was given in marriage only by adoptive parents. The mere failure to show that the natural parents were not available at the time of marriage of plaintiff may not positively go to show that it was adopted parents who have solemnised the marriage of plaintiff. Similarly mere reporting of death of R.S.P. Naidu by plaintiff through Ex. P1 may not also make him to show that he was adopted son of R.S.P. Naidu.
20. Further the evidence of P.W.2 is not also worth consideration because he was not able to say the date or day of adoption and he was not able to tell about anyone of the attendants of that function. Even according to him he was only to assist one Kannaiah Sastrigal. Even though he would say that there were 10 members in the function he could not say anything about them. The evidence of P.W.2 is unsafe to be relied on. Mere grooming of plaintiff by R.S.P. Naidu and Dhanammal may be due to the strong friendship that was between R.S.P. Naidu and plaintiff's father Balaraman. The kindness that was shown by R.S.P. Naidu and Dhanammal in nurturing plaintiff as their friend's son cannot be allowed to take advantage of by plaintiff to say that he is the adoptive son in order to claim the entirety of the property of R.S.P. Naidu unless there is satisfactory evidence for the same. Therefore, the plaintiff has not proved that he is the adopted son of R.S.P. Naidu, and there is no proof with regard to family arrangement and that the plaintiff has not proved that he is the absolute owner of the suit property and therefore, plaintiff is not entitled to the suit reliefs. There is also no adverse possession proved by plaintiff, inasmuch as his possession was attributed to plaintiff as being the adopted son of R.S.P. Naidu and Dhanammal. While plaintiff had made such a retrieval claim it cannot be considered as a possession adversely to his sisters, daughter of his brother and brother the defendants 2 to 6. So issue Nos. (i) is answered against the plaintiff.
21. Issue No. (iv): The plaintiff in his evidence deposed that during the life time of Dhanammal she made a family arrangement as per which the suit house was allotted to plaintiff and another property was allotted to her brother's son. In order to prove the family arrangement there is no document filed. Therefore, issue No. (iv) is answered against the plaintiff.
22. Issue Nos. (v) and (vi): By construing that Ex.P3 was only a settlement deed Mr. Thulasiraman, learned Counsel for the defendants submitted that Page 1980 as per the said document after the death of Dhanammal Balaraman would be vested with the suit property and that Balaraman also was found living therein from 1970 as plaintiff was away in Indian Air force in between 1962 and 1977 and that plaintiff himself has admitted the living of first defendant widow of Balaraman in that house till 1995, the year of death of Balaraman. As mentioned above R.S.P. Naidu was living in the suit house till his death in 1956. Subsequently, there is no evidence about the possession till 1970 when Balaraman took possession thereof. He was living there. His wife the first defendant was found living there up to 1995. Therefore, there is no adverse claim that could be made by the plaintiff who is none but the son of Balaraman. He was actually away between 1962 and 1977 as he was employed in Indian Air force. After 1977 also plaintiff admitted the living of his mother in the suit house. There is no exclusive and adverse claim made by the plaintiff. Hence it could not be said that plaintiff had acquired prescriptive title by adverse possession. The argument that Balaraman's heirs viz., the plaintiff, and defendants 2 to 6 will each have 1/6 share was made construing Ex.P3 as settlement deed. On that ground there was a claim of co-owners between plaintiff and defendants. But Ex.P3 was found only as a Will and not a settlement and therefore there is no question of co-owners as claimed by plaintiff. Thus, issue Nos. (v) and (vi) are answered against the plaintiff.
23. Issue No. (vii): As per the discussion made above Ex.P3 was the Will which was rightly revoked under Ex.P4., as per which Damodharan as a trustee would be entitled to administer the property as per the last wishes of testator R.S.P. Naidu. Therefore, the plaintiff has no Interest in the suit property. But Damodharam so far has not taken possession and he is not also a party before us. Till 1995 Balaraman and his wife Sarojini were found living in the suit property and thereafter the plaintiff had changed the assessment in his name under Ex.P30. Even though the possession of plaintiff in the suit (sic) may be wrong but it is good against all excepting the true owner Damodharan, who is not impleaded as a party. Even though the plaintiff may not be entitled a decree for injunction as against the true owner Damodharan, it is the fact, that plaintiff is found living in the suit house. He claimed so in the capacity of adopted son of Dhanammal, the defendants claimed that they were co-sharers as their father Balaraman was entitled to the suit property as per Ex.P3. But both were found untrue for the reasons mentioned supra. However, the possession of plaintiff in the suit house is not disputed. His possession may not be lawful. But even that possession should be protected against all except true owner. In this manner he is entitled for permanent injunction.
24. Issue; No. (viii): The suit is partly allowed, granting decree in so far as the relief of permanent injunction against the defendants. The suit in so far as the relief of declaration is dismissed. In the circumstances of the case, there will be no order as to costs.