IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.733/2003 Munuswamy Appellant/Plaintiff Vs Pownammal Respondent/Defendant Prayer:- This Second Appeal is filed under section 100 of CPC against the Judgement and Decree dated 1.4.2002 passed in AS.No.98/1997 by the learned Additional District Judge, Vellore, confirming the Judgement and Decree dated 27.3.1997 passed in OS.No.112/1989 by the learned District Munsif, Vellore. For Appellant : Mr.A.Gowdaman, For Mr.T.R.Rajaraman For Respondent : Mr.R.Margabandhu JUDGEMENT The Plaintiff, who lost his case before both the courts below, has filed this Second Appeal against the Judgement and Decree dated 1.4.2002 passed in AS.No.98/1997 by the learned Additional District Judge, Vellore, confirming the Judgement and Decree dated 27.3.1997 passed in OS.No.112/1989 by the learned District Munsif, Vellore. 2. The case of the Plaintiff, as set out in the plaint, is as follows:- a. The suit property and other properties belonged to the Plaintiff's mother Chinnakulandaiamal, who was in possession and enjoyment of the same and she executed a registered Will bequeathing the property described in "A" in the Will to the Plaintiff's brother's son and "B" to the Plaintiff. Within a few days, she passed away. Thereafter, in the oral partition, the Plaintiff took separate possession of the schedule mentioned property and the patta also stands in his name and he is paying kist. While so, the Defendant and her son attempted to interfere with his possession, setting up a false Will of Chinnakulandaiammal dated 13.2.1982 and relying on the decree obtained by her in OS.No.2405/1982 and hence, the present suit has been filed for declaration and injunction. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the Defendant, as set out in the Written Statement, is as follows:- a. The suit property belonged to Chinnakulandaiammal and the Defendant is her daughter-in-law. The Will dated 12.2.1982 propounded by the Plaintiff was obtained by coercion. On 13.2.1982, she had executed her last Will canceling the earlier Will dated 12.2.1982. The brother of the Plaintiff Subramniya Gounder and others have filed OS.No.978/1982 and the son of the Defendant also filed a suit in OS.No.2405/1982. In both the suits, the Plaintiff was a party. OS.NO.978/1982 was dismissed and OS.No.2405/1982 was decreed and it is in final decree stage and therefore, the present suit is barred by principles of Res-Judicata. The Defendant also filed a suit in OS.NO.456/1977 for maintenance against her husband Plaintiff and their mother and the same was decreed. In execution of the decree, she has purchased the property in the court auction. The Plaintiff is not in possession of the suit property and the kist receipt filed does not relate to the suit property. 4. The Defendant filed an additional Written Statement before the Trial Court, contending that the Plaintiff, who was a party in OS.No.2405/1982, having lost the suit, filed the present suit to cause trouble to the Defendant; that in IA.No.271/1989, the learned counsel for the Plaintiff made an endorsement that subject to the result of OS.No.2405/1982, the injunction application may be decided and now he cannot say that the decree in OS.No.2405/1982 is a collusive one; that the Will in favour of the Defendant has been approved in OS.No.2405/1982 and the oral partition pleaded is not true; that except the property allotted to the son of the Defendant in the suit, the other properties remain undivided between the Plaintiff and his brother/defendant's husband; that pending the suit, the defendant's husband died intestate; that even as per the Plaintiff's admission, the defendant's husband is entitled to 1/2 share in the suit property and therefore, the Defendant and her son are entitled to undivided 1/2 share and the suit against the co- owner for declaration will not lie and in OS.NO.456/1977, the Defendant had been allotted 1/3rd share and the same has also been included in this suit as a vacant site and the property allotted in OS.NO.2405/1982 also has been included. 5. The Plaintiff filed a reply statement contending that the Defendant is the wife of the Plaintiff's brother and she never lived with her husband and she had deserted him; that she had also initiated litigations against him and other family members and she did not participate in any of the family affairs and did not know the happenings in the family; that after the death of his mother, the Plaintiff and his brother Subramani divided the property in an oral partition and in the partition, the Plaintiff was allotted the suit property and since then, he is in separate possession and enjoyment of the same; that the Plaintiff's brother had promised to contest OS.No.2405/1982, but he remained exparte and it is a collusive decree and the decree in OS.No.456/1977 is not binding on the Plaintiff; that in that suit, she has not been allotted 1/3 https://hcservices.ecourts.gov.in/hcservices/ share and after partition, the suit house has been built by the Plaintiff and therefore, she cannot claim right in it and she cannot be a co-owner. 6. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiff had marked Exs.A1 to A4 and examined himself as PW.1 and his father-in-law Chinnakannu and one Mani as PW.2 and PW.3. The Defendant had marked Exs.B1 to B9 and examined herself as DW.1 and one Murugesan as DW.2. 7. The Trial Court, after considering both the oral and documentary evidence, dismissed the suit and the lower Appellate Court also dismissed the first appeal filed by the Plaintiff. Hence, this second appeal has been filed by the Plaintiff. 8. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 9. This court, while admitting this second appeal, had formulated the following substantial question of law:- (a) Is the learned Additional District Judge right in dismissing the appeal on the ground that Ex.B1 Will dated 13.2.1982 executed in favour of one Kotteeswaran by Chinnakulandaiammal who died on the next day itself, when there is sufficient suspicion on the part of the Defendant? 10. Indisputably, the suit property belonged to Chinnakulandaiammal, the mother of the Plaintiff. The Plaintiff Munisamy and one Subramani, the husband of the Defendant are her sons. According to the Plaintiff, Chinnakulandaiammal executed a registered Will dated 12.2.1982 bequeathing the property described as "A" in the schedule to her Will to the Plaintiff's brother's sons and "B" to the Plaintiff. Based on the Will, they effected oral partition and the suit property and some other properties as mentioned in "B" schedule to the Plaint was taken possession and he is in enjoyment. The patta stood in his name and he was paying kist. Since the Defendant and her son attempted to interfere, the present suit was filed originally for permanent injunction and by way of an amendment, a prayer for declaration was included. 11. The Defendant resisted the suit, contending that the Will dated 12.2.1982 was obtained by coercion and the same was cancelled by Chinnakulandaiammal by her last Will dated 13.2.1982, whereby she had bequeathed 1/3rd share in the suit property to her grand son Kotteeswaran, the son of the Defendant. The Plaintiff's brother and others filed a suit in OS.NO.978/1982 and the Defendant's son filed a suit for partition in OS.NO.2405/1982 and in both the suits, the present Plaintiff was a party. In both the suits, the validity of the Wills were at question. The suit in OS.No.978/1982 was allowed to be dismissed for default, but in OS.No.2405/1982, the Will propounded by the Plaintiff's brother was https://hcservices.ecourts.gov.in/hcservices/ rejected and a preliminary decree dated 30.11.1987 in favour of Kotteeswaran was granted after contest and the appeal preferred by the sons of Subramani through his second wife was dismissed. The validity and genuineness of Ex.B1 Will was upheld and therefore, the decree in OS.No.2405/1982 would operate as Res-Judicata as against the present Plaintiff, who was a party to the suit. Ex.B3 is the copy of the suit extract in OS.No.2405/1982, Ex.B4 is the certified copy of the decree in AS.No.8/1992 and Ex.B5 is the certified copy of the execution petition in IA.NO.335/1991, whereby the grandson of Chinnakulandaiammal filed execution proceedings and taken possession of his 1/3rd share as per the Will dated 13.2.1982 and Ex.B6 is the certificate evidencing taking of possession. 12. That apart, the Defendant had filed OS.No.432/1983 before the learned Additional District Munsif, Vellore against Subramani for maintenance and a decree was granted creating a charge over certain properties including the other 1/3rd share of her husband's property. Pursuant to the said decree, she brought the charged property for sale and she herself had purchased them in the court auction under Ex.B7 which included the 1/3rd share of her husband in the suit property. Therefore, according to the Defendant, her son and herself are in possession of 2/3rd shares in the property and therefore, the Plaintiff has no exclusive title to the suit property. 13. The main contention of the learned counsel for the Appellant is that both the courts below failed to appreciate that Ex.B1 Will is not a genuine and true Will executed by Chinnakulandaiammal, who died on the next day of such execution and there was sufficient evidence to prove the Will dated 12.2.1982 as a genuine one. Mr.A.Gowdaman, the learned counsel for the Appellant strenuously contended that the evidence clearly indicated that there was no necessity for the Testatrix to execute any Will on the next day itself, thereby canceling the earlier Will dated 12.2.1982 and the suspicious circumstances surrounding the execution of the later Will have not been taken into account by both the courts below. 14. The learned counsel for the Appellant relied upon a catena of decisions of the Honourable Supreme Court and this court to strengthen his argument that the demise of the Testatrix on the very next day is one of the serious suspicious circumstances, which would throw a serious doubt on the truth and genuineness of the Will. He would submit that the second Will propounded by the Respondent has not been proved in the earlier proceedings namely the suit in OS.No.978/1982 which was only dismissed for default and no adjudication about the validity of the Will was made. 15. On the other hand, Mr.R.Margabandhu, the learned counsel for the Respondent contended that the second Will dated 13.2.1982 is the last Will of the Chinnakuandaiammal, who cancelled the earlier Will and executed the same out of her own free Will and volition and the same is genuine, true and valid and its truth and validity is accepted in the earlier proceedings, where the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Plaintiff was a party Defendant in those suits. 16. Before adverting to the rival submissions made on either side, certain legal position as enumerated by the Honourable Supreme Court has necessarily to be borne in mind, about which the learned counsel for the Appellant referred to. Whether a Will was the result of her own wish and act and whether it was procured from her by means of fraud or undue influence or coercion are pure questions of fact. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. 17. Coming to the present case, the Appellant put forth the following submissions:- Chinnakulandaiammal executed a registered Will Ex.A1 on 12.2.1982 bequeathing the suit property along with the other property in favour of the Plaintiff and his brother's sons born through the 2nd wife. After registration of the Will, she felt uneasiness and was taken to the hospital and was discharged on the next day. While she was taken home in the car, the Respondent, her brothers and her men took her forcibly after attacking the Plaintiff and his men to the registration office and got the Will, when she was not in a sound and disposing state of mind. Though the Plaintiff stated in his evidence that he gave a complaint to the police, but the same was not marked before the Trial Court. His evidence indicated that he was very much aware of the execution of the second will by Chinnakulandaiammal and the relevant portion from his evidence is extracted below:- @hp$p!;l;uh; Mgprpy; gt[dk;khs; brhy;yp xU capy; vGjpdhh;fs;/ mjid gjpt[ bra;a jl';fy; bra;njhk;/ ehDk; vd; mz;zDk; rg;hp$p!;l;uh; MgPrpDs; bry;yKoatpy;iy@ 18. At the outset, none of the above submissions regarding suspicious circumstances in the execution of the Will dated 13.2.1982 are averred in the plaint. Neither, it is stated that the signature of the Testatrix was got after she died. There is absolutely no plea as to what are the relevant suspicious circumstances, which raises a doubt regarding the execution of the Will either in the plaint or in the reply statement. Only in the evidence, the Plaintiff have stated that the Will has been obtained forcibly by the Defendant and her men taking the Testatrix to the Sub Registrar's office. The Trial Court has disbelieved the said evidence and has given its reasons for not relying upon such evidence. The relevant passage from the judgement of Trial Court is extracted below:- @,t;thwhd thjpapd; Tw;iw epU:gpf;f mt;thW bfhLj;Js;sjhf thjp rhl;rpak; mspj;Js;shh;/ ,t;thwhd thjpapd; Tw;iw epU:gpf;f mt;thW bfhLj;jjhf brhy;Yk; nghyP!; g[fhiu ,e;ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ nkYk; ,Jrk;ke;jkhf fhty; epiya mYtyiunah kw;w jdpg;gl;l rhl;rpa';fnsh thjpapd; tHf;Fiu r';fjpfSf;F Mjuthf tprhhpf;fg;gltpy;iy/ nkYk; thjp brhy;Yk; epfH;r;rp cz;ikbad;W , Ue;jhy; ,ijg;gw;wp xUthh;j;ij Tl tHf;Fiu r';fjpfspy; thjpahy; brhy;yg;gltpy;iy/ vdnt. thjpapd; gp/rh/M/1 kPjhd Ml;nrgiz cz;ikbad;W ,Ue;jhy; thjp Kdprhkpahdth; mry; tHf;F vz;/978-82. mry; tHf;F vz;/2405-82 V/v!;/8-92 Mfpa tHf;Ffspy; Kf;fpa jug;gpduhf gpujpthjpahf nrh;f;fg;gl;oUe;jhYk;. nkw;brhd;d gp/rh/M/1 https://hcservices.ecourts.gov.in/hcservices/ d; kPjhd Ml;nrgizia gpujpthjpahf nrh;f;fg;gl;Ls;s nkny brhd;d tHf;Ffspy; thjp ve;j Ml;nrgiziaa[k; Kd; itf;f tprhuizapy; fye;J bfhs;stpy;iy/ , t;thW thjpahdth; nkw;brhd;d tHf;fpy; Kf;fpa jug;gpduhf nrh;f;fg;gl;Lk; mtuJ Ml;nrgizia Kd; itf;f nghjpa re;jh;g;g';fs; ,Ue;Jk;. mjid bra;ahJ ntz;Lbkd;nw xUjiygl;rkhf ,Ue;Jtpl;L mjw;F Mjuthf thjpapd; rnfhjuh; jhd; jdJ tHf;fpid elj;jp te;jhh; vDk; thjpapd; thjkhdJ ve;jtifapYk; Vw;fKoahjjhfpwJ vd epuhfhpf;fg;gLfpwJ/ nkYk; ,Jgw;wp thjp jkJ rhl;rpaj;jpy; th/rh/1 rhl;rpaj;jpd; nghJ @,uz;L tHf;FfspYk; jhd; vf;!;ghh;l;oahfp ,d;W tiu mJ Ch;$pjj;jpy; cs;sJ vd;Wk;. mij uj;J bra;a ehsJtiuapy; eltof;if vLf;ftpy;iybad;why; rhp@. vd rhl;rpak; mspj;Js;shh;/ vdnt ,t;thwhd thjpapd; tha;bkhHp rhl;rpak; gpujpthjp jhf;fy; bra;j tHf;fpy; xUjiygl;rkhf jPh;g;ghizahdJ mwpe;j gpd;dUk; Tl mij jdf;F bjhpate;j fhyk; Kjy; uj;J bra;J kPz;Lk; jd;id tHf;F tprhuizf;F cl;gLj;jpf;bfhs;s thjpKd;tutpy;iybad;W bjspthf bjhpatUfpwJ/@ 19. The Trial Court after analysing the evidence has come to the conclusion that there is no reason to doubt the genuineness of the Will dated 13.2.1982. The first appellate court has affirmed the said findings in its judgement. Significantly, none of the pleas raised by the Appellant disputing the genuineness of the Will has been alleged by the Plaintiff or his brother in the earlier proceedings. 20. The learned counsel for the Appellant would strenuously contend that when two Wills are executed within a short interval, that will be a suspicious circumstance and it is the duty of the person, who claims under the Will, to satisfy the court that the same was executed by the Testatrix in sound and fit mind out of her own will and volition. 21. Before adverting to his argument, it is significant to mention that the beneficiary to the Will, namely, Kotteeswaran the son of the Defendant has not been made as a party in the present suit. The attestor to the first Will was examined as PW.2, but his evidence is of no avail to the Plaintiff, as he has stated that his eyesight is poor and was unable to identify even his own signature in Ex.A1 Will before the Trial Court. Although the Will Ex.B1 propounded by the Defendant was pleaded and proved in the earlier suit, the Defendant has examined one of the attestors to the Will as DW.2 in this suit as well. He has clearly stated about the affixture of thumb impression by the Testatrix in the presence of the attesting witnesses and about their attestation of the Will in the presence of the Testatrix. He has clearly spoken to about the execution of the Will by the Chinnaklandaiammal in the Sub Registrar's Office and no material is elicited by the Plaintiff to discredit his evidence despite detailed cross examination. 22. Further, DW.1 has stated in her cross examination that Chinnakulandaiammal told her that she has bequeathed property to the Plaintiff and she wanted to cancel the same. The next day she came to DW.1's house in an auto and then to the Sub Registrar's Office and executed the second Will. There is nothing to suggest https://hcservices.ecourts.gov.in/hcservices/ that the thumb impression of Chinnakulandaiammal was got after her death before the Sub Registrar who registered the Will in accordance with the provisions of the Registration Act. Merely on the ground that she died the next day of the execution, it cannot be said that the execution of the Will is shrouded with suspicious circumstances. Besides the fact that there is no plea disputing the genuineness of the Will, the Plaintiff has not let in any evidence to prove his case that Ex.B1 Will dated 13.2.1982 was brought about in a suspicious circumstance. 23. The Respondent has reiterated her submissions in this second appeal that Ex.B1 the Will dated 13.2.1982 has been adjudicated upon in the suit namely in OS.No.2405/1982. It is submitted that the Appellant/ Plaintiff was a party Defendant in the said suit and he appeared through a lawyer, but at a later stage, remained exparte, however, the decree is binding on the Appellant and it operates as Res-Judicata. The learned counsel for the Respondent would contend that the Appellant cannot plead that he was not aware of the decree, as he appeared through lawyer and in IA.No.2271/1989 pending the suit he made an endorsement that he would abide by the result of the suit. In such circumstances, it is contended that the Appellant having not taken any steps to set aside the decree is estopped from contending that he is in possession, more particularly when it is established from the records that the Respondent has taken possession pursuant to the decree made in OS.No.2405/1982. 24. On a perusal of Ex.B3, the suit extract in OS.No.2405/82, it is noticed that the Defendant's son Kotteeswaran has filed the said suit as against his father Subramania Gounder, the present Plaintiff and the children born through his father's second wife for partition based on the Will Ex.B1 dated 13.2.1982. A preliminary decree in favour of Kotteeswaran has been passed on 30.11.1987 under Ex.B9 and the appeal preferred by the sons of the 2nd wife has also been dismissed. Ex.B4 is the copy of the decree passed in AS.NO.8/92. Subsequently, final decree has also been passed and Ex.B8 is the certified copy of the said decree. Pursuant to which, the Respondent had filed execution proceedings in EP.No.335/1991 and possession has also been taken by Kotteeswaran under Ex.B6 proceedings. 25. The above said documents clearly show that the present Plaintiff was a party and he was well aware of the earlier suit though he remained exparte. It is not disputed that the Will was placed in evidence in the earlier proceedings. The matter in controversy, that is the truth and genuineness of the Will has been decided after contest and after affording fair opportunity to the parties concerned to prove their case by a court competent to decide it. Hence, the said findings would operate as Res-Judicata in this suit. 26. The doctrine of Res-Judicata or constructive Res- Judicata predominantly is a principle of equity, good conscience and justice. It is neither equitable nor fair nor in accordance https://hcservices.ecourts.gov.in/hcservices/ with the principles of justice that the issue concluded earlier ought to be permitted to be raised later in the suit brought out by a party who was a Defendant in the earlier suit and who had fair opportunity to contest the suit. It is not necessary that before a matter can be said to be Res-Judicata, it should be shown that it formed the subject matter of a definite issue in the earlier suit. If the court can gather from the pleadings, the Judgement and Decree that the matter was directly and substantially in issue formed the basis of the judgement arrived at in the earlier suit, either expressly or by necessary implication, then the principle of Res-Judicata would apply. In the present case, a finding has been given as to the validity of the Will Ex.B1 in the earlier suit, as it had become necessary for the decision of the earlier suit and therefore, it operates as Res-Judicata and the said finding cannot be allowed to be questioned in the present suit. 27. From the records, it is seen that a charge has been created over the suit property in favour of the Respondent in the maintenance suit filed by her in OS.No.456/77. In execution of the decree for maintenance, she had brought the property to sale over which there was a charge and she had purchased it in the court auction under Ex.B7 sale deed. Hence, it is proved that the Respondent and her son are in possession of 2/3rd shares in the suit property and therefore, the Appellant/Plaintiff has no exclusive title to the suit property. The courts below have rightly analysed the evidence and come to the conclusion that Ex.B1 Will is true and valid and the Appellant/ Plaintiff has not proved his exclusive title to the suit property. 28. In view of the reasons stated above, this court does not see any valid or tangible reasons to interfere with the concurrent findings of the courts below and the substantial question of law is answered against the Appellant. 29. In the result, this Second Appeal fails and the same is dismissed. However, in the circumstances of the case, there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Srcm To: 1.Additional District Judge, Vellore 2.District Munsif, Vellore + 1 cc to Mr.T.R.Rajaraman, Advocate Sr 23063 Judgement in SA.No.733/2003 VSV (CO) RH(26.4.10) https://hcservices.ecourts.gov.in/hcservices/