MUNUSAMY Vs. POWNAMMAL

JUDGEMENT

(1.) The Plaintiff, who lost his case before both the courts below, has filed this Second Appeal against the Judgment 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.

(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.