SETHUKANDIAPAN Vs. JAGADAMBAL

JUDGEMENT

(1.) THE fight is over the properties belonging to one Rangasamy Gounder (R.G) who died on 29.1.1977. THE appellant in both the appeals is his son. THE relationship of the parties need to be set down. THE respondents 1 and 2 are the daughters of R.G. Rajammal, Ramu and Suguna, the respondents 3, 4 and 5 (A.S. No.884 of 1985) and respondents 4, 5 and 6 (A.S. No.886 of 1985) are the wife and children of the appellant. Meenakshi Ammal the wife of R.G. is the 14th respondent and 3rd respondent in A.S. Nos.884 and 886 of 1985 respectively. THE other respondents are persons claiming to be in possession under alleged agreements. THE dispute is really between R.G's two daughters and the son. THE reference to the parties in this judgment will be according to their array in the appeal.

(2.) THE trouble started when the Respondents 1 and 2 claimed that their father had executed a Will Ex.A-1. What was bequeathed under the Will were the Pollachi property - a house property (item 1) and some agricultural properties (items 2 and 3). THE respondents 1 and 2 filed O.S. No.55 of 1982 in respect of the Pollachi property for declaration and recovery of possession. THE appellant filed O.S. No.62 of 1982 for partition and separate possession of all the properties. THE learned Subordinate Judge at Udumalpet dismissed the appellant's suit and decreed the respondent's suit, leaving R.G's son aggrieved.

(3.) MR.S.V. Jayaraman, learned senior counsel for the respondents would refer to paragraph 6 in the earlier plaint which is Ex.B-21. In this case, there is a clear reference to the Will and the recitals are almost identical to the present plaint and therefore, the appellant having allowed that suit to be dismissed for default,O.9, Rule 9, C.P.C. will be a bar. Neither had the appellant obtained leave of the Court to withdraw the suit and file a fresh one on the same cause of action, nor had the appellant filed any application to restore the suit that was dismissed for default. He also submitted that the present suit is also barred byO.2, Rule 9, C.P.C. since in the earlier suit, he could have asked for the same relief, but had not done so. The learned senior counsel also referred to O.S. No.55 of 1982 where for the first time, in the written statement, the appellant denied the genuineness of the Will. Even in his own suit in O.S. No.62 of 1982, the plaintiff had averred that his father "seemed" to have executed a Will. The word used is not "alleged". So there is a tacit acceptance of the Will. Learned senior counsel also pointed out to the evidence of P.W.1 who is the appellant herein. He had stated that he knew that the father had written a Will only later. While the witness has attacked that Will as invalid and that he has not accepted the Will, neither in the pleading, nor in the oral evidence has the appellant denied the execution of the Will by his father or even doubted it.