S ALPHONSE Vs. A GNANARAJ

JUDGEMENT

(1.) The first defendant in the suit in O.S.No.571 of 2011, on the file of the learned II Additional Sub Judge, Madurai, is the appellant in these second appeals.

(2.) The respondents 1 to 3 in these appeals, as plaintiffs filed a suit in O.S.No.571 of 2011, before the learned II Additional Sub Judge, Madurai, for partition of their 1/3 share in the suit property. The case of the plaintiffs is that the suit property originally belonged to one Eswari Ammal and the property was purchased by James Mary from the said Eswari Ammal. It is the further case of the plaintiffs that the said James Mary died on 18.10.1995 leaving behind her husband Sessaiyapillai and three children, namely, Alphonse, Joseph and Arockiya Mary. Since the said James Mary died intestate, it is stated that after the death of the said James Mary, the suit property was inherited by her husband Sessaiyapillai and her children by way of succession. It is further submitted that Arokiya Mary, one of the daughters of the said James Mary died on 06.06.2009, leaving behind the plaintiffs as her sole legal representatives. The first plaintiff is the husband and plaintiffs 2 and 3 are the children of the said Arockiyamary. Joseph, son of James Mary, died on 19.07.2006, leaving behind the defendants 2 to 5 as his legal heirs. The second defendant is the wife of the said Joseph and defendants 3 and 5 are his children. It is also the case of the plaintiffs that the said Sessaiahpillai during his life time, executed a registered Will on 16.04.1999 bequeathing the suit property to all his three children, namely, Alphones, Joseph and Arockiya Mary. After the death of Sessaiahpillai on 01.08.2009, his legal heirs were entitled to 1/3 share in the suit property. It is therefore submitted by the plaintiffs that the plaintiffs are entitled to 1/3 share, being the legal heirs of the one of the daughters of the James Mary and Sessaiahpillai. The suit is also for a permanent injunction restraining the first defendant not to make any alteration or any construction in the suit property.

(3.) The suit was contested by the first defendant, one of the sons of James Mary. Referring to the suit, filed by the first defendant in O.S.No.590 of 2011, on the file of the learned II Additional Sub Judge, Madurai, it is contended by the first defendant that the suit is barred by res judicata. It is further submitted by the defendant that the first defendant's mother James Mary executed a Will on 14.01.1995 bequeathing the suit property in favour of the first defendant. It is further stated that after the death of James Mary, the Will came into force and that he is in possession and enjoyment of the suit property as an absolute owner on the basis of the said Will executed by his mother James Mary.