CHENCHULAKSHMI Vs. JANARDAN SINGH

JUDGEMENT

(1.) S.A.No.134 of 1984 is preferred by the plaintiff in O.S.No.535 of 1977. S.A.No.1565 of 1987 is preferred by the defendants in O.S.No.1395 of 1980.

(2.) THE plaintiff in O.S.No.535 of 1977 is also the plaintiff in O.S.No.1395 of 1980. She is the respondent in S.A.No.1565 of 1987, while she is the appellant in S.A.No.134 of 1984. Sundari Bai, Raghanatha Singh, Ganesan and Krishnadas are the defendants in O.S.No.1395 of 1980. THEy are the appellants in S.A.No.1565 of 1987. Sundari Bai, Janardan Singh, Subbu Singh and Krishnadas are the defendants in O.S.No.535 of 1977 and the respondents in S.A.No.134 of 1984. THE properties comprised in O.S.No.535 of 1977 bear Door Nos.19 to 23/109, T.S.No.7/2405, Sukrawarpettai, Coimbatore. THE properties comprised in O.S.No.1395 of 1980 are door Nos.19 to 23 corresponding to old No.30/131 and T.S.No.7/2405. Thus, the parties and properties are the same. THErefore, I propose to dispose of these two cases by a common judgment.

(3.) THE defendants 1 and 2 remained absent and were set ex parte. THE defendants 3 and 4 filed a common written statement as follows: It is not admitted that Lokanatha Singh died intestate. He executed a Will on 5.11.1960, which was his last will. By virtue of the said will, he bequeathed his 1/3rd share to the defendants. THErefore, on his death, the defendants became entitled to the said share of Loknath Singh. Ever since 22.11.1960, the defendants were in joint possession of the property with the other co-owners. Defendants 1 and 2 are only entitled to a 2/3rd share by virtue of succession to Heera Bai's estate. THEse defendants are not concerned or bound by the proceedings in O.S.No.125 of 1970. THEy were not made parties to the suit. THEse defendants do not claim the property under the 5th defendant. THEy have got independent right by virtue of the operation of the will. THErefore, the finding of the court will not bind these defendants. THE plaintiff conveniently pleads an oral agreement. THE sale deed alleged to have been executed on 7.9.1977 is not true and valid and it is of no avail since the sale deed is after the decree passed in O.S.No.373 of 1972, to which defendants 1 and 2 were parties. THE defendants 1 and 2 filed their written statement stoutly denying the genuineness and validity of the will. THE suit was included in the list for trial. But the defendants 1 and 2 and their counsel did not turn up and in order to give a chance to the defendants 1 and 2, the matter was adjourned to 6.8.1973. THE counsel for the defendants reported no instruction. THE sister of these defendants 3 and 4 tendered evidence in O.S.No.373 of 1972, and the suit was decreed. THE said decree has become final and conclusive. THE defendants 1 and 2 are bound by the same. Pursuant to the decree, the defendants filed a petition in I.A.No.221 of 1974 for the passing of a final decree. By way of the caution, the father of the plaintiff was impleaded as a party to the final decree application. Defendants 1 and 2 along with the plaintiff's father filed a common counter statement, and on 4.10.1974, the court passed an order, over-ruling the objections and appointing a Commissioner. THE said Order has become conclusive. THErefore, the present suit is not maintainable. THE plaintiff has purchased the property pending the suit in O.S.No.373 of 1972. Hence, the sale in favour of the plaintiff is hit by the doctrine of lis pendens. THE decree in O.S.No.373 of 1972 cannot be attacked on any ground. It has become final and conclusive. THE allegations relating to collusion are false and concocted. THE said decree is binding and it cannot be declared to be void. THE plaintiff being bound by the decree should seek cancellation of the decree first, before claiming any further relief.