High Court · 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-01-2025CORAMTHE HONOURABLE MS JUSTICE R.N.MANJULAS.A.No.1647 of 20111 Rangammal(died) W/o.late C.thimma Naicker perumal Koil Street indiyampalayam Village sathyamangalam Taluk erode District2 Ramasamy(died) S/o.late C.thimma Naicker Perumal Koil Street Indiyampalayam Village Sathyamangalam Taluk Erode District3 Alamelu Mangammal W/o.senathipat anupparpalayam h/o. sathumugai Village sathyamangalam Taluk erode District4 Swarnalatha W/o.ravi kalikulam ukkaram Village sathyamangalam Taluk erode District5 Vimala W/o. Late.ramasamy 1/39 Indiyampalayam Sathyamangalam Taluk Erode Dist.6 Ranjitha D/o. Late.ramasamy 1/39 Indiyampalayam Sathyamangalam Taluk Erode Dist.1 of 15 https://www.mhc.tn.gov.in/judis 7 Vinitha D/o. Late.ramasamy 1/39 Indiyampalayam Sathyamangalam Taluk Erode Dist. a1 Died A3 And 4 Already On Record As Lrs Of The Deceased A1.a2 Died Vs1 Thimmaiyan Alias Thimma Naicken s/o.late Thimma Naicken chakkili Thottam indiyampalayam Village sathyamangalam Taluk erode District2 Nataraju S/o.late Thimma Naicken Chakkili Thottam Indiyampalayam Village Sathyamangalam Taluk Erode DistrictPRAYER: Second Appeal is filed under Section 100 of C.P.C as against the judgement and decree dated 04.08.2010 made in A.S.No.21 of 2010 on the file of the Principal District Court, Erode, confirming the judgement and decree dated 09.10.2009 made in O.S.No.11 of 2007 on the file of the Principal Sub court, Gobichettipalayam. For Appellants : Mr. N.Manokaran For Respondents : Mr.M.S.Murali for M/sR&P Partners. 2 of 15 https://www.mhc.tn.gov.in/judis JUDGEMENT The plaintiffs are the appellants, who have filed the suit seeking the relief of partition of their 4/6th share in the suit property. The trial Court dismissed the suit and the appeal preferred by the plaintiffs was also dismissed by confirming the judgment of the trial Court. Now the plaintiffs have preferred this second appeal challenging the judgment of the Courts below.2.The short facts pleaded in the plaint by the plaintiff are as follows: The suit properties are situated at Indiyampalayam Village, Sathiyamangalam Taluk. The 1st plaintiff is the 2nd wife of one Thimmanaicker and plaintiffs 2 to 4 are the children of the 1st plaintiff born to Thimmanaicker. The defendants are the sons born through the first wife of Thimmanaicker namely Marammal. The suit properties were originally belonged to the deceased Thimmanaicker as his self acquired properties. As per the final decree passed in I.A.No.727/1993 in OS.NO.413/1987 on the file of District Munsif Court, Sathyamangalam, the suit properties were 3 of 15 https://www.mhc.tn.gov.in/judis allotted to the share of Thimmanaicker in the final decree proceedings and he was in enjoyment of the same till his life time and he died intestate. Subsequent to his death, the plaintiffs requested the defendants to partition the suit properties. But the defendants refused. Hence the plaintiffs have filed the suit for partition of their 4/6th share in the suit properties. 3. The averments made in the written statement filed by the first and second defendant are as follows:The plaintiffs 3 and 4 had already filed a suit in OS.No. 9/2002 by seeking right in the suit property and that has been dismissed. In the said suit, the 2nd plaintiff was the 2nd defendant. In the said suit the plaintiffs have sought right over the suit property without stating that the suit property belonged to Thimmanaicker. Having filed the suit by denying the entitlement of Thimmanaicker, now they have filed the suit contending that they are entitled to inherit the suit property as the legal heirs of Thimmanaicker. 4 of 15 https://www.mhc.tn.gov.in/judis

3.1. It is true that the suit properties belonged to Thimmanaicker as his self acquired properties. In view of the judgment passed in OS.No.9/2002 the plaintiffs 3 and 4 had taken a completely contradictory stand and hence they are estopped from claiming any right now in the suit property. 3.2. on 20.08.1985 Thimmanaicker had executed a Will by bequeathing the suit properties in favour of the 1st and 2nd defendants. The 1st item of the suit property is described under A schedule of the Will and was given to the 1st defendant and the suit items 2 to 7 are shown under B schedule of the Will and was given to the 2nd defendant. After the demise of Thimmanaicker, the defendants 1 and 2 had acquired right and they are in enjoyment of the same. 4.On the basis of the above pleadings the Trial Cout has framed the following issues:"1. thjpfs; jhthr; brhj;Jf;fspy; ghfg;gpuptpid nfhu cupika[ilath;fsh>2. thjpfs; nfhUtJ nghy; jhthr; brhj;Jf;fspy; 5 of 15 https://www.mhc.tn.gov.in/judis 4/6 ghfk; g';F ghpfhuk; bgw cupika[ilath;fsh>3. thjpfs; nfhUtJ nghy; epue;ju cWj;Jf;fl;lis gupfhuk; bgw cupika[ilath;fsh>4. 1/2 gpujpthjpfs; TWtJ nghy; 2 Kjy; 4 thjpfs; "v!;lhg;gy; ig fhd;lf;l;" ve;w njh#j;jpw;F cs;shFfpwJ vd;gJ cz;ikah>5 .1/2 gpupjpthjpfs; TWtJ nghy; jpk;k ehaf;fh; jhth brhj;Jf;fisg;bghWj;J 20.08.1985-y; capy; vGjp itj;jhh; vd;gJk; capy;d;go 1.2. gpupjpthjpfs; brhj;ij mile;J ghj;jpag;gLj;jp mDgtpj;J tUfpwhh;fs; vd;gJ cz;ikah>6.. 1/2 gpupjpthjpfs; TWtJ nghy; thjpfs; ePjpkd;wf; fl;lzk; gpupt[ 37(1)-d; fPH;fl;l ntz;Lk; vd;gJk;/ ,t;tHf;fpiz tprhhpf;f ,e;ePjpkd;wj;jpw;F mjpfhuk; ,y;iybad;gJk; cz;ikah>7. thjpfSf;F vg;ghpfhu'fs; fpilf;fj;jf;fJ>"5. During the course of the trial, on the side of the plaintiffs three witnesses have been examined as P.W.1 to P.W.3 and Exs.A1 to A6 were 6 of 15 https://www.mhc.tn.gov.in/judis marked. On the side of the defendants four witnesses have been examined as D.W.1 and D.W.4 and Exs.B1 to B9 were marked. 6. At the conclusion of the trial and on considering the evidence available on record, the trial Court has dismissed the suit and on the first appeal preferred by the plaintiffs, also dismissed by confirming the judgment of the trial Court. Now the plaintiffs have preferred this Second Appeal by alleging that it has grounds to raise various substantial questions of law.7.During the pendency of the appeal, 1st and 2nd appellants died and the legal heirs of the 2nd appellant have been impleaded as A5 to A7. 8. The learned counsel for the appellants submitted that the Courts below have not accepted the point of estoppal made by the defendants. So far as the Will alleged to have been executed by Thimmanaicker is concerned, it is not proved in accordance with Sec.68 and Sec.69 of the 7 of 15 https://www.mhc.tn.gov.in/judis Indian Evidence Act. They have to show some proof of the Will that the plaintiffs are the legal heirs of Thiammanaicker and they are entitled to equal share in the suit property. The 1st and 2nd defendants have filed an earlier suit in OS.No.413/1987 and obtained a preliminary decree for 2/5 share in the suit properties. Even that share was not given to the plaintiffs. The other suit in OS.No.9/2002 have been filed by plaintiffs 3 and 4 and that could not be held against the defendants 1 and 2 who are not parties to the said suit. As the defendants have admitted that the suit properties belonged to Thimmanaicker, the plaintiffs are also entitled to the share in the suit property as legal heirs of Thimmanaicker. But the Courts below have not appreciated the merits of the case in order to grant decree in favour of he plaintiffs.9. The learned counsel for the respondents submitted that the plaintiffs have already filed a suit in OS.No.413/1987 seeking the relief of partition and in which a preliminary decree for plaintiffs 2/5th share has been granted. In the final decree proceedings an Advocate Commissioner 8 of 15 https://www.mhc.tn.gov.in/judis was appointed and he had also divided their respective shares by metes and bounds and demarcated their shares as per the preliminary decree. Thimmanaicker did not die intestate and he has executed a Will in favour of the defendants 1 and 2 and allotted their shares to them. The said Will is dated 20.08.1985. As Thimmanaicker had executed a Will and thereby bequeathed the properties in favour of the defendants alone, the plaintiffs cannot claim any share in the share of Thiammanaicker. The Will has been duly proved before the Court by examining the witnesses who are acquainted with the signatures from the attesting witnesses, as the attesting witnesses are no more. One of the sons of the attesting witnesses was examined and he identified the attesting signature of his father in the Will. The Sub Registrar who has registered the Will is also no more. The trial Court has given a correct finding with regard to the Will and rightly dismissed the suit. DISCUSSION:10. For the sake of convenient discussion the parties are referred 9 of 15 https://www.mhc.tn.gov.in/judis according to their order in the plaint. The plaintiffs are said to be the 2nd wife and children of the deceased Thimmanaicker to whom the suit properties were originally belonged. Earlier the plaintiffs 1 and 2 have filed a suit in OS.NO.413/1987 on the file of the District Munsif Court, Sathiyamangalam and claimed partition in the suit properties by impleading Thimmanaicker and his sons born through his first wife as defendants. In the said suit the plaintiffs 1 and 2 were given with 2/5 shares and preliminary decree has been passed to that effect. Subsequently the final decree petition has also been passed in IA.No.720/1993 for dividing the share by metes and bounds and in accordance with the shares determined in the preliminary decree. Subsequent to the final decree, the shares would have been in enjoyment of their respective shares. Thimmainaicker and his sons have retained 3/5 shares in the suit properties and they have been in enjoyment of the same. 11. During the life time of Thiammanaicker, he had executed a Will dated 20.08.1985 and bequeathed the suit property in favour of the 10 of 15 https://www.mhc.tn.gov.in/judis defendants 1 and 2. Though the Will is prior to the suit filed in OS.No.413/1987, the entitlement of Thimmanaicker would be only in accordance with entitlement of his share and so allotted to him in the final decree. So the Will executed by Thimmanaicker in the year 1985 would not effect the 3/5 share of Thimmanaicker. The plaintiffs cannot re-agitate the very same matter which has already been agitated by them by preferring a suit in OS.NO.413/1987 and obtained a decree. 12. The learned counsel for the appellants submitted that the Will has not been proved in the manner known to law and that was not properly appreciated by the Courts below. As per Section 68 of the Evidence Act, the Will has to be proved by examining the attestors. When the attestors are not found or dead, then their signature should be proved as per section 69 of the Evidence Act. In the instant case, the sons of both attestors have been examined as DW.3 and 4 and they have identified the signatures of their respective father's attesting signatures in Ex.B6 Will. 11 of 15 https://www.mhc.tn.gov.in/judis

13. It is submitted that the witnesses did not state that the Will was signed by the executant Thimmanaicker. D.W.4 is the son of the second attesting witness and he has stated that his father died and he also identified the signature of his father in the attested Will. The Will is a registered Will. The defendants did not bring out any suspicious circumstances to cloud the genuineness of the Will. As the plaintiffs have settled their right in the suit property by way of obtaining a decree in the earlier suit filed in OS.No.413/1987, they cannot agitate the very same ground for getting another decree in this suit. Except the plaintiffs 3 and 4 all other parties to the proceedings are one and the same. 14. The plaintiffs 3 & 4 have already filed a suit in O.S.No.9/2002 and taken a completely different stand for claiming right in the suit property. The said suit was dismissed and in which the plaintiffs 1 and 2 were also defendants. After having filed two suits and obtained the adjudication of the Court with regard to the entitlement of the plaintiffs in the suit property, the plaintiffs cannot be allowed to file once again an 12 of 15 https://www.mhc.tn.gov.in/judis another suit, on the same ground but for a change, after the life time of Thimmanaicker. The plaintiffs have not highlighted any doubtful circumstances surrounding in the Will and in fact Thimmanaicker himself was not in good terms with the 1st plaintiff and her children and there were litigations between the children of the 2nd wife and Thimmanaicker.15. Under such circumstances it is quite possible that Thimmanaicker could have executed a Will bequeathing his entitlement in the suit property in favour of the defendants, who are the children born to him through his first wife. Even though the Will has been executed in the year 1985 which was prior to the filing of the suit 1997, the entitlement of right in respect of the subject property of the Will could be subject to the entitlement of the Thimmanaicker as settled in OS.NO.413/1987. The Courts below have rightly appreciated the issues involved in the suit and have arrived at a right conclusion. Hence, I find no ground to make out any question of law, much less a substantial question of law, in this second appeal in order to admit the same. Hence, the Second Appeal is dismissed. No costs. 13 of 15 https://www.mhc.tn.gov.in/judis

22.01.2025jrs14 of 15 https://www.mhc.tn.gov.in/judis R.N.MANJULA, JjrsIndex: Yes/NoSpeaking: Non-Speaking OrderInternet: Yes/NoNeutral:Yes/NoTo1. The Principal District Court, Erode.2.The Principal Sub Court, Gobichettipalayam.S.A.No.1647/201122.01.202515 of 15