The central legal point established in the judgment is the entitlement of the plaintiffs and defendants to 1/6th share in the suit property as detailed in the plaint, despite the probate and subsequent events.

This appeal has been preferred against the judgment dated 21.12.2011 passed by Civil Judge (Senior Division)-I, Giridih in Partition Suit no.56 of 2003 whereby the plaintiffs suit was dismissed.

2. Plaintiffs case in brief is that late Asha Rani Mitra (mother of plaintiffs) had acquired schedule ‘A’ land along with her ‘dewrani’ namely, Kiran Bala Mitra. That Asha Rani Mitra had instituted Partition Suit no.24 of 1978 against Rabindra Nath Mitra and Sadhana Mitra, both son and daughter of late Kiran Bala Mitra. The said suit was decreed on 13.12.1978 and a preliminary decree of partition to the extent of half share in schedule ‘A’ property was passed in favour of Asha Rani Mitra, whereafter, the final decree was prepared and Asha Rani Mitra was put in Khas possession over her share of land as described in schedule ‘B’ of the plaint. It is stated that Asha Rani Mitra died in the year 1998, leaving behind one son i.e., defendant no.1 and four married daughters and one unmarried daughter i.e., plaintiff nos. 1 to 5, as class-I heirs, who had jointly inherited the property on the death of their mother. That the plaintiffs claimed that they are entitled to 1/6th share each of their mother’s property.

The defendants contested the suit and filed their written statement. It is pleaded that Asha Rani Mitra, the absolute owner of schedule ‘B’ property had bequeathed the entire property on 03.06.1995 to defendant no.2 and after the death of Asha Rani Mitra on 26.05.1998, the entire right, title and interest of Asha Rani Mitra has vested upon the defendant no.2. It was pleaded that plaintiff no.5 had earlier instituted a Partition Suit no. 16 of 1986, which was dismissed on 20.04.1991.

On the basis of pleading of the parties, the trial court has framed as many as seven issues which are as under:-

(i) Is the suit maintainable in its present form?

(ii) Is there any cause of action for the suit?

(iii) Is there defect of non-joinder of Smt. Bandana Mitra in whose favour the late Asha Rani Mitra has bequeathed the suit property within the full knowledge of some of the plaintiffs?

(iv) Is the suit barred by limitation, acquiescence, estoppel, waiver and res-judicata?

(v) Is there exists any unity of title and community of interest between the plaintiffs and the defendants?

(vi) Whether the plaintiffs have any right, title or interest in the suit property?

(vii) To what relief or reliefs the plaintiffs are entitled?

3. The plaintiffs examined five witnesses and also produced documentary evidence, i.e. Ext. (1)-the original power of attorney dated 22.04.2002. The defendants also filed documentary evidence and examined four witnesses. The certified copy of written statement dated 11.06.2004 filed in Probate Case no.1 of 2004 by plaintiff nos. 1, 2 and 4 are marked as Exts. A to E, Ext. B is the certified copy of judgment dated 20.04.1991 passed in Partition Suit no.16 of 1986, Ext. B/1 is the certified copy of judgment in Probate Case no. 1 of 2004 passed by Additional District Judge-I, Giridih, Ext. C is the certified copy of decree of Partition Suit no. 16 of 1986, Ext. C/1 is the certified copy of decree in Probate Case no. 1 of 2004, Ext. D is the original Will dated 03.06.1995, Ext. D/1 is carbon copy of Will dated 03.06.1995, Ext. E is the signature of Tripti Deb and Sipra Ghosh in entry of Notary register dated 20.01.2007.

4. On the basis of oral and documentary evidence, the trial court has held that the suit was hit by principles of res judicata as the matter was substantially decided in Partition Suit no. 16 of 1986. It also held that the ‘Will’ has been probated, hence, the plaintiffs cannot claim partition since the suit property belongs to defendant no.2 in terms of the ‘Will’.

In course of the hearing the appellants have stated that interlocutory application bearing I.A. no. 3336 of 2014 has been filed under Order XLI Rule 27 of the Code of Civil Procedure, wherein the copy of judgment of the High Court in Misc. Appeal no. 230 of 2010 sett