JUDGMENT: 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. Now, the background of the case is drawn: R.G. was allotted the properties, subject matter of O.S. No.62 of 1982 under a partition deed dated 2.6.1958 Ex.A-2. The properties are therefore ancestral properties. R.G. was managing the properties as Karta of the joint family consisting of himself and the appellant. He died on 29.1.1977 leaving behind the appellant, the respondents 1 and 2 and the wife Meenakshi Ammal. The respondents 1 and 2 claimed that R.G. executed a Will (Ex.A-1) on 12.7.1973 bequeathing to them a life estate in the Pollachi property and the absolute estate to their heirs and to the appellant, a life estate in the other properties and the absolute estate to the appellant’s heirs. The appellant filed O.S. No.437 of 1980 which was also for partition. In that suit, relief was asked for only in respect of the Pollachi property though the schedule listed the entire estate of R.G. The respondents 1 and 2 resisted the suit. Issues were framed. Thereafter, that suit was dismissed upon the appellant’s counsel reporting “no instructions”. On 8.12.1981, the appellant’s wife and children appear to have filed O.S. No.20 of 1982 for maintenance and for partition. This was also withdrawn without obtaining leave to file a fresh suit on the same cause of action. Thereafter, these two suits were filed. The right of R.G’s wife to a share in her husband’s property is not asserted seriously. The Will propounded by the respondents 1 and 2 also ignores R.G’s wife.

4. Several issues arise for consideration: (1) When the earlier suit was dismissed for default, is not the present suit barred under O.9, Rule 9, C.P.C.? (2) Whether the appellant can file the fresh suit or whether O.2, Rule 2, C.P.C. will be a bar in respect of the reliefs which he could have claimed in the other suits, but did not? (3) Whether the dismissal of the earlier suit will operate as res judicata? (4) Whether the testator can validly bequeath properties which he is not entitled to and can such a Will be acted upon?

(5) Whether the Will can be held to be proved in accordance with the law without examining the attesting witness?

5. Mr.S.P.Subramanian, learned counsel for the appellant would submit that the testator cannot bequeath properties in which he has no right. According to the learned counsel, Wills were an unknown concept under ancient Hindu Law. After the enactment of Hindu Succession Act in 1956, any disposition of property under a Will by a Hindu can only be subject to Sec.30 of the Act. He would submit that this suit was not barred by res judicata, because the earlier suit was

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