Findings in interlocutory applications do not operate as res judicata, and rejection of plaint should be based on exceptional circumstances.

R. BANUMATHI, J –

1. Being aggrieved by the order dated 02.02.2011 dismissing the application filed under Order 7, Rule 11 C.P.C., 3rd Defendant/Party -in-person has preferred this appeal.

2. The dispute is in respect of the division of the properties between the legal heirs of the deceased Ramachandra Naidu. Suit properties and other properties were originally belonged to one Bashyam Naidu and parties are related as under:-

BashyamNaidu (died on 19.12.1935)

= Dhanalakshmi KamalanabhaNaidu Ramachandra Naidu (D1)

| (died in 1991)

| = Sushila Bai (D2)

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ChabbiRaj Devaraj Krishnakumari Hemalatha Mohan Murali (D4) (Plaintiff) (D3)

3. Bashyam Naidu had executed a Will [30.01.1935] bequeathing the properties to his two sons Kamalanabha Naidu and Ramachandra Naidu to be enjoyed by them for their life and thereafter to his grandsons absolutely and the said Will has been probated. He also gave life interest to his wife Dhanalakshmi. Kamalanabha Naidu and Ramachandra Naidu did not have power to alienate the properties After the death of Bashyam Naidu, Kamalanabha Naidu and Ramchandra Naidu partitioned the properties by dividing the properties into two equal shares by partition deed dated 12.10.1950. Deed of partition was also acted upon. In 1962, Ramachandra Naidu performed the marriage of Plaintiff- Hemalatha Mohan.

4. Plaintiff filed the suit C.S.No.952 of 1990 for partition against her father, mother and brother and sister [Defendants 1 to 4]. Tenants were also impleaded as Defendants 5 to 7 in the suit. Plaintiff has alleged that her father-1st Defendant along with Defendants 2 to 4 have been dealing with the suit properties to the detriment of the Plaintiff and without her consent and knowledge, Ramachandra Naidu, who has no right of alienation, has alienated "B" schedule property to the 6th Defendant-Subramanian. Plaintiff has further alleged that the grandchildren of testator are absolutely entitled to the immovable properties and the Will [30.01.1935] specifically mentions that the grandsons together are to take half share in the immovable properties and thereby the testator had intended that the remaining half share should be taken absolutely by the granddaughters viz., the Plaintiff and 4th Defendant-Krishna kumari. Stating that she is entitled to 1/4th share, Plaintiff has filed the suit for partition of "A" "B" "C" and "D" schedule properties into four equal shares and to allot one such share to her.

5. During his life time, 1st Defendant-Ramachandra Naidu has filed the written statement contending that testator Bashyam Naidu has expressed in clear terms that his two sons were entitled to appropriate the properties in two equal shares with no power of alienation and Plaintiff being the second daughter of 1st Defendant has no right to claim any share in the suit properties. 3rd Defendant-Murali is the son of 1st Defendant and since 1st Defendant has one son [3rd Defendant], as per the wishes of the testator, property will go to the male heir. Plaintiff has no locus to lay the claim to any share in the suit properties of late Bashyam Naidu. Defendants 2 to 4 adopted the written statement filed by the 1st Defendant.

6. During the pendency of suit, 1st Defendant-Ramachandra Naidu died in 1991. Alleging that the partition suit filed by the Plaintiff is abuse of process of law and devoid of merits, 3rd Defendant has filed A.No.3929 of 2010 under Order 7, Rule 11 C.P.C. praying for rejection of the plaint on the ground that the number of applications filed by the Plaintiff were dismissed and those findings would operate as res judicata and that plaint does not disclose any cause of action for the suit. It was further averred that the probated Will of the grandfather Bashyam Naidu dated 30.01.1935 does not disclose the name of the Plaintiff as beneficiary and that the said aspect has already been dealt with in O.A.No.269 of 1993 and Plaintiff has not challenge