The main legal point established in the judgment is that once a preliminary decree has become final, the parties are estopped from re-agitating the same issue in the final decree proceedings. The principle of res judicata and issue estoppel were invoked to support this legal point.

This Second Appeal is directed against the final decree proceedings passed I.A.No.43 of 2007 in O.S.No.15 of 1992 on the file of the Sub-Court, Ambasamudram.

2. The relevant facts which are necessary for deciding the above Second Appeal are as follows:-

One Aiyapillai and Paramasivam were brothers. The said Paramasivam had two wives and the plaintiff and the fourth defendant were born through his first wife Piramuammal. The defendants 1, 2 and 3 were born through the second wife Chellammal. The said Paramasivam died in the year 1979. The suit was filed by the plaintiff in the year 1983 for partition of her 1/5th share. According to the plaintiff, the suit schedule properties were acquired by her father Paramasivam on his own. He was doing business in Srilanka, earned money and came to India and purchased the suit schedule properties in his name and also in the names of the defendants 1 to 3, who are the sons.

3. It is the further case of the plaintiff that though the properties were purchased in the names of the defendants, they have been thrown in a common hotch pot and were enjoyed in common. So, the sale deeds were said to have been executed in the names of the defendants 1 to 3 Benami. Therefore, the plaintiff claimed partition of her 1/5th share.

a. The suit was resisted by the defendants on the ground that the plaintiff was not entitled to any share in the properties and that Paramasivam executed a Will dated 15/9/1978 in favour of the defendants. Therefore, the plaintiff is not entitled to any share in the suit property.

4. Based on the above pleadings and the evidence and depositions, the Sub-Court, Tenkasi, on 21st August, 1989, decreed 1/5th share in favour of the plaintiff. While deciding the suit, the following issues were framed.

“1. Whether the properties in the name of the defendants 1 to 3 are purchased benami and the said issue was tried along with other issues

2. Whether the suit properties were self-acquired properties of the deceased Paramasivam?”

5. In paragraph 7 of the trial Court judgment, the said issues were answered as follows:-

“Now, the question in the suit is whether the suit properties are the self acquired properties of Paramasivam Pandither. He has got the properties through his brother under Ex.B.7. The suit was very much contested on the strength of a will executed by Paramsivam Pandithar under Ex.B.4 and the same will be referred in some other issues. The defendant have not stated about the settlement deed Ex.B.8 in the written statement and they have not contested the case that the properties covered under Ex.B.8 are to be deleted from the suit schedule properties. The settlement deed Ex.B.8 was executed long back. So the question of the validity of the settlement deed under Ex.B.8 and the acceptance of the same is to be decided in a separate suit. It is seen from the evidence that the suit properties are the self acquired properties of Paramasivam Pillai. The defendants have not contested about the character of the suit. Hence I answer issue No.1 that the suit properties were the self acquired properties of Paramasivam Pandithar. I answer issue No.2 that there are no properties purchased in the name of the defendants 1 to 3 benami by Paramasivam Pillai.”

6. Aggrieved by the said judgment, the defendants preferred an appeal before this Court in A.S.No.1092 of 1989. This Court also had held that the plea of benami transaction as claimed by the defendants were not established and found that all the properties were acquired by Paramasivam Pillai and the Will put forth by the defendants under Ex.B.4 was also held to be not proved in accordance with law.

7. So far the claim of benami is concerned, this Court had held that the defendants have not specifically stated which are all the properties purchased by their father benami in their names. Admittedly, after the death of Paramasivam, the first defendant was managing the properties and was sharing profits with the plaintiff and the four