The central legal point established in the judgment is the interpretation and application of the doctrine of res judicata under Section 11 of the Code of Civil Procedure, the validity of marriage under the Christian Marriage Act, the rights of illegitimate children to claim the estate, and the validity of a settlement deed under the Evidence Act and Transfer of Property Act.

Second Appeal has been filed against the judgment and decree dated 3.11.2006 passed in A.S.No.13 of 2006 on the file of the learned District Judge of Nilgiris at Uthagamandalam reversing the judgment and decree dated 30.09.2005 passed in O.S.No.113 of 2000 on the file of the learned Subordinate Judge of Nilgiris at Uthagamandalam.

2. For the sake of convenience, the parties are described as per their rank and status shown in the original suit.

3. The first defendant in the suit is the appellant herein. The suit in O.S.No.113 of 2000 filed for partition seeking 2/3rd share in the suit property for the plaintiffs.

4. According to the plaintiffs, the properties belonged to one Aruldass Daniel, who died intestate on 02.09.1978 leaving behind his wife Mary Jeevi and two sons viz., William Daniel and George Daniel. William Daniel died leaving behind plaintiffs as his legal heirs and they are entitled for 1/3rd share of William Daniel. While Mary Jeevi the wife of Aruldass Daniel is entitled for 1/3rd share and the defendants, who are the legal heirs of George Daniel are entitled for the remaining 1/3rd share in the suit property. Mary Jeevi, W/o Aruldass Daniel during her lifetime, transferred her undivided 1/3rd share of property through a settlement deed to her son William Daniel on 30.10.1979. Thus, the plaintiffs are entitled for 2/3rd share. Since George Daniel failed to render proper rent account, the plaintiffs caused notice for partition and subsequently, they filed the suit in O.S.No.755 of 1995 for partition before the Sub Court of Nilgiris at Ootacamund. The said suit was dismissed for default. Later, the applications for restoration and to bring the legal representatives of the deceased first defendant George Daniel on record was filed but dismissed as abated. Therefore, the present suit in O.S.No.113 of 2000 by the surviving successors of Willam Daniel has been filed against the successors of George Daniel.

5. The defendants contested the said suit on the ground that William Daniel never married the first plaintiff and the other plaintiffs are not the legal heirs of Willam Daniel. The marriage between the first plaintiff and William Daniel was within the prohibited relationship under the Christian Marriage Act, 1872 and therefore, the plaintiffs are not entitled for any share. Further, it was contended that the earlier suit filed by William Daniel was dismissed for default, which acts as res judicata for the subsequent suit for partition. The third limb of written statement was that the entire property continuously being in possession of the defendants, so, their title is perfected by adverse possession.

6. The trial Court framed nine issues, examined P.W.1 and D.W.1 to D.W.3 as witnesses and marked Exs.A1 to A13 and Exs.B1 to B10 as documents. After considering the evidences let in by the respective parties, the trial Court dismissed the suit. On appeal by the plaintiffs, the first appellate Court re-appreciated the evidences and allowed the suit as prayed for and passed preliminary decree for partition declaring the plaintiffs are entitled to 2/3 shares in the suit property.

7. Aggrieved by the reversing judgment of the first appellate Court, the first defendant/appellant has preferred the second appeal. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:-

“(1) Is not the present suit for partition barred under Section 11 and Order 9, Rule 9 of the Code of Civil Procedure establishing when the previously instituted suit O.S. No. 755 of 1995 cannot be dismissed for non prosecution?

(2) Whether the judgment and decree of the lower appellate Court vitiated by its failure to consider the impact of Christian Marriage Act to the alleged marriage by the first respondent with late H.M. William Daniel which marriage is within prohibited relationship?

(3) Whether the respondents 2 to 4 would claim right to the estate of late H.M. William Daniel especially when they