JUDGMENT :

The plaintiff is the appellant in the Second Appeal. The plaintiff filed a suit for partition of the suit property on the ground that plaintiff father died intestate and that the legal heirs are entitled to a share in that.

2. According to the plaintiff, the first defendant is the elder of the family, taking advantage of the situation that the plaintiff and his father were not in cordial relationship, has forged and manipulated a Will from his late father. On the basis of forged Will, he filed an Original Petition in O.P.No.437 of 1997 for probate of Will, which was later converted into TOS and was dismissed. After the dismissal, the first defendant maneuvered to get rid of the sisters by paying some monetary amount and released their shares over the said property in his favour. Since the Will is forged and the plaintiff was not made a party to the said TOS the judgment of the Court is not binding upon him. He caused a legal notice to the defendant on 14.11.2009 demanding peaceful partition of the said property. The first defendant by his reply dated 30.11.2009 refused to accept the same on untenable pleas. Hence, he filed a suit for partition.

3. In the written statement, it is stated that the first defendant filed a Will for probate in O.P.No.437 of 1997 impleading the plaintiff and his sisters and his nieces (sister's daughters) as respondents. However, after receipt of notice, the plaintiff has not chosen to participate in the proceedings. The sisters daughters have filed caveat and contested the O.P and it was converted into T.O.S. No.33 of 2001. The TOS was dismissed on improper ground and hence he filed an appeal in O.S.A.No.391 of 2002. The said matter was compromised and a probate was granted in favour of the first defendant by the order of the I Bench on 16.09.2003. When the plaintiff sent a legal notice on 08.04.2004 containing the same set of allegations and it was replied by the first defendant as early as 15.04.2004. Having kept quite for five years he filed the above suit for partition suppressing the material facts.

4. After framing appropriate issues, the Trial Court decreed the suit. On appeal the decree and judgment passed by the Trial Court was set aside and the suit was dismissed. Aggrieved over the same, the plaintiff has preferred the above Second Appeal. The Second Appeal was admitted on the following substantial questions of law:-

“1. Whether the Appellate Court has erroneously held that there is a contradiction in the pleading which is against Section 41 of the Evidence Act?

2. Whether the Appellate Court was right in finding that the suit is barred by res judicata as per Section 11 of the C.P.C?

3. Whether the Appellate Court can give a finding regarding the validity of Ex.P5?”

5. Heard the submissions made by the learned counsel appearing on either side.

6. The judgment of the Hon'ble Supreme Court in Smt. Rukmani Devi and Ors vs. Narendra Lal Gupta reported in 1985 1 SCC 144, it is held thus:

“2. The facts which are not in dispute are that in the petition moved by the respondent for obtaining the probate of the Will he had cited the appellants and Smt. Kamla Devi as near relations. The citation of the application was issued to the appellants and it is conceded that the appellants did not choose to appear and contest the petition for grant of probate. If the appellants did not contest the proceedings for grant of probate, can they now be permitted to question the validity of the will by a collateral attack in different proceedings. It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is