The main legal point established in the judgment is the interpretation of Res-judicata, Order 2 Rule 2 CPC, and the entitlement of heirs under the Hindu Succession Act in a partition suit.

JUDGMENT :

R.KALAIMATHI, J.

PRAYER : Appeal is filed under Order 96 of Civil Procedure Code praying to allow this first appeal and set aside the Judgment and decree dated 07.01.2019 passed in O.S.No.4 of 2013 on the file of the III Additional District and Sessions Judge, Cuddalore at Vridhachalam.

Being not satisfied by the Judgment and decree passed in O.S.No.4 of 2013 by the III Additional District and Sessions Judge, Cuddalore at Vridhachalam dated 07.01.2019, one of the sons of deceased V.S.Kothandapani along with his wife and children have preferred this appeal against the plaintiffs who are the sisters, brother, Banks and other Financial Institutions.

2. The three daughters of deceased V.S.Kothangapani namely N.Brindha, P.Alamelu and R.Parimala filed a suit for preliminary decree for partition of plaint schedule amounts to grant 1/6th share each to the plaintiffs and for injunction. The trial Court upon hearing the arguments of both sides and on appreciating the oral and documentary evidence, has decreed the suit and preliminary decree was passed in favour of the plaintiffs, D1 and D3 by granting 1/6th share each in the suit properties and the defendants No.7 to 14 were restrained by means of permanent injunction from paying the plaintiffs, D1 and D3’s share in the suit properties to other sharer.

3. The learned counsel for appellants reiterating the grounds given in the memorandum of appeal would strenuously argue that this is the 4th suit and it is clearly barred by Order 2 Rule 2 C.P.C., Principles of Res-judicata and the Specific Relief Act. All the deposits are made to be received by either or survivor and hence, the suit for partition would not lie at all and prayed to set aside the Judgment and decree passed by the trial Court.

4. Per contra, the learned counsel appearing for R1, R3 and R5/plaintiffs 1, 3 and 3rd defendant would vehemently argue that their father deceased V.S.Kothandapani, has not made any disposition. The plaintiffs and the defendants 1 to 3 are children of V.S.Kothandapani, are entitled to inherit 1/6th share in the plaint schedule property. He would further contend that the deceased V.S.Kothandapani had deposited the amounts under “Either or Survivor” and the defendants 1, 2 and 4 to 6 are the nominees/survivors in the deposits. The survivors/nominees are only in the position of trustees to the amount so far as the other heirs of the depositor.

5. Connected to this matter, he would further state that the 1st plaintiff filed O.S.No.261 of 2011 against the defendants No.12 to 14 and it is pending before the Sub Court, Vridhachalam, for an injunction restraining them from paying the amounts to the nominees. Yet another suit was filed by the 1st plaintiff in O.S.No.388 of 2011 against the defendants 8 to 11 and it is pending before the District Munsif Court, Vridhachalam, for an order of injunction to restrain the defendants from paying the deposit amount with accrued interest to the nominees. Hence, the plaintiffs are entitled for 1/6th share each in the deposits.

6. Whereas, the learned Counsel for the 2nd respondent/2nd plaintiff would reiterate the above said details of arguments and to buttress his arguments, he relied on the Judgment of this Court in Parvathi Vs.Valliyammal and Another (S.A.No.106 of 1994) reported in CDJ 2005 MHC 450, wherein, it is held that the intended advancement in favour of either depositor cannot be presumed and should be proved by way of act of gift. It has been further held that in the absence of a gift pleaded and proved, the survivor of the fixed deposit receipt will not be entitled to release the amount exclusively for herself.

7. The trial Court framed the following issues;

1. Whether the plaintiffs are entitled to 1/6 share each in the suit items?

2. Whether the release deed dated 24/08/2011 is true, valid and enforceable?

3. Is it true that there was already a partition effected on 05.03.1960 as alleged by 2nd defendant?

4. Whether the suit is barred by limitation?

5. Wheth