The court confirmed that the final decree in partition suits must align with amended preliminary decrees, and decisions from probate cases are binding as res judicata, precluding re-litigation.

JUDGMENT :

A.D. Maria Clete, J.

This appeal has been preferred by the second defendant in O.S. No.21 of 2007, who was also the second respondent in I.A. No. 27 of 2013, challenging the final decree dated 21.04.2017 passed in I.A. No. 27 of 2013 on the file of the III Additional District Judge, Dharapuram, Tiruppur District, by which the final decree application came to be allowed.

2. For the sake of convenience, the parties are referred to as they were arrayed before the Trial Court.

3. The brief facts necessary for the disposal of this appeal are as follows: the first and fifth respondents herein, as plaintiffs, instituted O.S. No. 21 of 2007 against the deceased V.L.V. Sornam, (arrayed as the first defendant), the present appellant (as the second defendant), the second respondent herein (as the third defendant), the deceased Udaya Kumar (as the fourth defendant), and respondents 3 and 4 herein (as defendants 5 and 6).

4. The second defendant (appellant ) , the plaintiffs (respondents 1 and 5), and the deceased Sornam are sisters born to V.L. Venkatasubramaniam Chettiar and V. Saraswathi. The other defendants are the children of V.L.Vaidhyalingam Chettiar , the brother of V.L. Venkatasubramaniam.

5. The plaintiffs claimed:

(i) 1/4^th share each in Item Nos. 1 and 3 of the suit properties,

(ii) 1/6^th share each in Item No. 2 property,

(iii) 1/8^th share each in Item No. 4 property.

By judgment dated 18.12.2007, the Trial Court decreed the suit and passed a preliminary decree accordingly.

6. Pursuant to the preliminary decree, the plaintiffs filed I.A. No. 27 of 2013 for passing of the final decree. During the pendency of the said application, the first defendant died on 27.09.2013. Thereafter, the plaintiffs filed a memo and I.A. No. 61 of 2014 seeking amendment of the shares in the preliminary decree. In the said application, it was stated that, since the first defendant had died as a spinster, her share in the suit properties devolved equally upon the plaintiffs and the second defendant On that basis, the plaintiffs claimed enhanced shares as follows:

i. one-third share each in Item Nos. 1 and 3 properties,

ii. 4/18th share each in Item No. 2 property,

iii. 4/24th share each in Item No. 4 property.

7. I.A. No. 61 of 2014, filed for amendment, was allowed on 11.03.2015. Pursuant thereto, the preliminary decree was amended by enhancing the share of the plaintiffs. In the final decree proceedings, an Advocate Commissioner was appointed, who submitted a report on 21.03.2017. No objections were filed thereto. Thereafter, the final decree came to be passed on 21.04.2017.

8. Execution and Subsequent Litigation: Subsequent to the passing of the final decree, the second plaintiff filed Execution Petition No. 44 of 2017 seeking recovery of possession. It was at that stage the second defendant , for the first time, set up a plea based on a Will dated 25.08.2006. The application filed under Section 47 CPC questioning the executability of the final decree was rejected at the SR stage, and the Civil Revision Petition in C.R.P. No. 1328 of 2019 was also dismissed.

9. The second defendant filed a belated appeal against the preliminary decree along with C.M.P. No. 24425 of 2019 seeking condon