The central legal point established in the judgment is the importance of challenging a registered Will and laying a foundation for secondary evidence.

Heard Mr. G.S. Bhattacharji, learned counsel, appearing for the appellants as well as Mr. H. Laskar, learned counsel appearing for the respondent.

2. This is an appeal under Section 100 of the CPC, questioning the legality of the concurrent finding as returned by the judgment dated 23.12.2009 delivered in Title Appeal No.09/2009 by the District Judge, South Tripura, Udaipur, affirming the judgment dated 31.03.2009 delivered in T.S.(P) No.11/2008 by the Civil Judge, Sr. Division, South Tripura, Udaipur.

3. The substantial question that has been formulated at the time of admitting this appeal by the order dated 02.07.2010, reads as under :

“Whether the learned court below committed error by failing to consider the Exbt.4 i.e. the death certificate of Laxmi Rani Das, mother of the plaintiff and thereby deciding the suit on the basis of the Exbt.C i.e. the WILL executed by late Bashanta Kumar Sukla Das.”

4. Briefly stated, the essential facts are as under :

The plaintiffappellants filed the title suit for partition of the joint property described in the schedule appended to the plaint. The plaintiffs are the legal heirs of Laxmi Rani Das, the daughter of Bashanta Kumar Sukla Das, who died on 17.05.1991 and Subhasini Das, widow of Bashanta Kumar Das, died on 23.07.2005. After death of Bashanta Kumar Das and his widow, namely Subhasini Das, the plaintiffs (the appellants herein), filed a suit in the court of the Civil Judge, Sr. Division, South Tripura, Udaipur, being Title Suit (P) No.13/2006 for partition of the suit. It has been admitted in the plaint that the said suit was dismissed for default on 11.04.2007, but the suit was also not restored. Again the plaintiffappellants filed a fresh suit, being Title Suit (P) No.11/2008 in the court of the Civil Judge, Sr. Division, South Tripura, Udaipur, contending that the principle of resjudicatawould not operate against the subsequent suit as no finding has been returned on the issues so settled in the previous suit.

5. On allegation that the defendant has not been taking any action for partition of the suit land, the suit for partition has been filed by the plaintiffappellants. The plaintiffs claimed 50% of share of the entire suit land. The defendant, by filing the written statement, has questioned the maintainability of the suit as well as for serious suppression of the material facts and nonjoinder of the necessary parties. According to the defendant, the plaintiffs do not have right, title and interest over the suit land and he has contended in para 9 of the written statement as under :

“9. That as admitted by the plaintiffs in their plaint in paragraph7 that the plaintiffs filed title suit (partition) No.13/2006 which was dismissed for default on 11/4/2007 at the stage of evidence. The answering Defendant has filed Written statement on 06.03.2007 in the previous suit bearing No.T.S.(partition) No.13/2006 and the answering defendant stated in her written statement that Basanta Kumar Sukla Das made a registered Will on 6.5.1987 bequeathing the entire suit property to the three sons of the answering defendant namely (i) Sri Sajal Kumar Das, (ii) Sri Raj Kumar Das, (iii) Sri Ashim Das absolutely who became the joint owners of the suit property after the death of the original owner Basanta Kumar Sukla Das, but on 25/6/1993 A.D. the one son of the answering defendantRaj Kumar Das died and the said Raj Kumar Das was unmarried and after the death of Raj Kumar Das the Defendant and her sons namely Sri Kajal Kumar Das and Sri Ashim Das have been in possession jointly of the suit land. So, the plaintiffs were aware of the above mentioned facts earlier.

6. The defendant has categorically disputed the pleading that Laxmi Rani Das died on 24.12.1991. He has asserted that Bashanta Kumar Das died on 17.05.1991, whereas his second daughter Laxmi Rani Das died in the year 1973,