Prior proof of Will in family litigation binds parties via res judicata; no re-proof needed in subsequent suits among same heirs.

JUDGMENT :

G.R.Swaminathan, J.

Both these appeals are directed against the judgment and decree dated 18.03.2019 made in O.S.No.38 of 2015 on the file of III Additional District Court, Thanjavur at Pattukkottai.

2.The suit was filed by one M.Balasubramanian claiming 1/3^rd share in the suit schedule property. The suit schedule property comprises two items; one residential house and one shop. They belonged to one Mahalingam Pillai. Mahalingam Pillai got married to Yogambal and through the wedlock, four sons (Kandasamy, Murugesan, Kumaresan and Balasubramanian) and three daughters (Manimegalai, Kamachi and Vasuki) were born. Mahalingam Pillai passed away on 26.11.1979. During his lifetime, he had executed Will dated 07.11.1975 bequeathing the suit schedule items in favour of his wife and four sons. It was a registered document (Document No.2 of 1975) on the file of Sub Registrar Office, Pattukottai.

3.One of the daughters, namely Vasuki, filed a partition suit in O.S.No.133 of 1980 on the file of Sub Court, Pattukkottai. All her siblings including the mother were shown as defendants in the suit. The contesting defendants pleaded that since Mahalingam Pillai had executed a registered Will in their favour, the plaintiff will not get any share in the suit property. Since the contesting defendants had propounded the Will, burden lay on them to prove the same. In fact, an issue was also framed to that effect in the suit. The attestors of the Will were examined and the trial Court vide judgment and decree dated 28.11.1981 held that the Will executed by Mahalingam Pillai was true and genuine and dismissed the suit. Aggrieved by the same, Vasuki filed A.S.No.114 of 1982 before District Court, Thanjavur. The appellate Court confirmed the decision of the trial Court and dismissed the appeal on 03.02.1984.

4.Yogambal died intestate on 25.05.1998. One of the sons, namely Kumaresan had pre-deceased her on 08.04.1980 itself. Kumaresan was a bachelor when he died and his share devolved in full on his mother / Yogambal. Thus, Yogambal had 2/5thshare in the suit property. Since Yogambal died intestate, her 2/5thshare in the suit property devolved in equal measure on the three sons and three daughters. Since the property had not been divided, one of the sons, namely M.Balasubramanian filed O.S.No.38 of 2015.

5.The plaintiff examined himself as P.W.1 and marked Exs.A1 to A12. The second defendant examined himself as D.W1, the tenth defendant / Manimegalai was examined as D.W.2 and the ninth defendant /Veeramani was examined as D.W.3. On the side of the defendants, Ex.B1 to B4 were marked. Manimegalai, one of the daughters, did not file any written statement. She only filed her proof affidavit. She claimed 1/5th share in the suit property.

6.The Court below came to the conclusion that the Will dated 07.11.1975 executed by Mahalingam Pillai was not proved. It proceeded to hold that both Mahalingam Pillai and Yogaambal had died intestate and therefore, the surviving sons and daughters will have equal share in the suit items. Thus, each of the sons and each of the daughters were entitled to 1/6th share in the suit items. Aggrieved by the same, this appeal has been filed.

7.Heard the learned counsel on either side. During the pendency of the suit, the two sons of Mahalingam Pillai, namely Murugesan and Kandasamy had passed away and their legal heirs were brought on record. During the pendency of this appeal, the plaintiff / Balasubramanian had released his share in favour of Veeramani, S/o.Murugesan and to Raja and Vignesh, descendants of Kandasamy. An affidavit has been filed and it has also been taken on record.

8.After hearing the learned counsel on either side and perusing the evidence on record, the point that arises for determination is “whether the Court below was justifi