Madras High Court
V.Easwaran vs Gandhimathiammal (Died) on 2 April, 2025
C.R.P.(PD)(MD) No. 2803 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 06.01.2025
Pronounced on 02.04.2025
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) No. 2803 of 2023
E.Malathi (died)
1.V.Easwaran
2.E.Mageshwaran
3.Mr.E.Sathees Kumar ... Revision petitioners / Plaintiffs
Vs.
Gandhimathiammal (died)
1. Latha
2. C.Raja
3. C.Venkateswwari
C.Pounmani(died)
4. C.Suganya
5. C.Sangeetha
6. C.Vijayaraj
7. M.Ramesh
8. K.Bothumani
9. A.Arulmozhi
10.J.Karthika
11.C.Malarvizhi
12.K.Kayalvizhi
13.S.Rathinam
14.V.S.Sandeep
15.K.Sevika
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C.R.P.(PD)(MD) No. 2803 of 2023
Otchammal(died)
C.Chinnathai (died)
16.K.Kavitha
17.M.Prabavathi
18.Minor M.Lathika
19.Minor M.Hariharan
20.P.Karthikeyan
21.A.Latha
22.S. Jeyakodi
23.S.Sivaramakrishnan
24.Chitra
25.Lakshmipriya
26.Lakshmipriya
27.D.Umadevi ... Respondents
(Cause title is accepted vide Court, order
dated 06.10.2023 made in CMP(MD).No.13001 of 2023
in CRP(MD).No.SR.56286 of 2023)
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the order in I.A.No.437 of 2017 in I.A.No.234 of
2015 in O.S.No.216 of 2013 on the file of the Sub-Court,
Uthamapalayam, Theni District.
For Petitioner : Mr. Veerakathiravan
Senior Counsel
for Mr.S. Ramsundar Vijayaraj
For Respondents
6 and 14 : Mr. P. Thiyagarajan
For respondents
16 to 19, 22 to 28 : Mr. M.Mahendran
*****
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C.R.P.(PD)(MD) No. 2803 of 2023
ORDER
This Civil Revision Petition has been filed against the fair and
decreetal order, dated 07.01.2021 made in I.A.No.01 of 2021 in O.S.No.
354 of 2021 on the file of the Sub-Court, Uthamapalayam, Theni District.
2. According to the writ petitioners, one Chinnathai filed a suit for
partition in O.S.No.71/1985 seeking 1/7th share in the suit properties
which was decreed on 24.04.1992 against which, one S.V.Swaminathan
preferred an appeal suit before the Principal District Court, Madurai, in
A.S.No.57/1993. In the meantime, the 4th and 5th respondent in the appeal
suit filed two interlocutory applications in I.A.Nos.341/1995 and
370/1995 for marking of two partition deeds dated 20.08.73, stating that
the entire property stood in the name of S.V.Chinnamayan and
S.V.Swaminathan respectively. In the above appeal suit, the 2nd
respondent Chinnathai filed a Cross Appeal and the same was numbered
as I.A.No.210 of 1995. While so, the mother of the petitioners and the
respondents namely Sivanammal died on 11.12.1993. The appeal suit and
the interlocutory applications in I.A.Nos.341/95 and 370/95 were also
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C.R.P.(PD)(MD) No. 2803 of 2023
dismissed. However, the cross appeal in I.A.No.210/95 was allowed and
1/6th share was allotted to all the family members.
3.Thereafter, the said S.V.Swaminathan preferred the second appeal
in S.A.No.1773/1996 before the Principal Seat and it was transferred to
Madurai Bench. In the meantime, the 6th respondent namely M.Saraswathy
died on 23.10.2002. Saraswathy executed a Will in favour of the 1st
petitioner's wife namely Malathy and therefore, she was impleaded as the
22nd respondent in the second appeal.
4.While so, the 4th respondent S.V.Swaminathan filed a civil
revision petition against the marking of the Will executed by Saraswathy
in C.R.P.No.2247/2011. Pending revision, the said Swaminathan died on
26.09.2012. Thereafter, the second appeal and the revision petition were
dismissed on 11.02.2013 as abated, thereby confirming the 1/6th share to
the parties. Thereafter, the said Malathy filed a petition in I.A.No.
572/2014 in O.S.No.216/2013 for passing of final decree. During
pendency of the final decree petition, the said Malathy died on 01.12.2015
and her legal heirs were impleaded and they filed an application in
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C.R.P.(PD)(MD) No. 2803 of 2023
I.A.No.152/2014 before Sub Court, Theni under Order 47 Rule 14(3) of
CPC to produce the Will dated 30.10.1995 executed by the 3rd defendant
Chinnasamy in favour of Malathy as additional document and the same
was allowed on terms by order dated 09.03.2016. The said Will was
marked as Ex.P.1 in I.A.No.572 of 2014. However, the learned Sub Judge,
Theni, allotted only 1/6th share to the 1st petitioner's wife Malathy. The
claim over Chinnasamy's 1/6th share was negatived by the learned Sub
Judge, Theni by his order dated 17.10.2016 made in I.A.No.572/2014 in
O.S.No.216/2013. In the meantime, the said final decree proceedings was
transferred to Sub Court, Uthamapalayam and renumbered as I.A.No.
234/2017. The petitioners filed another petition in I.A.No.437/2017 in
I.A.No.234/2017 to recognize the petitioners as the legatees of late
Chinnasamy on the basis of his Will dated 30.010.1995 in favour of
Malathy. The said petition was dismissed by the learned Sub Judge,
Uthamapalayam, against which the present revision is preferred.
5.The learned counsel appearing for the revision petitioners submits
that the trial Court failed to consider Ex.P.1 'Will' executed by
Chinnasamy in favour of Malathy and the evidence on record in support
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C.R.P.(PD)(MD) No. 2803 of 2023
of the Will and has passed the impugned order which requires
consideration by this Court.
6.On the other hand, the learned counsel for the respondents Nos.6
and 14 submits that the petitioners' claim over the 1/6th share of
Chinnasamy was negatived by the learned Sub Judge, Theni, by his order
dated 17.10.2016 made in I.A.No.572/2014 in O.S.No.216/2013 against
which no appeal or revision has been preferred. Therefore, the order dated
17.10.2016 became final. Hence, the learned Sub Judge, Uthamapalayam
proceeded with the final decree petition and allowed the said petition on
07.01.2023 allotting 1/6th share alone to the petitioners. Therefore, the
subsequent petition to recognize the petitioners as legatee of the Will
dated 30.10.1995 of Chinnasamy is legally not maintainable and the same
is barred by the principles of Res-Judicata. The learned counsel further
submits that the principles of Res-Judicata not only applies to the
subsequent suit but also applies to the subsequent stages in the same
proceedings/suit and in support of the said contention he has relied upon
the following judgment of the Hon'ble Apex Court reported in AIR 2022
SC 5317.
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C.R.P.(PD)(MD) No. 2803 of 2023
7.His further contention is that, the petitioners claiming 1/6th share
of the 3rd defendant Chinnasamy based on the Will dated 30.10.1995
failed to prove the Will as required under Section 68 of the Indian
Evidence Act and as per Section 63 of the Indian Succession Act. Though,
the attestors were examined as in P.W.3 & P.W.4 in the earlier
proceedings in I.A.No.572/2014 in O.S.No.216/2013, their depositions
cannot be marked in evidence in the final decree proceedings in view of
the specific bar under Section 33 of the Indian Evidence Act which
contemplates that evidence of the living persons in earlier proceedings
cannot be marked in subsequent proceedings. Therefore, the petitioners
miserably failed to prove the Will in accordance with law. Therefore, the
present revision petition is devoid of merits and liable to be dismissed.
8. Heard on both sides and records perused.
9.It is not in dispute that the 1st petitioner's wife Malathy filed an
application in I.A.No.572/2014 in O.S.No.216 of 2013 on the file of Sub
Court, Theni, for passing of final decree claiming 1/6th share of late
Chinnasamy on the basis of the Will (Ex.P.1) dated 30.10.1995 said to
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C.R.P.(PD)(MD) No. 2803 of 2023
have been executed by S.V.Chinnasamy in favour of Malathy.
10.The learned Sub Judge, Theni, by his order dated 17.10.2016
negatived the petitioners' claim over Chinnasamy's 1/6th share. Since no
appeal or revision was preferred against the said order, the same has
become final. As rightly pointed out by the learned counsel for the
respondents, the principles of Res-Judicata not only applies to the
subsequent suit but also applies to the subsequent stages in the same
proceedings/suit as laid down by the Hon'ble Apex Cout in AIR 2022
SC5317. Moreover, a statement of a living person, except under the
circumstances mentioned in Section 33 of the Indian Evidence Act, cannot
be marked as a document in the subsequent suit or [Ref: 2009 6 MLJ
841]. Therefore, no illegality or perversity found in the order of the
learned Sub Judge, Uthamapalayam passed in I.A.No.437/2017 in I.A.No.
234/2015 in O.S.No.216/2013 dated 09.08.2019 which warrants
interference by this Court.
11.In the result, the Civil Revision Petition stands dismissed. No
costs.
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C.R.P.(PD)(MD) No. 2803 of 2023
02.04.2025
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
trp/vsn
Copy To:
The Sub-Court, Uthamapalayam, Theni District.
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C.R.P.(PD)(MD) No. 2803 of 2023
K.GOVINDARAJAN THILAKAVADI, J.
trp/vsn
Pre-Delivery Order made in
02.04.2025
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