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Judgment
Bellie, J.—The first defendant is the appellant. The plaintiff filed the suit for declaration that he is entitled to the properties described in the
plaint A, B, C, D and E schedules and for possession thereof. It is not in dispute that these properties originally belonged to one Ayodhya
Ramanuja Doss Ammal who seemed to have been doing charities and Kainkaryams in Srimushnam out of the income from her properties.
According to the plaintiff he is a relation of the said Ayodhya Ramanuja Doss Ammal as her brother''s son and she executed a settlement deed Ex.
A1 on 6.6.1976 giving ''A'' schedule properties to the plaintiff and another settlement deed Ex. A2 on 6.7.1976 giving ''B'' schedule properties to
him and she also executed Ex. A3 will on the same day (6.7.1976) under which she gave him the ''C schedule properties. The said Ayodhya
Ramanuja Doss Ammal died on 1.6.1977. During the plaintiff''s absence at Srimushnam when he was at Madras the first defendant was asked to
do poojas at the Srimushnam mutt. He secreted the ''D'' schedule silver vessels and he also trespassed upon the plaint A, B and C schedule
properties. Ayodhya Ramanuja Doss Ammal had invested ''E'' schedule amounts in the second defendant bank. In respect of these investment
amounts the plaintiff filed O.P. No. 45 of 1978 for Succession Certificate but that was objected to by the defendant and the same was dismissed.
There was no appeal filed against that order. The first defendant has no manner of right whatsoever for all the schedule properties. Therefore the
suit.
The first defendant contended that the plaintiff is not the relation of the said Ayodya Ramanuja Doss Ammal and he has obtained two settlement
deeds and also the will in his favour by deceit, undue influence and coercion and therefore those settlement deeds and the Will are not valid in
respect of A, B and C schedule properties. He further contended that in respect of the said settlement deeds Ayodya Ramanuja Doss Ammal has
also executed two revocation deeds Exs.B1 and B2. He has further contended that Ayodya Ramanuja Doss ammal has subsequently executed a
will Ex. B4 on 3.11.1976 in favour of the first defendant in respect of all the plaint schedule properties and on the strength of this Will filed by the
first defendant the plaintiff''s petition O.P. No. 45 of 1978 for Succession Certificate was dismissed. This being her last will only he is entitled to the
properties and therefore the suit filed by the plaintiff is liable to be dismissed.
The learned trial Judge on consideration of the evidence adduced in the case held that the settlement deeds Exs.A1 and A2 as well as the Will
Ex. A3 are all valid. He further held that the first defendant failed to prove by adducing necessary evidence his alleged Will Ex. B4. He also held
that the plaintiff is a relation of Ayodya Ramanuja Doss Ammal as pleaded by him. On these finding he decreed the suit as prayed for. Aggrieved,
the first defendant has come up with this appeal
Mrs. Hema Sampath, Learned Counsel appearing for the appellant-first defendant would at the outset submit that she is not advancing any
argument with regard to the plaint A'' and ''B'' schedule properties which have been covered under the two settlement deeds Exs.A1 and A2. But
however as regards the rest of the schedule i.e., C, D and E schedules she argued that these properties were covered by the last Will Ex. B4
executed by Ayodya Ramanuja Doss Ammal in favour of the first defendant, and the trial court has erred in holding that this Will Ex. B4 has no
been proved by examining any attesting witness.
The Learned Counsel contends that no doubt it is true that no attesting witness of this Will has been examined but the learned trial Judge failed
to note that the Will has been already proved in O.P. No. 45 of 1978 before the Subordinate Judge, Chidambaram and hence there is no necessity
for once again proving the Will. There fore the question that arises for consideration in this appeal is whether Ex. B4 Will which has been proved in
O.P. No. 45 of 1978 need not be proved in the present suit and hence the learned trial Judge fell into an error in holding that the Will has not been
proved.
In support of her case the Learned Counsel cited some decisions one among them being of Nagpur High Court in AIR 1938 47 (Nagpur)
wherein it has been held that,
In a case where succession certificate is claimed by a person to the estate of a deceased testator as heir and reversioner and the opponent sets up
a registered will, the Court must first decide whether the Will was validly executed and this will not involve a question whether the testator was
entitled to dispose of the property mentioned in the Will. If the Court decides that the Will was validly executed, it has no jurisdiction to grant a
succession certificate, and the question of jurisdiction must be decided first.
This decision was cited contending that in a Succession Certificate matter when a Will is produced by the opposite side the Court has to go into
the validity of the Will. I am in complete agreement with this submission.
In our case the plaintiff has filed O.P. No. 45 of 1978 for Succession Certificate and the first defendant set up the Will Ex. B4 while objecting to
the grant of Succession Certificate and the Court as regards the genuineness and validity of this will took evidence and upon consideration of that
evidence held that Will is valid and genuine.
Another decision cited by the Learned Counsel is Sri Sangameswaraswamy Temple, by its Executive Officer, Fort, Combatore v. A.M.
Kunhamo (died) and 14 others 100 L.W. 41 wherein Ratnam, J. has held that the principle of resjudicata will apply to the decisions rendered in
the City Tenants Protection Act proceedings.
On the side of the respondents it was argued that in the Succession Certificate matter (O.P. 45 of 1978) only the ''E'' schedule properly i.e., the
deposits in the Bank was involved and not other properties, and further the enquiry was only summary in nature and therefore the decision which
would operate as res-judicata in the present suit which involves A, B, C and D schedule properties also. To this contention in my view the
Judgment of the Supreme Court in Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, gives the complete answer. It is held there in
as follows:-
It is well settled that S. 11 of the C.P.C. is not exhaustive of the general doctrine of res-judicata and though the rule of res judicata as enacted in S.
11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives namely, that there
must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. Technical aspects of S. 11 of
C.P.C., as for instance, Pecuniary or subjectwise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the
subsequent litigation would be immaterial when the general doctrine of res judicata is to he invoked.
(Emphasis is mine)
The Supreme Court in this judgment has quoted another Judgment of it in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat),
wherein it has been observed that,
It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the
consequent suit have the same Subject matter. The (sic) of the former proceeding is immaterial.
(Emphasis supplied)
Now, in the O.P. proceedings (C.P. No. 45 of 1978) it has been, after contest between the parties, decided that Ex. B4 Will is true, valid and
genuine. This decision has not been questioned in any appeal. Therefore that has become final. It is clear that in view of the above-said Supreme
Court decision this decision holding Ex. B4 as a true and valid Will in the O.P. proceedings will operate as res-judicata in the present suit. This
being the position no question of proving the Will by examining any attesting witness as required under S. 68 of the Evidence Act arises. In fact
execution of Ex. B4 Will has been admitted by the plaintiff.
In view of this, this Will Ex. B4 being the last Will of Ayodya Ramanuja Doss Ammal the defendant naturally will get the properties covered
under that Will. As stated above, this Will cover among others, the plaint C, D and E schedule properties. Hence the plaintiff cannot claim these
properties i.e., C, D and E schedules as belonging to him either tinder Ex. A3 Will or as heir of Ayodya Ramanuja Doss Ammal. The result is, the
appeal is allowed as far as the properties in C, D and E schedules, As regards ''A'' and ''B'' schedules the Judgment of the trial Court is confirmed.
There will be no order as to costs.