Dismissed

R. Sundaram v. M/S Raja Theaters

Madras HC19 Sept 2019SA/823/2016

Case brief

AI extract

What is this about?

Suit for rendition of accounts of a deceased partner's share in a theatre partnership firm, and a later suit for partition of the same theatre property, were both dismissed below. The plaintiff, claiming as legatee under a Will, appealed. The High Court held the plea of res judicata was not raised in the pleadings or framed as an issue, upheld the family arrangement of 01.03.1979, and dismissed bo

What the court decided

AI extract

R. Sundaram Vs M/S Raja Theaters — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Judgment Reserved on : 23.07.2019 Judgment Delivered on : 19.09.2019 THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE C.SARAVANAN Second Appeal No. 823 of 2016 and Appeal Suit No. 578 of 2016 and C.M.P.No.15724 of 2016 R.Sundaram .. Appellant in both the appeals/Plaintiff Versus 1. M/s.Raja Theaters, Dissolved firm, rep. by its Erstwhile Partner Mr.Ravindranath, 192, Nawab Hakkim Road, Coimbatore.

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Ravindranath, Partner, M/s.Raja Theaters, R.V.Jewellers, 289, Raja Street, Coimbatore.

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V.Sekar, Partner, M/s.Raja Theaters, New R.V.Jewellers, 442, Big Bazaar Street, Coimbatore.

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Tmt.Indarani Viswanathan, Partner, M/s.Raja Theaters, C/o C.Ravindranath, New R.V.Jewellers, 289, Raja Street, Coimbatore. .. Respondents in S.A.No.823 of 2016/Defendants

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Ravindranath, son of Late Vishwanathan, aged about 52 years, Partner, M/s.Raja Theaters, R.V.Jewellers, 289, Raja Street, Coimbatore.

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V.Sekar, aged about 48 years, Son of Late Vishwanathan, Partner, M/s.Raja Theaters, New R.V.Jewellers, 442, Big Bazaar Street, Coimbatore-641 001.

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Tmt.Indarani Viswanathan, aged about 74 years, Partner, M/s.Raja Theaters, C/o C.Ravindranath, New R.V.Jewellers, 289, Raja Street, Coimbatore-641 001.

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.. Respondents in A.S.No.578 of 2016/Defendants

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Second Appeal filed under Section 100 CPC against the judgment and decree dated 12.04.2016 in A.S.No.92 of 2006 on the file of the I Additional District Court, Coimbatore, against the judgment and decree dated 12.07.2005 in O.S.No.268 of 2004 on the file of the III Additional Sub-Court, Coimbatore.

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Appeal Suit (First Appeal) filed under Section 96 read with Order 41 Rule 1 of CPC against the judgment and decree dated 12.04.2016 in O.S.No.684 of 2007 on the file of the I Additional District Court, Coimbatore.

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For appellant : Mr. V. Raghavachari in both the appeals For respondents: Mr. M.S.Krishnan, Senior Counsel for Mr.R.Venkatesan for M/s. Sarvabhauman Associates in both the appeals COMMON JUDGMENT R.Subbiah, J

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Assailing the judgment and decree dated 12.04.2016 passed in A.S.No.92 of 2006 on the file of the I Additional District Court, Coimbatore, confirming the judgment and decree dated 12.07.2005 passed in O.S.No.268 of 2004 on the file of the III Additional Sub-Court, Coimbatore, the appellant has filed the present second appeal. He has also filed the Appeal Suit questioning the validity and/or correctness of the judgment and decree dated 12.04.2016 passed in O.S.No. 684 of 2007 on the file of the I Additional District Court, Coimbatore.

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The appellant in the Second Appeal as well as the Appeal suit is the one who had instituted both the suits namely O.S.No.268 of 2004 and O.S.No. 684 of 2007. The respondents in these appeals are the defendants in the aforesaid suits instituted by the appellant. Therefore, for the sake of convenience, the parties shall be referred to as per their litigative status in the suit as 'plaintiff' and 'defendants' respectively.

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The appellant/plaintiff has filed the said suit in O.S.No. 268 of 2004 praying to direct the defendants, being the

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respondents 1 to 4 in S.A.No.823 of 2016, to render accounts towards the value of one Raghunatha Chettiar's share in the first respondent/first defendant's partnership firm, M/s.Raja Theatres, N.H.Road, Coimbatore. The said suit in O.S.No.268 of 2004 was dismissed by the trial Court, against which, the plaintiff has filed First Appeal in A.S.No.92 of 2006, which was also dismissed, hence, the present second appeal is filed by the plaintiff.

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The appellant/plaintiff has also filed another suit in O.S.No.684 of 2007 for partition of the suit property (Raja Theatres) into two equal shares and to allot one such share to him and for separate possession. The said suit was dismissed which resulted in filing A.S.No.578 of 2016 by the appellant/plaintiff before this Court.

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As mentioned above, the appellant herein is the one who had instituted both the suits. The issues involved in both the second appeal as well as the Appeal Suit are common and identical and therefore, they are taken up together and are disposed of by this common judgment.

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Pleadings in O.S.No.268 of 2004

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6.(i) According to the plaintiff, he is the brother-inlaw of one Raghunatha Chettiar who was a partner in the first defendant-firm, namely Raja Theatres, along with his brother late Viswanatha Chettiar and the defendants 2 to 4 herein. Mrs. Saraswathi, wife of Late. Raghunatha Chettiar was the sister of the plaintiff. The defendants 2 and 3 are the sons of Viswanatha Chettiar and the fourth defendant is the wife of Viswanatha Chettiar. The first defendant firm - Raja Theatre was engaged in the business of exhibition of cinemas and distribution of films and allied business. Earlier, there was a Partnership agreement, which according to the plaintiff, was subsequently reconstituted on 01.01.1973, wherein it was stated that Late Raghunatha Chettiar had 30% share in the said firm. After the death of the said Viswanatha Chettiar on 12.07.1980, the firm continued to run with the existing partners, namely Raghunatha Chettiar and the defendants 2 to 4. The partnership business was effectively run by the said Viswanatha Chettiar till his death and thereafter, the defendants 2 and 3 have been running the business. The said Raghunatha Chettiar was not well educated and was not well versed in running the partnership business. However, the said Raghunatha Chettiar reposed confidence in the other partners, being close relatives like brother and brother's son and they were running the partnership business. For a number of years, the said Raghunatha Chettiar had not been living in Coimbatore and he was residing in Madurai for few years. His wife Saraswathi pre-deceased him. After the death of Saraswathi, the plaintiff and his family members took care of Raghunatha Chettiar. The said Raghunatha Chettiar had no issues. He was

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also attached to the plaintiff and expressed his wish that the plaintiff should take his properties after his life time. In order to give effect to such a wish, late. Raghunatha Chettiar had executed a registered Will dated 16.09.2002 while he was in a sound and disposing state of mind, whereby he bequeathed his properties to the plaintiff, including the suit property. According to the plaintiff, taking advantage of the absence of the said Raghunatha Chettiar in Coimbatore, the defendants 2 to 4 have not paid the legitimate partnership share to Raghunatha Chettiar. Hence, Raghunatha Chettiar issued notice dated 12.12.2002 to the defendants 2 to 4 and one Baskaran, who was also a partner of Raja Theatres demanding his share in the partnership business. However, the defendants 2 and 3 have not chosen to give reply. The notice addressed to the fourth defendant returned as 'not claimed'. The notice addressed to another partner Baskaran returned with an endorsement 'expired'. 6 (ii). It is the contention of the plaintiff that the defendants 2 and 3 were in actual control and management of the partnership business. All the documents like partnership deeds and accounts were in their custody. The plaintiff being the legatee and legal representative of Late Raghunatha Chettiar, has demanded the defendants to render true and proper accounts of the income generated through the partnership business, but it was not furnished to him by the defendants. In those circumstances, the plaintiff has filed the suit in O.S. No. 268 of 2004 for rendition of accounts relating to the partnership business towards the value of Raghunatha Chettiar's share.

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(i) The suit in O.S.No.268 of 2004 was resisted by the defendants stating that Raja Theatres is a continuing firm, in which the defendants 2 and 3 are partners. The fourth defendant, namely Indrani Viswanathan, wife of Viswanatha Chettiar, is not a partner at all. The first defendant-firm was originally constituted by a deed of partnership dated 01.01.1973 between R.Viswanathan, R.Raghunathan, Mr.Ravindranath (second defendant), V.Sekar (third defendant) and Mr.Baskaran. The object of the partnership firm, as reflected in the Partnership Deed, was to run a firm under the name and style of Raja Theatres. This position continued for some time and thereafter, a family arrangement, dated 01.03.1979 took place between Viswanatha Chettiar and his two sons, Ravindranath and Sekar (defendants 2 and 3) on the one hand and Raghunatha Chettiar on the other. The family arrangement was with respect to the joint family properties in the hands of Viswanatha Chettiar and Raghunatha Chettiar. Under the family arrangement, Raghunatha Chettiar relinquished all his rights in the business called Raja Theatres and whereupon, the business came to the hands of Viswanatha Chettiar and his two sons, i.e. defendants 2 and 3 herein. The family arrangement was duly acted upon and the said Raghunatha Chettiar took several benefits including the rights

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in immovable properties and Raghunatha Chettiar also sold the properties on the basis of the said family arrangement. Even as early as 01.03.1979, Raghunatha Chettiar had himself written a letter to Viswanatha Chettiar, the Managing Director of the first defendant-firm that as per the oral partition, he does not wish to continue as a partner any longer in the first defendantfirm and he would not be responsible for any transaction taking place after 31.12.1978. Thus, there had been a deemed retirement of Raghunatha Chettiar on the basis of the oral family arrangement. Consequent upon the relinquishment of interest by Raghunatha Chettiar, the firm came to be re-constituted among Viswanatha Chettiar and his two sons, defendants 2 and 3, along with Baskaran, as partners. Thus, the retirement of Raghunatha Chettiar was duly acted upon and the firm continued with the remaining partners. Thereafter, on 12.07.1980, Viswanatha Chettiar expired. After his death, the firm continued with defendants 2 and 3 along with Baskaran, as partners. Thereafter, by a deed of retirement, dated 14.12.1980, the said Baskaran had also retired and after his retirement, it was only defendants 2 and 3 who have been the partners. Ever since then, it is the defendants 2 and 3 who have been running the firm in partnership. The retirement of Raghunatha Chettiar is on the basis of the family arrangement dated 01.03.1979. Under the said family arrangement, the said Raghunatha Chettiar was a beneficiary in respect of certain properties allotted to him and the family arrangement was duly reduced into writing. Therefore, it would be futile to contend that Raghunatha Chettiar was a partner of the firm subsequent to 01.03.1979.

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(ii) According to the defendants, the said Raghunatha Chettiar had filed a false and frivolous suit in O.S.No.196 of 1982 before Sub-Court, Coimbatore, claiming share in various properties including Raja Theatres, which was shown as item No.6 therein and the said suit was dismissed for default on 09.11.1984. Thereafter, Raghunatha Chettiar filed an application for restoration of the suit and that application was also dismissed, against which appeal was filed in C.M.A.No.1183 of 1988, which was also dismissed on 10.08.1990. Thus, Raghunatha Chettiar made a futile attempt to reopen the concluded transaction but he miserably failed. The said Raghunatha Chettiar kept quiet for a very long time realising that he has got no right over the first defendant-firm, but suddenly he sprung up with a false and frivolous legal notice dated 12.12.2002 and also issued a false paper publication. The defendants immediately issued a reply publication in "Dhina Malar" Tamil newspaper, dated 21.12.2002 explaining all the facts. Thereafter, the plaintiff filed the suit on the basis of the alleged Will purported to have been executed by the said Raghunatha Chettiar, dated 16.09.2002. The Plaintiff has no right over the property other than the one possessed by Raghunatha Chettiar prior to 01.03.1979. The defendants

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therefore prayed for dismissal of the suit in O.S.No.268 of 2004.

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Pleadings in O.S.No.684 of 2007:

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(i) According to the plaintiff, the suit property, namely Raja Theatres, belongs to one Raghunatha Chettiar, son of Late P.A. Ramaswamy Chettiar. The said Raghunatha Chettiar is entitled for half share in the said Raja Theatres. He died on 12.01.2004 and his wife, namely R.Saraswathi, pre-deceased him on 14.08.2002. Both were residing lastly at TVS Nagar, Madurai. The said Raghunatha Chettiar was none other than the husband of the plaintiff's sister. During his lifetime, the said Raghunatha Chettiar had executed a Will dated 16.09.2002 in favour of the plaintiff, which was registered as Document No.313 of 2002 on the file of Sub-Registrar, Madurai South, whereby the testator had bequeathed the suit property to the plaintiff.

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(ii) During the life time of Raghunatha Chettiar, he along with his brother Viswanatha Chettiar and the sons of the said Viswanatha Chettiar, namely the defendants 1 and 2 (Ravindranath and Sekar), had entered into a family settlement on 01.01.1973. Thereafter, again on 01.03.1979, the said Raghunatha Chettiar with his brother Viswanatha Chettiar and the defendants 1 and 2 being the sons of Viswanatha Chettiar, have entered into an agreement with certain terms and conditions relating to the management of the properties, including the suit property, which were treated as common undivided properties.

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(iii) While the facts are so as stated above, on 16.12.2002, the said Raghunatha Chettiar had published a notice in one issue of Tamil Daily "Dhina Malar" cautioning the general public to wean away from in any manner dealing with the suit property. According to the plaintiff, the defendants in O.S.No.684 of 2007 have promised to give a share to Late Raghunatha Chettiar in respect of the suit property-Raja Theatres, however, they did not keep up their promise, which constrained the plaintiff to cause another paper publication on 11.07.2007 in "Malai Malar" Tamil newspaper. Thereafter, the plaintiff reliably learnt that the defendants are attempting to dispose of the suit property and therefore, he had filed the suit in O.S.No.684 of 2007 for partition of the suit property into two equal shares and to allot one such share to him and for separate possession.

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(i) The above said suit in O.S.No.684 of 2007 was resisted by the defendants by filing written statement, contending inter-alia that the plaintiff had deliberately suppressed the fact that the suit property/Raja Theatres was founded as a partnership firm, from which Raghunatha Chettiar had already retired. The plaintiff as an alleged legatee of Raghunatha Chettiar, filed a suit in O.S.No.268 of 2004 on the file of the Sub-Court, Coimbatore, for rendition of accounts towards the value of Raghunatha Chettiar's share in the said

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partnership firm-Raja Theatres. The said suit was dismissed by the trial Court on 02.07.2005, against which, the plaintiff has filed First Appeal in A.S.No.92 of 2006. The very basis of the said suit in O.S.No.268 of 2004 is that the Raja Theatres is a partnership firm. The fact remains that the said Raghunatha Chettiar had retired long back from the partnership firm, and therefore, even assuming without admitting that the plaintiff is a legatee of the said Raghunatha Chettiar, nothing will survive with regard to the theatre property which is being run by the defendants 1 and 2, who are the sons of Viswanatha Chettiar. Even the third defendant-Indarani Viswanathan who is the wife of Viswanatha Chettiar, is not a partner however, she has been impleaded unnecessarily as a party to the suit. At any rate, the plaintiff is an utter stranger to the suit property, which belongs to the partnership firm/Raja Theatres and the same is managed by the defendants 1 and 2 as partners. The plaintiff in his suit in O.S.No.268 of 2004, had stated that Raghunatha Chettiar was still a partner of the firm, however, he fails to prove such an averment. The Plaintiff, having failed to get a decree in the earlier suit in O.S.No.268 of 2004, has now filed the present suit with an averment that that the suit property is a joint family property of Late. Raghunatha Chettiar and Viswanatha Chettiar. The defendants have also disputed the Will said to have been executed in favour of the plaintiff by the said Raghunatha Chettiar. According to the defendants, the plaintiff has no semblance of right over the suit property, including the right of partition. Even assuming for a moment that the Will is true, it will not confer any right on the plaintiff, because, Raghunatha Chettiar himself had no right over the property. The suit property belongs to the partnership firm and the defendants 1 and 2 are the present partners of the partnership firm and they continue the firm business from 1980. The defendants have got every right to deal with the suit property as partners of the suit property. Absolutely, there is no cause of action to file the present suit. The defendants have therefore prayed for dismissal of the suit for partition. (ii) The defendants have also filed additional written statement contending that the Will said to have been executed by Raghunatha Chettiar, bequeathing his share in the partnership firm, namely Raja Theatres, is not a genuine one. In fact, in O.S.No.268 of 2004, the trial Court had given a specific finding that the signature contained in various pages of the Will, is not a genuine one. Further, the family settlement executed between the Raghunatha Chettiar and Viswanatha Chettiar and his sons (defendants 1 and 2) was acted upon by the late Raghunatha Chettiar and he had executed various sale deeds based on the said settlement. Late Raghunatha Chettiar himself has earlier filed O.S.No.196 of 1982 before the Sub-Court, Coimbatore for partition and the same was dismissed for default on 09.11.1984. Thereafter, he preferred appeal before this Court in

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C.M.A.No.1183 of 1988 and the same was also dismissed on 10.08.1990. While so, the present suit filed by the plaintiff deserves only to be dismissed and they have prayed for dismissal of the suit.

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The trial Court, after framing necessary issues and after considering the oral and documentary evidence, dismissed O.S.No.268 of 2004, against which, A.S.No.92 of 2006 was filed before the first appellate Court. The first appellate Court dismissed A.S.No.92 of 2006 along with O.S.No.684 of 2007 on the reasoning that the issue of retirement of Raghunatha Chettiar had reached a finality by the judgment of this Court in C.M.A.No.1183 of 1988, dated 10.08.1990 and hence, the plaintiff has no cause of action to file the suits. Aggrieved by the same, the present appeals have been filed by the plaintiff.

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Mr.V.Raghavachari, learned counsel for the appellant/plaintiff submitted that the entire dispute involved in these appeals revolve around the question as to how the partnership firm M/s.Raja Theatres was dealt with by the brothers Viswanatha Chettiar and Raghunatha Chettiar. According to the learned counsel, Raghunatha Chettiar is entitled to 30% share in the partnership firm-M/s.Raja Theatres by virtue of being a partner and Viswanatha Chettiar and his sons (defendants 2 and 3) put together are entitled for 15% share each. The remaining 25% was held by one Baskaran, as Partner. The said Raja Threatres was constructed by one P.A.Raju Chettiar and the ownership of the Theatre was with the partnership consisting of Raju Chettiar and others. The partners changed from time to time, but the business continued. Ultimately, Raghunatha Chettiar and Viswanatha Chettiar had run the theatre business as partners. While so, Viswanatha Chettiar died on 12.07.1980 and pursuant to his death, another partner Baskaran retired on 14.12.1980. Thereafter, the partnership firm continued with the sons of Viswanatha Chettiar along with Raghunatha Chettiar. In the meanwhile, on 01.03.1979, during the lifetime of Viswanatha Chettiar, a family arrangement (Ex.A-4) was entered into between Viswanatha Chettiar and his sons on the one hand and Raghunatha Chettiar on the other, with respect to six ancestral properties. In the said family arrangement, the properties were divided into A and B schedule properties. The A-Schedule properties consisted of four items and they were allotted to Viswanatha Chettiar and B-schedule properties consisted of two items, which were allotted to Raghunatha Chettiar. So far as Raja Theatres is concerned, there was a reference in the recital of the family arrangement to the extent that the partners shall enter into a separate agreement governing the suit property before 01.04.1979. Under the said proposed agreement, the liability, both personal and individual, of Raghunatha Chettiar, was to be taken over by Viswanatha Chettiar and his sons. However, none of

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the obligations were fulfilled by the respondents/defendants and there was utter breach of the family arrangement by the respondents/defendants. Thus, it could be evident that Raghunatha Chettiar never relinquished his rights with respect to the partnership firm and he continued to be a partner.

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The learned counsel for the appellant/plaintiff further submitted that the respondents herein had taken a defence before the trial Court as if the said Raghunatha Chettiar had relinquished his share in 1979 itself and therefore, he has no legal right to execute the Will in favour of the plaintiff. In this regard, the learned counsel for the appellant/plaintiff submitted that in the year 1980, one of the creditors of Raghunatha Chettiar, namely M/s.Selvam Financiers filed a suit in O.S.No.1453 of 1980 before the Sub-Court, Coimbatore, against Raghunatha Chettiar for recovery of money and they have also sought for attachment of the shares of Raghunatha Chettiar in the partnership firm, by filing I.A.No.1167 of 1980 in O.S.No.1453 of 1980 under Order 38 Rules 5 and 11-A read with Order 21 Rule 49 and Order 40 Rule 1 and Section 151 of CPC. In the schedule of the application, Raja Theatres, Coimbatore was shown as a Garnishee. In the said claim petition before the Court below, it was contended by M/s.Raja Theatres that Raghunatha Chettiar has no right in the partnership firm and he had orally relinquished his right in the property. The said contention of the defendant-firm which was a Garnishee in the said suit, was rejected by the trial Court. Now, in the present case, the defendants are relying upon a letter dated 01.03.1979 (Ex.B-14) to substantiate the claim as if Raghunatha Chettiar had given up his share. In this regard, the learned counsel for the plaintiff invited the attention of this Court to the contents of the said letter dated 01.03.1979 written by Raghunatha Chettiar to Viswanatha Chettiar, which reads as follows:

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"With regard to the business we have been conducting under the name and style of M/s.Raja Theatres I wish to inform you that as per our oral partition I do not wish to continue as a partner any longer in the said firm M/s.Raja Theatres and that I will not be responsible for any transactions taking place after 31.12.1978."

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By placing reliance on the aforesaid letter, the learned counsel for the plaintiff submitted that a bare reading of the above contents of the letter would clearly show that it was only a fake letter, which speaks of an oral partition between Raghunatha Chettiar and Viswanatha Chettiar and there is no

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reference to the other partners, namely Sekar, Ravindranath and Baskaran. On the very same date of the said letter, an agreement was entered into between Raghunatha Chettiar and Viswanatha Chettiar and his sons in respect of the ancestral property. The need to give the letter on the same day would not arise, since admittedly, the family arrangement speaks of a regular deed of relinquishment of the rights in the partnership firm. Therefore, the learned counsel for the appellant/plaintiff submitted that the oral partition as alleged in the said letter cannot be put against the plaintiff to deny his claim. In fact, the trial Court, in the earlier suit in O.S.No.1453 of 1980, filed by one Selvam Financier being the creditor of Raghunatha Chettiar examined Ex.X-1, namely, original of Form-A maintained by the Registrar of Firms at Coimbatore under Section 59 of the Indian Partnership Act of the partnership firm-Raja Theatres at Coimbatore and Ex.X-2 which is a document summoned by the respondents from the Registrar of Firms, Coimbatore. The trial Court in that case held that on a careful reading of the above recitals in the agreement dated 01.03.1979 marked as Ex.B-1 therein, it is clear that it is not a dissolution deed or a retirement deed. It was further held that the retirement of Raghunatha Chettiar from the partnership firm - Raja Theatres cannot be true and valid under law. Challenging the said finding of the trial Court, C.M.A. No. 78 of 1982 was filed before this Court and the Division Bench of this Court, by Judgment dated 01.02.1991, confirmed the judgment of the trial Court. The Division Bench of this Court, while dismissing the said appeal, agreed with the finding of the trial Court that the claimantRaja Talkies had not produced any dissolution deed or retirement deed to show the retirement of Raghunatha Chettiar on and from 31.12.1978. Therefore, the defence of the respondents/defendants that the said Raghunatha Chettiar retired form the partnership firm/Raja Theatres and relinquished his right, was rejected in the earlier suit, which was confirmed by this Court in the appeal as noted above. The judgment rendered in C.M.A.No.78 of 1982 is under Order 38 Rule 5 read with Order 21 Rule 58 CPC. Any dispute regarding the finding of the Court in an order passed under Order 21 Rule 58 CPC is a decision as if rendered in the regular suit and hence, such decision has to be adjudicated only through an appeal against that order. Insofar as the present case is concerned, as against the dismissal of the said C.M.A. No. 78 of 1982, no further appeal was filed before the Supreme Court. In the absence of any appeal, the said judgment would attain finality and will bind the respondents. In this regard, the learned counsel for the appellant relied upon a judgment of this Court in the case of Southern Steelmet and Alloys Ltd. Vs. B.M.Steel, reported in AIR 1978 Madras 270, wherein the Division Bench of this Court held as follows:

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"4. .. .. We have already expressed the view that the adjudication referred to

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under Order 21 Rule 58 C.P.Code not being summary and as it is the intention of the Legislature under the amended Civil Procedure Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree, we are of the view that a fuller examination of the rights of parties has to be held in the instant case after giving them adequate opportunity to place all relevant materials before the trial court, so that it could ultimately decide and adjudicate on all questions including questions relating to right, title or interest in the property attached which either directly or indirectly arise between the parties to the proceedings."

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Therefore, the learned counsel for the appellant/plaintiff submitted that the judgment rendered in C.M.A.No.78 of 1982 precludes the parties to re-agitate the ground of defence over and over again. To buttress such submission, the learned counsel also referred to the judgment of the Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar, reported in 2005 (1) SCC 787, relevant portion of which reads as follows:

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"29. There is a distinction between “issue estoppel” and “res judicata”. (See Thoday v. Thoday [(1964) 1 All ER 341 : (1964) 2 WLR 371 : 1964 P 181 (CA)] .)

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Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.

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In a case of this nature, however, the doctrine of “issue estoppel” as also “cause of action estoppel” may arise. In Thoday [(1964) 1 All ER 341 : (1964) 2 WLR 371 : 1964 P 181 (CA)] Lord Diplock held: (All ER p. 352 B-D)

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“… ‘cause of action estoppel’, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in

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previous litigation between the same parties. If the cause of action was determined to exist i.e. judgment was given on it, it is said to be merged in the judgment.… If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam.” [Ed.: The rest of the extract from Thoday [(1964) 1 All ER 341 : (1964) 2 WLR 371 : 1964 P 181 (CA)] may usefully be referred to (All ER p. 352, B- F)

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“Estoppel per rem judicatam is a generic term which in modern law includes two species. The first species, ‘cause of action estoppel’, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment, or for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim, ‘nemo debet bis vexari pro una at eadem causa’. In this application of the maxim, causa bears its literal Latin meaning. The second species, ‘issue estoppel’, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation on one such cause of action any

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of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”]`

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The said dicta was followed in Barber v. Staffordshire County Council [(1996) 2 All ER 748 (CA)] . A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (A Minor) v. Hackney London Borough Council [(1996) 1 All ER 973 : (1996) 1 WLR 789 (CA)] .]"

¶63

The learned counsel for the appellant-plaintiff further proceeded to contend that the lower Court, in the instant case, had manifestly committed a grave error in disregarding the Judgment of this Court. If the parties fail to get rid of the judgment through an appeal, then the judgment acts as a bar to re-agitate the matter in the subsequent litigation. In this regard, the learned counsel for the appellant relied on another judgment of the Supreme Court in the case of Satyendra Kumar Vs. Raj Nath Dubey, reported in 2016 (4) SCC 49, which reads as follows:

¶64

"14. The aforesaid decisions relied upon by the appellants, in our view do not distract from the reasoning and correctness of the findings given by the High Court that previous proceedings would operate as res judicata only in respect of issues of facts and not on issues of pure questions of law when the subsequent suit or proceeding is based upon a different cause of action and in respect of different property though between the same parties. We are in agreement with the views of the High

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Court and hence, do not deem it necessary to go into further details of the legal concept of res judicata and estoppel. It is sufficient to indicate that once a judgment in a former suit or proceeding acquires finality, it binds the parties totally and completely on all issues relating to the subjectmatter of the suit or proceeding. This flows from Section 11 CPC which in turn is based upon ancient doctrines embodied in every civilised system of jurisprudence with almost universal application that an earlier adjudication between the same parties is conclusive in respect of the same subject-matter. The Latin maxims relevant for explaining the concept of res judicata clearly specify that: (1) no man should be vexed twice for the same cause, (2) it is in the interest of State that there should be an end to a litigation, and (3) a judicial decision once it has attained finality must be accepted as correct between the parties. 15. The distinction drawn by the High Court in the impugned judgment [Raj Nath Dubey v. Director of Consolidation, 2013 SCC OnLine All 10523] that an erroneous determination of a pure question of law in a previous judgment will not operate as res judicata in the subsequent proceeding for different property, though between the same parties, is clearly in accord with Section 11 CPC. Strictly speaking, when the cause of action as well as the subject-matter i.e. the property in issue in the subsequent suit are entirely different, res judicata is not attracted and the competent court is therefore not debarred from trying the subsequent suit which may arise between the same parties in respect of other properties and upon a different cause of action. In such a situation, since the Court is not debarred, all issues including those of facts remain open for adjudication by the competent court and the principle which is attracted against the party which has lost on an important issue of fact in the earlier suit is the principle of estoppel, more particularly “issue estoppel” which flows from principles of evidence such as from Sections 115, 116 and 117 of the Evidence Act, 1872 and from principles of equity. As a principle of evidence, estoppel is treated to be an admission or in the eye of the law something equivalent to an admission of such quality and nature that the maker is not allowed to contradict it. In other words, it works

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as an impediment or bar to a right of action due to affected person's conduct or action. “Estoppel by judgment” finds reference in Ahsan Hussain Abdul Ali Bohari v. Maina [Ahsan Hussain Abdul Ali Bohari v. Maina, 1937 SCC OnLine MP 114 : AIR 1938 Nag 129] . It is taken as a bar which precludes the parties after final judgment to reagitate and relitigate the same cause of action or ground of defence or any fact determined by the judgment. If the determination was by a court of competent jurisdiction, the bar will remain operative even if the judgment is perceived to be erroneous. If the parties fail to get rid of an erroneous judgment, they as well as persons claiming through them must remain bound by it.

¶69

However, as explained and held by this Court in Mathura Prasad Bajoo Jaiswal [Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 : AIR 1971 SC 2355] , where the decision is on a pure question of law then a court cannot be precluded from deciding such question of law differently. Such bar cannot be invoked either on principle of equity or estoppel. No equitable principle or estoppel can impede powers of the court to determine an issue of law correctly in a subsequent suit which relates to another property founded upon a different cause of action though parties may be same. As explained earlier, in such a situation the principle of res judicata is, strictly speaking, not applicable at all. So far as principle of estoppel is concerned, it operates against the party and not the court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted. The issues of facts once finally determined will however, stare at the parties and bind them on account of earlier judgments or for any other good reason where equitable principles of estoppel are attracted."

¶70

Thus, the learned counsel for the appellant/plaintiff submitted that the present defence taken by the defendants that Raghunatha Chettiar retired from the partnership firm, has already been rejected in the earlier proceedings, and therefore, the principle of "res-judicata" will apply.

¶71

The learned counsel for the appellant/plaintiff also contended that during the life time of Raghunatha Chettiar, when

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he was in a sound and disposing state of mind, he had executed the Will, dated 16.09.2002 in favour of the appellant. A bare perusal of the Will and the attendant circumstances under which it was executed, would indicate the genuineness of the document. Raghunatha Chettiar had no issues and hence, after the demise of his wife, he bequeathed his properties to the appellant. The said Will Ex.A-2 was registered as Document No.313 of 2002 at Sub-Registrar Office, Madurai South. The Will had been proved by examination of the attesting witness Srinivasan (PW2), who had clearly elucidated the due execution and presentation of the document for registration. He has stated that Raghunatha Chettiar executed the said Will in stable mental condition and in good faith to the appellant and that the Will was signed in the presence of the attesting witness. According to the learned counsel for the appellant, as per Section 63 read with Section 68 of the Indian Succession Act, the appellant had clearly established the due execution of the Will by examining one of the attesting witnesses. In the absence of suspicious circumstances, mere examination of the attesting witness is sufficient to legally give effect to the Will, as held by the Apex Court in the case of Ramabai Padmakar Patil Vs. Rukmini Bai Vishnu Vekhande, reported in 2003 (8) SCC 537. Though the appellant/plaintiff has examined the attesting witness, the trial Court (First Additional District Court, Coimbatore) made perverse finding in O.S.No.684 of 2007 that the original of the Will had not been produced and proved before Court and it was further observed by the trial Court that the non-production of the original Will is fatal. It is pertinent to note that the learned First Additional District Judge was both the appellate Judge and trial Judge together. He was hearing the Appeal Suit (First Appeal) in A.S.No.92 of 2006 as against O.S.No.268 of 2004, along with O.S.No.684 of 2007. The original Will was produced before the Court in O.S.No.268 of 2004 as Ex.A-1, dated 16.09.2002 and the attestor to the Will, namely Srinivasan was examined as P.W.2 in the said suit. He had clearly spoken about the due execution of the Will and its registration. When the Will is registered before the competent authority, there is a stamp of genuineness, which gets attached to it, particularly, when it is not the case of the defendants that the signature in the Will is not that of the deceased Raghunatha Chettiar. The learned First Additional District Judge, Coimbatore in O.S.No.684 of 2007 states that the original of the Will was not produced, obviously in O.S.No.268 of 2004, it means that he had not seen the exhibits at all. On the contrary, the Will was produced and the same was marked as Ex.A-9 in O.S.No.268 of 2004, which was the subject matter of Appeal Suit in A.S.No.92 of 2006. Thus, it is clear that the learned trial Judge had failed to look into the documents that were in fact available. The trial court, with total non-application of mind, held that the Will was not executed and/or proved in a manner known to

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law. In such circumstances, the learned counsel for the appellant/plaintiff prayed to set aside the judgment and decree of the Courts below and to allow the appeals.

¶76

Countering the above submissions of the learned counsel for the appellant, Mr. M.S. Krishnan, learned Senior Counsel appearing for the respondents/defendants submitted that the plea of 'res-judicata' cannot be pressed into service in these appeals, since absolutely there is no pleading in the plaint to that effect and further, there is no specific issue framed by the Court below. In this regard, the learned Senior Counsel appearing for the respondents/defendants relied on a judgment of the Supreme Court in the case of V.Rajeshwari Vs. T.C.Saravanabava, reported in 2004 (1) SCC 551, wherein it was held by the Apex Court as follows:

¶77

"11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

¶78

12.The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal (See: ((Raja) Jagadish Chandra Deo Dhabal Deb Vs. Gour Hari Mahato & Ors. AIR 1936 Privy Council 258 : 1936 All.E.R. 786), Medapati Surayya & Ors. Vs. Tondapu Bala Gangadhara Ramakrishna Reddi & Ors. (AIR 1948 Privy Council 3 : (1947) 2 MLJ 511), Katragadda China Anjaneyulu & Anr. Vs. Kattragadda China Ramayya & Ors. - (AIR 1965 A.P. 177 : 1965 1 An.L.T. 149(Full Bench)). The view taken by the Privy Council was cited with approval before this Court in The State of Punjab Vs. Bua Das Kaushal (1970) 3 SCC 656. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had through out been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be

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allowed to be urged.

¶81

Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd. Hanifa (Dead) by Lrs. & Ors. (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal (AIR 1964 SC 1810 : (1964) 7 SCR 831), placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council & Anr. ((1887-88) 15 Indian Appeals 186 : ILR 16 Cal. 173), pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.

¶82

That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. Reference may be had to Pritam Kaur w/o S. Mukand Singh Vs. State of Pepsu and Ors. (AIR 1963 Punjab 9 (Full Bench) : 64 Punj.L.R. 782 (FB) )

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and Rajani Kumar Mitra & Ors. Vs. Ajmaddin Bhuiya (AIR 1929 Calcutta 163 : 48 Cal.L.J 577), and we find ourselves in agreement with the view taken therein on this point. The Privy Council decision in Sha Shivraj Gopalji Vs. Edappakath Ayissa Bi & Ors. (AIR 1949 Privy Council 302 : (1949) 2 MLJ 493), appears to have taken a different view but that is not so. The plea of res judicata was raised in the Trial Court, however, it was not pressed but it was sought to be reiterated at the stage of second appeal. Their Lordships held that being a pure plea in law it was available to the appellant for being raised. Their Lordships were also of the opinion that in the facts of that case, apart from the principle of res judicata, it was unfair to renew the same plaint in fresh proceedings. The Privy Council decision is distinguishable.

¶85

Reverting back to the facts of the present case, admittedly the plea as to res judicata was not taken in the Trial Court and the First Appellate Court by raising necessary pleadings. In the First Appellate Court the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor-in-title was a party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by the series of documents but the previous judgment which related to a part of this very suit property had also upheld his predecessor's title which emboldened his case. The respondent thereat, apprised of the documents, did not still choose to raise the plea of res judicata. The High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and decided in the previous suit. The fact remains that the earlier suit was confined to a small portion of the entire property now in suit and a decision as to a specified part of the property could not have necessarily constituted res judicata for the entire property, which was now the subject matter of litigation.

¶86

We cannot resist observing that if at all the plea of res judicata was to be availed and applied then that should have been for the benefit of the plaintiff inasmuch as his predecessor-in-title had succeeded in proving his title to part of the property in the earlier suit. We fail to understand how the judgment in the previous suit can in any way help the defendant-respondent in the present proceedings. We are clearly of the opinion that the plea of res judicata has neither been raised nor proved. There is no res judicata. The issue as to title was rightly

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determined by the Courts below on the basis of evidence adduced in this case. That finding has to be restored."

¶89

By relying upon the above decision of the Apex Court, the learned Senior Counsel appearing for the respondents/defendants submitted that in the absence of pleading in the earlier proceedings and in the absence of any issues having been framed by the trial Court, the plea of res-judicata cannot be raised by the appellant/plaintiff in the present appeals. To lend support to this submission, the learned Senior counsel appearing for the respondents/defendants also relied on a decision of the Supreme Court in the case of Gurbax Singh Vs. Bhooralal, reported in AIR 1964 SC 1810.

¶90

Further, the learned Senior Counsel appearing for the respondents/ defendants submitted that the earlier suit in O.S.No.1453 of 1980 was filed by M/s.Selvam Financier as against Raghunatha Chettiar and his wife Saraswathi for recovery of amounts due by them in their personal capacity. In the said suit, a Garnishee application in I.A.No.1167 of 1980 in O.S.No.1453 of 1980 was filed seeking attachment of 30% interest of Raghunatha Chettiar in the partnership firm M/s. Raja Theatres. The said Raghunatha Chettiar and his wife Saraswathi remained ex-parte and the firm M/s. Raja Theatres defended the Garnishee application relying on the family arrangement, dated 01.03.1979 (Ex.A-4) and Form-V (Ex.A-21) under the Indian Partnership Act, which was executed by the said Raghunatha Chettiar, which records the retirement of the said Raghunatha Chettiar. Form-A (Ex.A-31) also shows that the said Raghunatha Chettiar ceased to be a partner from 31.12.1978. It is also contended by the learned Senior Counsel appearing for the respondents/defendants that the letter dated 01.03.1979 (Letter of retirement addressed by Raghunatha Chettiar marked as Ex.A19) was not brought to the notice of the Division Bench of this Court in A.A.O. (CMA).No.78 of 1982. Further, the appellant has not disputed the truth and genuineness of the letter dated 01.03.1979 in his pleading in O.S.No.684 of 2007, which was filed much later than O.S.No.268 of 2004, wherein the original of the letter dated 01.03.1979 was marked as Ex.B-1 therein. The appellant has produced the photocopy of the letter dated 01.03.1979 as Ex.A-19 and had deposed that he shall send the said document for expert opinion to prove and establish that the signature is not that of Raghunatha Chettiar. However, the appellant did not take any steps to send the said document for expert opinion in the suit in O.S.No.684 of 2007 and had marked the photocopy as Ex.A-19. The respondents/defendants have produced the certified copy of the said letter dated 01.03.1979

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as Ex.B-14. Thus, it is the submission of the learned Senior Counsel appearing for the respondents/ defendants that the appellant/plaintiff has no locus-standi to dispute the truth and genuineness of the documents Ex.A-19 = Ex.B-14, without taking earnest steps as contended in his deposition.

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It is the further contention of the learned Senior Counsel appearing for the respondents/defendants that a Division Bench of this Court, in the judgment in A.A.O.(C.M.A.).No.78 of 1982, dated 01.02.1991 - reported in 1991 (1) MLJ 346, (M/s.Raja Theatres Vs. M/s.Selvam Financiers), which was marked as Ex.A-23, had confirmed the Garnishee order only on the ground that there was no notice of retirement as contemplated under Section 32(1)(c) of the Indian Partnership Act. It was held by the Division Bench in the said Ex.A-23/judgment that Section 32(1)(c) of Indian Partnership Act provides that a partner may retire with the consent of all other partners and in accordance with the express agreement with the partners or where the partnership is at will, of his intention to retire. It was further observed by the Division Bench that there was no express agreement by the partners with regard to the retirement of the said Raghunatha Chettiar and there was no consent of all the other partners for the retirement, as a result, there was no notice in writing expressing his intention of retirement as contemplated under the Indian Partnership Act. Admittedly, such a notice as contemplated under Section 32(1)(c) of the said Act was not given by the retiring partner to the other partners of the firm. In such circumstances, the Division Bench in the said Judgment/Ex.A-23, observed that the case of the second respondent that the said Raghunatha Chettiar had retired from M/s.Raja Theatres with effect from 31.12.1978, cannot be true and valid in law. However, in the present proceedings, Ex.A-19, dated 01.03.1979, which is in compliance with Section 32(1)(c) of the Act, had been filed. Ex.A-19 is the letter written by Raghunatha Chettiar to Viswanatha Chettiar, stating that he has resigned from the partnership firm and that he will not be responsible for any transaction taking place after 31.12.1978. Further, the Division Bench of this Court in the said C.M.A.No.78 of 1982, was only looking at protecting the interest of the third party-creditor, namely M/s.Selvam Financiers. Moreover, Raghunatha Chettiar has also not appeared in the said proceedings. Therefore, the wilful absence of the said Raghunatha Chettiar contributed to such decision, namely that there was no express agreement between the partners with regard to the retirement of Raghunatha Chettiar. Therefore, the learned Senior Counsel appearing for the respondents/defendants submitted that the plea of res-judicata cannot be raised by the appellant in these appeals. In support of this contention, he relied on a decision of the Supreme Court in the case of Mahboob Sahab Vs. Syed Ismail, reported in 1995 (3) SCC 693. By placing

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reliance on the above judgment, the learned Senior Counsel appearing for the respondents/defendants submitted that, in the earlier case filed by M/s.Selvam Financiers in O.S.No.1543 of 1990, Raghunatha Chettiar remained ex-parte and had not taken any stand at all and there was no conflict of interest between the respondents and Raghunatha Chettiar. The question of such a conflict being decided in the earlier proceedings does not arise in this case. The learned Senior Counsel appearing for the respondents/defendants further submitted that in the family arrangement between the parties, the properties were divided into A and B schedule properties. The A-Schedule properties consisted of four items and they were allotted to Viswanatha Chettiar and B-schedule properties consisted of two items and they were allotted to Raghunatha Chettiar. The said Raghunatha Chettiar on the strength of the ownership obtained through the family arrangement dated 01.03.1979 (Ex.A-4) sold all the properties allotted to him under B-schedule properties to third parties under Exs.B-40 to B-44. After having sold all the properties allotted to him under the family arrangement, the appellant now cannot turn around and resile on another part of document in which he resigned from the firm. It is the further submission of the learned Senior Counsel appearing for the respondents/defendants that it is settled law that he who accepts a benefit under a deed or instrument, must adopt the whole contents of the instrument and law does not permit a person to approbate or reprobate. Further, a person cannot accept and reject the same instrument and cannot, at one time, say that a transaction is valid and obtain advantage, and thereafter, turn around and say it is void for securing some other advantage. The doctrine of approbate and reprobate is a personal bar on the appellant for claiming any share in the suit property. To support this contention, the learned Senior Counsel appearing for the respondents/defendants relied on the following decisions of the Supreme Court: (i) AIR 1965 SC 241: (C.Beepathuma and others Vs. Velasari Shankararnarayana Kadambolithaya and others, (ii) AIR 1965 SC 1216 (Commissioner Of Income-Tax, Vs. V.Mr.P.Firm, Muar), (iii) 1976 (2) SCC 416 (Bhagat Ram Batra Vs. Union of India) and (iv) 1992 (4) SCC 683 (R.N.Gosain Vs. Yashpal Dhir).

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That apart, the learned Senior Counsel appearing for the respondents/ defendants also submitted that a family arrangement is to be treated differently from any other commercial settlement, and, as, such settlement, in the eye of law, ensures peace and goodwill among the family members. Such family settlements generally meet with the approval of the Courts. Such settlements are governed by a special equity principle, where the terms are fair and bona-fide, taking into account the well-being of the family. In support of this proposition, the learned Senior Counsel appearing for the

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respondents/defendants relied on the following judgments of the Supreme Court: (i) 2006 (4) SCC 658 (Hari Shankar Singhania Vs. Gaur Hari Singhania), (ii) 2019 (6) SCC 409 (Thulasidhara Vs. Narayanappa), (iii) 1973 (2) SCC 312 (S.Shanmugam Pillai Vs. K.Shanmugam Pillai) and (iv) 2016 (8) SCC 705 (Subraya M.N. Vs. Vittala).

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Further, the learned Senior Counsel appearing for the respondents submitted that the appellant has played fraud on the Court by producing fabricated documents. The appellant filed a photocopy of a letter Ex.A-15 alleged to have been addressed by Raju Chettiar and another, stating that the suit schedule property belongs to Viswanatha Chettiar and Raghunatha Chettiar. The stamp paper on which the said letter is typed bears the date 30.12.1964 and the number in the stamp paper is 9380. This document is fabricated. The respondents have filed Ex.B-10 (original partnership deed, dated 30.12.1964 entered into between Raju Chettiar, Pattabirama Chettiar, Damodaran, Baskaran, Indrani and Saraswathi), which is typed on the stamp paper dated 30.12.1964 and the stamp paper bears the number 9380. The stamp paper on which Ex.B-10 has been executed, was purchased on 30.12.1964 and bears the number 9380. It is apparent that the appellant has fabricated Ex.A-15 by superimposing the contents contained in Ex.A-15 on a photocopy of the stamp paper bearing number 9380. The appellant himself has marked a photocopy of Ex.B-10 = Ex.A-17, which is the true photocopy of Ex.B-10. This shows that Ex.A-15 had been fabricated by the appellant and the contents contained in Ex.A15 had been superimposed to deceive the Court as though the suit property is the personal property of Raghunatha Chettiar and Viswanatha Chettiar. Further, the appellant has added page No.7 of Ex.A-17, which again contains the letter alleged to have been addressed by Raju Chettiar stating that the suit property belongs to Viswanatha Chettiar and Raghunatha Chettiar. This letter is separately marked as Ex.A-32 during cross-examination of the appellant. Yet another act of fabrication and forgery is revealed in page No.7 of Ex.A-17 marked as Ex.A-32. The stamp paper on which Ex.A-32 is marked, was purchased on 30.12.1972 and the stamp paper bears the number 10360. The contents in page No.7 of Ex.A-17 had been superimposed as though it is a letter by Raju Chettiar, which will be obvious when Ex.A-18 is looked into. Further, Ex.A-18 is a photocopy of the reconstitution deed entered into on 01.01.1973 by Viswanatha Chettiar, Raghunatha Chettiar, Ravindranath, Sekar and Baskaran. The photocopy of Ex.A-18 was produced by the appellant himself. The first page of the stamp paper in Ex.A-17 and also Ex.A-18, had been used to fabricate Ex.A-15 and Ex.A-32 by superimposing the same contents. In the above scenario, the oral evidence, both in chief and cross-examination of the appellant shows the fabrication and superimposing done by the appellant to play

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fraud upon the Court to make it as if the suit property belongs to Viswanatha Chettiar and Raghunatha Chettiar and it is not the property of the partnership firm-M/s.Raja Theatre. Thus, for all the above reasons, the learned Senior Counsel appearing for the respondents/defendants prayed for dismissal of the appeals.

¶102

By way of reply, the learned counsel for the appellant/plaintiff submitted that the partnership firm-M/s.Raja Theatres was a party to the proceedings in I.A.No.1167 of 1980 in O.S.No.1453 of 1980 and also C.M.A.No.78 of 1982. It is the contention of the appellant/plaintiff that the letter dated 01.03.1979 was not placed on record before Court and therefore, non-production of the document in the said suit, creates suspicion in the case of the respondents. Had the said letter been true and genuine, the second respondent-M/s.Raja Theates would have placed this letter on record in the earlier proceedings. Further, Form-V is prescribed under Rule 4 of the Partnership Rules and Section 63(1) of the Indian Partnership Act mandates a change in the constitution of the firm to be notified to the Registrar of Firms. Neither Form-A under Rule 4, nor Section 63(1) of the Indian Partnership Act insists on the signature of the outgoing partners. In this context, the learned counsel for the appellant/plaintiff relied on a decision of this Court in the case of M/s.Jeevandas Laljee and son Vs. State of Tamil Nadu, reported in 2008 (1) CTC 596. In the instant case, the signature in the document would create a doubt. None of the procedures prescribed in law nor the accounting standards were made for the alleged retirement of Raghunatha Chettiar. Firstly, he did not retire and the consequent procedures had not been followed.

¶103

With regard to the family arrangement dated 01.03.1979 entered into between the parties, the learned counsel for the appellant/plaintiff submitted that the said family arrangement does not satisfy the ingredients required for a family arrangement. The doctrine of approbate and reprobate cannot be applied in this case. It is settled principle that the doctrine of approbate and reprobate is applied to ensure equity and not to violate the principles of what is right, and of good conscience. In this regard, the learned counsel appearing for the appellant/plaintiff relied on a decision of the Supreme Court in the case of State of Punjab and others Vs. Dhanjit Singh Sandhu, reported in AIR 2014 SC 3004.

¶104

The learned counsel for the appellant/plaintiff further submitted that the rule of approbate and reprobate will not apply to the transactions in the case on hand, i.e. dealing with the ancestral properties and another being dealing with the partnership firm. A distinction had to be drawn in the above said two transactions and also the impact of such transactions

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on the said Raghunatha Chettiar. The rule of equity prevails over the rule of approbate and reprobate. Further, the doctrine of severability had to be applied to the family arrangement dated 01.03.1979 to scrap out the illegal parts of it and legalise the remaining part of the arrangement. Moreover, the doctrine of blue pencil or the doctrine of severability can be applied to contracts or agreements to separate the legal and offending parts. On this aspect, the learned counsel for the appellant/plaintiff relied on a decision of the Supreme Court in the case of Shin Satellite Public Co. Ltd. Vs. Jain Studios Ltd., reported in 2006 (2) SCC 628. Further, by using the blue pencil rule, the family arrangement dated 01.03.1979 can be severed and only that part which deals with the ancestral property(ies) is to be given effect to. Furthermore, the learned counsel for the appellant/plaintiff submitted that in the instant case, so far as the relinquishment of share of the properties is concerned, when the recitals/contents in the family arrangement clearly show that a separate document has to be taken by executing a release deed, which has not been done within 30 days as stated in the said family arrangement, that portion of the document/family arrangement cannot be given effect to, and hence, the question of the applicability of rule of approbate and reprobate does not arise. Thus, the learned counsel for the appellant/plaintiff prayed for allowing the present appeals.

¶107

Keeping in mind the above submissions made by the learned counsel appearing for the parties, we have given our anxious consideration to the same and perused the materials available on record.

¶108

As we have dealt with the factual matrix of the case in detail as above, we are refraining ourselves from reiterating the same any further in these appeals. However, for the purpose of disposal of these appeals, certain facts which are absolutely germane and necessary alone will be reiterated and discussed hereunder.

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In the light of the submissions made by the counsel on either sides, the following points emerge for our consideration to dispose of both these appeals :

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(i) Whether the defence taken by the respondents/defendants that the said Raghunatha Chettiar has retired from the partnership firmM/s.Raja Theatres, is hit by the principle of resjudicata ?

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(ii) Whether the judgment and decree in O.S.No.684 of 2007 / A.S.No.92 of 2006, of the Court below, are liable to be set aside, on the ground that the alleged Will dated 16.09.2002

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executed by Raghunatha Chettiar in favour of the appellant/plaintiff, was not considered in proper perspective ?

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(iii) Whether the appellant/plaintiff has made out a case for partition of the suit propertyM/s.Raja Threatres ?

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(iv) Whether the appeals are liable to be dismissed on the ground of fraud played by the appellant/plaintiff ?

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Since the points 1 to 3 are inter-related, they are taken up together and answered hereinbelow.

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Points 1 to 3:- The plaintiff herein is the brother-inlaw of the said Raghunatha Chettiar. The said Raghunatha Chettiar and his brother Viswanatha Chettiar, and two sons of Viswanatha Chettiar (defendants 2 and 3) and Baskaran, were the partners of the suit property-Raja Theatres. According to the defendants, on 01.03.1979, a family arrangement was entered into between the said Raghunatha Chettiar and Viswanatha Chettiar, in which A-schedule properties consisting of four items, were allotted to Viswanatha Chettiar and Ravindranath and Sekar (defendants 2 and 3) and B-schedule properties, consisting of two items, were allotted to Raghunatha Chettiar. Insofar as M/s.Raja Theatres is concerned, there is a reference made in the recital of the family arrangement that the liability, both personal and individual, of Raghunatha Chettiar, was to be taken over by Viswanatha Chettiar and his sons and a release deed was to be executed within 30 days therefrom. But according to the learned counsel for the appellant/plaintiff, no such release deed was executed within 30 days and therefore, Raghunatha Chettiar is presumed to be continuing as a partner of the Firm. It is the further submission of the learned counsel for the appellant/plaintiff that, in the earlier Garnishee proceedings in I.A.No.1167 of 1980 in O.S.No.1453 of 1980, the partnership firm-M/s.Raja Theatre appeared through its partners and filed counter affidavit stating that Raghunatha Chettiar has relinquished his right in the partnership firm and thus, they have totally denied the factum of the said Raghunatha Chettiar as the partner in the firm. But the trial Court in the said I.A. in I.A.No.1167 of 1980, after examining the family arrangement, dated 01.03.1979, which was marked as Ex.B-1 therein, as well as by summoning the original of Form-A, dated 01.01.1973 maintained by the Registrar of Firms, Coimbatore, under Section 59 of the Indian Partnership Act, relating to the firm M/s.Raja Theatres at Coimbatore, as well as the original of Form No.V, dated 01.03.1979 with regard to the alteration in the constitution of the firm-M/s.Raja Theatres, as Exs.X-1 and X-2 respectively, came to the conclusion as follows:

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"24. Exhibit B-1 says that the 1st

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respondent Raghunathan Chettiar would be retiring from the firm by executing a proper document within thirty days from 1-3.1979 i.e., on or 1-4-1979. But exhibit X-2 says that the 1st respondent ceased to be a partner of the said firm from 31.12.1978. So the dates mentioned in Exhibit X-2 and B-1 about the retirement of the 1st respondent Reghunathan Chettiar cannot go together. ... ...."

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Thus, the trial Court in the said Garnishee proceedings, rejected the case of M/s. Raja Theatres that Raghunatha Chettiar had relinquished his right in the partnership firm. The said finding was also confirmed by this Court in the judgment rendered in C.M.A.No.78 of 1982 (marked as Ex.A-23). Therefore, according to the learned counsel for the appellant/plaintiff, the said finding would operate as 'res-judicata' to the defence raised by the defendants in this case.

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It is the further submission of the learned counsel for the appellant/ plaintiff that in the present proceedings, the defendants have produced the letter Ex.A-19 = Ex.B-14, dated 01.03.1979, apart from the family arrangementEx.A-4, dated 01.03.1979, to make it as if the said Raghunatha Chettiar has executed the said letter stating that he did not continue as a partner any longer from 31.12.1978. But the said letter was not produced in the earlier proceedings in O.S.No.1453 of 1980 initiated by M/s.Selvam Financiers, seeking for recovery of money from Raghunatha Chettiar. It is the further submission of the learned counsel for the appellant/plaintiff that in the said Garnishee proceedings initiated in O.S.No.1453 of 1980, M/s.Selvam Financiers had also sought for attachment of the properties by filing an application under Order 38 Rule 5 CPC by citing the said Raja Theatres as a Garnishee. Though the partnership firm had contested the said Garnishee application, they have not chosen to mark the letter dated 01.03.1979, i.e. Ex.A-19 = Ex.B-14 produced in the subject suit O.S.No.684 of 2007. Hence, it is the submission of the learned counsel for the appellant/plaintiff that had the letter been true, the same would have been produced in the earlier proceedings and the letter now marked as Ex.B-14 = Ex.A-19 is a fake document. The trial Court in the said Garnishee proceedings in O.S.No.1453 of 1980, after examining the document Ex.B-1 therein, dated 01.03.1979 (photostat copy of an unregistered agreement entered into between R.Viswanatha Chettiar and V.Ravindranath, V.Sekar and R.Raghunathan Chettiar) and the summoned documents therein, namely Ex.X-1 dated 01.01.1973

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(Original Form-A of the Register of Firms maintained by the Registrar of Firms at Coimbatore under Section 59 of the Indian Partnership Act relating to the firm Raja Theatres at Coimbatore (page 253) and Ex.X-2, dated 01.03.1979 (Original Form No.V, presented by one K.Kumar C/o Raja Threatres informing the alteration in the constitution of the firm Raja Theatres by the ceasing of R.Raghunathan as partner of the said firm), marked therein, had concluded that the dates mentioned in Ex.X-2 and Ex.B-1 therein about the retirement of the said Raghunatha Chettiar, cannot go together. Further, the said Raghunatha Chettiar, his brother Viswanatha Chettiar and the two sons of Viswanatha Chettiar, namely Ravindranath and Sekar and also Baskaran, were originally the partners of the firm Raja Theatres prior to 01.03.1979. The trial Court therein further observed that it is not in dispute that the said Baskaran is not a party

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to the agreement marked as Ex.B-1, which is an agreement dated 01.03.1979 executed between Viswanatha Chettiar and his two sons Ravindranath and Sekar as one part and the first respondent therein, namely Raghunatha Chettiar as second part. It was further observed that a reading of Ex.B-1 reveals that it is more in the nature of a family arrangement and it deals with immovable properties belonging to the first respondentRaghunatha Chettiar and his brother Viswanatha Chettiar and his two sons, as mentioned in the schedule attached to the agreement marked as Ex.B-1 therein. In other words, Ex.B-1 was primarily executed in respect of the immovable properties belonging to these four persons. The trial Court in that case further noted that the recitals of Ex.B-1 therein, i.e. the family arrangement, dated 01.03.1979, are executory in nature and in the absence of any record to show that the said Viswanatha Chettiar and his sons agreed to take over the liabilities of Raghunatha Chettiar, the trial Court refused to place any reliance on it. Ultimately, in that case, the trial Court concluded that the retirement of the first respondent-Raghunatha Chettiar from the partnership firm M/s.Raja Theatres, cannot be true and valid under law. Such a finding rendered by the Trial Court therein was also confirmed by this Court in the Judgment dated 01.02.1991 passed in C.M.A.No.78 of 1982. Therefore, according to the appellant/plaintiff, the principle of resjudicata, would apply to the case on hand. It is also the submission of the learned counsel for the appellant/plaintiff that the judgment rendered in C.M.A.No.78 of 1982 is under Order 38 Rule 5 read with Order 21 Rule 58 CPC and any dispute regarding the findings of the Court in an order passed under Order 21 Rule 58 CPC, had to be adjudicated only through an appeal against that order/judgment. In the absence of any appeal, this order would attain finality. In this regard, the learned counsel for the appellant/plaintiff placed reliance on the judgment of this Court in Southern Steelmet and Alloys Ltd. Vs. B.M.Steel reported in AIR 1978 Madras 270 wherein the

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Division Bench of this Court observed as follows (being extracted at the risk of repetition for the purpose of factual aspects of the present case):

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"We have already expressed the view that the adjudication referred to under Order 21 Rule 58 C.P. Code not being summary and as it is the intention of the Legislature under the amended Civil Procedure Code that it should be a decision as if rendered in a regular suit resulting in an appelable decree, we are of the view that a fuller examination of the rights of parties has to be held in the instant case after giving them adequate opportunity to place all relevant materials before the trial Court, so that it could ultimately decide and adjudicate on all questions including question relating to right, title or interest in the property attached which either directly or indirectly arise between the parties to the proceedings..."

¶129

Thus, the learned counsel for the appellant/plaintiff submitted that the decisions rendered in the earlier proceedings by the Court, would operate as res-judicata.

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But it is the submission of the learned Senior Counsel appearing for the respondents/defendants that in the earlier proceedings, the said Raghunatha Chettiar did not appear before the Court and M/s.Raja Theatres appeared and defended the case. The letter dated 01.03.1979 executed by Raghunatha Chettiar, which was marked as Ex.A-19 herein, was omitted to be produced before the Court. If it had been produced before the Court in the earlier proceedings, the said Raghunatha Chettiar's case would not have been accepted. In fact, the photocopy of the said letter was marked by the appellant herein himself in O.S.No.684 of 2007 as Ex.A-19. Though he has stated that the document has to be sent for expert opinion, but he did not do so. When that be so, it is totally incorrect to say that the said letter is a fake document. Furthermore, there is no pleading regarding Garnishee proceedings initiated in 1980 in the plaint filed in O.S. No. 684 of 2007 and the Court has also not framed any issue with regard to the plea of res-judicata. Further, the documents in the earlier proceedings were not marked as exhibits in the present case, and hence the plea of res-judicata will not apply, and as such, this Court can decide the issue afresh based on the available evidence.

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Keeping in mind the above submissions, we have also gone through the entire materials available on record and we find that in the plaint, absolutely there is no pleading in the present plaint with regard to the earlier proceedings which culminated in the Judgment rendered in C.M.A. No. 78 of 1982 dated 01.02.1991. Further, the Court has also not framed any specific issue in that regard in both the suits. The pleadings in Garnishee proceedings have also not been produced before the Court(s) below. In the above context, it would be appropriate to quote the judgment of the Supreme Court in the case of V.Rajeshwari Vs. T.C.Saravanabava, reported in 2004 (1) SCC 551, wherein the Apex Court held that a plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal. It is relevant to extract the following paragraphs of the said judgment of the Supreme Court:

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Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai Vs. Mohd. Hanifa - (1976) 4 SCC 780, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal - AIR 1964 SC 1810 : (1964) 7 SCR 831, placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council

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(1887-88) 15 Indian Appeals 186 : ILR 16 Cal. 173, pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.

¶136

Thus, the Supreme Court has held that to decide whether a Judgment rendered earlier would operate as a res judicata for the present case, it must be to first determine the nature of case between the parties in the earlier proceedings, evidence let in the earlier proceedings, the decision or adjudication made thereon by the court and the impact it would cause for determining the issues involved in the present proceedings. In this case, the plaintiff, in the plaint, failed to make a reference to the earlier proceedings. Had it been referred to by the plaintiff the defendants would have got an opportunity to rebut it and consequently, the trial Court would have framed an issue as regards the plea of res judicata. However, in the absence of any reference about the earlier proceedings in the plaint, the plaintiff is estopped from raising the plea of res judicata at the appellate stage. In such circumstances, the defendants are likely to proceed with their defence on an assumption that the plaintiff had waived the plea by his failure to raise the same. Therefore, in the instant case, absolutely, the defence of res-judicata is not available to the appellant, since he has failed to take the plea with regard to the earlier legal proceedings, in the plaint. This is more so that the Division Bench Judgment of this Court was marked as Ex.A-23 in the first suit namely O.S. No. 268 of 2004 filed by the plaintiff. However, in the second suit being O.S. No. 684 of 2007, for the reasons best known, the plaintiff did not plead as regards the impact the Judgment rendered in Ex.A23 would cause to the plea of the defendants. Thus, the plaintiff had miserably failed to raise the plea with regard to the adjudication made under Ex.A23 by this Court, while so, he cannot be permitted to raise the plea of res judicata at the stage of appeal. In fact, this Court, in the said judgment, has confirmed the Garnishee proceedings on the ground that there was no notice under Section 32(1)(c) of the Partnership Act. However, in the present proceedings, the letter executed by the said Raghunatha Chettiar expressing his intention to resign from the partnership firm, was marked as Ex.A-19 wherein it was expressly stated that he cannot be made liable or responsible for any transaction that may take place after 31.12.1978. As

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contended by the learned Senior Counsel appearing for the respondents/defendants, in the earlier proceedings, this Court has only protected the interest of the third party-creditor, namely M/s.Selvam Financiers, in which proceedings, the said Raghunatha Chettiar has wilfully absented himself. Therefore, as observed earlier, in the absence of any plea raised as well as in the absence of framing any issue in that regard, this Court, in the appellate stage, cannot look into the earlier proceedings. In this regard, reliance can be placed on the judgment of the Supreme Court in the case of Mahboob Sahab Vs. Syed Ismail, reported in 1995 (3) SCC 693, wherein the Apex Court held as follows:

¶139

"8. Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial court negatived the plea of res judicata as a preliminary issue. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the appellate court on its basis. Thereby the findings of the trial court that the decree in OS No.3/1/1951 does not operate as a res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in this case. It is true that under s. 11 C.P.C. when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co-defendant. But for application of this doctrine between codefendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit......"

¶140

In the instant case, the said Raghunatha Chettiar remained ex-parte in the earlier proceedings, and therefore, the conflict of interest between the parties does not arise. In other words, the first two conditions, namely that, (i) there must be a conflict of interest between the defendants concerned

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and (ii) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims, as specified in the above decision of the Supreme Court, are not fulfilled in this case. Hence, the contention raised by the appellant/plaintiff regarding res-judicata, does not arise. Consequently, the submission made by the learned counsel for the appellant/plaintiff in this regard by relying upon Order 21 Rule 58 CPC that any dispute regarding the findings of the Court in the order passed, will have to be adjudicated only in the appeal against that order/judgment of the trial Court and in the absence of filing of appeal, the order of the trial Court would attain finality and the same would operate as res-judicata, cannot be countenanced. Even otherwise, on a perusal of the documents marked in the Garnishee proceedings, it is clear that there is a categorical recital in the family arrangement, wherein Raghunatha Chettiar confirmed that he will not be responsible for the liabilities of the partnership firm and that all the liabilities of the firm would be taken over by Viswanathan Chettiar and his sons. It also refers to 30% share held in the partnership firm by Raghunatha Chettiar, which will also be taken over by the branch of Viswanatha Chettiar. The said family arrangement also confirms that under an oral arrangement, it was decided that 30% share will go to the branch of Viswanatha Chettiar and if for any reason, Viswanatha Chettiar requires a release by way of a document, it will have to be executed by Raghunatha Chettiar within thirty days. Therefore, it is clear that the letter of retirement dated 01.03.1979 was executed by Raghunatha Chettiar pursuant to the family arrangement. In any event, the family arrangement only records the earlier oral partition.

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The learned counsel for the plaintiff/appellant however contends that the judgment in C.M.A.No.78 of 1982 delivered by the Division Bench of this Court will have a binding effect and it was marked as Ex.A-23 as observed earlier. The letter dated 01.03.1979 with regard to the retirement of the said Raghunatha Chettiar, which was marked as Ex.A-19 in O.S.No.684 of 2007, was not brought to the notice of the Division Bench in C.M.A.No.78 of 1982. Moreover, this document was produced by the appellant himself in Ex.A-19. Though the learned counsel for the appellant/plaintiff has stated that expert opinion must be obtained with regard to genuineness of Ex.A-19, he has not taken any effort to send the said document for comparision of the signature to an expert. Further, the said letter had been marked as Ex.B-1 in the suit filed for rendition of accounts in O.S.No.268 of 2004. In the said suit, the appellant/plaintiff had not taken any specific stand which he had taken in the subsequent suit in O.S.No.684 of 2007 to the effect that the letter dated 01.03.1979 is a fake document. The said suit for rendition of accounts was filed showing the property(ies) as

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partnership property(ies) and having failed in the said suit, claiming the very same property(ies) as joint family property (ies), he has subsequently filed the suit for partition in O.S.No.684 of 2007, and therefore, he himself is not sure about the nature of the property(ies). Therefore, we are of the opinion that the appellant/plaintiff has not maintained any definite case for partition. Therefore, the question of resjudicata will not apply to the facts of the present case.

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Further, it is contended by the learned counsel for the appellant/plaintiff that the Appellate Court did not consider the alleged Will executed by the said Raghunatha Chettiar in favour of the appellant/plaintiff, even though the Will was produced in the Original Suit, which culminated in the First Appeal proceedings. On a perusal of the judgment of the First Appellate Court in A.S.No.92 of 2006, it is clear that the Court has dealt with the contentions raised by the appellant/plaintiff relating to the Will. The Will was alleged to have been executed by the said Raghunatha Chettiar in favour of the appellant/plaintiff. According to P.W.2, there were four attestors to the said Will. One of the attestors, namely, P.W.2 alone was examined in O.S.No.268 of 2004. P.W.2 identified the signature of the executor of the Will, namely Raghunatha Chettiar, at the time of registration of the document. P.W.2 is a resident of Karur and in his cross-examination, he has stated that he had come to Madurai and at the request of Raghunatha Chettiar, he attested the Will. He further deposed that after the execution of the Will, he left Madurai and went to Karur. He also deposed that he does not remember the date on which the said Raghunatha Chettiar executed the Will. P.W.2 does not depose that he returned again to Madurai for registration of the Will. In fact, the trial Court, in the suit, has dealt with the same and disbelieved the execution of the alleged Will by Raghunatha Chettiar in favour of the plaintiff. The relevant portion of the findings rendered by the trial Court in O.S.No.268 of 2004, is as follows:

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¶153

From the above evidence of the witness to the Will, it is seen that the trial Court in O.S.No.268 of 2004, has given a specific finding with regard to the suspicious circumstances surrounding the execution of the Will. The said findings, as extracted above, are confirmed by the first appellate Court in A.S.No.92 of 2006 by dismissing the suit in O.S.No.268 of 2004. Therefore, it cannot be gain-said that the Court below did not go into the correctness or otherwise of the Will in favour of the plaintiff.

¶154

It is contended on behalf of the respondents/defendants that Raghunatha Chettiar had acted upon the family arrangement dated 01.03.1979 (Ex.A-4) by selling all the properties allotted to him under the B-schedule to third parties under Ex.B-40 to Ex.B-44. The fact that Raghunatha Chettiar executed Exs. B40 to B44 is not disputed. Ex.B40 to B44 were executed in favour of third parties by Raghunatha Chettiar. The properties covered under Ex.B40 to B44 are the properties which were allotted to Raghunatha Chettiar in the Family Arrangement dated 01.03.1979, morefully set out in Schedule B thereof. In R.N.Gosain Vs. Yashpal Dhir reported in 1992 (4) SCC 683, the Honourable Suupreme Court held that the principle of approbate and reprobate is based on the doctrine of election which postulates that no party can accept and reject the same instrument and cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage. The same proposition is reiterated by the Honourable Supreme Court in C.Beepathuma and others Vs. Velasari Shankararnarayana Kadambolithaya and others reported in AIR 1965 SC 241 wherein it was held that where there is clear intention of the person from whom he derives one that he should not enjoy both. In the above context, the learned counsel for the appellant/plaintiff replied that the rule of approbate and reprobate is not applicable to the facts of the present case in respect of the family arrangement pertaining to two transactions, namely ancestral properties and partnership firm and distinction has to be made between the said two transactions. Therefore, according to him, the Doctrine of Severability has also to be made applicable to the case on hand, so as to scrap out the illegal parts of it and

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¶156

legalise the remaining part of the family arrangement. On this score, the learned counsel for the appellant made emphasis on the judgment of the Supreme Court in the case of Shin Satellite Public Co. Ltd. Vs. Jain Studios Ltd) (cited supra), reported in 2006 (2) SCC 628, wherein the Apex Court held a contract will rarely be totally illegal or void and certain parts of it may be entirely lawful in themselves. The question therefore arises whether the illegal or void parts may be separated or ‘severed’ from the contract and the rest of the contract enforced without them.

¶157

But keeping in mind the above submissions made on either side with regard to the applicability of the doctrine of approbate and reprobate, we find that the admittedly, the family settlement dated 01.03.1979 (Ex.A-4) had been acted upon by Raghunatha Chettiar which is evident from the fact that on the strength of the allotment of certain properties under Ex.A4, Raghunatha Chettiar had alienated some properties allotted to him to the third parties under Ex.B-40 to Ex.B-44 and it will preclude the plaintiff to claim the contrary. In the light of the fact that some of the properties which were allotted to Raghunatha Chettiar were sold under Ex.B40 to B44, the plaintiff cannot turn around and resile from his own admission with respect to the recitals contained in another part of the same document in which he resigns from the partnership firm. When the said Raghunatha Chettiar has acted upon the family arrangement by selling the properties allotted to him, the submissions made by the learned counsel for the appellant with respect to the Doctrine of Severability cannot be applied to the case on hand, that too after four decades after executing the sale deeds. Therefore, the submissions made by the learned counsel for the appellant/plaintiff with regard to the doctrine of severability does not arise in this case.

¶158

With regard to the sanctity of the family arrangement, it is to be stated that a family settlement which settles disputes within the family, should not be lightly interfered with by the Courts, especially when the settlement has been already acted upon by some members of the family. In this context, the following judgments were relied on by the learned Senior Counsel appearing for the respondents/defendants: This was the ratio laid down by the Honourable Supreme Court in the case of Hari Shankar Singhania Vs. Gaur Hari Singhania, reported in 2006 (4) SCC 658, wherein it has been held as follows:-

¶159

"23. ... ... It is a well-settled policy of law in the first instance, always to promote a settlement between the parties wherever possible and particularly

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in family disputes.

¶162

Family arrangement/family settlement

¶163

Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family.

¶164

In the instant case, the family arrangement dated 01.03.1979 Ex.A-4, had been acted upon by Raghunatha Chettiar by executing the letter dated 01.03.1979 (Ex.A-19 = Ex.B-14) and also by executing the sale deeds under Exs.B-40 to B-44. Therefore, at this point of time, the appellant/plaintiff is not permitted to approbate and reprobate his stand. The law does not permit a person to both approbate and reprobate. The principle of approbate and reprobate is based on the Doctrine of Election which postulates that no party can accept and reject the same instrument and that a person cannot say at one point of time that a transaction is valid, thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn around and say that it is void for the purpose of securing the other advantage. Furthermore, the plaintiff has to either succeed or fail on his own case and in the instant case, he had taken different stand with regard to the properties and he himself is not sure about his cause.

¶165

Point No.iv:- With regard to plea of fraud raised by the learned Senior Counsel appearing for the respondents/defendants, it is the reply of the learned counsel for the appellant/plaintiff that it is not in their pleading and therefore, the respondents/defendants are not entitled to raise the same. We also find that those alleged fraudulent documents were marked only during the course of trial. There is no chance for the defendants to allege fraud on the plaintiff. Be that as it may, in these appeals, we are not inclined to delve deep into the plea of fraud raised by the learned Senior counsel for the respondents. At the same time, we are only inclined to make an observation that some exhibits marked create a doubt on the conduct of the appellant. We therefore find some force in the submission made by the learned Senior Counsel appearing for the respondents that the appellant has committed fraud in the case.

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Therefore, on this ground also, the plaintiff is not entitled for the relief sought for. Accordingly, we answer the points that arise for consideration in these appeals against the plaintiff.

¶168

In the result, the Second Appeal as well as the Appeal Suit are liable to be dismissed. Accordingly, they are dismissed by confirming the Judgment and Decree dated 12.04.2016 passed in A.S.No.92 of 2006 and O.S.No.684 of 2007, both on the file of the I Additional District Court, Coimbatore. No costs. Consequently, C.M.P. is closed.

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Sd/Assistant Registrar(CS-III) //True copy// Sub Assistant Registrar rsh/cs To 1. The First Additional District Judge, Coimbatore. 2. The III Additional Subordinate Judge, Coimbatore. +1cc to Mr.V. Raghavachari, Advocate SR.No.81027 +2cc to M/s. Sarvabhauman Associates, Advocate SR.No.80623, 80624 S.A.No.823 of 2016 and A.S.No.578 of 2016 GJ II(CO) GMY(21/10/2019)

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R. Sundaram v. M/S Raja Theaters

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R. Sundaram v. M/S Raja Theaters

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