Misra, J. - (1.) This appeal is directed against the High Court order dated 26th September, 1989 in second appeal. The short question raised in this appeal, is, whether an order granting Succession Certificate under Section 373 of the Indian Succession Act, 1925 would operate as res judicata to the suit for partition filed in a Civil Court between the same parties.
(2.) The short facts are:the appellants are the defendants in suit No. 20 of 1974 which is filed by respondent No. 1 Velu Pillai since deceased claiming to be the only legal heir as brother to the estates of one Kizhangumvilayil died intestate. The suit was for declaration, partition and recovery of possession of the plaint schedule properties. The said respondent also filed O.P. No. 33 of 1974 in the same Court for obtaining Succession Certificate for receiving money from Life Insurance Corporation. The plaintiff case in the suit is that he along with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameshwaran Pillai and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other legal heir to succeed his estates, he is entitled to be declared as a legal heir to the estates of the said deceased.
(3.) Defendants-appellants contested the said case. They pleaded that plaintiff was only their uterine brother and thus was not entitled to succeed as legal heir. In fact, they are in possession of the suit property which could not be disturbed except by any legal heir. Both, the suits and the said proceeding under the Indian Succession Act were tried together and decided by a common judgment by the trial Court. The trial Court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parame-swaran Pillai had been dissolved. The presumption is that Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai. The plaintiff being the real brother of the deceased Thankappan Pillai is entitled to inherit his property. Thus the trial Court decreed the suit declaring the plaintiff as a sole heir and also allowed the said application O.P. No. 33 of 74 by granting the Succession Certificate to the plaintiff. The appellate Court set aside both the judgment of the trial Court in suit and grant of the Succession Certificate, holding that there was no valid marriage between Karthiyayani Amma and Parameswaran Pillai. The High Court in second appeal set aside this appellate Court judgment as findings were not supported by pleadings in the case hence remanded the case back for reconsideration. After remand, the appellate Court dismissed the appeal of the appellant by confirming the trial Court judgment. Thereafter the appellant filed the second appeal.;