Decided on September 13,1955

TADI SURAMMA Respondents

Referred Judgements :-



- (1.)This second appeal is brought by the 1st defendant in O.S. No. 359 of 1948, District Munsif's Court, Tanuku, from the judgment of the Subordinate Judge, Eluru, confirming that of the trial Court. The material facts may be set out in brief:- One Dwarampudi Venkanna settled all his properties on his two nephews the 1st defendant and the husband of the plaintiff under the original of Exhibit B-2 dated 14th June, 1935, reserving to himself a life-estate thereunder. On the death of the donor, the donees divided the properties (as now established). In some of the items conveyed under the settlement deed, the donees were given only a life-estate with a vested remainder to their issue. By a will, dated 11th January, 1942, (Exhibit A-1) Venkataswamy, the husband of the plaintiff, bequeathed all his properties including those settled upon him by his maternal uncle to his wife. This will was called into question by the 1st defendant in O.S. No. 49 of 1944 on the allegation that it was not a genuine one. The result of the litigation was against the 1st defendant. Nearly four years after this, the plaintiff filed a suit against the defendants for eviction, etc., alleging that the suit properties fell to the share of her husband at the family partition, that ever since they were in her possession and enjoyment and that on account of some grudge which he bore against the plaintiff, the 1st defendant trespassed on the land some time before the date of suit.
(2.)In answer to this claim, several defences were raised one of which (material to the present enquiry) was that her husband had no testamentary capacity in regard to the property in dispute as the settlement deed of Venkanna created only a life estate in the donees therein. The following issues were framed by the trial Judge :
(1) Whether the suit property fell to the share of the plaintiff's husband in partition ? (2) Whether the trespass is true ? (3) Whether according to the terms of the deed, dated 14th June, 1935) executed by D. Venkanna, is the plaintiff entitled to succeed to the suit properties after her husband's death ? (4) Whether the suit as framed is not maintainable ? (5) What is the correct extent of the suit land ? (6) Whether the suit is barred by Order 2, Rule 2, Civil Procedure Code ? (7) Whether the suit is bad for non-joinder of parties ? (8) To what relief is the plaintiff entitled ?

(3.)The trial Court found against the plaintiff on issues 2 and 3 and in favour of the plaintiff on the other issues. The effect of these findings should have been a dismissal of the suit. But, curiously enough, the learned District Munsif decreed the suit for the reason that "the 1st defendant is debarred from raising any such contention under section 11, Explanation 4,- Civil Procedure Code and that he is also estopped from raising such a contention after having obtained a decree against the plaintiff in S.C. No. 78/48 on the basis of Venkataswamy's will under which the plaintiff now claims the scheduled property" in spite of there being no pleading and no issue in this behalf. On appeal, the Subordinate Judge upheld the decision of the trial Court not only on the ground of res judicata but also on the ground of estoppel, the latter being based upon Exhibit A-5 a copy of the plaint filed by the 1st defendant in S.C. No. 78/48, while concurring with the opinion of the trial Court that the plaintiff was not entitled to the scheduled property as per the terms of the deed, dated 14th June, 1935.

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