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2002 DIGILAW 354 (MAD)

Sethukandiapan v. Jagadambal and others

2002-04-18

PRABHA SRIDEVAN

body2002
JUDGMENT: The fight is over the properties belonging to one Rangasamy Gounder (R.G) who died on 29.1.1977. The appellant in both the appeals is his son. The relationship of the parties need to be set down. The respondents 1 and 2 are the daughters of R.G. Rajammal, Ramu and Suguna, the respondents 3, 4 and 5 (A.S. No.884 of 1985) and respondents 4, 5 and 6 (A.S. No.886 of 1985) are the wife and children of the appellant. Meenakshi Ammal the wife of R.G. is the 14th respondent and 3rd respondent in A.S. Nos.884 and 886 of 1985 respectively. The other respondents are persons claiming to be in possession under alleged agreements. The dispute is really between R.G’s two daughters and the son. The reference to the parties in this judgment will be according to their array in the appeal. 2. The trouble started when the Respondents 1 and 2 claimed that their father had executed a Will Ex.A-1. What was bequeathed under the Will were the Pollachi property - a house property (item 1) and some agricultural properties (items 2 and 3). The respondents 1 and 2 filed O.S. No.55 of 1982 in respect of the Pollachi property for declaration and recovery of possession. The appellant filed O.S. No.62 of 1982 for partition and separate possession of all the properties. The learned Subordinate Judge at Udumalpet dismissed the appellant’s suit and decreed the respondent’s suit, leaving R.G’s son aggrieved. 3. Now, the background of the case is drawn: R.G. was allotted the properties, subject matter of O.S. No.62 of 1982 under a partition deed dated 2.6.1958 Ex.A-2. The properties are therefore ancestral properties. R.G. was managing the properties as Karta of the joint family consisting of himself and the appellant. He died on 29.1.1977 leaving behind the appellant, the respondents 1 and 2 and the wife Meenakshi Ammal. The respondents 1 and 2 claimed that R.G. executed a Will (Ex.A-1) on 12.7.1973 bequeathing to them a life estate in the Pollachi property and the absolute estate to their heirs and to the appellant, a life estate in the other properties and the absolute estate to the appellant’s heirs. The appellant filed O.S. No.437 of 1980 which was also for partition. The appellant filed O.S. No.437 of 1980 which was also for partition. In that suit, relief was asked for only in respect of the Pollachi property though the schedule listed the entire estate of R.G. The respondents 1 and 2 resisted the suit. Issues were framed. Thereafter, that suit was dismissed upon the appellant’s counsel reporting “no instructions”. On 8.12.1981, the appellant’s wife and children appear to have filed O.S. No.20 of 1982 for maintenance and for partition. This was also withdrawn without obtaining leave to file a fresh suit on the same cause of action. Thereafter, these two suits were filed. The right of R.G’s wife to a share in her husband’s property is not asserted seriously. The Will propounded by the respondents 1 and 2 also ignores R.G’s wife. 4. Several issues arise for consideration: (1) When the earlier suit was dismissed for default, is not the present suit barred under O.9, Rule 9, C.P.C.? (2) Whether the appellant can file the fresh suit or whether O.2, Rule 2, C.P.C. will be a bar in respect of the reliefs which he could have claimed in the other suits, but did not? (3) Whether the dismissal of the earlier suit will operate as res judicata? (4) Whether the testator can validly bequeath properties which he is not entitled to and can such a Will be acted upon? (5) Whether the Will can be held to be proved in accordance with the law without examining the attesting witness? 5. Mr.S.P.Subramanian, learned counsel for the appellant would submit that the testator cannot bequeath properties in which he has no right. According to the learned counsel, Wills were an unknown concept under ancient Hindu Law. After the enactment of Hindu Succession Act in 1956, any disposition of property under a Will by a Hindu can only be subject to Sec.30 of the Act. According to the learned counsel, Wills were an unknown concept under ancient Hindu Law. After the enactment of Hindu Succession Act in 1956, any disposition of property under a Will by a Hindu can only be subject to Sec.30 of the Act. He would submit that this suit was not barred by res judicata, because the earlier suit was not “heard and finally decided” by the Court, and that the trial Court erred in holding that the present suit was barred by O.9, Rule 9, C.P.C. According to the learned counsel, O.9, Rule 9, C.P.C. would bar the present suit only if the second suit is on the same cause of action whereas in the present case, the right to partition gives rise to a recurring cause of action and therefore, the bar under O.9, Rule 9, C.P.C. will not operate. Further, O.9, Rule 9, C.P.C. will not apply if the defendant also was not present on the date of hearing. Learned counsel further pointed out that the alleged Will was said to have been attested by one Dr.Hussain and Nachimuthu. While one of the witnesses has spoken of the death of Nachimuthu, there was no acceptable proof that Dr.Hussain was either not available for that he was dead and therefore, in the absence of examination of at least one of the attesting witnesses, the alleged Will was not proved. Further, the testator who was normally a resident of Varadanur appears to have executed the Will at Ansari Street. This gives room for the conclusion that the Will was executed where there was opportunity for the respondents 1 and 2 to exert their influence. No reason was given as to why the testator’s wife was totally excluded. Learned counsel submitted that the evidence of the scribe is not equivalent to the evidence of an attesting witness. The learned counsel submitted that the Court below grievously erred in holding that the Will Ex.A-1 should be construed as a gift and therefore, the testator could validly pass his title to the respondents 1 and 2. It was submitted that neither was Ex.A-1 stamped, nor registered and the recitals were clear that it was not a transfer inter vivos or in praesenti. It was a testamentary instrument and therefore, there cannot be any bequest contrary to the provisions of Sec.30. It was submitted that neither was Ex.A-1 stamped, nor registered and the recitals were clear that it was not a transfer inter vivos or in praesenti. It was a testamentary instrument and therefore, there cannot be any bequest contrary to the provisions of Sec.30. It was also submitted that the Will does not clarify why the only valuable property was given to the daughters and the less valuable property was given to the sons. Under this Will, the appellant whose right in the joint family property is absolute and equal to R.G. was given a life estate in the agricultural properties. This was an invalid curtailment of rights. The earlier suit was allowed to be dismissed only because there was a proposal for mediation at the instance of respondents 1 and 2. Having persuaded the appellant to believe that there would be a compromise, they retracted from this stand, thereby necessitating the present suit. It was also pointed out that though R.G. died in 1977, and the appellant alone was exercising propriety rights over the property, no effort was made by respondents 1 and 2 to propound the Will. For three years, they kept quiet. This itself would show that the Will is not genuine. The learned counsel also submitted that the fact that in the earlier suit, only the Pollachi property was included, cannot be construed as acceptance by the appellant of the bequest of the agricultural properties since in the same suit, the agricultural properties were also included in the schedule. In any event, even if the agricultural properties has not been included in the earlier suit, the appellant cannot be said to have “elected” to accept the Will. No question of election would risen when the bequest is something that the beneficiary would even otherwise be entitled to. It was submitted that acceptance of one of the bequests would stop the beneficiary from challenging any other bequest in favour of a third party only when the bequests were of properties in which the beneficiary had no right. No question of election would risen when the bequest is something that the beneficiary would even otherwise be entitled to. It was submitted that acceptance of one of the bequests would stop the beneficiary from challenging any other bequest in favour of a third party only when the bequests were of properties in which the beneficiary had no right. In this case, the bequest was in respect of the property to which the appellant had a birth right because the earlier suit was not “heard and finally decided” by the Court, and that the trial Court erred in holding that the present suit was barred by O.9, Rule 9, C.P.C. According to the learned counsel, O.9, Rule 9, C.P.C. would bar the present suit only if the second suit is on the same cause of action whereas in the present case, the right to partition gives rise to a recurring cause of action and therefore, the bar under O.9, Rule 9, C.P.C. will not operate. Further, O.9, Rule 9, C.P.C. will not apply if the defendant also was not present on the date of hearing. Learned counsel further pointed out that the alleged Will was said to have been attested by one Dr.Hussain and Nachimuthu. While one of the witnesses has spoken of the death of Nachimuthu, there was no acceptable proof that Dr.Hussain was either not available for that he was dead and therefore, in the absence of examination of at least one of the attesting witnesses, the alleged Will was not proved. Further, the testator who was normally a resident of Varadanur appears to have executed the Will at Ansari Street. This gives room for the conclusion that the Will was executed where there was opportunity for the respondents 1 and 2 to exert their influence. No reason was given as to why the testator’s wife was totally excluded. Learned counsel submitted that the evidence of the scribe is not equivalent to the evidence of an attesting witness. The learned counsel submitted that the Court below grievously erred in holding that the Will Ex.A-1 should be construed as a gift and therefore, the testator could validly pass his title to the respondents 1 and 2. It was submitted that neither was Ex.A-1 stamped, nor registered and the recitals were clear that it was not a transfer inter vivos or in praesenti. It was submitted that neither was Ex.A-1 stamped, nor registered and the recitals were clear that it was not a transfer inter vivos or in praesenti. It was a testamentary instrument and therefore, there cannot be any bequest contrary to the provisions of Sec.30. It was also submitted that the Will does not clarify why the only valuable property was given to the daughters and the less valuable property was given to the sons. Under this Will, the appellant whose right in the joint family property is absolute and equal to R.G. was given a life estate in the agricultural properties. This was an invalid curtailment of rights. The earlier suit was allowed to be dismissed only because there was a proposal for mediation at the instance of respondents 1 and 2. Having persuaded the appellant to believe that there would be a compromise, they retracted from this stand, thereby necessitating the present suit. It was also pointed out that though R.G. died in 1977, and the appellant alone was exercising propriety rights over the property, no effort was made by respondents 1 and 2 to propound the Will. For three years, they kept quiet. This itself would show that the Will is not genuine. The learned counsel also submitted that the fact that in the earlier suit, only the Pollachi property was included, cannot be construed as acceptance by the appellant of the bequest of the agricultural properties since in the same suit, the agricultural properties were also included in the schedule. In any event, even if the agricultural properties has not been included in the earlier suit, the appellant cannot be said to have “elected” to accept the Will. No question of election would risen when the bequest is something that the beneficiary would even otherwise be entitled to. It was submitted that acceptance of one of the bequests would stop the beneficiary from challenging any other bequest in favour of a third party only when the bequests were of properties in which the beneficiary had no right. In this case, the bequest was in respect of the property to which the appellant had a birth right and therefore, the doctrine of election would not operate. 6. The learned counsel relied on the following decisions, and prayed that the appeal should be allowed. In this case, the bequest was in respect of the property to which the appellant had a birth right and therefore, the doctrine of election would not operate. 6. The learned counsel relied on the following decisions, and prayed that the appeal should be allowed. (1) Madras State Bhoodan Yagna Board v. S.Athithan, (1973)1 M.L.J. 176 ; (2) Raghavamma v. Chenchamma, A.I.R. 1964 S.C. 136; (3) Valliammal Achi v. Nagappa Chettiar, (1968)1 S.C.J. 347: A.I.R. 1967 S.C. 1153; (4) V.R.Senthilnathan alias Valliappan v. Ramanathan alias Arunachalam, (1997)1 L.W. 565 ; (5) State of Maharashtra v. M/s.National Consumer Company, Bombay, (1996)2 S.C.J. 58 ; (6) Rajah V.Mahaswara Rao v. Rajah V.Rajeswara Rao, (1967)1 M.L.J. 175 ; (7) Rajammal v. Chinnathal, A.I.R. 1976 Mad. 4; (8) M.L.A. Jabbar Sahib v. M.V.V. Sastri, (1969)1 S.C.C. 573 ; (9) Venktataraman v. Mathibooshanam, (1996)1 M.L.J. 481 ; (10) Kahan Chand v. MT. Jawandi, A.I.R. 1923 Lah. 174; (11) Timmavva Dundappa v. Channavaa Apaya, A.I.R. 1948 Bom. 322; (12) Irudayam Ammal v. Salayath Mary, A.I.R. 1973 Mad. 421. 7. Mr.S.V. Jayaraman, learned senior counsel for the respondents would refer to paragraph 6 in the earlier plaint which is Ex.B-21. In this case, there is a clear reference to the Will and the recitals are almost identical to the present plaint and therefore, the appellant having allowed that suit to be dismissed for default, O.9, Rule 9, C.P.C. will be a bar. Neither had the appellant obtained leave of the Court to withdraw the suit and file a fresh one on the same cause of action, nor had the appellant filed any application to restore the suit that was dismissed for default. He also submitted that the present suit is also barred by O.2, Rule 9, C.P.C. since in the earlier suit, he could have asked for the same relief, but had not done so. The learned senior counsel also referred to O.S. No.55 of 1982 where for the first time, in the written statement, the appellant denied the genuineness of the Will. Even in his own suit in O.S. No.62 of 1982, the plaintiff had averred that his father “seemed” to have executed a Will. The word used is not “alleged”. So there is a tacit acceptance of the Will. Learned senior counsel also pointed out to the evidence of P.W.1 who is the appellant herein. Even in his own suit in O.S. No.62 of 1982, the plaintiff had averred that his father “seemed” to have executed a Will. The word used is not “alleged”. So there is a tacit acceptance of the Will. Learned senior counsel also pointed out to the evidence of P.W.1 who is the appellant herein. He had stated that he knew that the father had written a Will only later. While the witness has attacked that Will as invalid and that he has not accepted the Will, neither in the pleading, nor in the oral evidence has the appellant denied the execution of the Will by his father or even doubted it. 8. The learned senior counsel also referred to the evidence of P.W.1 where he had stated: Therefore, the appellant had taken the benefit under the Will and cannot now attack the Will. Though he has feebly said that his father was not in good health, and there was enmity between him and his father, the sisters namely the respondents got the Will which was executed by the father, this has not been proved. As regards the witnesses, the learned counsel would point out that P.W.1. admits that he knows Dr.Hussain. Therefore, nothing stopped him from showing to the Court that Dr.Hussain was alive. Learned Senior counsel submitted that in fact the appellant also says that he does not directly know that his father executed the Will under force, coercion or undue influence, but hat he has information from someone. This is not sufficient, to disprove the execution of the Will. Learned senior counsel also submits that if there was an effort to compromise the matter, which was the reason for the appellant’s non-prosecution of the earlier suit, the appellant has done precious little to prove it. In the evidence he has stated that one of the Panchayatars Velusamy Gounder is dead, Inspector Sivagurunathan is still alive. Since no effort is made to examine this person, the case of compromise cannot be accepted. Learned senior counsel would submit that the objection of the respondents to the plaintiff’s claim is only with regard to suit item No.1 which alone ws bequeathed under the Will which is suit schedule item B(1) and Schedule B(1) of Ex.A-1 the Will. According to the learned senior counsel, therefore, there was no justification to interfere in appeal. 9. Learned senior counsel would submit that the objection of the respondents to the plaintiff’s claim is only with regard to suit item No.1 which alone ws bequeathed under the Will which is suit schedule item B(1) and Schedule B(1) of Ex.A-1 the Will. According to the learned senior counsel, therefore, there was no justification to interfere in appeal. 9. The questions that arise in this appeal are regarding the validity of the Will and the effect of the previous proceedings. The plaint filed by the respondents proceeds on the basis that the property were joint family properties. This is what is stated in paragraph 12 of the plaint in O.S. No.55 of 1982: “The plaintiff states that the Will executed by their father is not liable to be impeached on any ground. It is valid and binding on the defendants 1 to 4. After Hindu Succession Act 25/26, a coparcener is entitled to dispose by Testamentary instrument, his share in family properties.” 10. After Hindu Succession Act 25/26, a Hindu is entitled to dispose by a testamentary instrument, his share in family properties. In the written statement the respondents have stated that the properties are ancestral joint family properties. So it follows that the appellant has half share in the entire joint family properties. While the father of the parties herein could have validly executed a gift of any specific identified properties, any Will or other testamentary disposition of a Hindu is governed by Sec.30 of the Hindu Succession Act. Sec.30 of the Hindu Succession Act lifts the bar on testamentary disposition of the undivided interest in joint family property. Therefore, the testator’s right to bequeath his share cannot be disputed. At the same time, the appellant is also entitled to his undivided share in the property. He can validly challenge the Will, to the extent it affects his rights. His right to alienate the joint family properties is not traceable to the Will, but to his own right as a member of the joint family. The doctrine of election also will not apply to this case where the appellant can be said to have elected to accept the Will. His right to alienate the joint family properties is not traceable to the Will, but to his own right as a member of the joint family. The doctrine of election also will not apply to this case where the appellant can be said to have elected to accept the Will. In Valliammal Achi v. Nagappa Chettiar, (1968)1 S.C.J. 347: A.I.R. 1967 S.C. 1153, it was held that election only arises where the legatee derives some benefit from the Will to which he would not be entitled to, except for the Will and it was held that the father in the Mithaksharea family has a very limited right to make a Will and there is no question of the son being bound by the election, since the right which the son takes at his birth in ancestral property is wholly independent of his father. 11. The crucial document viz., the Will is Ex.A-1. It is dated 11.12.1973. Under the Will, the testator has bequeathed certain specific properties to the appellant and the Pollachi property to respondents 1 and 2, the appellant’s sisters. This is no transfer in praesenti and it is clear that it is a Will. The trial Court’s finding that it can be treated as a gift is clearly erroneous. The recitals are clear and categoric. The document is to come into effect after R.G’s lifetime, he reserves his right to revoke it any time. The respondents also claim their right only as beneficiaries under a Will. There is no justification to treat it as a gift. It is also not a family arrangement since only the testator and no one else has signed Ex.A-1. The testator has given a life estate items 2 and 3 to the appellant restricting his right of alienation, the absolute estate to be taken by the appellant’s heirs. Similarly, item 1 was given to the respondents 1 and 2 to be taken by them for their life time without power of alienation, the absolute estate a joint to the Santhathis of respondents 1 and 2. The Will is attested by one Dr.Hussain and one Nachimuthu. It is written by D.W.4 Ranganathan. It is said that the attesting witnesses have not been examined and therefore, the Will has not been proved in accordance with law. The Will is attested by one Dr.Hussain and one Nachimuthu. It is written by D.W.4 Ranganathan. It is said that the attesting witnesses have not been examined and therefore, the Will has not been proved in accordance with law. Sec.68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. In this case, the evidence is that the two attesting witnesses are dead. The respondents take shelter under Sec.69 of the Evidence Act, which provides that if no such attesting witness can be found the document must be proved by showing that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. In this case, there has been no deal of the execution of the Will as already pointed out in the previous paragraphs. D.W.1 is one of the respondents has stated in her evidence that the handwriting in the Will is her father’s and that he was quite healthy at the time of execution of the Will. D.W.2 is the Sub-Registrar at the time of registration of Ex.A-1. In his evidence, he has stated that the testator answered the questions put to him at the time of registration and that he was quite healthy. In cross-examination, he has stated that the questions that were asked were routine questions and there are no proof that he asked the questions. He has denied the suggestion that he did not get the signature of the testator or the witnesses. D.W.3 is a relation of Nachimuthu who is one of the attesting witnesses. He has clearly identified the signature of the said Nachimuthu and he has also stated that he has seen the signature previously. He has also stated that he is identifying Nachimuthu’s signature from out of his memory and that he has seen Nachimuthu’s signatures in bills. One sentence in the evidence was pointed out by the learned counsel for the appellant to show that this should be construed to mean that only while giving evidence had the witness ever seen Nachimuthu’s signature. I do not think that, that construction of the evidence is correct. One sentence in the evidence was pointed out by the learned counsel for the appellant to show that this should be construed to mean that only while giving evidence had the witness ever seen Nachimuthu’s signature. I do not think that, that construction of the evidence is correct. When his evidence is taken as a whole, this can only mean that this is the first time he is seeing Nachimuthu’s signature in the Will. D.W.4 is the scribe of Ex.A-1 and he has stated that he wrote Ex.A-1 and that the recitals of Ex.A-1 were written according to the testator’s dictation and that he has signed the document in favour of him and in front of the attesting witnesses and that both of them signed in the presence of each other and in the presence of the testator. He has stated that the other attesting witness namely Dr.Hussain, a dentist is also dead. He has also clearly stated that Ex.A-1 was not registered on the same day. It is seen that Ex.A-1 was registered on 21.12.1973 whereas it was executed on 11.12.1973. D.W.3’s evidence that his relative Nachimuthu the attesting witness used to write the initial ‘R’ in English is proved to be accurate on a perusal of the Ex.A-1. It has been held that the attestation of document has a purpose namely it limits the areas of controversy regarding the execution of the document and the attendant circumstances. The difficulty that might arise in case the attesting witnesses are not available is taken care of by Sec.69 of the Evidence Act. In this case, the appellant himself has not challenged the execution in categoric terms. His grievance is that his father’s right to execute a Will is subject to the provisions of Sec.30 of the Hindu Succession Act. The feeble attempt that has been made regarding undue influence or coercion has not been sustained. The evidence regarding the death of the two attesting witnesses has not been dislodged. D.W.3, the cousin of Nachimuthu, the attesting witness has given evidence that Nachimuthu is dead and that he recognizes his signature. With regard to the other witness, the scribe D.W.4 says that Dr.Hussain is dead. It is his evident that Dr.Hussain is a well known person and P.W.1 also claims to know him. D.W.3, the cousin of Nachimuthu, the attesting witness has given evidence that Nachimuthu is dead and that he recognizes his signature. With regard to the other witness, the scribe D.W.4 says that Dr.Hussain is dead. It is his evident that Dr.Hussain is a well known person and P.W.1 also claims to know him. If so, it should have been easy for P.W.1 to summon Dr.Hussain as a witness to prove this statement as false. But he has not done that. Therefore, this Court has to accept the case of the respondents that the two attesting witnesses are dead. In the absence of the attesting witnesses, the respondents have done their best to prove the execution of Ex.A-1. They have examined the Sub-Registrar. They have examined the scribe and they have examined one person who testifies that the attestation of one attesting witness is in his handwriting. I am of the opinion the respondents have discharged their duty to prove that Ex.A-1 has been executed by Rangasamy Gounder. 12. (a) In Rajammal v. Chinnathal, A.I.R. 1976 Mad. 4, it was held that the document that is required by law to be attested cannot be admitted in evidence unless one attesting witness at least has been called for proving the execution of the document if alive. In this case, it has been proved that both of them are dead. (b) In M.L.A. Jabbar Sahib v. M.V.V. Sastri, (1969)1 S.C.C. 573 , it was held that the signature of the Registering Officer in discharge of his duty under Sec.59 of the Indian Registration Act cannot be held to be for the purpose of attesting it. (c) In Kahan Chand v. MT. Jawandi, A.I.R. 1923 Lah. 174, it was held that where the handwriting of the witnesses in a Will was identified, it will not prove the execution by the testator. But that was a case in which there were as many as 8 attesting witnesses and the propounders of the Will were unable to produce them in Court. This does not apply to this case. (d) Timmavva Doundappa v. Channavaa Apaya, A.I.R. 1948 Bom. 322 is again for the proposition that the endorsement of the Sub-Registrar or the signature of identifying witnesses cannot be treated as the signature of attesting witnesses. The respondents do not claim that the signature of the Sub-Registrar is attestation. This does not apply to this case. (d) Timmavva Doundappa v. Channavaa Apaya, A.I.R. 1948 Bom. 322 is again for the proposition that the endorsement of the Sub-Registrar or the signature of identifying witnesses cannot be treated as the signature of attesting witnesses. The respondents do not claim that the signature of the Sub-Registrar is attestation. All that they say is that they have done everything within their power to prove the due execution of the Will. (e) In Irudayam Ammal v. Salayath Mary, A.I.R. 1973 Mad. 421, the Division Bench of this Court held that if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of the Registering Officer under Sec.60 of the Registration Act is relevant for providing execution. In that case, the Will was executed in Burma and the scribe who was lawyer cannot throw any light. The attesting witnesses were dead and only the certified copy of the Will was available. There was also the evidence of D.W.1 a man living near the testator, who gives evidence that the attestors used to come to the testator’s residence in Burma. Tn that judgment, the Will was upheld. This comes to the aid of the respondents herein. (f) Madras State Bhoodan Yagna Board v. S.Athithan, (1973)1 M.L.J. 176 deals with a case of a gift by a manager of a Hindu joint family. It does not apply to this case. (g) In Thulasi Doss v. Nanda Rao, (2002)1 M.L.J. 85 , a Division Bench of this Court held that when one of the attesting witnesses’ signature is identified, it is more than enough to comply with the formality of proving the signature of the testator. (h) Venkataraman v. Mathibooshanam, (1996)1 M.L.J. 481 was referred to, to show that the document writer cannot be treated as attesting witness to prove execution. But there, the Will was held as not proved since in spite of opportunity, even secondary evidence had not been adduced on the side of the propounders of the Will to prove the same. This does not apply to this case. 13. R.G. died in 1977. It was pointed out that there was a time lapse between before the respondents came out with the Will, and for this reason Ex.A-1 must be disbelieved. This does not apply to this case. 13. R.G. died in 1977. It was pointed out that there was a time lapse between before the respondents came out with the Will, and for this reason Ex.A-1 must be disbelieved. But even in 1980, it is clear that the appellant was not taken by surprise that a Will had been executed. The averments in the earlier plaint show clearly that the appellant knew about the Will. So even if there is a time lapse, it is not fatal to the respondent’s case. 14. The alleged inequality in the comparative value of the bequests in favour of the appellant and his sisters is also not a relevant factor, in the absence of any other suspicious circumstances. Nor is the exclusion of the wife of R.G. from the Will very relevant when she herself has not attacked the Will, facts, there appears to have been some misunderstanding between R.G. and his wife on account of another woman in his life. This issue also cannot invalidate the Will. 15. From the decisions cited above and on the facts of the case, I am of the opinion that the Will is genuine. 16. Next, one has to examine the capacity of the testator to bequeath the property. Sec.30 of the Hindu Succession Act gives the Hindu the right to dispose by Will or other testamentary disposition, any property which is capable of being so disposed by him. The explanation to this Section shows that for the purpose of this Act, property capable of being disposed of by a Hindu would include the interest of a male Hindu in the Mithakshara co-parcenary property or the interest of a member of a Tarwad, Tavazhi etc. Therefore, what Rangasamy Gounder gave under the Will or can given under the Will is his interest in the joint family property. So, he could only dispose of under the Will his interest in the same. This interest is not a definite share, but the undivided share that extends over the entire property. There is no dispute that the properties are joint family properties. Therefore, the appellant and the testator, each had an undivided half share in all the properties. Until there is a partition valid in law, the right of each co-sharer extends over the entire property to the extent of his share. There is no dispute that the properties are joint family properties. Therefore, the appellant and the testator, each had an undivided half share in all the properties. Until there is a partition valid in law, the right of each co-sharer extends over the entire property to the extent of his share. The testator cannot allocate as his half share, a specific property to a particular person even if the value of the property is well within the value of the half share to which the testator is entitled to. The testator cannot divide by metes and bounds, his undivided share in the properties under the Will, and bequeath a specific item. Therefore, the testator has the right to bequeath his undivided half share in the Pollachi property to the respondents who will take it according to the terms of the Will namely a life estate, with the absolute estate vesting in their Santhathis. The remaining undivided half shares will be the appellant’s since that is his share as a member of the joint family along with his father. As regards the agricultural properties, here too, the bequest under the Will to the appellant will be only in respect of the father’s half share in these properties and the appellant shall take this half share which belonged to his father according to the terms of the Will which is a life estate with the absolute estate vesting in his Santhathis. The remaining undivided share which is the appellant’s own share as a member of the joint family property cannot be the subject matter of the Will and the appellant is entitled to deal with it as his absolute property. 17.Previous Proceedings: It is true that the same appellant had earlier filed a suit for partition. That was dismissed for default. The question raised was that, whether O.9, Rule 13, C.P.C. will not be a bar and whether the appellant not having asked for the entire relief in the first place, can now seek partition of all the property. 17.Previous Proceedings: It is true that the same appellant had earlier filed a suit for partition. That was dismissed for default. The question raised was that, whether O.9, Rule 13, C.P.C. will not be a bar and whether the appellant not having asked for the entire relief in the first place, can now seek partition of all the property. In the first suit that was filed which is marked as Ex.B-21, the recitals are almost the same as in the present suit namely O.S. No.62 of 1982, but in the prayer portion, partition was sought for only in respect of the suit ‘B’ Schedule property which is the property given to the respondents under the Will whereas the suit schedule property has included not only this property, but also the other properties that belong to Rangasamy Gounder. 18. The learned counsel for the appellant placed reliance on V.R.Senthilnathan alias Valliappan v. Ramanathan alias Arunachalam, (1997)1 L.W. 565 , in which a revision was filed against the order granting liberty to file a fresh suit on the same cause of action. The suit in question in that case was also a suit for partition and the learned Judge observed that the suit in question being one for partition, the cause of action is supposed to continue till actual partition is effected and jointness of the estate is disrupted. Therefore, in the peculiar circumstances of this case where it cannot be denied that the claim for partition gives rise to a recurring cause of action, the suit cannot be dismissed on the ground of bar of O.2, Rule 2 or O.9, Rule 9, C.P.C. 19. In Rajah V.Maheswara Rao v. Rajah V.Rajeswara Rao, (1967)1 M.L.J. 175 also,the plaintiff filed a suit for partition and when it was ripe for trial, he made an oral application to withdraw the suit with leave to file a fresh one. This was opposed by the defendant. The learned Judge held that, “So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is a recurring cause of action. Even if the plaintiff is not granted permission under O.23, Rule 1, C.P.C., he will nevertheless have a right to file a suit for partition at any time he pleases. Even if the plaintiff is not granted permission under O.23, Rule 1, C.P.C., he will nevertheless have a right to file a suit for partition at any time he pleases. In view of this obvious right of the plaintiff, it has to be held that the plaintiff is entitled, particularly in terms of O.23, Rule 1, C.P.C., to bring a fresh suit.” The above observation of the learned Judge that a plaintiff in a suit for partition has a right to file a fresh suit any time he pleases since it is a recurring cause of action will definitely come to the aid of the appellant in this case, especially in the particular facts and circumstances of the case. The first suit was allowed to be dismissed. Relief was claimed only against the Pollachi property and not against the other property. In State of Maharashtra v. M/s.National Consumer Company, Bombay, (1996)2 S.C.J. 58 , the Supreme Court dealt with the principles of res judicata and O.2, Rule 2, C.P.C. and held that both are based on the rule of law that a man shall not be twice vexed for one and the same cause of action and it was held that where the claim of the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit and the answer is in the affirmative, the rule will not apply. 20. The same reason given in Rajah V.Maheswara Rao v. Rajah V.Rajeswara Rao, (1967)1 M.L.J. 175 , that a right to partition is a recurring cause of action will come to the aid of the appellant with regard to the rule of bar under O.2, Rule 2, C.P.C. also. The appellant has the right to claim partition of his undivided share in the joint family property. The doctrine of res judicata also will not apply, because the former suit was not “heard and decided”. The appellant is entitled to a half share in both the ‘A’ schedule and ‘B’ schedule properties. The appellant is entitled to a half share in items 1, 2 and 3, and the respondents 1 and 2 are entitled to the half share in item 1 and the appellant is entitled to the other half share in items 2 and 3 as per the Will. 21. The appellant is entitled to a half share in items 1, 2 and 3, and the respondents 1 and 2 are entitled to the half share in item 1 and the appellant is entitled to the other half share in items 2 and 3 as per the Will. 21. The judgment and decree in O.S. No.62 of 1982 must be set aside insofar as it relates to item 1. A preliminary decree is granted in favour of the appellant declaring his half share in item 1 also. A.S. No.886 of 1985 is to that extent allowed. 22. As regards A.S. No.884 of 1985 arising out of O.S. No.55 of 1982, in view of my finding with regards to the appellant’s half share in item 1, the respondents shall be entitled for declaration and recovery of possession in respect of their half share. For the sake of clarity, it is repeated that the validity of the Will of Rangasamy Gounder is upheld to the extent of his interest in the suit ‘B’ schedule prepares 1, 2 and 3. Under this Will, the respondents 1 and 2 shall take half share in item 1 of the suit property as per the terms and conditions of the Will namely a life estate in favour of these respondents and the absolute estate to go to their Santhathis and the other half share shall be the appellant’s absolutely, since it is his undivided half share in the property. As regards suit ‘B’ Schedule items 2 and 3, the appellant is entitled to half share in these properties in his own absolute right and as regards the other half share, he takes it under the Will subject to the limitation of a life estate in his favour with the absolute estate to go to his Santhathis. 23. As regards the relief for possession, decree of the lower Court is modified to the extent that the appellant and the respondents 1 and 2 shall be entitled to recover possession subject to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and as regards mesne profits, the enquiry under O.20, Rule 12, C.P.C. shall be conducted and the mesne profits shall be determined as per the shares declared herein. The appeals are therefore allowed to this extent. No costs.