JUDGMENT : R.N. MANJULA, J. Prayer: First Appeal filed under Section 96 of CPC read with Order XLI Rule 1 of CPC and Order 4 of the Madras High Court A.S. Rules, praying to set aside the Decree and Judgment of the learned Additional District Judge, (Fast Track Court), Villupuram, in O.S. No. 30 of 2014 dated 05.04.2019 and to Decree the above Suit as prayed for. 1. This First Appeal has been filed challenging the Decree and Judgment dated 05.04.2019 passed by the learned Additional District Judge, (Fast Track Court), Villupuram in O.S. No. 30 of 2014. 2. The Appellant is the 7th plaintiff in the suit. The respondents 1 to 7 are the plaintiffs 1 to 6 and 8 and the respondents 8 to 14 are the defendants 1 to 7 in the suit. 3. The Suit in O.S. No. 30 of 2014 has been filed for the relief of partition and separate possession of 4/9th share in the suit schedule properties. The 1st and 2nd item of the suit schedule properties were purchased in the name of Mahalingam on 18.10.1956 and 02.12.1959 respectively, under the registered sale deed and the 3rd item of the suit schedule property was purchased in the name of his wife Aadhilakshmi under a registered sale deed on 19.03.1977. 4. The averments made by the Appellant and other plaintiffs and the defendants:- 4.1. The properties are the ancestral properties of Mahalingam. Though the sale deeds have been registered in his name, the sale proceeds have been derived from the ancestral properties of their grandfather Rubalingam. After the death of Rubalingam his son Mahalingam inherited the properties. Mahalingam had four sons and five daughters. The Appellant and 5 to 8 appellants are the children of one deceased Muthulakshmi, who was also a daughter of Mahalingam. 4.2. With regard to item No. 1 of the suit schedule properties, a Suit in O.S. No. 102 of 1994 was filed against Mahalingam and defendants 2 and 3. The Suit was filed by the 13th respondent/6th defendant on the basis of a sale agreement entered into between himself and Mahalingam in respect of the 1st item of the property. During the pendency of the said suit, Mahalingam died. On 16.03.2004, his legal heirs were brought on record. The Suit was filed by the 13th respondent/6th defendant on the basis of a sale agreement entered into between himself and Mahalingam in respect of the 1st item of the property. During the pendency of the said suit, Mahalingam died. On 16.03.2004, his legal heirs were brought on record. Since the mother of this Appellant died on 16.12.2001 itself, children of Muthulakshmi ought to have been impleaded as parties to O.S. No. 102 of 1994. The 13th respondent/6th defendant had wantonly avaoided to implead the legal representatives of the deceased Muthulakshmi. Hence, the decree passed in O.S. No. 102 of 1994 would not bind the appellant and his siblings. And hence, the plaintiffs have filed the suit for partition of their alleged 4/9th share in the suit property including the 1st item. 4.3. The contesting 13th respondent/6th defendant has filed a written statement by stating that this is a suit filed by the Appellant by colluding with the sons and daughters of Mahalingam in order to defeat the decree for specific performance granted in favour of the 13th respondent/6th defendant in O.S. No. 102 of 1994 in respect of the 1st item of the suit properties. Despite the children of the deceased Mahalingam knew well that Muthulakshmi had died, they did not inform the said fact to the trial Court. In fact, the 13th respondent/6th defendant had also filed an Appeal with regard to the disallowance of cost in O.S. No. 102 of 1994. In the said Appeal also Muthulakshmi was a party. The other defendants in O.S. No. 102 of 1994 have also filed an Appeal in A.S. No. 28 of 2007 by challenging the decree. Despite both Appeals were heard jointly, the death of Muthulakshmi was not informed even to the Appellate Court. Now, this Appellant along with his other siblings has filed this suit just in order to defeat the interest of the 13th respondent/6th defendant. This is a fraudulent Suit and hence, it has to be dismissed. 5. After perusing the pleadings, the learned Trial Judge has framed the following Issues:- 1. Whether the suit is barred by res-judicata? 2. Whether the decree in O.S. No. 102/1994 obtained fraudulently? 3. Whether the plaintiff is entitled for 4/9th share in suit property? 4. To what other relief the plaintiff is entitled for in O.S. No. 30/2014? 5. 5. After perusing the pleadings, the learned Trial Judge has framed the following Issues:- 1. Whether the suit is barred by res-judicata? 2. Whether the decree in O.S. No. 102/1994 obtained fraudulently? 3. Whether the plaintiff is entitled for 4/9th share in suit property? 4. To what other relief the plaintiff is entitled for in O.S. No. 30/2014? 5. To what other relief the plaintiff is entitled for in O.S. No. 94/2018? 6. The trial Court examined 2 witnesses as PW-1 and PW-2 and marked Exs.A1 to A11 on the side of the plaintiffs. On the side of the defendants 3 witnesses were examined as DW-1 to DW-3 and Exs.B1 to B26 were marked. 7. After hearing both the parties, the learned trial Judge has dismissed the Suit as against the 1st item of the suit schedule property and decreed the suit in respect of 2nd and 3rd items of the suit schedule properties by allotting 1/9 share in items 2 and 3. 8. The Appellant/7th plaintiff has preferred this Appeal by stating that the children of Muthulakshmi are entitled to 1/9 share in suit 1st item also. 9. Heard the arguments of the learned counsel for the Appellant and the learned counsel for the 13th respondent. 10. The learned counsel for the Appellant submitted that the Decree passed in O.S. No. 102 of 1994 has been obtained fraudulently by the 13th respondent/6th defendant by concealing the fact of death of Muthulakshmi (mother of the Appellant and plaintiffs 5, 6 and 8); even though the Decree has been passed in O.S. No. 102 of 1994, it will not bind this Appellant and other children of Muthulakshmi for the reason that they were not parties to that suit. 11. On the other hand, the learned counsel for the 13th respondent/6th defendant submitted that the 1st item of the suit schedule properties is the self-acquired property of the deceased Mahalingam and he had executed and agreement of sale in favour of the 13th respondent/6th defendant; since he failed to execute the sale deed as agreed, a suit for specific performance was filed in O.S. No. 102 of 1994; even in that Suit, it has been held that the properties were the self-acquired property of the deceased Mahalingam. During the pendency of the suit, the said Mahalingam died and his children including the mother of the Appellant were added as legal representatives for the deceased Mahalingam; even during its pendency, it was not informed to the Court that the mother of the Appellant had died. In fact it was the Appellant and other plaintiffs who have played fraud by concealing the fact of death of Muthulakshmi, it is further submitted that an issue as to the character of the 1st item of the suit property arose in the earlier suit in O.S. No. 102/1994 itself and a finding has been given that it is the self- acquired property of the deceased Mahalingam. Hence, the suit now filed by the plaintiff is hit by res-judicata. 12. Since the issues framed by the learned trial judge are interconnected and the judgment is the cumulative effect of the answers given to those issues, the point for consideration in this Appeal can be taken as follows: Whether the findings given by the learned trial Judge to the issues framed by him and which resulted in the judgment to the effect that the Appellant/7th plaintiff is not entitled to get any share in respect of suit Item No. 1, are fair and proper? 13. On perusal of the records, it is seen that the very same Appellant and other plaintiffs have filed another Suit in O.S. No. 171 of 2013 (renumbered as O.S. No. 94 of 2018) for declaring that the Decree and Judgment passed in O.S. No. 102 of 1994 is null and void. Despite the plaintiffs 1 to 3, who are the daughters of the deceased Mahalingam were parties to O.S. No. 102 of 1994, they have also joined with this appellant and his siblings and filed the above suit. Even during the trial proceedings in O.S. No. 102 of 1994 before the Principal Subordinate Court, Tindivanam, the children of deceased Mahalingam contested that the 1st item is a joint family property. A specific issue has been framed in the said suit as to the character of the suit 1st item and a finding has been rendered that the suit 1st item is the self-acquired property of the deceased Mahalingam. The parties involved in O.S. No. 102 of 1994 have filed cross Appeals and the Appeals were disposed by confirming the Judgment of the trial Court. 14. The parties involved in O.S. No. 102 of 1994 have filed cross Appeals and the Appeals were disposed by confirming the Judgment of the trial Court. 14. It has been already stated that the 13th respondent/6th defendant has filed a Suit in O.S. No. 102 of 1994 for the relief of specific performance against the deceased Mahalingam on the basis of a sale agreement entered into between himself and the said Mahalingam and a decree for specific performance was passed and it has also attained finality. Thereafter, the 13th respondent/6th defendant had filed Execution Petition and got the sale deed executed in respect of item No. 1 through Court and possession has also been delivered to him. 15. It is pertinent to note that the defendant in O.S. No. 102 of 1994 namely Mahalingam died on 27.06.1997. His legal heirs were brought on record on 16.03.2004. The mother of the Appellant Muthulakshmi had also been added as a party to the proceedings in her capacity as a legal representative of the deceased Mahalingam. Throughout the trial proceedings and thereafter, even during the Appeal proceedings, the brothers and sisters of the Muthulakshmi did not bring it to the notice of the Court or to the knowledge of the 13th respondent/6th defendant that Muthulakshmi had died as early as on 06.12.2001. Having watched the proceedings silently, despite knowing that their sister Muthulakshmi had died already, the defendants of O.S. No. 102/1994 have colluded with the children of Muthulakshmi and filed this Suit by taking up a plea that the Decree passed in O.S. No. 102 of 1994 is a Decree passed against the dead person and hence it is a nullity. 16. Despite this another suit has been filed in O.S. No. 94 of 2018 (O.S. No. 171/2013) to declare the decree passed in O.S.102/1994 is null and void and that had also been dismissed under a common judgment, this Appellant has challenged only the Decree passed in O.S. No. 30 of 2014, which is a partition suit. It is needless to state that the Appellant and other plaintiffs are the plaintiffs in the other suit in O.S. No. 94 of 2018 (O.S. No. 171 of 2013) also. In the grounds of this Appeal also, there is no mention about the said suit which has been jointly tried along with this suit and dealt under a common Judgment. It is needless to state that the Appellant and other plaintiffs are the plaintiffs in the other suit in O.S. No. 94 of 2018 (O.S. No. 171 of 2013) also. In the grounds of this Appeal also, there is no mention about the said suit which has been jointly tried along with this suit and dealt under a common Judgment. Though in normal course, a Decree against the dead person is a nullity, the position cannot be the same, in cases where the Decree was allowed to be passed due to the mischievous silence observed by parties who knew about the death of the said person. In this case the silence observed by the close relatives of the deceased Muthulakshmi is with an ulterior motive of reserving it as a trump card for raising a re-litigation on the same issue. Such a conduct on the part of the Appellant and his co- plaintiffs is nothing but a fraudulent collusion. 17. Further, the deceased Muthulakshmi herself did not have any right in the suit property of O.S. No. 102 of 1994 and it is found that the said property is the self-acquired property of her father Mahalingam. Only because Mahalingam had died during the proceedings, the necessity to implead his legal representatives had arisen. The suit could have survived after the death of Mahalingam even without adding Muthulaksmi as a party along with other legal representatives of deceased Mahalingam. 18. The one and only contention of the Appellant and other plaintiffs is that because Muthulakshmi had died at the time when the Decree in O.S. No. 102 of 1994 was passed, it is a nullity. Even though her brothers and sisters who were parties to the proceedings did not bring it to the notice of the Court that Muthulakshmi died, the fact remains that the deceased Muthulakshmi herself had been properly represented by her brothers and sisters, who were also equally interested and raised the same plea that the suit property is a joint family property. So far as the suit property in O.S. No. 102 of 1994, its character precedes the right of parties. The learned trial Judge has dealt with the said issue and concluded that it is the self-acquired property of the deceased Mahalaingam and none other than Mahalingam had any right in it. So far as the suit property in O.S. No. 102 of 1994, its character precedes the right of parties. The learned trial Judge has dealt with the said issue and concluded that it is the self-acquired property of the deceased Mahalaingam and none other than Mahalingam had any right in it. The same issue with respect of the very same property cannot be raised once again in this case by making the very the same pleadings but in a collusive fashion. 19. For the 13th respondent/6th defendant, it would not have been a matter of fuss to implead this Appellant and others as LRs of Muthulakshmi, if he was informed about her death. So there is no fraud or foul play played by the 13th respondent/6th defendant. And he had been prosecuting the suit with an honest belief that Muthulakshmi was a living person. Having concealed the death of Muthulakshmi and remained silent throughout the suit proceedings and thereafter during the Appeal proceedings also, the other daughters of the deceased Mahalingam joined with this Appellant and have come up with this suit for partition just in order to target item No. 1 only. The facts and events that have preceded the suit would show that the Appelant/7th plaintiff have brought this suit in collusion with the other legal representatives of the deceased Mahalingam, just to defeat the decree of specific performance granted in favour of the 13th respondent/6th defendant in respect of 1st item of the suit properties. 20. The learned trial Judge has rightly appreciated the facts, events and evidence produced before him and arrived at a right conclusion by placing reliance on the judgment rendered in Shanmugathai (dead) and Others vs. A.R. Meenakshi and Others, 2017 (3) TNCJ 396. In the said judgment it is held as under: “7. 20. The learned trial Judge has rightly appreciated the facts, events and evidence produced before him and arrived at a right conclusion by placing reliance on the judgment rendered in Shanmugathai (dead) and Others vs. A.R. Meenakshi and Others, 2017 (3) TNCJ 396. In the said judgment it is held as under: “7. As regards the above contention put forth by the petitioners that the Preliminary Decree is a nullity having been passed against a dead person, as rightly put forth by the plaintiffs’ counsel, as per Order XXII Rule 4(4) C.P.C. when the plaintiffs are not aware of the death of the second defendant and the petitioners also having failed to discharge their duty by intimating the death of the second defendant to the Court or the Advocate concerned, despite having knowledge about the Court proceedings, it is found that notwithstanding the death of the second defendant, the Preliminary Decree that had been passed against the second defendant in the suit shall have the same force as if it had been pronounced before the death taken place. Therefore, the contention put forth that the Preliminary Decree passed against the dead person is a nullity by blaming the plaintiffs as if they are responsible for not bringing the legal representatives of the deceased second defendant on record as such cannot be countenanced. It is not the case of the petitioners and they have also not placed any material that the plaintiffs are aware of the death of the second defendant prior to the passing of the Preliminary Decree.” 21. It is reiterated that this suit filed by the appellant is a vexatious re-litigation to rack up the very same issue which has been already decided and settled. And this is nothing but abuse of the process of the Court. Therefore, we find no reason to interfere with the well analysed Judgment of the learned trial Judge. Hence, the point is answered against the Appellant. 22. In the result, this First Appeal is dismissed and the Judgment of the learned Additional District Judge, (Fast Track Court), Villupuram, dated 05.04.2019 passed in O.S. No. 30 of 2014, is confirmed. No costs.