1. Plaintiffs are the appellants. The suit arises out of an application filed under Section 276 of the Indian Succession Act. The plaintiffs' case is that Late Krushna Das executed a Will (Ex. 1) on July 27, 1949 in favour of the plaintiffs. From the date of execution of the document the plaintiffs continued in possession of the disputed property. Krushna Das died on August 2, 1949. Chari Bewa (the defendant) is the sister of Krushna Das and filed Title Suit No. 178 of 1950 in the Court of the Munsif of Bhadrak for declaration of title and confirmation of possession or in the alternative for recovery of possession challenging the Will as frau- lent. That suit was ultimately decreed in second appeal No. 379 of 1952 and the High Court found that the plff's, who were defendants in that suit, failed to prove that the alleged document was bona fide and voluntary transaction executed by Krushna Das after fully understanding the nature and character of the transaction. The High Court, however, held that the document was Will and it not having been probated in a competent court was not admissible in evidence under Section 213 of the Indian Succession Act. After the High Court decision this suit has been filed under Section 276 of the Indian Succession Act.
2. The defendant contested the suit alleging that Krushna Das was suffering from leprosy before his death and two years before his death he was unable to walk and he was not in proper senses. The plaintiffs were looking after him and prevailed upon Krushna Das to go for treatement outside the village. On that pretext they took him to Calcutta without the knowledge of the defendant. The alleged Will is not valid and operative in law.
3. Though evidence was taken in the case the learned District Judge dismissed the plaintiffs' suit holding that the suit is not maintainable in view of the judgment of the High Court in Second appeal No. 379 of 1952 and he did not record any finding on other points.
4. The judgment of the learned District Judge is clearly erroneous and cannot be supported. Section 11 of the Civil Procedure Code, runs as follows.
'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been substantially raised, and has been heard and finally decided by such Court.'
The title to the property now put in issue was tried in the Munsif's Court at Bhadrak. But the Munsif's Court, Bhadrak is not competent to try a suit in which an application under Section 276 of the Indian Succession Act has been filed for grant of probate. It follows as a necessary corollary that the decision of the Munsif's Court or of the High Court in Second appeal cannot operate as res judicata so far as this suit is concerned. The judgment of the learned District Judge is clearly erroneous and contrary to AIR 1962 SC 287, Bhagwan Dayal v. Reoti Devi. The judgment of the High Court may otherwise be relevant as a piece of evidence along with other evidence given in the suit. As that, question is not before us, we express no opinion thereon.
5. In the result the appeal is allowed and the suit is remanded for disposal in accordance with law.
Costs will abide the result.
6. I agree.