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Maryammal Vs. Kaliyammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.613; (1911)21MLJ485
AppellantMaryammal
RespondentKaliyammal
Excerpt:
civil procedure code (act xiv of 1882), section 13 probate proceedings - construction of will--finding that last will does not supersede two earlier wills--suit based on wills--whether finding in probate proceedings, res judicata--estoppel. - .....in the present case while admitting the genuineness of ail the three wills contended that the two earlier wills were revoked by the will dated the 11th december 1902. the district court held that the earlier wills were not revoked by the last will. it expressly refrained from deciding whether on reading the three wills together it would have to be held that any of the dispositions in the earlier will was superseded by the last will. it merely held in effect that there were no words in the latter expressly of by necessary implication revoking the earlier wills. this it was quite enough for the court to do as a court of probate. the subordinate judge is wrong in holding that the district judge's judgment, exhibit v, decided that all the dispositions in the earlier wills would remain in.....
Judgment:

1. In this case the lower Court does not seem to have correctly appreciated the nature of the questions arising for decision. The whole case has been disposed of on the first issue 'whether the opinion of this Court (the District Court of Salem) in O.P. No. 6 of 1905 in the matter of the construction of the three Wills of Raja Gounden is res judicata so as to debar the plaintiff from asking the Court to place a different construction thereon.' O.P. No. 6 was an application by the first defendant herein for probate of the three Wills of Raja Gounden dated the 16th of April, the 11th September, and 19th December 1902. The plaintiff in the present case while admitting the genuineness of ail the three Wills contended that the two earlier Wills were revoked by the Will dated the 11th December 1902. The District Court held that the earlier Wills were not revoked by the last will. It expressly refrained from deciding whether on reading the three Wills together it would have to be held that any of the dispositions in the earlier Will was superseded by the last Will. It merely held in effect that there were no words in the latter expressly of by necessary implication revoking the earlier Wills. This it was quite enough for the Court to do as a Court of probate. The Subordinate Judge is wrong in holding that the District Judge's judgment, Exhibit V, decided that all the dispositions in the earlier Wills would remain in force notwithstanding the Will of the 11th December. The plaintiff, no doubt, would be precluded from contending that the last Will revoked the earlier Wills except by superseding any one or more of the dispositions contained therein by the dispositions contained in the last Will We do not think it desirable to say anything more as to what dispositions in the earlier Wills are still in force as the case had not been properly tried and even the three Wills had not been put in evidence. The respondent's Vakil admits that the decision of the lower Court cannot be supported with reference to the plaintiff's claim to manage the charities.

2. The decision of the lower Court must be reversed and the suit remanded with directions to restore it to the file and dispose of it afresh according to law. The costs of this appeal must abide the result.


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