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In Re: Atyam Venktah and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in15Ind.Cas.186a
AppellantIn Re: Atyam Venktah and ors.
Excerpt:
res judicata - agreement to maintain defendant in consideration of will--prior suit on agreement by defendant for arrears of maintenance and a decree therein--present suit by plaintiff to set aside agreement--plaintiff not entitled to rely on events prior to former suit--subsequent events disclosing intention to defeat the will--not a sufficient cause of action. - .....her, concealed some of the property in the house of a third person. the question is whether these allegations are sufficient to show that there was failure of consideration subsequent to the decision in original suit no. 160 of 1907. i think it cannot be doubted that the allegation of a mere intention on the part of the defendant to defeat the bequests is not sufficient to give the plaintiff a cause of action to avoid the document. if there were some disposition made by her in favour of third parties which would defeat the bequests, that, no doubt, would be sufficient. if there were an allegation that she deprived herself of her possession in such a manner that they would no longer be under her control, that also might be sufficient. but a statement that she had concealed the properties.....
Judgment:

Sundara Aiyar, J.

1. I am of opinion that the decision of the lower Courts on the 4th issue, namely, whether the claim is res judicata, is right. The defendant instituted Original Suit No. 160 of 1907 for two years' payments due to her according to Exhibit I and obtained a decree. The plaintiff was bound to put forward in that suit all pleas which would entitle him to get the Court to hold that the agreement was not enforceable against him; any plea not then urged could not be gone into now.

2. The only question, therefore, is whether there are any allegations in the plaint of events subsequent to that suit which would entitle the plaintiff to avoid the document. The plaintiff alleges that the defendant made a false complaint of the loss of some of the properties which are included in the Will, made by her, that the Police who investigated the case found that her allegations were false, and that the defendant, with a view to defeat the bequests made by her, concealed some of the property in the house of a third person. The question is whether these allegations are sufficient to show that there was failure of consideration subsequent to the decision in Original Suit No. 160 of 1907. I think it cannot be doubted that the allegation of a mere intention on the part of the defendant to defeat the bequests is not sufficient to give the plaintiff a cause of action to avoid the document. If there were some disposition made by her in favour of third parties which would defeat the bequests, that, no doubt, would be sufficient. If there were an allegation that she deprived herself of her possession in such a manner that they would no longer be under her control, that also might be sufficient. But a statement that she had concealed the properties in the house of a third person does not, I think, amount to an allegation that, by depriving herself either of the ownership or of the possession of the properties, she had defeated the provisions of her Will.

3. I am constrained to hold that there are no allegations in the plaint of any event subsequent to the suit of 1907 which disclose a cause of action to avoid Exhibit I. It is, no doubt, true that in the case of a Will dealing with moveable property, the position of the legatee is extremely precarious. But that is the plaintiff's fault for he agreed to give maintenance to the defendant in consideration of a Will dealing with moveable property.

4. I dismiss the second appeal.


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