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Hi there,

Is the unwritten will be valid?

Civil appeal arises out of the judgement dated 27/02/2022 of the civil appellate
jurisdiction of the Supreme court of India in 2564 of 2012

M. Periyayya Servai had two wives
1) Veerayakli – First Wife
2) Kaliyamma – Second Wife
The Son born through first wife is Ramasamy. The Sons born through second wife are Kasilingam and Marimuthan.

Periyaiya Servai had executed a registered will dated 26th January, 1994, in favour of plaintiff in relation to his share of the properties of the joint family. Thus, the joint family properties had to be divided into four shares of which the plaintiff was entitled to one share, bequeathed in his favour by his grandfather, Periyaiya Servai under the will. Further, Poomayil, on the death of her husband Marimuthu had bequeathed his share in the property to the first defendant. Hence the first defendant has become entitled to half share in the joint family property and the remaining half has to be equally divided between the second defendant and the plaintiff. That the first defendant sent a legal notice objecting to plaintiff’s share in the suit schedule properties, which are joint family properties. Therefore, the plaintiff has been constrained to file a suit for partition and separate possession. Plaintiff has averred that he has a right to one fourth- share of Periyaiya Servai under the will dated 26th January, 1994, which came into operation on 25th March, 2003, on the demise of Periyaiya Servai. With the aforesaid averments the plaintiff has sought partition and separate possession of his one fourth share in the suit schedule properties.

The defendants has admitted that the suit schedule properties were joint family properties but they had since been divided.But in 1964 Periyaiya Servai in turn partitioned his share of the joint family properties in three parts, i.e. between the first and second defendants and late Marimuthu and they have been enjoying the properties since then. In that partition, no share was allotted to Periyaiya Servai. An agreement for maintenance of Periyaiya Servai during his life was also made. The properties was being enjoyed by his wife Poomayil. The fact that Periyaiya Servai had executed a 4 will dated 26th January, 1994.Periyaiya Servai was 93 years old in 1991 and was not in a position to take decisions on his own due to his old age.

A suit was filed in the district Munsiff court Devakottai, The court held that the partition of the properties that took place in 1964 was valid so there should be equal shares among the each sons and the will registered by the Periyaservai in 1994 to be in valid therefore the plaintiff was not entitled to fourth share. Being aggrieved, the plaintiff preferred second appeal No. 92 of 2007 was filed before the Madurai Bench of the Madras High Court, which has also dismissed the same by
the impugned judgment.

The partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon, a fresh suit for partition and separate possession of the suit properties was not at all maintainable. The principle of res judicata squarely applies in the present case. Therefore the High Court was justified in affirming the judgments of the First Appellate Court as well as the Trial Court dismissing the suit filed by the appellant herein. We have no reason to interfere with the impugned judgment. The appeal is accordingly dismissed.

Written by: Abhishek Godwin,  Student of BARACL, Mumbai

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