Does an earlier suit for injunction simpliciter, in which a copy of the will was produced and the present plaintiff did not contest, bar a later partition suit by res judicata on the proof of that will?

No. The earlier suit was one for injunction simpliciter, in which there was neither occasion to offer proof of the will nor was a declaration of title sought, so the will and title were not matters substantially in issue and no claim of res judicata can be raised. Even so, despite knowledge of the will the plaintiff pleaded no suspicious circumstances, did not even mention the will in the plaint and did not mount the box.

Indian Succession Act, 1925 — s.63(c) — Indian Evidence Act, 1872 — s.68 — s.71 — Proof of will — Attestation by both witnesses — Leading questions in cross-examination — Rule of prudence — Exclusion of one heir — Indian Evidence Act, 1872 — s.68 — Indian Succession Act, 1925 — s.63(c) — Attesting witness must prove both attestations — Held: The one attesting witness examined must speak on the execution of the will by the testator, on his own attestation and on the attestation by the other witness; anything short of that falls short of attestation by two witnesses. (¶15, 16) Indian Evidence Act, 1872 — s.68 — Proof of will — Answer elicited by a leading question in cross-examination — Held further: Where the examination-in-chief is silent on the other witness’s attestation but the plaintiff’s own cross-examination elicits an affirmative answer, that answer cannot be said to have lesser probative value; leading questions are permitted in cross-examinations. (¶23, 29) Indian Succession Act, 1925 — s.63 — Deposition twenty-four years after execution — Mathematical precision not expected — Held further: A witness examined twenty-four years after execution cannot be expected to remember his visits to the testator’s house with mathematical precision, particularly given his close association as a frequent visitor. (¶27) Indian Succession Act, 1925 — Rule of prudence — One of nine children excluded — Arm-chair of the testator — Held further: The caution required where the legal heirs are divested in whole does not arise where a single child out of nine is excluded for a stated reason; the court sits in the arm-chair of the testator and cannot substitute its own opinion. Appeals allowed. (¶28, 31)

One judgment a day. That's the whole habit.

Read the full text of K. S. Dinachandran v. Shyla Joseph & Ors. — and get the Supreme Court's output as a five-minute daily read, with plain-language headnotes and the questions each judgment settles.

Free forever plan · 30 seconds · data stays in India