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Yeshvant Ramchandra Bhide Vs. Govind Chintaman Bhide - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 130 of 1929
Judge
Reported inAIR1934Bom313; (1934)36BOMLR612; 155Ind.Cas.50
AppellantYeshvant Ramchandra Bhide
RespondentGovind Chintaman Bhide
DispositionSuit dismissed
Excerpt:
res judicata - suit for a share by a person alleging to be a member of a joint hindu family against some members in possession of property-other members of the family joined as co-defendants claimed also their share-finding by the high court, m appeal, as to partition having taken place between the members of the family-subsequent suit for a share by partition of the same property by members joined as co-defendants the former suit-whether such suit was barred by res judicata-civil procedure cods (act v of 1908), section 11; a hindu died leaving two sons by his first wife and three sons by his second wife. one of the sons of the first wife brought a suit in 1913 against his three step-brothers for a shars in a house which was in their possession. his two nephews (his deceased brother's.....divatia, j.1. this appeal is filed by the original defendants nos. 1 to 3 in a suit by the plaintiffs to recover by partition possession of their one-fifth share in a house at poona. the plaintiffs are the sons of one chintaman who died in 1907, and defendants nos. 1 to 3 are the stepbrothers of chintaman. one bhikaji was also a brother of chintaman, and both bhikaji and chintaman were the sons by the first wife of ramchandra while defendants nos. 1 to 3 were the sons by his second wife. ramchandra died in 1902 and bhikaji is also dead. the plaintiffs' case was that all the sons of ramchandra were members of a joint hindu family, and the suit house along with the other propertysituated at sangli formed the joint family property ; that after ramchandra's death, the plaintiffs' father lived.....
Judgment:

Divatia, J.

1. This appeal is filed by the original defendants Nos. 1 to 3 in a suit by the plaintiffs to recover by partition possession of their one-fifth share in a house at Poona. The plaintiffs are the sons of one Chintaman who died in 1907, and defendants Nos. 1 to 3 are the stepbrothers of Chintaman. One Bhikaji was also a brother of Chintaman, and both Bhikaji and Chintaman were the sons by the first wife of Ramchandra while defendants Nos. 1 to 3 were the sons by his second wife. Ramchandra died in 1902 and Bhikaji is also dead. The plaintiffs' case was that all the sons of Ramchandra were members of a joint Hindu family, and the suit house along with the other propertysituated at Sangli formed the joint family property ; that after Ramchandra's death, the plaintiffs' father lived at Miraj and that he used to come off and on to Poona where Ramchandra lived with his sons. The family property at Sangli being in a Native State was not included by the plaintiffs in the suit here. The case of defendants Nos. 1 to 3 was that there was a separation of the members of the family in 1878 and that since then different members of the family were separately enjoying different properties; that Bhikaji and Chintaman got for their share a certain cash allowance and a house at Sangli, while Ramchandra and defendant No. 1 (defendants Nos. 2 and 3 being born later) were in possession of the suit house at Poona and certain shops and fields at Sangli. These defendants further contended that the suit was barred by resjudicata inasmuch as the plaintiffs' uncle Bhikaji had filed a partition suit in 1913 in which the present defendants Nos. 1 to 3 were defendants Nos. 1 to 3 and the present plaintiffs were defendants Nos. 4 and 5, and that in that litigation it was held ultimately by the High Court that there was separation of the family members in 1878, and that the branch represented by defendants Nos. 1 to 3 was in exclusive possession of the suit house since then. The defendants contended that the present suit was, therefore, barred by resjudicata as the present plaintiffs were parties to that suit. On the merits it was contended that the plaintiffs were not in possession of the suit house at any time after 1878 and that they had lost their right to possession.

2. The lower Court has held that the present suit is not barred by res judicata, and that the present plaintiffs were not excluded from the enjoyment of the suit house inasmuch as the plaintiffs' father and after his death the plaintiffs were in receipt of a part of the income of the suit house. It, therefore, held that the plaintiffs were entitled to get their share in the property, and passed a decree in their favour for partition.

3. The defendants have appealed against the decree, and two questions arise for decision in this appeal, firstly, whether the present suit is barred by res judicata by the decree in the former suit of 1913, and, secondly, whether the defendants are in exclusive and adverse possession of the suit property as against the plaintiffs.

4. Taking the question of res judicata first, the suit of 1913 was filed by Bhikaji on the allegation that Bhikaji and the present plaintiffs' father Chintaman lived separate from the rest of the family but that the estate was joint, that the deceased Ramchandra had made a will disposing of the suit house in favour of defendants Nos. 1 to 3 but that the said will was invalid as the property was ancestral and not the self-acquired property of Ramchandra ; and that therefore he was entitled to a partition of his one-fourth share in the property. The case for defendants Nos. 1 to 3 in that suit was that neither Bhikaji nor defendants Nos. 4 and 5, i.e., the present plaintiffs, had any connection with the suit property which was the same as the present suit property ; that both Bhikaji and Chintaman had become separate ; that the branch of defendants Nos. 1 to 3 was in exclusive possession of the suit house ; and that the suit was barred by limitation. With regard to the will, their case was that the house was the self-acquired property of Ramchandra, and that therefore he had full power to make the will. The present plaintiffs also had put in their written statements in that suit and they had therein supported the case of Bhikaji and had stated that their father Chintaman along with Bhikaji began to live separately from the deceased Ramchandra about thirty years ago, but that the property was joint and that the same should be divided and their share also, should be handed over to them on their paying the Court fee stamp. They had further contended that they had received Rs. 25 per month from defendants Nos. 1 to 3 out of the income of the suit house. With regard to the will their case was the same as that of Bhikaji, namely, that the property being ancestral and not self-acquired, Ramchandra had no power to make a will in respect of it.

5. Several issues were framed in the ease, of which the material issues were, whether the plaint property was the self-acquired property of Ramchandra, whether the will was binding on the then plaintiff Bhikaji, and whether he as well as defendants Nos. 4 and 5, i.e., the present plaintiffs, were entitled to a share by partition in that suit. Two further issues were added subsequently, namely, under what circumstances did Bhikaji begin to live separately in 1878, and was there a division of the family then?

6. The trial Court had disposed of the suit on the ground of limitation only, and having held that the then plaintiff's suit was barred by limitation, it did not consider any of the other issues. The reasons given by the trial Court were that Bhikaji's case as stated in the plaint was that he was a divided member of the family since 1878, and that any idea of the continuance of the joint family was wholly negatived by his own pleading, and that although if the plaintiff had framed an ordinary suit for partition, defendants Nos. 1 to 3 would have practically no defence, still as the plaintiff himself had admitted that he had become separate from 1878, he had lost his share in the property by the adverse possession of defendants Nos. 1 to 3.

7. Against that decree dismissing Bhikaji's suit, defendants Nos. 1 to 3 had filed an appeal to this Court, being First Appeal No. 313 of 1916. To theft appeal the present plaintiffs were also parties and were separately represented by their advocate. In the course of arguments in that appeal it was admitted on behalf of defendants Nos. 1 to 3 that the suit house was not the self-acquired property of Ramchandra as recited in the will but that it became their property by partition upon the separation of the two branches of Ramchandra's family, and that defendants Nos. 1 to 3 were in exclusive possession thereof ever since 1878. After hearing the arguments of all the parties this Court made a finding on the evidence that there was a partition upon the separation of the two branches of Ramchandra's family in 1878, and that defendants Nos. 1 to 3 and Ramchandra were together in exclusive possession of the suit house and shops and fields at Sangli thereafter for nearly thirty-six years, while Bhikaji and the present plaintiffs' father were admittedly in exclusive possession of the family house at Sangli. As stated above, the trial Court had made no finding on the issue as to whether there was a partition in 1878. This Court, however, based its decision not so much on the finding of exclusion as on the finding that there was a partition in the family in 1878. It appears that Bhikaji had filed an application for review of this decision and also an application for leave to appeal to the Privy Council against the dismissal of his appeal. The review application was dismissed and so also was the application for leave, and while disposing of the latter application this Court remarked as follows:

The conclusion reached by this Court is based upon the statement made by the plaintiff in the plaint and the evidence in the case; and the conclusion reached is one of fact based upon evidence. Though in form it may appear to be a question of law as it is a point of limitation, it really depends upon the facts found by this Court on the evidence,

8. Now, the lower Court is of opinion that this decision in the previous suit does not operate as res judicata in the present suit inasmuch as the present plaintiffs and defendants Nos. 1 to 3 were co-defendants in that suit, and the former being only pro forma defendants, there was no matter directly and substantially in issue between them and defendants Nos. 1 to 3, and in the adjudication upon the dispute in that suit between Bhikaji and the present defendants Nos. 1 to 3, it was not necessary to determine the dispute between the present plaintiffs and defendants Nos. 1 to 3. It was further stated that the present plaintiffs, as defendants Nos. 4 and 5 could not have appealed against the decree dismissing Bhikaji's suit as well as the appeal in the High Court, and that therefore they would not be barred by res judicata. This view has been challenged in appeal before us and it is contended on behalf of the appellants that the present plaintiffs were not simply pro forma defendants in the previous suit, but that they had actively taken part in that suit by siding with the then plaintiff and also by demanding their share in the suit property which defendants Nos. 1 to 3 had denied, and an express issue was also framed as to whether they were entitled to any partition. It is conceded on behalf of the appellants that the trial Court in the former suit did not make any finding adverse to the present plaintiffs, but the High Court based its conclusion on the evidence in the case and held that there was a previous partition and that finding was binding on all the parties in that suit including the present plaintiffs, and although the appeal could have been disposed of on the ground of the then plaintiff being excluded from the enjoyment of the family property, as this Court did enter into the other evidence and did make a finding adverse to Bhikaji as well as the present plaintiffs, it was a decision binding against both, although, the decree of the lower Court was confirmed on grounds which were different from those given by the trial Court. For the plaintiffs-respondents it has been contended that there was no conflict between the defendants inter se in that suit, that in order to decide the dispute between the then plaintiff and defendants Nos. 1 to 3 in that suit it was not necessary to decide the conflict between the defendants inter se even if a conflict existed, and that, thirdly, the alleged conflict is also not decided in the former suit.

9. Now, the principles governing the operation of res judicata between co-defendants have been recently laid down by the Privy Council in three cases, Munni Bibi v. Tirloki Nath Kishun Prasad Pandey v. Durga Prasad Thakur (1931) 35 C.W.N. 1217 n. p.c., and Maung Sein Done v. Ma Pan Nyun (1932) L.R. 59 IndAp 247 : 34 Bom. L.R. 1040 A number of authorities have been referred to by the learned Counsel on both sides. It is not necessary to refer to all of them as the decision of the Privy Council in the latest case of Maung Sein Done v. Ma Pan Nyun lays down the real test that has to be applied to this case. In that case the question between the parties was whether sons alone inherited the suit property under the Chinese customary law, or whether the daughters were also entitled to a share under the Burmese Buddhist law. One of the daughters had filed a suit against her two brothers and her sister was made a co-defendant with them. The sons disputed the plaintiff's claim relying upon the Chinese customary law, and the plaintiff's sister, as defendant, did not file any written statement but gave evidence supporting the plaintiff's case. The trial Court held that the inheritance was governed by the Chinese customary law, and therefore dismissed the plaintiff's suit. On appeal, the High Court at Rangoon confirmed that decree on the same grounds. Subsequently the daughter of the plaintiff's sister, who was a defendant in that suit and had supported the plaintiff's claim which had failed, filed a suit against the two sons, who were defendants in the former case, as well as the plaintiff in the former suit, and the plaint in the second suit was substantially the same as the plaint in the former suit. The sons pleaded res judicata and the trial Court negatived that contention. On appeal, the High Court also held that there was no bar of res judicata as there was no active contest as to the rights and no decision thereon as between the mother of the plaintiff in the second suit and her co-defendants in the former suit. On appeal, the Privy Council held that the bar of res judicata did apply inasmuch as the three tests which were laid down in the earlier case of Munni Bibi v. Tirloki Nath for the operation of res judicata between co-defendants were fulfilled in that case. The reasons were that there was in the former suit a conflict of interest between co-defendants, i.e., between the mother of the plaintiff in the second case and her brothers, that that conflict would necessarily have to be decided in order to give the plaintiff in the first case the relief which she claimed, and that the question between the defendants inter se in the first suit, namely, as to whether the mother of the plaintiff in the second suit was entitled to any share in the estate, was finally decided. It was contended there on behalf of the respondents that as no relief had been given to the plaintiff in the first suit, the doctrine of res judicata did not apply as between the co-defendants. But that contention was not accepted and it was held that in the first suit, which was an administration suit, the mother of the plaintiff in the second suit was a necessary party, and there had necessarily to be an adjudication upon the issues involved before the suit could have been dismissed, and that it was none-the-less an adjudication because its consequence was the dismissal of the suit. On these grounds it was held that the second suit was barred by res judicata and the decision of the Rangoon High Court was reversed and the plaintiff's suit was dismissed.

10. There is a certain amount of similarity between the facts of the present case and the facts of the Rangoon case. Here also it was a suit for partition of the family estate and the present plaintiffs were necessary parties to the first suit. Not only that, but they also asked for their share being divided and handed over to them. There also the plaintiff's suit was dismissed as here. The respondents contend, however, that there is one important distinction between the present case and that case, viz., that while in the latter case the actual point of conflict between the co-defendants, namely, as to whether the parties were governed by the Chinese law or the Buddhist law, was decided, here the trial Court did not decide the point of conflict between the parties, namely, the existence of the partition in 1878, and that although the High Court in appeal made a finding on this point, that finding was not necessary for the disposal of the then appellant's appeal, because if that appeal could be disposed of on the ground of limitation as was done by the trial Court, it was not necessary for the High Court to go into the question as to whether there was a partition in 1878 or not, and that, therefore any remarks about partition were obiter and would not be binding against the present plaintiffs who were respondents in the appeal.

11. Now, as to the decision in the former proceedings it is clear that where there has been an appeal against the original decree, it is the decision in the appeal and not the decision in the trial Court that operates as res judicata. The decision of the High Court here, as I have said, was that there was a partition, and that also there was exclusion presumably because of partition. It cannot be said that the decision in the appeal as to the existence of a partition in 1878 was merely an expression of opinion and not a decision. It is expressly stated as a decision arrived at on the evidence in the case and the appeal is decided on this finding itself. It is no doubt stated there that both the branches were in exclusive possession of the property which they got in 1878, but the decision does not turn on the point of limitation but on the fact of the partition, and the exclusive possession was such because of the partition and not because of family convenience. It was open to the High Court in appeal to base its decision upon a ground different from that given by the trial Court, provided there was sufficient evidence on the record from which a finding could be arrived at. Not only was there an issue on this point, but in the opinion of this Court there was sufficient evidence to justify a finding based upon it. That being so, the finding of the High Court on the issue as to whether there was a partition or not cannot be regarded as a mere obiter or a mere expression of opinion, but it was made the very ground of the decision. That such a finding based on evidence on a different ground from that given by the lower Court would operate as res judicata derives support from a decision of the Privy Council in Chaudhri Risal Singh v. Bal-want Singh What happened there was that a Hindu widow brought a suit to set aside an adoption of a son by her on the ground that she had no authority from her husband to adopt. It was held by the trial Court and the High Court, the decision of which is reported in Dharam Kunwar v. Balwant Singh I.L.R. (1908) All. 549 that the widow was estopped from disputing the adoption and that, therefore, her suit failed on that ground. She appealed to the Privy Council, and in appeal, the decision of which is reported in Rani Dharam Kunwar v. Balwant Singh their Lordships of the Privy Council, though agreeing with the lower Court that the mother was estopped from alleging want of authority, proceeded to state that the question could well be decided as one of fact on the mother's own statement without recourse to the doctrine of estoppel, and it was held that although the estoppel was purely personal to the mother, the evidence showed that she had authority from her husband to adopt the son, and that on that ground also her suit failed. Subsequently, after the death of the widow, a suit was brought by a person as the next reversioner of her husband against the son for possession of the estate on the ground that the adoption was invalid as the widow had no authority to adopt. One of the defences raised to that suit was that it was barred by res judicata on account of the decision in the previous suit decided against the widow which would bind the reversioner also. The trial Court held that the suit was so barred, and on appeal to the High Court, which was heard by three Judges, the majority confirmed that decision: Risal Singh v. Balwant Singh I.L.R. (1915) All. 496 The majority decision was that in the first suit their Lordships of the Privy Council preferred to decide the question of the authority of the mother and the validity of the adoption as one of fact even without regard to the doctrine of estoppel and that that decision was a final decision of the dispute between the parties disposing of that litigation both on the point of estoppel as well as on the merits. Against this decision there was again an appeal to the Privy Council, and the decision of that appeal is reported in Chaudhri Risal Singh v. Balwant Singh, Their Lordships confirmed the majority decision of the High Court and held that in the previous suit the Board did intend to decide the question of authority to adopt as a question of fact and in fact decided that point as there was ample material on the evidence upon which that point could be decided and that decision did operate as res judicata against the reversioners also.

12. The principle of this decision, to my mind, applies to the facts of the present case. Here also the High Court in the previous litigation heard arguments as to the question of the alleged partition in 1878, and from the evidence on the record did arrive at the finding. The fact that in the present case the doctrine of res judicata is sought to be applied to co-defendants, whereas in the case of Chaudhri Risal Singh v. Balwant Singh the contention was not between co-defendants, does not, in my opinion, affect the principle, because this is a partition suit and the present plaintiffs themselves as defendants had asked for their share in the partition, and they had also put in issue the question as to whether they were entitled to a specific share in the property. Their case also along with the case of the then plaintiff was that there was no partition in 1878. Therefore, they were in the High Court appeal in the same position as was the appellant so far as the claim against defendants Nos. 1 to 3 was concerned. The learned Counsel for the respondents has relied upon the case of Ashidbai v. Abdulla I.L.R. (1906) Bom. 271 : 8 Bom. L.R. 652 but that case would not apply here as the former case was decided by the High Court not on any preliminary ground but on the merits. Similarly, the case of Ahmedbhoy Habibbhoy v. Sir Dinshaw M. Petit (1909) 11 Bom. L.R. 366 would not also apply as in that case the finding that was sought to be used as res judicata was a clear obiter and not necessary for the purpose of the decision of that case.

13. For these reasons, I am of opinion that the present suit is barred by res judicata on account of the decision in the previous suit.

14. That being so, the other question in the case, namely, as to whether the plaintiffs were excluded from the enjoyment of the suit property or its income and that therefore defendants Nos. 1 to 3 were in adverse possession as against them, would not arise for decision. However, I may state that, in my opinion, the decision of the lower Court on that point is correct. On the evidence it clearly appears that defendants Nos. 1 to 3 made payments out of the income of the suit property to the present plaintiffs' family from 1904 to 1919. Defendants Nos. 1 to 3 say that this payment was made because of the directions in the will and it was made under the erroneous belief that the plaintiffs were entitled to it. But no such provision in the will is pointed out, and if the payment is made whether under an erroneous or a correct belief that the plaintiffs were entitled to it, it would not affect the question of adverse possession. The learned Counsel for the appellants has contended that in any case no such payment has been proved from 1878 to 1904, and that therefore before 1904 the adverse possession of defendants Nos. 1 to 3 had already been complete and so could not be affected by the payment made after 1904. But that, to my mind, is not the correct position. If the family is joint and there was no division in 1878, the parties are tenants-in-common, and there is no adverse possession of one co-tenant against another unless there is a clear ouster, in other words, demand and refusal. There is nothing to show on the evidence that between 1878 and 1904 there was any demand made by the plaintiffs' branch and refusal by the appellant's branch, and therefore, unless there has been an express refusal of the plaintiffs' rights, adverse possession would not begin to run. On the contrary, far from any denial of the plaintiffs' rights, there have been regular payments from 1904 to 1919. Therefore, if there was no partition, the plaintiffs would be entitled to succeed. In fact, even with regard to Bhikaji the trial Court had in the previous suit remarked that if Bhikaji had framed an ordinary suit for partition of a Hindu family, the defendants, i.e., the present defendants Nos. 1 to 3, would have had practically no defence to offer. The plaintiffs are in a still better position than Bhikaji, because while there was no payment made to Bhikaji, the plaintiffs have received the income at least from 1904. But as the appellants succeed on the point of res judicata, the result of this appeal is that the decree of the lower Court is reversed and the suit is dismissed with costs throughout.

Murphy, J.

15. One Ramchandra Narhar Bhide, who died in Poona, in 1902, left him surviving five sons named Bhikaji, Chintaman, Yeshvant, Narhar and Narayan. The first two were by his first wife, and the other three by his second wife. Ramchandra himself had been adopted into the Bhide family, and was employed at Sangli. He inherited a house in Poona, an hereditary office in Sangli State, a share in a jaghir village and a house and some land in Sangli. The Poona house was heavily encumbered.

16. Ramchandra served the Sangli State for some years and retired to Poona in 1878 with his wife and her eldest son, the two younger being born later. Bhikaji and Chintaman, the two eldest sons, sought service, Bhikaji taking the hereditary office in Sangli and rising to a high place, while Chintaman got an appointment in Miraj. After Ramchandra's death in 1902 and Chintaman's in 1907, Bhikaji brought a suit in the Poona Court against his surviving half-brothers, defendants Nos. 1, 2 and 3 and his nephews, the sons of Chintaman (defendants Nos. 4 and 5 ) now plaintiffs, praying for partition of the Poona property. The plaint and the theory on which it proceeded were ingenious. His case was that there had been a family arrangement in 1878, when he and Chintaman had gone to Sangli and Miraj respectively for a separation or partition though not by metes and bounds. He claimed a share in the Poona house on the basis of the state of the family in 1878, thus excluding defendants Nos. 2 and 3 who had not then been born.

17. The learned Subordinate Judge who tried the case did not come to findings on any issue except that of limitation, holding that on the pleadings the suit must be time-barred. The present plaintiffs, then defendants Nos. 4 and 5, supported the then plaintiff Bhikaji, and asked that their share (one-fourth) should be given to them. There was an appeal to the High Court, which also dismissed Bhikaji's suit. Attempts to carry the litigation further failed.

18. The principal question now is whether plaintiffs, then defendants Nos. 4 and 5, can be suffered again to raise the claim made by Bhikaji in 1913.

19. The High Court's judgment of 1919 was delivered by Hayward J. As I read it, the learned Judges were somewhat embarrassed by the learned First Class Subordinate Judge's judgment which dealt only with the inconsistency of the claim then made involving a partition in 1878, and a still subsisting right to partition in the ancestral property in 1913, which could hardly be.

20. The judgment said that it was necessary to state the facts as this had not been done in the learned First Class Subordinate Judge's judgment, and did so. It then said that on these facts it looked as though there was a family understanding in 1878, by which Ramchandra with defendant No. 1 of his younger family had separated and taken as their share the family house in Poona and the shops and fields at Sangli, while plaintiff and defendants Nos. 4 and 5 got the Sangli office and house. It then discussed plaintiff's own attitude as disclosed in his pleadings, the abandonment of the position stated in Ramchandra's will and ended with the following statement :

It therefore seems to me that the finding on the facts ought to be that there was a partition on separation of the two families of Ramachandra in 1878, and that the defendants Nos. 1, 2 and 3 and Ramachandra were together in exclusive possession thereafter for thirty-six years of the family house at Poona, while the plaintiff and defendants Nos. 4 and 5 were admittedly in exclusive possession of the family house at Sangli. If that is so, then a correct conclusion was arrived at by the First Class Subordinate Judge, and this appeal ought to be dismissed with costs.

21. As I read the judgment their Lordships thought that there should have been a finding on the question of fact, and so, as they were entitled to do, they went into the evidence and found on it as the basis of their conclusion on the point of limitation.

22. On these facts the learned Subordinate Judge has decided that the question between the present plaintiffs and defendants is not res judicata, his chief reasons being that plaintiffs had been no more than pro forma defendants in the first suit; that they had not fought the matter out; that there was no issue between them and the then, as now, defendants Nos. 1, 2 and 3 ; that they could not have appealed ; and that the former decision did not decide their rights.

23. There is no doubt that had the present plaintiffs been ranged with the plaintiff in the former suit, they could not now be heard on this claim, and the point of law arises because they were then ranged on the other side, although their interests were the same as the then plaintiff's.

24. Appellants' learned Counsel has relied on a series of cases to show that, in law, their former position makes no difference, since the point decided in the former suit between the then plaintiff and the then defendants Nos. 1, 2 and 3 was also really decided between the then two groups of defendants inter se, and cannot, therefore, again be agitated between them. The main argument has been that the first suit having been a general one for partition, although the first Court held only on the pleadings that it was time-barred, the High Court went into the evidence and held on the facts that there had already been a family partition, and that there could not, therefore, be a fresh one.

25. The further argument has been that being ranged as defendants, plaintiffs need not then have brought this question in issue but in fact did so, and that they could have appealed from the decree as being aggrieved by it, but did not, though they were parties to the appeal.

26. It has been suggested that the learned trial Judge missed the fact that the former suit had been one for a general partition and applied the general law, whereas in a partition suit each party is a claiming party. To support his contentions Mr. Jayakar has relied on the following cases:

1. Assan v. Pathumma I.L.R. (1899) Mad. 494 The pertinent remarks in this case are that the reciprocal character of the parties in a partition suit makes the cause of action the same from either side.

2. Natwarlal v. Sassoon & Co : (1927)29BOMLR921 . It was held that in a partition suit the plaintiff cannot withdraw without the consent of the defendants, and these can apply to be traversed to the other side.

3. Nalini Kanta Lahiri v. Sarnamoyi Debya The decision was that where in a partition suit, partition has been allowed, and one of the parties afterwards alleges that there has been a mistake, his remedy lies in that and not in a separate suit.

4. Shivmurteppa v. Virappa I.L.R. (1899) Bom. 128 : 1 Bom. L.R. 620 deciding that a suit for a partial partition does not lie.

5. Ejaz Ahmad v. Saghir Bano I.L.R. (1929) All. 850 The ratio decidendi was that where it is necessary for giving relief to decide between two co-defendants, such a decision is binding on the co-defendants-the relevance in this case being that before the point of limitation could be decided, it was necessary to find whether a partition had already taken place, or not.

6. Munni Bibi v. Tirloki Nath The case lays down that Section 11 of the Civil Procedure Code is not exhaustive and that when

(i) there is a conflict between co-defendants, and

(ii) it was necessary to decide it to give the plaintiff relief, and

(iii) the question was finally decided,

the decision operates as res judicata between co-defendants.

27. He next cited three cases to show that a Court has to look to the judgment, as well as the decree, to determine a question of res judicata. These cases are : Magniram v. Mehdi Hossein Khan I.L.R. (1903) Cal. 95 Abdul Gani v. Nabendra-kishore Ray I.L.R. (1929) Cal. 258 and Krishna Chandra v. Challa Ramanna (1931) 34 Bom. L.R. 508 P.C.

28. On the question of whether a defendant can appeal or not the cases relied on were: Krishna Chandra v. Mohish Chandra Saha (1905) 9 C.W.N. 584 Jamna Das v. Udey Ram I.L.R. (1898) All. 117 Kandiyil Cheriya Chandu v. The Zamorin of Calicut I.L.R. (1903) Mad. 515 Yusuf Sahib v. Durgi I.L.R. (1907) Mad. 447 and Venkateswarlu v, Lingayya I.L.R. (1924) Mad. 633

29. The present plaintiffs' written statement in the former suit is Exh. 47, and may be summarized as follows-

1. That they had never been in possession of the Poona house and were not liable to account.

2. That they had never obstructed plaintiff and so were not liable for his costs.

3. That the father of defendants Nos. 4 and 5, deceased Chintaman, was a full brother of the plaintiff and had lived separate from the deceased Ramchandra with the plaintiff. That was about thirty or thirty-one years earlier. That at that time there were four sharers in the plaint property, namely, the plaintiff, defendant No. 10, Ramchandra and Chintaman deceased. The quarter share of deceased Chintaman fell to the share of his sons and heirs, defendants Nos. 4 and 5, after him. The same should be divided and given to defendants Nos. 4 and 5 along with the share of the plaintiff. Defendants Nos. 4 and 5 were willing to pay the Court-fee stamp for the same.

4. That the income due on their share should be awarded to defendants Nos. 4 and 5.

5. That defendants Nos. 4 and 5, since 1907, had been paid Rs. 25 per mensem by defendant No. 1, and that this being allowed for, account should be taken.

30. The last paragraph deals with Ramchandra's will which both sides now admit was invalid, the statement made in it that the property was self-acquired being untrue, as it is ancestral. ' Therefore the Court should declare that will as void.'

31. On the plaintiffs' then written statement, I think, it is plain that they had sided with the plaintiff and adopted his case, and the issue decided by the High Court was the one of fact as between the then and present plaintiffs against the then and now defendants Nos. 1, 2 and 3.

32. If my view is correct, then, on the authority of the rulings cited before us, I think that plaintiffs' present claim is barred by the decision in the former suit.

33. The original Court's decree must be reversed and the plaintiffs' claim and suit must be dismissed with costs.


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