1. The facts of this case are shortly as follows. The present plaintiff Dhondo and the present defendant No. 1 Rakhminibai filed a suit No. 77 of 1905, as co-plaintiffs, against one Chinto to recover possession of certain ornaments. In the plaint it was alleged that the ornaments belonged to the estate of Mahadeo, father of Dhondo and the husband of Rakhminibai; and the co-plaintiffs asked for a declaration that the property belonged to such one of them, either Rakhminibai or Dhondo, as might be held entitled by the Court.
2. The Court of first instance who tried that suit held that the property belonged to Rakhminibai, because in the opinion of that Court they were her stridhan ornaments.
3. There was an appeal by Chinto, and the appellate Court confirmed the decree on the ground that the ornaments were Rakhminibai's, because the second plaintiff in that suit, namely Dhondo, had not been proved by the evidence upon the record to be the son of Mahadeo. Therefore, there was a decree in that suit that the ornaments belonged to Rakhminibai, the appellant before us.
4. In the present suit, which has led to this second appeal Dhondo, respondent before us, alleges that the ornaments which formed the subject matter of the previous suit, and certain other property, not covered by the decree in that suit belonged to the estate of Mahadeo; that he is his; legitimate son, and in consequence, entitled to both the ornaments and the other property. Both the Courts below have awarded his claim and held that he is entitled not only to the immoveable property which was not covered by the plaint in the previous suit, but also to the ornaments which formed the subject matter of that suit.
5. The decree of the Court below in the present suit is assailed in second appeal before us, first, upon the ground that the claim of the plaintiff with reference to the ornaments is res judicata; and the learned Counsel for the appellant Rakhminibai relies upon Section 26 of the old Code of Civil Procedure which applied to this litigation, having been in force at the time the plaint was filed, and also upon the principle of certain decisions of this Court, the leading decision being in the case of Ramchandra Narayan v. Narayan Mahadev ILR (1886) 11 Bom. 216.
6. Section 26 of the old Code of Civil Procedure provides :
All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative, in respect of the same cause of action. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as ho or they may be entitled to, without any amendment.
7. It is contended by Mr. Jayakar, for the appellant, that when two co-plaintiffs bring forward a claim, and ask for a decree in favour of either one or other of them in the alternative, and the Court grants relief to one of the plaintiffs, the finding that that plaintiff is entitled to the relief on the ground of the title proved becomes res judicata in any subsequent suit between the said co-plaintiffs for the same subject matter and in support of that contention reliance is placed upon the principle of the decision to which we have already referred where it was held by this Court that ' where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, the adjudication will be res judicata between the defendants as well as between the plaintiff and defendants. ' But as was said there ' without necesssity a judgment will not be res judicata amongst defendants, nor will it be res judicata amongst them by mere inference from the fact that they have been collectively defeated in resisting a claim to a share made against them as a group. '
8. It is contended that the same principle applies as between co-plaintiffs. Assuming it does, the question is whether the principle can be held to apply to the facts of the present case. In our opinion it cannot be held to apply. The Court ought not to hold a point to be res judicata unless it is clear from the pleadings and the findings in the previous suit, and as has been held in several decisions 'no Court ought to infer res judicata by mere arguments from a judgment in a previous suit' : See Attorney General for Trinidad and Tobago v. Eriche  A.C. 518.
9. In the previous suit, no doubt, the Court of first instance held that Rakhminibai was entitled to as ornaments, because in the opinion of that Court they were her stridhan; the second Court held that Rakhminibai was entitled to those ornaments, not because they were her stridhan, but because she was the absolute owner of the property. These findings cannot be treated as res judicata as between co-plaintiffs in that suit, that is, as between Rakhminibai the defendant, and Dhondo, the plaintiff in the present suit, because no issue was raised in the Court of first instance in that suit which brought out the question in a pointed form. The only question that was raised there was whether Rakhminibai was the absolute owner of the property. Now, that issue was capable of construction in only one way, namely, whether she took the absolute estate of her deceased husband as a Hindu widow. Still the Subordinate Judge was of opinion that she was the absolute owner of the ornaments because they were her stridhan. The second Court held in her favour, but upon another ground. We cannot say that there was a final adjudication as between Rakhminibai and Dhondo which made it res judicata for the purpose of any subsequent litigation. The principle of Ramchandra Narayan v. Narayan Mahadev ILR (1886) Bom. 216 is wanting in the facts of the present litigation. As was held in that case a finding in a suit as between co-defendants becomes res judicata in a subsequent suit only when it was essential for the purpose of giving relief to the plaintiff in the previous suit. So also as between co-plaintiffs a finding to become 'res judicata must have been essential for the purpose of giving relief against the defendants. Now here in the previous suit it was a matter of no consequence whatever to the defendant therein for the purposes of the relief to be given against him whether Rakhminibai succeeded or whether Dhondo succeeded. Therefore, the plea of res judicata raised in this second appeal must be disallowed.
10. But the appellants are entitled to succeed as to the ornaments upon another ground. The plaintiff came into Court alleging that he was the owner of the ornaments. The burden of proof lay upon him to show that the ornaments belonged to the estate of Mahadeo; that they were not the stridhan of Rakhminibai, and therefore, he ought to have given evidence , to prove his allegations. The bulk of the evidence was directed towards proving whether Rakhminibai was the widow of Mahadeo or not. The Subordinate Judge held that the ornaments belonged to Mahadeo's estate, because it had been so held in the previous suit and probably it was also the ground on which the Subordinate Judge in the appellate Court has proceeded. But if the finding in the previous suit cannot be treated as res judicata it cannot be used against either of the parties. The plaintiff was bound to prove his case. And although we cannot take into consideration the evidence in the previous suit, yet we have the fact that appellant obtained a decree entitling her to the ornaments and that the respondent was a party to it. The burden lay upon the plaintiff to prove that the ornaments were not the stridhan of Rakhminibai.
11. In this case the plaintiff has not discharged the onus which lay upon him. The facts stand thus: Rakhminibai has a decree in her favour; to that decree Dhondo was a party; the plaintiff has not proved that the ornaments are not the stridhan of Rakhminibai. On these grounds the decree of the Court below, so far as the ornaments are concerned, must be reversed. We must, therefore, amend the decree by deleting that portion of it which relates to the decree in original suit No. 77 of 1905 and the ornaments there concerned. The plaintiff is declared to be the owner only of such property as is not covered by the decree in that previous suit.
12. The decree must be amended accordingly.
13. Each party to bear his own costs throughout.