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Gangaram Balkrishna Sawant Vs. Vasudeo Dattatraya Kirloskar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 794 of 1917
Judge
Reported inAIR1923Bom203; (1923)25BOMLR268; 73Ind.Cas.912
AppellantGangaram Balkrishna Sawant
RespondentVasudeo Dattatraya Kirloskar
DispositionAppeal dismissed
Excerpt:
.....property. the defendants in the later sub contended that the property in their hands was not joint family property. a question having arisen whether the defendants were barred by res judicata in advancing the contention.; that even assuming that all the defendants in the earlier suit collectively resisted the claim to a share made against them as a group by the plaintiff, and were defeated, unless it could be shown that there was a necessity that the question whether the nine tenths was joint family property in their hands should be decided in order to give relief to the plaintiff, then no question of res judicata could arise in a later suit between those parties.; ramchatidra narayan v. narayan mahadet (1886) i.l.r. 11 bom. 216, applied.; nalini kanta v. sarnamoyi debya (1914) 17.....norman macleod, kt., c.j.1. the plaintiff filed this suit for partition of property alleged to be joint family property, claiming one-tenth share therein. the property originally no doubt was the joint family property of the kirloskars. the pedigree of the family appears at p. 23 of the print. it shows that several generations back the family had been split up into two branches, and undoubtedly, for years, various members of each branch have been alienating portions of the family property as if they were separately owned. apparently the allegation of the defendants who contest the plaintiff's suit is that there was a partition of the family property so far back as 1823. the evidence shows that the whole of the family property has got into the hands of strangers. the plaintiff seeks to set.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit for partition of property alleged to be joint family property, claiming one-tenth share therein. The property originally no doubt was the joint family property of the Kirloskars. The pedigree of the family appears at p. 23 of the print. It shows that several generations back the family had been split up into two branches, and undoubtedly, for years, various members of each branch have been alienating portions of the family property as if they were separately owned. Apparently the allegation of the defendants who contest the plaintiff's suit is that there was a partition of the family property so far back as 1823. The evidence shows that the whole of the family property has got into the hands of strangers. The plaintiff seeks to set aside the alienations made by various members of the family, and to get back one-tenth of what was originally the family property on the ground that the property is still joint, and that he is entitled, in spite of those alienations, to his proper share therein. The first issue, the main issue in the suit, was whether the plaint property was the joint property of the parties, Kirloskars. That issue was found in the negative. Both the lower Courts have come to the conclusion that very many years ago there had been a partition certainly between the two branches, and the plaintiff's branch had nothing to do with the other branch. The plaintiff', however, relies upon the principle of res judicata, as estopping the defendants from contesting his claim to partition.

2. The plaintiff's contention has been disallowed in both the lower Courts, and has been fully argued by the appellant's counsel in this Court. The plaintiff' relies upon the proceedings in Suit No. 345 of 1890. That was a suit filed by Sakharam, one of the five sharers of Rama's branch in the pedigree at p. 23. The plaint is drawn in a very ambiguous manner. It stated that 'certain lands and the whole village of Kirloo formed the undivided joint ancestral property of the plaintiff and defendants 1-4 and 10-21, the share of the plaintiff and defendants 1-4 being half and that of defendants 2-21 half, that these latter held separate property as their share from a long time, the plaintiff's share in his own branch is one-fifth and not the whole property one-tenth, that if defendants 10-21 confirm the old private partition the plaintiff should be awarded one-fifth of such property as is held by his own branch or otherwise one-tenth in the entire property.' Owing to various alienations whioh had already been then made, the only contesting defendant in that it was defendant No. 5 who set up a mortgage by other members of Sakharam's branch. Sakharam contended that that mortgag was not binding on his share. That contention prevailed. It is quite true that the decree seemed to have directed that the plaintiff was entitled to one-tenth of the whole property, but a direction in the decree is given that if the plaintiff's share in the Khasgi lands held by his own branch consisting of himself and his own brothers can be made up from other lands held by that branch of similar quality then in that case the lands mortgaged to defendant No. 5 should in partition be allotted to the shares of defendants Nos. 1-4 and continued in the possession of defendant No. 5.

3. There is no evidence to show how that decree was carried out or whether in execution the plaintiff obtained any properties that were in the possession of members of the other branch or their alienees.

4. But the question now before us is whether the other persona who were entitled to nine-tenth of the whole property were barred by the decision in that suit from contending thereafter that the nine-tenth which remained in their hands was not joint family property, so that they were bound by the finding in that suit to partition nine-tenth on a partition being asked for by any member of the other branch. Apart from that, it is clear to my mind that there is no direct finding that the whole of the property which was originally joint was still joint at the time of this decree.

5. The principle to be followed in deciding the question whether a matter is res judicata as between co-defendants in a suit was laid down in Ramchandra Narayan v. Narayan Mahadev I.L.R. (1886) 11 Bom. 216. The head-note says:

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 for this effect to arise, there must be a conflict of interests between the defendants and a judgment defining the real rights and obligations of the defendants inter se. Without necessity, 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.

6. Applying that dictum to the facts of this case, even assuming that all the defendants in the suit of 1890 collectively resisted the claim to a share made against them as a group by the plaintiff, and were defeated, unless it could be shown that there was a necessity that the question whether the nine-tenth was joint family property in their hands should be decided in order to give relief to the plaintiff, then no question of res judicata could arise in a later suit between those parties. It is obvious from the judgment in the suit of 1890 that the present question was never at issue. There was no necessity to decide whether as between the persons who might be entitled to the remaining nine-tenth of the family property, that property in 1890 was joint or separate The decision in Ramchandra v. Abaji (1886) P.J. 15 is not in conflict with the decision in Ramchandra Narayan v. Narayan Mahadev as that decision was referred to by Mr. Justice West and distinguished. In the former case their Lordships referred to certain Calcutta cases in which it was laid down that:

The material point for deciding whether a matter had become res judicata Under Section 13 is whether it was directly and substantially in issue between the game parties and was finally decided. If the issue is clearly raised between the several parties to the suit and adjudicated, it matters not that the parties were marshalled in the one case differently from the other.

7. That is an entirely different question from the one which came before this Court in Ramchandra Narayan v. Na ray an Mahadeo where the teat was whether there was the necessity to decide the point, whether as a matter of fact it was ever raised between co-defendants, and whether it was decided. That decision has been consistently followed by this Court. I need only refer to the decision of Hari Annaji v. Vasudev Janardan I.L.R. (1914) 38 Bom. 438 : 16 Bom. L.R. 283.

8. No doubt in a partition suit all the parties who are interested in the property to be partitioned occupy much the same position whether they are plaintiffs or defendants, and a party claiming or resisting partition whether he is plaintiff or defendant is bound by the decision of the Court. But in this case none of the parties were claiming or resisting partition except the plaintiff, and therefore any questions regarding partition which might thereafter arise between the defendants in that suit remained open to be decided. Nor is the decision in Nalini Kanta v. Sarnamoyi Debya (1914) 17 Bom. L.R. 1 of any assistance to the plaintiff. In that case there had been a succession of suits for partition by various members of the family until there was only one left who had not filed a suit for partition, with the result that all the members who had filed suits bad got their shares, and the balance of the property remaining in the hands of the last member of that family represented his share, He claimed that as a result of the various partitions what was left to him was less than his legitimate share in the family property. He sought to re-open the various partitions which had taken place in consequence of the suits brought by the other members of the family, and it was held that the various partitions made were binding upon him. That does not in any way touch the question now before us whether between the defendants in the suit of 1890, the question whether the property was joint or separate is res judicata. What the plaintiff seeks to do in this suit is to recover a share in the whole property after his own interest in his own branch had been alienated and after the other members of the other branch had alienated their properties. It is perfectly clear that he is not entitled to upset the various dealings with the family property which had taken place over a very lengthy period. The original plaintiff seems to have alienated his interest, whatever it might be worth, in this property pending the first appeal, and the present appellant is really a purchaser of litigation. In my opinion the appeal must be dismissed with costs.

Crump, J.

9. I agree.


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