Goplarao Ekbote, J.
1. This Letters Patent Appeal is from the judgment of our learned brother Obul Reddi J. given in Appeal No. 446 of 1961 on 1st August. 1967 whereby the learned Judge allowed the appeal and dismissed the plaintiff's suits.
2. The material facts in order to understand the arguments raised before us may briefly be stated. The plaintiff. who is the appellant before us, instituted O.S. No. 75 of 1960 alleging inter alia that out of his own earnings he advanced various sums of money to Rajeswari Amma, the 2nd defendant. He first advanced on 30-12-1942 a sum of Rs.3,000 and the 2nd defendant executed a registered unufructuary mortage infavour of the plaintiff. Subsequently on 29-3-48 he advanced Rs.3,000/-. On 7-5-1950 he advanced Rs.2,000/- and on 7--1951 advanced Rs.2,000/- and for all the three loans, Rajeswari Ammal, the 2nd defendant, executed three mortgage deeds separpaely. The mortage deeds were taken in the name of the 3rd defendnat. who is the wife of the plaintiff. The plaintiff was advised that the three simple mortgage deeds should not be taken in his own name as it might involve some complications. The plaintiff therefore took all the three deeds in the name of his wife although the loans were advanced by him.
3. While, so trouble arose between the plaintiff and the 2nd defendant when the plaintiff demanded return of the money advanced by him. The plaintiff filed a suit on one of the mortage deeds dated 7-5-1950 executed by the 2nd defendant benami for the plaintiff. The plaintiff bore the costs of the suit.
4. In the mean while, the 2nd defendant mortgagor sold the schedule mentioned properties to the 1st defendnat on 22-7-1959 for Rs. 12,590/0. subject of course to all the mortgages. The plaintiff thereupon issued a notice to the 1st defendant on 29-7-1959 informing that the real person to receive the money is the plaintiff on account of all the four mortgages and not the 3rd defendant. That 1st defendant. however, gave a reply on 1-8-1959 that inregard to three mortgages the money is payable only to the 3rd defendant.
5. The suit, which was instituted by the plaintiff in the name of his wife in regard to the mortage of 7-5-1950, was pending. The plaintiff learnt that the 3rd defendant was trying to compromise with the 1st defendant in O. S. No. 135 of 1959.
6. With these allegations the plaintiff instituted the suit for a declaration that the mortage money due under the three mortgages standing in the of the name the 3rd defendant is solely and exclusively payable to the plaintiff alone and not to the 3rd defendant. He also asked for the issue of an injunction restraining the 3rd defendant from recreating and defendants 1 and 2 from paying any portion of the debt to any one else other than the plaintiff.
7. The plaintiff also instituted O.S.No. 34 of 1960 for the recovery of the amount due on the three mortgages standing in the name of his wife against the mortgagor and the purchaser from her. He impleaded his wife as the 3rd defendant in that suit also.
8. The 1st defendant in his written statement contended that the purchased the property covered by the four mortgages from the 2nd defendant under a registered sale deed. He purchased the same subject to the mortgages. Soon after the purchase he paid off on 4-8-1959 the amount due on the simple mortage dated 7-5-1950 to the 3rd defendnat and obtained a receipt from her. The suit, which was filed for the enforcement of that mortage, i.e.. to say O.S. No. 135 of 1959. was thereupon dismissed on suit the plaintiff filed I.A. No. 522 of 1959 requesting the Court to impaled him as a party. It was, however, dismissed on 16-10-59. The application I.A. No. 492 of 1959, which was failed by the 1st defendant to impaled him, was allowed on 24-9-1959.
9. In regard to the usufructuary mortage dated 30-12-1942 the contention of the 1st defendant was that he filed an application O.P. No. 28 of 1959 on the file of the District Munsiff's Court, Chittoor under Section 57 of the Transfer of Property Act. The plaintiff raised several untenable objections. They wee, however, overruled and the petition was allowed on 26-10-1959. The 1st defendant deposited the amount due under the usufructuary mortage and the same is lying in the Court to the credit of the plaintiff. The 1st defendant obtained possession of the property covered by the said mortage on 10-12-1959. He disputed that the three mortgages executed in favour of the 3rd defendant were benami for the benefit of the plaintiff.
10. The 2nd defendant remained ex parte.
11. The 3rd defendant in her written statement denied the allegations made in the plaint that consideration of the three simple mortgages came from the plaintiff and not from the 3rd defendant She contended that if these mortgages were really for the benefit of the plaintiff. he could not have instituted the suit O.S. No. 135 of 1959 in her name. Merely because the plaintiff is in possession of the documents, he cannot be said to be entitled to the amount due on them. She contended that she advanced the loan out of her stridhana and it is she who is entitled to it.
12. The trial Court after framing appropriate issues and after a proper joint trial of both the suits came to the conclusion that all the three mortgages, although they stood in the name of the wife. were benami and it is the plaintiff who had advanced the loan on the 2nd defendant. As a result, both the suits filed by the plaintiff were decreed by a Common Judgment.
13. Aggrieved by the said judgment and decree, the 1st defendant preferred appeal No.446 of 1971 against the decree in O.S.No. 34 of 1960. He, however, confined the appeal inregard to the mortage dated 7-5-1950. He did not dispute the decree passed in a favour of the plaintiff on the other mortgages which stood in the name of the wife.
14. The 1st defendnat filed another Transferred Appeal No.66 of 1965 against the decree in O.S. No.75 of 1960, which as stated earlier. was a suit for declaration and injunction. The 3rd defendant, the wife, filed another appeal. Transferred Appeal No.65 of 1965, against the decree in O.S. No.75 of 1960. She however did not file any appeal against the decree on O.S.No. 34 of 1960. These appeals came for hearing before our learned brother Obul Reddi, J. It appears that Appeal No.446 of 1961 was dismissed against the 3rd respondent, who was the wife of the plaintiff, on the ground that the appellant gave her up on 23-7-1963. The learned Judge reached the conclusion that the plaintiff has failed to prove that he advanced the money inregard to the three mortgages and held it is the 3rd defendant who advanced the loan out of her stridhana property and it is she who was entitled to the amounts covered by the three simple mortgages. He also held that the amount due on the mortage deed dated 7-5-1950 was paid by the 1st defendant on 4-8-1959 to the 3rd defendant. The plaintiff was not entitled to any decree in regard to that amount As a result, the learned Judge allowed the appeal and dismissed both the suits of the plaintiff. It is this view that is now assailed in the Letters Patent Appeal.
15. The principal contention of Sri T.S. Narasinga Rao the learned Counsel for the appellant, is that there is enough evidence to hold that the plaintiff advanced the loans in regard to all the three simple mortgages and not the wife. He tool us through the entire evidence.
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[After discussing the evidence given by. Ws. 1 to 4 their Lordships continued]
16 to 19. From this evidence it will be clear that the plaintiff has miserably failed to prove that he had enough funds to advance. that he in fact advanced the loan on the three simple mortgages and for some valid reason he allowed the documents to be executed though he happens to be the real beneficiary.
20. It is now well settled that the onus of establishing a transaction of benami lies heavily on the person asserting beneami nature of the transaction. He speaks contrary to the tenor of the document and therefore has to prove the nature of benami by clear and unambiguous evidence. He cannot ask the Court to rest the decision on mere surmises or suspicion. If there is no satisfactory evidence, it is obvious that the apparent title must prevail . The real test in all such cases is the source whence the consideration came, and if the evidence does not reach the standard required in such cases, then effect must be given to the document, of doubt that the learned Judge was right in rejecting the evidence of the plaintiff. The trial Court obviously went wrong in holding that the 3rd defendant was the benamidar for the plaintiff. Exhibit A-4, by which the 2nd defendant agreed to pay the interest due on the mortgages to the plaintiff and defendant to the 3rd defendant. cannot from the basis for holding that the transaction are beami character. Those documents, in our view, do not support any such plea. The contention of the learned Advocate for the appellant that the wife was not interested in prosecuting the appeal which she filed in the High Court and therefore we should draw inference that it is the plaintiff who must have advanced the one cannot accepted as valid. We therefore agree with the conclusion of the learned Judge that the three mortgages executed in favour of the 3rd defendant are not of benami character. It is the 3rd defendant who is entitled to the amount of the said mortgages and not the plaintiff.
21. We are also satisfied that the amount in regard of the simple mortage dated 7-5-1950 was paid by the 1st defendant on 4-8-1959 to the 3rd defendant who was entitled to receive it and give discharge.
22. The real contention of the learned Advocate for the appellant firstly was that in the absence of the wife. Tr. Appeal No.65 of 1965 could not have been considered and disposed of on merits by the learned Judge. It is true that the wife was not present at the time when the appeal was called on for hearing. It is, however, now settled that even in the absence of the appellant the Court had jurisdiction to either dismiss the appeal for default or dispose if of on merits. See Serawathi Bai v. Ramaiah, 1970 Andh LT 296. We do not therefore find any substance in this contention.
23. It was then contended that Appeal No.446 of 1961 was confined only to the claim decreed in favour of the plaintiff in regard to the mortage of 7-5-1950. Since the decree of the trial court in favour of the plaintiff in regard to the other two mortgages become final and as the basis for passing the decree in regard to all the three mortgages is the same, Appeal No.446 of 1961 is barred by the principles of res judicte. In support of his contention the learned Advocate relied upon Narendranth v. Ganesh Prasad, AIR 1946 Pat 408 . In that case, the plaintiffs-respondents were granted two relieves, first a declaration of title and secondly a decree for possession. Their right to second relief depended on the very same facts which gave rise to their title. Appeal was preferred only against the relief of declaration of title and not against the decree for possession. It was held by a bench of the Patna High Court that 'the decree for possession would therefore operate as res judicata on the facts necessary to establish their rule. So long, therefore, as the decree for possession remains intact it would operate as res judicata to prevent the appellant from challenging the decree declaration of title.' The learned Judge relied in support of their conclusion upon a decision of Anatakrishna Ayyar, J, in Pichai Konar v, Narasimha Rama Iyer, AIR 1930 Mad 471.
24. In so far as this proposition goes, no fault can be found with it. The basis in regard to all the three mortgages is the same, that the three mortgages is the same, that is to say, that the transaction are of benami character As it is the plaintiff who advanced the money although in the name of the wife. The 1st defendant therefore could not have preferred an appeal only against one mortgage leaving the findings in regard to the other two intact. The findings in regard to the other two mortgages being that it is the plaintiff who is entitled to the other two mortgages being that it is the plaintiff who is entitled to the money and not be wife would operate as res judicta and the 1st defendant would be stopped from continuing the appeal only in regard to the third mortgages. On that ground Appeal No.446 of 1961 could be dismissed. It is also relevant in this connection to note that the appellant gave up the 3rd respondent and appeal was dismissed against the wife. Without her presence. it is obvious that the appeal could not have been makes her presence necessary if that is to be set aside by the appellate Court. On both the grounds therefore, Appeal No.446 of 1961 can be dismissed.
25. That does not, however conclude the matter. There is another appeal filed by the 1st defendant Tr. Appeal No.66 of 1965, against the decree in O.S.No. 75 of 1960. We have already noticed that the decree was in the suit seeking declaration by the plaintiff that the amount covered by the three mortgages belongs to him and all the three transactions are of beneami nature. There is also the appeal of the 3rd defendant-wife. Tr. Appeal No.65 of 1965, against the decree in the same suit, that is to say O.S. 75 of 1960. It is not disputed that O.S. No. 34 of 1960 and O.S. No.75 of 1960 with consent were tried together. Common questions admittedly are involved in both the suits the principal question being as to whether the three mortgages are of benami character. the plaintiff being the beneficiary. It is in these circumstances that we have to consider as to what is the effect of the dismissal of Appeal No.446 of 1961 on the grounds of the principles of res judicata and non-joinder of a necessary party
26. The real question therefore is as to when the decision in one suit operates as res judicata in cases where two suits are tried together.
27. The question camp up before the supreme Court in Narahari v. Shanker, : 1SCR754 , The facts of that case were as follows: A had instituted a suit for possession of two-thirds share in estate against B and C who claimed a one-third share each. The was decreed by the trial Court. B and C preferred separate appeals. Those appeals were heard together and disposed of by the same judgment but separate decrees were prepared. A preferred an appeal from one of those decrees within the period of limitation and later on after the period of limitation had expired preferred an appeal from the other decree also, It was held by the Supreme Court that as there was only one suit and the appeals had been disposed of by the same judgment it was not necessary to file two separate appeals and the question of res judicata did not at all arise in the case. their Lordships approved the decision in Mt. Lachmi v. Mt. Bhulli, AIR 1927 Lah 289 (FB). It was observed:
'It is now well settled that where there has been one trial one finding and one decision, there need not be two appeals even though two decrees may have been drawn up.......... The estoppel is not created by the judgment. The question of res judicial arises only when there are two suits. Even when where are two suits. it has been held that decision given simultaneously cannot be a decision in the former suit.'
28. At learnt three classes of cases involving consideration of the doctrine of res judicata in such cases are conceivable. One class illustrates cases of errors suits, each suit having the same subject-matter, the same issue and the same parties though different arraigned that is plaintiff in one suit is defendant in the other, or plaintiffs filing two suits for two relieves involving the same question of fact the subject-matter being the same. The second or the next class of cases are those in which the party appealing from one of the decrees involving a common issue is not competent to appeal from the other decree or decrees as he is the winning party there in the latter class. the relieves or subject-matters may not be identical in all of them. The third case is the one in which scopes of the suits tried together. and involving a common issue are different, the parties are not identically the same and the appellant party having been a loser in the decrees not appealed from could prefer an appeal but did not do so and allowed the decrees to become final.
29. It is the first class with which we are concerned. In first named class challenges of one decree in appeal amounts in substance though not in form to challenges of other and the adjudication in appeal covers the same subject-matter in the presence of the same parties. In such cases, if no appeal is filed from one decree, it does not operate ad res judicata in the appeal filed against the other decree as it covers the entire subject-matter involved in both the suits. That is what the Supreme Court has laid down in the above said case. It is therefore clear that when the matter in issue in two suits was the same and finding in one suit either has been adopted in the other or a common judgment is given in both the suits and two decrees are separately prepared, an appeal against one of these decrees is not barred by res judicata on the ground that no appeal was filed against the other decree. This view was even earlier taken by Panchanda Velan v. Vaithinatha Sastrial. (1906) LIR 29 Mad 333 (FB). Ramaswamy Chetty b. Karuppan Chetty, AIR 1916 Mad 1113, and Govindayya, v. Ramamurthi, AIR 1941 Mad 524.
30. It is true that in Badri Narayan v. Kamdeo Prided, : 3SCR760 , the earlier cited Supreme Court case, that is to say : 1SCR754 came to be considered. Extracting the relevant passage from the said decision appearing at page 420 which is as follows:
'It is now well settled that where there has been one trail, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.'
Their Lordships observed:-
'This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals and consequently of one decision on those common points in all the appeals.'
31. The facts in the later Supreme Court case were; A filed an election appeal in the High Court against the order of the Election tribunal, setting aside his (A's) election on the ground of corrupt practice. B. the election petitioner also filed an appeal in the High Court, against the order of the Election-Tribunal not declaring him to be duty elected. Both the appeals were disposed of by the High Court by one Judgment. It dismissed A's appeal though on a different finding that A was the holder of an office of profit under the State, and allowed B's appeal declaring hum duly elected. Separate decrees were prepared in the two appeals. A filed an appeal in the Supreme Court against the order in B's appeal alone. It was held by the Supreme Court distinguishing its previous decision in : 1SCR754 on facts and on the ground that it dealt with the interpretation of Section 11 and that the observations from that case quoted above did not apply to cases which were governed by the general principles of res juricata, that the appeal was barred by the principle of resjudicate, inasmuch as A did not appeal from the decree in his own appeal, whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside A's election.
32. What emerges from the two decisions of the Supreme Court referred to above is that where the suits or appeals raise only common issues for decision and there has been one trial, one finding and one decision, an appeal raise only common issues for decision and there has been one trial, one finding and one decision, an appeal against the decree is one suit or the appeal will not be barred by res judicate by not filing a appeal against the decree in the other suit or the appeal. But where the subject-matter of each of the two suits or the appeals is different and the decision in the two proceedings thus stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceedings will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceedings.
33. It cannot be doubted that where two suits having a common issue are tried together and disposed of by a single judgment or by two judgments, one incorporating the other there is in substance only one trial and one verdict and there is no question of a party being vexed twice over the same matter.
34. If we examine the facts of the present case in the light of the principles stated above, it will immediately be plain that in both the suits the common question was as to whether the three mortage deeds executed in favour of the wife were of benami nature meant for the benefit of the plaintiff-husband. Except this common question, there was no other question which can be said to be confined to one or the other suit and could be said to have been separately dealt with in that suit alone. The entire dispute in both the suits covered the common ground as they were tried and disposed of together by a single judgment. and there can be no difficulty in holding that in substance there was only one trial and one verdict and in these circumstances there is no question of a party being vexed twice over the same subject-matter which would attract the principle of res judicata. Thus even though Appeal No.446 of 1961 is dismissed, the other two appeals, Tr. Appeals Nos. 65 and 66 of 1965. cannot be said to be barred by the principle of res judicata . All the three appeals arose out of a common trial and verdict which involved common questions of fact and law. Even if Appeal No. 446 of 1961 was not preferred or even if preferred was dismissed either on the ground of limitation or on any other ground such as res judicata, that will not deprive the other parties who had preferred the appeals covering the same ground from continuing to prosecute the same. Section 11 or the principles of res judicata is not I do not feel any heistation in rejecting his contention also.
35. It is also pertinent in this connection to note that the plaintiff himself has filed only one appeal as against Appeal No. 46 of 1961. He did not prefer any appeal in the other two appeals, that is to say. Tr. Appeals Nos. 65 and 66 1965. The consideration being the same, one appeal in the circumstances mentioned above, is maintainable and he was right in filing only one appeal. He cannot however, try to apply other measures to the cases of the defendants.
36. Since no other contention was raised the appeal fails and is dismissed with costs.
37. Appeal dismissed.