1. The defendants Nos. 2 to 5, sons of one Soku Mudali, are divided brothers and alleged by the plaintiff to be reversioners to the estate of their uncle Muthia Mudali.
2. The plaintiff claiming as the mortgagee and purchaser of the one-fourth share of the fifth defendant, sues for partition and to recover possession of that share from the first defendant who denies that the fifth defendant is a reversioner and sets up his own title as the adopted son of the deceased Muthia Mudali. The plaintiff contends that the first defendant is estopped from raising this plea by the decisions in Original Suit No. 321 of 1893, Appeal Suit No. 246 of 1895 and Second Appeal No. 1289 of 1897.
3. That suit was brought by defendants Nos. 2. to 4 as reversioners to the deceased Muthia Mudali to recover the entire property including the fifth defendant's share from the first defendant who set up the same plea, of adoption now put forward by him. The fifth defendant was made a third defendant on account of his refusal to join as plaintiff and allowed the suit to proceed ex parte.
4. The first defendant's alleged adoption was declared invalid and a decree was given by the appellate Court in favour of the plaintiffs overruling the contention that they were only entitled to their share and not to the share of the present fifth defendant: that Court holding that the fifth defendant could afterwards obtain his share on partition from his brothers.
5. The High Court, however, reversed the decree so far as the fifth defendant's share was concerned, the suit to recover that share was dismissed and the defendants Nos. 2 to 4 in this suit, the plaintiffs therein, were held entitled only to their three-fourths share.
6. Conceding that after the decision in the second appeal that suit must now be treated as one brought by the present defendants Nos. 2 to 4 for their share only of the property, it is contended by the plaintiff that the first defendant is estopped by the decision in that suit that his adoption is invalid from again relying upon it : that the plaintiffs in that suit represented their brother, the fifth defendant, who was jointly interested with them in the property and they were therefore then litigating in respect of a right claimed by them in common with the fifth defendant--See explanation 5 to Section 13 of the Civil Procedure Code--and reliance is placed upon the decisions in Chandu v. Kunhamed I.L.R. M. 324 approved in Latchanna v. I.L.R.. 18 M. 164.
7. It is contended on behalf of the first defendant that the fifth defendant was not in any way interested in that suit, as it must be now treated as having been brought by the then plaintiffs for the rec6very of their share only, that they did not sue for such share for themselves and on his behalf, that the right put forward was not a common and indivisible right, that the explanation 5 to Section 13 must be confined to cases where leave to sue has been obtained under S : 3) of the Civil Procedure Code and that the case in Chandu v. Kunhamed I.L.R. 14 M. 324 has been disapproved in Mahabala Bhatta v. Kunhanna Bhatta I.L.R. 21 M. 373 and if the fifth defendant is not estopped then the first defendant cannot be estopped.
8. The question that is referred to us for decision is whether the 1st defendant's claim is res judicata.
9. If Chandu v. Kunhamed I.L.R. M. correctly declares the law, then the plaintiff's contention must be upheld.
10. But we are of opinion that that decision ought not to be followed and it proceeds on a wrong view of the scope of explanation 5 to Section 13 of the Civil Procedure Code.
11. The rule of English Law is thus stated in Vol. I of Daniell's Chancery Practice, 7th Edn., page 197, ' In order to enable a person to sue on behalf of himself and others who stand in the same relation with him to the subject of the action, it is generally necessary that it should appear that the relief sought by him is beneficial to those whom he undertakes to represent; where it does not appear that all the persons intended to be represented are necessarily interested in obtaining the relief sought, such a suit cannot be maintained.'
12. The authorities in support of this statement of the law are cited.
13. Judged by this test, it is clear there is no estoppel. The fifth defendant under whom the plaintiff claims was not interested in the then plaintiffs, his brothers, obtaining their share of the property : he was certainly not necessarily interested and he would not benefit by a decree in their favour for the relief granted to them.
14. The only reported cases in India to which our attention has been drawn are to the same effect.
15. In Gopalayyan v. Raghupati Ayyan 3 M.H.C.R. 217 a member of a Hindu family brought a suit for his share of the family properties, all the other members being defendants and to ascertain what his share was it became necessary to decide whether the first defendant was adopted into that family. The decision that he was adopted was held in a subsequent suit not to be binding on the plaintiff therein, another member of the family, claiming his share of the property. Similarly in Nabin Chandra Muzumdar v. Mukta Sundari Debi 7 B.L.R. App. 38 the plaintiff in the first suit claimed to recover his share of his father's estate held by the defendant, who alleged title under a will left by the father, making his brother co-defendant. The decision that the will was genuine was held not to be binding on his brother, the co-defendant in the first suit, in a suit that was subsequently brought by him to recover his share of the property.
16. It is contended before us that whatever was the law before, explanation 5 to Section 13, Civil Procedure Code, now makes it clear that a co-owner in the circumstances above stated would be barred and that the decision in the first suit brought by the other co-owners would be binding on him.
17. We are unable to accede to this contention. Under Section 26 of the Civil Procedure Code, the persons who are to be joined as plaintiffs are those 'in whom the right to any relief claimed is alleged to exist' as stated therein. The plaintiffs in the first suit can be held to represent the plaintiff in the second suit under explanation 5 to Section 13 only if the latter has any ' right to any relief' claimed in the first suit. Then alone, using the words in the explanation 5, are the plaintiff in the first suit litigating in respect of a right claimed in common with the plaintiff in the second suit. This is strictly in accordance with the rule of English Law as cited above and is supported by the Full Bench decision in Surendernath Pal Chowdhry v. Brojonath Pal Chowdhry I.L.R. 13 C. 352.
18. In that case the plaintiffs sued to recover their share of the rent from defendants. Another co-sharer in the same estate had previously sued for his share making the plaintiffs in the second suit co-defendants. These co-defendants allowed the suit to proceed ex parte. With reference to the question of res judicata the High Court held ' If the former suit had been dismissed, could it have been said that the now plaintiffs are barred? Might they not have said, we had and have to do with our own share. We neither knew nor cared about other people's shares. Why should we have meddled in their suit?' i. e., the plaintiffs in the second suit were not interested in the relief prayed for in the first suit and the relief that they claimed in the second suit was not claimed in the first suit.
19. We agree with this judgment. The 5th defendant in the present suit is not interested in the relief that may be granted to the plaintiffs in the first suit. The conduct of the suit was not in his hands and with reference to the share of the plaintiffs in that suit he could not have been made co-plaintiff. He gets no advantage therefore from that suit. He cannot enforce any rights of his own under that decree. He cannot get his share and ho could not have appealed.
20. The case in Chandu v. Kunhamed I.L.R. 14 M. 324 is undoubtedly in favour of the respondent. But no reasons are given in that judgment. For the reasons given above, we are unable to hold that that case was rightly decided.
21. The case in Madhavan v. Keshavan I.L.R. M. 191 has no application. There, a decision dismissing a suit brought on behalf of a devasom by one trustee to recover lands alleged to have been illegally alienated was held to be binding on another trustee who brought a suit for the same relief.
22. We are therefore of opinion that the fifth defendant and the plaintiff are not barred by any decision in that suit and the first defendant therefore is not barred.