1. The plaintiff sued her brother and brother's sons in this suit for the recovery of certain immoveable property to which she claimed title under deeds of sale and gift from her father. Questions were raised at the trial whether these deeds represented real or sham transactions and whether the defendants had a good title by adverse possession for over the statutory period. The suit has been decreed in the plaintiff's favour, both the lower courts holding that the defendants are debarred from raising these defences by the decision in a prior suit O.S. No. 232 of 1910 on the file of the Court of the District Munsif of Koilpatti which makes these matters res judicata.
2. O.S. No. 232 of 1910 was a suit brought by the assignee of a mortgage to enforce a sale of the suit properties upon a bond executed by Muthulakshmi, who was 1st defendant in that suit and is the plaintiff in this suit. That suit was dismissed on the finding that the mortgage was a sham transaction devoid of consideration. The defendants in this suit were defendants 2 to 4 in that suit and they raised similar contentions when O.S.No. 232 was tried. Muthulakshmi then contended that they were unnecessary parties to that suit. The District Munsif M.R. Ry. M.A. Krishna Row, who tried that suit, was rightly of opinion that they were unnecessary, as they claimed under a title adverse to both the mortgagor and the mortgagee vide Jaggeswar Dutt v. Bhuban Mohan, Mitra I.L.R. (1903) C. 425 and he proposed to strike their names off the record. Nevertheless, as they insisted on continuing on the record, we weakly allowed them to remain.
3. Now it is argued that the lower Courts were wrong in treating the two findings in O.S. No. 282 of 1910, viz., (1) that the deeds of gift and sale to Muthulakshmi from her father were, real and genuine, and (2) that these defendants had not acquired any title by adverse possession, as res-judicata, seeing that the finding as to the enforceability of the mortgage bond was sufficient to justify the dismissal of the mortgagee's suit, and that although the mortgagee could and did appeal and the appellate court also decided these questions against the defendants, the result of the suit could not have been otherwise even if the findings on these two issues had been the other way. I think that this contention is right and tha the judgments of the Lower Courts cannot be supported on this ground. The decision in Venkata Raju v. Ramanna I.L.R. (1913) M. 158 quoted by the Djstrict Munsif has no bearing on the facts of this case, and it was an error to suppose that O.S. No. 232 of 1910 could have been dismissed on the decision of the two issues upon which the contentions of the defendants 2 to 4 failed. Following Vasudeva Kullayya v. Narayanappa (1911) M.L.T. 450 and Jadav Chandra Sarkar v. Kailsh Chandra Singh 21 C.W.N. 693, I am of opinion that there can be no res-judicata as between co-defendants in cases where it is not necessary to decide upon their conflicting interests in order to give the plaintiff the relief appropriate to his suit.
4. The respondent's vakil has not seriously attempted to support the finding as to res-judicata, but he argues that the defendants, having in the prior suit invited a decision upon these points, are estopped, not by record, but by conduct from turning round and saying in subsequent litigation between the same parties that that decision was wrong. If the principles of Section 115 of the Evidence Act are sought to be applied to the circumstances of the case there is no reason for suggesting that the plaintiff was led to alter the position that she has taken up all along, in consequence of these defendants persisting in being made parties to the mortgagee's suit. From the mere fact that the plaintiff was led to adduce evidence in the former case to substantiate her position it does not necessarily follow that she was prejudiced or induced to change her position by the defendant's inconsistent conduct. The decisions in Collier v. Walters (1873) L.R. 17 Eq. 252 and Aghore Nath Mookerjee v. Kamini Debi (1909) 11 C.L.J. 461 turned upon the construction of wills, and the decrees in the previous suits were of the nature of judgments in rent binding, all persons who were parties to them, The Master of the Rolls pointed out in Collier v. Walters (1873) L.R. 17 Eq. 252 that Willam Collier junior, the plaintiff in the subsequent suit, had made no attempt to impeach the correctness of the former decree and therefore he must be bound by it. In Kristo Gopal Shaha v. Kasheenath Skaha (1866) 6 W.R. 66 and in Bhajuchowdhury v. Chunni Lal Marwari 11 C.W.N. 284 the same person at one time set himself up as a necessary party to a suit and afterwards turned round and declared that he had nothing to do with it and had been unncessarily impleaded. Such is not the case here. The defendants simply maintained that they are not bound by the decision in O.S. No, 232 of 1910. Whether they were necessary parties to that suit is a question of law and there can be no estoppel on a point of law.
5. I am therefore of opinion that no case of estoppel arises from the facts of the present case. The decisions of the lower Courts on the 5th issue are reversed and the suit will be remanded to the Court of first instance for disposal on the merits after trial. Costs up to date to abide and to be provided for in the final decree.
Seshagiri Aiyar, J.
6. I agree with the conclusion arrived at by my learned brother. But as the point for decision is one of some importance, I propose to say a few words.
7. It was conceded that the District Munsif was wrong in saying that the decree of the court in O.S.No. 232 of 1910 could have been based on either of the findings arrived at in that suit. The finding on the mortgage was fatal to the suit. The other finding which related to title as between the contesting defendants could not have non-suited the plaintiff. Such a finding was unnecessary and though asked for by the added defendants should not have been given in the suit.
8. In this view, prima facie the conclusion of the Court could not operate as res judicata : The principle underlying the bar of res judicata as between the co-defendants has been the subject of discussion in three recent cases, Venkatasuryanarayana v, Sivasankaranarayana (1914) 17 M.L.J. 85 Fakir Chand Lallubhai v. Naginchandi Kalidas I.L.R. (1916) B. 210 and Jadav Chandra Sircar v. Kilash Chandra Singh 21 C.W.N. 693. The first requisite is that there should be active controversy as against each other between the parties arrayed on the same side: per Muthusamier, J., in Venkayya v. Narasamma I.L.R. (1887) M. 204 and Tanjore Ramachandra Row v. Vellaya Nadan Ponnusami (1891) I.L.R. 14 M. 264 (P.C.). Secondly the adjudication inter se between the co-defendants should be necessary to give the appropriate relief to the plaintiff. See per West, J., in Ramachandra Narayan v. Narayana Mahadev I.L.R. (1886) B. 216 and Wigram, V.C. in Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627 and Jessel, M.R. in Kevan v. Crawford (1877) L.R. 6 Ch. D 29. In the earlier case, the Vice Chancellor says 'But if the relief given to the plaintiff does not require or involve the decision of any case between co-defendants, the co-defendants will not be bound as between each other, by any proceedings which may be necessary only to the decree the plaintiff obtains,' The third element mentioned in Jadav Chandra v. Kailash Chandra Singh 21 C.W.N. 693 seems, to imply that there should be an express adjudication and not one which may either be inferred or be deemed to have been granted or refused. Without further argument, I am not prepared to express a definite opinion on this last point. For the purposes of this case, it is enough to gay that the first two requisites are wanting.
9. Mr. Venkataramaier relied on certain observations made by the Master of the Rolls in Collier v. Walters (1873) L.R. 17 Eq. 252. I am prepared to concede that the observations at page 267 go a great way to help the respondent: but when the facts of the case are closely examined, the decision will be found to leave the present else unaffected. Under a will, one William Collier claimed the estate as the tenant-in-tail. He and his mortgagee sued the trustee appointed under the will for a declaration that William Collier was the tenant in tail, that his rights were assigned to the mortgagee, and that the trustee should convey to the mortgages the rights of the mortgagor. To this suit, the son of William Collier was a party. His contention was that his father had only a life-interest in the property bequeathed, that the estate tail vested in him and not in his father, and that consequently the claim for a declaration 'that the trustee should convey the legal estate to the mortgagee was unsustainable. The Master of the Rolls pointed out that the son was not bound to put forward these pleas and could have asked to be dismissed from the suit, keeping his right to contest the conclusion in the suit untouched : but he claimed an adjudication of his rights. In the result, it was found that the father was tenant-in-tail and not the son, and that the mortgagee was entitled to a recognition of his rights by the trustee. The decree in the suit distinctly stated that the claim of the mortgagee was only subject to the equity of redemption possessed by the son Collier: The son preferred no appeal against this decree. In the subsequent suit, the son pleaded that the previous adjudicition was not binding on him. Sir George Jessel held he was bound. The points of difference between that case and the present one are these : (a) The impledaed defendant in the English Case had the right of challenging the decision in appeal which he has not in this case: (b) The declaration against the son Collier was embodied in the decree of the court which has not been done in the present case. It is well settled that although a finding may be unnecessary, if it is embodied in the decree it will be res judicata, Secertary of State v. Swaminatha Kowndan I.L.R. (1911) M. 25. These two considerations distinguish Collier v. Walters (1873) L.R. 17 Eq. 252 from the case before us. I have referred to this case at some length, because I was some what impressed by the able argument of the learned vakil when the ob-; servations were quoted before us at the hearing. I do not agree with him that the principle that a man should not both approbate and reprobate is applicable to this case or to the English case, I have referred to.
10. The other decisions do not take us very much further, In Kristo Gopal Shaha v. Kasheenath Shaha (1866) 6 W.R. 66 the question did not arise in a subsequent suit. The point considered was whether a party who insists upon being put on the record and upon haying his case dealt with can claim in the course of that suit or on appeal from that suit to be exonerated. The learned Judges expressly say that the question whether a decision against an unnecessary party will be res judicata did not arise in that case. On the other hand Lallah Bholanath v. Beechoo Koonwar (1864) 1 W.R. 50 is strongly against the respondent. Aghore Nath Mukerjee v. Kamini Debi (1909) 11 C.L.J. 461 proceeded on the ground that the decision was analogous to a judgment in rem and bound all the parties. I, therefore, agree with my learned colleague in holding that the previous adjudication does not operate as res judicata on the question of title.
11. On the question of adverse possession too, the same observation apply. Moreover, the fact that the claim was not barred as between the defendants on the date of the suit of 1910 is not conclusive on the question of adverse possession at the date of the present suit. This issue should have been tried under any circumstance : I agree as to the order as to costs.