1. In this appeal the question is whether the appeal to the Court below was competent or not. The and defendant was the appellant before the lower appellate Court. The suit was brought by the plaintiff alleging that he was the adopted son of Ramaswami. The 1st defendant is Ramaswami's widow and the 2nd defendant her brother's daughter. The 1st defendant set up a gift in favour of the 2nd defendant. The District Munsif found against the alleged adoption and found in favour of the alleged gift, but held that the gift was not valid. The 2nd defendant appealed against that finding of the District Munsif, and the Subordinate Judge held that the gift was valid. The plaintiff prefers this Second Appeal and contends that the 2nd defendant was not competent to prefer an appeal against a decree which was in her favour inasmuch as the District Munsif had dismissed the plaintiff's suit with costs.
2. This point is covered by very clear authorities so far as this Court is concerned and there is no reason to depart from them. In Secretary of State v. Saminatha Koundan : (1911)21MLJ947 it was held that a party in whose favour a decree was passed could not appeal against the decree on the ground that the finding on one of the issues was against the party. In Venkatasuryanarayana v. Sivasankara Narayana (1917) 17 MLT 85 the learned Chief Justice and Seshagiri Aiyar, J., held the same view. InD. Narasamtha v. D. Kannaya ILR (1881) M 134 and in Muttukumarappa v. Arumuga Pillai ILR (1883) M 145 the same view was held. In Jamait-un-nissa v. Lutf-un-nissa ILR (1885) A 606 the Full Bench held that a party not aggrieved by a decree was not competent to appeal against the decree on the ground that an issue was found against him.
3. Mr. Sambasiva Rao, who appears for the defendant, relies upon Ranganatham Chetty v. Lakshmi Ammal : (1913)25MLJ379 . That is a judgment of the learned Chief Justice and Mr. Justice Oldfield in which there is an observation (at page 383) which supports the defendant's case. But the decision in Secretary of State v. Saminatha Koundan : (1911)21MLJ947 was not brought to the notice of the learned Judges, and they rest their decision upon another point. Therefore the observation with regard to this point can only be considered as obiter. The decisions in Ynsuf Sahib v. Durgi (1907) T LR 30 M 447 : 1907 17 MLJ 260 and Ramakrishna Naidu v. Krishnaswami Naidu (1918) 36 MLJ 641 do not materially help the respondent. It is urged by the respondent that the finding of the District Munsif that the gift was not valid might be res judicata between the plaintiff and the 2nd defendant in some future litigation. The opinion of the majority of the Judges of this Court is against the view that it is res judicata. But there is the decision in Ramakrishna Naidu v. Krishnaswami Naidu (1918) 36 MLJ 641 in which two learned Judges of this Court held that such a decision would be res judicata. Mr. Raghava Rao states that he would not rely upon the decision on the point as res judicata in any future litigation so far as this point is concerned. That being so, we do not think that the 2nd defendant would be affected by the finding of the District Munsif in any future litigation that may arise between her and the plaintiff.
4. We allow the appeal, but inasmuch as the plaintiff (appellant) did not raise this point before the lower Courts, disallow costs.