1. The plaintiff is the appellant. He is a purchaser of the suit properties from P.W. 2, who had purchased them from one Mariamma, the daughter of one Devasahayam. This Devasahayam had four brothers, Mariaputhali, Chanthanakurisu, Mariandran and Anthonimuthu. The defendant is the son of Anthonimuthu. Chanthanakurisu also had a son called Anthonimuthu, who had two sons Siluvastian and Chanthanakurisu. Devasahayam, Chanthanakurisu and Anthonimuthu were admittedly entitled to 1/3rd share each in their family properties, as Mariaputhali and Mariandran seem to have died without any issues. Devasahayam sold to his brother Anthonimuthu a 1/4th share in suit items 3 to 6. Therefore, he still had with him a 1/3rd share in items 1 and 2 and a 1/12th share in items 3 to 6. It is this which Mariamma sold to P.W. 2. and P.W. 2 sold to the plaintiff. Chanthanakurisu's grandsons, Siluvastian and Chantanakurisu filed O.S. No. 98 of 1956 for partition and possession of their 1/3rd share. To this suit all the members of the family were parties including Mariamma. Mariamma was ex parte in the suit. Though there was some dispute as to whether she had been served with summons in that suit, both the courts below have held that she had been served with summons and we can proceed on the footing that she had been served with summons and had chosen to remain ex parte. At the same time the present defendant filed O.S. No. 68 of 1956. in which only Siluvastian and Chanthanakurisu, the grandsons of Chanthanakurisu were the defendants. Mariamma was not a party to that suit. Both the suits were tried together and the defendant got a decree for a 2/3rd share in all the items and not merely a 1/3rd share in items 1 and 2 and 7/12th share in items, 3-to 6 as he should have, because Anthonimuthu had purchased only a 1/4th share in items 3 to 6. Taking these into consideration the trial Court decreed the plaintiff's suit. But the lower appellate Court has taken the view that the decree in the suit was res judicata in respect of the present suit, and has allowed the appeal and dismissed the Plaintiff's suit. The question, therefore, is whether the decision in the previous suit O.S. No. 98 of 1956 is res judicata in this suit as held by the lower appellate Court.
2. I am clearly of opinion that the conclusion of the lower appellate Court on this point is wrong. The question as to the scope of the principle of res judicata as between the co-defendants has been decided by this Court in K. Ramasami Iyer v. Thumbayasami, AIR 1922 Mad 452 (FB). In that case the learned Chief Justice delivering the judgment of the Full Bench refers with approval to the rule laid down by Vice-Chancellor Wigram in the leading case of Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627: 15 LJ Ch 441 which is as follows:--
"If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains."
The effect of this decision was considered by a later decision of a Bench of this Court in Gopala v. Gopalakrishna, AIR 1928 Mad 630. In that case A filed a suit against P, a tenant, for possession and rent and joined B and C as co-defendants. In the plaint A admitted that the Property belonged to A, B and C. B contested that C had no interest in the property. C remained ex parte. The suit was decreed and possession also decreed in favour of A and B in two equal shares. Later on C sued A and B for partition, ascertainment, and delivery of one-third share in the property. The defence was that the decision in the previous suit was res judicata. It was held that the suit was not so barred. In discussing this question Srinivasa Ayyangar, J. referred to the Full Bench decision of this Court and then proceeded to observe as follows: (at page 632)
"It follows from the rule accurately stated as above, that before there can be any adjudication between co-defendants operating as res judicata a conflict must have arisen between them. Such a conflict might no doubt arise in one of two ways. It might arise as the direct result of the manner in which the plaintiff has set out his case in the plaint. It might also arise as between the defendants themselves in the course of pleadings in answer to the plaintiff's case.
Again in the latter class of cases the determination of the conflict as between co-defendants might or might not be necessary for the determination of the plaintiff's claim. The rule obviously seems to be that it is only when the determination of the question as between co-defendants is necessary for the determination of the plaintiff's claim that the decision as between co-defendants would operate as res judicata. Otherwise, that Is to say, if such determination as between co-defendants were not necessary for the decision of the plaintiff's case, it is clear that such decision would not operate as res judicata for the simple reason that it is on a question which, to adopt the language employed in Section 11, Civil Procedure Code, is though substantially, not directly in issue. It would thus be clear that whenever the contest between co-defendants is not indicated and included in the plaintiff's action itself, then it follows that for the purpose of a decision operating as res judicata as between co-defendants there must have been actually a conflict or issue raised as between them and that such conflict or issue must have been necessary for the determination of the plaintiff's case or claim.......
From these considerations it is clear that as the plaintiff in this case was under no obligation to appear in the previous suit haying regard to the suit as laid and as no issue was raised as between co-defendants, the rule of res judicata can not apply".
Jackson, J. observed as follows:--
"No mystery attaches to the principle of res judicata. If a matter has been directly and substantially in issue in a former suit between the same parties, and has been finally decided, that decision will be treated as final in a subsequent trial, with due regard to the competence of the Courts. If a plaintiff raises an issue in his plaint, and a defendant runs away from it by remaining ex parte, that defendant gives up his case, and the Court will finally decide it against him. But if, apart from the plaint which has been served upon such defendant, new matter is brought in, either by way of amending the plaint or by way of written statements from other defendants, the defendant, who has remained ex parte, cannot be said to be running away from issues of which he has never heard. It would be odd to say that such matter had been directly and substantially in issue between the parties, when it is perfectly obvious as a matter of fact that between these parties it has never been in issue at all. The contrary position can only be established by assuming that a party once he is given notice of a suit must keep himself informed of every subsequent development even though the plaint apprised him of nothing that he need contest. No case, and certainly no rule of procedure, has ever laid such a duty upon parties, and were this the law, it would follow as a natural corollary that every party must be served with every written statement and every amendment of the plaint."
Now applying this principle let us see how the matter stands in this case. In O. S. No. 98 of 1956 the plaintiff was claiming his 1/3rd share. In paragraph 8 of the plaint he had stated that excluding any of the properties out of Devasahayam's 1/3rd share conveyed by him to Anthonimuthu the rest had devolved on his daughter Mariamma. He then went on to say, excluding the plaintiff's share the balance of 2/3rd belongs to the defendants. It is therefore, clear that Mariamma's claim to the present suit properties was specifically recognised in the plaint itself. Apparently, in that case the present defendant claimed that he wss entitled to the whole of 2/3rds. The judgment in O. S. No. 98 of 1956 proceeds to state as follows:--
"This suit and O. S. No. 68 of 1956 are tried together and heard together. Plaint items 1 to 6 in this suit are also items 1 to 6 in that suit. It is found in that suit that the 2nd defendant in this case is entitled to 2/3rd of the plaint items 1 to 6 and that the plaintiffs in this suit are entitled to 1/3rd of those Items and not 1/4th as contended by these defendants."
Paragraph 6 is as follows:--
"It is found in the connected case that the plaintiffs in this suit are entitled to 1/3rd of the plaint items 1 to 6 and that the plaintiff therein who is 2nd defendant in the case is entitled to 2/3rd share in these items."
Paragraph 10 ultimately concludes as follows:--
"In view of my finding on issues 1 to 6, I find that plaintiffs are entitled to a decree for partition of 1/3rd share in the plaint A items 1 to 9 only ...... ....... I therefore, pass a preliminary decree (a) for partition of the plaintiff's 1/3rd share in Items 1 to 9 of A schedule......."
The other clauses are not relevant. Notwithstanding this the final decree that was passed in this case allotted a 1/3rd share to the plaintiffs in O. S. No. 98 of 1956 and 2/3rds share to the 2nd defendant in that suit, that is the present defendant. It would be seen that this case exactly fits in with the principle laid down in AIR 1928 Mad 630. The plaint clearly recognised Mariamma's right to the suit properties. There was, therefore, no reason for her to appear and contest. She was not running away from any question that arose out of the pleadings in the plaint.
Merely because the present 2nd defendant chose to claim 2/3rds share in all properties, of which Mariamma could not have been aware and that question was purported to be decided in an indirect way, it cannot be said that Mariamma's claim to the suit properties would be barred by res judicata and consequently the plaintiff's claim also would not be barred by res judicata. The plaintiff in the words of Jackson, J. did not apprise Mariamma of anything that she need contest.
3. On behalf of the respondents reliance is placed upon the decision in Harihar Prasad v. Narsingh Prasad, AIR 1941 Pat 83. It is urged that a suit for partition is different from other suits, that in a suit for partition each defendant is also a plaintiff if he claims his own share and that therefore, the claim by the present defendant as 2nd defendant in O. S. No. 98 of 1956 when it was decided in his favour would be res judicata as against his co-defendant, that is Mariamma. The relevant passage in the report is found at page 87 of the report. It is as follows:--
"It must be remembered that a partition suit may be one of two kinds, namely a suit for imperfect partition or a suit for perfect partition. Order 20, Rule 18, Civil P. C. expressly empowers a Court in a proper case to pass a decree for perfect partition of the property ......
The rule undoubtedly gives the Court in a proper case power to separate not only the plaintiff's share but also the shares of other defendants interested in the property. In practice defendants in a partition suit frequently ask that their share should be partitioned, and the present defendants first party in the partition suit made such a prayer. If the; Court is asked by defendants as well as the plaintiff in a partition suit to separate their shares, the Court will do so; and in order to do so, it must ascertain the respective shares of the parties. In such a case each of the defendants stands in very much the same position as the plaintiff. He is a defendant vis-a-vis the plaintiff in the suit, but he is also a plaintiff vis-a-vis the plaintiff and his co-defendants in so far as he asks for the ascertainment of his share and the granting of a patti proportionate to it. In this respect a partition suit differs very materially from an ordinary title or money suit. This distinction has been noticed by Courts in India in a number of cases ........
Where defendants in a partition suit pray for a partition of their share, then before such relief can be given to them their share must be ascertained. In such a ease there is obviously a conflict of interest between the defendants and between that particular defendant and the plaintiff. A defendant who asks for partition of his share is entitled to such relief, and when a decree is drawn up he can take steps to enforce such a decree in much the same manner as if he was a plaintiff."
It is this passage that is relied upon on behalf of the respondent. The Bench referred to the Madras decision in AIR 1928 Mad 630 and particularly to the observation of Jackson, J. extracted above, and then observed as follows: (at page 89)
"It is to be observed that a decision on the claim of the co-defendant in this case was unnecessary to grant the plaintiff relief. The original suit was not one for partition, and it therefore, differs very materially from the case now before the Court. As I have stated earlier, in a partition suit each defendant interested in the property can himself claim partition, and if he does so the Court must first ascertain his share and then grant partition of that share. In ascertaining the share of the defendant who claims partition, the Court must adjudicate on the rights of the various defendants. A defendant in a partition suit must be deemed to be aware of such a possibility whenever a partition suit is instituted. In such a case if the defendant does not appear, he cannot afterwards challenge the decision as to the shares of the various parties arrived at in that partition suit."
4. There was an earlier Bench decision of the same Court in Latif Hussain v. Basdeo Singh, 39 Ind Cas 259 = (AIR 1916 Pat 126). That was a case where in a partition suit one of the defendants, T. filed written statement stating that the extent of her proprietary share was correctly stated in the plaint and that she too desired partition; three months later the other defendants put in a written statement contesting the suit on various grounds, and incidentally claiming that in addition to their proprietary share as stated in the plaint they held a one-anna mokurari right under T. There was nothing to show that this claim to a mokurari was brought to the notice of T., who was not contesting the partition suit. An issue was framed on the subject of the mokurari but was subsequently expugned. The effect of the final decree for partition, however, was to give the contesting defendants possession of the one anna they claimed under the mokurari. In a subsequent suit it was held that the question of mokurari was not res iudicata between the representatives of T. and the other defendants to the partition suit, inasmuch as (1) the question was not raised in that suit except as between the plaintiff in that suit and the contesting defendants, there being nothing to show that T. was cognisant of the claim; (2) the preliminary judgment in the partition suit stated that the issue as to the mokurari claim was expunged; (3) the question was not expressly decided; and it could not be held that a decision might and ought to have been obtained in the partition suit by T.
It will be noticed that this decision also fits in with the facts of this case. In discussing the question the Bench stated as follows: (at page 262 (of Ind Cas) = (at p. 128 of AIR Pat).
"...... the question was not raised in that suit at all except between Yakub Hussain who was seeking partition in that suit and the present defendants, for the present defendants did net put in their claim to the mokurari in that partition suit until three months after Musammat Tamizan (T) and her daughters had put in their written statement saying that they did not contest (the defendants have failed to make out the Musammat Tamizan was aware of the claim of mokurari made in their subsequent written statement)."
This earlier decision of the same Court was not noticed by the learned Judges, who decided the later case in AIR 1941 Pat 83 nor did they seek to distinguish it. The principle laid down by the earlier Patna decision and the decision in AIR 1928 Mad 630 accord with common sense and requirements of justice. A defendant, who was not aware of the contentions raised by his co-defendant and who therefore, had no opportunity to contest that claim cannot be said to be barred by res judicata by reason of the decision rendered behind his back. I think it is too much to say, as the learned Judges in AIR 1941 Pat 83 did that a defendant in a partition suit must be deemed to be aware of such a possibility whenever a partition suit is instituted. It is in contemplation of such a contingency that Jackson, J. stated that no case, and certainly no rule of procedure, has ever laid a duty on parties to keep themselves informed of every subsequent development, even though the plaint apprised them of nothing that they need contest. As a matter of fact, in AIR 1941 Pat 83 actually the decision itself proceeds on the footing that there was a conflict of interests between co-defendants in the earlier suit and there was an express decision against the contesting defendants. I am therefore, satisfied that in this case there is no question of the earlier judgment operating as res judicata.
5. I may also refer to the decision in Chandu Lal v. Bibi Khatemonnessa, AIR 1943 Cal 76 where it was held as follows:
"Where the plaint itself in a prior suit did not raise any conflict between the co-defendants and a defendant did not appear, but a co-defendant appeared and claimed an interest conflicting with the interest of the absentee defendant, the ...... decision, if any, on the point cannot operate as res judicata unless the absentee defendant gets notice of the conflict. In such circumstances the matter cannot be said to have been heard and finally decided so as to bind the parties. If however, the pleadings on record, no matter whether the co-defendants pleaded anything inter se or not, should raise the conflict of interest as between the different sets of the defendants, the requisite condition that there must be a conflict of interest between the defendants concerned shall be satisfied."
In this case the pleadings on record did not raise any conflict of interest between the different sets of defendants. This decision was also in a partition suit and supports the contention of the appellants. I should mention at this stage that the respondents also relied upon a decision of Somayya, J. in Ramamani v. Basavavya, (1946) 2 Mad LJ 321 = (AIR 1947 Mad 170). In that case it was observed as follows:--
"In a partition action the sharers are both the plaintiffs and the defendants, and each defendant sharer is also in the position of a plaintiff. Where one of the defendants in fact applies for a decree in respect of his share, and the alienees are arrayed as co-defendants, the decision operates as res judicata and cannot again be re-opened in a subsequent suit between the particular defendant whose share was the subject of decision and the alienee-defendants."
To this observation no objection could be taken. In that case there was a conflict between the contesting defendant and the contesting alienee-defendants and a decision had been given. Naturally in a subsequent litigation the earlier decision is res judicata. That was not a case where one of the defendants was absent, and the decision in respect of a contention raised by a co-defendant as a consequence of which a decision was given against the absentee defendant was claimed to be res judicata. However, the learned Judge referred to the decision in AIR 1941 Pat 83 which really was not necessary for the decision of the case before him. The earlier decision of the Patna High Court was apparently not brought to his notice. In any case the decision of Somayya, J. in (1946) 2 Mad LJ 321 = (AIR 1947 Mad 170) does not support the contention of the respondents. The result is that, the lower appellate Court having decided the case only on the question of res judicata and not having considered the other questions that arise in this case, the second appeal will have to be allowed and the lower appellate Court directed to restore A. S. No. 311 of 1963 to its file and dispose of it on the other questions that arise in the appeal. The appellant will get a refund of the court-fee paid in this case. Costs of the appellant in the second appeal will abide and be provided for in the fresh decree to be passed by the lower appellate Court.
6. No leave.