1. This reference comes before us because of the conflict of opinion on the question whether Section 8 of the Hindu Succession Act 1956 is applicable to a case where a husband died intestate before the Act came into force and his widow inherited his properties, but was not possessed of those properties and died subsequent to the commencement of the Act. One of us was a party to the reference. Since then has come Daya Singh v. Dhankaur : 3SCR528 which, in almost similar circumstances and after dealing with the conflict of opinion of some oi the High Courts, answered the question in the affirmative.
2. Were the question res integra, it would have been open to debate and doubt as to whether Section 8 was intended to cover reversionary succession as in the instant case. The Act was, no doubt, intended to amend and codify the law regarding intestate succession. The intention of the Act was to cover, as far as possible, the entire field. That was why Section 4 gave the Act overriding effect. Yet it visualises that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act would still have force, if for any matter provision was not made in the Act and also any other law not inconsistent with any of the provisions of the Act, may continue to have force. Chapter II of the Act deals with intestate succession, first, in respect of an interest of a coparcener in coparcenary property and then with devolution of interest in coparcenary property and in the property of a tarvad, Tavazhi, Kutumba, Kavara or Illom. We have then Section 8 providing for general rules of succession in the case of males. It abolishes at one stroke the scheme of succession under the Hindu Law and provides for devolution of the property of a male Hindu dying intestate, as provided therein read with the Schedule. This course was designed to give effect to the popular desire to prefer the closer relatives of the deceased such as those mentioned in Class I and Class II of the Schedule.
Having provided for such a devolution of the property of a male Hindu dying intestate, rules also have been prescribed by the nest five sections relating to the order of succession among the heirs in the Schedule, distribution of property among heirs of class I and Class II, the order of succession among agnates or cognates and computation of degrees. Section 14 deals with property of a female Hindu. Any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The Explanation to Sub-section (1) is to the effect that tor purposes ot the sub-section, property includes both move-able and immoveable property acquired by a female Hindu by inheritance etc., Sub-section (2) of Section 14 provides for certain exception to the rule of enlarging what was a limited estate of a female Hindu into a full and absolute estate. Consistent with the effect of Section 14, the next section provides for a drastically new rule of devolution of property of female Hindu dying intestate. But is this sweeping change in the scheme of succession only confined to limited property converted into absolute one in the hands of a woman? What is the effect in this content of the Explanation to Section 8(1) on that matter vis-a-vis Section 14?
The order of succession and the manner of distribution among the heirs of a female Hindu are then provided for by Section 16 and special provisions respecting persons governed by the Marumakathayam and Aliyasanthana also have been made in Section 17. Then follow certain general provisions relating to succession as to the preference between full blood and half blood and mode of succession of two or more heirs who will take the property as tenants-in-common and not as joint tenants. The child in the womb is also taken care of. Section 20 provides that the child in the womb at the time of the death of an intestate who is subsequently bom alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest ia such a case with effect from the data ofthe death of the intestate. Rules of presumption in cases of simultaneous deaths and preferential right to acquire property in certain cases, special provisions respecting dwelling houses, rules of succession wherein certain widows remarry and disqualifications for a murderer and convert's descendants have been made- Finally, provision is made for devolution where there is failure of heirs. Chapter III deals with testamentary succession. That sums up the scheme of the Act. This brief survey indicates that the Act is intended to be a complete Code governing succession to a Hindu male or female dying intestate.
3. The expression a male Hindu dying intestate' had received judicial interpretation aud? as held by the Privy Council with reference to the Hindu Law of Inheritance Amendment Act 1929, it only referred to the status of the person dying and it had no effect upon the time of death so that the expression would be apt to apply to a Hinduding intestate before or after that Act. If that be so, Section 8 would have applied itself when in the instant case the husband died, before the Hindu Succession Act 1956. Does not Section 8 have reference only to his physical death? Can it be said, that, in spite of it, by reason of the succession opening by the death of the widow after the Act came into force and of the rule of Hindu Law, that the particular reversioners entitled to succeed to the estate must be ascertained as on the date of her death as if her husband also had died on the same date, Section 8 would have a further application? The question assumes a little more importance because of the Explanation to Sub-section (i) of Section 14. It says that for purpose of that sub-section property includes both moveable and immoveable property acquired by a female Hindu by inheritance. It is true that Section 14 would enable the limited estate to be enlarged only if the widow was possessed of such property. But if she had already inherited and the property is hers, though not enlarged into a full estate, what be the effect of such inheritance on the scope of Section 8? On this aspect extensive argument has been addressed to us.
4. Equally, it has been contended forcibly that tbe Act being an amending and codifying law regarding intestate succession among Hindus, we should interpret Section 8 consistent therewith. It is said that if a woman inherited the property of her husband, who died before the Act but never took or lost possession and died after the Act, succession opens on her death and if the presumptionthat the reversionary heirs will have to be determined as on that date would necessarily imply a presumption that the husband died on that date, there is nothing in Section 8 which would prevent such presumption from applying further to such a case, as it would be still a case of property of a male Hindu dying intestate. But is not the presumption limited only to determine who the reversionary heirs are and can its application be extended further to enlarge the scope of Section 8? There are other contentions too urged before us.
5. Mr. Thiruvenkatachari tor the respondents also contended that the case of a widow inheriting but dying not possessed of her husband's property is a casus omissus to which Section 4(1)(b) would be applicable, and that, in any case Daya Singh v. Dhan Kaur : 3SCR528 should be distinguished on the ground that it is a decision justified by the particular custom and usage regulating succession to Punjabis.
6. Interesting as these arguments have been, and we must confess that throughout the address we felt a considerable difficulty in construing Section 8 especially in the light of the related sections, it will, in our opinion, be futile to deal with them and express our view because of Daya Singh V. Dhan kaur : 3SCR528 .
7. As we see from the judgment of the Supreme Court, it was directly seized of the very question we are called upon to answer. There as here, the husband bad died before the Act. The widow inheriting his property was not possessed of it and she died subsequent to the Act. The Supreme Court reviewed all the decisions on the subject rendered by the High Court among whom there was no unanimity, referred to Moniram Kolita v. Kerry Kolitari (1880) ILR 5 Gal 776 (PC) and held that, once it is taken to be the law that succession in a case like this opens when the widow dies as if her husband also died on the very date, this presumption should not be boggled with and should be applied as a fact, so that Section 8 of the Act is attracted to the situation. We are bound by this approach. Every possible argument against that view has also been visualised by the Supreme Court and it resolved the difference of opinion among the High Courts.
8. As to the arguments based on custom before us, in the penultimate paragraph of the judgment, the Supreme Court noticed the custom and said that on the view it had taken of the scope and application of Section 8 of the Hindu Succession Act, that section governed the succession and not the customary law of the appellants before it. The argument is, therefore, not open that the decision rested on the peculiar customary law governing the Punjabis for which provision has been made in the Act itself.
9. Reference was made to Erramma v. Veerapana AIR 196S SC 1879 and certain observations made therein and it was pointed out that Daya Singh v. Dhan Kaur : 3SCR528 which was decided by the two learned Judges, was contrary to the opinion earlier expressed by a Bench of three learned Judges in the former decision. But, here again, the point is answered by the Supreme Court itself in the latter case. The Supreme Court extracted in Daya Singh v. Dhan Kaur AIR 1974 SC 660 those very observations in the earlier decision and proceeded on the basis that the precise point has not been considered or was not decided in the earlier case.
10. That being the case, we do not thinkit necessary to say more except that following Daya Singh v. Dhan Kaur : 3SCR528 we answer the question referred to us in the affirmative.
(After the opinion of the Full Bench, this appeal coming on for final hearing before the Bench, Ramtiprasada Rao and Ratnave! Pandian JJ. the court made the following Order): 21-7-1976-
Ramaprasada Rao, J.
11. The fundamental principle in a second appeal is that only on question of law, the decision of the lower court has to be interfered. It is also well known that if the trial court and the appellate court concurrently find on a particular issue, but after legal adjudication, then such a concurrent finding of fact also is equally binding on the second appellate court. One other situation can easily be conceived. When the trial court as well as the appellate court base their conclusion on a public register which is challenged on several grounds by the opponent and if in the light of such challenge, both the trial court and the appellate court do not delve into the recitals in that public register and give satisfactory reason as to why the public register should be accepted or rejected, then it cannot reasonably be said that there has been a legal adjudication on the main issue in controversy. If the trial court fails to ad-vert to the public register and its various limbs and the recitals therein and sustain its judgment on a well founded reasoning or it the appellate court mechanically accepts such a finding rendered by the trial court which as we said, did not make a detailed examination of a challenged public register, then, in either of the above two contingencies, it cannot be said that there was a concurrent finding of fact. The situation in the present case falls within the excepted principle set out by us,
12. This litigation started in 1960 is yet limping as one or two of the facts of such a litigation only have been fully thrashed out and concluded and there remain the other points which arise in the litigation and which have an important impact on the success or failure of one or the other of the parties in the case and yet to be decided. Whilst the first respondent-plaintiffs case is that he is the nearest reversioner of one Sengammal who is referred to in the judgment appealed against, the case of the appellants-defendants 23 and 33 is that he is not. In order to sustain their contention, the appellants examined DW 6 and DW 8 to prove the date of death of one Kaliammal alias Kaliakkal who, according to them is a reversioner to Sengammal but nearer to the plaintiff. Their specific case, as spoken to by D. Ws. 6 and 8, is that Kaliammal alias Kaliakkal died on 6-10-1960 when Sengammal died in the year 1938 and that therefore when Kaliammal alias Kaliakkal was alive on the date of death of Sengammal, the plaintiff cannot project himself as the nearer reversioner on the foot of which he can institute the present action for possession of the suit properties from the defendants which he filed on 15-6-1960. During the earlier period of the litigation between the parties and until 1964 it was nobody's case that Kaliammal alias Kaliakkal, the reversioner to the estate of Sengammal, was alive on the date of death of the latter. It is only on 16-9-1964 that this was brought to the notice of the court through an additional pleading filed by the defendants on record which was to the effect that Kaliammal alias Kaliakkal died in 1960 but was alive on the date of death of Sengammal and hence she should be adjudged as the reversioner nearer to the plaintiff and therefore the plaintiff has to be non-suited.
13. The parties went to trial on various issues with which we are not concerned at present, but the matter in controversy revolves around the fact whether the appellants have proved that on the date of death of Sengammal Kaliammal alias Kaliakkal was alive. In order to establish that tact, the defendants examined two witnesses to prove the date of death, namely, D. Ws. 8 and 8. That Kaliammal alias Kaliakkal is no more is not in dispute but the only question is as to when she died. Of course, the parties who appeared to be very rich have been rightly characterised by the trial Judge as belonging to a group to whom relationship is of no value. But such embellishments are common in litigations involving heavy stakes. The point in issue and the crucial point in controversy is as to when Kaliammal alias Kaliakkal died. The trial court referred to the evidence of D. Ws. 6 and 8. D, W 6 is the Maniyagarar of Narasimapuram and he speaks to the date of death of Kaliammal alias Kaliakkal but refreshes his memory and gains support only from Ex. B-62 which is the register of deaths kept by him in the regular course of business. The learned trial Judge did not even refer to certain salient features in the testimony of D. W. 6. The case of the plaintiff was that the entry in Ex. B-62 appears to be not genuine and that it was made for the purpose of the case.
14. Neither the trial court nor the appellate court adverted to these obvious discrepancies in the register. If they had considered and expressed their view on it and either concurred with each other or differed, matters would have been different. But when they have totally abstained from adverting to this telling but rather doubtful features in the public register, we are unable to accept mechanically the theory that there is a concurrent finding of fact and therefore Section 100, C. P. C. is a bar for a further hearing of the second appeal on such a question. Not being satisfied with the manner and method and treatment of such an important issue and having noticed that D. Ws.6 and 8 are greatly interested in this litigation, being relations to the parties, the appellate court at least should have given such thought to it so that it could be said when it comes up in second appeal that the appellate court did reasonably go into the matter and gave out its view. We are unable to accept the contention of Mr. Kesava Iyengar that the judgment in question being one of affirmance in so far as this matter is concerned, there cannot be a re-adjudication or a relook into it. We accept the contention of the learned Advocate General that the matter requires a further probe and scrutiny.
(Finding of lower court .....)
(The lower court is of opinion that Ex. B-62 can be successfully challenged by plaintiff-1st respondent and the attack on Ex. B-62 cannot be said to be spurious and reckless attack and answered the finding accordingly.)
(After receipt of the finding from the lower court, the appeal coming on for finaldisposal the court delivered the followingjudgment. 28-10-1977).
Ramaprasada Rao, J.
15. Thissecond appeal, which had a long history behind it, is yet to see the end of litigation. When it was taken up by us earlier, a question arose whether the plaintiffs could be said to be the nearest reversioner at all, who could file The present action. The doubt arose because there was not a clear finding as to the date of death of Sengammal. The issue was whether on the date of death ot Sengammal, one Kaliammal was alive. If Kaliammal was alive, on the date of death of Sengammal, then the plaintiffs would not be the nearest reversioner. In order to ascertain the date of death of Sengammal as also the date of death of Kaliammal, a finding was called for by us. It is now common ground that Kaliammal died on 6-10-1960 and she was alive on the date of dealh of Sengammal which was earlier. The finding of fact rendered by the court below is not challenged before us and the position as above that Sengammal predeceased Kaliammal is also not disputed. It is in the above background that the relevant facts, which are to be considered may be briefly stated.
16. Sami Gouuder, Peria Rarnana Goun-der and Chinna Ramana Gounder were the sons of one Nanjappa Gounder, the first two through his first wife Velakkal and the third through his second wife, Vellayammal. Chinna Ramana Gounder obtained his share of the properties belonging to the joint family in an earlier litigation initiated by him. The plaintiffs' case is that Sami Gounder and Peria Ramana Gounder became divided in status. The further case of the plaintiffs is that Sami Gounder and Peria Ramana Gounder divided only certain properties and kept certain other properties in common. Peria Ramana Gounder died without issiies but was Survived by his wife, Sengammal. In the suit filed by Chinna Ramana Gounder (OS 2 of 1892) for partition, Sengammal was brought on record as heir of Peria Ramana Gounder and as being entitled to widow's estate. The case of the plaintiffs is that Sami Gounder forcibly entered into possession of the properties of late Peria Ramana Gounder and dealt with such properties as if the family remained still joint. It is said that there was a mingling of the properties of the two brothers as above with the result the properties to which Sengammal was entitled was also dealt with by them without reference to her. It was in those circumstances, that Sengammal died in 1958 which event threw open the reversionary succession to her husband Peria Ramana Gounder who died long before.
The primary claim of the plaintiffs as well as the first defendant in the suit out of which (ho second appeal arises, is that Peria Ramana Gounder died being divided from Sami Gounder and that Sengammal had only a life estate without being in possession of the properties and the plaintiffs and the first defendant the only nearest reversioners and heirs to the estate of Peria Ramana Gounder. The case of the defendants 2 and 3 was entirely different. They pleaded that Sami Gounder and Peria Ramana Gounder always remained undivided and on the death of Peria Ramana Gounder and Sengammal did not succeed to any property in which she could claim a woman's estate. Alternatively it was pleaded that even if there was a division between the brothers, succession to Peria Ramana Gounder had to be treated not as a member under the orthodox Hindu Law but in accordance with the Hindu Succession Act. In this sense, they would say that Kaliammal, who died on 6-10-1960, after the death of Sengammal, should be deemed to be the heir of Peria Ramana Gounder and the plaintiffs can project no title at all to the estate of Peria Ramana Gounder.
17. The first appellate court decreed the suit for partition and separate possession of the shares of the plaintiffs and the first defendant and quantified their entitlement as l/4th share each in the suit properties. The appellate court held that the remaining half share will go to defendants 2 and 3. They upheld the claim for mesne profits in favour of the plaintiffs and the first defendant and the quantum of which has to be determined at the time of the final decree.
18. In the course of hearing of the second appeal, one of the main questions of law involved in this case was referred to a Full Bench. The question was whether the succession to Peria Ramana Gounder's estate is governed by the Hindu Law as it existed before the Hindu Succession Act or whether succession to such estate has to be determined under the Hindu Succession Act, 1956 The Full Bench of our court held that succession has to be traced to Peria Ramana Gounder on the death of Sengammal in 1958 by applying the Hindu Succession Act. This opinion of the Full Bench was given on 29-10-1974. When the matter again came up before us, we sought for a further investigation and probe into the fact whether Sengammal died first or Kaliammal died first. The parties were at variance on this also. Strong reliance was placed on Ex. B 62 containing an entry relating to the alleged death of Kaliammal. The first appellate court rendered a finding in favour of the plaintiffs and the first defendant, but before us we admitted additional evidence and satisfied ourselves that Kaliammal, sister of Peria Ramana Grounder died on 8-10-1960. It was in the light of such a disclosure as to the date of death of Kaliammal, we called for a finding from the court below whether Ex. 8 62 is a genuine document and is it not open to challenge.
The court has given a finding that Ex. B 62 could be challenged and it does not appear to be a true document After the court below rendered the said finding the matter came up once again for final hearing. There was no serious argument be tore us about the finding of the court below that Ex. B 62 does not appear to be a genuine document We have, therefore, rejected Ex. B 62 as unreliable. The net result of the discussion on this part of the case is that it has been proved that Kaliammal was alive on the date ot death of Sengammal. Under the Hindu Succession Act, the estate would devolve on Kaliammal as she is the sister of Peria Ramana Gounder. Because of the later discoveries, if we can use that expression, made, a new complexion had been given to the suit. The plaintiffs having been put in such an inconvenient position, have applied for an amendment of the plaint in C. M. P. 9869 of 1977. They would allege that the title of Kaliammal and her successors-in-interest stands extinguished by the operation of Section 27, Limitation Act 1963 and on that ground alone, the plaintiffs and the first defendant are entitled to the suit properties as being the next in the line of succession. They sought for introduction of the following paragraphs-
'15-A. Assuming without admitting that Sengammal was survived by Kaliakkal her husband's sister and that Kaliakkal died on 6-10-1960, the conduct of Kaliakkal and after her death the conduct of Janakiammal, the universal legatee under the will of Kaliakkal, dated 16-3-1958 and the conduct of Peria-sami the husband of Janakiammal clearly manifest an abandonment of their title to the reversionary succession and the plaintiff and the 1st defendant being the next in the line of heirs under the Hindu Succession Act are entitled to the properties and can therefore recover the property. It is, therefore, submitted that even on the footing that the reversionary succession to Sengammal has traced not under the old Hindu law, but under the Hindu Succession Act, the plaintiff and tie first defendant are entitled to the decree as prayed for,
15-B. The plaintiff further submits that the reversionary succession to Peria Ramana having opened in 1958 on the death of Sengammal, the title if any of Kaliakkal and her successors-in-title stands extinguished by virtue of the provision of the Limitation Act. By virtue of such extinguishment the plaintiff and the first defendant are entitled to succeed as revcrsiouers as defendants 2 and 3 and the other defendants claiming under them are not in the line of succession. Nor have they prescribed a title as against the plaintiff and the first defendant. The plaintiff and the first defendant have better title as against the second and third defendants and the other defendants claiming under them as the plaintiff and the second defendant are Class II heirs of Peria Ramana. They are, therefore, entitled to a decree as prayed for.'
19. Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a tine with the original pleading, we are unable to allow this application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request tor amendment because due to such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to the essential ratio governing the principle of amendment of pleading which is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposite to that stated in the original plaint. We are also of opinion that the application for amendment is an afterthought and therefore, lacks bona fides. This is so because the plaintiffs denied that Peria Ramana Gounder bad a sister by name Kaliammal and his filing of the suit during the lifetime of Kaliammal. is obviously in deliberate disregard of truth. The courts below found that the plaintiffs should have been aware that Kaliammal was alive on the date of suit and their pretended ignorance about it was not tolerable. We dismiss the application for amendment.
20. The contention of Mr. Parasaran, learned counsel for the respondents-plaintiffs is that in any event the plaintiffs and the first defendant have a better title as against the second and the third defendants and other defendants claiming under them, as the plaintiffs and the second defendants are Class II heirs of Peria Ramana Gounder. The case of Mr. Parasaran is that the dichotomy created in the enumeration of heirs in Class II in the schedule to the Hindu Succession Act cannot be given an eo nomine weightage and that tike the heirs enumerated in Class I, those classified heirs in Class II, would take cumulatively and not to the exclusion of one to the other. We are unable to appreciate this contention. The style of enumeration of the heirs in Class II in the schedule is different from that accepted in Class I. It gives the key for understanding and interpreting the same. Under the head of Class II heirs, 'father' comes first, secondly, son's daughter's son, son's daughters daughter, brother and sister are closeted in item No. II in the list of enumerated Class II heirs. It goes on like that. It may be that the son's daughter's son, son's daughter's daughter, the brother and the sister of a Hindu, who died intestate may all be the heirs of the deceased Hindu having been so closeted and grouped as item II heirs in Class II of the schedule. But it cannot be said that all the heirs enumerated in the various items to Class II take together and they would be entitled to succeed to the estate of a Hindu who died intestate.
Peria Ramana Gounder died intestate leaving behind him his widow, who died after the Hindu Succession Act in 1958. After the death of Sengammal inheritance again opened out to the estate of Peria Ramana Gounder because he had no issues. Under Section 8 of the Hindu Succession Act, Kaliammal as sister is the Class II heir being one of such enumerated heirs in item II heirs in the schedule to the Hindu Succession Act. It is, therefore, fairly clear that Katiammal, who was the nearest heir of Peria Ramana Gounder, on the death of Sengammal, inherited the properties of Peria Ramana Gounder as full owner under Sections 14 to 18 of the Act She became a fresh stock of descent andon her death on 6-10-1960, succession has to be traced to her alone, testamentary or intestate as provided for in Section 15 of the Act. It, therefore, follows that after such absolute vesting of the rights in Kaliammal as per the provision of the Act there can be no question of any preferential claim by reversionary succession to Peria Ramana Gounder.
It appears, therefore, to us that neither the plaintiffs nor the first defendant as such reversioners to the estate can with any competence further their status as nearest reversioners and compete with Kaliammal, who is obviously the statutory heir. Analogies cannot be mechanically sought for purpose of application and implementation. On the only ground that the enumerated heirs in Class I all take together in equal shares, it cannot said by the mechanical invocation of the doctrine of analogical application that such enumerated heirs in the various items set out in Class II should also be treated as such and all of them pooled up together so as to vest in them an entitlement to share the estate of the deceased equally as Class II heirs.
This would mean that mother's brother and mother's sister if they are alive along with the father, the three such heirs enumerated in Class II will each take a one-third share in the estate of the deceased, who died intestate. This will lead to an anomalous position which could never have been intended by the Legislature. The heirs referred to in each item in Class II would exclude the heirs referred to in the next item. If the father is alive, then the son's daughter's sons or the son's daughter's daughter, the brother or the sister would not come into the picture and so on. In this view of the matter, we are unable to agree with the contention of Mr. Parasaran that the plaintiffs who are not the nearer statutory heirs are also competent to institute the action in the light of the present finding that Kaliammal was alive on the date of death of Sengammal, when fresh inheritance opened to the estate of Peria Ramana Gounder. If the suit is not maintainable by the plaintiffs, no other question arises for consideration.
21. The further argument of Mr. Parasaran is that the appeal has been filed only by the second, third and the 32nd defendants and the other alienees have not filed their appeals and as such alienation should be the subject matter of a separate cause of action, the finding of the court below, in so far as the other defendants and the other alienations are concerned, should not be disturbed. It is no doubt true that the first appellate court has given an elaborate judgment on the alienations made by defendants 2 and 3 and their sustainability. But in the view held by us that the plaintiffs cannot file the present action as the nearest reversioner, it is unnecessary to go into this question.
22. Order 41 Rule 4, C. P. Code would govern the situation arising here. The common ground which was agitated to the core before the courts below was whether the alienations made by defendants 2 and 3 of some of the suit properties are sustamable at all. Some of the alienees, who are dissatisfied with the ultimate decision have come up in appeal, but the poser is whether the alienations made by the second and the third defendants are sustainable or not. It is a ground common to all the defendants. The fact that some of the defendants have appealed against the whole decree entitles the appellate court to pass such judgment as the circumstances of the case would require in order to render justice. Order 41 Rule 33, C. P. C. also meets this purpose. Under Order 41 Rule 4, C. P. C., on an appeal by one or more of the parties to a suit on a ground common to all, the decree may be varied in favour of all. Under Order 41, Rule 33, the court has the power to make the proper decree in order to render justice between the parties even though the appeal is directed against a part of the decree and even though the appeal might have been filed by some of such parties and the other affected parties are not even before the appellate court. The rules based on just equity and good couscience compel us to treat the present second appeal as one filed for the benefit of all the alienees, and in the light of such an understanding of the subject matter, the allowance of the appeal should benefit all the alienees as well.
23. Even in the alternative, Mr. Kesava Iyengar would contend that the plaintiffs' claim is barred by res judicata by virtue of the decision of the trial Court in OS No. 67 of 1924, marked as Ex. B. 25 which was affirmed by the High Court in A. S. No. 147 of 1926 (Mad) marked as Ex. B. 26. Chinna Nanjappan is the son of Sami Gounder, who as such son and having inherited his father's property, dealt with the same under a will Ex. B-63. He bequeathed the suit properties in favour of the predecessors-in-interest of defendants 2 and 3. That will was upheld as true and binding on the plaintiffs, who were parties to that litigation. What is contended is that on such adjudication on the will of Chinna Nanjappan and the same having been upheld by decision at this court, the plaintiffs and the first defendant can no longer project an inconsistent source of title and file the suit once again laying their hands on the suit properties on the foot that they are the owners-reversioners entitled to the estate of Peria Ramana Gounder after the death of Sengammal. It is also incidentally urged that Kaliammal herself knew of the proceedings in OS No. 67 of 1924, Sub Court, Coimbatore (Ex. B. 25) and that she gave evidence as P. W. 4. Kaliammal did not agitate thereafter against the resultant decree and judgment of the above proceedings and that, therefore, Kaliammal herself or her legal representatives cannot reagitate a closed matter. We are not inclined in this action to go into the said controversy about the alleged right of Kaliammal or her heirs to the suit properties. Suffice it however to hold in this suit that the plaintiffs and the first defendant have no locus standi to institute the suit. We are however constrained to accept the contention that the decision of this court in A. S. No. 147 of 1926 Ex. B 26 has become final and binding on the plaintiffs in the present action.
24. In the result, therefore, the second appeal is allowed. In passing we trust that a curtain would be drawn at least now to this long drawn litigation and with that objective we are not awarding costs in this appeal.