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Minor Gurusami Through His Mother and Next Friend Valliammai Ammal Vs. Sowminarayana Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 44 of 1949
Judge
Reported inAIR1954Mad477
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 2, Rule 2 - Order 6, Rule 2 - Order 7, Rule 7
AppellantMinor Gurusami Through His Mother and Next Friend Valliammai Ammal
RespondentSowminarayana Pillai and ors.
Appellant AdvocateT.V. Balakrishnan, Adv.
Respondent AdvocateM. Natesan, Adv.
DispositionAppeal allowed
Cases ReferredFateh Singh v. Jagannath Baksh Singh
Excerpt:
property - specific reservation - section 11, order 2 rule 2, order 6 rule 2 and order 7 rule 7 of code of civil procedure, 1908 - in case of general claim with specific reservation assumption should be that reservation to be given prominence rather than claim - positive assertion followed by statement either totally cancelling assertion or whittling down strength of that assertion to be understood in its resultant aspect - two should not be dissociated from each other. - - but we would like to rest our decision on much wider and firmer ground. if the plaintiff there had claimed as an alternative relief his title to partition on the footing that he was a heir of his deceased brother, the suit would not have been bad for misjoinder of causes of action......leads to confusion'. if, as has already been stated, the plaintiff had united in the previous suit a claim to s. no. 315/6 on the ground of succession to his father's estate, it would certainly have led to confusion.3. the other case to which our attention was drawn is the one reported in --'ramaswami aiyar v. vythianatha aiyar', 26 mad. 760 (c). learned counsel contended that the observations there are helpful to him. if at all the ruling in that case supports the plaintiff's case. what happened there was that the plaintiff as the representative of a deceased mortgagor had filed a suit for redeeming a mortgage over 50 cawnies of land and the defendants denied the genuineness of the mortgage and pleaded that 14 out of the 50 cawnies had been usufructuarily mortgaged to them by a.....
Judgment:

Govinda Menon, J.

1. The facts of this case have been very elaborately stated in the judgment of Rajagopalan J. and it is unnecessary for us to refer to them at all. The only question that arises for consideration is a question of 'res judicata' decided against the appellant by the learned Judge. As we understand the learned Judge, the inclusion of Section No. 315/6 in the D schedule should be deemed to be a definite claim for recovery of possession of that property and even though there was a specific reservation that the plaintiff would file a separate suit against the first defendant to recover possession of S. No. 315/6 still title to this property might and ought to have been agitated in O. S. No. 228 of 1937 and as such the plaintiff is debarred by Explanation IV to Section 11 C. P. C. In our opinion it is difficult to hold that there had been a claim made for the recovery of this property.

When, in one and the same pleadings, in one part of it, a claim is made and in another part the self-game claim is reserved for a future occasion, is it possible to say that there is a positive assertion that the party desires to have that matter adjudicated in the suit itself? As has been rightly pointed out by the learned Judge, the recovery of possession of properties in the D schedule was an alternative claim which would arise only in case it is found that there had been already a partition of joint family properties described in schedules A, B and C and allocation of those portions, more specifically detailed in schedule D to Chitram Pillai.

The principle to be observed in the construction of documents is that a clause dealing with a particular matter always excludes the clause dealing with the general matter and therefore, it should be taken that though generally the plaintiff in the alternative claimed all the properties mentioned in the D schedule, when a specific reservation was made that he does not claim S. No. 315/6 in that suit, it should be taken as if there was no claim made to that item in that suit at all. The maxims 'Generalia proecedunt', 'specialia sequuntur' viz, things general precede; things special follow, and 'Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa' viz., a general clause does not extend to those things which are before specially provided, are applicable to this case. The inclusion of S. No. 315/6 in schedule D was therefore general, and its exclusion specifically by the note is the expression of clear intention that no relief as regards that item was sought in that suit. We therefore do not agree with the learned Judge when he says that though the claim to the properties listed in schedule D was only an alternative to the claim for a one-fourth share in the properties mentioned in schedules A, E and C, nonetheless the claim in the D schedule properties was a definite claim and that included a claim for S. No. 315/6. The learned Judge also says that a reservation is made, but all the same a claim was made. With due respect to the learned Judge it seems to us that the emphasis is wrongly placed.

It is a case of a general claim with a specific reservation and in that case the assumption should be that the reservation ought to be given prominence rather than the claim. A positive assertion followed by a statement either totally cancelling the assertion or whittling down the strength of that assertion should be understood in its resultant aspect and the two should not be dissociated from each other. Under these circumstances we find it difficult to agree with Rajagopalan J. that the reservation does not erase the effect of the assertion made in regard to the D schedule properties. On this short ground alone the appeal can be allowed. But we would like to rest our decision on much wider and firmer ground.

2. Taking the circumstances as they are found by the learned Judge, viz., that in schedule D, there was a claim to this property and that there was a reservation that the plaintiff would recover it by means of other proceedings, still in our opinion this is not a case where Explanation IV to Section 11 C. P. C. can apply. According to the plaintiff Section No. 315/6 belonged as stridhana property to his maternal grandmother Muthammal which, on her death, devolved upon the plaintiff's father Chitram Pillai. Under no circumstance can it therefore be said that the claim to Section No. 315/6 could be construed as a claim for partition of joint family property. The case of defendants 1 to 3 was that half of S. No. 315/8 belonged to Muthammal and the plaintiff as her grandson was entitled to it. It was only with regard to the other half that the defendants laid any sort of claim at all. It is conceded that S. No. 316/6 was claimed only in the alternative and when the alternative claim was dismissed, the learned Judge holds that a fresh suit for the same relief does not lie.

Mr. M. Natesan, the learned counsel for the respondents, in attempting to justify the decision of Rajagopalan J. has referred us to a few cases, the most important of which was --'Muhammad Rowther v. Abdul Rehman Rowther', AIR 1923 Mad 257 (A). It is difficult to see how this decision is applicable to the present case. There the plaintiff instituted a suit against a person in possession for partition, and recovery of his share in certain lands on the basis that he was a co-owner of the properties under a purchase made by himself and his two deceased brothers but that claim was rejected on the ground that the purchase was not a joint one though one of the deceased brothers was the sole purchaser. Thereafter the plaintiff filed a suit for recovering his share as one of the heirs of the deceased purchaser. It was held that the subsequent suit was barred under Explanation IV, of Section 11 C. P. C. because the plaintiff ought to have joined the alternative claim in the previous suit.

The facts of that case are distinguishable from the present one. If the plaintiff there had claimed as an alternative relief his title to partition on the footing that he was a heir of his deceased brother, the suit would not have been bad for misjoinder of causes of action. But in the present case since the plaintiff claimed Section No 315/6 by right of succession to the separate property of his deceased father, such a claim could not have been joined with a claim for partition of joint family property in which the plaintiff had right, title and interest by his right of birth. The causes of action are different and could not be clubbed together. Therefore if in O. S. No. 228 of 1937 the present plaintiff had claimed S. No. 315/6, he would have been met with the defence of misjoinder of causes of action. It seems to us therefore that --'AIR 1923 Mad 257 (A)' has no application to the present case.

This is made clear by Krishnan J. at page 259 where the learned Judge after referring to a passage in --'Kameswar Pershad v. Rajkumari Ruttan Koer', 20 Cal. 79 (P. C. ) (B), observes as follows :

'This case shows that if a person has two grounds on which he could base his claim or title to a thing he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion.'

Mark the words 'union leads to confusion'. If, as has already been stated, the plaintiff had united in the previous suit a claim to S. No. 315/6 on the ground of succession to his father's estate, it would certainly have led to confusion.

3. The other case to which our attention was drawn is the one reported in --'Ramaswami Aiyar v. Vythianatha Aiyar', 26 Mad. 760 (C). Learned counsel contended that the observations there are helpful to him. If at all the ruling in that case supports the plaintiff's case. What happened there was that the plaintiff as the representative of a deceased mortgagor had filed a suit for redeeming a mortgage over 50 cawnies of land and the defendants denied the genuineness of the mortgage and pleaded that 14 out of the 50 cawnies had been usufructuarily mortgaged to them by a different transaction and subsequently sold to them. The suit was dismissed on the ground that the mortgage sued on had not been proved. When the plaintiff brought a subsequent suit to redeem the 14 cawnies on the foot of the mortgage mentioned by the defendants, the High Court held that the suit was not barred by 'res judieata'.

But Mr. Natesan singles out a sentence or two which are in the nature of general discussion at page 768 to the following effect :

'But a decree in a suit for partition of family property would, in the absence of special circumstances, be, I think, a bar to a second suit for relief on the grounds not before raised, that the co-sharer or one of the co-sharers was illegitimate or had been removed out of the family by adoption or that part of the property was the self-acquisition of the plaintiff, because It would be a second time litigating the question of coparcenary right which was the immediate object matter of the first suit.'

The learned Judges were there referring to what happened in -- 'Chinniya Mudali v. Venkatachalla Pillai', 3 Mad HCR 320 (D), decided by Scotland C. J. and Holloway J. and the above is an extract from the judgment of Scotland C. J. In our opinion these observations do not help the respondents at all.

4. The last case relied upon by the learned counsel was -- 'Fateh Singh v. Jagannath Baksh Singh' , a decision of the Judicial Committee. The second suit which gave rise to the appeal to the Judicial Committee was one based upon a family custom of inheritance, whereas the previous suit was on ground that the plaintiffs were entitled to the estate on a declaration that a gift made by a Hindu widow was not binding. The Privy Council held, applying explanation IV to Section 11 C. P. C. that since the claim by custom was a matter which might and ought to have been set up in the former suit, the plaintiffs could not bring a second suit for the same.

Even here the circumstances are distinguishable, because the cause of action was the recovery of possession of the estate from the persons in possession under a gift made by the widow. As we have already remarked where by the addition of the claim to S. No. 315/6 the alternative relief would suffer from the infirmity of misjoinder of causes of action, we find it difficult to hold that this addition might and ought to have been made a ground in the previous suit. If in the previous suit there had been a claim to S. No. 315/6 on a specified claim and if that had been refused, then a claim to the same property on an alternative basis would be barred under Explanation IV to Section 11 C. P. C. In our opinion therefore the learned Judge was not right in differing from the concurrent decisions reached by the courts below. The Letters Patent Appeal is allowed and the decree of the District Munsif is restored with costs throughout.


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