1. The first point urged in this appeal is that the decision in O. S. No. 937 of 1910, as regards joint ownership of Mottaya Goundan and Ayyammal, is not res judicata between the parties in this case. This point was given up by the learned vakil who argued the second ppeal before the learned Judge, but Mr. Krishnaswami Aiyangar presses it before us. In O. S. No. 937 of 1910, the minor grandsons of Mottaya Goundan, who are Defendants 1 and 2 here, brought a suit for possession of the property from Defendants 1 and 2 therein, one of whom claimed to be the lessee from Mottaya Goundan. The case of the plaintiffs was that the whole of the property belonged to Mottaya Goundan and that Mottaya Goundan had released his right in their favour and that they wore therefore entitled to possession of the property. Defendants 1 and 2 set up the title of third persons.
2. In second appeal this Court observed that the suit property was the joint property of Ayyammal and her husband Mottaya Goundan and that Mottaya. Goundan's possession should be deemed not adverse to his daughters who were co-owners with him (Ayyammal being dead), and directed the District Munsif to make the daughters of Ayyammal parties to the suit and pass a decree in accordance with law. In obedience to this direction, the District Munsif made the three daughters of Ayyammal defendants to the action and passed a decree for joint possession in favour of the plaintiffs and Defendants 3 to 5. Defendants 3 to 5 remained ex parte. The question now is whether this decree operates as res judicata in the present suit as regards the question of joint ownership of Mottaya Goundan and Ayyammal.
3. What is urged by Mr. Krishnaswami Aiyangar is that the question as to joint ownership was not raised in the case as Defendants 3 to 5 were practically plaintiffs in the action and there was no contest inter se between the plaintiffs and that therefore this question could not be said to have been decided in that suit. The High Court found that Ayyammal and her husband, Mottaya Goundan, wore joint owners of the property and that Mottaya's possession was possession on behalf of the daughters who were co-owners. As regards this point, the District Munsif could not have given a decision against the view of the High Court, but the plaintiffs could have put forward the plea that though half of the property was the property of Ayyammal, yet by an arrangement evidenced by Ex. V, which was brought about by Mottaya Goundan, the daughters were debarred from claiming any interest in the plaint proprty. Such a defence was open to them and that defence was not put forward. The question is whether Expl. 4 to Section 11 of the Civil Procedure Code governs this case. We think that it was not only open to the plaintiff in O. S. No. 937 of 1910 to have put forward that plea but they ought to have put it forward in order to meet the case that the daughters were co-owners with regard to the suit property. Under Section 11, Expl. 4, any matter which might and ought to have been made a ground of defence or attack shall be deemed to have been a matter directly and substantially in issue. Seeing that the plaintiffs claimed title to the whole of the suit property in O. S. No. 937 of 1910, they ought to have put forward the contention that the daughters were precluded from claiming any share in the property by virtue of the arrangement come to subsequent to the death of Ayyammal. They not having done so, this point must be deemed to have been decided against them and therefore the decision in O. S. No. 937 of 1910 operates as res judicata as regards the question of joint ownership of Mottaya Goundan and Ayyammal's daughters.
4. Subhan Ali v. Imami Begam is relied upon by Mr. Krishnaswami Aiyangar as supporting his contention. In that ease, their Lordships of the Privy Council held that the decision in a suit for a share of the profits was not res judicata in a subsequent suit for partition. An observation of their Lordships at page 303 would show that the point was not one which would come within Exp1. 4 to Section 11.
in that suit partition was not asked for, and their Lordships prefer in these appeals to deal with the question of partition as one which was not there decided because it was not raised. There are grounds on which a decree of partition might have been refused to the plaintiffs oven by a Court which interpreted the grant as did the Additional Judicial Commissioners in that suit, In their judgment accordingly there can be no question of res judicata in the plaintiffs' favour so far as their claim to partition is concerned,
5. When it is discretionary with the Court to decide a point or not Expl. 4 to Section 11 would not apply to a point which the Court may or may not decide in its discretion. This point was dealt with by one of us in a recent judgment (S. A. No. 1859 of 1923). We therefore hold that Subhan Ali v. Imami Begam has no application to the present case.
6. It is next urged that the next friend of the plaintiffs in O. S. No. 937 of 1910 was negligent and therefore the decree in that suit is not binding on them. Mr. Krishnaswami Aiyangar puts forward two points to show that the next friend was grossly negligent. One is that the documents, Exs. V, VI and VII, were before the Court, and if the next friend had looked at Ex. V, he could have put forward the case that there was an arrangement with regard to the property binding on the daughters which would preclude them from claiming a share in the suit lands. The second is that the next friend was the husband of one of the daughters and therefore he must be deemed to have acted against the interests of the minors. We are unable to see anything in these points. The contention of the plaintiffs in that suit was that the whole of the property belonged to them and no part of it belonged to Ayyammal. The next friend might have thought that he could not very well have put forward the alternative case that, granting that half of the property belonged to Ayyammal, by virtue of an arrangement come to, the daughters had accepted the two houses as their share and released their right to the rest of the property. In considering whether the next friend was grossly negligent or not we must take into consideration the circumstances under which contentions were raised by the parties in the suit. There is nothing on record to show that the next friend of the plaintiffs either wilfully or negligently omitted to raise a contention which he could very well have raised in that suit. This point, therefore, also fails.
7. The next point urged is that the learned Judge has erred in giving a share of only the actual sale-proceeds of the two houses sold by the daughters of Ayyammal. The contention is that co-owners when they alienate any portion of joint property are bound to account for the property at its market rate on the date of the plaint. In other words, the value of the property should be taken not as it was when they dealt with the property, but as it Was on the date when the plaint was filed, in which the partition is sought. This contention must fail for if Ex. V is treated as a settlement under it, Mottaya Goundan released his right in favour of the daughters. The finding is that the property was the self-acquisition of Mottaya Goundan and Ayyammal. Ayymmal being dead, her share devolved on her daughters in preference to her son, and the half-share in the house belonging to Mottaya Goundan was at his absolute disposal. He having given his share or settled his share upon the daughters, the grandsons who had no interest in the property at the time when it was settled upon the daughters cannot dispute that transaction. That being so, it is difficult to see how the daughters could be asked to bring into the hotch-pot the property which they acquired from Mottaya Goundan who made a gift of it to them. Equity would arise if the grandsons, that is Defendants 1 and 2 herein, had an interest in the houses and if under an arrangement they had relinquished their right in the houses and if the daughters of Mottaya Goundan had relinquished their rights in the lands and if the daughters had sold them to their prejudice, then they might be required to acconnt for the value of the house at the time of partition of the joint property.
8. In this case, Defendants 1 and 2 were not entitled to dispute the arrangement made by Mottaya Goundan and therefore no equities arise between them and the daughters of Mottaya Goundan. In this view Defendants 1 and 2 are not entitled to any equities against the plaintiff or against her sisters. This portion of the decree not having been appealed against by the respondents we do not interfere with the direction in it.
9. In the result, the Letters Patent appeal is dismissed with costs.