1. The dispute is between the plaintiffs in each suit, who claim their shares in 6/16ths of 1/5th of the income of a Darga, and the appellants (defendants), its manager and trustee and committee members, who allege that the 1/5th in question became payable to the Durga, when the branch of the family, to which plaintiffs belong and which had previously received it, became extinct.
2. In Second Appeal No. 1635 of 1917 it has undoubtedly been contended throughout that this matter is res judicata in the plaintiff's favour by the decision of this Court in Second Appeal No. 1957 of J908. There is no doubt that it was a decision as to plaintiff's right generally, not as to a particular year only; and the objection to its application has accordingly been that the manager, who represented the Durga in that litigation did not rely on certain documentary evidence, which the present manager defendant has discovered and which will entail a different conclusion. It has not been shown how this evidence, which admittedly has throughout been available in the Durga records, could not have been adduced, if ordinary diligence had been used. No adequate reason for allowing the present manager to re-open the case on its merits having been shown, the lower Appellate Court's decision against him must stand.
3. In Second Appeals Nos. 1636 and 1637 of 1917 the decision is more difficult. Firstly, plaintiffs did not plead that their claim was res judicata, and, secondly, it is a question whether it is so, since they were not plaintiffs, but 5th and 8th defendants in the previous litigation. No doubt then, as now, the dispute was regarding the right to the share in the income available for distribution, which would have fallen to the extinct branch. But the then 5th and 8th defendants, after alleging their right to participate in it with the then plaintiff, demurred to the proportion in which he proposed to divide it, the former claiming a decree for his share on his own calculation, the latter reserving his claim for a separate suit; and they eventually agreed with the plaintiff as to his and their shares and took no further part in the proceedings. They were joined apparently because plaintiff bad had some dispute in a former year with them as to their respective shares, although it had been settled amicably. There was in the judgment under consideration no decision as to their right, although there was no doubt incidentally to the decision as to plaintiff's right an adjudication on the question, in which they were interested, whether the fund, of which they alleged that they were entitled to a share, belonged to the- Durga. The important point seems to me to be that the suits were in no sense for partition and that the then plaintiffs neither statedly nor impliedly sued on behalf of any sharer except themselves and did not sue on behalf of the then 5th and 8th defendants; the, distinction being that drawn in Hikmnt Ali v. Wall un-nissa (1890) A.W.N. 128 : 6 Ind. Dec. 1067 and Atsan v. Pathttinrna 9 M.L.J. 37 : 8 Ind. Dec. 353. As the then plaintiffs did not sue on behalf of 5th and 8th defendants, the test prescribed in Somasundara Mudali v. Kulandaivelu Filial 14 M.L.J. 404 is not fulfilled and Section 11 of the Civil Procedure Code cannot be applied. It is no doubt the case that if the former 5th and 8th defendants had wished to enforce their rights in the previous suit, they could have been joined as plaintiffs. That, however, is not because they and the then plaintiffs were suing on any common cause of action, but because with reference to Order I, Rule 1, of the Code of Civil Procedure a common question would have arisen, and no authority has been shown us for holding that persons entitled to join as plaintiffs on that account in the language of Section 1), Explanation IV,-'ought' to do so or to join* in making a common matter a ground of attack. In Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry 6 Ind. Dec. 735, on facts very similar to those before us, the decision was against the plea of res judicata for reasons, which (so far as they are stated) are in no way inconsistent with the fore going. In these circumstances I hold that in these two cases the plea of res judicata cannot be accepted and that there must be a remand.
4. The result is that Second Appeal No. 1 35 of 1917 is dismissed with costs. In Second Appeals Nos. 1636 and 1637 of 1917 the. lower Court's decisions are set aside and the suits' are remanded to the District Munsif for re-admission and re-hearing on their merits in the light of the foregoing. Costs to date will be costs in the cause and will be provided for in the decree to be passed. Court fees will be refunded on application by appellants.
Sadasiya Aiyar, J.
5. The question of the exact fraction of the emoluments which the plaintiff in Second Appeal No. 1635 of 1917 was entitled to recover from the defendants in 1910 is clearly res judicata by the High Court decision in second appeal in the former suit.
6. That decision as to the plaintiff's said right cannot be re opened by showing that that right was declared Wrongly by the Court owing to its and the unsucessful party's having been ignorant of a fact which, if it had been brought to its notice by the unsucessful party, would have modified its decision. The question whether that fact is true, or not may not be res judicata if the unsuccessful party relies on it in a subsequent litigation, provided he establishes that he could not be reasonably expected to have made it a ground of attack or defence (as the case may be) in the former suit [see Maclean, C.J.'s opinion in Kailash Mondul v. Baroda Sundari Dasi 1 C.W.N. 565. I express no decided opinion on that point. But a party's ignorance of a ground of plea during the former litigation and that ground itself, even if established, could not be permitted to take away from the binding effect of the former decision so far as it established the then rights of the parties. If the fact referred to is sought to be proved in the subsequent suit for the purpose only of showing that the decision in the former suit to rights should have been different., evidence as to such a fact is irrelevant as it could not affect such rights. Of course, subsequent facts showing that the rights established by the former decree have been legally modified since, can be alleged and proved in the subsequent suit.
7. In the present case what the appellants (defendants Nos. 3 to 5), who are the committee members and the manager of the plaint Goripalayam Durga, state is that the committee members and the former manager were not aware during the former litigation that the plaintiff was not entitled to claim any portion of the 6/16 th share which belonged to an extinct family, that that 6/16th share had been gifted away in 1881 and 1883 to the Durga itself by two petitions presented by Syed Hussain Saib (the surviving male member of that family) subject to his widow's life-interest, that the Darga had been enjoying the said 6/16th share as of right since the widow's death and that these facts were discovered in the year 1910. The appellants' contention is that though the High Court in the former litigation established the plaintiff's right to recover 23/96th share in the third pangu of the annual income of the Inam villages from the committee members and the manager (the '23/96th including 7 and 3/8 by 30 of the 6/16th share) the Court's, decision in the plaintiff's favour as regards the 7 and 3/8th by 30 of the 6/16th share was erroneous and is, therefore, not res judicata.
8. I think that an erroneous' decree establishing rights is as much res judicata between the parties as a just decree and the lower Courts rightly held that the evidence offered on the defendants' side to prove that the former decision was erroneous was irrelevant, I would, therefore, dismiss the Second Appeal No. 1635 with costs.
9. Second Appeals Nos. 1636 and 1637 also involve 'a question of res judicata similar to the one involved in Second Appeal No. 1635 of 1917, but there is an important difference, between the question as raised in No. 1635 and the question as raised in the other two second appeals.
10. The facts are very complicated. Some of them have, however, to be set out in order to understand the question of law involved, in a former suit (Original Suit No. 571 of 1905) brought by the plaintiff in Second Appeal No. 1635 of 1917 for his share in the emoluments of the Durga under the management of the contesting defendants, he made the 'plaintiffs in second Appeals Nos. 1636 and 1637 defendants Nos. 5 and 8, as they also had shares in the income of the Durga. The finding in that case was that the plaintiff and the defendants Nos. 5 and 8 of that suit (who are the three plaintiffs respectively in the three suits out of which the connected Second Appeals Nos. 1635, 1636 and 163/ of 19l7 have arisen) were entitled to 23/S6, 23/96 and 9/32 respectively of 1/5 share of, the income of the whole Durga Inam lands, Decree, however, was passed in that suit only for the then plaintiff's 23/96th share of the income for certain Faslis. No decree was passed in favour of the 5th and 8th defendants in that suit against the manager and, committee members of the -Durga, the contesting defendants.
11. The short question is, whether, when the 5th and 8th defendants bring their own suits as plaintiffs (as they have done now in the suits out of which the Second Appeals' Nos. 1636 and 1637 of 1917 have arisen), the finding in their favour in the former suit is res judicata against the manager and committee members of the Durga or whether the latter are entitled to contend and prove that the shares of these plaintiffs are not 23/96 and 9/32 as claimed by them but some lesser fractions.
12. So far as Second Appeal No. 1635 was concerned, I had little hesitation in holding in the previous portion of this judgment that as the plaintiff got a decree in the former suit against the contesting defendants on the establishment of his right to 23/96th share in the former suit, the contesting defendants cannot be allowed to allege and prove in the second suit brought by that same plaintiff that he was entitled to a lesser share in the income. But the difficulty in these two other connected suits is that the plaintiffs in these two suits were co-defendants with the contesting defendants in the former suit. It is do doubt true that the ground on which the contesting defendants contend that these plaintiffs are entitled to get lesser chares now than the 23/96 and 9/32 claimed by them is the same ground on' which they (defendants) sought to show that the plaintiff in the former suit ought not to have been given in that suit a 23/96th share but ought to have been given a lesser share. To put it in another way, the plaintiff in the former suit of 1905 got a decree for '23/96th share because it was decided that he was entitled, in addition - to what may be called his legitimate and admitted share to 7 and 3/3 by 30 of the 6/16th share of one Syed Husain Sahib, the 5th and 8th defendants of that suit of 1905 (the plaintiffs of two of the three present suits) being also entitled as coheirs with the plaintiff of the former suit to their due shares under the Muhamadan Law in that 6/16th share. It was necessary to find in the former suit what fraction of the 6/16th share of Syed Hussain Sahib the plaintiff in that suit was entitled- to in order to give him the appropriate relief. In arriving at that finding one of the previous steps in the course of reasoning pursued by the Court was that the plaintiff and the defendants Nos. 5 and 8 of that suit were co sharers in the inheritance left by Syed Hussain Sahib and inherited certain fractions of the inheritance. Does the common and connected conclusion in favour of the plaintiff and 5th and 8th defendants in. that previous step of reasoning which led - to the directly relevant conclusion as to the share of the plaintiff alone in the former suit become res judicata in favour of the defendants Nos. 5 and 8 also in the new suits brought by these defendants as plaintiffs
13. I have found the question rather difficult to answer. In the leading case Ramchan-dra Narayan v. Narayan Mahadev 11 Ind. Jur. 301 West', J., said: 'There must be a conflict of interests amongst the defendants and a judgment defining the real rights and obligations of the defendants inter se. Without necessity a judgment will not be res judicata amongst defendants.' In the former suit the defendants Nos. 5 and 8 did not pray to the Court that any decree should be passed in their favour also against the contesting defendants and it was, therefore, not necessary to decide the rights of the defendants Nos. 5 and 8 as against the contesting defendants, though it must be admitted that in deciding the rights of the plaintiff as against the contesting defendants, it was necessary to find that the plaintiffs and the defendants Nos. 5 and 8 owned in ; common a certain right as against the contesting defendants, of which common right the plaintiff's fraction was so much and the fractions of defendants Nos. 5 and 8 were so much respectively. In Muhammad Kurd Rowthan v. Tisvanathaiyar 12 M.L.J. 471 it was held that where the matter was not in issue in the former suit as between the defendants themselves but only between the plaintiff and the respective defendants,' the finding in the former suit as to the validity of certain mortgages in favour of one of the defendants in the former suit as against the plaintiff of that, suit wan not res judicata as against another defendant, in the former suit when the latter brought his own suit to declare the said mortgages invalid. An analogous question was considered by Mookerjee, J,, at pages 213 and 214 Pages of 36 C--Md. of Gurdeo Singh v. Chandrika ' Singh 1 Ind. Cas. 913, and that learned Judge also, says that 'for an adjudication to have effect as res judicata -between co-defendants, the judgment in the suit must define the real rights and obligations of the defendants inter se.' In Balamhhat v. Narapanbhat 2 Bom. L.R. 511 it was held that where one of the co-defendants was not a necessary party, the finding in the former suit as to his rights was not res judicata as against co defendant. But none of these decisions lays down a principle which gives a clear and direct lead to my mind in respect of the particular question arising on the facts of these two second appeals. In Chandu v. Kunhamed 1 M.L.J. 520 it was expressly decided that, where one sharer, who sued under the Mubatumadan Law for his share making all the other co-sharers party defendants, had succeeded in the first suit in obtaining a decree for his share of a certain property against a contesting defendant who denied that that particular property was divisible among the co-sharers, a purchaser from an ex parte defendant in the former suit, who afterwards brought a suit for another share, could claim as against the same contesting defendant that the decision in the former suit as to the divisibility of that property was res judicata in favour of the plaintiff in the second suit also, the learned Judges relying upon Explanation V of the old Civil Procedure Code, Section 3 (corresponding to Explanation VI of Section 11 of the present. Code) in support of their decision. -I confess that the inclination of my mind is also in favour of the view held in Chandu v. Kunhamed 1 M.L.J. 520. But I find that in Somasundara Muiah v. Kulandaivelu Pillai 14 M.L.J. 404 a Full Bench overruled the decision in Chandu v. Kunhimed 1 M.L.J. 520 and it is interesting that Mr. Sankaran Nair, who as appellant's Vakil succeeded in persuading the Court to the contrary view in Chandu v. Kunhamed 1 M.L.J. 520, was one of the Judges of the Fall Bench who decided Samisundira Mudali v. Kulandaivelu Pillai 14 M.L.J. 404.
14. In the result, I hold that the question as to the shares of the plaintiffs in the Second Appeals Nos. 1636 and 1637 is not res judicata by the decision in the suit of 1905. I would, therefore, set aside the decisions of the lower Courts and remand the oases to the Court of first instance for disposal according to law. Costs hitherto to abide. Court-fees on second appeal memo. to be refunded to appellants.