1. In this appeal, the question is whether the appeal to the Court below was competent or not. The 2nd defendant was the appellant before the lower Appellate Court. The suit was brought by the plaintiff, alleging that he was the adopted son of Ramaswamy, The 1st defendant is Ramaswamy's widow and the 2nd defendant her brother's daughter. The 1st defendant set up a gift in favour of the 2nd defendant, The District Munsiff found against the alleged adoption and found in favour of the alleged gift, but held that the gift was not valid, The 2nd defendant appealed against that finding of the District Munsiff and the Subordinate Judge held that the gift was valid. The plaintiff prefers this second Appeal and contends that the 2nd defendant was not competent to prefer an appeal against a decree, which was in her favour inasmuch as the District Munsiff had dismissed the plaintifi's suit with costs.
2. This point is covered by very clear authorities, so far as this Court is concerned and there is no reason to depart from them. In Secretary of State v. Saminathe Goundan (1911) 37 Mad. 25 it was held that a party, in whose favour a decree was passed, could not appeal against the decree, on the ground that ,the finding on one of the issues was against the party, In Venkatasuryanarayana v. Shiva Shanhara Narayana (1915) 2 L.W. 101 the learned Chief Justice and Seshagiri Aiyar, J., held the same view, in Devarakonda Narasamma v. D. Kanya (1882) 4 Mad. 134 and in Muttu Kumarappa v. Arumuga (1884) 7 Mad. 145 the same view was held. In Jamaitunnissa v. Lutfunnissa (1885) 7 All. 606 the Full Bench held that a party not aggrieved by a decree was not competent to appeal against the decree, on the ground that an issue was found against him.
3. Mr. Sambasiva Rao, who appears for the defendants, relies upon Ranganathem Chetty v. Lashmiamma : (1913)25MLJ379 That is a judgment of the learned Chief Justice and Mr. Justice Oldfield, in which there is an observation at P. 383, which supports the defendant's case. But the decision in Secretary of Slate v. Saminalha Goundan (1911) 37 Mad. 25 was not brought to the notice of the learned Judges and they rest their decision upon another point. Therefore, the observation with regard to this point can only be considered as obiter. The decisions in YusufSahib v. Durgi (1907) 30 Mad. 447 and Bamakrishna Naidu v. Krishnasami Naidu : (1919)36MLJ641 do not materially help the respondents. It is urged by the respondent that the finding of the District Munsiff that the gift was not valid might be res judicata between the plaintiff and the 2nd defendant in some future litigation. The opinion of the majority of the Judges of this Court is against the view that it is res judicata. But there is the decision in Ramahrishna Naidu v. Krishnaaami Naidu : (1919)36MLJ641 in which two learned Judges of this Court held that such a decision would be res judica'a Mr. Baghava Eao states that he would not rely upon the decision on the point as res judicata, in any future litigation, so far as this point is concerned. That being so, we do not think that the 2nd defendant would be affected by the finding of the District Munsiff, in any future litigation that may arise between her and the plaintiff.
4. We allow the appeal, but inasmuch as the plaintiff (appellant) did not raise this point before the lower Courts disallow costs.