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K. Daniel Nadar and ors. Vs. R. Ananthan Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1978)1MLJ125
AppellantK. Daniel Nadar and ors.
RespondentR. Ananthan Pillai and ors.
Cases ReferredIn Venkatasubbayya v. Virayya
Excerpt:
- - daniel nadar, who failed in both the courts below are the appellants. 3020-a belonged to the tarwad of defendants 1 and 2 and was not enjoyed by dr. that had been filed in that court as exhibit a-3, it is clearly seen that the minor defendants 1 and 2 were represented by their father while they ought to have been represented by raman pillai as their guardian if they were members of a tarwad and that it clearly shows that the parties have not dealt with the properties as if the properties belonged to one thavazhi. on the file of the trial court as well as in a. 1 in the commissioner's plan exhibit a-7. therefore, it is not possible to agree with the observation of the learned district munsif in paragraph 16 of his judgment in the present suit that the shares of defendants 1 and 2.....a.varadarajan, j.1. the legal representatives of the plaintiff k. daniel nadar, who failed in both the courts below are the appellants. daniel nadar filed the suit for partition and separate possession of 2 acres of land out of the suit property which is 13.12 acres in s. no. 3020-a of ponmanai village, kalkulam taluk. the allegation in the plaint was that one half of survey n . 3020-a, the total extent whereof is 26 acres and 30 cents belonged to one dr. john hilkiah, who had been impleaded as the second plaintiff and legal representative of the first plaintiff in o.s. no. 293 of 1120 h.f. which was filed by the deceased first plaintiff nakshatram abaranam of c lachal paguthi for partition of a half share, impleading the plaintiff daniel nadar as the 10th defendant. the other half share.....
Judgment:

A.Varadarajan, J.

1. The legal representatives of the plaintiff K. Daniel Nadar, who failed in both the Courts below are the appellants. Daniel Nadar filed the suit for partition and separate possession of 2 acres of land out of the suit property which is 13.12 acres in S. No. 3020-A of Ponmanai village, Kalkulam taluk. The allegation in the plaint was that one half of Survey N . 3020-A, the total extent whereof is 26 acres and 30 cents belonged to one Dr. John Hilkiah, who had been impleaded as the second plaintiff and legal representative of the first plaintiff in O.S. No. 293 of 1120 H.F. which was filed by the deceased first plaintiff Nakshatram Abaranam of C lachal Paguthi for partition of a half share, impleading the plaintiff Daniel Nadar as the 10th defendant. The other half share belonged according to the first plaintiff Nakshatram Abaranam to defendants 1 and 2-Ananthan Pillai and Velayudhan Pillai respectively and their maternal uncle Raman Pillai and they became divided as per Exhibit A-1 dated 13th November, 1097 M.F. Subsequently Raman Pillais 12 acres in S. N . 3020-A to the plaintiff-Daniel Nadar under Exhibit A-2 dated the 5-11-1117 M.F. 16th June, 1947. Defendants 3 to 14 are enjoying the property-under defendants 1 and 2. There was a preliminary decree for partition of Dr. John Hilkiah's l/4th share in the property. But on appeal, a preliminary decree for partition of a half share was passed in his favour by the appellate Court as per the judgment Exhibit A-5. In the final decree proceedings defendants 3 to 5 were impleaded without notice to the plaintiff Daniel Nadar, whose legal representatives are the appellants herein, and their shares were allotted on the basis of the sale deeds executed in their favour by the 2nd defendant, denying the share of Raman Pillai, who had been examined as D.W. 4 in the said suit O.S. No. 293 of 1120 M.E. The deceased plaintiff filed I.A. No. 952(a) of 1958 for partition of his share of 2 acres in accordance with the direction in the preliminary decree passed as per the judgment Exhibit A-3 in O.S. No. 293 of 1120 M.E. But it was dismissed on 8th October, 1958 with a direction that he could file a separate suit for partition. The appellants' right to 2 acres of land as per the sale deed has to be declared and their shares partitioned.

2. The defence of defendants 1 and 11 to 14 was that S. No. 3020-A belonged to the tarwad of defendants 1 and 2 and was not enjoyed by Dr. John Hilkiah. Raman Pillai and defendants 1 and 2 were members of an undivided sub-tarwad in 1097 and 1117 M.E. The alleged sale by Raman Pillai, an undivided member of the tarwad, in favour of the plaintiff Daniel Nadar is not valid and binding on defendants 1 and 2 and he has not acquired any right to any portion of the property. There was no consideration for the sale or necessity for the tarwad to sell the property. Daniel Nadar did not get possession of the property in pursuance of the sale in his favour. Defendants 1 and 11 to 14 are entitled to 13 acres and 15 cents in the suit survey number. The first defendant has sold 3 acres out of it to strangers from whom defendants 6 and 7 have purchased it and are in possession. Defendants 1 and 11 to 14 have othied another two acres of land to defendants 8 to 10 under Exhibit B-16 dated 5th February, 1952 and those three defendants are in possession of the same. Raman Pillai had no heritable or alienable share in the suit property and the appellants who claim under a sale deed executed by him are not entitled to any interest in the property.

3. The defence of the second defendant was that the entire survey number 3020-A. belonged to the tarwad of defendants 1 and 2. But Dr. John Kilkiah had managed to get a final decree for partition, of a half share in O.S. No. 293 of 1120 M.E. Raman Pillai and defendants 1 and 2 did not get divided in 1097 M.E., but continued to be members of a sub-tarwad, and the sale by Raman Pillai is void ab initio as opposed to Nair Regulation. There was no necessity for the tarwad to sell the property to Daniel Nadar and the sale in his favour is not supported by consideration. Daniel Nadar did not get possession in pursuance of the sale and is not entitled to declaration and partition.

4. The defence of the third defendant was that he had purchased 4 acres in the suit survey number from the 2nd defendant on 17th May, 1962 under Exhibit B-4 and as 23rd defendant is O.S. No. 293 of 1120 M.E., he got his share, partitioned in the final decree passed in that suit. The shares of the third defendant and other defendants were duly considered in O.S. No. 293 of 1120 M.E., and a preliminary decree was passed. The present suit by the appellants' predecessor Daniel Nadar is barred by res judicata so far as plot No. 5 in the final decree is concerned.

5. The defence of the seventh defendant was that defendants 1A and 15 got plot No. 6 in the final decree proceedings allotted to their shares in O.S. No. 293 of 1120 M.E. and the seventh defendant has purchased the same from those two defendants. The allegation that the shares of the defendants in O.S. No. 293 of 1120 M.E. were not considered in that suit is false. The appellants have so right to question the shares allotted to the various defendants in O.S. No. 293 of 1120 M.E. The present suit is barred by res judicata.

6. The defence of defendants 8 to 10 Was; that defendants l and 2 and RamanPillai were not divided, and Raman Pillai was not competent to execute the sale deed in respect of any portion of the suit property in favour of Daniel Nadar. Daniel Nadar's right was only to prefer an appeal against the final decree in O.S. No. 293 of 1120 M.E. and he cannot question it in the present suit. The sale in favour of Daniel Nadar is ab initio void. Defendants 8 to 10 are mortgagees of 2 acres under the first defendant under a deed dated 5th December 1952 and they are in possession of 2 acres odd in the western portion of the suit survey number.

7. The trial Court found that the final decree passed in O.S. No. 293 of 1120 M.E. is not liable to be set aside on the ground that the deceased plaintiff Daniel Nadar was a party thereto and he has not filed any appeal against it. Exhibit B-17 is the judgment dated 28th November, 1957 in A.S. No. 132 of 1957 on the file of the Subordinate Judge's Court, Padmanabhapuram which arose out of O.S. No. 339 of 1954 filed in the District Munsif's Curt, Padmanabhapuram by the second defendant in the present suit against the plaintiff-Daniel Nadar-for redemption of an othi executed by the second defendant in favour of Daniel Nadar. There it has been found that Raman Pillai and defendants 1 and 2 were members of an undivided sub-tarwad in 1117 M.E. and the sale deed executed by Raman Pillai in favour of Daniel Nadar was invalid as against the second defendant and the second defendant got 52 cents in the partition under a document which was Exhibit 'B' in that suit. on the basis of Exhibit B-17, the trial Court found in the present suit that Raman Pillai and defendants 1 and 2 were members of an undivided sub tarwad in 1117 M.E. and that Raman Pillai was not entitled to one-third share out of six acres. The trial Court further found that the sale under Exhibit A-2 in favour of Daniel Nadar was not for tarwad's necessity and it was not valid though it was for consideration. The trial Court held that the shares of defendants had been not considered in O.S. No. 293 of 1120 M.E. and that the present suit is not barred by res judicata by the judgment in O.S. No. 293 of 1120 M.E. on the ground that the question whether theappellant's predecessor Daniel Nadar are not entitled to any share was not considered in the preliminary decree or supplemental decree of final decree. But it found that the suit is barred by res judicata by the judgment Exhibit B-17 in which, as already stated, it has been found that Raman Pillai and defendants 1 and 2 were members of an undivided sub-tarwad and that the sale by Raman Pillai in. favour of Daniel Nadar is not valid. The trial Court further fund that the supplemental preliminary decree passed in I.A. No. 1634 of 1960 in O.S. No. 293 of 1120 M.E. is valid and binding on. Daniel Nadar and the final decree passed in that suit is not liable to be set aside. In this view, the learned District Munsif found that the plaintiff Daniel Nadar is not entitled to any relief and dismissed the suit without costs.

8. On appeal, the only question that was urged before the learned District Judge and considered by him was whether there is any res judicata. In the appellate Court Exhibit A-17, the judgment dated 20th November, 1961 in O.S. No. 452 of 1960 on the file of the District Munsif's Court, Padmanabhapuram was produced. That suit was filed by the second defendant in the present suit against Daniel Nadar who was the 6th defendant and certain others including Dr. John Hilkiah who was the second defendant and the first defendant herein who was the second defendant in that suit. It was filed for setting aside the preliminary decree in O.S. No. 293 of 1120 M.E. and for declaring the title of the tarwad of defendants 1 and 2 and Raman Pillai to the entire suit survey number 3020-A. In that suit where the judgment Exhibit B-17 had not been produced, it was held that defendants 1 and 2 and Raman Pillai got divided inter se under Exhibit A-1. The learned District Judge in his judgment now under appeal held that Exhibit B-17 is earlier and of a superior Court and would therefore prevail over Exhibit B-17 and that the sale by Raman Pillai in favour of Daniel Nadar under Exhibit A-2 was by an undivided member of a tarwad and is not valid and binding on defendants 1 and 2. In that view, the learned District Judge confirmed the trial Court's decree and dismissed the appeal.

9. It is not disputed that Raman Pillai, who has sold 2 acres in the suit Survey number 3020-A to Daniel Nadar under Exhibit A-2 dated 5-11-1917 M.E. had an interest in the property and in the partition effected under Exhibit A-1 dated 13-1-1097 M.E. Raman Pillai and defendants 1 and 2 got the C. Schedule properties including 13.15 acres out of 26.30 acres comprised in Survey No. 3020-A. The portion alloted to their share in the suit survey number is item 20 in the C Schedule properties in Exhibit A-1. According to Exhibit A-1, Raman Pillai was given absolute powers to alienate items 1 and 24 and with regard to the other items, the provision in Exhibit A-1 is that if there was any necessity to borrow money on a chargeover the other properties. Raman Pillai and defendants 1 and 2 shall jointly execute documents and borrow monies if the borrowing was necessitated for the purpose of redeeming some othies or to file suits to set aside unlawful alienations. In view of this provision, it was faintly contended before me on behalf of the contesting respondents that Raman Pillai had no right at all to alienate any portion of the suit survey number by Exhibit A-2. But no such contention had been taken in the Courts below and the provisions in Exhibit A-1 for defendants 1 and 2 also joining in the execution of othies over other items of properties if there was any necessity to borrow any money on the charge of any of the other items of properties would amount to a clog on alienation and would not be valid. The contention of the contesting respondents is that Raman Pillai was only an undivided member of a sub-tarwad at the time of the execution of the sale deed Exhibit A-2 and that the sale under Exhibit A-2 was not for consideration on for tarwad necessity and was not valid and binding on defendants 1 and 2. The trial Court has found that the sale under Exhibit A-2 was for consideration. The learned District Judge has not gone into that question. The question for consideration is whether Raman Pillai was a member of a sub-tarwad on the date of Exhibit A-2 and he was not competent to convey any Portion of his interest in the suit survey number to Daniel Nadar under Exhibit A-2.

10. Daniel Nadar who was the 10th defendant in O.S. No. 293 of 1120 M.E. had contended in his written statement in that suit that he was entitled to 2 acres out of the suit survey number by right of purchase under the sale deed Exhibit A-2 and that his share of two acres should therefore be divided in that suit. The question whether Daniel Nadar had become entitled to two acres in the suit survey number by right of purchase under Exhibit A-2 from Raman Pillai was not specifically considered in O.S. No. 293 of 1120 M.E. The second defendant in the present suit filed O.S. No. 393 of 1954 in the District Munsif's Court, Padmanabhapuram, against Dani el Nadar for redemption of an othi executed by him in favour of Daniel Nadar over one-fourth share in the property forming the subject-matter of that suit. On the same date, Anandan Pillai, the first defendant in. the present suit and Raman Pillai had executed another mortgage in favour of Daniel Nadar over the re mailing portion of the property. The second defendant as the plaintiff in that suit alleged in his plaint in that suit that in a subsequent partition arrangement between all the three of them, namely, Raman Pillai and defendants 1 and 2, he got 52 cents in the property and was therefore entitled to redeem the same. The defence was that the second defendant herein was entitled only to one-fifth share and the remaining 4/5th share belonged to Raman Pillai and the first defendant, and Daniel Nadar purchased 2/5th share from Raman Pillai and surrendered the remaining 40 cents to the first defendant and that the partition referred to in the plaint in that suit did not take effect and was brought about only to defeat the rights of Daniel Nadar. The second defendant herein contended in his reply statement in that suit that the sale by Raman Pillai in favour of Daniel Nadar was void and he was therefore entitled to redeem the 52 cents as prayed for by him. It is seen from the judgment Exhibit B-17, dated 28th November, 1957 in A.S. No. 132 of 1957 on the file of the Sub-Court, Padmanabhapuram which arose out of the decree in O.S. No. 339 of 1954 that the trial Court held that at the time of the mortgages over one-fifth share and 4/5th share, the second defendant herein and his brother the first defendant got divided, that the partition under Exhibit 'B' in that suit pleaded by the second defendant herein whereby be claimed to have got 52 cents would be valid only in respect of other items and not in respect of the items covered by the mortgages and that the second defendant herein was entitled to redeem only an one-fifth share in the property as contended by Daniel Nadar on payment of mortgage amount and the value of the improvements. But the appellate Court Found in Exhibit B-17 that the conclusion of the trial Court regarding the partition under Exhibit 'B' in that suit was not correct and that there was no partition prior to the date of Exhibit 'B' between Raman Pillai and defendants 1 and 2 and they continued to be joint until the date of Exhibit 'B' of the year 1921 and that the sale by Raman Pillai in favour of Daniel Nadar under Exhibit 1 in that suit in the year 1117 M.E., (Exhibit A-2 herein) was without the consent of defendants 1 and 2 herein and was invalid against the second defendant herein and that the second defendant herein got 52 cents in the partition under Exhibit 'B' in that suit and it took effect and he was therefore entitled to redeem 52 cants as prayed for in that suit. Exhibit A-17 is the judgment in O.S. No. 452 of 1960 on the file of the District Munsif's Court, Padmanabhapuram, a suit filed by the second defendant herein against certain persons including Dr. John Hilkiah, Anandan Pillai (first defendant herein) and Daniel Nadar (who were defendants 1, 2 and 6 respectively) in that suit for declaration of his title and for possession of the property after setting aside the decree in A.S. No. 142 of 1953 on the file of the Subordinate Court, Nagercoil, which was filed against the decree in O.S. No. 293 of 1120 M.E. as confirmed by this Court in S.A. No. 204 of 1958 and for an injunction restraining the Court from passing a final decree in O.S. No. 93 of 1120 M.E. But Dr. John Hilkiah, the first defendant in that suit contended that the plaintiff and the second defendant in that suit, defendants 1 and 2 respectively in the present suit had nothing more than one half share in items 1 and 2. The finding in that suit was that the suit was barred by res judicata by the decision in O.S. No. 293 of 1120 M.E. and that suit was not maintainable, that the decree in O.S. No. 827 of 1108 M.E. on the basis of which the decree for a half share in the suit survey number had been granted in favour of defendants 1 and 2 herein in O.S. No. 293 of 1120 M.E. is binding on the second defendant herein (plaintiff in that suit and that the properties involved in that suit do not belong to the tarwad of the plaintiff therein and the 2nd defendant and there was no tarwad as alleged. It was further found in that suit that even in the partition deed of 1097 M.E. that had been filed in that Court as Exhibit A-3, it is clearly seen that the minor defendants 1 and 2 were represented by their father while they ought to have been represented by Raman Pillai as their guardian if they were members of a tarwad and that it clearly shows that the parties have not dealt with the properties as if the properties belonged to one Thavazhi. However, the learned District Munsif found that the partition under Exhibit A-1, herein which was Exhibit A-3 in that suit was invalid and incompetent as he held that there was no such tarwad as alleged and Raman Pillai was not a Karanavan of that tarwad. Only in O.S. No. 339 of 1954 on the file of the District Munsif's Court, Padmanabhapuram, out of these three litigations, namely, O.S. No. 293 of 11.20 M.E., O.S. No. 339 of 1954, and O.S. No. 452 of 1960 on the file of the District Munsif's Court, Padmanabhapuram, the validity of the sale under Exhibit A-2 executed by Raman Pillai in favour of Daniel Nadar was specifically considered and it has been held that it was void on the ground that Raman Pillai and defendants 1 and 2 were members of a sub-tarwad and that the alienation made by Raman Pillai without the written consent of defendants 1 and 2 was invalid against the second defendant herein and he got 52 cents in the partition under Exhibit 'B' in that suit and that it took effect and that therefore he is entitled to redeem 52 cents as prayed for in that suit. The question for consideration therefore is Whether the decision in the appeal which arose out of that suit O.S. No. 339 of 1954, Exhibit B-17, regarding the validity of the sale under Exhibit A-2 in favour of Daniel Nadar would constitute res judicata.

11. Exhibit A-3 is the judgment dated 21st October, 1952 in O.S. No. 293 of 1120 M.E. The finding of the learned District Munsif in that suit regarding the status of Raman Pillai and defendants 1 and 2 was that the plea that Raman Pillai was not the karnavan of defendants 1 and 2 should prevail. That finding has been upheld in A.S. No. 142 of 1953 in the judgment, Exhibit A-5, dated 10th October, 1957, on the file of the Subordinate Judge who has observed that merely because the C Schedule properties in the partition deed had been allotted to defendants 1 and 2 and Raman Pillai, it cannot be stated that they form one thavazhi of which Raman Pillai who had been examined as D.W. 4, was the karnavan, that a thavazhi was out of the question in the absence of a female member, and that from the documents it can be seen that the parties had not dealt with the properties as if they belonged to one thavazhi. Thus both in O.S. No. 293 of 1120 M.E. on the file of the trial Court as well as in A.S. No. 142 of 1953 on the file of the Sub-Court, Nagercoil, it has been found that Raman Pillai and defendants 1 and 2 were not members of a thavazhi and that Raman Pillai was not the Karnavan. But in A.S. No. 132 of 1957 (Exhibit B-17) which arose out of O.S. No. 339 of 1954 on the file of the District Munsif Court, Padmanabhapuram, referred to above it has been, held, as already stated, that defendants 1 and 2 and Raman Pillai continued to be undivided until the partition effected in the year 1121 M.E., under the document marked as Exhibit B in that suit and that the sale by-Raman Pillai in favour of Daniel Nadar without the consent of defendants 1 and 2 was invalid against the 2nd defendant. In the subsequent decision in O.S. No. 452 of 1960 on the file of the District Munsif's Court, Padmanabhapuram (Exhibit A-17) to which Daniel Nadar and defendants 1 and 2 were parties as defendants 6, 2 and plaintiff respectively, it has been held as has been held in O.S. No. 293 of 1120 M.E. and A.S. No. 142 of 1953 that defendants 1 and 2 and Raman Pillai were not members of a thavazhi. The question for consideration therefore is whether the decision in the latest suit O.S. No. 452 of 1960 regarding the status of defendants 1 and 2 and Raman Pillai does not constitute res judicata.

12. It is seen from the judgment in O.S. No. 293 of 1120 M.E., Exhibit A-3 that the allegation in that suit was that defendants 1 to 3 therein had trespassed into item No. 1 in that suit and that Nakshatram Abaranam, the first plaintiff in that suit filed O.S. No. 1827 of 1.108 M.E. for eviction of defendants 1 to 3 and she recovered possession of her half share through Court on 27-2-1111 M.E. after depositing 200 panams towards improvements, that the first defendant contended that the decree and execution proceedings in O.S. No. 1827 of 1108 M.E. were vitiated by fraud and were not valid and that Nakshatram Abaranam, the first plaintiff in O.S. No. 293 of 1120 M.E. did not get possession in the execution proceedings, and the second defendant contended that he was a minor on the date of institution of O.S. No. 1827 of 1108 M.E. and was not represented by a guardian, that Raman Pillai was his karnavan and he had not been impleaded as a party and that the decree in that suit was not binding on his tarwad. The learned District Munsif has found in paragraph 23 of his judgment in O.S. No. 293 of 1120 M.E. that the decree in O.S. No. 1827 of 1108 M.E. sought to decide the dispute between the parties to the extent of its validity and was binding on the first defendant but not on the second defendant and that the 2nd defendant succeeds so far as his one-half in the entire suit survey number is concerned since the decree in O.S. No. 1827 of 1108 M.E. was not binding on him as he had been impleaded as a major, while in fact he was only a minor. In this view, the learned District Munsif granted a preliminary decree declaring Dr. John Hilkiah's title to one-fourth share in the suit survey number and for partition and separate possession of the same and he held that defendants 1 and 2 were entitled to a half share by virtue of the decree in O.S. No. 1872 of 1108 M-E.

13. Daniel Nadar, who was the 10th defendant in O.S. No. 293 of 1120 M.E. filed I.A. No. 324 of 1961 in the District Munsif's Court, Padmanabhapuram, for setting aside the order dated 25th October, 1960 in I.A. No. 1634 of 1960 by which defendants 23 to 25 in that suit were granted a supplemental preliminary decree. That application was dismissed by the Order Exhibit B-5 dated 7th November, 1961 where the learned District Munsif has observed that the right of defendants 1 and 2 for a half share of the schedule properties has been declared by the preliminary decree dated 2lst October, 1952 in O.S. No. 293 of 1120 M.E. and that paragraph 24 of the judgment in that suit will indicate the same and only the first defendant and the second defendant had appealed against the decree and Dr. John Hilkiah's right to a half share in the suit property has been established in the appeal filed against the preliminary decree granted in O.S. No. 293 of 1120 M.E. The learned District Munsif has rightly found in his order Exhibit B-5 that defendants 1 and 2 were declared to be entitled to a half share in the suit survey number and that in the appeal (A.S. No. 142 of 1953) Dr. John Hilkiah who had been held by the trial Court in O.S. No. 293 of 1120 M.E. to be entitled to only one-fourth share, had. been held to be entitled to a half share. The said order dated 11th July, 1961 had been confirmed on appeal by the learned Subordinate Judge, Padmanabhapuram in C.M.A. No. 45 of 1961 on 14th September, 1961. Exhibit B-6 is the certified copy of the decree in that Civil Miscellaneous Appeal. The final decree Exhibit B-8 dated 23rd November, 1961 in O.S. No. 1293 of 1120 M.E. passed on the application of Dr. John Hilkiah for allotment of his share, has been passed only on the basis that Dr. John Hilkiah was entitled to a half share and. defendants 1 and 2 were entitled to the remaining half share in S. No. 3020-A. Defendants 1and 2 had made some alienations in the meanwhile. The final decree has been passed allotting plot No.1 to 3 to Dr. John Hilkiah, plot No. 4 to defendants 24 and 25, plot No. 5 to defendant 23, plot No. 6 to defendants 14 and 15, plot No. 17 to defendants 16 and 17 and plot No. 8 and 10 to defendants 1 and 2. Exhibit A-7 is the Commissioner's plan in that suit according to which the plots were allotted to the parties as mentioned above. It is seen from Exhibit B-8 that plot No. 9 is part of plot No. 1 in the Commissioner's plan Exhibit A-7. Therefore, it is not possible to agree with the observation of the learned District Munsif in paragraph 16 of his judgment in the present suit that the shares of defendants 1 and 2 have been only indicated but not clearly declared.

14. The last point that arises for consideration is whether the present suit for partition of 2 acres claimed by the appellants is barred by res judicata by the decision in O.S. No. 293 of 1120 M.E.

15. Raman Pillai has been held in O.S. No. 293 of 1120 M.E., A.S. No 142 of 1953 which arose from the decree in that suit and O.S. No. 452 of 1960 on the file of the trial Court to be not the karnavan of defendants 1 and 2 on the ground that in the partition deed Exhibit A-1 dated 13-11-1097 M.E., the then minor defendants 1 and 2 were represented by their father which would not have been the case if these defendants and Raman Pillai were undivided members of a thavazhi and Raman Pillai would have acted as their guardian if he was the karnavan of any such tarwad. In O.S. No. 293 of 1120 M.F., a mortgage deed dated 1710 M.E. was produced as Exhibit 20 That had been executed by Raman Pillai and others in favour of one Narayana Pillai during the minority of defendants 1. and 2. There also the father of defendants 1 and 2 represented them as their guardian and not Rman Pillai, and the learned District Munsif has observed in paragraph 15 of his judgment in O.S. No. 293 of 1120 M.E. that if defendants 1 and 2 and Raman Pillai formed one thavazhi, the father had no place in the document and therefore the plea that Raman Pillai was not the karnavan of defendants 1 and 2 should prevail. The learned Subordinate Judge has observed in paragraph 7 of his judgment in A.S. No. 142 of 1953, Exhibit A-5, that from the mere fact that C Schedule properties in Exhibit A-1 were allotted to the shares of Raman Pillai and defendants 1 and 2, it could not be stated that they formed one thavazhi of which Raman Pillai was the karnavan, that a thavazhi was out of question in the absence of a female member and that even in Exhibit 8 in that case, namely Exhibit A-1 herein, defendants 1 and 2 who were then minors were represented by their father and that on the other hand if those defendants and Raman Pillai formed one thavazhi, Raman Pillai would have acted as their guardian and not their father. For similar reason the learned District Munsif has found in paragraph 9 of this judgment in O.S. No. 452 of 1960, Exhibit A-17 that defendants 1 and 2 and Raman Pillai were not members of a thavazhi. But the judgment in A.S. No. 132 of 1957 Exhibit B-17, which arose out of the decree in O.S. No. 339 of 1954 on the file of the District Munsif's Court, Padmanabhapuram, it has been held that there was no partition prior to the date of Exhibit 'B' in that case between defendants 1 and 2 and Raman Pillai, that the 2nd defendant and the members of his tarwad continued to be joint until the date of Exhibit 'B' of the year 1120 M.E. and that the sale deed Exhibit 'I' in that case, Exhibit A-2 herein by Raman Pillai of the year 1117 M.E. executed without the written consent of defendants 1 and 2 was invalid.

16. Mr. S. Padmanabhan learned Counsel for the appellant relied upon two decisions in support of his contention, that the latest judgment Exhibit A-17 regarding the status of defendants 1 and 2 and Raman Pillai at the time of execution of the sale deed Exhibit A-2 namely that they were not members of a tarward of which Raman Pillai was the karnavan would prevail and constitute res judicata, and that the observation of the learned District Judge in paragraph 15 of his judgment now under appeal, namely that the decision of the superior Court, namely the sub-Court, Padmanabhapuram in Exhibit B-17 would prevail over the judgment Exhibit A-17 which is of an inferior Court, is incorrect.

17. The effect of earlier and later adjudications were considered is Seshayya Garu v. Rajah of Bittapur : (1916)31MLJ219 , The learned Judges have observed in that decision at page 220 thus:

There has been a previous adjudication in 1895 between the same parties by a Court, which it is conceded, had jurisdiction, which expressly decided the issue as to the rate of rent. The adjudication is pleaded by the landlord as res judicata, and he claims that a finding in the present suit on the issue as to the rate of rent should be entered in accordance with the previous adjudication; but it so happens that there was a still earlier adjudication in 1893 on the same issue between the same parties by a competent Court in which a different finding was arrived at. This was not pleaded in the later suit. The tenants plead that there being two conflicting judgments neither of them could be pleaded as res judicata and the Court in the present suit was bound to try the issue and come a conclusion on the evidence which may be placed before it. We think that, on principle, in cases of judgments inter partes, the later adjudication should be taken as superseding the earlier. If for example the earlier finding had been pleaded in the suits which resulted in the determination of 1895 but the Court rightly or wrongly overruled the plea and decided the issue in a manner different from the previous adjudication, there can be no doubt that the later adjudication is the one which is pleadable as res judicata. So likewise, if the tenants had pleaded the earlier adjudication but had failed to prove it and the Court in the later suit had arrived at a determination on. the evidence in the case, the later would be the adjudication which would be pleadable as bar. The fact that the tenants did not choose to plead the adjudication of 1893 in bar of the trial a fresh of the same issue as to rates of rent cannot make any difference as regards the operation of that determination as res judicata any more than their failure to let in a piece of evidence which might have resulted in a determination other than the actual finding. It must be remembered that the plea of res judicata, is one which does not affect the jurisdiction of the Court but is a plea in bar of a trial of a suit or an issue as the case may be which a party is at liberty to waive. It is quite easy to conceive of cases in which the parties to a former adjudication dissatisfied with it bring the matter again before the Courts without raising the plea of res judicata. Suppose in this case the tenants deliberately omitted to plead the adjudication of 1893 with a view, if possible of getting the Court to hold that the rate of rent payable by them was less than what was found to be the rate in the previous suits. If after having invited a decision on the merits would they now be at liberty to go behind the last adjudication and ask for a retrial of the issue, because the fresh finding was even worse than the first against them. We certainly think not; and on principle it is impossible to make a distinction between a, case where the plea is omitted to be taken by accident or mistake and where it is omitted to be taken by design. The only test therefore is whether as a matter of fact there has been an express decision on a material issue whatever be the materials on which that adjudication was arrived at.

There has been an. express decision in the latest Judgment Exhibit A-17 on the question of the status of defendants 1 and 2 and Raman Pillai and it has been held there that they were not members of a tarwad at the time of the partition under Exhibit A-1 which was Exhibit A-3 in that suit.

18. Another decision in which this question was considered is the one in Damodar Rao v. Bhima Rao and another : AIR1965Kant290 ; In that case the earlier decision was of the High Court, and the later decision was of a District Munsif's Court which became final. Tukol, J., has observed in his judgment in terms:

So the position at the date of the present suit was that there were two decrees recording conflicting decisions on the question of status of a Hindu family. In such a situation where both the decrees satisfy the requirements of Section 11 of the Civil Procedure Code, it is the later decree that prevails over the earlier for the purpose of decreeing the question of res Judicata. The fact that the earlier decision was of the High Court, is not material since the principle of res judicata is not dependent upon the status or the grade of the two Courts which have rendered the decisions but upon the finality of the decision and its binding character on the parties concerned.

Therefore though the subsequent decision Exhibit B-17 was of a superior Court, namely of the Sub-Court and the latest decision was of the District Munsif's Court, the latest decision in which the question regarding the status of defendants 1 and 2 and Raman Pillai was expressly considered would prevail and constitute res judicata. Therefore I agree with Mr, Padmanabhan, and hold that on the date of the sale under Exhibit A-2 by Raman Pillai in favour of Daniel Nadar, there was no thavazhi of defendants 1 and 2 and Raman Pillai and that Raman Pillai was not the karnavan of the thavazhi and he was therefore entitled to deal with his share in the properties without reference to the defendants 1 and 2.

19. As already stated amongst three sets of decisions, namely O.S. No. 293 of 1120 M.E., A.S. No. 142 of 1953 and S.A. No. 204 of 1959 forming one set; A.S. No. 132 of 1957 on the file of the Sub-Court, Padmanabhapuram, which arose out of O.S. No. 339 of 1954 on the file of the District Munsif's Court, Padmanabhapuram, forming another set and O.S. No. 452 of 1960 on the file of the District Munsif's Court Padmanabhapuram, forming the third set, the validity and binding nature of the sale by Raman Pillai in favour of Daniel Nadar came up specifically for consideration only in A.S. No. 132 of 1957 and the learned Subordinate Judge has held in his judgment Exhibit B-17 that the sale by Raman Pillai in favour of Daniel Nadar was without the written consent of defendants 1 and 2 and was invalid against the second defendant herein the plaintiff in that suit. The first defendant was in similar position and that finding would equally apply even with reference to him. This decision has become final and would be binding on the parties, and. the finding in the latest decision in O.S.No. 452 of 1960 regarding the status of defendants 1 and 2 and Raman Pillai at the time of execution of that sale deed would not have the effect of validating the sale deed which has been held in the said A.S. No. 132 of 1957 to be invalid though that findings may be erroneous having regard to the latest finding regarding the status of those persons at the time of execution of the partition deed Exhibit A-1 even earlier in 1097 M.E. As already stated the clear finding of the learned District Munsif in paragraph 23 of his judgment in O.S. No. 293 of 1120 M.E., is that the decree in O.S. No. 1827 of 1108 M.E. is binding on the first defendant, but not on the second defendant, that the final decree in that suit ought to decide the dispute between the parties to the extent of its validity and that therefore Dr. John Hilkiah was entitled to only one-fourth share and defendants 1 and 2 were entitled to a half share in. the properties. This has been made clear in paragraph 24 of the judgment as observed by the learned District Munsif in his order Exhibit B-5 dismissing I.A. No. 324 of 1961 filed by Daniel Nadar for setting aside the order dated 25th October, 1960 in which defendants 23 to 25 in O.S. No. 293 of 1120 M.E. were granted a supplementary preliminary decree in I.A. No. 1634 of 1960. The learned District Munsif has observed that only defendants 1 and 2 had appealed against the decree and that the right of Dr. John Hilkiah to a half share in the suit properties has been established in the appeal in A.S. No. 142 of 1953. The decree in that appeal, appears from Exhibit B-8, the final decree dated 23rd November, 1961 passed in O.S. No. 293 of 1120 M.E. to have been confirmed by this Court in Second Appeal No. 204 of 1959. The order Exhibit B-5 dismiss . ing Daniel Nadar's application in I.A. No. 324 of 1961 has been confirmed by the learned Subordinate Judge, Padmanabhapuram in C.M.A. No. 45 of 1961 as can be seen from the decree Exhibit B-6 dated 14th September, 1961. It is true, as can be seen from Exhibit A-9 that in I.A. No. 952-A of 1953 filed by Daniel Nadar for passing a second preliminary decree for partition of his share of 2 acres in item No. 1 in O.S. No. 293 of 1120 M.E., the learned District Munsif has directed Daniel Nadar to take separate proceedings against the remaining defendants in respect of his claim for partition of his two acres. It was contended by Mr. S. Padmanabhan, the learned Counsel for the appellants that this would entitle Daniel Nadar to file the present suit for partition of his share in S. No. 3020-A and. that the preliminary decree and final decree passed in the suit would not bar his right.

20. In this connection Mr. S. Padmanabhan relied upon some decisions. The first of these decisions is of Curgenven, J., in Lakskminarasimhan v. Lakshmi Path : AIR1931Mad830 ; In that case, defendant 2 had obtained a mortgage decree against defendant 1 and in the Court sale defendant 3, it was said, benami for defendant 2, bought defendantal's property. There was an arrangement between the three defendants and the plaintiff, according to which defendant 1 executed a mortgage in favour of the plaintiff for Rs. 400 on the property which had been sold by the Court, and defendant 3, the Court-auction-purchaser, undertook to get the Court-Sale set aside. But defendant 3 failed to do so, and so the mortgage bond passed no interest to the plaintiff. The plaintiff therefore filed O.S.No. 368 of 1920 for recovery of the mortgage amount, if necessary by the sale of the mortgaged property. The District Munsif who tried the suit granted a decree merely declaring the plaintiff's mortgage right and gave him liberty to enforce his right in a Separate suit. The plaintiff accordingly filed O.S. No. 88 of 1925 to enforce his right for recovery of the mortgage amount. The District Munsif found in that suit that the Subsequent Suit was barred both by res judicata and under Order 2, Rule 2, Civil Procedure Code; But on appeal the Subordinate Judge found that the two suits were based upon different causes of action and he remanded the suit. Gurgenven, J., has extracted in his judgment the following passage in the judgment of Garth, J. in Ramachandra Bahadur v. Reazuddin (1884) I.L.R. 10 Cal. 856. They considered rightly or wrongly that they were not in a position to try the main question in the case and it is clear that the question, which was advisedly left undecided in the former suit, cannot be said to have been heard and finally decided within the meaning of Section 13 (now Section 11) of the Code and they observed:

So in the present case it may be that the District Munsif ought to have forthwith granted a mortgage decree. But rightly or wrongly, he considered himself precluded from the manner in which the suit was brought from doing this. 1 am unable to see that he thereby decreed any such matter as would make it res judicata between the parties.

This decision will not apply to the facts of the present case, for the liberty to enforce his right to recover the mortgage amount had been granted to the plaintiff in O.S. No. 368 of 1920, who subsequently filed O.S. No. 88 of 1925 for the purpose for which liberty had been granted to him in the very same suit namely O.S. No. 368 of 1920 and not in any subsequent proceeding whereas in the present case, as already seen, the preliminary decree in O.S. No. 293 of 1120 M.E. declared the right of defendants 1 and 2 to a half share in the property and of Dr. John Hilkiah to one-fourth share in the property and on appeal Dr. John Hilkiah has been declared to be entitled to a half share and the right of defendants 1 and 2 to a half share has not been affected in any man net whatsoever. Subsequent to the date of the order, namely 8th October, 1958, in which liberty was given to Daniel Nadar for taking separate proceedings in respect of his claim in I.A. No. 952-A of 1958, Daniel Nadar filed an application in I.A. No. 324 of 1961 for setting aside the order in which a supplementary preliminary decree was granted to defendants 23 to 25 in I.A. No. 1634 of 1960. That application was dismissed on 11th July, 1961 under Exhibit B-5, and this order has been confirmed on appeal in C.M.A. No. 45 of 1961 as mentioned above, and the final decree Exhibit B-8 has been passed on 83rd November, 1961 on the basis that Dr. John Hilkiah was entitled to one-half share and defendants 1 and 2 and others who claimed certain shares under one or the other of these defendants were entitled to the remaining half share.

21. The next decision relied on by Mr. S. Padmanabhan, learned Counsel for the appellant is the decision in Ebrattennessa Bibi v. Saratchandra : AIR1934Cal14 . In that case the decision of the trial Court was based on findings on two issues regarding tenancy and title. The suit was dismissed by the trial Court. The appellate Court disposed of the appeal on its finding on the question of tenancy, agreeing with the trial Court on that issue, and declined to go into the question of title and expressly left it open while dismissing the appeal. It has been held by the High Court that the finding of the trial Court on the issue left untouched and undecided by the appellate Court did not operate as res judicata in the subsequent suit. This decision also will not apply to the facts of the present case, for as already stated, liberty has not been given to Daniel Nadar to file a separate suit for partition of his share in the preliminary decree in O.S. No. 293 of 1120 M.E. itself.

22. The next decision relied upon by Mr. S. Padmanabhan, learned Counsel for the appellants is of a Bench of this Court in Bapanna v. Jaggiah A.I.R. 1939 Mad. 811 . There it is observed:

Explanation 4 imports a fiction into Section 11, Civil Procedure Code. Having provided that a matter which might and ought to have been made a ground of defence or attach in a former suit, it introduced a fiction that it shall not only be deemed to have been raised but also to have been directly and substantially involved in that suit. This would not have been however, enough for the purpose of Section 11, Civil Procedure Code, until the matter was presumed to have been decided. It therefore imported a further fiction that it should also be deemed to have been heard and finally decided. In view of an express order by the Court that the matter would be left open, it is impossible to permit any such fiction to be introduced in this case.

This decision will also not apply to the facts of the present case where liberty had not been given in the preliminary decree itself.

23. The next decision relied upon by Mr. S. Padmanabhan is of Viswanatha Sastri, J., in Goripalayam Durga v. Kesavaswami Iyer : (1949)2MLJ153 , where the learned Judge has observed:

It is quite true that a decision would be res judicata even if it is not specific and express provided it is necessarily implied In the decree. For instance, a decree which necessarily involves a finding on an issue in the affirmative or negative, even though no specific finding was recorded on it would be res judicata in a subsequent suit. This Rule, however, can have no application, where, as here, the Court in the former suit has expressly left undecided the issues that arose for decision in the later suit. As observed by the Judicial Committee, it would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided.

This decision would not help the appellants having regard to the fact that the facts of the present case are different. On the other hand, it would help the contesting respondents for the decree in O.S. No. 293 of 1120 M.E. granting a half share to defendants 1 and 2 and one-fourth share to Dr. John Hilkiah which was modified on appeal only so far as Dr. John Hilkiah's share is concerned wherein it has been held that be was entitled to a half share, necessarily involved an adverse finding on the question, of Daniel Nadar's right to partition and separate possession of 2 acres of land in Survey No. 3020-A.

24. The last decision relied, upon by Mr. S. Padmanabhan is of Gokulakrishnan, J., in Subba Reddiah v. Seetharaman : AIR1972Mad421 , where 'I' claiming to be A's wife, brought a suit for injunction restraining the defendants from interfering with her possession of the property and the defendants claimed the property as the legitimate children of A on the basis of a custom for the validity of the marriage of their mother 'P' with 'A' and the High Court's decision granting an injunction subject to the defendant's right to establish the custom in a separate suit, cannot operate as res judicata as it is not final and therefore neither Section 11 nor Explanation IV to Section 11 would bar the subsequent suit by the defendants to establish their legitimacy and recover possession of the property. Liberty has been given in that case in the same decision unlike in the present case where as already stated, the rights of defendants 1 and 2 to a half share and Dr. John Hilkiah, to the other half share had been determined in the same suit in the presence of Daniel Nadar thereby impliedly denying the right to partition and separate possession of 2 acres in S. No. 3020-A. This denial of his right has been admitted in the Court in the present suit.

25. Daniel Nadar the 10th defendant in O.S. No. 293 of 1125 M.E., was in the nature of a plaintiff in that suit for partition where he had specifically prayed for partition of 2 acres Out of item 1 in that suit which be claimed to have purchased from Raman Pillai. Therefore, Order 2, Rule 2 of the Code of Civil Procedure, would apply even though he was only a defendant. Order 2, Rule 2, Civil Procedure Code, lays down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and that where he omits to sue in respect of, or intentionally relinquishes any portion of the claim be shall not afterwards sue in respect of the portion omitted or relinquished. Section 11 of the Code of Civil Procedure, lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties or between parties under whom they claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Explanation 4 to Section 11 lays down:

Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Therefore, though the question of the validity and binding nature of the sale by Raman Pillai in favour of Daniel Nadar and Daniel Nadar's right to partition and separate possession of 2 acres in survey No. 3020-A had not been specifically considered in O.S. No. 293 of 1120 M.E., it is a matter which ought to have been considered in the former suit and should be deemed to be a matter which was directly and substantially in issue in that suit. Daniel Nadar had not been declared to be entitled to partition and separate possession of 2 acres in survey No. 3020-A in the former suit either in the preliminary decree or in the final decree Exhibit B-8. The order Exhibit A-9 in I.A. No. 952(a) of 1958 will not amount to any direction in the preliminary decree itself for the question of Daniel Nadar's claim for partition and separate possession of 2 acres being left open for consideration M.L.J.-18 in a separate suit. In Venkatasubbayya v. Virayya 1956 An. W.R. 1082 : I.L.R. (1956) A.P. 1076 : A.I.R. 1957 A.P. 981, in a previous suit for partition of joint family property, the Court held that a certain item-was joint family property, but by mistake or oversight no direction for division of that property was given in the preliminary decree or final decree for partition. The plaintiff's application for review or amendment of the decree was rejected on the ground of non-payment of Court fee and therefore he brought a second suit for partition of that item of property. It has been held that the second suit was barred by res Judicata. This decision would apply to the facts of the present case. As already stated, in the presence of Daniel Nadar, the right of defendants 1 and 2 to a half share and of Dr. John Hilkiah to the other half share has been declared thereby impliedly negativing the right of Daniel Nadar to partition and separate possession of 2 acres in Survey No. 3020-A. Therefore, I agree with the learned Counsel for the contesting respondents and hold that the decision in O.S. No. 293 of 1120 M.E. as modified in A.S. No. 142 of 1953 and confirmed by S.A. No. 204 of 1950, is valid and binding on Daniel Nadar and constitutes res judicata, and he is not entitled to file the present suit for partition and separate possession of 2 acres in S. No. 3020-A, though defendants 1 and 2 and Raman Pillai were not members of a thavazhee at the time of the sale by Raman Pillai in favour of Daniel Nadar under Exhibit A-2 and Raman Pillai had the right to deal with his share and also because the decision In A.S. No. 132 of 1957, Exhibit B-17, which arose out of the decision in O.S. No. 339 of 1954, where it has been held that the sale by Raman Pillai in favour of Daniel Nadar under Exhibit A-2 which was Exhibit 'I' in that suit, is not valid and binding on the second defendant who was in the same position as the first defendant on the date of the sale constitutes res judicata. The second appeal therefore fails and is dismissed with costs of the contesting respondents. No leave.


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