1. This second appeal arises out of a suit for partition instituted by the plaintiff against his brother, the 1st defendant, for a partition of the properties alleged to belong jointly to both. The 2nd defendant is the son of the 1st defendant, and the other defendants are tenants and alienees of some of the properties claiming under the 1st defendant, the 6th defendant being the purchaser of items Nos. 4 to 8 in Schedule A-I, attached to the plaint, and the 14th defendant being the purchaser of a house in Schedule B-II.
2. The appeal relates only to three sets of items out of the properties claimed in the suit, namely, item No. 1 in A-I Schedule, items Nos. 4 to 8 in the same Schedule and the house in B-II Schedule.
3. The plaintiff had previously instituted a suit (Original Suit No. 35 of 1893) in the Subordinate Court of Tanjore, for a partition of the family properties, while he was a minor, through his mother as his next friend. The suit ended in a compromise (Exhibit I), dated the 20th July 1894, which was duly presented to the Court and sanctioned by it by its order--Exhibit XIII. The Court directed a decree to be drawn up in terms of the compromise. But, as a matter of fact, no decree was actually drawn up. It was stated to us at the hearing that, subsequent to the passing of the decree of the lower Appellate Court in this case, such a decree has been passed in accordance with the terms of the compromise, and the case has proceeded in this Court on the footing that the compromise between the parties has passed into a decree. Of the items which form the subject-matter of this second appeal, items Nos. 4 to 8 in Schedule A-I were not included in Original Suit No. 35. They had been sold to the 6th defendant by the 1st defendant previous to the suit, and the sale was not questioned by the next friend. The house in Schedule B-II was not then in existence but was purchased by the 1st defendant, subsequently, under circumstances which will be referred to hereafter.
4. Item No. 1 in Schedule A-I, was included in the suit. But although both parties intended to divide all the immoveable properties into equal shares between them, it was omitted in the compromise by inadvertence and the Court disposed of the suit without taking notice of the omission.
5. In this suit, the 1st defendant tried to show that the omission was not due to inadvertence, and that it was intended that the item should go to him exclusively.
6. Both Courts have found against this contention.
7. We accept that finding and have no hesitation in holding that the 1st defendant's plea is a dishonest one as shown by his own admission contained in Exhibit B.
8. The plaintiff in his plaint entirely ignored the previous suit and the compromise, treating it apparently as absolutely void as against him.
9. The defendants contended that the compromise was binding on the plaintiff and that this suit was barred by it.
10. The Munsif held, on various grounds, that the razee was void as against the plaintiff, but the Subordinate Judge disagreed with the Munsif and found that none of the grounds, on which the Munsif held it to be void, could be sustained. He was of opinion that the compromise was fairly and honestly entered into in the interests of the minor and that there was no fraud on the part of the 1st defendant in bringing it about. This finding of the Subordinate Judge has not been impeached before us.
11. We now proceed to deal separately with the three sets of items which form the subject-matter of the appeal.
Item No. 1 in Schedule A-l.
12. The District Munsif allowed the plaintiff's claim with respect to this item. The Subordinate Judge disallowed it on the ground that the claim was barred by the rule of res judicata under Section 13 of the Civil Procedure Code. Mr. T.R. Ramachandra Aiyar for the appellant contends that the Subordinate Judge's view is wrong, on the grounds that the Court in the previous suit did not pass any adjudication with respect to this item; that it could not, in the circumstances, be taken to have refused the plaintiffs claim with respect to it, and that his client is entitled to re-open the compromise on the ground of mutual mistake of the parties in omitting this item. He relies strongly on the decision of Mookerjee and Caspersz, JJ., in Jogendra Nath Rai v. Baldeo Das 6 C.L.J. 735 : 12 C.W.N. 127 in support of his contention that, there having been no adjudication by the Court with respect to the item and the coparcenary rights of the parties not having been put an end to with respect to it, the plaintiff is entitled to enforce partition.
13. Mr. K. Srinivasa Aiyangar for the respondents contends that Explanation IV to Section 13 of the repealed Code of Civil Procedure (section 11 of the present Code) is conclusive in his favour, that the plaintiff's claim to item No. 1 must be taken to have been refused in the previous suit, as it lays down that 'any relief claimed in the plaint which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.' The Calcutta case, apparently, does support the appellant's contention, although Explanation IV was not referred to in the judgment.
14. We do not, however, consider it necessary to pronounce any opinion as to the soundness of that decision, as it is not, in our opinion, applicable in the circumstances of the present case, inasmuch as the judgment there did not proceed upon a compromise between the parties. It was held, in Kumara Venkata Perumal Raja v. Thatha Ramasami Chetty (1911) 1 M.W.N. 290 : 21 M.L.J. 709 : 39 Ind. Cas. 875 by this Court that Section 13 of the Code of Civil Procedure, which deals with the rule of res judicata, is not strictly applicable to compromise decrees, as it applies in terms only to what has been heard and finally decided by a Court. The same opinion was expressed by Scott, J., in Minalal Shadiram v. Kharsetji 8 Bom. L.R. 296. We agree with the view held in those cases, and we do not think that the principle of Explanation IV, which is an extension of the doctrine of res judicata, though embodied in the Civil Procedure Code by way of explanation in the section dealing with that doctrine, is applicable to a judgment which merely carries out and enforces an agreement between the parties. There is no reason why, when parties omit to include a certain item of their common properties in an agreement of division, one of them who may happen to be in actual possession of it should afterwards be entitled to refuse to the other his lawful share of it.
15. On this ground, we hold that the plaintiff's claim to a half share of item 1 in Schedule A-I is not barred by the compromise, and award to him one-half of the item. In the view we have taken, it is unnecessary to deal with the appellant's farther contention that a compromise decree may be re-opened on the ground of mistake, in support of which a dictum of Garth, C.J., in Bibee Solomon v. Abdool Azeez 8 C.L.R. 169 has been relied upon.
Items Nos. 4 to 8 of Schedule A-l.
16. These items, as already stated, had been sold to the 6th defendant prior to the institution of Original Suit No. 35, and were not included in that suit. But the proceeds of the sale were taken into account in the compromise which has been found to be binding on the plaintiff and the plaintiff obtained his share in them. The money realised by the sale was then in the hands of two maternal relations of the plaintiff. It was provided that the 1st defendant should realise the sum from those relations and give the plaintiff his share of it. The 1st defendant afterwards instituted a suit, Original Suit No. 336 of 1897, for the recovery of the money and in execution of the decree purchased certain properties at Court-sale.
17. The plaintiff claims a share in those properties and has actually entered into a compromise with respect to one of them with the 19th defendant to whom it was subsequently sold by the 1st defendant; see paragraph 9 of the District Munsif's final judgment. In these circumstances, the plaintiff's claim to these items cannot be sustained. It is unnecessary to Consider whether the Subordinate Judge's finding regarding the propriety of the sale of these items to the 6th defendant is correct or not. We may observe that we do not agree with his view that the claim to this item is barred by Section 43 of the Civil Procedure Code (Order II, Rule 2 of the present Code). The present suit to recover them is substantially against the alienee, the 6th defendant. The 1st defendant has no subsisting right to these items. The section has no application where the parties to the two suits are not the same: See Iburamsa Rowthan v. Thiruvenkatasami Naik (1910) 1 M.W.N. 380 : 20 M.L.J. 743: 7 Ind. Cas. 559.
The house in Schedule B-II.
18. This was one of the items purchased by the 1st defendant in execution of the decree in Original Suit No. 336of 1897, against the plaintiff's maternal relations who were in possession of the money realised by the sale of items Nos. 4 to 8. The Subordinate Judge has dismissed the plaintiff's claim on the ground that the 1st defendant is not proved to have purchased the item as manager of the family. He says: 'The first defendant's liability to account to, the plaintiff for his share of, the family debt collected by him did not make him the manager of the family or co-owner of the property. There is nothing to show that the 1st defendant purchased the property for himself and plaintiff.' He was also of opinion that the claim was barred by Section 317 of the Civil Procedure Code (section 66 of the new Code) which prevents a person from suing to recover property sold at Court-sale, on the ground that the purchase was made by him on behalf of some other person. But the section has no application to cases where the manager of a Hindu family or a tenant-in-common makes the purchase with funds belonging to himself and to the other members of his family or the other tenants-in-common: See Minakshi Ammal v. Kalianrama Bayer 20 M.K 349 and Krishna Aiyan v. Baghava Aiyan 9 M.L.J. 298. It is admitted that no money was actually paid by the 1st defendant for this item, and that the consideration for the purchase came out of the decree debt in Original Suit No. 336 which belonged to him and the plaintiff jointly. The plaintiff is, then, entitled to the benefit of the purchase.
19. The question, then, is, what relief the plaintiff is entitled to with respect to this item? Mr. Srinivasa Aiyangar contends that the plaintiff 'is not entitled to a half share, as the purchase-money came out of a joint debt belonging in common to the plaintiff and the 1st defendant, and the plaintiff had not, under Exhibit I, the compromise in Original Suit No. 35, a right to one-half of the debt.
20. This contention appears to us to be sound. According to Exhibit I, out of Rs. 1,143 which was the total amount of the debt, the plaintiff was to be debited with Rs. 305 for certain reasons and the remainder was to be equally divided between him and the 1st defendant. The plaintiff was entitled, roughly speaking, to 3/4th of the total amount. He and the 1st defendant were joint owners of the amount in the proportion of 3 to 5, and we therefore, hold that the plaintiff is entitled to recover 3/4 ths of this item.
21. The decree of the lower Appellate Court will be modified in the manner indicated above. The 1st defendant will pay half the plaintiff's casts in all the Courts on item No. 1 in Schedule A-I and the house in Schedule B-II. He must pay the 6th defendant's costs in this Court. The Subordinate Judge is requested to hold an inquiry as to the amount of mesne profits from the date of Exhibit I up to this date of item No. 1 Schedule A-1 and submit his finding to this Court within 2 months. Seven days will be allowed for filing objections.
22. [In compliance with the order contained in the above judgment, the Subordinate Judge of Kumbakonam submitted the following
23. This Court 'is requested to hold an inquiry as to the amount of mesne profits from the date of Exhibit I up to this date, of item 1, Schedule A-l.'
24. The gross income from date of Exhibit I (20th July 1894) at 90 kalams a year till date of order of the High Court (2nd August 1911) is 1,330 kalams. The money value thereof is Rs. 1,772. The kist is about Rs. 27 per annum [vide Schedule A-l, Rs. 92-7-0 for about 16 acres nunja] and amounts to Rs. 359 for the period in question. The net income is Rs. 1,413. Plaintiff's share thereof is Rs. 706 80. But defendant is content to have Rs. 408 4 0 for 13 years--vide paragraph 25, page 33 of the printed pleadings, and memo of second appeal. Defendant's figure for 17 years comes to Rs. 531-40. I see no reason to assess mesne profits at a higher figure. The figures arrived at above are only estimates and not actual and do not allow for bad seasons. They show that the defendant's figures are reasonable. I, therefore, find that the mesne profits on item I Schedule A-l of the plaint from Exhibit I to date of the order of the High Court amount to Rs. 531-4-0.
25. We accept the finding arrived at by the present Subordinate Judge on the question of mesne profits dug for item No. 1 in Schedule A-I. It is agreed between the parties that the plaintiff should have interest at 6 per cent, on Rs. 406 4-0 from the date of the plaint till the 2nd August 1911 and on the total amount of Rs. 531-4-0 from the latter date to the date of realisation.