1. This is an appeal against the Judgment and Decree passed on the Original Side of this Court in C.S. No. 407 of 1949, by Subba Rao, J. The first respondent is the plaintiff. He filed a suit for a partition of the properties which he alleged belonged to one Munuswami Pillai who died on 26th March, 1940, claiming to be his illegitimate son. The first defendant is the widow of the said Munuswami Pillai. The second and third defendants are his daughters. The fourth defendant was made a party as being in possession of the assets of the deceased. The first defendant, the widow, did not file any written statement. But a common written statement was filed by defendants 2, 3 and 4 in which the main pleas raised were that the plaintiff was not an illegitimate son of the deceased Munuswami entitled to a share of his property on the ground that the plaintiff's mother Manickammal was not in the exclusive keeping of the said Munuswami and (2) that the suit was barred by res judicata because of the dismissal of a prior suit, C.S. No. 39 of 1942 on the Original Side of this Court filed by the plaintiff and others. On these pleadings the following material issues were framed:
(1) Is plaintiff son of K.N. Munuswami ?
(2) Was Manickammal a concubine in the exclusive keeping of Munuswanli ?
(3) Is the claim not barred by res judicata ?
(4) Is the claim not barred under Order 2, Rule 2, Civil Procedure Code, by reason of the prior suit C. S. No. 39 of 194.2 ?
(5) Is the plaintiff entitled to ignore the decision in the previous suit C. S. No. 39 of 1942 for the reasons stated in paragraph 8 of the plaint ?
The learned Judge held that the plaintiff was the son of Munuswami Pillai and that Manickammal was a concubine in the exclusive keeping of Munuswami Pillai. The learned Judge also held that the suit was not barred either by res judicata or by Order 2, Rule 2 of the Code of Civil Procedure. Evidently in view of his finding on the other issues, no specific finding was given on issue 5 as it was not necessary. The learned Judge passed a preliminary decree for partition after discussing the share to which the plaintiff would be entitled to as an illegitimate son. He held that he would be entitled to half the property. Against this Judgment and Decree defendants 2 and 3, the two daughters alone have filed the present appeal. The widow, the first defendant has been made the second respondent and she remains ex parte before us.
2. The learned Counsel for the appellants was unable to displace the finding of the learned Judge on the question of fact, namely, that the plaintiff's mother was the continuously kept concubine of the deceased Munuswami and the Plaintiff is his son by her. But he pressed upon us the plea of res judicata.
3. The prior suit C.S. No. 39 of 1942, was filed by the present plaintiff for partition on the allegation that he was the legitimate son of Munuswami. In that suit Chandrasekhara Ayyar, J., who tried it, held, that the plaintiff had failed to establish that Munuswami Pillai was married to Manickammal. It may be mentioned here that there was an application made by the plaintiff herein in that suit to amend the plaint introducing an alternative cause of action on the basis that Manickammal was the continuously kept concubine of Munuswami Pillai. But that application was dismissed and the suit was eventually dismissed on the footing that the plaintiff's claim was based on his being the legitimate son of Munuswami. It is (sic) that the suit would not be barred by the rule of res judicata unless Explanation IV to Section 11 of the Civil Procedure Code applies. Under that explanation any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit. The learned trial Judge held that the plaintiff was not bound to include in his prior suit his claim on the alternative basis of being an illegitimate son because there was an inconsistency between the two foundations of the claim, namely, legitimacy and illegitimacy. The learned Judge observed that one was destructive of the other, as a woman cannot be a wife and concubine at the same time, and the evidence to establish marriage would be inconsistent and incongruous to the status cf a continuously kept concubine, and it would be unfair and prejudicial to the interest of a party to compel him to claim relief on an alternative and mutually destructive basis. He therefore held Explanation IV to Section 11 would not apply. On the same reasoning he held that the suit was not barred by Order 2, Rule 2 of the Code of Civil Procedure. Mr. Harihara Ayyar, learned Counsel for the appellants, contended that when a person has two grounds of title on which he could claim a relief, he was bound to add both grounds in the same suit and if he fails to urge one of the grounds in the prior suit he cannot be allowed to raise that ground in the later suit. He relied upon certain rulings to which we shall presently refer. The first of these is a judgment of this Court in Muhammad Rowther v. Abdul Rahman Rowther I.L.R.(1933)Mad. 135. The general rule is stated thus by Krishnan, J., after referring to the decision of the Privy Council in Kameswar Prasad v. Rajkumri Ruttan Koer (1892) L.R. 19 IndAp 234 : I.L.R. 20 Cal. I.L.R. 47 All. 158 :
This case shows that if a person has two grounds on which he could base his claim or title to a thing he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion. In the case before us the joining together of the two claims, the one under the purchase and the other [as heir, would have led to no confusion or embarrassment.
We agree with Subba Rao, J., that the addition of the alternative ground of title, namely, the illegitimate sonship, would certainly have led to confusion and embarrassment. In Fatesh Singh v. Jagannath Baksh Singh (1924) 48 M.L.J. 64 : L.R. 5a LA. 100 there was no possibility of such a confusion or embarrassment. There a suit was brought to set aside a gift made by a widow out of her husband's estate alleging that they were presumptive heirs. That suit was dismissed and after the death of the widow they brought another suit to recover a share in the property based on a claim of family custom of inheritance. It was held by the Juducial Committee of the Privy Council that the suit was barred by res judicata under Explanation IV to Section 11 of the Code of Civil Procedure since the custom was a matter which might and ought to have been set up in the former suit. The decision in Abdul Gani v. Mabindra Kishore Roy I.L.R.(1929) Cal 258 does not carry the matter any further because there can be no dit pute about the general rule that even ah alternative basis on Which a claim could be sustained should be set up in any suit brought to enforce the claim and when it is not set up the basis omitted in the prior suit cannot sustain another suit. The same rule was applied in Mantorni v. Krishna Ballabh I.L.R.(1948) Pat. 835. In neither of these cases was there any likelihood of confusion or embarrassment. In another decision of this Court in Venkataramayya v. Lalbibi Saheba (1934) 67 M.L.J. 709 which was cited to us, the rule is stated thus:
The test is this : If a matter could have been set up as a ground of attack in the former suit and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack in that suit, unless the matters in that and the subsequent suit are so dissimilar that their union might lead to confusion.
We respectfully agree with this statement of the rule. As we have already mentioned, the joining of the plea of illegitimacy would have certainly led to confusion or embarrassment in the paior suit, and therefore we cannot say that the ground of illegitimate sonship was a matter which ought to have been made a ground of attack in the former suit. We therefore agree with Subba Rao, J., that the suit is not barred by res judicata, and on the same reasoning by Order 2, Rule 2 of the Code of Civil Procedure. We may also add that the cause of action for the present suit which is based on the plaintiff being the illegitimate son is not the same as the cause of action on which the prior suit was based, namely, that the plaintiff was the legitimate son of Munuswami.
4. Mr. Harihara Ayyar raised another point which relates to the quantum of the share to which the plaintiff is entitled. He contended that, under the Hindu Women's Rights to Property Act the widow would be entitled to a three-fourths share and the plaintiff as an illegitimate son would be entitled only to a fourth share. That point was not raised in the only written statement filed in the case, namely, that by the appellants and therefore the point did not form the subject of a 'pecific issue and it was not dealt with by the learned trial Judge. Indeed, the widow who presumably was interested in raising this plea, did not care to file any written statement or contest the plaintiff's claim. Curiously, even after the preliminary decree was passed declaring that the plaintiff was entitled to a half share, the widow did not care to file an appeal. It is only the two minor daughters who admittedly would not be entitled to a share in the property, who have filed this appeal and it is in the memo of grounds of appeal that for the first time the plea was raised that under the. provisions of the Act the plaintiff would be entitled to a fourth share. We do not think it just and proper that the appellants should be allowed to raise this plea in appeal when they did not choose to raise it at the trial and when the person interested, namely, the first defendant, did not contest the plaintiff's claim in the Court below and has not chosen to contest his claim in appeal. We therefore do not permit the appellants to raise this point.
5. The appellants however have a legitimate claim that provision should have been made in the preliminary decree for their maintenance during their minority and for their marriage expenses. It may be said that the general direction that an account of the debts and liabilities of the family be taken is wide enough to cover the liability to provide the appellants with their maintenance till their, majority and their marriage expenses. Be that as it may, we make it clear by adding a specific direction that provision shall be made in the final decree for payment of maintenance to the appellants from the date of the suit to the date of their attaining majority and also provision be made for a reasonable amount for the marriage expenses of defendants 2 and 3, having regard to the extent of the estate, and, the liabilities of the family. Except for this direction, the appeal fails and is dismissed. There will be no order as to costs. As the appeal was filed in forma, pauperis, the appellants will pay the court-fee due to Government.