M. Natesan, J.
1. This second appeal raises an interesting question of res judicata. The plaintiff in a suit for partition and separate possession of a half share in the suit properties, has preferred the second appeal. Her claim to a half share in the properties has been accepted by the Courts below on the merits, but is found barred by a prior judgment in a suit to which the plaintiff and the first defendant were parties. The material facts are now concluded by the concurrent findings of the Courts below. The suit properties and other properties originally belonged to one Palaniyandi Servai who left five sons, Udaippan Servai, Muthuchamy Servai, Muthuveeran Servai, Muthukaruppan Servai and Velu Servai. Plaintiff Kamalayee Ammal is the widow of Muthuchamy Servai who died undivided long prior to the enactment of the Hindu Women's Right to Property Act, 1937. She had a son Palaniyandi Servai and a daughter Alagammal. The son Palaniyandi Servai died in 1952, leaving surviving his widow Parvathi, the first defendant in this suit. The second defendant in the suit, a minor, is the sister's son of the first defendant and claims absolute title to the suit properties under a registered settlement deed Exhibit B-1, dated 5th November, 1956, executed by the first defendant for herself and on behalf of her daughter Chinthamani in favour of the second defendant. The plaintiff pleaded family arrangement in 1955, under which in lieu of her claim for maintenance and other claims under the Hindu Law such as residence and expenses for the ceremony of her husband, it was agreed to partition the family properties among the members of the family and give the plaintiff and the first defendant jointly a 1/5th share, that is, the share of the plaintiff's husband's branch, making them jointly liable for the discharge of 1/5th share of the debts due by the family. Originally there was an oral partition and this was followed by a registered deed of partition executed by members of the family, Exhibit A-1, dated 5th January, 1958, being registration copy of the partition deed. The suit properties were allotted to the share of the plaintiff and the first defendant jointly. The plaintiff's claim to partition of the properties was met by the first defendant with denial of the family arrangement. The plea of the first defendant was that, in an oral partition of 1956, the 1/5th share in question was allotted to her and not, to the plaintiff and her jointly. She pleaded that her signature to the partition deed Exhibit A-1 was obtained by misrepresentation and set up the settlement deed she had executed in favour of the second defendant vesting him with the title of the properties. The first defendant disclaimed all her interests in the suit properties after execution of the settlement deed, and, the second defendant, in his written statement, claimed that as and from 5th November, 1956, he became the owner of the suit properties and was in possession of the same. In addition, was put forward the plea that the plaintiff's claim had been found against after contest in the suit, Original Suit No. 94 of 1962, on the file of the District Munsif's Court, Melur, and that barred the retrial of the related issues. The two substantial questions for consideration by the Courts below were the truth and validity of the family settlement and the plea of res judicata. '] he Courts below, on ample and substantial evidence, find that, in settlement of dispute between the widows in respect of their rights in (he properties and to avoid future wasteful litigation, the family arrangement as claimed by the plaintiff must have come into existence allotting a half share in the suit properties to the plaintiff also. The trial Court holds that it has been satisfactorily established that there was an oral partition in or about 1955, in which the plaintiff's right to a half share in the suit properties was recognised, the first defendant being consenting party thereto, (hat it is only this right which was subsequently confirmed under the original of Exhibit A-1 in 1958, and that the first defendant was consenting party to the said document. The appellate Court has confirmed this finding and the same has necessarily to stand in second appeal.
2. It was strenuously contended before me for the defendants that the plaintiff had. no independent title of her own in respect of the properties of the family to form the basis for a valid family settlement. It was urged that a mere concession or admission by the first defendant of a share would not vest the plaintiff with title to a half share in the properties, oven if the partition deed Exhibit A-1 is accepted as true. The argument ignores the principles on which a family arrangement is upheld by Courts. Once it is found that a family arrangement has been entered into bona fide between members of a family, Courts would try to sustain it on the broadest considerations of family peace : and security. As pointed out by the Supreme Court in Pullaiah v. Narasimham : AIR1966SC1836 , family arrangements are governed by principles which are; not applicable to dealings between strangers. Therein, Subba Rao, J. (as he then was) speaking for the Court observed:
Briefly stated, though conflict of legal claims in prasenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.
In Ram Charan v. Girija Nandini : 3SCR841 , it is said:
Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word ' family ' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagouda's case , of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, another her brother and the third her son-in-law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind, their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another.
In the present case, true, the plaintiff had no interest in the joint family properties except her claim to maintenance and residence, etc. recognised by the Hindu law and. the first defendant had the legal right to claim the share of her husband. The Courts below find that in this case there was in existence conflicting claim by the first plaintiff, the mother-in-law against the first defendant, the daughter-in-law, and that there was every indication that the right of the plaintiff was agitated and disputed. The plaintiff did have a claim on the joint family estate, though she had no legal claims to share the properties, and the members of the family, to maintain peace and harmony in the family can certainly bring about a valid arrangement in terms of Exhibit A-1. The Courts below were, in the circumstances, justified in upholding the plaintiff's claim to partition, subject to the plea of res judicata.
3. The defence of res judicata which has been accepted by the Courts below ending in the dismissal of the suit arises in this way. The plaintiff executed a mortgage deed in favour of her son-in-law Arumugham Servai on 24th September, 1956 over the suit properties securing a sum of Rs. 3,750 as a family debt due for the 1/5th share of her husband's branch. The second defendant did not join in the mortgage and the mortgagee filed the suit, Original Suit No. 94 of 1062, on 9th April, 1962 impleading therein as party defendants the present plaintiff and the present first defendant. In that suit the present plaintiff as first defendant remained absent and was set ex parts. But she gave evidence as P.W. 1. The present first defendant as second defendant in that suit questioned not only the passing of consideration for the mortgage but also denied any partition in the family or division of debts before 5th January, 1958. She pleaded that, on the death of her husband, she alone became a sharer in the family properties and in the partition on 5th January, 1958 the properties were allotted to her only and the present plaintiff's name fraudulently introduced in the partition deed. The written statement, no doubt, referred to the fact that the partition deed showed a sum of Rs. 3,970 as payable to the mortgagee Arumugham Servai, but was qualified by the statement that the amount had subsequently been paid. The trial Court held in that case that by no stretch of imagination could the present plaintiff acquire any valid title to any portion of the suit properties by virtue of the partition deed alone, so as to clothe her with proprietary right to deal with the properties. It found that the present plaintiff had no title whatsoever to the suit properties to hypothecate the same. On the findings, a personal decree was passed against the present plaintiff and the suit as against the present first defendant was dismissed with costs. It was held that the present first defendant was not a necessary party to the suit. On appeal by the mortgagee, the judgment and decree of the trial Court were confirmed. On the question as to whether the present first defendant was a necessary party, the appellate Court held, that, having regard to the claim made by the plaintiff in that suit, the present first defendant was a necessary party to the suit. The plaintiff in that suit had prayed for a decree binding on the present first defendant, contending that the mortgage was in discharge of family debts. Exhibits B-2 to B-6 are the copies of the plaint judgments and decrees in the suit, Original Suit No. 94 of 1962.
4. There can be no doubt that the title of the present plaintiff was put in issue in that suit by the contesting defendant therein, namely, the present first defendant, and the title was found against. Having regard to the claim made by the plaintiff in that suit, it was necessary for the Court to decide the title inter se between the defendants. No doubt the title put forward by the second defendant in that suit (the present first defendant) was a paramount title. But the plaintiff in that suit sought to make the second defendant therein liable on the mortgage pleading that the present plaintiff as elder member of the family executed the mortgage deed. The appellate Court specifically finds that the second defendant was a necessary party to the suit. Though the present plaintiff and the present first defendant were ranged in that suit on the same side as co-defendants, a perusal of the pleadings and judgments of the Courts below shows that the conditions for the application of the doctrine of res judicata as between the defendants are satisfied. There was clear conflict of interests between the co-defendants. There was necessity to decide the conflict in order to give the plaintiff therein the appropriate relief and the Courts have given a decision on that question. The plaintiff in that case cannot get his rights without having the case between the co-defendants decided. It is true that in that suit the present plaintiff as first defendant did not enter appearance and was set exparte. But she had knowledge of the issues raised. She actively supported the plaintiff in that suit giving evidence in his favour. No doubt the Courts in that case had considered only the title under the partition deed and there is no discussion about any family arrangement. But the title of the present plaintiff to the suit properties was in issue and actively agitated to her knowledge and with her support. In Mt. Munni v. Triloki Nath , the Privy Council observed:
It is true that the appellant did not enter an appearance in the suit, and it is also said that she was not a necessary party to it; but their Lordships do not regard either of these factors as really material. The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose to stand by and let the plaintiff fight her battle, it could not affect her legal position.
In the circumstances, it is manifest that the decision in the former suit, Original Suit No. 94 of 1962, is a bar as against the first defendant to the trial of the issue as to the title of the plaintiff to the suit properties, both the present plaintiff and the present first defendants having been parties to the former suit.
5. The question is whether this bar of res judicata is available to the present second defendant also. Admittedly, he was not a party to the former litigation. On his own pleadings the second defendant had become owner of the suit properties on 5th November, 1956 under the settlement deed in his favour. The present first defendant has deposed that after the settlement of the properties the second defendant's father was in enjoyment of the suit properties for 2 or 3 years. She would depose that the suit properties belong only to the second defendant. It is submitted for the appellant that, as the second defendant was not a party to the prior suit and he had acquired title to the suit properties from the present first defendant prior to the former suit, the decision in the former suit cannot be relied upon as res judicata by the present second defendant. It may be res judicata between the plaintiff and the first defendant; but that does not necessarily make it res judicata between the plaintiff and the second defendant. If the bar of res judicata is not available to the second defendant, the plaintiff whose case on the merits has been found in her favour will be entitled to a share in the suit properties. In the former suit, the present first defendant did not even put forward the claim of the present second defendant under the settlement. On the date of the former suit the present first defendant had according to her own present admission no title to the suit properties and manifestly the present second defendant has not derived any title to the properties subsequent to the institution of that suit. The second condition for the applicability of the principle of res judicata enunciated in Section 11, Civil Procedure Code, is that the former suit must have been between the same parties or between parties under whom they or any of them claim. On the face of it, the principle that the judgment and decree bind only parties and privies is not satisfied in this case with reference to the second defendant. Privies, it has been said, are those who claim under or in right of parties, or who stand in successive relationship to the same rights of properties. Privies are held bound, because they have succeeded to the estate or interest which was bound in the hands of its former owner by judgment. It is well settled that no one is privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit in question. As laid down by the Privy Council in Beli Ram and Brothers v. Mohd. Afzal , a decree obtained in a suit is not binding upon transferees from one of the parties to the suit, when the transfers were effected before the suit. Such persons do not claim under a party to a suit who represents their interest, but under a person who subsequently becomes a party who at the time of the suit does not represent them. A decree in such a suit, the Judicial Committee held, cannot operate, as res judicata against such transferees. Clearly, the second defendant is not a privy or a person claiming under the first defendant on title acquired subsequent to the former suit.
6. The next question is whether the second defendant was represented in the former litigation, to fall under Explanation VI to Section 11 of the Code of Civil Procedure. Mr. Kesava Ayyangar, learned Counsel for the respondents contended that the second defendant must be held to have been represented by the present first defendant in the former litigation. A person not factually claiming under a party to the former suit, or, in the language of the English law, a privy to such a party, can still be bound, if he was represented in the former suit by the party thereto, as for instance a person interested in the estate of a testator or intestate in relation to the executor or administrator, members of an undivided joint Hindu family in relation to a member like the manager who has sufficiently represented their interest in the former suit, a widow representing the reversioner's estate in certain circumstances, and presumptive reversioners challenging the widow's alienations. Explanation VI to Section 11, Civil Procedure Code, provides that, where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of the section, be deemed to claim under the persons so litigating. We are not concerned with any public right. Can it be said that, in the former litigation, the present first defendant litigated for the right claimed in common with the present second defendant No. The first defendant did not claim any right in the suit properties in common with the present second defendant. She claimed title only in herself and denied the title of the present plaintiff. She repudiated the partition and claimed that the share of her husband had devolved on her. The title put forward in that suit was a negation of not only the rights of the present plaintiff but also the present-second defendant's which had accrued to him by then. The present second defendant's right has not even been suggested in the former litigation. How, then could it be said that his interests in the property were represented therein? In the present suit the first defendant disclaims her right in the suit properties and has pleaded that the properties vested in the second defendant on the date of the settlement deed. That is also the claim of the second defendant. No representative capacity is pleaded by the defendants to the present first defendant in the former litigation. There is no question, therefore, of a former litigation being fought out in respect of a private right claimed in common with others for the present second defendant as a person interested in the right agitated in the former litigation, to be looked upon as a person claiming under a defendant in the former litigation. It may be that, for the application of Explanation VI, it is not necessary that the other persons who arc interested in the right should be specifically mentioned. But the requirement is that it must be a right held in common. In Kumarandy Kudumban v. Venkatasubramania : AIR1927Mad645 , Devadoss, J. points out that, where a party sets up his own individual right which happens to be common to him and others, he cannot be said to be litigating on behalf of the others. The learned Judge proceeds to observe:
It is not necessary that in order to attract the provisions of Explanation VI the suit should be a representative suit, for if it is a representative suit under Order 1, Rule 8 no question can arise as to the binding nature of the decision in suit, nor is it necessary that the party should be sued in a representative capacity. But the person litigating must put forward a right common to him and others not only on his behalf but on behalf of the others as well.
For Explanation VI to apply as regards private right, there must be some community of interest, a claim under some common title. Whether a party in a particular case issued in a representative character or defends in a representative character, would depend not on the form of pleadings but on the substance of the claim. In Jaimangal Deo v. Bed Saran Kunwari 8 All L.J. 345 : I.L.R.(1911) All. 493 , it is observed:
It is next urged that in view of Explanation VI to Section 11 of the Code of Civil Procedure, the former judgment must be held to be res judicata. This contention is, in my judgment, equally untenable. The parties to the former suit did not litigate in respect of a private right claimed in common for themselves and others. The defendants to that suit set up their right to a part of the property and also alleged that another part of the property belonged to the appellants to this appeal, but they did not assert any right which was common to all of them.
Reference may also be made to the decision of the Judicial Committee in Asrar Ahmed v. Durgah Committee, Ajmer A.I.R. 1947 P.C. 1 . In that case the President and one member of a Durgah Committee being aggrieved by the maladministration of the Mutawalli brought a suit against him for his dismissal. In defence, the Mutawalli inter alia raised, his hereditary right to the office. An issue was framed about it and it was decided that the office was a hereditary one. It was also found that the Mutawalli was not a fit person. The appellate Court confirmed the finding as regards the hereditary nature of the office, but postponed the appointment of a substitute. After the death of the Mutawalli, his son filed a suit against the Durgah Committee claiming a declaration that the office of Mutawalli was hereditary in his family and that the committee was not competent to question his status as a hereditary right. On the question of res judicata, besides observing that the question of hereditary right was not a direct and substantial issue in the former proceedings but only incidental to and not substance of the suit, the Judicial Committee said:
In the second place the plaintiffs (in the former suit) were not the Durgah Committee nor persons who purported to sue on behalf of the Committee and it is by no means clear that on such an issue they were entitled to speak for the Committee. They were two persons who were the President and a member of the Committee...it was the Durga Committee who were peculiarly interested in this question and it cannot be supposed that they or their successors are to be bound by a decision in proceedings to which they were not parties. Upon these grounds the final plea of res judicata must be rejected.
Mr. Kesava Ayyangar emphasises the representative capacity recognised in suits by presumptive reversioners and heads of joint Hindu families and points out that she had an interest in defending the suit, and the litigation was fought out bona fide. It is true that, in the case of a decree against the manager of a joint Hindu family, the decree may operate as res judicata against coparceners who were not parties to the suit, even though the plaint or written statement did not state in express terms that the person is being sued or is suing as manager. A suit by or against the manager will be deemed to be one brought as representing the family ii the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. In the case of the manager, the requirements of Explanation VI to Section 11, Civil Procedure Code, are fully satisfied. But, in the insant case, there is no community of interest apart from the fact that there was a complete disclaimer of all interests in anyone else in the prior suit. Even in the present suit, there is a disclaimer of all interests by the party to the former proceedings and assertion of exclusive title in the party who is said to have been represented in the former proceedings. In the case of reversioners who possess what has been claused a spes successionis, as pointed out by the Privy Council in Mata Prasad v. Nageshar Sahai (1926) 50 M.L.J. 18 : L.R. 52 IndAp 398, the spes is common to them all and so is the danger by the widow's act against the interests of the reversioners. The right to sue to set aside that common danger is given for obvious reasons of policy and convenience to the person, who, if the widow died at the moment, would take the estate. But the result, favourable or otherwise, affects the reversioners as a body. As pointed out in Venkatanarayana Pillai v. Subbammal (1915) 28 M.L.J. 535 : I.L.R. 38 Mad 406 : L.R. 42 IndAp 125, Explanation VI to Section 11 of the Civil Procedure Code, covers exactly cases of such kind and bars a fresh litigation. The instant case is not of that class.
7. The plea of res judicata is a bar to the trial of an issue only between the parties affected by it. The plea may be effective against some of the parties to the suit and not available against the other parties to the suit. When the plea becomes available the Court refrains from deciding the issue. Therefore, to appl the bar to some persons on record and decide the issue on its merits between other persons, does not involve contradictory decision in the suit. As observed by the Allahabad High Court in Jaimangal Deo V. Bed Saran Kunwari I.L.R.(1911) All. 493 when a Court, with reference to an issue involved in a subsequent suit, is of opinion that res judicata bars the trial of that issue, it refrains from deciding that issue. To call this action of the Court a decision of that issue in the subsequent suit is a misnomer and can in no way deprive it of the power of deciding that issue between the plaintiff and the rest of the defendants. In Beli Ram & Brothers v. Mohd. Afzal , the Privy Council said:
Their Lordships think that appellants 2 and 3 in any case are not affected by the plea of res judicata but it must be considered whether the plea is effective against the other parties to this appeal.
8. Invoking a representative capacity for the purposes under Explanation VI to Section 11 in cases of this kind may result in injustice. Suppose the Court in the former suit had, as in this case, found in favour of the plaintiff on the merits. Will it be fair and in accordance with our notions of Justice to preclude the second defendant claiming a trial on the issue of ownership and denying an opportunity to establish his title to the property? Will the Court be justified in permitting the plaintiff to contend that the second defendant is barred from agitating his title to the suit properties, because his settlor failed in the claim she put forward to the suit properties? In my opinion, such contention, if raised, would have to be over-ruled as ridiculous The mere fact that such contention is raised in a converse situation, cannot alter its nature. As pointed out by the Privy Council in Mt. Munni v. Tirloki Nath the test of mutuality is often a convenient one in questions of res judicata. It is pointed out by Kumaraswami Sastri, J., in Secretary of Stale v. Syed Ahmed Badsha I.L.R.(1922) Mad. 778 : 41 M.L.J. 223, that estoppel must be mutual and it is difficult to see how a party not bound by a Judgment can set it up bar against a party to it. May be a former Judgment can be relied upon as a piece of evidence on the question of title.
9. It follows that the plaintiffs' claim to a share in the suit properties as against the second defendant is not barred by the plea of res judicata. The trial Court whose findings are confirmed by the appellate Court, holds that the settlement deed Exhibit B-1 is true and, as the plaintiff had become entitled to a moiety of the suit properties it does not confer full ownership of the suit properties on the second defendant. It would find for the plaintiff's right to partition of a half share in the suit properties but for the bar of res judicata. in the circumstances, the decrees and judgments of the Courts below are set aside. There will be a preliminary decree for partition and separate possession of a half share in the suit properties against the second defendant. The suit as against the first defendant shall stand dismissed. The parties will bear their respective costs in the Courts below and the appellant will be entitled to her costs against the second defendant in this Court.
10. No leave.