1. Appellant is one of two plaintiffs, who sued for possession in respect of Schedule A immovables and for a declaration of their right in respect of Schedule B outstandings, alleging that they were entitled thereto as reversioners on the death of their cousin Muthulakshmi Ammal on June 17, 1928. The two items of immovable properties had been purchased by Muthulakshmi Ammal, under Exs. 13 and 14, in December 1916. Of the outstandings, item No. 1, Schedule B was due under a pro-note from defendant No. 2 items Nos. 2 and 3 were due from one Sub bier. Defendant No. 1 set up a will by Muthulakshmi Ammal (Ex. 12) and claimed for himself all the suit properties except item No. 1, schedule B in respect of which he alleged a trust. Defendant No. 2 set up certain rights in respect of item No. 1, Schedule B under an arrangement (Ex. 11) said to have been made by Muthulakshmi Ammal even before the date of the will. In effect they contended that Muthulakshmi Ammal was absolute owner of the suit properties, that the charity was constituted in pursuance of directions given by her mother with reference to her stridhanam and that the dispositions could not be questioned by the plaintiff. The lower Court accepted these contentions and dismissed the suit. Hence this appeal.
2. The deceased Muthulakshmi Ammal was in possession of properties attributable to three sources, namely her husband's estate, her father's estate and her maternal grandfather's estate which came to her mother as stridhanam under a will. The plaintiffs have no manner of right to Muthulakshmi's husband's estate, but they are entitled as reversioners to whatever might be attributable to her father's estate or to her mother's stridhanam estate, because they are the sons of Muthulakshmi's father's brother, and there are no other nearer heirs to the mother's stridhanam. Having regard to the way in which Muthulakshmi and her mother Ponnammal had been dealing with the properties and funds in their possession, it has been by no means easy to decide how much of the suit properties the plaintiffs can claim. The original extent of the maternal grandfather's estate is established with some definiteness by his will, Ex. G, dated May 16, 1891, whereby he absolutely gave away to his daughter certain immovable properties and outstandings to the extent about Rs. 2,400. The amount of money which Muthulakshmi derived from her husband's family can also be ascertained from the terms of Ex. H, release deed executed by her in 1907, whereby she released her claim to her husband's estate in consideration of a money payment of Rs. 300. It would appear that she had some jewels also, but there is nothing on record to show whether she converted them into cash or what else she did with them. From Ex. AA it would appear that even during the lifetime of her mother Muthulakshmi had invested certain moneys in her own name and the same document (read with Ex. 6) shows that under this account she withdrew about Rs. 630 in 1912, that is, sometime after her mother's death. It also appears from Ex. AA and from the oral evidence in the present suit, that the mother Ponnammal had money invested in her own name, but it is not possible to fix the amount of cash she had with any exactness, though the documents show that shortly before her death she withdrew Rs. 2,500 odd. It is common ground between the parties that in 1892 Ponnammal got her two daughters married at an expense of about Rs. 3,000; whether this amount was spent out of her husband's estate or her father's estate, it is clear from the evidence that, even after this expenditure, she was in possession of a considerable amount of money which she invested for interest. Exhibit F series show that in the years 1897 and 1898 she was paying income-tax of Rs. 10 per annum, and, as the lower Court points out, this justifies the presumtion that she must have been receiving between Rs. 500 and Rs. 600 per annum by way of interest.
3. The plaint asserts that most of the moneys in Ponnammal's possession belonged to her husband's estate and if any portion thereof might be taken to represent the balance of what she got from her father, it states that she made herself a limited owner even in respect thereof by mixing it with the corpus of her husband's estate. This way of stating the plaintiff's claim has led the Court below to criticise at some length and with some force the evidence led on the plaintiff's side to trace into Ponnammal's hands the outstandings alleged to have been left by her husband. The differentiation of what represented the husband's assets of ponnammal from what represented her father's assets became material before the lower Court in view of the assumption that it was inclined to make that Ponnammal must have made a gift of all her estate to Muthulakshmi because such a gift could be valid only to the extent of Ponnammal's father's estate as she took the same absolutely under her father's will and not in respect of her husband's estate wherein she had only a widow's interest. In the view that we are disposed to take on this question of gift by the mother to her daughter, the point of differentiation between Ponnammal's husband's assets and her father's assets loses its importance, for the plaintiffs will be entitled to both sets of properties except to the extent to which a valid gift by Ponnammal to Muthulakshmi may be held to be established.
4. As already stated it is shown by Ex. AA and the evidence of P.W. No. 2 that Ponnammal withdrew a sum of Rs. 2,565-13-5 very shortly before her death and there is no reason to doubt that this amount came after her death into the possession of Muthulakshmi. In the plaint in O.S. No. 22/13, the present plaintiff No. 1 stated that Ponnammal had wasted or had been cheated out of the greater portion of her cash property and that a sum of about Rs. 3,500 alone remained with Muthulakshmi Ammal, who was defendant No. 1 in that suit. In her written statement in that suit, Muthulakshmi Ammal contented herself with the statement that there was not so much money as stated in the plaint (see para. 4, Ex. W), but she would not commit herself to any specific statement as to the amount. It is, however ,important to observe that neither in para. 4, Ex. W, nor in para. 7, where she refers to the withdrawal of moneys by her mother shortly before her death, does she put forward any suggestion of a gift by her mother to herself in respect of the cash or outstandings held by Ponnammal. There can thus be no reasonable doubt that a sum not below Rs. 2,500 and presumably not above Rs. 3,500 came into Muthulakshmi's hands from her mother Ponnammal.
5. In the circumstances, we think we will not be wrong in putting this amount at a round figure of Rs. 3,000. In the absence of any definite allegation of gift or reliable evidence in support of such gift Muthulakshmi must be held to have possessed the same only as a limited owner, whether it represented a portion of Ponnammal's husband's estate or any portion of Ponnammal's father's estate. Not only was the plea of gift not raised by Muthulakshmi in Ex. W, it has not even been raised in the written-statement of defendant No. 1 in this suit. In the written-statement of defendant No. 2, it is only claimed that the cash and outstandings of Ponnammal 'must be deemed to have been gifted away by Ponnammal in favour of Muthulakshmi Animal.' It is not clear whether this claim is sought to be raised by any kind of legal presumption or only as an inference of fact. As to the first we see no basis for it. As to the second, the absence of all reference to such a gift in Ex. W precludes such inference. In the course of the oral evidence in the present suit. D.W. 2 went out of his way in cross-examination to say that one month before her death Ponnammal gave the money to Muthulakshmi and transferred to her name the dealings. No such question was put to him in chief examination and the unreliability of his statement is clear from his admission that he was not present when Ponnammal made the gift and cannot say if it was cash or pro-notes that she gave. His ignorance is also shown by the statement that before such gift there were no dealings of Muthulakshmi. This is clearly opposed to Ex. AA. D.W. No. 6 attempted to give some evidence in favour of a gift of money by Ponnammal but his statement is clerly hearsay, and it is not clear what fund he is speaking about.
6. The learned Subordinate Judge has dealt with this part of the case as if the onus lies upon the reversioner not merely to prove that the properties claimed by him after the limited owner's death came to the limited owner from the last full owner, but also that they did not come to her under a gift or will from the last full owner. There is nothing in the decision of the Privy Council in Bijaj Bahadur Singh v. Indarpal Singh 26 C 871 : 26 I A 226 : 7 Sar 578 : 4 C W N 1 : 2 Bom. L R I , or other cases of that kind to support the second part of the above proposition. The reversioner has no doubt to prove that the property claimed by him belonged to or was acquired out of the property of the last full owner. Where property shown to belong to the last full owner is found in the possession of a stranger, there can be no presumption as to how or when such possession began and where it is material for the reversioner to prove that the possession began after the full owner's death, the onus may lie on him to prove that the last full owner died possessed of it. But where all that is known is that property in the possession of the last full owner till very shortly before his or her death is, after his or her death found in the possession of the very person who would have taken it as heir at law, the natural presumption in favour of continuity of title and possession and against trespass must be given due weight and it will be calling upon the reversioner to prove a negative, if the onus is to be laid upon him to prove that the heir at law did not get the property by gift or will. If the question had arisen during the limited owners's lifetime and she set up a gift or will from the last full owner, the onus would undoubtedly lie upon the limited owner to establish such gift or will. How can it make any difference that the question is raised after the limited owner's death, but by a person claiming under the limited owner herself?
7. There is, however, one part of Ponnammal's estate as to which the position is somewhat different. Shortly before her death she sold the immovable properties which she got absolutely under her father's will by two sale-deeds Exs. XV and XVI. It is stated in Ex. XV that part of the consideration was received for medical exprenses of Ponnammal and that the balance was reserved for her funeral expenses. The consideration for Ex.. 16 was Rs. 3,000 and out of this Rs. 800 was stated to have been paid to certain gnatis, Rs. 1,000 was stated to have been paid to the daughter Muthulakshmi Ammal for expenses relating to her vratams, pilgrimages, etc., and the balance of Rs. 1,200 was retained with the vendee to be handed over to Muthulakshmi Ammal for the purpose of conducting certain charities. In Ex. W, Muthulakshmi herself questioned the reality of these two sales and denied the various payments therein recited. But in the present suit the defendants have thought fit to stand by the recitals in those sale deeds and sought to prove their truth through D.W. No. 1. In the absence of any evidence to the contrary, the plaintiffs also are bound by those recitals, as they can claim these properties only as Ponnammal's heirs. It must, therefore, be held that they established no right as reversioners in respect of the funds derived under these two sales. To complete the narrative, it may be added that Muthulakshmi brought a suit (O.S. No. 68-17) against the purchaser under Exs. 15 and 16 for recovery of a large sum of money but it was compromised on the footing that only the sum of Rs. 1,200 reserved in Ex. 16 for charity remained to be paid and that Rs. 2,000 represented the principal and interest thereof on the date of the compromise (vide Ex. N).
8. The result of the evidence and of the considerations above set out is that Muthulakshmi Ammal was in possession of three sets of properties: (1) the sum of about Rs. 630 which represented an investment made by her in her own name even during her mother's lifetime. Whether or not this could be traced to the amount received by her under Ex. H or to her jewels, it must in the absence of evidence to the contrary be held to be a source to which the plaintiffs could have no manner of claim (2) two sums of Rs. 1000 and Rs. 1,200 respectively, obtained under Ex. 16 the first belonging to her absolutely and the other held by her in trust for a charity to these two sums again, the plaintiffs can have no claim. (3) a sum which must undoubtedly have come to her in the ordinary course on Poonammal's death the amount whereof may in the light of the evidence and probabilities be reasonably fixed at Rs. 3,000. To this last amount the plainttiffs are clearly entitled to succeed whether it represented Ponnammal's absolute property or merely her widow's interest. Muthulakshmi Ammal did not keep these three sets of properties distinct from one another and it is not now possible to trace them respectively to any of the items in the plaint A and B schedules. What then is the plaintiffs remedy?
9. Learned Counsel for the respondents contends that unless plaintiffs could trace the connection between the last-mentioned sum of Rs. 3.000 and any specific item in the plaint schedules, the plaintiffs are not entitled to any relief. We are unable to agree with this contention. The question of tracing may become material when a claim is made against a purchaser for value. But the defendants are only volunteers and cannot claim to stand on any higher footing than Muthulakshmi Ammal herself, Muthulakshmi Ammal was no doubt not a trustee in the strict sense but her position was in a sense fiduciary so far as her limited estate is concerned. If while in possession of such limited estate and also in possession of other properties for an absolute interest she deals with the two sets of properties indifierently, mixes them and invests them as she likes, the onus will certainly lie upon her to prove as against any person interested in the limited estate how much of the mixed fund represents her absolute estate. The defendants as persons claiming under her can be in no better position as a matter of law though in drawing inferences of fact, allowance may be made for the possibility of their not being in possession of all the information that Muthulakshmi Ammal might have had the principle of the decision in Burugapalli Sriramulu v. Nandigam Subbarayadu 10 M L T 313 : 10 Ind. Cas. 57, and of the English authorities there reviewed will equally apply to a case of this kind. The observations of the Judicial Committee in Official Assignee of Madras v. Krishnaji Bhat , show that in circumstances like those above stated, it is not necessary for the person claiming the 'fiduciary' estate fund to trace it into any particular form of existing assets but that in the absence of clear evidence that such fund has ceased to exist, the Court will regard it as continuing to be part of the assets in existence and as justifying the declaration of a charge therefor, in the claimant's favour, on the existing assets. In this view it is unnecessary to consider whether any particular item of the plaint properties or even all of them could not have been acquired by Muthulakshmi Ammal out of moneys to which she may be absolutely entitled.
10. Even as a question of fact, the probabilities in the present case are not altogether in favour of the view that the suit properties must have been wholly acquired out of funds that Mathulakshmi held absolutely. The properties are admittedly worth about Rs. 8,000. Taking it that she had charity fund of about Rs. 2,000 derived under Ex. N, Rs. 1,000 of her own derived under Ex. 16 and Rs. 630 of her own withdrawn by her in 1912, it is not unreasonable to assume that the Rs. 3,000 inherited by her from Ponnammal must also have gone into the acquisition of the assets represented by the plaint schedule properties. As Ponnammal's heir, Muthulakshmi Ammal was, during her lifetime entitled to the income derived even from this sum of Rs. 3,000. Plaintiff will therefore only be entitled to payment of the sum of Rs. 3,000 with interest, from the date of Muthulakshmi Animal's death, from out of the plaint A and B schedule-properties. It is unnecessary for the purpose of this case to decide any qusstion between defendants Nos. 1 and 2 or how this liability is to be borne by the different portions of the estate in which they are respectively interested.
11. It only remains to deal with a plea of res judicata which has strongly been relied on before us by the respondent's learned Counsel. No such plea was clearly indicated in the written statement, nor was it raised by any issues in the case. The matter seems to have been suggested in the course of the argument before the lower Court and is referred to in para. 15 of its judgment. The course of argument before us compelled the respondent to urge this plea with great vehemence, as we were unable to agree with certain portions of the lower Court's judgment on the merits. As all material documents bearing on the question are on record and there appears to be no question of surprise or prejudice to the plaintiffs, we are not prepared to exclude the plea of res judicata merely on the ground that it was not distinctly pleaded or put in issue. The plea is based on the decision in O.S. No. 22/13. The way in which the issues had been framed and the findings recorded in that suit have caused us very considerable difficulty in dealing with this question. Original Suit No. 22 of 1913 was filed by the present first plaintiff against Muthulakshmi and others for certain declarations, for an injunction against waste and for the appointment of a Receiver. The immovable properties then in question may be left out of account as irrelevant to the present purpose as also certain jewels alleged to belong to Muthulakshmi Animal's father's estate. Muthulakshmi Ammal was stated to be in possession of cash to the extent of Rs. 3,500 derived from her father's estate and para. 16 of the plaint in that suit asked for
an injunction restraining the defendants from wasting the cash (and the jewels above referred to) by the appointment of aReceiver or by such order as would seem fit to the Court.
12. In answer to this portion of the claim Muthulakshmi Ammal pleaded as follows: 'The plaintiff has no right to relief whatsoever in respect of the cash. The plaintiff is under law debarred from asking for reliefs in respect of it, nor was there so much money as mentioned in the plaint schedule.'
13. Amongst the issues raised in that suit the first and second alone require to be noted:
1. Is defendant No. 1 in possession of cash and jewels mentioned in Schedule 2 of the plaint and is the plaintiff entitled to the relief claimed in respect of these. 2. Is the suit for appointment of a Receiver and for injunction maintainable?
14. (His Lordship proceeded after commenting on the judgment of the lower Court as regards the mixing of issues). As already pointed out the first Court's judgment records a negative finding on the first issue, but the first issue is a composite issue and the relevant sentences already extracted from the one paragraph of its judgment where it discusses the first and second issues together, by no means make it clear whether its conclusion was rested on the absence of any reversionary interest in the plaintiffs or on the absence of proof of waste justifying the grant of an injunction on the appointment of a Receiver.
15. Arguments have been advanced before us as to the circumstances under which each of two findings recorded in a former suit may operate as res judicata when either of them would have sufficed to dispose of that suit in the manner in which it was done. The position is of course different where the decree in the former suit is based on one finding though there is a finding on another point adverse to the successful party: in such a case it is now established that the finding adverse to the successful party cannot operate as res judicata. Where both the findings tend to the same result and the former decision proceeds on both the grounds, we may assume the law to be as stated in Venkataraju v. Ramanainma 38 M 158 : 21 Ind. Cas. 258 : A I R 1915 Mad. 864 : (1913) M W N 775, viz., that each finding may operate as res judicata. But the difficulty in the present case is in determining what was the finding in the previous litigation and what it was exactly that the decree in that suit was based on. The case law on the point draws nice distinctions between matters 'directly' in issue and matters 'substantially' in issue, between matters 'decided' and matters 'finally decided.' The result of the authorties is to leave the decision of such questions to depend on the facts and circumstances of each case. In Pitchi Reddi v. Bharata Sastri 47 M L J 532 : 82 Ind. Cas. 485 : A I R 1924 Mad. 893 : 20 L W 526 : (1924) M W N 859, it was held that where a Court dismissed a suit on a plea of limitation but also recorded a finding against the plaintiff even on the merits, to avoid a remand the merits could not be held to have been finally determined.
16. Apart, however, from these distinctions one principle is well established, namely that before a matter can be held to be res judicata the finding in respect thereof should be certain and it must be clear that the decree in the previous suit was intended to be rested on that finding: see Vythilinga Mudaliar v. Ramachandra Naicker 14 M L J 379 ; Bayyan Naidu v. Suryanarayana 37 M 70 : 17 Ind. Cas. 445 : A I R 1914 Mad. 399 : 23 M L J 593 : 12 M L T 500 : (1913) M W N 1 and Adaikappa Chettiar v. Natesan Chettiar : AIR1931Mad381 . In view of the analysis above made of the judgment in O.S. No. 22-13 it is not possible to say that there was a clear and definite finding against the existence of any reversionary interest in the plaintiff in respect of any portion of the funds in the possession of the deceased Muthulakshmi Ammal or that the dismissal of the suit was based on such finding. The plea of res judicata must accordingly be overruled.
17. In modification of the lower Court's decree the plaintiffs will have a decree for recovery from out of the plaint A and B scheduled properties of a sum of Rs. 3,000 with interest at 6 per cent. per annum from June 18, 1928, till date of payment. In the circumstances we think it best to direct that the parties shall bear their respective costs both here and in the Court below.