T. Sathiadev, J.
1. This appeal is preferred against an order of remand made by the lower appellate Court in A.S. No. 198 of 1975 which decided the preliminary issue on the aspect of res judicata that was pleaded before the trial Court, which dismissed the suit as barred by res judicata by its judgment dated 23rd October, 1975. The lower appellate Court remanded the matter for fresh disposal after deciding the preliminary point in favour of the plaintiff-appellant. The present suit was laid on the basis that the suit properties which consist of five items of landed properties belonged originally to one Ayyam Perumal Gounder who had four sons, Ramasami, Krishnan, Adhimoolam and Narayanasami and that the plaintiff is the son of Arumugam alias Ramasami, son of Krishnan. After the death of Ayyam Perumal, his four sons enjoyed the properties as an undivided one and that no partition was effected between the four brothers. The first son of Ayyam Perumal, namely Ramasami died leaving behind Go indasami, his only son, who also died leaving behind the 10th defendant. The third son Adhimoolam is also dead and defendants 8 and 9 are his grandsons. Narayanasami, the 4th son of Ayyamperumal died leaving behind him his son Duraisami, who died issueless. Duraisami executed a will dated 25th August, 1941. 10th defendant had sold one item of the suit properties to the 11th defendant. Therefore defendants 1, 8 and 9 and father of the plaintiff filed a suit for partition of the suit properties claiming that the sale deed dated 2nd July, 1960 executed by the 10th defendant is not binding upon them and that they are entitled to a decree for partition. The trial Court dismissed the suit whereas the appellate Court in A.S. No. 347 of 1968 decreed the suit by its judgment dated 23rd November, 1971 allotting one-third share to each of the branches of Ramasami, Krishnan and Adhimoolam. Therefore it is pleaded that the plaintiff claimed in the present suit that the decree passed in A.S. No. 347 of 1968 is not binding upon him in respect of the property that has been bequeathed by Duraisami under will dated 25th August, 1941 and that he is entitled to a decree for partition of the properties into four equal shares and one-fourth share bequeathed by Duraisami should be allotted to him apart from the share to which he will be entitled to as a heir through Krishnan.
2. The suit was resisted on several grounds and the main ground taken was that the plaintiff cannot institute the present suit in view of the decree obtained in A.C. No. 347 of 1968 which was also a suit filed for partition wherein a one third share had been declared in respect of the branch of Krishnan and it is not open to the plaintiff to institute the present suit in respect of the same properties claiming relief of partition and at the same time to claim that he is entitled to a larger share by virtue of a will which was very much to his knowledge at the time when the earlier proceedings were instituted and hence the suit deserves to be dismissed.
3. The trial Court which was called upon to decide the preliminary issue relating to res judicata held that the present suit in respect of the same properties claiming the relief of partition which was the same relief asked for in the earlier suit is clearly barred by res judicata, even though it is sought to be contested that the present relief is rested upon a will and that on that basis a larger share is to be allotted to the plaintiff herein.
4. The lower appellate Court, came to the contrary conclusion on four grounds. (1) the subject-matter in the present suit is not identical to the subject-matter that was agitated in the earlier proceedings in that the question whether the plaintiff is entitled to a share as a legatee of Duraisami, representing the 4th branch, was never considered; (2) The plaintiff herein was impleaded in the earlier proceedings only at the appellate stage, as the heir of his father Krishnan, and not in his capacity as a legatee under the will of Duraisami; (3) The question is whether there was a 4th branch for Ayyam Perumal which was never considered in the earlier proceedings; (4) The main question that came up for consideration in the earlier suit was whether the alienation made by the 10th defendant in favour of the 11th defendant by sale deed dated 2nd July, 1960 was binding on the family or not and therefore it held that the present suit is not hit by the principles of res judicata and therefore remanded the matter to the trial Court to be disposed of on merits.
5. Counsel for the appellant herein contends that even though the lower appellate Court had tried to list out four points, all of them do not deserve any consideration because the lower appellate Court had committed the basic error in failing to bear in mind that the present suit is also a suit for partition and for allotment of one-fourth share of the properties of Ayyamperuo al. He refers to the reliefs claimed in the plaint wherein the plaintiff has asked for 'to put plaintiff in possession of the one-fourth share after passing a final decree in pursuance of the terms of the preliminary decree'. It it not in dispute that the 5 items of landed properties which formed the subject-matter of the present suit, are identical to the items of properties, covered by the earlier suit. The plaintiff was no doubt impleaded in the earlier proceedings, as an appellant in the appellate stage. His father died and the appellate Court held that the plaintiff will be entitled to one-third share of the suit properties. Having been a party to a proceeding wherein plaintiff had the benefit of getting one-third share of the suit properties, the aspect that requires to be considered is whether at a later stage it is open to the same plaintiff to come before Court in respect of the same properties stating that there are four branches in the family and that each one will be entitled to one-fourth share and so far as he is concerned, he will be entitled to a further one-fourth share as a legatee of one of the sharers. The lower appellate Court, has proceeded on the basis that the subject-matter of the present proceedings is quite different from the subject-matter of the earlier proceedings in that, the present claim is based on the question whether as a legatee of Duraisami, the plaintiff can claim a share. It should not be for gotten that it was the plaintiff's father who instituted the earlier proceedings and the parties were aware that Ayyemperumal had four sons and that the 4th branch of Narayanasami was extinct by that time. In the judgment delivered in A.C. No. 347 of 1968 reference is made to the effect that Ayyamperumal bad four sons, and that Narayanasami was the 4th son. It was made out that Narayanasami and his son Duraisami had died by that time. In that judgment, it is stated as follows:
In the present case, the plaintiffs were notable to produce the birth certificates of the sons of Ayyamperamal, that is, the birth certificates of Ramasami, Krishnan Adimoolam and Narayanadami....
In the instant case, the appellants have produced the death certificates of the above persons except that of Rangasamy who is said to have died leaving his only son Doraisami who is also stated to have died issueless.
Therefore even in the earlier proceedings, it was very much to the knowledge of the parties that Narayanasami was one of the sons of Ayyam Perumal, and that his son Doraisami was also not alive by the time the suit was institued. Hence, the appellate Court in A.G. No 347 of 1968 had come to the conclusion that the estate of Ayyamperumal alter his death can be divided only into three shares and the plaintiff was allotted a one-third share. That being so, it cannot now be contended by the respondents herein that the subject-matter of the present suit for partition wherein a one-fourth share is claimed out of the estate of Ayyamperumal, is nothing different from the earlier suit for partition. The present suit is also one for partition and separate possession and does not seek any other relief except to base the claim on the basis that Duraisami has left behind a will and his share is also to be taken by the plaintiff as a legatee under the will. It may be that the plaintiff may be attempting to get at a larger share but the basis of the present suit is only to seek for division of the properties of Ayyamperumal and allot one fourth share to each branches whereas the earlier suit was also a suit for partition to allot one-third share to each one of the branches.
6. The second point taken was that the plaintiff was impleaded only in the appellate stage as the legal representative of his father and not as a legatee. The claim made by the plaintiff herein is that the one-fourth share which is allottable to the branch of Narayanasami and his son Duraisami, is also to be allotted to him. During the earlier proceedings, plaintiff's father and the plaintiff in the appellate stage were quite aware of the existence of the branch of Narayanasami and they had not chosen to make any claim about the existence of the will and ask for a different computation of shares for the four branches Ayyamperumai. There is no question of the plaintiff claiming in the capacity of legatee, when this suit is based for partition and allotment of one-fourth share. It cannot therefore be contended that the matter to be ecided between the parties is nothing different from what had been decided earlier except for the limited print now taken that there was a will left behind by Doraisami in respect of his share in the joint family properties. This will be only incidental to the question of division of shares in the joint family of Ayyamperumai and whereas a civil Court had come to the conclusion that at the relevant point of time, there were only three branches, and when a decree had been passed accordingly, the persons who are entitled to get at the properties through such division, are bound by the earlier decree and hence the principles of res judicata will become applicable.
7. The next aspect that was taken into consideration by the lower appellate Court that in the earlier suit, the existence of the 4th branch was not at all at issue, cannot be correct in view of the extracts which have been made above from and out of the earlier judgment. Parties were quite aware of Ayyamperumai having a 4th son by name Narayanasami who had died leaving behind him, his son Doraisami who had also died issueless by the time the earlier proceedings were instituted.
8. Counsel for the appellant, relies upon the decision reported in Nalini Kanta Lahiri v. Sarnamoyi Debya and Ors.(1914) 27 M.L.J. 76: 1 L.W. 607s 41 I.A. 247: A.I.R. 1914 P.C. 31. to the effect that partitions being by judicial decrees it decides the shares of each co-sharer and in such a suit, each one of them is in the position of a plaintiff and a decree made in a partition suit can be rectified only under the provisions of the Civil Procedure Code and there being no irregularity made out the earlier decree will act as res judicata between co-defendants. In this case, parties to the earlier proceedings were aware that there was a fourth branch of Ayyamperumai. But it had become extinct by the time, the suit for partition was laid. Hence even if it is a question of any error in respect of the quantification of shares it could only be rectified by resorting to the provisions of Civil Procedure Code to correct the earlier decree, and there can be no question of a fresh suit being laid as is now sought to be done, and hence the decision in the earlier suit will act as res judicata.
9. The next decision relied upon is Parsotam Rao Tania v. Radha Bai I.L.R, 1910) All. 469. wherein it has been held that when in a suit for partition all the members of the family were impleaded as parties and the suit had been finally decided, it will not be open to one of the defendants of the suit to reopen the question about the right as against a co defendant in a subsequent suit. In that decision, it is seen that on the basis of a will, the latter suit had been instituted for reallotment of shares. But taking into account the fact that the parties to the dispute were parties in the earlier proceedings, it was held that the said will cannot form the basis for any right to reagitate the matter once again when finality had been reached in the earlier proceedings.
10. The next division referred to by him, was the one rendered in Bawkara Basovana Gowd v. Banakara Doddalingappa (1923) 44 M.L.J. 552. wherein the scope of Section 11. Explanation 4 and Sections 16 and 17, Civil Procedure Code came up for consideration and it was held that in a suit for partition of the joint family properties when shares have been ascertained, it is settled law that only one suit for partition would lie and there could be no question of filing different suits in respect of different items of properties in different Courts. Learned Counsel for the appellant further relies upon the decision rendered in Katragadda Venkatasubbaya v. Katragadda Viroyya, 1956 A.W.R. 1082. wherein this aspect has been well considered and the division bench had come to the conclusion that in the absence of fraud, a prior decree for partition like any other decree operates as res judicata and in a suit for partition of the joint family properties. Order 2, rule 2 will be applicable between the co-sharers as well as between coparceners. If there was any mistake in respect of the earlier proceedings, it can always be rectified but it will not form the basis for the filing of a fresh suit for the same relief.
11. The decision rendered in Chandra Kant v. Balakrishna : AIR1970SC1536 . lays down the proposition that if it be shown that the plaintiff has acted upon an award or a preliminary decree which had not been properly pursued with later on for a considerable number of years (in that case 35 years) then the decision rendered earlier will preclude him from filing the second suit for partition claiming a larger share. It was a case where the previous suit for partition got dismissed for failure to deposit the Commissioner's fee, but the parties divided the properties and had acted upon the same for more than three decades. Taking into account that the shares of the members of the joint family had been determined in the earlier proceedings, it will not be open to any one of them, to later on file a second suit partition in respect of the same subject-matter. Counsel for the appellant further relies upon the decision of this Court in K. Daniel Nadar v. R. Anantham Pillai : (1978)1MLJ125 which had relied upon the propositions that had been enunciated in the decisions above referred to and held that under circumstances like the present one, there cannot be a second suit for partition in respect of the same subject-matter between the same parties.
12. Counsel for the respondents would refer me to the decisions rendered in Syed Mohd. S. Labbai v. Mohd. Hanifa : 3SCR721 . Wherein the essential principles that should be home in mind for assessing the plea of res judica'a had been made out. It has been held therein that before a plea of res judicata can be given effect to, the following conditions must be proved:
1. The litigating parties must be the same.
2. The subject-matter of the suit also must be identical;
3. The matter must be finally decided between the parties; and
4. The suit must be decided by a Court of competent jurisdiction.
In this case, it is not in dispute that the dispute is between the same parties and the subject-matter is identical (the same five items as in the previous suit) and that the suit had been finally decided by a competent Court.
13. It is contended that the third aspect relating to the question as to whether the matter had been finally decided between the parties, is not satisfied in this case. As pointed out earlier the contention is that the question as to whether, as a legatee of Duraisami, the plaintiff can get a share, is not identical to the claim made in the earlier suit for partition and separate possession. I do not think that this contention will be open to the respondents herein that both the suits have been filed for partition and separate possession of the properties of the estate left behind by Ayyamperumal Gounder. In the earlier suit, it was claimed that each one of the branches will be entitled to one-third share whereas in the present suit it is claimed that each one of the branches will be entitled to a one-fourth share. The only other follow-up claim made by the plaintiff in the present suit is that the share which is allottable to the branch of Narayanasami and his son Duraisami, should be given to the plaintiff as a legatee under the will. He has not filed the present suit for any other relief except to ask for one-fourth share in the suit properties. The relief asked for in the plaint has been extracted above He has chosen to file the present suit having been fully aware of the earlier proceedings about which reference is made in the plaint itself. It was the plaintiff's father who instituted the earlier suit and it was the plaintiff who contested the matter in the appellate stage. They were aware of the existence of the will. Equally they were aware of the existence of the 4th branch. Therefore when all these factors were available before the Courts in the earlier proceedings, it cannot be said that the question as to what share each branch of Ayyamperumal Gounder would be entitled to had not been finally decided in the earlier proceedings.
14. The shares having been correctly decided, it will not be open to the plaintiff to institute the present suit claiming that the share can be only one-fourth to each one of the branches and not one-third share as decided in the earlier suit. Hence it has to be held that the matter which is involved in the present suit relating to the allotment of shares to the respective branches of Ayyamperumal had been finally decided in the earlier proceedings. Therefore, the lower appellate Court was not correct in holding that the present suit is not hit by the principles of res judicata. Hence the appeal is allowed and the present suit is dismissed as barred by us judicata. No costs.