KESAVAN NAMBOOTHIRI KRISHNARU NAMBOOTHIRI Vs. PADMANABHAN VELAYUDHAN

JUDGEMENT

(1.) The plaintiff in O. S. No. 7 of 1958 on the file of the Subordinate Judge's Court, Attingal, is the appellant. The suit was filed by him in forma pauperis for cancellation of a sale deed on deposit of the mortgage amount charged on the plaint items. The suit was dismissed by the Trial Court. But in appeal the learned District Judge of Trivandrum reversed the decision and passed a preliminary decree for redemption. In second appeal, a learned single Judge of this Court allowed the appeal reversing the decision of the District Judge and restoring that of the Munsiff. On leave granted by him, this appeal has been filed by the plaintiff.

(2.) The plaintiff and defendants 2 and 3 are members of a Malayala Brahmin Illom. The 3rd defendant is the mother of the plaintiff. The 2nd defendant is the son of the plaintiff's father by another wife. The 1st defendant is alleged to be the mortgagee from whom redemption is sought. There was a partition in the illom in 1115 evidenced by Ext. P 5 in which the suit properties were allotted to the plaintiff's branch. The 3rd defendant, mother of the plaintiff, acting for herself and as the guardian of her minor children including the plaintiff executed a sale deed Ext. D1 on 26-11-1123 in respect of the plaint properties. Subsequently, there was a suit by some of the members of the Illom including the plaintiff represented by a next friend to set aside the partition of 1115and for cancellation of various alienations including Ext. D 1 transaction, which came into existence after partition. That suit was compromised under the original of Ext. D 15, compromise petition. Ext. D 19 is the copy of the judgment in that suit. The present suit was thereafter filed by the plaintiff to set aside Ext. D 1 and for redemption of the mortgage.

(3.) The main contention raised in the suit was that it was barred by res judicata on account of the compromise decree in O. S. No. 125 of 1124 of Attingal Munsiff's Court. This plea was rejected by the Munsiff as in his opinion the principle of res judicata would not apply to a compromise decree. The Munsiff, however, dismissed the suit on his finding that Ext. D 1 was supported by consideration and necessity. The decision on the question 6f res judicata was upheld by the lower appellate Court, but the learned District Judge reversed the decree holding that the document was not supported by consideration and necessity. In second appeal, a learned single Judge of this Court held following the decision in Shankar Sitaram Sontakke v. Balakrishna Sitaram Sontakke AIR 1954 SC 352 that the principles of res judicata were applicable to compromise decrees also. It is the correctness of this decision that is now canvassed.