PERIYA KELU NAIR Vs. KARIYAPPAU

JUDGEMENT

(1.) THE main question in this case is whether the suit is barred fay res judicata by reason of a previous suit. Though some other questions have also been raised during the course of the fairly elaborate discussion at the bar, a closer scrutiny has revealed that only the question of res judicata need be considered, and therefore both the learned counsel have concentrated their attention on that question. Several decisions including a few of the Supreme Court and the Privy Council have been placed before me. I do not propose to consider all of them, because, according to me, the question would be clinched by the decisions of the Supreme court, which I shall discuss hereinafter. There is a minor question regarding a house, which will also be adverted to in its proper place towards the close of the judgment.

(2.) THE suit was laid for recovery of possession of the properties scheduled to the plaint and also for confirming the plaintiff's possession of a house therein and for mesne profits and other incidental reliefs. The appellant was the 1st defendant in the action and the respondent the plaintiff. The suit as ultimately emerged after an amendment of the plaint was a representative action by one of the trustees of a family deity by name Raktheshwari, on the claim that the suit properties belonged to the Bhandaram of the said deity. The other trustees were also impleaded as party defendants.

(3.) THE facts necessary for the decision of the question before me may be stated. In 1900 the suit properties along with some others lying contiguous were mortgaged by the plaintiff's ancestors to a third party. In 1906 a further charge was created on the properties in favour of the same mortgagee. In 1943 the superior mortgage Ext. 4-1 was executed in favour of the 1st defendant for Rs. 1,500. In that document the properties were divided into two schedules A and B, the properties comprised In the B-schedule being the suit properties and the rest having put in the A-schedule. The mortgagee-1st defendant was authorised to redeem the earlier mortgages and to enjoy the properties in the A-schedule for 55 years as mortgagee and to surrender possession of the properties in the B-schedule, namely the suit properties. In pursuance of that document the 1st defendant filed O. S. Ho. 777 of 1943, obtained a decree for redemption of the earlier mortgages and entered into possession. Nevertheless, he did not surrender possession of the properties in the B-schedule to the trustees of the Bhandaram as provided under the covenant In Ex. A-7.