LAWS(KER)-1973-2-35

MATHAVAN AMBUJAKSHY Vs. RAMAN KESAVAN

Decided On February 16, 1973
Mathavan Ambujakshy Appellant
V/S
Raman Kesavan Respondents

JUDGEMENT

(1.) PLAINTIFFS are the appellants in this second appeal.They sued for partition of the item of property 2 acres 22 cents in extent,which belonged originally to one Poodan Raman.He died leaving three sons Mathevan,Kesavan,Parameswaran and one daughter Champakakutti.Plaintiffs 1 and 2 are the children of Mathevan,and the 3rd plaintiff is their mother.1st defendant is Kesavan,2nd defendant is Parameswaran and the third defendant is Champakakutti,4th defendant is Champakakutti's son,and the 5th defendant is Parameswaran's son.Kochupennu Pitcha is the widow of Poodan Raman,who died in 1111.The plaint schedule property was gifted by Poodan Raman to Kochupennu Pitcha on 29th September 1107.On her death defendants 1 to 4 Raman Mathevan,and plaintiffs 1 and 2 have become entitled to the property as co -owners.Raman Mathevan is dead and till his death,according to the plaintiffs,he was in possession and enjoyment of the property as the seniormost member.He died in 1118 and there­after the 1st defendant Raman Kesavan was in possession of the property on behalf of the remaining co -owners.On the death of Raman Mathevan his 1/7th share has devolved on the plaintiffs and on the death of Kochupennu Pitcha,each member became entitled to 1/7th share.On these allegations the suit was filed.There was a previous suit O.S.383/60,filed by the selfsame plaintiffs claiming 1/4th share as the descendants of Raman Mathevan,over the selfsame properties.That suit proceeded as if the properties belonged to Poodan Raman and it continued to be his.That suit was instituted on 22nd Thulam 1136 corresponding to 7th November 1960.That suit was dismissed holding that Poodan Raman had no properties and that the plaint item which belonged to him had already been gifted to Kochupennu Pitcha.According to the plaintiffs they knew about the gift deed only when they were told so in that suit.So they were compelled to institute the present suit claiming their due share from Kochupennu Pitcha.The main contention of the defendant is that the present suit is barred by res judicata by reason of the earlier judgment,and decree in O.S.383/60 and also that the plaintiffs have no subsisting title to the property,their title if any having been barred by limitation and adverse possession.The defendants have also raised the contention that even if the suit is construed as one under section 18 of the Ezhava Act as is claimed by the plaintiffs,it is bad for non -joinder of parties.Learned Munisff upholding the defendants 'contention has dismissed the suit,which on appeal has been confirmed by the Subordinate Judge of Attingal.

(2.) THE questions,therefore,that arise for consideration are: (i)whether the suit is barred by res judicata; (ii)whether the plaintiffs 'title if any is barred by adverse possession and limitation;and (iii)whether the suit is bad for non -joinder of parties.

(3.) A retrospect into the previous litigations relating to the property in question would be helpful in this context.The property was acquired by Poodan Raman with his own funds and believing that he had the liberty to deal with it in his own way,gifted it away to his wife Kochupennu Pitcha on 29th Medam 1107 under Ext.D7 deed of gift.Poodan Raman's right to execute the gift was challenged by his Seshakars and a suit O.S.305 of 1112 was filed by them in the Munsiff's Court of Attingal for partition after setting aside the gift deed.Their case was that the property(B schedule in that suit)was acquired by Poodan Raman with the income of tarwad properties at a time when he was the karnavan and manager of the tarwad.That suit was contested by the children of Poodan Raman including the present plaintiffs 'father Raman Mathevan who was defendant No.41 in that suit.Present 1st defendant Raman Kesavan was defendant No.43 and present 2nd defendant Raman Parameswaran was defendant No.44 and present defendant 3 Champakakutti,was defendant No.42 in that suit.They contended in that suit that the B schedule items which formed the subject -matter of the gift deed,were the self -acquired properties of Poodan Raman,over which he had absolute rights of disposition.In furtherance of this contention they stated that when Poodan Raman assumed management of the tarwad on the death of his elder brother Poodan Mallen,the tarwad was possessed of only one small item of property which yielded very slender income.Poodan Raman was a trader,and it was with the income that he got from his trade that the property was acquired.During the pendency of that suit Raman Mathevan father of the present plaintiffs 1 and 2 died and defendants 42 to 44(present defendants 1 to 3)were recorded as his legal representatives.On the death of Mathevan the plaintiff in that suit applied for the impleading of his heirs in his place,but the present plaintiffs did not come forward to get themselves impleaded.Defendants 2 and 4 in that suit had put in a petition on the 24th of Idavam 1118 requesting the court to implead the wife and children of Raman Mathevan who was the 41st defendant in the suit.Even then,they did not come forward,and they were not impleaded.The suit was dismissed in respect of plaint B schedule items i.e .,the properties covered by the gift deed and that decree was finally confirmed by the High Court in S.A.689 of 1953.The judgment of the High Court was pronounced on the 21st June,1955.It was several years thereafter that O.S.383 of 1960 was filed by these plaintiffs for partition ignoring the gift executed by Raman in favour of his wife.They were reminded of the gift deed,by defendants 1 to 3 in that suit(the 2 brothers and sister of Raman Mathevan)that in view of the gift deed executed by Poodan Raman,the property had fallen to the tavazhi of Kochupennu Pitcha and the suit was therefore,unsustainable.In spite of that the plaintiffs proceeded with the suit in the form in which it was institu­ted and got it dismissed by the court.It is in this back­ground that the plea that the suit is barred by constructive res judicata has to be considered. "The doctrine of res judicata is based on the principle that no man shall be vexed twice over the same cause.The extension of section 11 on the lines of Explanation 4 is merely the application of the above principle.The use of the words 'might 'and 'ought 'shows both the wide amplitude in which the explanation works as well as the restrictions under which it operates.'Might 'conveys the possibility of joining all grounds of attack or defence together,while 'ought 'conveys the reasonableness or propriety of so joining them.The explanation means that all grounds of attack and defence must betaken even if they can only be taken up in alternative except in cases,when it would be inexpedient for a party to do so.If,there is an alter­native way of imposing a liability on the defendant,it ought to be made a ground of attack except in case where matters are so dissimilar that their union might lead to a confusion.It depends on the facts of each case to say whether the dissimilarities are such as may lead to confusion.While it is not possible to lay down affirmatively any definite rules on this point,it may,however,be pointed out that in cases where the evidence to be produced in support of a particular ground is not destructive of the evidence to be produced for the other ground,that can be taken to support or defend a case,both of such grounds should be taken up by a party and if he fails to take up any such ground,he cannot escape the penalty provided under section 11 " ;.( Jawaharlal v.Chhaganlal )(A.I.R.1959 Rajastan 197)