KUNJULEKSHMI AMMA Vs. VELAYUDHAN NADAR

JUDGEMENT

(1.) IN this second appeal by the legal representatives of the 6th defendant arising in a suit for redemption of a mortgage Ext. P-1 of the year 1099, in view of the concurrent findings of fact recorded by the courts below, the only question which survives for decision is one of res judicata between two co-defendants. To state the facts as briefly as possible, madan Kumaran under whom the plaintiffs claim, was the mortgagor who gave Ext. P-1 mortgage in favour of Mathevan Pillai the predecessor-in-interest of defendants 1 to 5 and the brother of the 6th defendant. On Madan Kumaran's death, the property devolved on his son the 10th defendant, who made a settlement with respect to it in favour of the plaintiffs in the year 1953. Earlier, the 10th defendant gave a puisne-mortgage in favour of one Sukumaran who instituted, O. S. 77 of 1124, for redemption of Ext. P-1, impleading also the 10th defendant as the 13th defendant and the present appellant as the 6th defendant. IN that suit the 10th defendant did not enter appearance, but the 6th defendant contested, the original title of Madan Kumaran to the property and the suit came to be dismissed upholding his contention. IN the present suit also, the 6th defendant had denied the title of Madan Kumaran, but this has been found by the two courts to be established. It was contended for the 6th defendant, that in view of the judgment in O. S. 77 of 1124 Ext. D-15, the issue as to title is concluded.

(2.) THE rule of resjudicata between co-defendants is stated thus by the Privy Council in Chandu Lal Agarwalla v. Khalilur Rahaman air. 1950 P. C. 17: "there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants. " So far there is no difficulty. THE Privy Council also said: "it may be added, that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was, in issue and would have to be decided. " THE judgment Ext. D-15 is the only item of evidence relating to the previous suit. That suit being simply for redemption of Ext. P-1, nothing more can be inferred from the fact that the 10th defendant did not enter appearance to contest it, than that he had no opposition to its being decreed. Without anything more, he cannot be fixed with notice of any contention which the 6th defendant had actually raised. It may be, that the 10th defendant was served with summons and he allowed the suit to proceed ex parte, before the 6th defendant entered appearance or filed his written statement. In such circumstances, the 10th defendant is not to be fixed with knowledge of the later proceedings in the suit. Anyhow, it was for the 6th defendant who setup the plea of res judicata to prove clearly, that the 10th defendant had or must be deemed to have had, notice that his title was being challenged by the 6th defendant and that the dispute would have to be decided for giving relief to the plaintiffs. It may be. that the 10th defendant had taken the stand, that the 6th defendant would not challenge that title.