JANARDHANAN PILLAI Vs. KOCHUNARAYANI AMMA

JUDGEMENT

(1.) These appeals have been referred to the Full Bench because of the importance of the questions arising for decision. Certain interesting aspects of the rule of res judicata call for consideration in these appeals. The facts of the first three appeals may be stated first. They arise out of connected suits. We will deal with the facts which gave rise to S. A. No. 1253 of 1972 later.

(2.) Three suits, O. S. 53 of 1965, O.S. 313 of 1964 and O. S. 99 of 1965 were tried and disposed of together by the Court of the Munsiff, Attingal. O.S. 53 of 1965 was a suit for partition of 23 items of immovable properties described as items 1 to 23 in the schedule to the suit. This suit was by the members of the tarwad of one Kali Lakshmi claiming these properties as acquired in the names of some members of the tarwad for the tarwad. 12 of those items of properties had been acquired in the name of Kali Lakshmi, 8 items in the name of Kali Lakshmi and 3 of her sons, Mathevan Pillai, Parameswara Pillai and Kochuneelakanta Pillai and 3 other items in the names of Kali Lakshmi and 3 of her sons, Mathevan Pillai, Ayyappan Pillai and Kochunarayana Pillai. All these acquisitions, according to the plaintiffs in O. S. 53 of 1965 enured to the benefit of their tarwad and as members of the tarwad they claim share in these properties. In the meantime O. S. 313 of 1964 had been filed by the heirs of Kochuneelakanta Pillai according to whom some of the properties were acquired in the name of Kali Lakshmi and others in the names of Kali Lakshmi and some of her children and in these properties the acquirers alone had right. 12 items of properties acquired in the name of Kali Lakshmi were shown as A schedule to the plaint in O. S. 313 of 1964. Eight items of properties acquired in the name of Kali Lakshmi and 3 of her children including Neelakanta Pillai were scheduled as B schedule. 3 items of properties acquired in the name of Kali Lakshmi and 3 of her children including Ayyappan Pillai were scheduled as C schedule. The case of the plaintiffs in that suit was that those items seen acquired in the name of Kali Lakshmi (A schedule) under Exts. D1 and D2 belonged to Kali Lakshmi, the acquirer and on her death it was inherited by all her eight children of whom Kochuneelakanta Pillai was one and therefore the plaintiffs, as heirs of Kochuneelakanta Pillai had 1/8th share in those items. Since Kochuneelakanta Pillai was one of the four acquirers of the B schedule items, 8 in number, under Ext. D3 sale deed, plaintiffs in O. S. 313 of 1964 claimed that as heirs of Kochuneelakanta Pillai they should get 1/4th share in the properties in B schedule and in addition, since Kochuneelakanta Pillai inherited 1/8th share of the 1/4th of Kali Lakshmi who was a joint acquirer under Ext. D3, the plaintiffs were entitled to 1/8th plus 1/32(9/32) shares in B schedule items. In C schedule items acquired in the names of Kali Lakshmi along with her 3 other children the share claimed by the plaintiffs was only that inherited by Kochuneelakanta Pillai out of the 1/4th that belonged to Kali Lakshmi, namely, 1/32. Thus the suit was laid for partition and recovery of 1/8th share in A schedule, 9/32 share in B schedule and 1/32 share in C schedule in the plaint in O.S. 313 of 1964.

(3.) Yet another suit was filed by the heirs of Ayyappan Pillai, one of the acquirers for 3 of the items under Ext. P1 sale deed described as items 21 to 23 in the plaint in O. S. 53 of 1965 and as C schedule in O. S. 313 of 1964. That suit was O. S. 99 of 1965. The said 3 items are shown as A schedule in the plaint in that suit. B schedule items in that plaint are the A schedule items in O. S. 313 of 1964, namely the properties acquired in the name of Kali Lakshmi. The C schedule items in the plaint in O. S. 99 of 1965 are the properties taken in by Ext. D3 sale deed, 8 items described as B schedule in O.S. 313 of 1964 and items 13 to 20 in O. S. 53 of 1965 Thus A to C schedules in O. S. 99 of 1 65 cover all the items in the plaint schedule in the other two suits. In addition there is also a D schedule in that suit. This is described as mortgage right in respect of some suit items to which some special right was claimed. Plaintiffs in O. S. 99 of 1965 claimed that as heirs of Ayyappan Pillai they were entitled to 1/8th share in the properties acquired in the name of Kali Lakshmi, 9/32 share of the properties acquired in the name of Ayyappan Pillai and 3 others and 1/32 share in regard to 8 items acquired in the name of Kali Lakshmi and 3 of her children other than Ayyappan Pillai. Since the properties in all these suits are the same, it is easier to refer to these items of properties with reference to one of the suits and it is agreed at the hearing that reference may be made to the properties as scheduled in O. S. 313 of 1964. The case of the plaintiffs in O. S. 99 of 1965 is similar to the case of the plaintiffs in O. S. 313 of 1964, namely that the items of properties acquired in the name of Kali Lakshmi belonged to her and those items acquired in the name of Kali Lakshmi and her children belonged in equal shares to the specific acquirers. As pointed out, the case of the plaintiffs in O. S. 53 of 1965 is different in that, according to them all these acquisitions enured to the Tarwad and not to the acquirers. Besides these, there is the third case arising out of the contest by another party to these suits. The eldest son of Kali Lakshmi was Mathevan Pillai. He is one of the 4 in whose name the acquisitions were made under Ext. D3 as well as well Ext. D1. The case of the heirs of Mathevan Pillai is that all items of properties seen purchased in the names of Kali Lakshmi as well as Kali Lakshmi and children were acquired with the funds of Madhavan Pillai and therefore those belonged to him and him alone As such, it is said these items were not available for partition either as properties of the tarwad or as properties of the various acquirers. This contention arises on the contest by the 5th defendant in O. S. 313 of 1964 who is the 29th defendant in O. S. 53 of 1965. The three cases were tried jointly and disposed of together. The learned Munsiff found that the properties belonged to the persons in whose names the acquisitions stood. That meant that the plaintiffs in O. S. 313 of 1964 and O. S. 99 of 1965 succeeded. The plaintiffs in O. S. 53 of 1965 lost in their contention that the properties should be divided as properties of the tarwad. But they were entitled to a smaller share since even if the acquisitions were of those in whose names the acquisitions stood the plaintiffs in O. S. 53 of 1965 bad right as members of the tavazhi of Kali Lakshmi to a share in the interest of Kali Lakshmi who figured as an acquirer in all the acquisitions.