S GOPALAKRISHNA IYER Vs. V S SUBBARAYA IYER

JUDGEMENT

(1.) THE only point that was urged by the learned counsel for the first defendant-appellant is that the suit out of which the second appeal arises is barred by res judicata as well as by limitation. The circumstances under which the above plea based on res judicata and limitation has been raised are these: Originally the suit property belonged to the joint family of one Kuppa Iyer and Venkatasubramania iyer. Kuppa Iyer had two daughters, Parvathi and Subbulakshmi and a son sambasiva Iyer. Sambasiva Iyer died issueless in March 1950 and his wife had predeceased him. The plaintiff is the son of Subbulakshmi and the seventh defendant is the adopted son of Parvathi. Defendants 1 and 2 and one Mahadevan are the grandsons of Venkatasubramania Iyer and defendants 3 to 6 and 8 are the children of he deceased Mahadeven. Out of the two daughters of Kuppa Iyer, parvathi and Subbulakshmi, Subbulakshmi predeceased Parvathi. Therefore, parvathi filed a suit O. S. No. 428 of 1950 on the file of the District Munsif, namakkal, for a declaration of title to the suit property as an heir of Kuppa Iyer and for recovery of possession of the same from defendants 1 and 2 herein and their tenants. Parvathi Ammal, the plaintiff in that suit, claimed that the suit property had been allotted to the share of Kuppu Iyer and that she has succeeded to the same. The suit was resisted by defendants 1 and 2 on the ground that the property continued to be the joint family property of the family of Kuppu Iyer and venkatasubramania Iyer, that there was no division of the joint family properties and that after the death of Kuppa Iyer and Sambasiva Iyer they have succeeded to the entirety of the properties of the joint family by survivorship. The suit ended in favour of defendants 1 and 2 and against Parvathi, the plaintiff, the Court holding that there has been no partition among the members of the joint family and defendants 1 and 2 got the suit properties by survivorship. Immediately after the dismissal of her suit, Parvathi died in the year 1951. Subsequently one of the creditors obtained a decree on the basis of a promissory note executed by sambasiva Iyer in O. S. NO. 64 of 1952 against defendants 1 and 2 and their brother Mahadevan and attached he suit properties. The first defendant filed an application in that suit to raise that attachment effected by the decree-holder. The proceedings arising out of the said attachment reached finally this Court, and this court had held that there was a partition between Sambasiva Iyer and his brothers, that the suit property was the separate property of the late Sambasiva iyer and that the decree-holder was entitled to attach the said property in execution. Thereafter the present suit has been filed by the plaintiff, son of subbulakshmi, claiming the suit property as reversioner of Sambasiva Iyer to whom the suit property belonged exclusively.

(2.) THE first defendant contended that the plaintiff is not the sister's son of sambasiva Iyer, that there was no partition between Sambasiva Iyer and his cousins, that they had got the property by survivorship, that the 7th defendant is not the adopted son of Parvathi, that the suit was barred by time as it has not been filed within 12 years after the death of Parvathi in 1951 and that the suit is also barred by res judicata by virtue of the dismissal of O. S. No. 428 of 1950 filed by Parvathi, the plaintiff's maternal aunt. Defendants 2 and 7 remained ex parte, and defendants 3 to 6 practically supported the case of the first defendant. It is in these circumstances the plea of res judicata as well as limitation was taken by the first defendant. The plaintiff also raise a plea of res judicata on the ground that the ultimate decision rendered in the execution proceedings arising out of the creditor's suit. O. S. No. 64 of 1952, wherein it has been held that the property attached was the separate property attached was the separate property of sambasiva Iyer barred defendants 1 and 2 who were parties to those proceedings from raising the plea that the suit property was not the separate property of sambasiva Iyer.

(3.) THE plea of res judicata put forward by the plaintiff can easily be disposed of. Though defendants 1 and 2 were parties to that suit O. S. No. 64 of 1952, the plaintiff was not a party thereto and as such, it cannot operate as res judicata in the present suit. But the lower appellate Court, however, felt that though the decisions in O. S. No. 64 of 1952 may not constitute as res judicata, the judgment rendered therein is to be treated to be a judgment in rem and not a judgment in personam and as such, the defendants are bound by the decision in L. P. A. No. 73 of 1962 (Mad), Gopalkrishna Iyer v. Ramaswami Iyer and others arising out of the execution proceedings in that suit. This view of the lower appellate Court that the decision in L. P. App. No. 73 of 1962 operated as a judgment in rem cannot, in my view by sustained. Section 41 of the Indian Evidence Act makes a final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction relating to any legal character or status conclusive proof when the existence of such legal character or status comes to the questioned. The decision rendered in proceedings arising out of the creditor's suit cannot be brought in under Section 41 of the Indian Evidence Act. Section 42 also will not apply as the proceedings do not relate to matters of public nature. It is not as if the plaintiff in this suit claims his right through the creditor so as to invoke the principle of res judicata under Section 11 of the Civil Procedure Code.