(1.) THE plaintiff in O. S. No. 59 of 1949 in the Court of the Subordinate Judge of Sivaganga appeals against the dismissal of his suit filed in the following circumstances. He is the paternal grandson of one Arumugam Pillai. Arumugam Pillai was one of the three sons of Subramaniam Pillai, the other two being Muniyandi Pillai and Muthukumaru Pillai, Muniyandi had three grand sons and they are defendants 1 to 3. Their mothers are respectively defendants 8, 4 and 10. Arumugam Pillai had an only sun, Thothan Pillai alias Muniyandi Pillai, and the plaintiff is his son. The 11th defendant is his widow.
(2.) IN our opinion this appeal must be allowed. It is impossible to uphold the decision of the learned Subordinate Judge that the suit is barred under S. 11, Explanation VI. Sec. 11 embodies the rule of res judicata. Explanation VI runs thus :
(3.) IN this view it is really unnecessary to refer to the cases cited by Mr. Natesan. We shall, however, briefly deal with them to show how none of them has any bearing on this aspect of the question, namely, the application of the rule of res judicata. In Profulla Kumar v. Beharilal, : AIR 1936, Cal. 247 (A) certain minors sued to set aside a decree in a prior suit to which they were parties represented by their mother as guardian. It was held that they were not entitled to set it aside, not because of the bar of res judicata but because the learned Judge found that though the mother did not actually defend the suit, the defence was adequately conducted by the minors' uncle who was also a party.