SUBBATHAL Vs. KITTAMMAL

JUDGEMENT

(1.) Defendants 2 to 4 who failed in the Courts below are the appellants in this second appeal. The main point that arises for decision is whether the consent decree in an earlier litigation, O.S. No. 152 of 1954, Sub--Court, Coimbatore, operates as res judicata as against the plaintiff.

(2.) The plaintiff, Kittammal, and her four sisters, Subbathal, Karupathal, Nachiammal and Fechiammal, succeeded to the properties which also included the suit properties on the death of their mother. Defendants 1 and 5 are their brothers. The second defendant is the first defendant's widow, whose children are defendants 3 and 4. In the first instance, after the death of the mother, defendants 1 and 5 purchased 3/5th share of the three sisters, Karupathal, Nachiammal and Fechiammal leaving outstanding the 1/5th share of Kittammal and 1/5th share of her sister, Subbathal. The present defendants 2 to 4 filed the suit, O.S. No. 152 of 1954, against the present first defendant for partition and separate possession of 1/4th share of the present third defendant and also for maintenance and marriage expenses of the present second and fourth defendants respectively against Arumuga Goundan, the father of present defendants 3 and 4 and the husband of the second defendant on the ground that Arumugham was mismanaging and squandering the joint family properties. The two sisters, the present plaintiff and Subbathal, with whom the 2/5th share was outstanding were impleaded as parties to the suit. The brother of the first defendant, Paramaguru Goundan, was also impleaded as a party defendant. Arumugha, the first defendant, therein resisted the suit on the ground that the properties involved in the suit belonged to their mother and that the plaintiffs were not entitled to make any claim on the footing that they are properties belonging to the joint family of Arumugha. Paramaguru filed a written statement supporting the case of the plaintiffs therein that the properties were joint family properties. The two sisters, the plaintiff and Subbathal, did not file any written statement and remained ex parte throughout. That suit, however, was compromised and a preliminary decree (Exhibit B-1) passed treating the properties as the joint family properties ignoring the right of the plaintiff and her sister. To that compromise (Exhibit A-7), the plaintiff and her sister Subbathal were not parties. There were final decree proceedings in pursuance of the compromise decree to which the plaintiff was not a party and no notice was served upon her. The final decree is (Exhibit B-2). The plaintiff has filed the present suit for a declaration that the decree in O.S. No. 152 of 1954 is not valid and binding on her share of the properties and she has asked for partition and separate possession of her 1/5th share in the suit properties. The first defendant, father of defendants 3 and 4 has remained ex parte in the suit. The fifth defendant, Paramaguru, the brother of the first defendant as well as the sixth defendant who had since purchased the 1/5th share of the other sister Subbathal have remained ex parte. The suit was resisted on the main grounds (a) that the properties are the joint family properties and that the mother of the plaintiff was only benamidar for the family, (b) the present suit was barred by res judicata on account of the compromise decree in O.S. No. 152 of 1954. The Courts below have concurrently found that the properties belonged to the mother and this finding is supported by ample evidence. Indeed learned Counsel did not seriously canvass the correctness on this finding which is binding in this second appeal.

(3.) The only point that was stressed by learned Counsel for the appellant is the question of res judicata. From the above narration of facts it will be seen that the pleadings in O.S. No. 152 of 1954 disclosed a contest as to the character of the properties, whether they belonged to the mother or to the joint family, the plaintiff therein and their uncle Paramaguru contending that the Properties are joint family properties while the managing member, the father Arumugham contending contra. It is also in evidence that at that time these two sisters, the present plaintiff and Subbathal were living in the family house and were maintained and looked after by Arumugha Goundan.