(1.) THE plaintiff is the appellant. He is a purchaser of the suit properties from P. W. 2, who had purchased them from one Mariamma, the daughter of one devasahayam. This Devasahayam had four brothers, Mariaputhali, chanthanakurisu, Mariandran and Anthonimuthu. The defendant is the son of anthonimuthu. Chanthanakurisu also had a son called Anthonimuthu, who had two sons Siluvastian and Chanthanakurisu. Devasahayam, Chanthanakurisu and anthonimuthu were admittedly entitled to 1/3rd share each in their family properties, as Mariaputhali and Mariandran seem to have died without any issues. Devasahayam sold to his brother Anthonimuthu a 1/4th share in suit items 3 to 6. Therefore, he still had with him a 1/3rd share in items 1 and 2 and a 1/12th share in items 3 to 6. It is this which Mariamma sold to P. W. 2. and P. W. 2 sold to the plaintiff. Chanthanakurisu's grandsons, Siluvastian and Chantanakurisu filed O. S. No. 98 of 1956 for partition and possession of their 1/3rd share. To this suit all the members of the family were parties including Mariamma. Mariamma was ex parte in the suit. Though there was some dispute as to whether she had been served with summons in that suit, both the courts below have held that she had been served with summons and we can proceed on the footing that she had been served with summons and had chosen to remain ex parte. At the same time the present defendant filed O. S. No. 68 of 1956. in which only Siluvastian and Chanthanakurisu, the grandsons of Chanthanakurisu were the defendants. Mariamma was not a party to that suit. Both the suits were tried together and the defendant got a decree for a 2/3rd share in all the items and not merely a 1/3rd share in items 1 and 2 and 7/12th share in items, 3-to 6 as he should have, because Anthonimuthu had purchased only a 1/4th share in items 3 to 6. Taking these into consideration the trial Court decreed the plaintiff's suit. But the lower appellate Court has taken the view that the decree in the suit was res judicata in respect of the present suit, and has allowed the appeal and dismissed the plaintiff's suit. The question, therefore, is whether the decision in the previous suit o. S. No. 98 of 1956 is res judicata in this suit as held by the lower appellate court.
(2.) I am clearly of opinion that the conclusion of the lower appellate Court on this point is wrong. The question as to the scope of the principle of res judicata as between the co-defendants has been decided by this Court in K. Ramasami Iyer v. Thumbayasami, AIR 1922 Mad 452 (FB ). In that case the learned Chief Justice delivering the judgment of the Full Bench refers with approval to the rule laid down by Vice-Chancellor Wigram in the leading case of Cottingham v. Earl of shrewsbury (1843) 3 Hare 627: 15 LJ Ch 441 which is as follows:-" if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. " the effect of this decision was considered by a later decision of a Bench of this court in Gopala v. Gopalakrishna, AIR 1928 Mad 630. In that case A filed a suit against P, a tenant, for possession and rent and joined B and C as co-defendants. In the plaint A admitted that the Property belonged to A, B and C. B contested that c had no interest in the property. C remained ex parte. The suit was decreed and possession also decreed in favour of A and B in two equal shares. Later on C sued a and B for partition, ascertainment, and delivery of one-third share in the property. The defence was that the decision in the previous suit was res judicata. It was held that the suit was not so barred. In discussing this question Srinivasa ayyangar, J. referred to the Full Bench decision of this Court and then proceeded to observe as follows: (at page 632)"it follows from the rule accurately stated as above, that before there can be any adjudication between co-defendants operating as res judicata a conflict must have arisen between them. Such a conflict might no doubt arise in one of two ways. It might arise as the direct result of the manner in which the plaintiff has set out his case in the plaint. It might also arise as between the defendants themselves in the course of pleadings in answer to the plaintiff's case. Again in the latter class of cases the determination of the conflict as between co-defendants might or might not be necessary for the determination of the plaintiff's claim. The rule obviously seems to be that it is only when the determination of the question as between codefendants is necessary for the determination of the plaintiff's claim that the decision as between co-defendants would operate as res judicata. Otherwise, that Is to say, if such determination as between codefendants were not necessary for the decision of the plaintiff's case, it is clear that such decision would not operate as res judicata for the simple reason that it is on a question which, to adopt the language employed in Section 11, Civil Procedure Code, is though substantially, not directly in issue. It would thus be clear that whenever the contest between co-defendants is not indicated and included in the plaintiff's action itself, then it follows that for the purpose of a decision operating as res judicata as between co-defendants there must have been actually a conflict or issue raised as between them and that such conflict or issue must have been necessary for the determination of the plaintiff's case or claim. . . . . . . From these considerations it is clear that as the plaintiff in this case was under no obligation to appear in the previous suit haying regard to the suit as laid and as no issue was raised as between co-defendants, the rule of res judicata can not apply". Jackson, J. observed as follows:-"no mystery attaches to the principle of res judicata. If a matter has been directly and substantially in issue in a former suit between the same parties, and has been finally decided, that decision will be treated as final in a subsequent trial, with due regard to the competence of the courts. If a plaintiff raises an issue in his plaint, and a defendant runs away from it by remaining ex parte, that defendant gives up his case, and the Court will finally decide it against him. But if, apart from the plaint which has been served upon such defendant, new matter is brought in, either by way of amending the plaint or by way of written statements from other defendants, the defendant, who has remained ex parte, cannot be said to be running away from issues of which he has never heard. It would be odd to say that such matter had been directly and substantially in issue between the parties, when it is perfectly obvious as a matter of fact that between these parties it has never been in issue at all. The contrary position can only be established by assuming that a party once he is given notice of a suit must keep himself informed of every subsequent development even though the plaint apprised him of nothing that he need contest. No case, and certainly no rule of procedure, has ever laid such a duty upon parties, and were this the law, it would follow as a natural corollary that every party must be served with every written statement and every amendment of the plaint. " now applying this principle let us see how the matter stands in this case. In O. S. No. 98 of 1956 the plaintiff was claiming his 1/3rd share. In paragraph 8 of the plaint he had stated that excluding any of the properties out of Devasahayam's 1/3rd share conveyed by him to Anthonimuthu the rest had devolved on his daughter Mariamma. He then went on to say, excluding the plaintiff's share the balance of 2/3rd belongs to the defendants. It is therefore, clear that Mariamma's claim to the present suit properties was specifically recognised in the plaint itself. Apparently, in that case the present defendant claimed that he wss entitled to the whole of 2/3rds. The judgment in O. S. No. 98 of 1956 proceeds to state as follows:--"this suit and O. S. No. 68 of 1956 are tried together and heard together. Plaint items 1 to 6 in this suit are also items 1 to 6 in that suit. It is found in that suit that the 2nd defendant in this case is entitled to 2/3rd of the plaint items 1 to 6 and that the plaintiffs in this suit are entitled to 1/3rd of those Items and not 1/4th as contended by these defendants. " paragraph 6 is as follows:-"it is found in the connected case that the plaintiffs in this suit are entitled to 1/3rd of the plaint items 1 to 6 and that the plaintiff therein who is 2nd defendant in the case is entitled to 2/3rd share in these items. " paragraph 10 ultimately concludes as follows:-"in view of my finding on issues 1 to 6, I find that plaintiffs are entitled to a decree for partition of 1/3rd share in the plaint A items 1 to 9 only. . . . . . . . . . . . . I therefore, pass a preliminary decree (a) for partition of the plaintiff's 1/3rd share in Items 1 to 9 of A schedule. . . . . . . " the other clauses are not relevant. Notwithstanding this the final decree that was passed in this case allotted a 1/3rd share to the plaintiffs in O. S. No. 98 of 1956 and 2/3rds share to the 2nd defendant in that suit, that is the present defendant. It would be seen that this case exactly fits in with the principle laid down in AIR 1928 Mad 630. The plaint clearly recognised Mariamma's right to the suit properties. There was, therefore, no reason for her to appear and contest. She was not running away from any question that arose out of the pleadings in the plaint. Merely because the present 2nd defendant chose to claim 2/3rds share in all properties, of which Mariamma could not have been aware and that question was purported to be decided in an indirect way, it cannot be said that Mariamma's claim to the suit properties would be barred by res judicata and consequently the plaintiff's claim also would not be barred by res judicata. The plaintiff in the words of Jackson, J. did not apprise Mariamma of anything that she need contest.
(3.) ON behalf of the respondents reliance is placed upon the decision in Harihar prasad v. Narsingh Prasad, AIR 1941 Pat 83. It is urged that a suit for partition is different from other suits, that in a suit for partition each defendant is also a plaintiff if he claims his own share and that therefore, the claim by the present defendant as 2nd defendant in O. S. No. 98 of 1956 when it was decided in his favour would be res judicata as against his co-defendant, that is Mariamma. The relevant passage in the report is found at page 87 of the report. It is as follows:-" it must be remembered that a partition suit may be one of two kinds, namely a suit for imperfect partition or a suit for perfect partition. Order 20, Rule 18, Civil P. C. expressly empowers a Court in a proper case to pass a decree for perfect partition of the property. . . . . . The rule undoubtedly gives the Court in a proper case power to separate not only the plaintiff's share but also the shares of other defendants interested in the property. In practice defendants in a partition suit frequently ask that their share should be partitioned, and the present defendants first party in the partition suit made such a prayer. If the; court is asked by defendants as well as the plaintiff in a partition suit to separate their shares, the Court will do so; and in order to do so, it must ascertain the respective shares of the parties. In such a case each of the defendants stands in very much the same position as the plaintiff. He is a defendant vis-a-vis the plaintiff in the suit, but he is also a plaintiff vis-a-vis the plaintiff and his co-defendants in so far as he asks for the ascertainment of his share and the granting of a patti proportionate to it. In this respect a partition suit differs very materially from an ordinary title or money suit. This distinction has been noticed by Courts in India in a number of cases. . . . . . . . Where defendants in a partition suit pray for a partition of their share, then before such relief can be given to them their share must be ascertained. In such a ease there is obviously a conflict of interest between the defendants and between that particular defendant and the plaintiff. A defendant who asks for partition of his share is entitled to such relief, and when a decree is drawn up he can take steps to enforce such a decree in much the same manner as if he was a plaintiff. " it is this passage that is relied upon on behalf of the respondent. The Bench referred to the Madras decision in AIR 1928 Mad 630 and particularly to the observation of Jackson, J. extracted above, and then observed as follows: (at page 89)