BOOPATHY Vs. DHARMALINGAM ALIAS PERUMAL AND ORS.

JUDGEMENT

(1.) THIS appeal is preferred against an order of remand made by the lower appellate Court in A.S. No. 198 of 1975 which decided the preliminary issue on the aspect of res judicata that was pleaded before the trial Court, which dismissed the suit as barred by res judicata by its judgment dated 23rd October, 1975. The lower appellate Court remanded the matter for fresh disposal after deciding the preliminary point in favour of the plaintiff -appellant. The present suit was laid on the basis that the suit properties which consist of five items of landed properties belonged originally to one Ayyam Perumal Gounder who had four sons, Ramasami, Krishnan, Adhimoolam and Narayanasami and that the plaintiff is the son of Arumugam alias Ramasami, son of Krishnan. After the death of Ayyam Perumal, his four sons enjoyed the properties as an undivided one and that no partition was effected between the four brothers. The first son of Ayyam Perumal, namely Ramasami died leaving behind Go indasami, his only son, who also died leaving behind the 10th defendant. The third son Adhimoolam is also dead and defendants 8 and 9 are his grandsons. Narayanasami, the 4th son of Ayyamperumal died leaving behind him his son Duraisami, who died issueless. Duraisami executed a will dated 25th August, 1941. 10th defendant had sold one item of the suit properties to the 11th defendant. Therefore defendants 1, 8 and 9 and father of the plaintiff filed a suit for partition of the suit properties claiming that the sale deed dated 2nd July, 1960 executed by the 10th defendant is not binding upon them and that they are entitled to a decree for partition. The trial Court dismissed the suit whereas the appellate Court in A.S. No. 347 of 1968 decreed the suit by its judgment dated 23rd November, 1971 allotting one -third share to each of the branches of Ramasami, Krishnan and Adhimoolam. Therefore it is pleaded that the plaintiff claimed in the present suit that the decree passed in A.S. No. 347 of 1968 is not binding upon him in respect of the property that has been bequeathed by Duraisami under will dated 25th August, 1941 and that he is entitled to a decree for partition of the properties into four equal shares and one -fourth share bequeathed by Duraisami should be allotted to him apart from the share to which he will be entitled to as a heir through Krishnan.

(2.) THE suit was resisted on several grounds and the main ground taken was that the plaintiff cannot institute the present suit in view of the decree obtained in A.C. No. 347 of 1968 which was also a suit filed for partition wherein a one third share had been declared in respect of the branch of Krishnan and it is not open to the plaintiff to institute the present suit in respect of the same properties claiming relief of partition and at the same time to claim that he is entitled to a larger share by virtue of a will which was very much to his knowledge at the time when the earlier proceedings were instituted and hence the suit deserves to be dismissed.

(3.) THE lower appellate Court, came to the contrary conclusion on four grounds. (1) the subject -matter in the present suit is not identical to the subject -matter that was agitated in the earlier proceedings in that the question whether the plaintiff is entitled to a share as a legatee of Duraisami, representing the 4th branch, was never considered; (2) The plaintiff herein was impleaded in the earlier proceedings only at the appellate stage, as the heir of his father Krishnan, and not in his capacity as a legatee under the will of Duraisami; (3) The question is whether there was a 4th branch for Ayyam Perumal which was never considered in the earlier proceedings; (4) The main question that came up for consideration in the earlier suit was whether the alienation made by the 10th defendant in favour of the 11th defendant by sale deed dated 2nd July, 1960 was binding on the family or not and therefore it held that the present suit is not hit by the principles of res judicata and therefore remanded the matter to the trial Court to be disposed of on merits.