KUMARAPPA CHETTI Vs. MUTHUVIJAYA RAGHUNATHA MUTHUKUMARA VANANGAMUDI VALUVATTI THEVAR (DEAD) REPRESENTED BY THANGAMMAL AEEYAR

JUDGEMENT

(1.) These appeals relate to the ownership of a certain sum of money. To dispose of them, it is unnecessary to refer to more than a few facts. There were five brothers: (1) Adaikkalam Chetty, (2) Veerappa Chetty, (3) Subban Chetty, (4) Rengaii Chetty, and (5) Vaidyalinga Chetty. In 1885, Adaikkalam lent on the mortgage of certain properties a sum of Rs. 13,000 to a person whom we shall call the Zemindar. The deed of mortgage was taken in the name of Adaikkalam. In 1888, the last three brothers (Subban, Rengan and Vaidyalinga) lent to the same person Rs. 4,000 on a second mortgage of those properties. The deed was taken jointly in the names of the three brothers mentiened above. That deed provides for the payment by them of Rs. 13,000 due to the first mortgagee Adaikkalam. He, however, was not paid and the mortgage in his favour remained in force. On the 28 of December, 1905, Vaidyalinga assigned by Ex. II his one-third share in Rs. 4,000 in favour of Adaikkalam. On the 6 of January, 1906, Rengan similarly assigned his share in favour of the same person. (Ex. III.) On the 10 of October, 1906, Adaikkalam filed O.S. No. 49 of 1906 to enforce his rights under the two mortgages referred to above. In that suit the Zemindar was made the 1st defendant and Sub-ban, Adaikkalam's brother, the second. As subsequent mortgagees, certain others were impleaded as defendants 3 to 6. Adaikkalam as plaintiff claimed not only Rs. 13,000 but also two-thirds of Rs. 4,000 basing his right thereto on the assignments executed in his favour by Rengan and Vaidyalinga. In the plaint in that. Suit, he alleged that Subban was entitled to a third of Rs. 4,000, that he was therefore asked to join with him as plaintiff and that on his failing to do so, he was impleaded as a defendant. He prayed that a decree might be passed both in favour of himself and Subban for the respective amounts due to them. In effect, Adaikkalam asked for no relief against Sub-ban but prayed, on the contrary, that a decree might be passed both in his and Subban's favour. The suit was resisted both by the Zemindar and Subban. To the defence raised by Subban, we shall advert presently. The Zemindar pleaded inter alia that the amount of the first mortgage belonged not solely to Adaikkalam but to the joint family of which he was a member and that the suit was bad for the nonjoinder of the other coparceners. An issue was framed as to whether Adaikkalam was solely entitled to the sum of Rs. 13,000 and the Trial Judge coming to the conclusion that it did not, dismissed the suit. From his decree, an appeal was taken to the High Court. (Appeal No. 189 of 1909.) What the effect is of the decision then given by the High Court, is one of the matters we have to decide. For the present, it is sufficient to state that the High Court allowed the appeal of Adaikkalam and passed a decree in his favour, holding nevertheless that the Rs. 13,000 belonged not to him solely, but to the joint family. In the present appeals, the question to decide is, is Subban Chetty entitled to a fifth of this sum of Rs. 13,000? There were two suits filed in the Lower Court and each of them raised the question, is Subban Chetty entitled to a fifth of the amount or is Adaikkalam the sole owner? For the sake of brevity, Subban Chetty may be treated as the plaintiff and Adaikkalam as the defendant. The Lower Court has disallowed the claim of Subban Chetty.

(2.) On behalf of Subban, his learned Counsel, Mr. K.S. Sankara Aiyar, has strongly urged that the decision of the High Court in O.S. No. 49 of 1906 operates as res judicata in his favour. Before examining that contention, we shall deal with the merits of the case. The question of fact that arises is, on the date of the mortgage suit, to whom did the Rs. 13,000 belong, to Adaikkalam solely or to the five brothers jointly?

(3.) In Suit No. 49 of 1906, that question, as we have said, was raised at the instance of the Zemindar. Adaikkalam's case then was that there was a partition of the joint family property in 1882 and that the sum lent in 1885 was his separate property. Subban, after pleading that the family in 1885 was joint, went on to allege, that by some arrangement, the last three brothers (Subban, Rengan and Vaidyalinga) became exclusively entitled to the mortgage amount, namely, Rs. 13,000. It is important to bear in mind that each of the three contending parties; gave a1 different version--Adaikkalam stating that the amount was his separate property; the Zemindar, that it belonged to the joint family and Subban, that it belonged solely to the last thre,e brothers. We may usefully quote a passage or two from Subban's written statement. Then, I, Rengan Chetty and Vythi Chetty, in all, three persons, arranged that the said bond for Rs. 13,000 should be allotted to our share, at the time of future division of our family properties, that the plaintiff should have no right whatever to the said bond of Rs. 13,000, that he should not claim any right to it, that we three alone should jointly pay Rs. 4,000 to 1 defendant, and that in respect of the Othi deed for Rs. 17,000 to be obtained from 1 defendant in our favour after such payment, plaintiff should have no right whatever. We paid Rs. 4,000 to 1st defendant, and obtained a Othi deed for Rs. 17,000 on 21 June, 1888. Thereupon the plaintiff and the deceased Veerappa Chettiar lived together and myself and the other two brothers, namely, Rengan Chettiar and Vythi Chettiar together. Subsequent to our Othi deed for Rs. 17,000 the plaintiff had no sort of enjoyment in the villages in dispute. From the date of the said Othi deed, we three have been enjoying the suit villages adversely to the plaintiff. From the date of our Othi deed for Rs. 17,000 the plaintiff had no sort of claim or enjoyment whatever in the suit villages.