KONGA RAMASAMI IYER Vs. PONNUSAMI ALIAS TAMBAYASAMI MANIAGARAR

JUDGEMENT

(1.) This Letters Patent Appeal arises out of a difference of opinion between my brothers Sadasiva Aiyar and Phillipps, JJ., on a subject as to whether a former decision is res judicata as between the persons who were arrayed against one another not in the relation of plaintiff and defendant but who were both defendants in the former proceedings. The present suit is brought on a mortgage executed by one Thumbiasami Maniagar on which it is sought to make him and his sons liable. One of the sons, who is the 4 defendant in this case, was born after the date of the mortgage on which the suit was brought. In the year 1899 an inter-pleader suit Original Suit No. 63 was brought in the Tinnevelly Court and in that case there were certain proceedings the nature of which we are not concerned with, between Thumbiasami Maniagar and certain other persons and that suit ended in a compromise based on an award of certain arbitrators. Subsequently, in the year 1908, the 2nd and 3 defendants, two of the sons of Thumbiasami Maniagar, brought a suit against their father and a great number of other people for a partition and in the course of that partition, they asked it to be declared that the agreement embodied in the mortgage was fraudulent and was no!: binding upon them. The nature of the allegations made was this. It was said that the mortgage was given to one Ramaswamy Chetty, the present 1 plaintiff in these proceedings, in return for certain services. He was to pay certain sums of money to further the litigation which terminated in the compromise and was to conduct the proceedings on behalf of Thumbiasami Maniagar and his family. The allegation against him was that at the time he entered into this agreement, he knew that he could not possibly perform it honestly, because among the parties in the suit there was a woman called Palani Ammal and it was alleged and found that the present 1st plaintiff at the time he entered into the agreement with. Thumbiasami Maniagar was entirely bound to the interests of Pallani Ammal which were adverse to the interest of Thumbiasami Moniagar. The learned District Judge characterised the whole agreement as fraudulent and further found that the resulting arbitration was vitiated by the fact that bribes were given to the arbitrators and that they had decided against their conscience. The result was that he held, at any rate, this--and there is no controversy about it-- that the whole proceedings and the mortgage werebad as against the present 2nd 3 defendants. That is not now questioned.

(2.) It is said on behalf of the defendants here, excluding defendants Nos. 2 and 3, that determination in the partition suit acts as a bar by reason of the doctrine of res judicata to the plaintiffs in the present proceedings. The actual law on the subject was laid down in the leading case of Cottingham V/s. Earl of Shrewsbury (1843) 3 Hare 627 : 67 E.R. 530 in the judgment of Vice-Chancellor Wigram. The material part of the judgment 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." That doctrine was reaffirmed for this country in a judgment of West, J. in Ramachandra Narayan V/s. Narayan Mahadev 11 B. 216 : 11 Ind. Jur. 301 : 6 Ind. Dec. (N.S.) 142 in these words: "Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication, and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and defendants. But for this effect to arise, there must be a conflict of interests amongst the defendants and a judgment defiling the real rights and obligations of the defendants inter se. Without necessity the judgment will not be res judicata amongst the defendants nor will it be res judicata amongst them by mere inference from the fact that they have collectively been defeated in resisting a claim to a share made against them as a group." Those principles have to be applied to the facts of this case, There is no doubt at out the principle; they are quite clear and clearly enunciated, and the only difficulty arises in the application of them.

(3.) The first point taken by the defendants here is that, in the actual result of the proceedings in the partition suit, the present plaintiff was necessarily bound by the result, because there was a real conflict between him and Thumbiasami Maniagar on the very point, viz., the validity of this mortgage. In the partition suit Thumbiswami Maniagar did not appear; he was what is called in this country ex parte. But it is said that, when the actual proceedings are scrutinised, it is clear that, although he did not appear himself as a party to defend his position, because the present plaintiff, in fact, urged the case against him and pressed it to a decision, it is none the less binding upon him. We think the first thing to do is to see exactly what was raised at the trial and what was decided first and last. We will take it that the pleadings asked for a declaration that the pleadings asked for a declaration that the mortgage in question was invalid as against the plaintiffs, in there is the two sons, in the partition suit, because there is no doubt that that is what tie learned District Judge declared and we think he declared no more in so many words because, beyond the fact which becomes important in another aspect of the case, that he held that it was not binding en the plaintiffs and their brother, he did not declare in so many words in that place that it was not binding on the 1 defendant and it does not appear to have been made a part of what is called the formal finding in paragraph 68 of the judgment. But in the same paragraph he says, "I hold that the debt due under the document is one which it is open to the 1 defendant to repudiate on the ground that his agreement with the 27 defendant"--that is, the present 1 plaintiff--"was obtained fraudulently, i.e., in order to enable the 27 defendant to commit fraud, and that, although the 27 defendant might have advanced monies under this agreement, money so spent was spent with a fraudulent object." That is what he says about that. Mow, the decree in that suit was a decree for partition and the learned District Judge in setting out the final result says this: "In the result, I find that the two plaintiffs and the 36 defendant, their brother, are jointly entitled to a three-fourths share of an one third of a half share (that is a 3-24thor 1-8th share) of the whole suit estate," and so forth. He then directed a Commissioner to be appointed to take an account and also to effect a partition of the moveable and immoveable property and there he left it making no declaration other than the words I read out from paragraph 68 as to the position of Thumbiasami Maniagar and his right in the partition that was to be effected.