NACHIKALAI Vs. AIYAKANNU ALIA CHELLAIYA

JUDGEMENT

(1.) The defendant-appellant was sued by plaintiffs for recovery of property on the ground that it constituted the estate of one Neelamegam, whose reversioners the plaintiffs alleged that they were, and that the defendant had not been validly adopted by Neelamegam.

(2.) The only question before us is whether the adjudication on this adoption in a certain previous suit is now res-judicata or whether the lower appellate court's order of remand for trial on the merits is correct. In the previous proceedings Neelamegam's widow sued the present defendant as 2nd defendant on the ground that he had entered on the performance of certain mirasi duties which were jointly owned by Neelamegam and the present plaintiffs, then 3 and 4 defendants, the allegation being that these duties were performed by the present plaintiffs and Neelamegam in turns, by Neelamegam for two years in succession and the present plaintiffs for the succeeding one year. The widow sued the 2nd defendant without reference to any adoption for a declaration of her right to the mirasi and for possession thereof and an injunction. The present plaintiffs were joined as 3 and 4 defendants in that suit on the ground that they were entitled jointly to the said Mirasi office "in order to save subsequent litigation". This ground for joining them is on its face questionable. It has to be observed that it had not necessarily anything to do with the character, which the plaintiffs have now put forward as reversioners of Neelamegam. The plaintiffs filed their written statement, Ex. A(1) and in it referred-to their character as reversioners, stating that after the widow's death her right would devolve on them and that they would then become entitled to the whole mirasi right, meaning presumably its enjoyment not only for the one year's turn, during which they were already enjoying it, but also during the two years, during which until that time it had been in the enjoyment of Neelamegam. Issues were joined of a very general character, the first being whether the widow was entitled to the mirasi right claimed in the plaint, and the third whether the present defendant was validly adopted by Neelamegam and was entitled to succeed to the mirasi right. The result of the trial in the first court was a decree in favour of the present defendant the present plaintiffs being directed to pay their own costs. Appeal was afterwards preferred by the present defendant, to which he made only the widow respondent. It is unnecessary and it would probably be useless for us to enquire into his reasons. It is sufficient that according to the findings of the lower court there is no question of fraud and we need only consider the legal aspect of what was clone. The appeal ended in the defendant's favour with a finding for the adoption. On these proceedings the lower appellate court has held that neither the previous decrees of the court of first instance nor the appellate decree is res judicata in the present suit.

(3.) The argument in appeal is directed towards showing that the appellate decree should be regarded as res-judicata. The second respondent, one of the plaintiffs, has filed a memorandum of objections urging that the first court's judgment, Ex. I should be so regarded. We have heard considerable argument with reference to the position of the plaintiffs as 3 and 4 defendants in the previous suit and as to the inference, if any, to be drawn from their conduct therein. It is not however, necessary to pursue that portion of the case, since neither side before us is really concerned to dispute that Ex. I would be res-judicata now, if Ex. II had not been given. We therefore confine ourselves to Ex. II.