KOONAMVELLI UNNARA (DEAD) Vs. KOYIPARAMBATH PERINKITAYIL KUNHI RAMAN

JUDGEMENT

(1.) The Substantive points for decision in this appeal are two both questions of res judicata. The plaintiffs (contesting respondents) are the junior members of a Marumakattayam tarwad in Malabar and they bring this suit to eject among others the appellant from the plaint property on the ground that the plaint property is the property of a Devaswom which is itself the property of their tarwad. The appellant claims under the third defendant, who was the son of one Sankaran, and claims that the plaint property was the property of Sankaran, that Sankaran followed Makkathayam law and that the third defendant therefore succeeded to the property after his father's death and passed it on to him. On this point, the plaintiffs claim that Sankaran followed Marumakkathayam Law, and therefore his successor in title to the property was not the third defendant but their own tarwad, of which, according to them, Sankaran was the Karnavan when he died. One of the main points for decision by the lower Courts therefore was whether Sankaran's property descended to his son or to the plaintiffs tarwad in other words, whether Sankaran followed the Makhathyam or Marumakkhathayam Law. This very question was raised and decided in a previous suit, O.S. No. 433 of 1898 on the file of the District Munsif of Payyoli to which the third defendant and the then Karnavan of the plaintiffs tarwad were parties and it was then decided that Sankaran followed Makkhathayam Law, and that the Karnavan of the tarwad was not his heir. This finding was upheld on appeal by the District Court of North Malabar and is a final decision binding on the parties and their successors in title. The plaintiffs contend that this decision is not res judicata against them, but we are of opinion that that contention cannot prevail and that the lower Courts have erred in holding that it is not.

(2.) The plaintiffs contention, which has been upheld by the lower appellate Court, is that O.S. No. 433 of 1898 was dealing with a case of self-acquisition of Sankaran and that in such case it was not necessary for the Court to record a general finding that Sankaran followed Makkathayam Law, and that therefore the finding, being unnecessary for the decision of that case, does not constitute res judicata. It was argued further that, even if it did not appear on the face of the record in that suit that the Court was dealing with a case of self-acquisition, it will still be open to the plaintiffs in this suit to adduce evidence to prove that it was so. To the latter proposition we must demur. A judgment in a matter of res judicata must stand by itself. It decides what it purports to decide, no more and no less. If there is any ambiguity as to what it decided, which cannot be cleared up without further evidence, then it will not be clear finding and therefore not a case of res judicata at all.

(3.) A consequential contention by the plaintiffs that Sankaran followed Makkathayam as regards his self-acquisition and Marumakkathayam as regards his tarwad property appears to us to be a pure speculation and contrary to the decision in O.S. No. 433 of 18.98. Taking the judgment in that suit as it stands, we can find nothing in it to indicate that the Judge was dealing with any case of self-acquisition, but much to the contrary effect. The subject matter of the suit was an amount due to Sankaran on the redemption of a kanom which had been paid into Court pending the decision as to who was his legal representative, and the issue to be decided definitely was who was his, legal representative entitled to the money. The karnavan sued on the ground that Sankaran followed Marumakkathayam and the third defendant pleaded that Sankaran followed Makkathayam. The issue was perfectly clear, and the finding equally clear, that Sankaran followed Makkathayam. There is no suggestion anywhere that it was a case of intestacy in the matter of self-acquired property. The lower appellate Court has assumed without giving any reasons that the suit related to self- acquisition. It was obviously srtongly in fluenced to that assumption by its conclusions that the property in the suit before it belonged to the plaintiffs tarwad and not to Sankaran's sons. We must dissent from its assumption and hold that the question whether Sankaran followed Marumakkathayam or Makkathayam is res judicata, in a decision binding on the plaintiffs and their tarwad.