GOVINDASAMI SOLINGA THEVAN Vs. GOPALASAMI SIVAJI MOHITHEI

JUDGEMENT

(1.) The 1 respondent as the holder of a decree for money in O.S. No. 237 of 1886 against one Rajagopalasami, the step-brother of the appellant and his two younger brothers, attached the three items of property mentioned in the plaint and purchased the same in Court sale. The appellant has brought this suit to obtain a declaration that he is solely entitled to the property and that his step-brother the judgment-debtor has no right, title or interest therein. He relies upon the decrees in O.S. Nos. 193 and 142 of 1890 and O.S. Nos. 146 and 147 of 1889 as res-judicata in his favour. The respondents (the 2nd respondent being the undivided brother of the 1 respondent) denying the exclusive title of the appellant, apparently contended that Rajagopalasami and his step-brothers were not divided, that they (the respondents) as purchasers in execution of the decree in O.S. No. 237 of 1886 against Rajagopalasami acquired his one-fourth share in the plaint items and that so far as item No. 3 was concerned the question was res-judicata in their favour by the decree in O.S. No. 17 of 1888. The District Munsif gave judgment in favour of the plaintiff as prayed for, holding that the decree in O.S. No. 142 of 1890 operated as res judicata against the respondents and that the respondents did not make any attempt to sustain their plea of res-judicata as regards item No. 3 by producing the decree in O.S. No. 17 of 1888. He also recorded a finding on the merits that by reason of the various intricate transactions relied on by the appellant he had become separated in interest both from his steprbrother (Rajagopalasami) and from his two uterine brothers and the exclusive owner of the plaint items. The Subordinate Judge, on appeal reversed the decree of the Munsif and dismissed the plaintiff's suit, on the ground that the decree in O.S. No. 346 of 1892 (Exhibit I) operated as res-judicata against him. The only question which we have now to consider in this second appeal is whether the view taken by the Subordinate Judge as to the effect of the decree in O.S. No. 346 of 1892 is correct. We are clearly of opinion that the view taken by the Subordinate Judge is unsound in law and the appeal should be remanded for disposal on the merits. It is noteworthy that the respondents did not either in their written statement or at the settlement of issues, plead the decree in O.S. No. 346 of 1892 in bar of the suit, though they pleaded the decree in O.S. No. 17 of 1888, in bar of the suit, so far as it related to item No. 3. Nor has the decree in O.S. No. 346 of 1892 been produced.

(2.) They raised this plea for the first time in their memorandum of appeal to the lower appellate Court and the Subordinate Judge relying only upon the judgment which was filed as Exhibit I sustained the plea. It appears from Exhibit I that the 1 respondent purchased the items of property which were the subject matter of that suit, in execution of his decree in O.S. No. 237 of 1886 against Rajagopalasami and on the ground that he was obstructed when he proceeded to cultivate those lands, sought to establish his title to the same. The defendants Nos. 2 to 5 in that suit (No. 346 of 1892) were respectively the present appellant, his uterine brothers and the widow of their step-brother Rajagopalasami. The 2nd defendant (the present appellant) did not however appear and defend the suit, though he appears to have been examined as a witness in the case, apparently on behalf of his uterine brothers defendants 3 and 4 therein and his evidence then given was substantially the same as the averments made by him in the plaint in the present suit which relates to items of property not comprised in that suit. The title of the 1 respondent as alleged in the plaint in that suit was that Rajagopalasami, the judgment-debtor in O.S. No. 237 of 1886, was the managing member of the undivided family consisting of himself and his three step-brothers, that the decree-debt was one that was binding upon the whole family and that he had therefore acquired the interest of the whole family in the items of property sold in execution of the decree. The 3rd and 4 defendants therein claimed most of the items as their separate property by reason of their having become separated both from Rajagopalasami and from their elder (uterine) brother (the 2nd defendant) in virtue of the various transactions set up by the plaintiff in this suit. The 5 defendant claimed the remaining items as her stridhanam property. At the commencement of the trial (in O.S. No. 346 of 1892), the pleader for the plaintiff therein (1st respondent) made a statement abandoning the claim which he had made in the plaint on the footing that the properties purchased by him were joint family properties and based his claim on the footing that the properties there in question were the self-acquisition of Rajagopalasami made even during the life-time of his father. The District Munsif found that the properties were not the self-acquisition of Rajagopalasami but with reference to the defence raised by the 3rd and 4 defendants he found in paragraph 11 of his judgment as follows :--"On the question of division I find against the defendants 3 and 4."

(3.) In dealing with the question of stridhanam raised by the 5 defendant he found that that question was res-judicata in her favour and in paragraph 13 of his judgment he found that the plaintiff therein was entitled to a one-fourth share of the properties in the possession of defendants 3 and 4. " The properties comprised in Exhibit VI being the joint properties of all the brothers, it will thus be seen that the finding of non-division is expressed to be only between the then plaintiff on the one hand and the then defendants 3 and 4 on the other hand and the decretal portion of the judgment (paragraph 16) was for the recovery of one-fourth of the properties in the possession of defendants 3 and 4 and the suit was dismissed in other respects. No doubt that finding was based upon his view that the properties comprised in Exhibit VI which relate both to the properties comprised in that suit and to the properties comprised in the present suit were the joint properties of all the brothers. The simple question therefore now is whether notwithstanding that the finding is recorded and the decree was only as against defendants 3 and 4 (who claimed the properties comprised in that suit as their exclusive property) it should be held that the reasoning of the District Munsif that the properties comprised in Exhibit VI are the joint properties of all the brothers is res-judicata in the present suit against the respondent who according to the cause of action upon which the present suit is based and the evidence given by him in the former suit had no interest whatever in the properties which were the subject-matter of that suit and which he therefore did not take the trouble of defending. His case is that in respect of a portion of the properties comprised in Exhibit VI he became separate from his uterine brothers by virtue of a subsequent transaction and that the plaint items are included in such portion. The decree in the former case was not against him and it is clear that he could not have appealed against it. Rajah Row Bahadoor Singh V/s. Massumat Lachoo Koer L.R. 12 I.A. at 34. Further within the meaning of Explanation 2 to Section 13, Civil Procedure Code, he could not have raised the matter on which the present plaint is founded as a ground of defence in the former suit for the simple reason that it would have been no defence at all to that suit so far as his interests were concerned (which were nil) in the properties for the recovery of which that suit was brought. It is, therefore, clear under explanation 2 that the "matter" of the present suit could not be deemed to have been a " matter directly and substantially in issue in such suit" between the parties to this suit. It is therefore unnecessary to refer to the various cases cited in argument on both sides.