K DHANAPALA CHETTI Vs. TNANANTHA CHETTI

JUDGEMENT

(1.) The first plea relied upon by the 1st defendant in this case is that the claim is res judicata by reason of the judgment in a suit of 1893, which was heard on the original side of this Court in O.S. Appeal 7 of 1895. The learned judge has held that the question is not res judicata and I think he was right. The suit of 1893 was brought by one Tulukkanam Chetti who was the grandfather of the present plaintiff, his two sons also being the plaintiffs in the suit of 1893. The suit was brought about by a will and a codicil which were executed early in 1893, by one Dhanakoti, who was the brother of this Tulukkanam. In this will the testator purported to deal with certain property including the property in dispute in the present case as self-acquired property and the plaintiffs in the suit of 1893 asked for a declaration that the family was undivided and the properties which Dhanakoti purported to dispose of by will were the properties of the undivided family. In the course of that suit a document was put in by the plaintiffs dated 20th May 1865 which has been referred to as Exhibit C. This document recognised the right of the widow of another brother of Tulukkanam (one Sabapathy) and of Dhanakoti s wife and we are told that when the document was executed, Dhanakoti, although he afterwards recovered; was in extremis this document recognised the right of these two ladies to enjoy, or at any rate to remain in possession of the house in question until the death of the survivor and also recognised the rights of Dhanakoti and Tulukkanam as reversioners, on the death of the two ladies, to the property in question. There was some argument at the bar as to whether this document of 1865 was more consistent with the status of the family being divided or with the status of the family being undivided at the time the document was executed. We need not discuss this. One thing is clear beyond all question, and that is, that when the document was put in evidence by the plaintiffs in the suit of 1893, it was put in evidence for the purpose of supporting the case put forward by the plaintiffs in that suit viz., the case that the family was undivided and that because the family was undivided and that because Dhanakoti the testator in 1893 purported to deal by way of will with undivided family property, the will was ineffective. The judge in deciding this question of res judicata holds that whereas the earlier suit was filed by the plaintiff s grandfather and his father and uncle on the footing that they were members of an undivided family and was dismissed on the ground that there was a division between the plaintiff s grandfather and Dhanakoti Chetti, the present suit is based on the plaintiff s title on the agreement dated 20th May 1865 and as reversioner, and on those grounds holds that the question in the present suit is not res judicata. I do not feel altogether clear that the learned judge is right in holding that the present suit is based on the plaintiff s title on the document of 1865 because it seems to me that his present suit really is based on his claim as reversioner; if he can show that the widows who conveyed to the 1st defendant had no estate of inheritance to convey, he succeeds as reversioner apart altogether from any question as to the effect of the agreement of 1865. However Mr. Tirunarayanachariar on behalf of the appellant availed himself of the observation of the learned Judge and based upon that observation an ingenious argument in support of his plea of res judicata. He says, in so far as the plaintiff s claim in the present suit is based on the agreement of 1865, it must be taken to be a claim which is inconsistent with the claim which he made in the suit of 1893, that suit being based upon the footing that the family was undivided. Mr. Thirunarayana Chariar says that the plaintiff is now seeking to set up an alternative claim which is inconsistent with the claim as set up in the suit of 1893; and that being so under Section 13 of the old Code and the corresponding enactment of the present Code, it was a ground of attack which he ought to have put forward in the earlier suit, he is precluded from patting it forward in this suit. For the purpose of this argument he assumes that the claim is alternative and inconsistent. On authority it would seem that in order to avoid the objection of res judicata it is not necessary for a plaintiff: to put forward a claim and also an alternative and inconsistent claim on which he relies, I think generally speaking, that may be said to be the effect of the decision in Ramasami Aiyar v. V ythinatha Aiyar (1902) I.L.R. 26 M. 760, which was cited with approval in the case of Thirthakat Madathil Raman v. Thirthakat Krishna Nair (1905) I.L.R. 29 M. 153. Now, as I have said, the suit of 1893 proceeded on the footing that the family was undivided; and the only question was "could Dhanakoti dispose of the property, which he purported to dispose of by will?" There was certainly no adjudication in that suit on the question as to what was the nature of the estate which the two ladies took under the will of Dhanakoti. That question is not referred to in the pleadings. It is not raised in the issues. It does not so far as I can see, appear to have been ever discussed in the suit of 1893. So far as I know, the only passage in the judgment of the Court of appeal which can be referred to as supporting Mr. Thirunarayana Chariar s contention that this question was adjudicated upon in the suit of 1893 is the last sentence of the judgment of the Court of Appeal. The learned Judge there says "It may be that in 1865 he (i.e. the testator Dhanakoti) was willing that his brother (i.e. Thulukkanam) should have the reversion of the old family house (i.e. the house in question) but after partition "was denied in 1886, he seems to have been on bad terms with his brother and had made wills which defeat the reversion. If divided he had a legal right to do this and we must hold en the evidence that the division is established." Mr. Thirunarayanachariar asks us to read that as an adjudication on the question which is now before us, viz., as to the effect of the clause in the will which conveyed an estate or interest to the widows in the house in question. The language is quite general, "had made wills which defeat the reversion" and I do not think that the learned Judges when they made that observation intended to hold that, as a matter of construction, the effect of the will of 1893 was to pass to the two ladies an Restate of inheritance so as to give them full powers of alienation which would have the effect of defeating reversionary rights in the plaintiffs in that suit. The question which was before the Judges was the question whether the property was undivided family property or divided family property and I think that that general observation must be taken to have been made with reference to the question which they had to determine.

(2.) Assuming that that is not the right view and that the learned judges did purport to deal with this question of the effect of the words of the will with reference to this house and the interest which these two ladies were to take in the house, that to my mind is clearly not the question which was before them, and if the learned judges did adjudicate on this question, it seems to me that it was wholly unnecessary for the purposes of the case before them and on that view I should hold that the matter is not res judicata. So much then for the plea of res judicata.

(3.) Then the further question is as to the construction of the will. The will and codicil were executed by Dhanakoti shortly before his death in 1893 and the question is Did an estate of inheritance pass to the two ladies under the will or codicil?