K RAMASWAMI NAICKER Vs. ALAMELU AMMAL

JUDGEMENT

(1.) This is a curious case which arises out of the rather complicated affairs of a man called Chockalinga Naicker, who was adjudicated insolvent in February, 1915. I have had occasion to go into the story at considerable length on another occasion and I need only, for the purpose of the present case, recapitulate the circumstances very briefly. On the 2nd September, 1910, Chockalingam purported to transfer the lands to Pachaimuthu Naicker for Rs. 2,000. On the 27 June, 1912, Pachaimuthu in his turn transferred them to Ramaswami Naicker, who is closely related in a double way to the insolvent Chockalingam for Rs. 3,000. On the 27 of June, 1914 Ramaswami Naicker purported to transfer the lands to Alamelu Ammal for Rs. 4,550. In the course of the insolvency of Chockalingam, the Official Assignee challenged these alienations. He challenged them as being not bona fide and as being without consideration, and the end of that was that I tried a proceeding in which the Official Assignee, as representing the estate of Chockalingam, sued Ramaswami Naicker and Alamelu Ammal jointly in order to get it declared that these transactions must be setaside for want of good faith and like considerations. In those proceedings Ramaswami Naicker and Alamelu had exactly the same interest, viz., to resist the contentions of the Official Assignee on both points. They failed. It was held by me that the garnishees had not shown that they were purchasers in good faith, and I undoubtedly used expressions which indicated, let us say, some suspicion as to whether the purchases were for valuable consideration. But, reading my own judgment, it seems to me clear that I took very good care not to decide that point. It went on appeal and my decision was confirmed by the late Chief Justice and Napier, J. arid, no doubt, they did use language which went a good deal further than mine with regard to the question of consideration or want of consideration. The present Chief Justice, who decided this case on the Original Side, has indicated the view that, even if the appellate Court must be taken to have expressed the opinion that there was no consideration in that case having regard to the fact that they agreed with the finding on which I dismissed the suit, namely, that there was a lack of good faith, that was the real ground of decision and that the other ground was obiter dictum being a mere expression of opinion not necessary for the decision of the case. The suit which was tried by the Chief Justice arose in this way. There was a suit brought by Alamelu Ammal against her vendor Ramaswami Naicker and she said, " Here is this conveyance in my favour. I have been ousted by the action taken by the Official Assignee. You must indemnify me for the loss on my bargain and pay me damages based on the value of the land at the time that you failed to carry out your undertaking as embodied in the covenant for quiet enjoyment which is part of the sale deed. " To that the only answer that is vouchsafed is this--at least that is the only point pressed before us--that, because the Court in those proceedings had to try whether there was a valid transfer away from the estate of Chockalingarn and whether the lady Alamelu Ammal and Ramaswami Naicker, who were the garnishees who were resisting the attack in that case, were free from the charge of having in their hands property belonging to the insolvent's estate, it must be considered that the Court decided in that case that the transaction was a fraudulent one for all purposes and that their determination in those proceedings was binding in these proceedings against the two garnishees. It is clear that, in certain circumstances, a judgment may act as res judicata as between two co-defendants when they litigate against one another subsequently. That doctrine while recognised is strictly circumscribed both by the English and by the Indian Law. The locus classicus is the judgment of Vice-Chancellor Wigram in Cottingham V/s. Earl of Shrewsbury 3 Hare 627. 1, where he says this: "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 principle was acted on and carried out in Ramaswami Aiyar V/s. Ponnuswami (1922) MWN 526, a Letters Patent Appeal, where a Bench of three Judges--the present Chief Justice, Oldfield, J. and myself--held that the principle was well-established that there could be no estoppel created between co- defendants so as to invoke the doctrine of res judicata unless there was a litis Contesttio as between those defendants inter se. There is no trace of such a thing here and we must therefore hold that the judgment of the appellate Court in the former insolvency petition, No. 62 of 1915, does not so act in this case, and as the learned Chief Justice points out, it may very well be that, even supposing that this lady was consciously intermeddling in these somewhat murky affairs of Chockalingarn, she had a conveyance direct from Ramaswami Naicker as a guarantee that, if anything went wrong with the estate of Chockalingam, he would stand to her in the position of an indemnifier. One must not forget that Ramaswami Naicker was the son-in-law and brother-in-law of this Chockalingam. That seems to me to be quite sufficient to explain this transaction without any supposition at all that they must necessarily be engaged in a common fraud. Even if one has a suspicion of that kind, on the principle of Doe de Roberts V/s. Roberts (1819) 2 B and Ald 367 and Prole V/s. Wiggins (1836) 3 Bing (NC) 230, which has been acted upon in this Court in Kamayya V/s. Mamayya (1917) 33 MLJ 484, it would not be possible to act on it here; because the plaintiff having proved a conveyance containing a covenant for quiet enjoyment, the defendant could not be heard to say " That was all a sham; that conveyance was not between me and her at all; it was a fraudulent transfer effected with intent to defeat the creditors of Chockalingam by putting my name as benamidar." On the principle that one Allegans suam turpitudinem non est audiendus the defendant will not be allowed to set up that case.

(2.) In my opinion, the learned Chief Justice came to the right conclusion in this case and this appeal must be dismissed with costs. Ramesam, J.

(3.) I agree.