SUNDRA BHAU SHETYE Vs. SAKHARAM GOPALSHET GANDHI

JUDGEMENT

(1.) THE plaintiffs, three in number, in this suit are seeking to obtain property from the defendant-appellant, granddaughter of one Tukaram, on the ground that Tukaram and their ancestors were joint. THE only question which we have to answer here is whether the matter in issue is res judicala by reason of the decision in a suit of 1909 in which the present plaintiff No. 1 was defendant No. 4, and the father of the present plaintiffs 2 and 3 was plaintiff. Doubt less we should have been glad to hold that the matter was res judicata, although the position occupied by plaintiff No. 1 in that suit might have occasioned some difficulty, for there can be no doubt but that the matter substantially in issue here was substantially in issue there, and was decided against the father of the present plaintiffs 2 and 3. Unfortu nately plaintiffs 2 and 3 were not made parties to that suit. Still the matter might have been res judicata against them under the principle, and we think also the words of Section 11 of the Civil Procedure Code which has recently been interpreted in this sense by their Lordships of the Privy Council in the case of Raja Rampal Singh v. Ram Ghulam Singh (1904) L.R. 32 I.A. 17., had it not been for a very important circu nstance which distinguishes this case from cases falling in that general class. Here the plaintiffs 2 and 3 were minors at the time of the suit of 1909, and the finding of the learned Judge who tried that suit shows conclusively that the father of these minors did not adequately represent them. He comments most adversely upon the manner in which the suit was conducted before him and makes the conduct of these plaintiffs father the ground of saddling the defendants in spite of their success with their own costs. In these circumstances we feel that it would be impossible to say that these minors, who were not parties to that suit, and are judicially declared not to have been adequately represented at the trial, are bound by its result. THEy are, therefore, at liberty to proceed with the present litigation, and since plaintiff No. 1 was no more than a pro forma defendant in the former suit, and appears to have taken no active part in it, and the decree speaking generally appears to have been in his favour as one of the defendants, we feel some doubt in holding that he is bound by the result either, to the extent of being precluded from prosecuting this litigation. We must, therefore, confirm the decree of the Court below upon this preliminary point and remand the case to be dealt with upon the merits. Costs costs in the cause.