PARIM MANICKYAM Vs. KODIMANGI

JUDGEMENT

(1.) THE plaintiff is the appellant. He instituted a suit to recover property convoyed to him by the first defendant. THE first defendant is the widow of the adopted son of the second defendant. THE 5 defendant is the daughter of the 2nd defendant. THEse defendants raised the plea that the first defendant was unchaste and therefore the conveyance of the property by her to the plaintiff was illegal. This plea was upheld by the lower Courts and the plaintiff's suit was dismissed. In second appeal now for the first time it is argued by the plaintiff (appellant) that these pleas could not be raised by defendants 2 and 5 as they are precluded from doing so on the ground of res judicata by the decision in O.S. No. 97 of 1917. That suit was instituted by the present 5 defendant for a declaration that adoption of the first defendant's husband by the present 2nd defendant's husband was invalid and for the setting aside of an alienation made by the second defendant in this suit and the husband of the first defendant jointly. It was held that the adoption was good and the suit was dismissed. As regards this plea of res judicata, it is now argued by the appellant that the present 5 defendant should have raised the plea of unchastity in the prior suit instituted by her as plaintiff, and since she did not do so then, she is now precluded from raising is in this suit. That suit, as I have pointed out, was instituted for a declaration that the adoption was not good and this plea of unchastity was not directly relevant for the decision of the question raised in it. Evan if she raised it, it does not appear that she would be entitled to get the property because if the adoption is valid, the mother would get the property and after the mother it would go to the 4 defendant in that suit viz., Tirupati (natural brother of the 1 defendant's husband). In no event would the present 5 defendant as plaintiff have got the property.

(2.) IT follows, therefore, that, so far as she was concerned, the point did not directly arise in the prior suit. IT is then argued that the present plaintiff appears as the 7 defendant in that suit and, therefore, the question of unchastity should have been raised in it. The plaint in that suit is not before me; and from the long extract of it given in the judgment, I am not able to find why it was that the present plaintiff was made a party in that suit. As the appellant is not able to explain the circumstances in which he was made a party, I am not prepared to say that the plea now raised should have beau raised in that suit. IT is also argued that the present second defendant is also now precluded from raising The question of unchastity because she did not raise it in the suit which was instituted by her adopted son (the 1 defendant's husband) after his return from Rangoon to recover possession of the suit property leased to his brother Tirupati (O.S. No. 837 of 1913). IT does not appear that she was a party to that suit. IT is therefore, open to her to raise that question in the present suit. Under the circumstances, I hold that there is no substance in the plea of res judicata now set up for the first time in second appeal by the plaintiff (appellant). Lastly it is argued that the District Munsiff has found that the consideration for the conveyance in favour of the plaintiff was for family purposes and that, therefore the plaintiff should be given at least a charge for the amount upon the properties. IT is true that the District Munsiff has recorded that finding but the appellate Judge does not make any reference to the nature of the consideration: and it also appears that this point was not argued before the Appellate Court. Nor was it raised in the grounds of appeal to that Court. I am not inclined to allow this question now to be raised in second appeal for, if allowed, the respondent will not be able to advance pleas such as limitation, which he might; pub forward if a separate suit is brought for the recovery of the amount. I therefore dismiss the second appeal with costs.