CHERIAKKATAVAN KORAN Vs. PUTHAM VEETIL PONMILERI KOROTH AMMALU

JUDGEMENT

(1.) The lower appellate Court has found that Ex. III is binding on the plaintiffs. It was executed by the 1 defendant in favour of the 2nd defendant and the plaintiffs, and the latter cannot be heard to say that the 2nd defendant on the date of Ex. III had no right to the property. The question, however, whether the 2nd defendant was entitled to the property on the date of Ex. III is now immaterial, because subsequent to it the right of the plaintiffs to manage the property was recognised in a suit to which the plaintiffs and the 2nd defendant were parties. The plaintiffs had filed O.S. No. 649 of 1911 for recovery of rent against a third party and to that suit the 2nd defendant was made a party. The suit related to the property which is the subject-matter of the present action. The plaintiffs claimed that it had been bequeathed to them as sriswath by their mother and that the 1st plaintiff was constituted the manager. The defendant (tenant) pleaded that he had obtained a renewal from the 2nd defendant who, by the way, was also 2nd defendant in that suit; and the following issues were raised: 1. Whether the renewal and payment set up are true and binding on the plaintiffs?

(2.) Whether the 2nd defendant has a right under the Will to collect the rent and grant the renewal? 2. The 2nd defendant was ex parte. The Court gave the following judgment: It is to be noted that under the will the females are to manage and not the males. No doubt the will cannot legally impress on the property the character of what is called sriswath . . . The 2nd defendant has no right to manage.

(3.) It will be seen that the issue relating to the right to manage was raised and that a finding was given. The decision of that question was necessary for the decision of the point in controversy between the parties. Although, therefore, the 2nd defendant was ex parte, the finding would operate as res judicata as between the plaintiffs and the 2nd defendant. Vide Hara Chandra Bairagi V/s. Bepin Behari Das (1910) 13 C.L.J. 38 and Raj Kumar Roy Chowdhury V/s. Ali Muddi (1912) 17 C.W.N. 627.