MARUDAMUTHU ASARI Vs. KUMARASWAMI ASARI

JUDGEMENT

(1.) Plaintiff is the appellant The second appeal arises out of a suit instituted by him for the recovery of the suit property purchased by him from one Annopurnathammal under Ex. B in 1926. Annapurnathammal is the widow of one Annaswami. Annaswami and Periaswami are brothers. The plaintiff's case is that there was a. partition between Periaswami and Annaswami. that the suit property fell to the share of Annaswami and that after his death it was inherited by his widow from whom he has derived a valid title to it by purchase under Ex. B. The defendants were alleged to be trespassers ; but their case is that there was no partition between Periaswami and Annaswumi and that, on the death of Annaswami, Periaswami became entitled to all the properties by right of survivorship. They further alleged that theiy purchased the property in execution of the decree in 0 Section No. 1103 of 1H19 on the file of the District Munsif of Ariyalur against Periaswami, the undivided brother of Annaswami, and that they have been in possession by right of such purchase. The fact of this purchase cannot be disputed. Periaswami executed a simple mortgage on 19 December 1905 (Ex. 1) in favour of defendant 1 who Bled the suit 1103 of 1919 and himself purchased the property in auction under Ex. 2 in 1925.

(2.) The main question in the case is whether Annaswami, the husband of Annapurnathammal, and Periaswami, his brother, were divided. If they had beea divided, as alleged by the plaintiff, then the defendants could not derive any title to the property through Periaswami. There had been two decisions in two prior suits in which Annapurna-thammal, the plaintiff's vendor, and Periaswami through whom the defendants claim title, were arrayed as plaintiff and defendant. Thete are O Section No. 205 of 1918, on the file of the District Munsif of Ariyalure and O.S. No 2 of 1924 on the file of the Additional District Munsif of Ariyalur. ID the first suit it was found that the two brothers were divided, but is the latter suit the partition was found against. The lower appellate Court held and this decision is not challenged before me that the decision in O.S. No. 2 of 1924 being the later decision would prevail. It also held that this decision constituted res judicata between the parties on the question of partition and accepting the finding that there was no partition it dismissed the plaintiff's suit It was argued in the lower appellate Court that the decision in O.S. No. 2 of 1921 would not operate as res judicata because Periaswami was only a pro forma defendant in that suit and that there was no actual contest between Periaswami and Annapurnathammal as Periaswami allowed the suit to proceed ex parte. These contentions were overruled.

(3.) In this second appeal the argument that O.S. No. 2 of 1924 cannot operate as res judicata on the question of partition is pressed again but not on the grounds on which it was put forward in the lower appellate Court. To appreciate the new argument it is necessary to state a few facts. O.S. No 2 of 1924 was instituted by Annapurnathammal against Periaswami as defendant 1 and one Venkatachallam as defendant 2. The suit no doubt related to a different property but the question as to partition between Periaswami and Annaswami was specifically put in issue. Annapurnathammal's contention was that the property fell to her husband s- share on partition, that she inherited it as the heir of her husband and that she-leased it to defendant 2 in the suit. She alleged that defendant 2, though he-got possession from her, was setting up the title of defendant 1 and she therefore sought for a declaration in respect of title to the property against both the defendants and for recovery of possession of the same from defendant 2. lb will be observed that by this time the suit property had been mortgaged by Periaswami under Ex. 1 in favour of defendant 1. As already stated, it was by instituting a suit on this mortgage, O.S. No. 1103 of 1919, that defendant 1 became the purchaser of the property, under Ex. 2 in 1925. It is argued by the appellant that as the suit property was under mortgage at the time of O.S. No. 2 of 1922), Periaswami the mortgagor could not validly represent the interests of the mogtgagee in that suit, that he will not be bound by the decision therein because his title arose prior to that suit and that therefore that decision cannot operate as res judicata between the parties on the question of partition. This argument is supported by the decision in Ramachandra Dhondo V/s. Malkapa 1916 Bom 204. With reference to the same point raised in that case it was held that as a mere mortgagee the plaintiff (therein) would not be bound by the earlier decision, because his title arose prior to the suit in which the decree against his mortgagor was obtained, and the mortgagor possessing only the equity of redemption had not in him any such estate as would enable him sufficiently to represent the mortgagee in the suit instituted after the mortgage.