EMANI VENKATARAMAYYA Vs. LALBIBI SAHEBA

JUDGEMENT

(1.) The question raised is one of res judicata. The original owner is one Lai Muhammad who died in 1902. The, plaintiffs, his daughters, have brought this suit for partition of his properties. Defendants 1 and 2 are his sons, and defendant 3 is his wife. In 1904, defendants 1 and 2, treating the properties as their own, mortgaged them to defendant 4. In 1922 the latter filed a suit upon the mortgage in his favour, obtained a decree and in the Court sale that followed defendants 5 and 6 purchased the properties. Thereupon, defendant 3 filed O.S. No. 335 of 1923, alleging that the properties had been gifted to her by her husband and that no title passed under the Court sale to defendants 5 and 6. That suit was dismissed. In the present suit the lower Courts have held that the properties of Lai Mohammad became liable to be partitioned on his death among his heirs and that the mortgage by his sons was not binding on the shares of Lai Mohammad's daughters (i.e., the plaintiffs), or of his wife (defendant 3).

(2.) For the appellants (defendants 5 and 6) it is now contended that as regards defendant 3, her right should be held to have become barred by the rule of res judicata. The question is whether her to right to a share of the property is a matter which not only might but also ought to have been made a ground of attack in the former suit, viz., O.S. No. 335 of 1923 (Excep. P- 4, Section 11, Civil P.C.) That it might have been made a ground of attack admits of no question. The being a suit for partition, defendant 3 is virtually in the position of a plaintiff. The right claimed in both suits is in regard to the same property. Their test is this. If a matter could have been set up as a ground of attack in the former suit and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack in that suit, unless the matters in that and the subsequent suit are so dissimilar that the union might lead to confusion : Mulla's Civil Procedure Code, 9 Edn., p. 47.

(3.) Mr. V. Suryanarayana contends that the two claims are dissimilar as they have to be supported by different evidence. But it has been held that the test of evidence is not a satisfactory test the reason being, that, when alternative grounds of attack are set up, the evidence in support of such alternative grounds would very often be different On the facts of this lease I am satisfied that the defence of res judicata must prevail. It is unnecessary to examine the numerous oases on the point; but I may refer to : Muthu Vijia Ragunanda v. Katna Nachiar (1866) 11 M.I.A. 50 (PC); Doorga Pershad Singh V/s. Doorga Kunwari (1877) 4 Cal. 190 and Kameswarpershad V/s. Raja Kumari Ruttan Koer (1893) 20 Cal. 79.