VEDA KRISHNASWAMI MUDALIAR Vs. VEDA MALAI MUDALIAR

JUDGEMENT

(1.) Plaintiff is the appellant. The suit out of which this appeal arises was instituted by the plaintiff to recover the amount which according to him, though the defendant had agreed to pay at a partition between him and the defendant, the plaintiff had ultimately to pay. The defendant denied the partition alleged by the plaintiff and contended that the claim was barred by res judicata by reason of the decision in O.S. No. 325 of 1926. Both the lower Courts accepted the contention of the defendant and dismissed the plaintiff's suit.

(2.) In this second appeal the question for consideration is whether the plaintiff's suit is barred by reason of the decision in O.S. No. 325 of 1926.

(3.) To appreciate the arguments it is necessary to state the facts relating to O.S. No. 325 of 1926 and the decision thereon. The plaintiff and tin defendant are brothers. The plaintiff was the 1 defendant and the defendant was the 2nd defendant in that suit. There the mortgagee sought to recover the mortgage debt from the joint family and made the 1 and 2nd defendants parties to the suit. The mortgage deed was executed by the 1 defendant, i.e. the present plaintiff, as manager of the family. The plaintiff's case was that the two brothers were members of an undivided Hindu family and that the debt was binding on the joint family. Having stated the basis of his claim in this manner he added in the plaint at the end of para. 7 Further, as it appears that the defendants effected partition subsequent to the suit mortgage and some of the properties covered by the suit mortgage have fallen to the second defendant's share, the second defendant has been impleaded herein. The 1 defendant in that suit contended that there was a partition between himself and the 2nd defendant and the particular debt was allotted for payment to the 2nd defendant's share and he was not, therefore, liable. One of the issues in the case was whether the partition alleged was true or not. It was found that the partition was not proved. So far as the plaintiff in that suit was concerned he did not get any relief against both the defendants. The relief which he got was limited to the 1 defendant's share of the family properties, the ground being that the debt for which the mortgage was executed was not binding on the joint family. His relief was, therefore, limited to the 1 defendant's share. Apparently after the decree the 1 defendant had to, pay the debt and having paid it he has instituted the present suit to recover the amount from the 2nd defendant alleging that according to the partition already referred to, the present defendant who was the 2nd defendant in the prior suit was the person liable to pay. The point for decision is whether the question of partition which was found not to have been proved in that case is res judicata in the present suit.