CHETTIAR ALIAS VAIRAVAN CHETTIAR; ARAMANAI RANGASAMI CHETTIAR; GOVINDASAMI CHETTIAR (DEAD); KOLANDAVELU UDAYAN; SRINIVASA AIYAR; VAITHILINGA MUDALIAR; T V GOPALASAMI MUDALIAR Vs. VAITHILINGA MUDALIAR; VAITHILINGA MUDALIAR; SRIRANGATHANNI; VAITHILINGA MUDA

JUDGEMENT

(1.) These are appeals from the decree of the Subordinate Judge of Negapatam in a suit brought by the plaintiffs to recover the suit properties as next reversioners of the last male owner, whose widow died in 1902. The defendants relied on long possession under an adoption made by the widow in 1862 and pleaded that the suit was barred by limitation and res judicata. The Subordinate Judge overruled both pleas and gave the plaintiffs a decree against which several of the defendants have appealed. We propose to deal, in the first place, with Appeals Nos. 206 and 207 of 1908 filed by the 7th and 8th defendants, who are alienees from the heirs of the alleged adopted son. The main facts are not now in dispute, and may be briefly stated. Arunachala, the last male owner, died in 1849 leaving a widow, Chokkammal. In 1862, Chokkammal adopted one Alagasundara, a younger brother of her deceased husband. This adoption was afterwards impeached on the ground that Alagasundara was not given in adoption by his father who was dead at the date of the adoption and that consequently it was bad. Alagasundara was put in possession of the properties which had not been already alienated, with the exception of certain properties which were retained by Chokkammal for her maintenance, and continued in possession till he died in 1864 leaving a widow, Murugathal, the 4th defendant. Murugathal adopted one Thiyagaraja who enjoyed the properties until 1876, when he appears to have been dispossessed by Arunachala s widow, Chokkammal. He died in 1881 leaving a widow who died in 1882. On her death his adoptive mother Murugathal, the 4th defendant, became his heiress and instituted Original Suit No. 9 of 1887 on the file of the Court of the Subordinate Judge of Negapatam against Chokkammal to recover the properties of which she had dispossessed him in 1876. In this suit it was held that the adoption on which Murugathal relied was invalid, on the ground that Alagasundara was an orphan at the date of his adoption in 1862, but that he and his heirs had acquired a title by adverse possession and a decree was accordingly given in her favour and affirmed by the High Court in Appeal No. 114 of 1890.

(2.) In this state of things Mr. A. Krishna-swami Aiyar for the appellants, the 7th and 8th defendants, alienees from the 4th defendant, contended that the suit was barred both by limitation and by res judicata, and also desired to raise the question of estoppel, but as there was no issue raising the question of estoppel as regards the properties concerned in these appeals and as the point was not taken in the Court below, we declined to go into it.

(3.) The question of res judicata was argued at great length on both sides and many cases were cited, but we think it may be disposed of very briefly. The suit of 1887 was a suit against the widow Chokkammal and was decided against her, as we understand the case, on the ground that she had been out of possession for more than twelve years from 1862 when she took Alagasundara in adoption and put him in possession, and that consequently her right to sue to recover possession became barred under Act IX of 1871 and her title became extinguished at the same time under Section 29 of that Act, and thereupon Alagasundara s heirs who were in possession acquired a title as against her, and became entitled to recover the properties from her within twelve years of her dispossessing them in 1876. In these circumstances, no question arose or can be said to have been decided in that suit as to the right of her husband s reversioners to sue after her death. The case is distinguishable from Hurt Nath Chatterjee v. Mothurmchun Goswami 20 I. A. 183 : 21 C. 8 : 17 Ind. Jur. 481 : 6 Sar. P. C. J. 334 : 10 Ind. Dec. (N. S.) 638. in which, after the death of the widow Pearimoni, Sampurna, one of the reversioners, brought a suit to recover possession of the estate from one Mothoor Mohan which was dismissed on the ground of limitation, a decision which their Lordships held to be res judicata in a subsequent suit by another reversioner against the same Mothoor Mohun. This decision, as we understand it, proceeded on the ground that Sampurna when she sued after the death of the widow to recover, as reversioner to her deceased father, the properties in possession of the defendant represented the estate, and a decision that was necessary for the decision of that suit was res judicata when the same question arose again in a suit by a subsequent reversioner.