MARIMUTHU GOUNDAN Vs. MUNIAMMAL

JUDGEMENT

(1.) The first point urged in this appeal is that the decision in O. S. No. 937 of 1910, as regards joint ownership of Mottaya Goundan and Ayyammal, is not res judicata between the parties in this case. This point was given up by the learned vakil who argued the second ppeal before the learned Judge, but Mr. Krishnaswami Aiyangar presses it before us. In O. S. No. 937 of 1910, the minor grandsons of Mottaya Goundan, who are Defendants 1 and 2 here, brought a suit for possession of the property from Defendants 1 and 2 therein, one of whom claimed to be the lessee from Mottaya Goundan. The case of the plaintiffs was that the whole of the property belonged to Mottaya Goundan and that Mottaya Goundan had released his right in their favour and that they wore therefore entitled to possession of the property. Defendants 1 and 2 set up the title of third persons.

(2.) In second appeal this Court observed that the suit property was the joint property of Ayyammal and her husband Mottaya Goundan and that Mottaya. Goundan's possession should be deemed not adverse to his daughters who were co-owners with him (Ayyammal being dead), and directed the District Munsif to make the daughters of Ayyammal parties to the suit and pass a decree in accordance with law. In obedience to this direction, the District Munsif made the three daughters of Ayyammal defendants to the action and passed a decree for joint possession in favour of the plaintiffs and Defendants 3 to 5. Defendants 3 to 5 remained ex parte. The question now is whether this decree operates as res judicata in the present suit as regards the question of joint ownership of Mottaya Goundan and Ayyammal.

(3.) What is urged by Mr. Krishnaswami Aiyangar is that the question as to joint ownership was not raised in the case as Defendants 3 to 5 were practically plaintiffs in the action and there was no contest inter se between the plaintiffs and that therefore this question could not be said to have been decided in that suit. The High Court found that Ayyammal and her husband, Mottaya Goundan, wore joint owners of the property and that Mottaya's possession was possession on behalf of the daughters who were co-owners. As regards this point, the District Munsif could not have given a decision against the view of the High Court, but the plaintiffs could have put forward the plea that though half of the property was the property of Ayyammal, yet by an arrangement evidenced by Ex. V, which was brought about by Mottaya Goundan, the daughters were debarred from claiming any interest in the plaint proprty. Such a defence was open to them and that defence was not put forward. The question is whether Expl. 4 to Section 11 of the Civil Procedure Code governs this case. We think that it was not only open to the plaintiff in O. S. No. 937 of 1910 to have put forward that plea but they ought to have put it forward in order to meet the case that the daughters were co-owners with regard to the suit property. Under Section 11, Expl. 4, any matter which might and ought to have been made a ground of defence or attack shall be deemed to have been a matter directly and substantially in issue. Seeing that the plaintiffs claimed title to the whole of the suit property in O. S. No. 937 of 1910, they ought to have put forward the contention that the daughters were precluded from claiming any share in the property by virtue of the arrangement come to subsequent to the death of Ayyammal. They not having done so, this point must be deemed to have been decided against them and therefore the decision in O. S. No. 937 of 1910 operates as res judicata as regards the question of joint ownership of Mottaya Goundan and Ayyammal's daughters.