SANKARAMAHALINGAM CHETTI Vs. MUTHULAKSHMI

JUDGEMENT

(1.) The plaintiff sued her brother and brother s sons in this suit for the recovery of certain immoveable property to which she claimed title under deeds of sale and gift from her father. Questions were raised at the trial whether these deeds represented real or sham transactions and whether the defendants had a good title by adverse possession for over the statutory period. The suit has been decreed in the plaintiff s favour, both the lower courts holding that the defendants are debarred from raising these defences by the decision in a prior suit O.S. No. 232 of 1910 on the file of the Court of the District Munsif of Koilpatti which makes these matters res judicata.

(2.) O.S. No. 232 of 1910 was a suit brought by the assignee of a mortgage to enforce a sale of the suit properties upon a bond executed by Muthulakshmi, who was 1st defendant in that suit and is the plaintiff in this suit. That suit was dismissed on the finding that the mortgage was a sham transaction devoid of consideration. The defendants in this suit were defendants 2 to 4 in that suit and they raised similar contentions when O.S.No. 232 was tried. Muthulakshmi then contended that they were unnecessary parties to that suit. The District Munsif M.R. Ry. M.A. Krishna Row, who tried that suit, was rightly of opinion that they were unnecessary, as they claimed under a title adverse to both the mortgagor and the mortgagee vide Jaggeswar Dutt v. Bhuban Mohan, Mitra (1903) I.L.R. 33 C. 425 and he proposed to strike their names off the record. Nevertheless, as they insisted on continuing on the record, we weakly allowed them to remain.

(3.) Now it is argued that the lower Courts were wrong in treating the two findings in O.S. No. 282 of 1910, viz., (1) that the deeds of gift and sale to Muthulakshmi from her father were, real and genuine, and (2) that these defendants had not acquired any title by adverse possession, as res-judicata, seeing that the finding as to the enforceability of the mortgage bond was sufficient to justify the dismissal of the mortgagee s suit, and that although the mortgagee could and did appeal and the appellate court also decided these questions against the defendants, the result of the suit could not have been otherwise even if the findings on these two issues had been the other way. I think that this contention is right and tha the judgments of the Lower Courts cannot be supported on this ground. The decision in Venkata Raju v. Ramanna (1913) I.L.R. 38 M. 158 quoted by the Djstrict Munsif has no bearing on the facts of this case, and it was an error to suppose that O.S. No. 232 of 1910 could have been dismissed on the decision of the two issues upon which the contentions of the defendants 2 to 4 failed. Following Vasudeva Kullayya v. Narayanappa (1911) 9 M.L.T. 450 and Jadav Chandra Sarkar v. Kailsh Chandra Singh (1916) 21 C.W.N. 693, I am of opinion that there can be no res-judicata as between co-defendants in cases where it is not necessary to decide upon their conflicting interests in order to give the plaintiff the relief appropriate to his suit.