M KUPPASWAMY CHETTY Vs. KUSALA RAMIAH

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Coutts Trotter in a suit brought by the purchaser, from the Official Assignee, of the right, title and interest of the insolvent, one Rathnavelu Chetty (1st defendant), in the suit "properties. The insolvent was adjudicated in October 1903 and in the course of 1104 there was some correspondence between the Official Assignee and the insolvent s brother, Kuppuswamy Chetty, the 3rd defendant in this case. The then Official Assignee did not press his claim to the property but subsequently in 1910 his successor, Mr. Branson, took a different view and sold the property by public auction to the plaintiff. Now in the appeal which was argued before us, (he right of the plaintiff to stand in the shoes of the insolvent, Rathnavelu Chetty, by virtue of his purchase from the Official Assignee has not been contested. Three points were taken, two of which do not appear to have been pressed before the learned Judge.

(2.) The facts as regards this case are that in 1896 and 1897, two Muchilikas, one Exhibit A and the second a more formal one, Exhibit B, were entered into by the members of the 1st defendant s family referring their disputes to an arbitration and empowering the arbitrators to divide all the. properties among the members of the family. The arbitrators divided the immoveable properties, allotting two shares to the 3rd defendant, Kuppnswamy Chetty, and one share to each of the other brothers and reserving certain other properties for the maintenance of the female members, and all the members of the family in Exhibit C signified their assent to this. The first objection raised by Mr. K. Srinivasa Ayyangar was, that as the partition was never completed according to the Muchilikas, -This was not a final partition even of these items of immoveable property. We think there is really no foundation for that contention, for, as was pointed out, it has teen held frequently that the parties to an arbitration of this kind are quite at liberty, if they like, to accept a partial partition and that a partition is binding on them.

(3.) The next objection taken by Mr. K. Srinivasa Ayyangar was that the suit was res judicata in. the 3rd defendant s favour. As I have said, the full partition contemplated by the Muchilikas was never carried out, and the 1st defendant, who appears from the evidence to have been a man of unbalanced mind--a conclusion which is also supported by the interpretation of the "learned Vakil for the respondent in this case--was induced to question the partition and instituted a suit, Original Suit No. 30 of 1900, the plaint in which is Exhibit E, really for a fresh partition. He was allowed to withdraw that suit with liberty to bring a fresh suit and he brought a fresh suit, Civil Suit No. 6 of 1901. If the plaint in that case be carefully examined it will be found that he did not sue, as the present plaintiff claiming under him sues, to recover these specific items of property. What he alleged against 2nd defendant in that suit and the 3rd defendant in this was that that defendant denied his (the plaintiff s) right to a partition of the suit properties as joint family property (see paragraph No. 10), and not that he was denying the plaintiff s right to these specific properties which the present 3rd defendant bad specifically admitted in his written statement in the previous case; and what he asked for was a fresh partition. He also asked "should this Honourable Court hold that there is still a legally subsisting reference, then effect may be given to the Muchilika dated 8th January 1897 and one or more arbitrates appointed by this Honourable Court and a decree passed in terms of the award that may be made." It really comes to this, that he asked for a fresh award by fresh arbitrators but did not ask in that suit for the possession of these specific items of immoveable properties. Therefore the subject-matter of the suit was not the same and it cannot be said that the question in this suit is res judicata as that suit was dismissed for default without leave to bring a fresh suit. That disposes of (two of the objections Urged by Mr. K. Srinivasa Ayyangar and leaves us to deal with the main question in the case, whether the suit was barred by limitation on the date when it was instituted.