MADAPPA Vs. BASAVIAH

JUDGEMENT

(1.) The plaintiff has brought a suit for partition by metes and bounds of the plaint schedule properties, which consist of three items with a view to ascertain the share therein of defendant 1 and to allot suit item 1 which is a house,, to the share of defendant 1, so that the plaintiff who has purchased the same from defendant 1 by a sale deed dated 6-7-1943 might get it. After that sale defendants 2 to 4 who were all then minors sued the plaintiff in O.S. No. 110/ 44-45 for a declaration that that alienation by defendant 1 their father was not binding on their three-fourths share in that item. That suit was decreed in their favour and then they filed a second suit O.S. No. 182-/47-48 for separation and delivery of possession of their share which had been so declared unaffected by the alienation. The plaintiff subsequently filed the present suit O.S. No. 72/48-49 for a general partition with a prayer as above. The Munsiff who heard the suit held that, the suit was not maintainable and was barred by the earlier. suit O.S. No. 182 of 47-48 on the principles of "res judicata'. On appeal the Subordinate Judge confirmed that judgment and the plaintiff has come up in second appeal.

(2.) The plaintiff's suit was filed during the pendency of O.S. No. 182/47-48. The plaintiff made 'an application for the two suits being tried together. His request was not granted and the suit O.S. No. 182/47-48 was decreed without reference to the present suit. It is urged before us by Mr. Ramdas, learned counsel for the Appellant, that the Courts below were in error in dismissing the plaintiff's suit altogether and that his case is fully covered by the decision of this Court in --'Narasimhaiah v. Chikkathimmaiah', AIR 1954 Mys 115 (A). In that suit on similar facts it was held that the alienee's subsequent suit for general partition was not barred by 'res judicata' by reason of an earlier suit for partial partition brought by the sons of the alienor. It was pointed out in that case, that an alienee could not insist that a suit for partial partition, to recover his own share by a coparcener, which he is entitled to bring, should be converted into one for general partition, the remedy of the alienee in such a case being to bring a suit for general partition and to ask that if the circumstances of the case permit the property sold to him may be allotted to his vendor's share and -consequently to himself.

(3.) Mr. Gopalaswamy Iyengar, learned Counsel for the Respondents, has sought however to distinguish that case. He urges that in the present case the rights of the sons to hold the share which they had won through declaration in. O.S. No. 110/ 44-45 had been finally allotted to their share in O.S. No. 182 of 47-48, that that share in item 1 had become their separate property and that the effect of that decision could not be whittled down or negatived by making a decree in the present suit reallotting that share to the plaintiff. He has also urged that the plaintiff should have got the two suits tried together or at least got a direction made in O.S. No. 182/47-48 that the re-allotment therein would be subject to the decision, is the present suit, and that having failed to do so he cannot be heard to complain. He has in this connection referred to such a direction made in --'Sowrimuthu v. Pachia Pillai', AIR 1926 Mad 241 (R) and -- 'Kandaswami Udayan v. Velayutha-Udayan', AIR 1926 Mad 774 (C). For the argument that the share allotted in the above circumstances becomes the separate property of the sons he has referred to a passage in Mulla's Hindu Law, 1952 Edn., page 320. That passage is based upon the decision in AIR 1926 Mad 241 (B). And it is followed by a passage that such a share would continue as joint if the relief granted to the non-alienating coparceners is made conditional on their assenting to the results of a suit for general partition which the alienee may offer to bring, and reliance is placed on -- 'Ramkishore Kedarnath v. Jainarayan Ramrachhpal', 40 Cal 966 (PC) (D) and -' Hanmandas Ramdayal v. Valabhdas Shankar-das', AIR 1918 Rom 101 (E). The share allotted to a non-alienating coparcener is, according to that text, his separate, property as between him and the alienating coparcener, but not as between him and his male issue. On the same page the equitable-right of a purchaser on partition has been described thus: