SHAH JAWAHARLAL Vs. SHAH CHHAGANLAL

JUDGEMENT

(1.) THIS second appeal has been referred to a Division Bench by Ranawat J. , as it involves an important point of law relating to res judicata and has come before us for hearing.

(2.) FOR the proper understanding of the case, the following pedigree table is given: ***********

(3.) THE view that we have taken is also supported by a number of authorities. THE leading case on the subject is Guddappa v. Tirkappa, ILR 25 Bom 189. THE plaintiff in that case had instituted previously suit No. 19 of 1895 against the defendant of that case by which they had prayed to be confirmed in possession of the land in suit and for an injunction on the ground that they were the sole surviving members of the joint family. THE suit was dismissed. THE plaintiffs were deprived of the possession of the property for which they had brought the suit and they filed another suit for the recovery of possession alleging their title by heirship. This was held as res judicata. We may quote the following observations in the judgment of Jenkins, J. : - " Now that the plaintiffs could in the former suit have alleged, in the alternative, their title as heirs, is conceded; equally, as it appears to me, they ought to have so alleged it. It was forbidden by no rule of pleading; on the contrary, it was necessary for the complete and final disposal of all questions as to the plaintiff's title. . . . . In my opinion, the plaintiffs ought to have pleaded their heirship as a ground of title; it existed at the date of the former suit; it is not suggested that they were ignorant of it, nor has any tenable ground of excuse been suggested before us. THErefore, I hold that Section 13 (now Section 11) applies. " Learned counsel for the respondent has argued that this authority has been dissented by the Madras High Court in the case of Ramaswamy Ayyar v. Vaithinatha Ayyar, ILR 26 Mad 760. THE ground of dissent is that the cause of action which accrues by right of survivorship is quite distinct from the cause of action which would accrue to a party as a reversionary heir on the death of the deceased's widow and as the two rights accrue from totally different causes of action, explanation 2 is not applicable. We may with utmost respect say that the question to be considered while applying explanation No. 2 to Section 11 is not the nature of the causes of action accruing to the plaintiff for making a particular claim, but whether he should have put forward his claim on the basis of several causes of action at one and the same time, That case was considered by Wallis J. in Masilamania Pillai v. Thiruvengadam Pillai, ILR 31 Mad 385 and it was held that the decision in that case was no bar to arriving to the conclusion that a person, who sued to recover the property as a reversionary heir of the deceased on an alleged relationship to the deceased is, when such suit is dismissed, debarred from bringing any suit for the same property as a reversionary heir under a different kind of relationship.