Decided on November 22,1900

KUNHUNNI Appellant


Arnold White, C J - (1.) In this case the appeal was heard by a Bench of two Judges. As the two Judges did not concur in varying or reversing the decree appealed against, the decree was a (firmed in accordance with the provisions of Section 575 of the Civil P. C..
(2.) On behalf of the respondents a preliminary objection has been taken that, in this state of things no appeal lies under Art. 15 of the Letters Patent. The precise point was raised before the Calcutta High Court in Sir Gridhariji Tickait Vs. Purushotum Gossumi I.L.R., 10, C. 814, and that Court held that in such circumstances an appeal lay under Art. 15 of the Letters Patent. I agree with the judgment of the Calcutta High Court and with the grounds upon which it is based. Apart from authority, I should have been prepared to hold that we have jurisdiction to entertain the appeal. Assuming the effect of Section 575 of the Code of Civil Procedure is to substitute the concurring Judge for the senior Judge as was held in Appaji Bhivrav V/s. Shivlal Khubchand I.L.R. 3, B. 204 , it seems clear to me that a right of appeal was conferred by Art. 15 of the Letters Patent and that that right of appeal has not been taken away by any of the provisions of Section 575 either read alone or together with the provisions of Art. 36 of the Letters Patent. T think tho preliminary objection should bo overruled.
(3.) The question upon which the Judges of the Division Bench differed in opinion was whether the plaintiff's claim in the present suit is res judicata. The Subordinate Judge was of opinion that the plaintiff's claim was res judicata. This was also the view taken by Boddam, J. In my opinion the claim is not res judicata. The claim is that an. agreement which was entered in to on the 31 October 1889 between the plaintiff in O.S. No. 10 of 1887 (the 1 defendant in the present suit) and the defendant in the suit of 1887, who was the senior Ranee of the Kovilagam, by which the latter purported to bind herself and her successors to give maintenance to the 1 defendant after he had acceded to tho stanom and until he attained the 3 stanom was invalid. The plaintiff does not impeach the agreement in so far as it purported to give to the 1 defendant the right to maintenance up to the time when he acceded to the 5th. or lowest stanom. But he contends that the agreement, in so far as it purports to give to the 1 defendant the right to maintenance after his accession to the stanom, is not binding on the members of the Kovilagam. The agreement of compromise was not made the basis of a decree, but it was filed in Court and. the then plaintiff's suit was "struck off the file.";

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