S RANGANATHAM CHETTY ALIAS NARAYANASWAMY CHETTY Vs. SLAKSHMIAMMAL

JUDGEMENT

(1.) In this case the suit was dismissed by Mr. Justice Bakewell on the ground that the plaintiff s claim was barred as res judicata by reason, of the decision in a suit which was brought in 1902 in the City Civil Court. The plaintiff appeals. The question arises in this way. In 1902 a man who had obtained a decree against the present plaintiff and the present plaintiff s father in the Small Cause Court brought a suit in which the present plaintiff s father was the 1st defendant, and the present plaintiff s step-mother was the third defendant. In that suit he claimed two relie fs. The main relief claimed was a declaration that a certain deed of sale which had been executed by the present plaintiff s father and which purported to be in favour of the present plaintiff and the present defendant was in fraud of creditors. He claimed by way of alternative relief that, if the deed of sale was held to be good, it should be declared that a quarter share of a certain house that is to say a half of the half share which was in dispute in that case and with which only the present suit is concerned, was the property of the present plaintiff and was available for the satisfaction of the decree which the plaintiff in the City Civil Court suit had obtained. The present defendant, who was the 3rd defendant in that suit, pleaded that she was the absolute owner of the half share mentioned in the plaint in that suit. At that time the present plaintiff was a minor and he was then represented by a guardian who was an officer of the Court. The guardian in his written statement put the plaintiff to proof of the allegations mentioned in the plaint. At the trial of the suit, the Judge of the City Civil Court came to the conclusion that the deed of sale impeached by the judgment-creditor was good and the suit was dismissed. In dealing with the alternative claim put forward by the Judgment creditor the learned Judge held that under the deed of sale in question the plaintiff took no interest and that the interest in the property passed to the present defendant, the third defendant in that suit. The claim for alternative relief put forward by the plaintiff in that suit was the subject of a specific issue, and that issue only arose for determination in the event of the Judge of the City Civil Court holding that the deed of sale was good. The issue was in these terms whether the said half share is the absolute property of the third defendant and the 2nd defendant has no share in it." What the learned judge held. was. " Third defendant explains that as she was childless and as she took the sale deed when 1st defendant was seriously ill, 2nd defendant s name was also included in the document at her desire. This is quite probable. As the whole consideration for the sale deed passed from her, she is the absolute owner of the property, and 2nd defendant is not entitled to anything except what she may choose to give hereafter out of her free-will and affection". There was a decree passed in accordance with that judgment. The decree starts with a recital that the plaintiff sues for a declaration that a half or alternatively (the word alternatively does not appear in the decree ) one-fourth share in the under mentioned house etc., is liable to be attached". But in the operative part of the decree all that is said i$ that the suit is dismissed, and in view of the decision of the City Civil Court Judge that may well be the proper form of the decree, because he held first that the deed of sale was good and secondly that all the interest under the deed of sale did not in whole or in part become vested in the Judgment-debtor but in a third party. In that state of things it may well be that the decree, was correct in omitting the adjudication as between the 2nd and 3rd defendants.

(2.) Then in 1912 the plaintiff brought the present suit, and in this suit he asks for a declaration that he is entitled to the whole of the house in question. Half of the house passed to the plaintiff by inheritance from his father. The other half of the house was the subject matter of the suit in 1902. Alternatively the plaintiff claims in the present suit that if the deed of sale which was impeached in the suit of 1902 is valid, he may be declared entitled to one- fourth share in the plaint house, under the said sale deed the quarter share, that is half of the half share in question in the former suit going to the present defendant under the sale-deed. I think I have stated all the facts necessary for the consideration of the question whether the learned Judge was right in holding that the present claim is barred as being res-judicata. It is no doubt that it is an adjudication as between the defendants. It is not contended on behalf of the appellant, and it could not be contended, that in no case can an adjudication as between co-defendants operate as res-judicata of a question subsequently raised between the co- defeadants. The test which the learned Judge applied in dealing with the question was the test which was laid down in the case of Cottingham v. Earl of Shrewsbury (1843) 67 E.R. 530; 3 Hare 627 and the test was thus defined. " If a plaintiff cannot get at his right without trying and deciding a case between co-defendants the court will try and decide that case and the co- defendants will be bound. And the learned Judge referred to Bombay, Calcutta and Allahabad decisions in which that test was approved. We may also refer to a Madras decision, (Yuauf) Sahib v. Durgi (1907) I.L.R. 30. M. 447 in which the question arose and was considered by this Court. There, the learned Judges held that the decision in a previous suit on a matter raised and actively contested between co-defendants in such suit will operate as res judicata in a subsequent suit in which such co-defendants are arrayed as plaintiff and defendant. It seems to me, that, applying either test, the test in this case is satisfied and the result is that the decision does operate as res judicata. Applying the test laid down in Cottingham v. Earl of Shrewsbury (1843) 67 Eng. Rep. 530 the City Civil Court Judge could not have decided the claims put forward by the plaintiff without deciding the case as between the co-defendants. The first claim was that the deed of sale was bad; alternatively if the deed of sale was good, the plaintiff took an interest in the property. As between the 2nd and 3rd defendants in that suit the contest was this. The son said " I take a half share the other defendant, the mother said I take the whole of the house . That was the contest raised in the mother s pleadings. I think the plaintiff s claim in the suit of 1902 in the view the Judge took as to the validity of the sale deed could not be decided without an adjudication as between the two defendants and that there was a contest between the two defendants. It has been suggested that the guardian who appeared for the present plaintiff in that suit was negligent. But I fail to see how it could be said that there was negligence on the part of the guardian in that suit. For one thing, he was an officer of the Court. He had no interest in the matter. There have been suggestions of collusion and negligence; but it seems to me, so far as the record of the earlier suit is concerned, there is no evidence of it, and I think the learned Judge was right in declining to frame an issue in this suit as to whether there had been negligence on the part of the guardian. I think as the learned judge points out in his judgment, that the plaintiff in the earlier suit in effect represented the interest of the 2nd defendant in that suit. It seems to me that the interest of the plaintiff in that suit and the interest of the 2nd defendant was really the same, because the plaintiff, in the view of the deed of sale being good, was interested in showing that there was a fund in the hands of the 2nd defendant available for the satisfaction of his (the Judgment-creditor s) judgment debt. It was the interest of the 2nd defendant to make out that he possessed a fund out of which his (the Judgment-debtor s) judgment debt could be discharged. At any rate in any view the 2nd defendant in the earlier suit cannot be heard to say that it was not his interest to have it established that he had proprietary rights in the house in question and I do not feel called upon to speculate as to whether the family were or were not agreed that so long as the judgment creditor was ousted the other question was comparatively unimportant. I think the guardian of the 2nd defendant in the earlier suit took the right coarse. If the negligence on the part of a guardian can be established, I see no reason why, on the principle of the decision in Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 C. 8 the negligence could not be relied upon as an answer to a plea of res judicata.

(3.) Another point which was taken was there was no right of appeal from the adjudication as between the two defendants and it was argued that, if there is no right to appeal, the plea of res judicata cannot be relied on. I am not sure this is so. It has at any rate been held that the fact that the defendant in the previous suit had no right of appealing against the decision because the suit was dismissed will not affect the operation of the bar, when such defendant having the right to be joined as a plaintiff chose to contest the suit as a co-defendant". See Yousif Sahib v. Durgi (1907) I.L.R. 30 M. 447 But I do not think it necessary to discuss this question, because it seems to me that here the present plaintiff had a right of appeal from the adjudication as between him and his co-defendant in the suit of 1902. I think the test is, was he aggrieved by that adjudication ? It seems to me impossible to contend that he was not aggrieved, his case being that he had a share in a certain house, the adjudication being that he had not. His grievance was that by reason of the finding that he had no share in the suit house the judgment debt could not be discharged out of the share of the house which he said was his house. The question was considered in a case which is reported in Kristna Chandra Goldar v. Mahesh Chandra Saha (1905) 9. C.W. N. 584. I find this observation of Mr. Justice Woodroffe "In some cases a suit may be dismissed as against the defendant and yet the latter may have a right of appeal. It is not, because the suit is formally dismissed as against the defendant that no appeal lies, but because such dismissal is ordinarily not merely no grievance but an actual benefit to the defendant. There is in such cases nothing to complain of. If there is, then notwithstanding that the suit is dismissed against him he may appeal."