SARKAR, J. - (1.) THE only question argued in this appeal is whether the appellant's suit for possession of certain lands is barred by res judicata. The trial Court held that it was not barred, but on appeal the High Court of Madras took a contrary view. Though the question involved is only one, the case has a long history which has to be set out in some detail.
(2.) THE appellants are the trustees of a trust created in 1891 by one Vaithilingam Pillai who appears to have possessed substantial properties. On 10th September, 1891, the day after the trust had been created, Vaithilinga who was-childless, adopted one Kalyanasundaram as his son. An agreement relating to the adoption, appears then to have been entered into by, Vaithilinga and Chidambaram Pillai, the natural father of Kalyanasundaram, then a minor, on the latter's behalf. Thereafter on 12th September, 1891, a deed of partition was executed by Vaithilinga and Chidambaram, as the guardian of Kalyanasundaram appointed under an instrument executed in the meantime by the Vaithilinga as the adoptive father of Kalyanasundaram. Under this deed, the larger part of the properties left with Vaithilinga after the creation of the trust which were considerable went to Kalyanasundaram and about 100 acres were retained by Vaithilinga for the maintenance of himself and his junior wife Kamakshi. Vaithilinga had another wife from whom he had been separated for a long time and with her we are not concerned. It will be be necessary to return to that part of the deed under which, the 100 acres were retained by Vaithilinga later. On 15th June, 1904, Vaithilinga died. Both Kamakshi and Kalyanasundaram survived him. Soon thereafter viz., on 21st September, 1904, Kalyanasundaram who had then attained majority filed a suit being O.S. No. 54 of 1904 against Kamakshi and another person with whom we are not concerned, claiming possession of the 100 acres of land which had been left with Vaithilinga under the partition deed as earlier stated, after setting apart about 20 acres for Kamakshi's maintenance. Kamakshi's defence to the suit appears to have been that under the deed she was entitled to be in possession of the entire 100 acres for her life after the death of her husband. The Subordinate Judge of Kumbakonam in whose Court the suit had been filed held that Kamakshi was entitled to retain for her life 50 acres out of the 100 acres of land in dispute and that the other 50 acres should go to Kalyanasundaram on Vaithilinga's death. The learned Subordinate Judge directed a partition of the land equally between Kalyanasundaram and Kamakshi. Kamakshi filed an appeal against this judgment and Kalyanasundaram a cross-objection. Both these were however dismissed. The decree of the learned Subordinate Judge having thus been confirmed, the lands were partitioned and possession of a half share thereof was delivered to Kalyanasundaram. The remaining 50 acres were left in the possession of Kamakshi. The dispute in the present case concerns the lands that came to Kamakshi's share under the decree of the learned Subordinate Judge. The judgment in Suit No. 54 of 1904 was delivered on 7th July, 1905, and it is this judgment which is said to operate as res judicata barring the present suit. We pass on now to the facts concerning the appellantsï¿ 1/2 claim. It appears that certain proceedings took place, the exact nature of which does not appear from the records, for framing a scheme in respect of the trust created by Vaithilinga. Presumably prior to these proceedings first Vaithilinga and after him Kalyanasundaram had been acting as trustees of the trust and had been in possession of the trust properties. It will have been noticed that the trust properties were quite separate from the 100 acres with which Suit No. 54 of 1904 was concerned. On 28th August, 1923, by a decree passed in the proceedings earlier referred to, a scheme for the management of the trust was framed. The appellants are the present trustees under the scheme. On 2nd April, 1928, a decree for Rs. 30,000 was passed in the same proceedings in favour of the then trustees and against Kalyanasundaram. This perhaps was in respect of a claim by the trustees against Kalyanasundaram for mesne profits. The decree last mentioned created a charge on some of Kalyanasundaram's properties for the due repayment of the decreed amount. It also provided that the amount would be payable in certain specified instalments. The decretal sum not having been paid, the trustees put up certain properties of Kalyanasundaram to Court sale in execution of the decree. The sale actually took place on 2nd April, 1931 and it was confirmed on 7th April, 1933. Lot No. 3 of the properties sold was described as the lands which were being enjoyed by Kamakshi for her life and in which Kalyanasundaram had a vested interest. These were the 50 acres of which Kamakshi had been hold entitled to be in possession for her life under the decree in Suit No. 54 of 1904. The sale certificate stated that the sale was subject to the rights of Kamakshi to enjoy the properties in lot No. 3 for her life. Symbolical delivery of possession of the 50 acres of land comprised in lot No. 3 of the sale certificate as mentioned earlier was given to the trustees on 12th February, 1935. The lands however continued in the possession of Kamakshi as indisputably she was entitled to be in possession for her life. What had been sold was Kalyanasundaram's vested interest in the 50 acres. Kalyanasundaram died sometime in 1950 and Kamakshi on 30th November, 1954. On 24th June, 1955, the then trustees filed the present suit against Kalyanasundaram's widow and daughter and certain other persons for possession of the 50 acres of land which had been in Kamakshi's possession till her death and also for mesne profits, basing their claim on the purchase by them of Kalyanasundaram's vested interest in them which had fallen into possession on Kamakshi's death. The only defence to this claim made in the High Court and in this Court is that the Subordinate Judge in his judgment in Suit No. 54 of 1904 had held that on Kamakshi's death the 50 acres in her possession would go to her representatives and that this judgment operated as a bar to the present suit. Besides, this defence other defences were raised in the trial Court but they were not pressed in the High Court or in this Court.
(3.) THE partition deed so far as material is in these terms: ï¿ 1/2The lands 15 velis, 3 mahs, 60 cents shall remain in the enjoyment of Vaithilingam Pillai for the livelihood of the said Vaithilingam Pillai as well as his junior wife Kamakshi. After the lifetime of Vaithilingam Pillai and Kamakshi these lands shall fall to the enjoyment of Kalyanasundaram Pillai.ï¿ 1/2 We are not concerned with the rest of the deed and all references in this judgment to the deed will be understood as a reference to this part of it only. The 15 Velis, 3 mahs and 60 cents of land, which in English measure would come roughly to JC0 acres were the lands which were the subject-matter of Suit No. 54 of 1904. It is not disputed that on proper interpretation, under the deed, Kalyanasundaram acquired a vested interest in these 100 acres. The only question is whether notwithstanding the correct interpretation of the deed, the judgment in Suit No. 54 of 1904 operates as res judicata. To put it more precisely: Did that judgment hold that Kalyanasundaram did not have a vested interest in the lands and if it did, was that finding necessary for the decision of the suit.;