IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 08.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.981 of 1993 1. P.Arumugham 2. P.Chidambaram .. Appellants vs 1. P.Balasubramaniam 2. Palaniammal 3. Vanchi Ammal 4. R.Muthusamy Chettiar (died) 5. Jayadevi 6. M.Ranganathan 7. M.Rajendran 8. V.Muthulakshmi 9. D.Mahalakshmi 10.G.Mallika .. Respondents Respondents 5 to 10 impleadedas party respondents vide order of court dated 25.1.2008 made in CMP.NO.3540/07 Appeal against the judgment and decree of the learned II Additional Subordinate Judge, Coimbatore passed in O.S.No. 509 of 1985 dated 18.08.1993. For appellant : Mr.S.V.Jayaraman, S.C. For Mr.G.Ravishankar For respondents : Mr.P.Veeraraghavan for R1 Mr.C.R.Prasannan for RR5 to 10 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal is focussed as against the judgement and decree dated 18.8.1993, passed in O.S.No.509 of 1985 by the learned II Additional Subordinate Judge, Coimbatore. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Heard the learned counsel appearing for the parties. 3. Tersely but broadly, succinctly but narratively, the case of the plaintiffs as stood exposited from the averments in the plaint could be portrayed thus: (a) One Periyapalaniappa Chetty had three sons, namely, the first plaintiff and the defendants 1 and 2 and two daughters, namely, D3 and D4, all born through his first wife Marudhayammal. The second plaintiff was his second wife. (b) Periyapalaniappa Chetty died on 16.4.1975, leaving behind the aforesaid two plaintiffs and defendants 1 to 4 as his legal heirs. The suit properties described in the schedule of the plaint belonged to the joint family. The plaintiffs and defendants 1 to 4 constituted the Hindu Joint Family and they have been enjoying those properties jointly. (c) The defendants, by exercising undue influence over Periyapalaniappa Chetty, purchased the land measuring an extent of 2.34 acres in Survey Nos.222/2 and 271 for a sum of Rs.9000/- from out of the joint family income. Defendants 1 to 4 tried to dispose of the land in Survey No.532 to an extent of 1.99 acre in favour of D5, R.Muthusamy Chettiar. Whereupon the lawyer's notice was sent by the second plaintiff, for which, the defendants replied with false allegations as though there was a partition of the lands and houses during the year 1962 itself among the co-sharers concerned. (d) Inasmuch as D5 purchased a portion of the suit property during the pendency of the suit from D1 and D2, who had no right to alienate the same, D5 has been added in the suit subsequently. After the death of Periyapalaniappa Chetty, D1, being the eldest son in the family, became the kartha of the family. He obtained the compensation amount of Rs.17,365/- from the Government in connection with the acquisition of the joint family land measuring an extent of 3.02 acres in Survey No.344/1 by the Government and he is willing for apportionment of the said amount among the members of the joint family. Despite the incessant demand made by the plaintiffs for https://hcservices.ecourts.gov.in/hcservices/ partition of the suit properties, the defendants were evading the same under one protext or other. (e) As per law, the first plaintiff and defendants 1 and 2 are entitled to 1/4th share each in the suit property, consequent upon the death of Periyapalaniappa Chetty, who had 1/4th share in the suit property. The said 1/4th share of Periyapalaniappa Chetty is to be apportioned among his wife and children. Accordingly, the plaintiffs prayed for partition and for mesne profits. 4. Per contra, denying and refuting, challenging and impugning the allegations and averments in the plaint, D1 and D2 filed the written statement, the pith and marrow of it would run thus:- The properties of the family were partitioned even 23 years anterior to the filing of the suit during the life time of Periyapalaniappa Chetty, who himself did not take any share for himself, as he was very old at that time; during the year 1963 itself, the first plaintiff got himself separated from the family, after getting his share, so as to say an extent of 3.30 acres in Survey Number 344 in Vadavalli Village and an extent of 6 cents of vacant land in the Western portion of the 4th Schedule of the plaint (the description is not found to be correct as per the facts available on record); the defendants were allotted with the lands in Survey No.558/A, 571/1 and 532/1 and the house properties described in items 1 to 3 of the II Schedule of the plaint; the defendants 1 and 2 were unmarried at the relevant time and they were living with their parents; as per the terms of the said partition, D1 and D2 started enjoying the agricultural lands on the Southern half and Northern half respectively; D1 was allotted with the Western half of the house property and D2 was allotted with the Eastern half of it; the said Periyapalaniyappa Chetty was maintained by D1 and their mother(P2) was maintained by D2; Only six months anterior to the filing of the suit, P2 joined with the first plaintiff in filing the suit; in fact, the parents relinquished their rights in favour of D1 an D2 as they were maintained by them only; the first plaintiff, after such partition, purchased house properties in his name and is enjoying the same, but he has not added those properties for being partitioned, in the suit; defendants 1 and 2 purchased an extent of 2.34 acres of agricultural land in Survey No.221 and 222/2 as per the sale Deed dated 21.6.1968, out of their own earnings; since the land in Survey No.344, which was allotted to the share of the first plaintiff was acquired by the Government, he received the compensation amount; separate patta books were also issued in respect of the respective sharers and they have been paying kist separately; the suit is barred by limitation and the plaintiffs prayer for incidental reliefs, including the mesne profits are untenable. Accordingly, the defendants prayed for dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 5. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs one Balasubramaniam was examined as P.W.1 and Ex.A1 to A13 were marked. On behalf of the defendants, the second defendant-Chinnappan was examined as D.W.1, and fourth defendant Vanjiammal was examined as D.W.2, and 15 documents were marked as Ex.B1 to Ex.B15. Ultimately, the trial Court decreed the suit and passed the preliminary decree allotting an extent of 7/24th share in favour of P1 and 1/24th share in favour of P2; granting liberty to the plaintiffs to initiate separate action to claim mesne profits. 6. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, D1 and D2 have preferred this appeal on the following grounds, the pith and marrow of them would run thus: (1) the trial Court erred in holding that the suit properties are the joint family properties, ignoring the oral partition, which was effected during the year 1963; (2) the trial Court should not have decreed the suit ignoring the plea of limitation; (3) the admission made by the first plaintiff in his deposition was not considered by the trial Court; (4) the factum of the first plaintiff having received the entire compensation amount from the Government in respect of the land acquired by the Government, which was earlier allotted to the plaintiffs in the oral partition, was not considered by the trial Court; (5) the trial Court failed to hold that the land in Survey Nos.222/2, 221/2 are the self-acquired properties of D1 and D2 as per Ex.A7. (6) the first plaintiff purchased two houses in his name and it was not his case that he purchased them from out of the income from his wife's properties and these facts have not been considered by the trial Court; (7) the lower Court had given undue weightage to Ex.B8 and Ex.B9 notices sent by the Survey Department during the year 1976; (8) Without any basis, Ex.B1 to Ex.B15 and the deposition of D.W.1 were discarded by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ (9) the recitals in Ex.A8-the partition deed, which emerged between D1 and D2 were wrongly considered by the trial Court along with the evidence of P.W.1. (10)the trial Court failed to hold that in any event, the said compensation received by the first plaintiff and the two houses purchased by him should also be treated as joint family property, for partition. Accordingly, they prayed for setting aside of the judgement and decree of the trial Court. 7. The learned counsel for the contesting respondents/defendants would raise the plea of res-judicata by presenting the memo of the first respondent to the effect that the common judgement and decree dated 18.8.1993 was relating to O.S.No.509 of 1985, on the file the Court of II Additional Sub- Judge, Coimbatore, which was filed by the plaintiffs seeking partition and O.S.No.337 of 1988, which was filed by the first plaintiff in O.S.No.509 of 1985 for injunction; the present appeal is focussed as against the portion of the common judgement and decree relating to O.S.No.509 of 1985, at the instance of defendants 1 and 2 therein; whereas, the same defendants herein filed appeal A.S.No.154/94 before the I Additional District Judge cum Chief Judicial Magistrate, Coimbatore, as against the portion of the said common judgement and decree relating to O.S.No.337 of 1988, and the said appeal was dismissed for default on 31.12.1996 itself. As such, the said judgement and decree dated 31.12.1996 passed in A.S.No.154/94 would operate as res-judicata for the appellants herein to prosecute this appeal. 8. Whereas, the learned counsel for the appellants would contend that the dismissal of A.S.No.154/94 by the District Court for default would in no way hamper the appellants herein to argue the appeal before this Court, as the said appeal, which was dismissed, was relating to O.S.No.337 of 1988, which was one for seeking bare injunction, and it was not a title suit. Both sides ultimately agreed that the objection based on res-judicata also could be decided along with the adjudication in the appeal. As such the following points emerged for consideration: (i) Whether this appeal is barred by res-judicata in view of the judgement and decree dated 31.12.1996 in A.S.No.154/94? (ii) Whether there was any oral partition among the family members during the year 1963 and shares allotted thereunder as contended by defendants 1 and 2? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether the suit is bad for partial partition? (iii) Whether the compensation amount received by the first plaintiff from the Government in respect of the land acquisition proceedings should also be subjected to partition along with the two houses purchased by him? and Whether the suit is bad for partial partition? (iv) What shall be the shares of the respective co-sharers? (v) What are the rights of D5 in having purchased certain items of the suit property from D1 and D2? (vi) Whether there is any infirmity in the judgement and decree of the trial Court? Point No.(i): The learned Senior counsel for the first respondent/plaintiff placing reliance on various precedents would develop his argument that if by way of a common judgement two suits are decided, out of which, two appeals are filed, then the disposal of one appeal would have impact on the adjudication of the other pending appeal. It is also his contention that the dismissal of the earlier appeal A.S.No.154/94(O.S.No.337 of 1988) by the First Additional-cum-Chief Judicial Magistrate, Coimbatore, for de-fault, would operate as res-judicata. 9. Whereas, the learned counsel for the appellants/D1 and D2 would submit that absolutely there is no scope for ushering in the principle of res-judicata in the facts and circumstances of this appeal, in fact the previous appeal, namely, A.S.No.154/1984 (O.S.No.337 of 1988) was dismissed for default and it was an appeal as against the decreeing of the suit O.S.No.337 of 1988, which was filed for bare injunction. 10. At this juncture, it is just and necessary to refer to the following decisions cited by the learned counsel for the plaintiff as under:- 82 L.W.425-KARTHIAN KONE, CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY V. BAGHYATHAMMAL CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY - an excerpt from it would run thus:- ". . . . . . . . . . In Rajlakshmi Desi v. Banamali Sen (3) their Lordships point out that the test of res judicata is the identity of title in the two litigations and that so long as the competency of the former court to try the subsequent suit cannot be denied, the general rule of res judicata applies. Even apart from this, the defendant Kartik Kone against whom the point was decided in the second appeal, sought to https://hcservices.ecourts.gov.in/hcservices/ have judgment of the Court reviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is difficult to see how a review application could at all have been maintained. The learned Judge in dealing with the review application pointed out that though the question was raised fo the first time in the second appeal, at the time of the hearing as objection was raised, and, as we said earlier, both sides argued the question, before the learned Judge rendered his decision in the second appeal. We may further point out that far from the observations of the learned Judge being in the nature of an obiter dicta, the actual decision on this point was incorporated in the decree in the second appeal, the clause of the decree reading thus: "That the first defendant (Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trust properties and the first defendant shall be at liberty to take appropriate steps to work out her rights to joint management by way of separate proceedings..." There is accordingly a decree embodying the decision of the Court and it seems to us that it can no longer be maintained that the observations are merely obiter dicta having no executable force. It is not open to Kartik Kone to question the decree unless he can say it is nullity which it obviously is not. In Kolu Nambiar v. Chathu Nambiar (4), this Court held that a matter could be in issue under S.11 of the Civil Procedure Code even though an express issue had not been framed. It would be in issue if the decision about it is necessary for the decree. They say further that if the finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter dicta. It follows that where the finding was incorporated in a decree, the position would clearly be otherwise. This has been emphasised in Sankara Mahalinga Chettiar v. Muthulakshmi (5), where it was held that though a finding might be unnecessary, yet if it is embodied in the decree, it will operate as res judicata." 11. The perusal of it would at once make the point clear that the aforesaid decision is not enuring to the benefit of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff and it is quite obvious that in the cited decision their Lordships clearly observed that if a decree embodies the decision of the Court, it can no longer be contended that the observations are merely obiter dicta, having no executable force. 12. Here in the judgement dated 31.12.1986, passed in A.S.No.154/94 by the I Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore, absolutely there is no such finding is found embodied relating to the title of any one over the suit property. The said injunction suit itself was an off shoot litigation, which was one for injunction. A bare perusal of the common judgement in O.S.No.509 of 1985 and O.S.No.337 of 1988 passed by the Sub Court, Coimbatore on 18.8.1993 would evince and evidence that only two issues were framed concerning O.S.No.337 of 1988 as under: (i) Whether the plaintiff is entitled to permanent injunction as prayed for?; (ii)To what relief the plaintiff is entitled to? 13. No common issues in these two suits were framed and decided. The said injunction suit O.S.No.337 of 1988 was filed by Balasubramaniam-the first respondent/plaintiff herein, even during the pendency of O.S.509 of 1985, which was filed by the same Balasubramaniam and his mother Palaniammal for the substantive relief of partition and consequential reliefs. Instead of filing a separate suit, namely, O.S.No.337 of 1988, for injunction, he could have very well filed an interlocutory application in the pending suit O.S.509/85 and sought for necessary relief. But he has not chosen to do so. In my considered opinion, the second suit, namely, O.S.337 of 1988, strictly speaking, was not at all maintainable and it was against the wholesome public policy that there should not be any multiplicity of proceedings. The relief of injunction obtained in O.S.No.337 of 1988 in stricto senso, is interim in nature as pending adjudication in O.S.No.509 of 1985 only it could be operative and the ultimate decision in the partition suit would have direct legal impact on the said injunction. It is therefore crystal clear that a virtual interim injunction cannot be put forth as one constituting as resjudicata as against the proceedings in the connected partition suit. 14. The learned counsel for the plaintiff would contend that there need not be any specific issue framed and even then the said decision would operate as res-judicata. 15. I am at a loss to understand as to how the decision in an injunction suit, where the title to the suit property cannot be gone into in the judgement to be rendered relating to it, could be treated as resjudicata as against the person, who seeks remedy in a different proceedings based on title. The substantial issue is as https://hcservices.ecourts.gov.in/hcservices/ to whether the suit properties are joint family properties or not and whether there was already any oral partition or not and these issues are found framed in the partition suit O.S.No.509 of 1985 and relating to that suit, an d for adjudication of those issues alone, now the present appeal is pending. In such a case, by no stretch of imagination, it could be taken that the dismissal of the said appeal by the District Judge could be taken as one operating as res-judicata as against the appellants in this appeal. 16. The learned counsel for the plaintiff also relied on the decision of the Honourable Apex Court reported in AIR 1966 SCC 1332-SHEODAN SINGH, V. DARYAO KUNWAR, excerpts from it would run thus:- (10a). Re.(i): The judgment of the Additional Civil Judge shows that there were five issues common to all the four suits, and the main point raised in these common issues was whether Harnam Singh and his adopted son Ram Kishan were joint with the appellant and his father and whether Ram Kishan died in a state of jointness with them. This main question was decided against the appellant and his father and it was held by the Additional Civil Judge that Harnam Singh and Ram Kishan were separate from the appellant and his father and that Ram Kishan did not die in a state of jointness with them. On this view of the matter, the Additional Civil Judge held that the respondent, Smt Daryao Kunwar, succeeded to Ram Kishan on his death and was entitled to the separated share of Ram Kishan and the appellant and his father had no right to the property by survivorship. In the face of the judgment of the Additional Civil Judge which shows that there were five common issues in all the four suits, the appellant cannot be heard to say that these issues were not directly and substantially in issue in Suits Nos. 77 and 91 also. Further this contention was not raised in the High Court and the appellant cannot be permitted to raise it for the first time in this Court. Besides the question whether these common issues were directly and substantially in issue in Suits Nos. 77 and 91 can only be decided after a perusal of the pleadings of the parties. In the paper book as originally printed, the appellant did not include the pleadings. Later he filed copies of the plaints an application. Even now we have not got copies of the written statements and replications, if any of Suits Nos. 77 and 91. In the https://hcservices.ecourts.gov.in/hcservices/ circumstances we must accept from the fact that the judgment of the Additional Civil Judge shows that these five issues were raised in Suits Nos. 77 and 91, that they were directly and substantially in issue in those suits also and did arise out of the pleadings of the parties. We therefore reject the contention that issues as to title were not directly and substantially in issue in Suits Nos. 77 and 91. 12. Then it is urged that all the four suits were consolidated and decided on the same day by the same judgment and there can therefore be no question that Suits Nos. 77 and 91 were former suits and thus the decision as to title in those suits became res judicata. It is not in dispute that the High Court’s decision in the appeals arising from Suits Nos. 77 and 91 was earlier. Reliance in this connection is placed on the decision of this Court in Nahari v. Shankar. That case however has no application to the facts of the present case, because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances this Court held that as there was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time- barred did not affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Court’s decision in the two appeals arising from Suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail. 13. Re.(iv): This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of Suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was https://hcservices.ecourts.gov.in/hcservices/ dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of Suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration