Ganesan Pillai v. Subramanyan and others — 1957 DIGILAW 186 (MAD)

Judgement RAJAMANNAR, C. J. :- The plaintiff in O. S. No. 59 of 1949 in the Court of the Subordinate Judge of Sivaganga appeals against the dismissal of his suit filed in the following circumstances. He is the paternal grandson of one Arumugam Pillai. Arumugam Pillai was one of the three sons of Subramaniam Pillai, the other two being Muniyandi Pillai and Muthukumaru Pillai. Muniyandi had three grand sons and they are defendants 1 to 3. Their mothers are respectively defendants 8, 4 and 10. Arumugam Pillai had an only son, Thothan Pillai alias Muniyandi Pillai, and the plaintiff is his son. The 11th defendant is his widow. Since the filing of the suit the first defendant died and his widow was added as his legal representative as the 12th defendant. 9th defendant is an alienee and the fifth defendant is the daughter of the deceased eldest son Muniyandi Pillai and the sixth defendant is the daughters son of Arumugam Pillai. The plaintiffs mother had instituted in the same court, that is, the court of the Subordinate Judge, Sivaganga, a suit, O. S. No. 2 of 1943, for partition and separate possession of a half share as belonging to her and to her son, the plaintiff, on the footing that Muniyandi Pillai and Arumugham Pillai formed members of a Hindu joint family, the other brother, Muthukumaru Pillai having separated from the family earlier. In that suit a preliminary decree was passed by the trial Court as prayed for by the plaintiff and his mother. Defendants 1 to 4 in this suit, who were also defendants in that suit, filed an appeal to this Court against that decree, A. S. No. 178 of 1944. This appeal was substantially allowed and the suit was dismissed except as regards properties in which alone the share of Arumugams branch was admitted by the defendants. The High Court remanded the suit back to the trial Court for partition by metes and bounds of such properties only. This appeal was substantially allowed and the suit was dismissed except as regards properties in which alone the share of Arumugams branch was admitted by the defendants. The High Court remanded the suit back to the trial Court for partition by metes and bounds of such properties only. The present suit was filed for the following reliefs : (1) for setting aside of the decree in A. S. No. 178 of 1944 on the file of this court and (2) for a division of plaint mentioned properties and other properties which may be held to belong to the joint family and delivery of plaintiffs halt share to the plaintiff of the agricultural properties, and one-fourth share in the non-agricultural properties, (3) an account from the first defendant and for other incidental reliefs. The ground on which the plaintiff sought to set aside the decree in A. S. No. 178 of 1944 was that there was gross negligence on the part of his mother who acted as his next friend. Several pleas in defence were raised, one of them being issue 3 : Is the decree of the High Court in A. S. No. 178 of 1944, liable to be set aside on the ground of gross negligence of plaintiffs next friend as contended in the plaint?" Subsequently another additional issue was framed which ran thus : "Whether the suit is barred under S. 11, Explanation VI, C. P. C. by reason of the dismissal of the prior suit O. S. No. 2 of 1943, of this Court on appeal in A. S. No. 178 of 1944, on the file of the High Court, Madras?" This additional issue was tried as a preliminary issue. The learned Subordinate Judge held in favour of the defendants on this issue and dismissed the suit. Hence this appeal. 2. In our opinion this appeal must be allowed. It is impossible to uphold the decision of the learned Subordinate Judge that the suit is barred under S. 11, Explanation VI. Sec. 11 embodies the rule of res judicata. The learned Subordinate Judge held in favour of the defendants on this issue and dismissed the suit. Hence this appeal. 2. In our opinion this appeal must be allowed. It is impossible to uphold the decision of the learned Subordinate Judge that the suit is barred under S. 11, Explanation VI. Sec. 11 embodies the rule of res judicata. Explanation VI runs thus : "Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." So far as we were able to follow the argument of Mr. M. Natesan, learned counsel for one of the respondents, who tried to support the decision of the learned trial Judge, Explanation VI is sought to be availed of on the following reasoning. In the prior suit plaintiffs mother claimed a half share in the suit properties on behalf of both herself and her son. She was a member of the family consisting of herself and her minor son and she practically represented that family. In her own right as a sort of manager of the family she was entitled to represent the minor also. In the absence of fraud and collusion the decree will bind both of them. Assuming that there was gross negligence, the result would be as if the minor was not represented, that is to say, that the minor was virtually not a party. Therefore the mother could be said to be litigating bona fide in respect of a right claimed in common for herself and her son and the son who is a person interested in such right shall be deemed to claim under his mother and would be barred by the rule of res judicata which would bar his mother. 3. The flaw in this argument, is that it completely overlooks the main relief in this case. To apply the rule of res judicata, there should be a matter directly and substantially in issue in the former suit which also arises in the subsequent suit. In the present suit the main issue is whether the decree of the High Court in A. S. No. 178 of 1944, is liable to be set aside on the ground of gross negligence of the plaintiffs next friend. In the present suit the main issue is whether the decree of the High Court in A. S. No. 178 of 1944, is liable to be set aside on the ground of gross negligence of the plaintiffs next friend. Now there is no issue similar to this in the prior suit. Indeed there could not have been. We fail to understand, therefore, bow the bar of res judicata would prevent a trial of this issue. When the plaintiff is challenging the validity of a particular decree, it is idle to refute his claim by pleading that very decree as res judicata. If the plaintiff were to succeed on issue 3, the decree in the prior suit would be non est. Therefore there would be nothing to justify the application of the rule of res judicata. It is too late in the day to contend that a minor is not entitled to file a suit to set aside the decree in a prior suit to which he was a party represented by his guardian or next friend on the ground of gross negligence of his guardian or next friend. That right has been again and again recognised by this Court. That right cannot certainly be taken away by the application of the rule of res judicata. The short answer, therefore, to the contention of Mr. Natesan is that the present suit instituted for setting aside the decree in A. S. No. 178 of 1944, is not barred, under Sec. 11, C. P. C. because this matter namely, whether the decree is liable to be set aside, was not in issue in the prior suit. When the substantive provision of Sec. 11 is itself not applicable to the case, there is no need even to refer to Explanation VI which pre-supposes that the other requirements of Sec. 11 are fulfilled. 4. In this view it is really unnecessary to refer to the cases cited by Mr. Natesan. We shall, however, briefly deal with them to show how none of them has any bearing on this aspect of the question, namely, the application of the rule of res judicata. In Profulla Kumar v. Baharilal, AIR 1936, Cal. 247 (A) certain minors sued to set aside a decree in a prior suit to which they were parties represented by their mother as guardian. In Profulla Kumar v. Baharilal, AIR 1936, Cal. 247 (A) certain minors sued to set aside a decree in a prior suit to which they were parties represented by their mother as guardian. It was held that they were not entitled to set it aside, not because of the bar of res judicata but because the learned Judge found that though the mother did not actually defend the suit, the defence was adequately conducted by the minors uncle who was also a party. Therefore the defect in the representation of Ae minors d d not affect the merits of the case and in such circumstances the minors were not entitled to have the decree set aside merely by reason of a technical defect, namely, the failure of the mother to put up a defence. We fail to see how this decision can have any application to the present case. It is not suggested that though the plaintiffs mother did not put forward material pleas, somebody else did so and it can be said that the minor was not really prejudiced by the failure of the mother to put forward the minors case properly. In Mt. Mustafai Begum v. Raghuraj Singh AIR 1937 All 108 (B), a suit was brought by two brothers of the plaintiff in that case for the cancellation of a prior decree and this suit was brought in the interests of a joint family consisting of not only the two brothers but also two other brothers including the plaintiff. The plaintiff himself was impleaded as a defendant under the guardianship of his mother. The relief claimed was in the interests of all the brothers. It was held that the decision in that suit would bind the minor also and the minor was not entitled to subsequently challenge the decree on the ground that a proper guardian had not been appointed on his behalf. It will be noticed that the prior suit was brought not by the minor plaintiff but by two brothers of his and all that was held was that a decree in that suit brought by his brothers would bind the minor brother also. There was no allegation that the brothers did not conduct the suit properly. The decision in Rameshwar Persad Singh v. Ram Bahadur Sing ILR 34 Cal 70 (PC) (C) is entirely beside the point. There was no allegation that the brothers did not conduct the suit properly. The decision in Rameshwar Persad Singh v. Ram Bahadur Sing ILR 34 Cal 70 (PC) (C) is entirely beside the point. In that case the appellant sued to set aside a decree passed in a former suit which had been in terms of a compromise entered into on his behalf by the adult members of a joint family of which he was an infant member. The High Court had held that the compromise was valid and binding in the circumstances. On appeal the Judicial Committee were of opinion that the plaintiff could not obtain any other relief prayed for without first setting aside the compromise decree and further held that there was no ground for setting it aside. It was found that the adult male members of the family, who were presumably competent to judge their own interests, had taken part in the compromise and assented to it and the Court had pronounced that it was for the benefit of the minor. There was no ground, therefore, for setting aside the compromise decree. In Mt. Sudehaiya v. Ramdass, AIR 1957 All 270 (D), A, a minor, was living under the guardianship of B, and B as a reversioner brought a suit on behalf of himself and A f r the cancellation of a gift deed which had been executed by the widow but failed in the suit. It was held that A, could not be permitted to file another suit on the same allegation. The principle underlying Explanation VI to S. 11 C. P. C. was applied and, if we may say so, quite rightly. There was no question in that case of gross negligence on the part of the guardian which entitled the minor to set aside the prior decree. It is not necessary to deal at any length with the decision in Krishnamurthi v. Chidambaram, ILR 1946 Mad 670: ( AIR 1946 Mad 243 ) (E), in which the well-established proposition was again reiterated, names, the father as manager of the family re-presented all the coparceners and a decree passed against the manager binds all the members of the family including the minor members. There is no such decree in this suit The decision in Rangamma v. Narasimhacharyulu, 31 Mad LJ 26: (AIR 1917 Mad 457) (F) has no bearing whatever. There is no such decree in this suit The decision in Rangamma v. Narasimhacharyulu, 31 Mad LJ 26: (AIR 1917 Mad 457) (F) has no bearing whatever. It was laid down that the fact that in the prior suit in addition to a right claimed in common, the plaintiff claimed his individual right did not prevent the application of Explanation VI to S. 11 C. P. C. There, an agraharamadar sued to establish certain joint rights of himself and other agraharamdars of the village and also his exclusive right of way over the sites in suit. It was held that the decree in that suit operated as res judicata and barred the subsequent suit brought by two other agraharamdars particularly for the same relief. We have referred to these cases cited before us. But really no question of the application of S. 11 C. P. C. arises in this case, because, as we have pointed out, the main issue in this case, namely, whether the decree in A. S. No. 178 of 1944 on the file of this court is liable to be set aside on the ground of gross negligence by the plaintiffs next friend, never arose for decision in the prior suit. Indeed it could not have formed the subject matter of the prior suit. 5. The appeal is allowed and the dismissal of the suit is set aside. The suit is reminded for trial on all the issues other than the additional issue. Respondents 1 and 3 will pay the appellant the costs of this appeal. The costs of the lower court will abide the result. As we have remanded the suit, no court-fee is payable on this Memorandum of Appeal. Suit remanded.