Hariram and T. Dakshinamoorthy vs P.V. Doraisamy Chettiar and Others

S. Ashok Kumar, J.—The plaintiff who has failed before the courts below has preferred this Second Appeal.

The gist of the case is as follows:-

The suit property originally belonged to one Chinnanna Aachari. He mortgaged the same on 1.3.1938 under Ex.A.1 o one Venkatarama Chetty

and he did not redeemed the property. Venkataraman Chetty had three sons namely Palanisamy, Duraisamy and Kuppusamy. All were residing as

a Hindu joint family. Palanisamy is the first defendant. The plaintiff are the sons of Duraisamy. The defendants 3 and 4 are the sons of Kuppusamy.

According to the plaintiffs, after the death of Vnnkataraman Chetty the property devolves on the family members equally. Palanisamy being the

elder son denied title of the plaintiffs. The plaintiffs by birth as co parceners obtain the /29th share right to the property. Hence the suit for partition

and other reliefs.

The first defendant filed a written statement which was adopted by defendants 5 to 8 contending that the plaintiffs have suppressed the earlier

litigations and have come to the court with unclean hands. The first defendant by sale deed dated 24.11.1941 redeemed the property from the

mortgagor Chinnanna Aachari for a sale consideration of Rs. 1500/= and he is the absolute owner of the suit property. The second defendant

instigated his sons to file the suit and the plaintiffs have no right over the property. The suit filed in O.S.2/68 for partitio of 2/3 share by Duraisamy

and Kuppusamy has been dismissed and the appeal filed against the same has also been dismissed. Subsequently the first defendant filed O.S.636

of 1974 to take possession of the property and obtained a decree. Against the same the plaintiffs preferred appeal in A.S.1008/77 and the

S.A.No:46/76 before the High Court have been dismissed. Thus the plaintiffs'' case is hit by the principle of res judicata.

The Trial Court accepting the case of the first defendant dismissed the suit holding that the plaintiffs'' case is hit by the principle of res judicata

and the first defendant is the absolute owner of the property and the plaintiffs are not getting any right by birth. On appeal the first appellate court

also concurred with the findings of the trial court. Hence the second appeal by the plaintiffs.

At the time of admission, the following substantial Questions of Law were framed by this Court:-

i) Whether in law the courts below have not overlooked that on the date of filing the suit O.S. No. 636/74, the respondents'' title was extinguished

in view of their failure to file a suit for redemption before 1.9.1973, an thus the mortgagees have become the owners by operation of sections 27

and 61 of the Limitation Act?

(ii) Whether in law the Courts below are right in holding that the suit is not maintainable u/s 47 of CPC without considering that the question of bar

u/s 47 will not arise for the plaintiff''s claim is based on their independent right as members of joint family on the basis of failure of the defendants to

redeem the property?

(iii) Whether in law the courts below are right in overlooking the dictum reported in AIR 1932 Mad 550 to the effect that the plaintiffs'' right to

share in the mortgage money as joint owners was not claimed through their father and their claim is not barred by the principles of res judicata?

Learned counsel appearing for the appellant mainly submitted till 1973 i.e, within 30 years of the mortgage period, the first defendant has not

redeemed the property and the subsequent payment will not give him any right to the property, because by that time the property automatically

goes back to the three sons after the demise of Venkatarama Chetty. Thus the plaintiffs are entitled to a share as co parceners by birth. But this has

not been appreciated by the courts below. According to the learned counsel for the appellant in 1938 the property had been mortgaged and that

time the principle of coparcenership prevailed and by birth the plaintiffs are entitled to the share in the ancestral property. The deposit of Rs.

1000/= in the appeal proceedings by the first appellant will only confine in respect of his 1/3rd share and thus when the mortgagor failed to redeem

the property it will vest with the mortgagors and thus 2/3rd share continuously belonging to other sharers. Both the courts have wrongly interpreted

the earlier high Court orders.

Under Ex.A.1, dated 1.9.1938 the property had been mortgaged. Under Ex.A.2, dated 24.11.1951, the first defendant purchased the property

by paying Rs. 1500/= to Chinnanna Aachari with a right to recover possession of the property. Thereafter the second defendant and third

defendants filed O.S. No. 2/68 claiming 2/3rd share in the suit property which was dismissed holding that the first defendant has purchased the

property and he is the absolute owner of the property. An appeal preferred against the same in A.S. No. 21/70 has also been dismissed.

Thereafter as per the judgment in the appeal, the first defendant filed O.S. No. 636/74 for recovery of possession which was also decreed. The

appeal preferred against the same in A.S.46/76 was also dismissed. The second appeal in S.A.No;1008 of 1977 before the High Court was also

dismissed. Thus as rightly held by the courts below, the plaintiffs have come to the court with unclean hands namely they have suppressed the

earlier proceedings relating to the same subject matter.

Concededly the plaintiffs have not preferred any review petition regarding the finding that the first defendant shall deposit Rs. 1000/= and take

possession of the suit property. Suppressing all the facts, the plaintiffs have filed the suit only on the ground that they are entitled to a share as a

coparceners. Even in the earlier litigations the courts have held that the suit property is not a Hindu Joint Family Property. The first appellate court

negatived the contention raised during the course of argument with regard to limitation i.e to redeem the property within the period of 30 years and

thereafter it vests with all the family members.

As rightly held by the first appellate court the case of the plaintiff is hit by the principle of res judicata as the subject matter of the property had

been dealt with by the Courts twice and the plaintiffs are bound by the dictum rendered therein. In State of West Bengal Vs. Hemant Kumar

Bhattacharjee and Others, it has bee held that decision of court having jurisdiction even if wrong is binding between the parties till it is set aside.

The plaintiffs could have filed a review petition contending that the deposit of Rs. 1000/= will confine only with respect to his share and it will not

bind the other shares. But they have not done so. On the other hand now it has been contended that the High Court''s judgment has been

misinterpreted by the trial court. Thus having allowed to become the matter to reach finality, the claim of co-parcenery or limitation for redemption

of the property cannot be entertained as they are hit by the principle of res judicata since the same have already been decided by the courts below.

In the circumstances, the substantial questions of law are answered against the appellant and the second appeal is dismissed. No costs.