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Judgment
Subramonia Iyer, J.—This is a Plaintiff''s appeal, his suit O.S. No. 6 of 1110 filed in forma pauperis on 20-10-1105 having been dismissed by the District Judge of Kottayam by his judgment and decree dated 4-11-1946.
The Plaintiff sought to set aside a deed of gift dated 1-10-1093 (Ex. XXX) granted by one ayyappan Narayanan in favour of his wife and children who are Defendants 7 to 15. The donces gave a possessory mortgage of the properties on 20-10-1096 (EX. VII) and afterwards on 22-1-1103 sold them to Defendant 6.
The ground on which relief was sought is that Ayyappan Narayanan was not competent to make the gift because the properties did not belong to him as he stated in the gift deed but they belonged to the tarwad known as Mangalath, or Mangalath Kunnapilll whereof he was the karnavan. The defence mainly was that Ayyappan Narayanan was the sole owner of the concerned properties because they were his self-acquisitions.
There was also a plea that Ayyappan Narayanan belonged to the Kunnappilli tarwad which had no community of interest with Mangalath. There were prior adjudications upon the question which were contended to bar the trial of the suit on account of the rule of res Judicata. The Court below found that the Plaintiff was barred by the rule of res judicata from bringing the action and for that reason as also for other reasons dismissed the suit.
The main point urged before us is that the present claim is free from the bar of res judicata. The prior judgments held up in bar of the present suit are Exs. IX, X and LI. The suit in which the judgment, Ex. IX, was rendered was O.S. 105 of 1093 on the flies of the Kottayam District Court. That was a suit by a member of the Plaintiff''s tarwad who is the first Defendant in the present suit to remove Ayyappan Narayanan from management of the tarwad.
Among the grounds alleged to sustain that relief was the execution of the gift deed impeached in this suit. Defendant 1 died during the pendency of the suit in 1096. The Plaintiff who was next in age continued the suit in so far as it related to the setting aside of the gift deed executed by the deceased first Defendant and recovery of properties comprised therein. The defence there as here was that Ayyappan Narayanan was the owner of the properties they being his self-acquisittons and also that Ayyappan Narayanan belonged to the Kunnappilli tarwad of which he was the sole surviving member and that tarwad had no community of interest with Mangalath.
Ayyappan Narayananhad effected certain alienations of other properties. Some of those were impeached and were sought to be set aside by some Junior members of the Plaintiff''s tarwad in O.S. No. 128 of 1100 also on the file of the Kottayam District Court. Against the decrees dismissing the suits, A.S. Nos. 643 of 1104 and 120 of 1105 were filed before the erstwhile Travancore High Court.
The appeals were disposed of by a common judgment, Ex. X. The finding of the trial Court that Ayyappan Narayanan belonged to Kunnappilli which had no community of interest with Mangalath was confirmed by the High Court and the appeals were dismissed. Another litigation in which the same question arose was.O.S. 76 of 1101 of the Kottayam District Court which was a suit filed in the Munsiff''s Court but transferred to the District Court to be tried along with O.S. No. 105 a of 1093.
Exhibit LI dated 21-3-1109 is the judgment of the District Court. The finding recorded in that judgment is the same as the one in the other suits. Prima facie the aforesaid adjudications would operate as res judicata and would bar the present it suit. To get over the plea the Plaintiff urged in the plaint that the litigations which ended in the aforesaid judgments were not properly conducted and that the adjudications therein were the result of collusion between the parties. If collusion is established the operation of the rule of res judicata under Explanation 6 to Section 11 can no doubt be got over.
But the onus of establishing collusion to vitiate the judgment is on the party alleging it. The learned Judge observes in his judgment that there was only the interested testimony of the Plaintiff in proof of that allegation which could not be believed. The result is there was no collusion proved. Learned Counsel for the Appellant urges before us that apart from the evidence of the Plaintiff there is internal evidence afforded by the judgment itself to indicate that it was the result of collusion. To substantiate this argument he referred to Ex. IX where it is stated.
Learned vakil for the Plaintiff conceded at the time of final hearing that the two branches ceased to have community of interest before 1070 and contended that there was a re-union effected between the parties in the year 1076.
On the evidence this concession of learned Counsel was one that was inescapable. By the Conclusion, however, counsel was not giving up his case because he was attempting to resuscitate it on Anr. ground which in his view had been established. The attitude of learned Counsel evidenced by the above sentence can in no view be characterised as indicating collusion. It is advocacy of a very good order to admit What cannot be got over and try to escape by appropriate means.
Another ground on which the operation of Ex. IX to bar the present suit is sought,to be got over is that the present case is based on a case of reunion which was not set up in the earlier litigation. An attempt was made to introduce that plea by amendment which was not allowed. It is, therefore, contended that Explanation 4 is inapplicable to the present case, The question whether the Mangalath and Kunnappilli tarwads had community of interest between them related to the year 1093 which was the date of impugned gift deed.
The plea in O.S. 105 of 1093 was apparently that the tarwad was throughout Joint. An udam-pady of the year 1076 which was marked Ex. E in that case which is Ex. XXXII in the present case was relied upon for the purpose of establishing the continued existence of an undivided tarwad. Want of community of interest between the two tarwads was found in that case on account of the conduct of the two tarwads for a period of 30 years from 1040 to 1070.
In the present case that conduct is adverted to and it is alleged that should any inference be possible therefrom it is negatived by subsequent conduct terminating in the Udampadi of 1076 indicating reunion. The present plaint does not admit that there was a disruption of the tarwad at any time and that there was a reunion thereafter. The contention of learned Counsel for the Appellant is that though the plea of reunion now raised in this suit could have been raised in the earlier suit it need not have been raised because it was destructive of the plea of continued existence of an undivided tarwad for all time.
Reliance was placed by him on the decision of the Madras High Court in Sri Sri Sri Ramachandra Deo, Maharaja of Jeypore (dead) and Others Vs. Sutapalli Ramamurthy and Others, . If the position taken in the subsequent suit is destructive of the one taken in the earlier suit, a contention may be raised that though he might have included it in the earlier one it cannot be said that he ought to have done so to attract the application of Explanation 4 of Section 11. But the facts, here are different. As already stated, both the plaint in the present as also in the earlier litigation alleged the continued existence of an undivided tarwad.
Reference was made to the conduct of the members from 1040 to 1070 from which in the earlier litigation a partition and cessation of community of interest was presumed by Court and in answer to the possibility of such an inference it is urged that subsequent conduct effected whatever effect there might have been for the previous conduct and there must be considered to have been a reunion. We consider that the evidence to establish the present case would be the same as the evidence to establish the earlier case. The evidence of conduct subsequent to 1070 including the udampadi of. 1076 would lead to the inference of the continued existence of a tarwad. as undivided.
It will also be evidence of a reunion should there have been either a disruption or an attempt at disruption at an earlier time. If the case that is now set up in the present plaint had been set up in the earlier one there would have been no conflict as it may co-exist as an alternative case and the one will not destroy the other and the evidence to establish the one would be the evidence to establish the other as well. In our Judgment, Explanation 4 to Section 11 applies and bals the present claim as res Judicata.
Another ground on which learned Counsel seeks to escape the operation of the earlier adjudications is that under law the presence on record of all the major members of the tarwad is necessary in order to confer jurisdiction upon Court to decide the status of the tarwad. Reliance is placed upon 18 Trav LR 252 (B) and 24 Trav LR 1 (C). In a later case of the same High Court reported in 30 Trav LR 251 at p. 253 (D) referring to the aforesaid two earlier decisions the learned Judges say posting the question:
Whether, when a suit has been bona fide litigated in the Court of first, instance between a body of junior members seeking to remove him on the one side and the karnavan resisting his removal on the other and one party has lost, it is open to that party to seek to recommence the whole litigation by objecting in appeal that one or more Junior members had not been impleaded in the Court below.
In other words, is the presence before the Court of every single Junior member by any rule of substantive or adjective law so essential that the whole body of the remaining members including the karnavan are'' incompetent to carry on a suit for the removal of a karnavan? We can find no principle or precedent for such a proposition. On principle we can find no distinction between such a suit and other suits like those for cancellation of alienations by the karnavan, in which the conduct of the karnavan is called in question.
In both classes of cases the remedy, which the Plaintiffs seek, is sought on behalf of the tarwad and not on behalf of the Plaintiffs individually, It Is well settled that in suits for cancellation of alienations'' some of the Junior members may sue on behalf of tho entire tarwad and that decree mado In such cases will bind all the members, whether actually impleaded or not.
With respect we follow the opinion in the last case and in our judgment it is not necessary in order to render an adjudication binding upon a tarwad chat every member thereof should be on record in the action, however, useful and wholesome such a procedure might be.
The last point urged by learned Counsel for toe Appellant is that Defendant 6 alienee is estopped from impeaching the Plaintiff''s title to the properties on account of the fact that in the year 1072 he had taken a hypothecation of these properties from Ayyappan Narayanan and Defendant 1 In the present case (Ex. II). The argument is that the mortgagee is estopped from challenging the title of the mortgagor. The principle Relied upon is what is embodied in Section 115, Indian Evidence Act which enacts:
When one person has, by his declaration, act or omission intentionally caused or permitted Anr. person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
This section has obviously no application here. If the Plaintiff wants to redeem the hypothecation he is at liberty to do so but he cannot get the property because he did not give it to Defendant 6 Further the estoppel, assuming it exists, is only in the matter of resisting the suit if it has to be fought.
The rule of res judicata which we have first discussed bars the Plaintiff''s suit and renders it liable to be dismissed in limine. Defendant 6 need not defend on the merits a suit which cannot be tried. In the view that we take the adjudications evidenced by Exs. IX, X and LI operate as res Judicata. No other question therefore arises and the result is the appeal shall be dismissed with costs.