Periya Muniya Goundan and another vs Ramaswamy Goundan and another

Rajamannar, C.J.—The petitioners are the plaintiffs in S. C. S. No. 850 of 1951 on the file of the District Munsif''s Court of Erode. They

and the second defendant in the suit are the sons of the first defendant. The defendants in this suit filed O. S. No. 616 of 1948 in the same Court

for partition of joint family properties. In the plaint, they stated that there were no out standings due to the joint family. The present plaintiffs,

petitioners, who were defendants in that suit, stated that there were two out standings due to the family, namely, a sum of Rs. 300 lent to one

Marimuthu Goundan and a sum of Rs. 100 lent to one Muniappa Goundan on promissory notes. The defendants herein deposed in the prior suit

that no amounts were due to the family from the said Marimuthu and Muniappa on the two promissory notes alleged by the present plaintiffs. One

of the issues in the suit was, what are the out standings due to the family. As the only evidence on record was the evidence of the plaintiffs in that

suit, that the alleged out standings did not exist, they were not included among the out standings particle between the members of the family. So

nothing was mentioned in the decree eventually passed in that suit. Subsequently, this suit has been filed on the allegation that the above two debts

were due and owing to the family and that the defendants herein had collected the said amounts and the plaintiffs were entitled therefore to their

share of the amounts so collected. One of the pleas raised on behalf of the defendants respondents was that this question was concluded by the

application of the principle of res judicata. It is not necessary to mention the other pleas for the purpose of this civil revision petition. The learned

District Munsif held that the present suit was barred by res judicata. Hence this revision by the plaintiffs. The District Munsif was undoubtedly right

in applying the rule of res judicata to the case. In the prior suit for partition, there was an issue as to the out standings due to the family which

should be partitioned between the coparceners. The plaintiffs therein alleged that there were no out standings. The defendants therein who are the

plaintiffs here definitely alleged that there were two out standings. They, however, did not adduce any evidence as they well might have. On the

other hand, the plaintiffs therein (defendants herein) deposed that there were no such out standings. The Court must be deemed to have accepted

the plaintiff''s evidence, inasmuch as these two out standings were not included in the partition decree. I fail to see how there can be any escape

from the bar of res judicata.

Learned Counsel for the petitioners cited certain decisions in which it has been held that if there had been omission of any property from a prior

partition owing to mistake or fraud, then a second suit might be maintainable for the item so left out and in case one of the members of the family

has collected such a debt due to the family, the other members of the family might be entitled to a share of amount so collected. Even a brief

examination of the facts of each of these cases shows that the facts in the present case are totally different. Here is a case where in the prior

proceedings the existence of these two out standings was definitely asserted and denied and a decree was passed without including these out

standings. There is also no question of fraud, because the present plaintiffs were apparently fully aware of the existence of these promissory notes.

It is not as if the defendants had concealed deliberately their existence. As the learned District Munsif rightly remarks, the petitioners could well

have examined the debtors in respect of these promissory notes, as they did now.

I shall very briefly refer to the decisions cited by the learned Counsel for the petitioner, though none of them has any bearing whatever on the

facts of this case. In Pathi Gandappa v. The Official Receiver, Bellary (1946) 2 M.L.J. 557-58 L.W. 565., where there was a question of manse

profits and interest, which was not decided in a prior proceeding, the learned Judges came to the conclusion that it was the intention of the parties

to have the question of manse profits and interest decided at a later stage. Obviously, on that finding, there could be no bar of res judicata. In the

present case, it surely cannot be said that it was the intention of the parties to have the question relating to the two debts decided in another suit. In

Jogendra Nath Roy and others Vs. Baladeb Das Marwari and others ., by a mistake of parties, which was shared by the Commissioner appointed

to make a partition, a certain portion of the property was omitted from the report and the final decree did not deal with the lands comprised in that

portion, it was held that the effect of the decree was to leave unaffected the joint title and possession of the parties in the lands omitted in the

decree, and that such lands may be partitioned in a subsequent suit at the instance of one of the parties. That was not a case where one party set

up a case that certain items were particle and the other party denied that claim, and the decree did not take into account such items. That was a

case where the parties proceeded under a mistake. Lachtman Singh v. Sanwol Singh 1 All. 543 was a case of fraudulent concealment, In the

present case, there was no question of any concealment, because the petitioners herein as defendants specifically pleaded that these two out

standings were to be partitioned. Doraiswami v. Subramania 41 Mad. 183=6 L.W. 784 (F.B.) is totally irrelevant. There is no scope for the

application of the rule in S. 396 of Mulla''s Hindu law, 11th Edn., namely, where a portion of the joint family property had been excluded by

mistake, accident or fraud, such portion continues to be the joint property of the family, and it must be divided amongst the persons who took

under the partition. The decision of the District Munsif is right and the civil revision petition is dismissed with costs.