Srinivasan and others vs V. Mathrubutham and others

Kailasam, J.—This is an appeal by the minor petitioners whose petition for leave to sue in forma pauperis for partition of suit properties and

allotment of 3/8th share therein to them was dismissed by the lower Court. The petitioners are sons of the first defendant. The second defendant is

the brother of the first defendant. The first defendant filed a suit O.S. No. 60 of 1950, against the second defendant for partition and separate

possession of his half share in the properties. That suit was dismissed, and an appeal to the High Court against the dismissal of the suit was

withdrawn in pursuance of a memo filed by the parties. The present suit is filed by the minor petitioners for partition and allotment of their 3/8th

share in the properties, on the ground that their father, the first defendant, and his brother, the second defendant, were members of a joint family.

Two questions were raised in the petition for leave to sue in forma pauperis. The first was whether the petitioners were paupers and the second

was whether the suit was barred by res judicata. On the first point the lower Court found that the petitioners were paupers. On the second point it

held that the suit was barred by res Judicata. Against the decision of the lower Court, the present appeal is preferred to this Court.

Mr. P. Sherfuddin, the Learned Counsel for the appellants, submitted that the decision in the suit instituted by the father of the minor petitioners,

the first defendant, without including the minor sons as to nomine parties would not operate as res judicata. He also submitted that the father acted

in a manner prejudicial to the rights of the minors in withdrawing the appeal after receiving some money from the second defendant. He further

submitted that the Court below ought not to have gone into the question whether the suit is barred by res judicata in the petition for leave to sue in

forma Pauperis. I am unable to accept any of these contentions. The Privy Council in Lingan Gowda v. Basan Gowda 25 L.W. 789 790 (P.C.)

held that, where the leading member of the family was acting in a prior litigation on behalf of minors in their interest, the decision arrived at in the

prior litigation would operate as res judicata in a subsequent litigation by or against any of the members of the family. The Privy Council observed

that

in the case of an undivided Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and

over again and each infant to wait till he becomes of age and then bring an action, or bring an action by his guardian before, and that in each of

these cases, therefore, the Court looks to Explanation 6 of S. 11, C.P.C., to see whether or not the leading member of the family has been acting

on behalf of the minors in their interest.

In the present case though there was a suggestion on behalf of the petitioners that the father acted against their interest, there was no prayer that

the judgment and decree in the previous litigation should be set aside as the father acted fraudulently. The mere statement that the father had not

acted in the interests of the minors will not have the effect of nullifying the previous judgment in the suit in which the father represented the minors. It

is not disputed that the father filed a suit for partition which represented not only the share of the father but also that of the minors. In C.K.S.

Krishnamurthi and Another Vs. Chidambaram Chettiar and Others, this Court accepted the view of the lower Court that where a Hindu father

sued as the manager of a joint family the junior members of that family were bound by the decree in the suit. this Court held that the principle that a

minor can sue to set aside a decree passed against his own rights cannot be extended to cover a case like the case before this Court where the

father as the manager of the family represented all the coparceners and sued on the basis that the property belonged to the family. It is, therefore,

clear that the minor sons cannot be permitted to have the decree passed against the father who represented the minors to be set aside.

The next contention was that the lower Court was in error in deciding the question as to whether the suit is barred by res Judicata in the petition

for leave to sue in forma pauperis. In support of his contention the Learned Counsel relied on a decision of the Supreme Court in Vijay Pratap

Singh Vs. Dukh Haran Nath Singh and Another, . But that was a case from Allahabad where the Madras Amendment of Sub-R. (d-1) of R. 5 of

O. 33, C.P.C., was not in existence. By the Madras Amendment the Court is entitled to go into the question whether the suit is barred in law in a

petition for leave to sue in forma pauperis. It was then submitted that Sub-R. (d-1) would comprise only the case where the suit is barred by time

and not a case where it is barred by res judicata. It has been consistently held by this Court that, after the Madras Amendment, the Sub-rule would

comprise the question whether the suit is barred by res judicata�vide Mythili Ammal and Others Vs. R. Mahadeva Ayyar and Others, and

Anganna Goundan alias Chinnasami Goundan Vs. Angamuthu Goundan and Another, . All the contentions raised by the Learned Counsel for the

appellants fail. The appeal is dismissed. No order as to costs. Time for payment of the court-fee, three months from this date.