Uppuluri Ramamani vs Yelamanchili Basavayya and Others

Somayya, J.—The plaintiff''s suit has been dismissed on the ground that the question was previously decided in O.S. No. 623 of 1935. The

plaintiff and her brother were the donees of the suit property under a settlement deed executed by their grandmother''s sister, one Achamma.

Achamma settled the property on her sister''s grandchildren under Ex. P-1 of the year 1905. The plaintiff''s brother, Gopalakrishnayya, died in

1922 and thereafter Achamma, the donor, revoked the settlement deed and settled the property on the plaintiff''s husband. The husband of the

plaintiff alienated the properties to several persons. In the year 1934, Achamma died. In 1935 the plaintiff''s brother''s widow filed O.S. No. 623

of 1935 for partition and recovery of her share. To that suit she made the present plaintiff as defendant 1; her husband was defendant 2; her sons

were defendants 3 and 4; and the alienees were made other defendants. In the written statement filed by defendant 1, she said that her husband''s

alienations were not binding upon her and asked that she should be given her share in the properties. She offered to pay Court fees, if necessary.

The contesting defendants were the alienees and they put forward two contentions. One was that Achamma was entitled to revoke the settlement

deed of 1905 and to settle the properties again on the second defendant In that suit. The second point--and that is what is relevant for the

purposes of this suit--is that even if the plaintiff in that action was entitled to a share, the first defendant in that suit (the plaintiff in this suit), was not

entitled to ask for her share for the reason that she actively co-operated with her husband in the alienations made by him and that she was therefore

estopped from questioning the validity of the alienations at any rate, so far as she was concerned. Issue 9 in the previous suit raised the question

whether the first defendant in that suit was estopped from questioning the alienations in favour of the contesting defendants. The present plaintiff,

her husband, and her sons did not appear at the time of the trial. The District Munsiff who tried the suit recorded a finding on issue 9 and held that

the evidence of the defendants'' witnesses proved that defendant 1 therein was an active participator in the alienations made by defendant 2 in

favour of defendants 6 and 8 to 10 (here the array of parties is that in the previous suit) and accordingly he found the issue for the defendants who

raised it. Therefore the finding was that defendant 1 in that suit was estopped from questioning the alienations in favour of the alienees-defendants.

This finding clearly operates as res judicata in the present suit. Mr. A. L. Narayana Rao, the learned advocate for the appellant, argues that the

decision on the question whether the plaintiff in this suit was estopped from questioning the validity of the alienations effected by her husband was

not necessary in order to give relief to the plaintiff in the previous action. If this is an ordinary case of co-defendants, then the contention would

have been perfectly legitimate. In a case between co-defendants the requirements are laid down by the Judicial Committee repeatedly in Munni

Bibi v. Trilokinath (1931) 61 M.L.J. 196 : L.R. 58 IndAp 158 : ILR 53 All. 103 and Maung Sein Done v. Ma Pan Nyun (1932) 63 M.L.J. 64 :

L.R. 59 IndAp 247 : ILR 10 Rang. 323 . But the previous suit was one for partition. In a partition action the sharers are both the plaintiffs and the

defendants and each defendant sharer is also in the position of the plaintiff. In fact, the plaintiff in this suit who was defendant 1 in the previous suit

expressly asked that the Court should pass a decree in her favour for her share of the properties. It is because she asked for a decree in her

favour, the alienees-defendants raised the plea that, even though the plaintiff in that action might be entitled to a share, the first defendant was not

entitled because she was estopped for various reasons mentioned by them. This is therefore a case in which the present plaintiff must be deemed to

be a plaintiff and the alienees must be taken to be defendants. If they were so arrayed, there is no question about the applicability of the doctrine of

res judicata. This distinction has been pointed out by the High Court of Patna in Harihar Prasad Singh v. Narasingh Prasad Singh I.L.R.(1940)Pat.

There a decision in a previous suit was held to be res judicata on the ground that the previous suit was a partition action where one co-sharer

defendant asked for a higher share which was resisted by the other co-sharers. In the decision of this question the plaintiff in the previous suit was

not at all interested. It was conceded that the decision of the question as to the extent of the co-defendant''s share was not necessary in order to

give relief to the plaintiff in that action. The learned Judge held that the decision as between the two co-defendants was res judicata as the question

of the share was expressly decided even though the decision in the former suit was not necessary in order to give relief to the plaintiff in that suit. I

agree with that decision and I hold that the plaintiff is precluded by the judgment in the previous suit from re-agitating the claim in tht present suit.

The second appeal is dismissed with costs. No leave.