Shunmuga Pallavaran and Others vs Soosai Udayan and Others

We agree with the Judge that the plaintiffs'' claim is res judicata in so far as they claim a fresh partition of the lands that were divided in execution

of the decree in Original Suit No. 15 of 1904.

Of the properties that were mortgaged to the father of the 2nd defendant by the plaintiffs'' family, the plaintiffs are entitled to two-thirds and the

3rd defendant to one-third and they are liable to pay their proportionate share of the mortgage money. The plaintiffs are not entitled to recover

possession of the one-third share that may have been delivered to the 3rd defendant in execution. But they are entitled to redeem the other two-

thirds. If any property remains undivided then that has to be divided between the plaintiffs and the 3rd defendant. As the mortgage cannot be

redeemed in part, the plaintiffs must pay the entire mortgage amount to the 2nd defendant and recover possession of their two-thirds share having a

lien for the remaining third on one-third of the lands in the possession of the 3rd defendant, if he has obtained his share on partition. If the 3rd

defendant has not obtained his third share, then the plaintiffs will be entitled to hold the entire property subject to the right of the 3rd defendant to

redeem his one-third share. The claim of the plaintiffs as above set forth is not res judicata. Whether the right of the plaintiffs to enforce payment

from the 3rd defendant and the 3rd defendant''s right to redeem his one-third share can be enforced in this suit has not been considered by the

lower appellate Court, nor is there any finding on the question of possession or as to what properties were obtained by the 3rd defendant for his

share. We set aside the decree of the lower appellate Court, the claim above set forth not being res judicata, and remand the appeal to the lower

appellate Court. The Judge will be at liberty to call for findings, or send the case to the Munsif or take further evidence if he thinks it fit to do so.

The costs will abide the result.