Subbiah Udayar vs Karuppiah Odayar alias Pichai Odayar

S. Ramachandra Ayyar, C.J.—This appeal which is filed u/s 51(1) of the Madras Act XXVI of 1948, raises a question relating to

apportionment of final compensation paid by the Government while taking over the Inam Sholaganarvayal village in Thanjavur district. The

contesting claimants are the Appellant and the Respondent. The village was enjoyed in shares which were represented in terms of currency of the

total value of Rs. 20. The Appellant and the Respondent who were first cousins were entitled to ten annas share out of this twenty rupees share. It

is not disputed that the Respondent was exclusively entitled to a two annas share out of the ten annas share possessed by the family. The

controversy is in regard to the distribution of the other eight annas share. In order to appreciate the dispute between the parties, it is first necessary

to set out the origin of the acquisition of the eight annas share by the family. That extent of property was originally owned by one Salakshi. On 1st

December 1908, she created a usufructuary mortgage of that pangu to the father of the Respondent. That mortgage was followed in the year 1914

by a second simple mortgage over the same extent of property by Salakshi''s son. It is not disputed that although the mortgage stood in the name

of the Respondent''s father, he as well as the Appellant''s father who was his brother were entitled to shares therein. There was a partition between

the brothers on 28th February 1914. The arrangement is evidence by exhibit B-1. Under that document the brothers divided various items of

properties. So far as the particular mortgage interest in the eight annas share was concerned, it was decided to leave it in common. C. schedule to

the document contains that property. As part of the arrangement of partition the two brothers apportioned between themselves the liabilities of the

family. They took them in certain proportions. Likewise, they shared the outstanding including the mortgage debts due by Salakshi and her son.

Sometime thereafter in execution of a simple money decree against the mortgagers the equity of redemption in the property was purchased by the

Respondent''s father. It has now been found, and this has not been challenged before us, that the purchaser bought the property not merely for its

own benefit but for that of his brother''s family as well. Apart from the fact that the outstandings due to the family were divided in a particular

manner, there is no indication in any document as to what shares each one of the brothers got in the equity, of redemption which on purchase

merged with the mortgage right previously owned. Where two persons purchase a property and there is nothing in the document or the surrounding

circumstances to indicate the extent of interest that each one possessed, the presumption will normally be that they share the property equally. If

that presumption were to be applied here, the Appellant and the Respondent would each be entitled to a four annas share out of the eight annas

share. This presumption gets added strength when we refer to exhibit A-1 the partition decree passed by the District Munsif of Pattukottai in

Original Suit No. 122 of 1947, dated 12th December 1947, amongst the various shares of the village. Paragraph 10 of the judgment states that:

Defendants 20 and 64 (who are respectively the fathers of the Respondent and the Appellant before us) are cousins entitled in moieties. A 0-2-0

pangu to the 20th Defendant is admitted. Eight annas pangu was originally othied in favour of the 20th Defendant�s father in 1908 by Visalakshi.

This is transferred to the 14th Defendant�s father. In the father in 1908 by Visalakshi. This is transferred to the 14th Defendant�s father. In the

on the equity of redemption is purchased by his family in O.S. No. 270 of 1921. So the Defendants 20 and 64 own the equity of redemption in

half and half in a 0-8-0 pangu. The 20th Defendant sets up a subsequent arrangement with the 14th Defendant which is not, however, admitted.

The dispute between Defendants 20 and 64 is left open and they are together allotted a 0-10-0 share which would include a 0-8-0 pangu being

only the equity of redemption.

In the schedule attached to the judgment we find the allotment of the 0-10-0 share in favour of Defendants 20 and 64 jointly. Later in the judgment

there is a reference to the claim of the 64th Defendant for a 0-4-0 share bat there was no specific allotment in respect thereto. Although it can be

said that there has been no adjudication by the Court in Original Suit No. 122 of 1947, as to the extent of the rights possessed by the two parties,

that judgment is useful in that it contains an assertion of right on the part of the Appellant that he was entitled to a 0-4-0 share out of the 0-8-0

share jointly owned. We have already referred to the presumption of law under which the Appellant would be entitled to the 0-4-0 share. The

Estates Abolition Tribunal unfortunately on a line of reasoning which is not very clean has proceeded to decide the issue between the parties on the

basis and in proportion to the distribution of the outstandings between the parties under the partition arrangement of 1914. We are unable to see

how that can form-a safe basis for adjudication inter se of the rights between the parties; it was only subsequent to that partition that the two

cousins became entitled la the equity of redemption in the 0-8-0 share by purchase at the Court auction. What share each of them possessed on

the date of the purchase of the equity of redemption has to be ascertained from other evidence; but such evidence is lacking in the case. Under the

circumstances we can only proceed on the presumption that each one of the two cousins got a one half share. That will mean that the Respondent

will have a 0-16-0 share (he being admittedly entitled to an extra 0-2-0 share in his own right) and the Appellant will have a 0-4-0 share. The

advance compensation will have to be distributed accordingly.

But Mr. T.R. Venkataraman appearing for the Respondent has raised the contention that the claim of the Appellant before us is barred by res

judicata inasmuch as he did not file any appeal against the order of the Tribunal in a connected matter. The facts relevant to this plea are these.

After the advance compensation amount was received by the lower Court the Appellant filed Original Petition No. 322 of 1961, claiming 0--4--0

share out of Rs. 20 share in the compensation for himself. The Respondent too field a similar application Original Petition No. 331 of 1961. While

the Appellant made the Respondent a party to this application, the Respondent did not do so. But the Appellant appears to have objected to the

grant of anything more than 0-6-0 share to the Respondent. The Tribunal gave a common judgment accepting the title of the Respondent to 0-8-6

share and that of the Appellant to 0-1-6 share. No appeal has been filed by the Appellant against this order in Original Petition No. 331 of 1961.

The Appellant has, however, challenged the correctness of the common order in Original Petition No. 322 of 1961. It is argued that in as much as

no appeal has been filed from the order in Original Petition No. 331 of 1961, which granted the Respondent 0-8-6 share in the compensation this

appeal should be held barred by res judicata. Support for this contention is sought in the decision of the Supreme Court in Badri Narayan Singh v.

Kamdeo Prasad Singh (1962) 3 S.C.R. 759. That case related to two appeals arising out of one proceeding before an Election Tribunal, the

subject matter of the appeals being different. Separate decrees were drawn. There was one further appeal against the order in one appeal only. It

was held that the finding in the unappealed decree would operate as res judicata. The Supreme Court in that very decision has recognised that

when there is a single suit, the question of res judicata does not arise merely because there are two decrees based on the same judgment. We may

in this connection refer to an earlier decision of the Supreme Court reported in Narhari and Others Vs. Shankar and Others, . In that case, there

was a suit in which the Plaintiff claimed 2/3rd share in an estate. The two Defendants opposed his claim, contending that they were each entitled to

one-third share. The Plaintiff''s claim was accepted by the trial Court. Each one of the Defendants filed separate appeals which were heard

together and disposed of by a common judgment. The Plaintiff who lost in the appeal, preferred an appeal from one of the decrees only claiming at

the same time relief in respect of the entire subject matter in dispute. The Supreme Court held that inasmuch as the dispute arose out of the same

suit and the appeal had been disposed of by the same judgment, it was not necessary to file two separate appeals. The learned Judges observed at

page 758:

The question of res judicata raises only when there are two suits. Even when there are two suits, it has been held that a decision given

simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the

present case, both the decrees are in the same ease and based on the same judgment, and the matter decided concerns the entire suit. As such,

there is no question of the application of the principle of res judicata.

We are of the opinion that in the present case, the subject-matter in dispute between the parties in substance can be regarded as forming one lis

only. By virtue of the peculiar procedure obtaining in regard to applications filed u/s 42 of the Abolition Act, it has been the practice for each

claimant to compensation money to file separate applications. More often than not the contesting claimant does not figure as a party. He files his

own application making his claim for the same amount. In such a case the applications are consolidated for the purpose of hearing and a common

judgment is given. Both the applications must be regarded, therefore, as comprising a single controversy and they should by regarded as

constituting a single proceeding as the subject-matter is the same. On the principle of the decision of the Supreme Court to which we have made

reference earlier, we consider that there is no question of the application of the principal of res judicata to such case. This appeal has, therefore, to

be allowed but there will be no order as to costs.