1. Lagammanna and Satappa were brothers and members of a joint family. Lagammanna died before Satappa, and, according to the plaintiffs' case, he left his widow Girava, and a daughter by Girava, called Yellava, surviving him as his heirs and legal representatives. In the year 1888, Lagammanna mortgaged survey No. 273 to the predecessors-in-title of defendants 1 to 10, by Ex. 94. In the year 1889, by Ex. 93, he mortgaged to the same parties survey Nos. 283 and 624. In 1905, the mortgagee purchased the mortgagor's equity of redemption from Satappa who according to him, had succeeded to the property by survivorship, as he and Lagammanna, up to the latter's death, had continued to be joint. Shortly after the mortgage of 1889 a kabuliat was passed by Satappa alone in respect of the mortgaged lands in favour of the mortgagees. In 1896 the mortgagees brought a suit for rent on this kabuliat. A written statement was put in on behalf of both Lagammanna and Satappa and a decree for the amount of the rent claimed by the plaintiff in that suit was passed against the brothers. In 1919 the plaintiff purported to purchase the equity of redemption in respect of the mortgaged lands from Yellava, the daughter of Lagammanna, and he brought a suit for redemption, which has given rise to the present appeals. There are two separate appeals. Appeal No. 11 relates to Ex. 93 and appeal No. 12 to Ex. 94. The parties are the same, and the question which arises for determination in these appeals is the same. The plaintiffs' case in the trial Court was that there was a separation in interest, by metes and bounds, between Lagammanna and Satappa. On the death of Lagammanna, his widow succeeded, and on her death, the daughter took the property by inheritance and she was therefore fully competent to transfer the equity of redemption to the plaintiffs and she did so. The suit, of course, was against the mortgagees and they were the principal contesting parties, though it seems that the tenants in occupation of the land were made parties, as also Yellava.

2. The defendants raised various contentions. They contended inter alia that Yellava was not the legitimate daughter of Lagammanna; that Lagammanna and Satappa continued to be joint up to the death of the former; that Satappa took the property by survivorship; that the defendants purchased the equity of redemption from Satappa and had therefore become owners of the suit land and in fact had been dealing with the suit land as owners; that the plaintiffs' purchase of the equity of redemption from Yellava was a sham transaction, and in any event, having regard to the fact that Yellava was not the daughter of Lagammanna, no title passed to the plaintiffs. The trial Court negatived all the contentions of the defendants, but held that Yellava was not the legitimate daughter of Lagammanna. In appeal, however, the Appellate Court held that Yellava was the legitimate daughter of Lagammanna. The Appellate Court agreed with the conclusions reached by the trial Court on all the remaining issues, and passed a decree in favour of the respondents.

3. In these appeals, as regards the appellants, there are no merits. It has been held, as a matter of fact, by the Appellate Court that for a long time Satappa and the mortgagees were colluding with each other and that Satappa was helping them in order to establish their title as owners of the land, and that the whole attempt of these people was to make it appear that there was no partition between the brothers and that the property went by survivor, ship to Satappa, and therefore the defendants became the owners. It was also held by the Appellate Court that acting in collusion with each other various documents were passed by Satappa to support the case of the appellants made in the Courts below. The Appellate Court, on a consideration of the matters before it, came definitely to the conclusion, having regard to some of the documents passed by Satappa himself or in which Satappa was concerned, that there was a partition between Satappa and Lagammanna some time prior to Lagammanna's death and prior to the mortgages, and therefore on Lagammanna's death, and on the death of his widow, the property went to Yellava and she was competent to alienate it to the plaintiffs. It is from this decision that the present appeals are taken. The main question which is argued on behalf of the appellants is that the Courts below ought to have held that the question of partition between Lagammanna and Satappa was barred by res judicata, and the appellants relied upon the proceedings in the rent suit of 1896, to which I have referred. It is conceded by the learned counsel on behalf of the appellants that this plea, as also the other plea of estoppel, which he has raised, were not taken in any of the Courts below and that he was raising the same for the first time in this Court. But he argued that it being a question of law, — at any rate the question of res judicata being a question of law—it was open to him to take it, if there were materials on which he could base his contentions. To that, it was answered that the appellants should not be allowed to raise the question for the first time in these appeals which, although in form are first appeals from orders made by the lower Appellate Court, in substance, they mean, or, are in the same position as second appeals.

4. Now, the principles on which a question of law may be allowed to be raised for the first time are well settled and it is established by authorities, which cannot now be disputed, that the Court will allow, even in second appeal, a question of law to be raised, if it can do so without any unfairness to the opponents, and it has been held that if a question of law is such that it does not necessitate the taking of further evidence, the High Court will allow it to be raised for the first time in second appeal. After carefully considering the arguments before me, I am satisfied that to allow the appellants to raise the question now would be unfair to their opponents. But apart from this, in my opinion, there is no substance in the contentions. The plaint in the rent suit is not before me, but as is the practice in the mofussil, it is set out in the decree which is an exhibit. Now, before a matter can be said to operate as res judicata, it is necessary, inter alia, to establish that the matter was directly and substantially in issue in the earlier suit, and further, that the matter which is relied upon as being directly and substantially in issue, was heard and finally disposed of by the Court in the earlier suit. In order to determine whether a particular issue or matter is res judicata, the Court can only look at the pleadings, the judgment and the decree. In this case, there is no judgment before me. Admittedly, there is nothing to show what issues were raised. It is, of course, not necessary that before a matter can be said to be res judicata, it should form the subject-matter of a definite issue. If the Court can gather from the materials before it, namely, the pleadings, the judgment and the decree, that matter was directly and substantially in issue and formed the basis of the judgment arrived at in the earlier suit, either expressly or by necessary implication, then the principle of res judicata would apply. It is necessary, therefore, to look at the pleadings between the parties. Now, the plaint in this case, which I gather from the decree, is in these terms. After setting out the mortgaged properties in detail and referring to the mortgage, the plaintiffs alleged as follows:

Defendants 1 and 2 agreed to take these lands on rent for the annual rent of Rs. 191-4-0 as long as the plaintiff was willing to continue and defendant 1 gave a rent note in writing and duly registered on 20th January 1889.

5. In para. 2 the fact that no amount was received is mentioned. Para. 3 is in these terms: “Defendant 2 is the undivided full brother of defendant 1”. The decree is that the defendants should pay to the plaintiffs Rs. 1912-8-0. By their written statement, the defendants denied that any amount was due and pleaded that the object of the plaintiffs in bringing the suit was to appropriate to themselves their lands.

6. The defendants further pleaded that the rent was paid and that nothing was due and that the suit was vexatious. It is clear, however, that the allegation that the defendants were undivided brothers was not expressly denied, and by rules of pleadings it is clear that an allegation of fact made in the plaint which is not denied by the written statement must be deemed to have been admitted by the defendant. So that, there is no doubt that this is an admission—and an important admission—made by the defendants, which the defendants in this case were entitled to use as an admission against the plaintiffs in any event. But, an admission is one thing and the principle of res judicata is another thing. The question is whether the issue as to the brothers being undivided or separate came up before the Court, or was raised before the Court, directly and substantially. In my opinion, it is difficult to accept the contention of the appellants that the matter as to the status of the defendants as between themselves was a matter which arose directly and substantially. It is difficult to lay down a hard and fast rule as to what matters can be said to be arising directly and substantially. The Court can only look at the manner in which that particular matter is dealt with by the parties themselves, having regard to the course of the litigation, and the conduct of the parties, and the manner in which the Court itself has dealt with it. Now, there is nothing to show that any issue as to the brothers being joint or separate was raised, nor, is there anything to show that the Court, when it made the decree, based its decision on the fact that defendant 2 was joint with defendant 1. Apart from that, it was not necessary for the Court to do so. The plaint itself shows that the principal question in the suit was, whether the defendants had agreed to be the tenants of the plaintiffs. If that agreement was found in favour of the plaintiffs, then the question whether the defendants inter so were joint or separate could hardly arise and would never arise. Assuming, however that the issue arose directly and substantially in the suit, the other condition that it was heard and decided is clearly wanting in this case. No matter can be said to operate as res judicata unless there is a final judicial pronouncement upon it. In this case, there is nothing to show that the issue was heard and finally decided. It appears from the record that the plaintiffs in the rent suit were aware that both the brothers were cultivating the land as tenants and Lagammanna himself admitted the tenancy. If the question as to res judicata had been raised in the Courts below, the respondents could have referred to the judgment and the record of the rent suit to show that Lagammanna admitted the tenancy. Where it is impossible to show for want of proper materials as to whether an issue was raised and heard and finally disposed of, or whether it formed the basis of the decree, then, of course, the party putting forward the contention based on the principle of res judicata must fail, the burden obviously being upon him and that seems to me to be the position in this case. In these circumstances, therefore, the contention must be rejected.

7. It is also argued on behalf of the respondent that this was a rent suit and there was no prayer for possession of the property and that the present suit was based upon the title of Lagammanna, and that being so, any decision arrived at on the question of title in the rent suit cannot operate as res judicata in the present suit, which is based upon title and which is one for possession. Here, again, the principles are well settled. If there is a suit for rent and the question of title is raised, not directly but incidentally, then, any decision on the question of title cannot operate as res judicata in a subsequent suit between the parties based upon title between them. But if a question of title was raised and had a direct bearing upon the decision of the Court, then it is difficult to see, even though the earlier suit was one for rent, how a subsequent suit based on title between the same parties would not be barred by res judicata. But in this case, I have no doubt that the question of title never arose in the rent suit, and in the circumstances of the case, could never arise, having regard to the plaintiffs' own case. The second contention, as to estoppel, can, of course, not be allowed in this appeal. Estoppel is always a mixed question of fact and law, and the principles to which I have referred would clearly come in the way of the appellants in trying to establish that the plaintiff must be deemed to have been estopped from putting forward the title of Lagammanna in this case. Apart from that, it is difficult to see where the question of estoppel comes. It was the case of Lagammanna himself, and it was the case of plaintiff himself, in the rent suit, that Lagammanna was his tenant. The plaintiffs in the present case now say that Lagammanna was the owner, and if Lagammanna had at some time admitted himself to be the tenant of the plaintiff, it can hardly affect his title as owner, he having himself mortgaged the land. I must, therefore, reject that contention also. In the result, the appeals fail and must be dismissed with costs.

D.S/R.K

8. Appeals dismissed.