The question raised is one of res judicata. The original owner is one Lal Muhammad who died in 1902. The plaintiffs, his daughters, have brought this suit for partition of his properties. The defendants 1 and 2 are his sons, and the 3rd defendant is his wife. In 1904, the defendants 1 and 2, treating the properties as their own, mortgaged them to the 4th defendant. In 1922 the latter filed a suit upon the mortgage in his favour, obtained a decree and in the Court sale that followed defendants 5 and 6 purchased the properties. Thereupon, the 3rd defendant filed O. S. No. 335 of 1923, alleging that the properties had been gifted to her by her husband and that no title passed under the Court sale to defendants 5 and 6. That suit was dismissed.
In the present suit the lower Courts have held that the properties of Lal Muhammad became liable to be partitioned on his death among his heirs and that the mortgage by his sons was not binding on the shares of Lal Muhammad's daughters (i.e, the plaintiffs), or of his wife (the 3rd defendant).
For the appellants (defendants 5 and 6) it is now contended that as regards the 3rd defendant, her right should be held to have become barred by the rule of res judicata. The question is, whether her right to a share of the property is a matter which not only might but also ought to have been made a ground of attack in the former suit, viz., O.S No. 335 of 1923 (Expln. iv to S. 11, Civil Procedure Code). That it might have been made a ground of attack admits of no question. This being a suit for partition, the third defendant is virtually in the position of a plaintiff. The right claimed in both suits is in regard to the same property. The test is this: If a matter could have been set up as a ground of attack in the former suit and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack in that suit, unless the matters in that and the subsequent suit are so dissimilar that their union might lead to confusion. (Mulla's Civil Procedure Code, 9th Edition, page 47.)
Mr. V. Suryanarayana contends that the two claims are dissimilar as they have to be supported by different evidence. But it has been held that the test of evidence is not a satisfactory test, the reason being that, when alternative grounds of attack are set up, the evidence in support of such alternative grounds would very often be different. On the facts of this case I am satisfied that the defence of res judicata must prevail. It is unnecessary to examine the numerous cases on the point; but I may refer to Srimat Rajah Vijia Ragunada Boda Gurusami Peria Odaya Tevar v. Katama Nachiar Zamindar of Sivaganga (1), Teharti Doorga Persad Singh v. Tekaitri Doorga Konwari (2) and Kameswarpershad v. Rajakumari Ruttun Koer (3).
The result is, that the 5th and 6th defendants (the purchasers) are entitled to the share the lower appellate Court has awarded to the 3rd defendant. To this extent the lower appellate Court's decree is modified. Its order as to costs is not disturbed; but in this Court I direct that the appellant shall get half of the costs of the second appeal from the legal representatives of the 3rd defendant.
N. R. R.Decree modified.