This Letters Patent Appeal arises out of a difference of opinion between my brothers Sadasiva Aiyar and Phillips, JJ., on a subject as to whether a former decision is res judicata as between two persons, who were arrayed against one another not in the relation of plaintiff and defendant but who were both defendants in the former proceedings. The present suit is brought on a mortgage executed by one Thumbusami Maniagar on which it is sought to make him and his sons liable. One of the sons, who is the 4th defendant in this case, was born after the date of the mortgage on which the suit was brought. In the year 1899 an inter-pleader suit O. S. No. 63 was brought in the Tinnevelly Court and in that case there were certain proceedings the nature of which we are not concerned with, between Thumbusami Maniagar and certain other persons and that suit ended in a compromise based on an award of certain arbitrators. Subsequently in the year 1908, the 2nd and 3rd defendants two of the sons of Thambusami Maniagar, brought a suit against their father and a great number of other people for a partition and in the course of that partition, they asked it to be declared that the agreement embodied in the mortgage was fraudulent and was not binding upon them. The nature of the allegations made was this: It was said that the mortgage was given to one Ramaswami Chetty, the present 1st plaintiff in these proceedings, in return for certain services. He was to pay certain sums of money to further the litigation which terminated in the compromise and was to conduct the proceedings on behalf of Thambusami Maniagar and his family. The allegation against him, was that, at the time he entered into this agreement, he knew that he could not possibly perform it honestly, because among the parties in that suit there was a woman called Palani Ammal and if was alleged and found that the present 1st plaintiff at the time he entered into the agreement with Thambusami Maniagar was entirely bound to the interests of Palani Ammal which were adverse to the interests of Thumbusami Maniagar. The learned District Judge characterised the whole agreement as fraudulent and further found that the resulting arbitration was vitiated by the fact that bribes were given to the arbitrators and that they had decided against their conscience. The result was that he held, at any rate, this—and there is no controversy about it—that the whole proceedings and the mortgage were bad as against the present 2nd and 3rd defendants. That is not now questioned.

It is said on behalf of the defendants here excluding defendants 2 and 3 that that determination in the partition suit acts as a bar, by reason of the doctrine of res judicata, to the plaintiffs in the present proceedings. The actual law on the subject was laid down in the leading case of Cottingham v. Earl of Shrewsbury(1), embodied in the judgment of Vice Chancellor Wigram. The material part of the judgment is as follows:—

“If a plaintiff cannot get at his right without trying and deciding a case between co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.”

That doctrine was re-affirmed in this country in a judgment of West, J., in Ramchandra Narayan v. Narayan Mahadev(2), in these words:

“Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication, and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and defendants. But for this effect to arise, there must be a conflict of interests amongst the defendants, and a judgment defining the real rights and obligations of the defendants inter se. Without necessity the judgment will not be res judicata amongst the defendants, nor will it be res judicata amongst them by mere inference from the fact that they have collectively been defeated in resisting a claim to a share made against them as a group.”

Those principles have to be applied to the facts of this case. There is no doubt about the principle; they are quite clear and clearly enunciated, and the only difficulty arises in the application of them.

The first point taken by the defendants here is that, in the actual result of the proceedings, in the partition suit, the present plaintiff, was necessarily bound by the result, because there was a real conflict between him and Thumbusami Maniagar on the very point, viz., the validity of this mortgage. In the partition suit Thumbusami Maniagar did not appear, he was what is called in this country ex parte. But it is said that, when the actual proceedings are scrutinised, it is clear that, although he did not appear himself as a party to defend his position, because the present plaintiff in fact urged the case against him and pressed it to a decision, it is none-the-less binding upon him. We think the first thing to do is to see exactly what was raised at the trial and what was decided first and last. We will take it that the pleadings asked for a declaration that the mortgage in question was invalid as against the plaintiffs, the two sons, in the partition suit, because there is no doubt that that is what the learned District Judge declared and we think he declared no more in so many words because, beyond this fact, which becomes important in another aspect of the case, that he held that it was not binding on the plaintiffs, and their brother, he did not declare in so many words in that place that it was not binding on the 1st defendant, and it does not appear to have been made a part of what is called the formal finding in paragraph 68 of the judgment. But in the same paragraph he says:

“I hold that the debt due under the document is one which it is open to the 1st defendant to repudiate on the ground that his agreement with the 27th defendant—that is the present 1st plaintiff—was obtained fraudulently i.e, in order to enable the 27th defendant to commit fraud, and that, although the 27th defendant might have advanced monies under this agreement, the money so spent was spent with a fraudulent object.”

That is what he says about that. Now, the decree in that suit was a decree for partition and the learned District Judge in setting out the final result says this:

“In the result I find that the two plaintiffs and the 36th defendant, their brother, are jointly entitled to a three-fourths share of an one-third of a half share (that is a or ⅛ share) of the whole suit estate”,

and so forth. He then directed a commissioner to be appointed to take an account and also to effect a partition of the moveable and immoveable property and there he left it making no declaration other than the words I read out from paragraph 68 as to the position of Thumbusami Maniagar and his right in the partition that was to be effected.

It has been strongly urged by Mr. Venkatachariar in a very closely reasoned argument that, whatever the learned Judge ought to have done, on a question of res judicata we have to take what he had done; and while he has conceded that the District Judge ought to have declared Thumbusami Maniagar to be entitled to a share, he has strongly urged that because the District Judge not merely abstained from declaring Thumbusami to have a share but actually abstained from declaring that as against him the document was a nullity, we must take it that there was no decision and no adjudication of the rights of these two parties to this document which could possibly be invoked in support of the plea of res judicata. That was a preliminary decree and it went up on appeal, the appellant being Ramasami Chetty. In the appeal the family were made respondents—Thumbusami Maniagar and his sons—and we have got the judgment and the grounds of appeal. The grounds of appeal did not take the point that has been urged upon us with such force to-day, namely; that there was nothing in the pleadings, nothing in the issues, to raise this point and that, in fact, the learned District Judge had not actually decided it and, therefore, it could not be taken in appeal. Instead he took this point as the second ground of appeal. “The District Judge, having found that there was consideration for Ex. XX, ought to have held it binding on the respondents”, that is, on all the respondents the father and the sons as well. On that the learned Judges of the appellate Court said this:—

“As regards the appellant in Appeal No. 220 of 1909 (that is Ramaswami Chetti) he has been found to have made common cause with the 21st defendant in the inter-pleader suit whose interest was adverse to those of his principal the 1st defendant. The District Judge has gone fully into the conduct of the appellant in paragraphs Nos. 67 and 68 of his judgment and we see no reason to differ from him. Owing to his breach of duty we do not think he is entitled to recover anything even assuming that money is due to him for work done as agent.”

In our opinion, that establishes the following state of things. In complaining of the decision of the Court below, he sought and obtained a decision on the merits not a decision that the matter did not arise and was not determined but a decision which, assuming, that the lower Court had decided it adversely to him, he sought to persuade the appellate Court to reverse and determine in his favour on the merits. We are of opinion that he cannot do that and cannot both treat the learned District Judge's judgment as a decision against him for the purposes of an appeal on the merits and then come here and argue that it is no decision at all.

Besides that there is another ground on which the argument for the respondents is based. The 4th defendant in the present proceedings, 1 to 36th defendants, in the partition suit, was not born at the date of the execution of the mortgage. It is said, that being so, he was not then a co-parcener and could acquire no rights in the co-parcenary property as it stood before his birth but could only obtain rights on his birth in the co-parcenary property as it then stood. That is equivalent to saying that, although no doubt on his birth he would obtain a share in the equity of redemption of this property he would have no locus standi to challenge the mortgage or get it set aside on any ground whatsoever. The District Judge gave a decree setting aside the mortgage not only in favour of the plaintiffs in the case but also in favour of the then 36th defendant, the unborn son. It is argued that that clearly shows that it was definitely decided that the document was invalid as against the 1st defendant, because the 36th defendant could acquire no rights in the property other than the equity of redemption unless the transaction was set aside as between the mortgagee and the 1st defendant his father. It is argued that that doctrine is to be modified by a supposed principle either of Hindu Law or of procedure, and reliance is placed upon a case which was decided by Wallis, J., as he then was, on the Original Side of this Court, and was confirmed in appeal. We need only refer to one of the reports and we will take the report in the original trial, Ganesh Row v. Tulja Ram Row. The plaintiff in that suit, also a partition suit, entered into a compromise which was held not to be binding on the son of the plaintiff: but it was held that the compromise was binding to the extent of the father's share to be calculated as it stood at the date of the compromise which was then half. It was held nevertheless that the family continued joint even in respect of the subject-matter of the compromise and the subsequently born sons were entitled to participate in the remaining half; that is to say that, although the compromise was binding on the father, and the subsequently born son took no share in the portion the father had disposed of, yet the portion that he had not disposed of fell to be divided among them as co-parceners. There seems to us nothing in that case, which was confirmed in appeal, to give any substance to the supposed doctrine that an unborn son can acquire any right in a joint family which stretches back beyond the period of his birth. It is quite true that there are cases reported and summarised in Mayne's Hindu Law, p. 460, of this nature: An executory agreement was made by a manager of a joint Hindu family before the birth of a particular son. A suit was brought for specific performance and possession after the birth of the son. It was held that, as the plaintiff was born before the right crystalised into possession and while the joint family was still in possession of the property, the newly born son did at his birth acquire the interest of a coparcener in the property. That again seems to us to be no authority whatever for the position contended for in this case that a son would have an independent cause of action to set aside an alienation which had taken effect before he was born and acquired a status in the co-parcenary.

The result is that on both grounds the plaintiff in this suit will be barred by the doctrine of res judicata. He is barred both by reason of the 1st defendant's independent right, as we may call it and also because of the fact that, in order to give effect as effect was given to the rights of the 36th defendant, it is necessary to suppose that the learned Judge in the Court below, as an indispensble step to give effect to those rights must be taken, to have decided that the mortgage was bad not only as against the consenting sons but also as against the father himself. It must be remembered that this was in a partition suit which, it has been repeatedly pointed out, for instance in one case that was cited to us, Parsotam Rao Tontia v. Radha Bai has this peculiarity that plaintiffs and defendants are merely accidental labels for persons the rights of all of whom are to be given effect to in the partition. It is clear that, in this particular suit where the father had alienated part of the family property, he was a person who had rights which would have to be worked out, and that therefore, the argument as to co-defendant's has been less force that it would in a suit in which that state of things did not exist.

The result is that we agree with the conclusion arrived at by Sadasiva Aiyar, J., and dismiss the appeal with costs.

C.KAppeal dismissed.