Sarkar, J.— The only question argued in this appeal is whether the appellants' suit for possession of certain lands is barred by res judicata. The trial court held that it was not barred but on appeal the High Court of Madras took a contrary view. Though the question involved is only one, the case has a long history which has to be set out in some detail.
2. The appellants are the trustees of a trust created in 1891 by one Vaithilingam Pillai who appears to have been possessed of substantial properties. On September 10, 1891, the day after the trust had been created, Vaithilinga who was childless, adopted one Kalyansundaram as his son. An agreement relating to the adoption appears then to have been entered into by Vaithilinga and Chidambaram Pillai, the natural father of Kalyansundaram, then a minor, on the latter's behalf. Thereafter on September 12, 1891, a deed of partition was executed by Vaithilinga and Chidambaram as the guardian of Kalyansundaram appointed under an instrument executed in the meantime by Vaithilinga as the adoptive father of Kalyansundaram. Under this deed the larger part of the properties left with Vaithilinga after the creation of the trust, which were considerable, went to Kalyansundaram and about 100 acres were retained by Vaithilinga for the maintenance of himself and his junior wife Kamakshi. Vaithilinga had another wife from whom he had been separated for a long time and with her we are not concerned. It will be necessary to return to that part of the deed under which the 100 acres were retained by Vaithilinga, later. On June 15, 1904, Vaithilinga died. Both Kamakshi and Kalyansundaram survived him. Soon thereafter, namely, on September 21, 1904, Kalyansundaram, who had then attained majority, filed a suit, being OS No. 54 of 1904, against Kamakshi and another person with whom we are not concerned, claiming possession of the 100 acres of land which had been left with Vaithilinga under the partition deed as earlier stated, after setting apart about 20 acres for Kamakshi's maintenance. Kamakshi's defence to the suit appears to have been that under the deed she was entitled to be in possession of the entire 100 acres for her life after the death of her husband. The Subordinate Judge of Kumbakonam in whose court the suit had been filed, held that Kamakshi was entitled to retain for her life 50 acres out of the 100 acres of land in dispute and that the other 50 acres should go to Kalyansundaram on Vaithilinga's death. The learned Subordinate Judge directed a partition of the land equally between Kalyansundaram and Kamakshi. Kamakshi filed an appeal against this judgment and Kalyansundaram, a cross-objection. Both these were, however, dismissed. The decree of the learned Subordinate Judge having thus been confirmed, the lands, were partitioned and possession of a half share thereof was delivered to Kalyansundaram. The remaining 50 acres were left in the possession of Kamakshi. The dispute in the present case concerns the lands that came to Kamakshi's share under the decree of the learned Subordinate Judge. The judgment in Suit No. 54 of 1904 was delivered on July 7, 1905 and it is this judgment which is said to operate as res judicata barring the present suit.
3. We pass on now to the facts concerning the appellants' claim. It appears that certain proceedings took place, the exact nature of which does not appear from the records, for framing a scheme in respect of the trust created by Vaithilinga. Presumably prior to these proceedings, first Vaithilinga and after him Kalyansundaram had been acting as trustees of the trust and had been in possession of the trust properties. It will have been noticed that the trust properties were quite separate from the 100 acres with which Suit No. 54 of 1904 was concerned. On August 28, 1923, by a decree passed in the proceedings earlier referred to, a scheme for the management of the trust was framed. The appellants are the present trustees under this scheme. On April 2, 1928, a decree for Rs 30,000 was passed in the same proceedings in favour of the then trustees and against Kalyansundaram. This perhaps was in respect of a claim by the trustees against Kalyansundaram for mesne profits. The decree last mentioned created a charge on some of Kalyansundaram's properties for the due repayment of the decretal amount. It also provided that the amount would be payable in certain specified instalments. The decretal sum not having been paid the trustees put up certain properties of Kalyansundaran to court sale in execution of the decree. The sale actually took place on April 2, 1931 and it was confirmed on April 7, 1933. Lot No. 3 of the properties sold was described as the lands which were being enjoyed by Kamakshi for her life and in which Kalyansundaram had a vested interest. These were the 50 acres of which Kamakshi had been held entitled to be in possession for her life under the decree in Suit No. 54 of 1904. The sale certificate stated that the sale was subject to the rights of Kamakshi to enjoy the properties in lot No. 3 for her life. Symbolical delivery of possession of the 50 acres of land comprised in lot No. 3 of the sale certificate as mentioned earlier was given to the trustees on February 12, 1935. The lands, however, continued in the possession of Kamakshi as indisputably she was entitled to be in possession for her life. What had been sold was Kalyansundaram's vested interest in the 50 acres.
4. Kalyansundaram died sometime in 1950 and Kamakshi on November 30, 1954. On June 24, 1955, the then trustees filed the present suit against Kalyansundaram's widow and daughter and certain other persons for possession of the 50 acres of land which had been in Kamakshi's possession till her death, and also for mesne profits, basing their claim on the purchase by them of Kalyansundaram's vested interest in them which had fallen into possession on Kamakshi's death. The only defence to this claim made in the High Court and in this Court is that the Subordinate Judge in his judgment in Suit No. 54 of 1904 had held that on Kamakshi's death the 50 acres in her possession would go to her representatives and that this judgment operated as a bar to the present suit. Besides this defence other defences were raised in the trial court but they were not.
5. The partition deed so far as material is in these terms: “The lands, 15 velis, 3 mahs, 60 cents … shall remain in the enjoyment of Vaithilingam Pillai….for the livelihood of the said Vaithilingam Pillai … as well as his junior wife Pamskshi ... After the lifetime of Vaithilingam Pillai … and Kamakshi ... those lands shall fall to the enjoyment of Kalyansundaram Pillai.” We are not concerned with the rest of the deed and all references in this judgment to the deed will be understood as a reference to this part of it only. The 15 velis, 3 mahs and 60 cents of land which in English measure would come roughly to 100 acres, were the lands which were the subject-matter of Suit No. 54 of 1904. It is not disputed that on proper interpretation, under the deed Kalyansundaram acquired a vested interest in these 100 acres. The only question is whether notwithstanding the correct interpretation of the deed, the judgment in Suit No. 54 of 1904 operates as res judicata. To put it more precisely, did that judgment hold that Kalyansundaram did not have a vested interest in the lands and if it did, was that finding necessary for the decision of the suit?
6. Now, Kalyansundaram had based his claim in Suit No. 54 of 1904 to the entirety of the 100 acres substantially on the ground that his guardian had no power to enter into a deed of partition on September 12, 1891 as by the deed of adoption earlier executed by Vaithilinga, he had become the sole owner of all of Vaithilinga's properties. It is unnecessary to discuss the judgment of the learned Subordinate Judge as a whole or in detail and it would suffice for our purposes to state that he rejected Kalyansundaram's claim in substance holding that the adoption agreement, the deed of appointment of Chidambaram as guardian of Kalyansundaram and the deed of partition had to be considered all together and Kalyansundaram was not entitled to ignore the deed of partition and recover the properties entirely on the basis of the adoption agreement. The learned Subordinate Judge observed, “Even granting for argument's sake, that Exhibit D (the deed of partition) was a deed of maintenance in favour of Vaithilinga and the first defendant (Kamakshi) as contended by the pleader for plaintiff (Kalyansundaram), I do not consider that the arrangement evidenced by it is improper or beyond the powers of the plaintiff's guardian. . . . By Exhibit D, about 55 velies of land were absolutely given to the plaintiff and the life interest in about 15 velies of land was reserved in favour of Vaithilinga and his wife, that is about four-fifth of the family property was given to the plaintiff and the life interest in the remaining fifth share was taken by those who had gratuitously made him their adopted son and given to him the bulk of their property. They reserved to themselves no right of alienation or disposition over the above-mentioned fifth share and declared that it should descend to plaintiff after their deaths. Therefore, I do not consider that plaintiff can on any ground succeed in setting aside the arrangement evidenced by Exhibit ‘D' The portion in brackets in the above quotation have been added by us.
7. Having thus rejected Kalyansundaram's claim to the entirety of the 100 acres, the learned Subordinate Judge proceeded to consider Kamakshi's claim to all the 100 acres on Vaithilinga's death for her life, He thought that Kamakshi's claim could be upheld only if it could be said that under the deed she and Vaithilinga had been made joint tenants of the 100 acres. After referring to certain authorities on the point, he observed, “Where the intention was declared in equally strong words it was decided that the estate taken ... was not joint in the sense in which it is enjoyed by undivided Hindu coparceners and it was only an estate held by tenants in common. Therefore, when one of the tenants died, his share in the estate naturally descended to his legal representative, that is, to plaintiff, unless there is something express in the terms of Exhibit D to show that the whole estate should be enjoyed by the first defendant during her lifetime. Such express declaration is wanting in Exhibit D. The recital that plaintiff should possess the estate after Vaithilinga and first defendant can be construed when the estate is only that of tenants-in-common (as meaning) that the share of Vaithilinga should go to his legal representative after his death and that the share of first defendant should go after her death to her representative.” The words “as meaning” in brackets have been added by us as they seem to have been omitted in the judgment. The parties agree that without these words the meaning is not clear. In the view that he had thus taken, the learned Subordinate Judge rejected Kamakshi's claim to succeed on the death of Vaithilinga as the surviving joint tenant, to the entirety of the 100 acres of land and held that Kalyansundaram was entitled to half of it. Pursuant to this decision the partition to which we have earlier referred, was made. We would here remind that an appeal and a cross-objection against this judgment were rejected.
8. Learned counsel for the respondents relies on the words “the share of first defendant should go after her death to her representative” in the judgment of the learned Subordinate Judge which we have earlier quoted and contends that they decide that the Subordinate Judge on an interpretation of the deed of partition held that on Kamakshi's death her share would go to her representative. It was said that it had, therefore, been held by him that Kalyansundaram had no vested interest in the 50 acres of which Kamakshi was held to be entitled to continue in possession. We should suppose that if such was the interpretation of the deed by the learned Subordinate Judge, his judgment might operate as res judicata barring the claim of the appellants in the present suit for they claim through Kalyansundaram who was a party to the earlier suit. The question appears to us to be whether this sentence in the judgment amounts to a decision operating as res judicata. It is unnecessary to refer to the decisions on the point of res judicata; it is enough to say that a decision can operate as res judicata if it was necessary for the purpose of the case in which it had been given. There is no dispute between the parties on this point.
9. Now, it seems to us perfectly clear that no question arose in Suit No. 54 of 1904 as to the person who would succeed after her death to any property that might come to Kamakshi under a decree made in it. It was not necessary for the learned Subordinate Judge for the decision of any of the disputes that arose in that suit to say to whom the lands that went to Kamakshi would go on her death. It would, therefore, appear that the sentence in the judgment in Suit No. 54 of 1904 on which learned counsel for the respondents relied could not operate as res judicata barring the present suit.
10. There are, however, other reasons supporting that view. In an earlier part of his judgment which we have already quoted, the learned Subordinate Judge held that by the deed it was declared that the entire 100 acres “should descend to the plaintiff after their deaths”, that is, those lands will go to Kalyansundaram after the death of Vaithilinga and Kamakshi. This was really his interpretation of the deed so far as the devolution of the lands was concerned. It would be legitimate to suppose that the learned Subordinate Judge did not intend to contradict himself by interpreting the same words in the deed in a different way by using the sentence that the share of the first defendant should go after her death to her representative. It has to be remembered that at the date of the judgment Kalyansundaram was the legal representative of both Vaithilinga and Kamakshi. It seems to us, therefore, to be a natural interpretation of the sentence in the judgment on which the respondents rely to hold that the word “representative” had been used really as indicating Kalyansundaram. We should also point out that in the earlier part of the judgment as also in the part on which the respondents rely it was held that Vaithilinga and Kamakshi had by the deed been given only a life interest in the lands. It would not be a natural interpretation of the learned Judge's judgment to hold that having decided that under the deed Vaithilinga and Kamakshi held the lands only for their lives he proceeded to decide that at their deaths the lands would go to their respective representatives. The question was of rights under the deed and if under the deed Vaithilinga and Kamakshi had only life interest in the lands, their the lands were to go to Kalyansundaram after the death of Vaithilinga and Kamakshi. The learned Subordinate Judge was not deciding any question of intestate succession to the lands on the death of these two.
11. It also seems to us that in the portion of the judgment on which the respondents rely the learned Subordinate Judge only dealt with the question whether Kalyansundaram who had been held not to be entitled to the entirety of the 100 acres, was entitled to any portion of the lands. The real point in that connection, according to the learned Subordinate Judge, was whether the deed had made Vaithilinga and Kamakshi joint tenants in respect of the 100 acres or tenants in common because it was only in the latter event that Kalyansundaram might claim a half share in the lands on Vaithilinga's death. Having held that the words of grant in the deed read by themselves created a tenancy in common in the lands in favour of Vaithilinga and Kamakshi, he proceeded to consider whether the words providing for the lands going to Kalyansundaram on the death of Vaithilinga and Kamakshi should lead to a different interpretation of the words of grant and held that they were not clear enough to do so. Having thus decided that Vaithilinga had a half share in the lands as a tenant in common with Kamakshi, he proceeded to consider whether the provision in the deed that Kalyansundaram would get the lands after the life time of Vaithilinga and Kamakshi, could be interpreted to mean that though the lands were held as tenants in common by Vaithilinga and Kamakshi, Kalyansundaram was not entitled to any part of the lands till after the death of both of them and that till then Kamakshi was entitled to them as she claimed. He answered the question in the negative and it was in that connection only that he said that the proper interpretation of those words was that the share of Vaithilinga in the lands was given to his representative after his death and the share of Kamakshi to her representative after her death. He was only deciding that the words meant that on the death of each, his or her share would devolve as provided in the deed and not pass to the person who survived. On this basis he held that Kalyansundaram was entitled on Vaithilinga's death to the 50 acres which the latter held for his life. Kalyansundaram did not claim as the legal representative of Vaithilinga but as the person named in the deed. He, of course, was Vaithilinga's legal representative and obviously that is why the learned Subordinate Judge used these words to describe him. We are unable to hold that he was interpreting the deed as meaning that the share each of Vaithilinga and Kamakshi in the lands would go on their respective deaths to their legal representatives whoever they might be at the time. That was not a question that arose or he was asked to decide.
12. We are, therefore, of the view that there is nothing in the judgment in Suit No. 54 of 1904 to operate as barring this suit by way of res judicata. It is of some interest to point out that the sale in execution on which the trustees-plaintiffs — now represented by the appellants before us — based their claim was expressly of Kalyansundaram's vested interest under the deed in the lands which were then in Kamakshi's possession under the decree in Suit No. 54 of 1904. The trustees in that application for execution had alleged that Kalyansundaram had such vested interest. The order directing the sale held that he had such a vested interest. The certificate of sale mentions that Kalyansundaram had a vested right in those lands. That would appear to be a decision binding on the respondents as Kalyansundaram's heirs.
13. Learned counsel for the respondents stated that if we found ourselves in agreement with the appellants' contention, we should refer the case back to the High Court for the decision of various other points that arose in it. This contention seems to us to be wholly unfounded. It is clear from the judgment of the High Court under appeal that before that Court the respondents confined their argument only to the question of res judicata. Besides this aspect of the matter, learned counsel for the respondents was also unable to refer us to any point of any substance which could have been argued with plausibility in the High Court in support of the respondents' case and was not argued. We find no reason to refer the case back to the High Court for decision of any outstanding point; we are clear that no other point remains to be decided.
14. In the result we allow the appeal, set aside the judgment of the High Court and restore that of the learned trial Judge. The appellant will get the costs of the proceedings in the High Court and in this Court.