The principle of res judicata does not apply when the subject matter of the current suit is distinct from that of a previous suit, allowing for partition of properties not included in earlier judgments.

JUDGMENT :

M.A.ABDUL HAKHIM, J.

1. Appellants are the plaintiff Nos.3 & 4 in the suit. The respondents are the plaintiffs 1, 2, 5 & 6 and the defendants 6 to 13. The suit was filed for the partition of Plaint A & B schedule properties. There are 12 items of immovable properties in the plaint A schedule property and 9 items of movable properties in the plaint B schedule.

2. Plaintiffs filed the suit for partition of the plaint schedule properties on the allegations that the plaint A schedule properties are a school and appurtenant land under the co-ownership and joint possession of the plaintiffs and the defendants who are the members of Thavazhi of the first defendant governed by Madras Marumakkathayam Rule of Succession applicable to the Nair community. A partition was effected among the Thavazhi members as per Partition Deed No.137/1958 of SRO Kuzhalmannam. The plaint schedule properties were not subjected to partition in the said Partition Deed and it was kept as a common property. During the time of the said partition, the second defendant as the Karanavar of the Thavazhi and being a teacher, was looking after the affairs of the school. A Society by the name Kuthannoor Educational Society was formed and later it became dysfunctional. The second defendant took care of the management of the school and took care of its affairs as Thavazhi property. The facilities in the school including furniture thereof were acquired out of Thavazhi funds. When the Partition Deed was executed, the second defendant incorporated provisions to his advantage neglecting the interest of the minor members of the Thavazhi that by receiving 3/4^th of the amounts spent for the school from him, the other members of the Thavazhi have to release their rights over the school in favour of the second defendant. Thereafter he preferred O.S.No.395/1983 to enforce the said provision. Even though the properties were purchased for the school, the Title Deeds thereof happened to be executed in the name of the second defendant. Taking advantage of the same, he is raising an unjustifiable claim and right over those properties. Each of the plaintiffs and the defendants has 1/14 share over the plaint schedule properties.

3. The plaintiffs claimed partition of the plaint schedule properties and allotment of separate possession of the respective shares to the plaintiffs and the defendants. In substance, the claim of the plaintiffs is that the plaint schedule properties are the Thavazhi properties which are liable to be partitioned among the plaintiffs and the defendants who are the members of the Thavazhi.

4. The suit was filed by six numbers of plaintiffs and 8 numbers of defendants. Originally, the second defendant alone contested the suit. On his death, the 11^th defendant, who is one of his legal heirs, contested the suit.

5. The defendants 1, and 3 to 7 filed Written Statement supporting the partition sought by the plaintiffs. But they did not pay the court fee for the separate allotment of their share.

6. The second defendant filed Written Statement contending, inter alia, that the entire plaint schedule items are not properties of the school. No movable or immovable assets was acquired for the school out of the Thavazhi funds. The school building and the landed properties of the school, movable assets of the school including furniture are the personal properties of the second defendant, over which the plaintiffs and the other defendants have no manner of right. The present suit is instituted as a counterblast to O.S.No.395/1983 preferred by the second defendant. After partition of the