Applicability of bar of res judicata.

M. Srinivasan, J.

1. The former appear arises out of O.S. No. 248 of 1969 on the file of the Sub Court, Salem. That suit was filed by the first respondent herein for recovery of a sum of Rs. 19,804-34 with interest on Rs. 12,424-34 at 18 per cent per annum from the date of plaint till decree and thereafter at 6 percent per annum till payment. That suit was based on a hire purchase agreement between the plaintiff and the first defendant by name Murugiah Chetti. Defendants 2 and 3 were said to be the guarantors. According to the plaint, certain amounts were paid on various dates towards the liability; but a huge amount remained to be discharged. Consequently, for the recovery of the sum due to the plaintiff, the suit was filed. It is not necessary to go into the other details of the plaint.

2. The suit was contested by the appellants herein on the ground that the transaction was not binding on them. The appellants are the sons and daughter of Murugaiah Chetty, the first defendant. According to them, the debts were incurred by the first defendant for immoral and illegal purpose and that they were not binding on them.

3. The other appeal viz., Tr. A.S. No. 1143 of 1986 arises out of O.S. No. 296 of 1967 filed by one Nallammal for recovery of a sum of Rs. 6662-50 alleged to be due on a mortgage executed by defendants 1 and 2 in the suit viz., Murugiah Chettiar and his wife. It was also alleged that the first defendant represented his minor sons also in the transaction. That suit was also contested on the ground that the debt was incurred for illegal and immoral purposes and was not binding on the children of Murugaiah Chettiar.

4. There was a third suit filed by the appellants in the two appeals for declaration that the conveyance deed dated 5-10-1961 in favour of their father Murugaiah Chettiar executed by their mother Bagiyam alias Thangammal was not binding on them and the subsequent alienations were void. An alternative relief was prayed to the effect that fee alienations of defendants 1 and 2 in the suit being the father and mother of the plaintiffs in favour of defendants 3 to 13 and the court proceedings by defendants 13 to 16 were not binding on the share of plaintiffs 1 to 3 and for making a provision for maintenance and marriage expenses for the 4th plaintiff (a daughter) and for division of the properties into four equal shares and to allot three shares to plaintiffs 1 to 3. 14th defendant in the partition suit is the plaintiff in O.S. No. 248 of 1969. 6th defendant in the partition suit is the plaintiff in O.S. No. 296 of 1967. All the three suits were disposed of by a common judgment by the learned Subordinate Judge, Salem, on 26-10-1978. The learned Subordinate Judge considered the issues which arose in O.S. No. 346 of 1968, the partition suit, and gave his findings thereon. The relevant findings are that the debts incurred by Murugaiah Chettiar and Bagiyam alias Thangammal were binding on the appellants herein and it was held that both the 6th defendant and 14th defendant in the partition suit were entitled to proceed against the properties of the family as the transactions challenged by the appellants herein were binding on the appellants. Based on those findings, the learned Subordinate Judge passed a preliminary decree for partition of the suit properties into four equal shares and allotment of three shares to plaintiffs 1 to 3. It was also declared that the alienations effected by defendants 1 and 2 In the suit in favour of defendants 3 to 7 and 14 to 16 were binding on the shares of plaintiffs 1 to 3 in the suit. The prayer for declaration in respect of the document dated 5-10-1961 was also negatived.

5. Based on the findings given in the judgment, a preliminary decree was passed in O.S. No.296 of 1976 on foot of the mortgage against defendants 1 to 6, 8 and 10 to 12 therein. Similarly, a decree was passed in O.S. No.248 of 1969 for a sum of Rs.15,404-34 with interest on Rs. 8,024.34 at 18% annum from the dat