Filing of second suit for partition barred.

The Second Appeal is instituted by one N. Venkatarama Iyer, the plaintiff in the Courts below, in a suit for partition and separate possession of his alleged fourth share in the suit properties. Admittedly, the properties belonged to the co-sharers of a Muslim family, and the plaintiff (appellant) sued as a transferee or assignee for value of the rights of two of those sharers, under circumstances that are not without some degree of interest. The facts are as follows. The properties originally belonged to one Kamal Sahib who died in 1933. He left surviving him his widow Mariam Bi, two daughters Hajrm Bi and Murad Bi and a son Abdul Karim alias Nur Pasha who are contesting respondents. Mariam Bi died on nth January, 1944. Prior to her death, she instituted a suit O.S. No. 453 of 1945 for partition along with her two daughters against her son Abdul Karim (1st respondent).

After the death of Mariam Bi, her two daughters were recorded as her legal representatives, the son already being on record, and the suit continued. On 24th April, 1944, there was a preliminary decree in this partition suit. There was a final decree on 21st October, 1944, but prior to this final decree on nth July, 1944, Hajram Bi died. Admittedly, her legal representatives were her husband Latifuddin (1st defendant herein) and her son Sheik Abdual Jaleel (2nd defendant herein). They attempted to be brought on record in O.S. No. 453 of 1943 as the legal representatives of Hajram Bi, but they failed in this attempt. It is unnecessary for our present purpose to deal with the merits of the refusal of the Court to bring those persons on record as the legal representatives of the deceased Hajram Bi. It is sufficient to note that a Civil Miscellaneous Appeal filed by them was also dismissed, and that the present defendants 1 and 2 were never brought on record as parties in O.S. No. 453 of 1943.

After the final decree in O.S.No. 453 of 1943, Abdul Karim (1st respondent), who had been ex parte in that suit, filed applications for setting aside the preliminary and final decrees, and permitting him to contest the re-opened suit; those applications were successful. But on the same date 3rd September, 1945, the suit itself was dismissed as settled out of Court between the parties on record. It has to be carefully noted that Latifuddin and Sheik Abdul Jaleel (present defendants 1 and 2), the admitted legal representatives of Harjam Bi, were not parties to this settlement out of Court and the consequent dismissal of the suit.

On 7th May, 1945, the plaintiff (appellant, N. Venkatarama Iyer) purchased the fourth share of the husband and son of Hajram Bi (defendants 1 and 2) under a registered deed of conveyance for value. He brought this suit for partition, on the simple ground that he had stepped into the shoes of those heirs and that their rights had never been decided; it may be that Abdul Karim (1st respondent) was permitted to be in absolute enjoyment of the properties after the dismissal of O.S. No. 453 of 1943, but that can only be without prejudice to the rights of the legal representatives of Hajram Bi, who were not parties to the settlement out of the Court and the dismissal of the suit. Nor can there be any question of adverse possession against the husband and son of Hajram Bi, who are Muslim co-sharers equally with Abdul Karim, and that proposition is not seriously in dispute. Novertheless, the learned District Judge in the first appeal has dismissed the suit of the plaintiff on three main grounds. Firstly, he seems to hold upon a reasoning, which is very difficult to follow, on the strength of certain decisions, which do not appear to have been properly applied to the facts in this case, that even the legal representatives of the deceased Hajram Bi were bound by the dismissal of O.S. No. 453 of 1943 and could not thereafter agitate their rights. Secondly, he thought that the transfer in favour of the plaintiff was not for value, and hence the plaintiff had