The central legal point established in the judgment is the interpretation of joint family property, burden of proof in partition cases, and the application of res judicata.

Venkatasubba Rao, J.

1. These appeals relate to the ownership of a certain sum of money. To dispose of them, it is unnecessary to refer to more than a few facts. There were five brothers: (1) Adaikkalam Chetty, (2) Veerappa Chetty, (3) Subban Chetty, (4) Rengaii Chetty, and (5) Vaidyalinga Chetty. In 1885, Adaikkalam lent on the mortgage of certain properties a sum of Rs. 13,000 to a person whom we shall call the Zemindar. The deed of mortgage was taken in the name of Adaikkalam. In 1888, the last three brothers (Subban, Rengan and Vaidyalinga) lent to the same person Rs. 4,000 on a second mortgage of those properties. The deed was taken jointly in the names of the three brothers mentiened above. That deed provides for the payment by them of Rs. 13,000 due to the first mortgagee Adaikkalam. He, however, was not paid and the mortgage in his favour remained in force. On the 28th of December, 1905, Vaidyalinga assigned by Ex. II his one-third share in Rs. 4,000 in favour of Adaikkalam. On the 6th of January, 1906, Rengan similarly assigned his share in favour of the same person. (Ex. III.) On the 10th of October, 1906, Adaikkalam filed O.S. No. 49 of 1906 to enforce his rights under the two mortgages referred to above. In that suit the Zemindar was made the 1st defendant and Sub-ban, Adaikkalams brother, the second. As subsequent mortgagees, certain others were impleaded as defendants 3 to 6. Adaikkalam as plaintiff claimed not only Rs. 13,000 but also two-thirds of Rs. 4,000 basing his right thereto on the assignments executed in his favour by Rengan and Vaidyalinga. In the plaint in that. Suit, he alleged that Subban was entitled to a third of Rs. 4,000, that he was therefore asked to join with him as plaintiff and that on his failing to do so, he was impleaded as a defendant. He prayed that a decree might be passed both in favour of himself and Subban for the respective amounts due to them. In effect, Adaikkalam asked for no relief against Sub-ban but prayed, on the contrary, that a decree might be passed both in his and Subbans favour. The suit was resisted both by the Zemindar and Subban. To the defence raised by Subban, we shall advert presently. The Zemindar pleaded inter alia that the amount of the first mortgage belonged not solely to Adaikkalam but to the joint family of which he was a member and that the suit was bad for the nonjoinder of the other coparceners. An issue was framed as to whether Adaikkalam was solely entitled to the sum of Rs. 13,000 and the Trial Judge coming to the conclusion that it did not, dismissed the suit. From his decree, an appeal was taken to the High Court. (Appeal No. 189 of 1909.) What the effect is of the decision then given by the High Court, is one of the matters we have to decide. For the present, it is sufficient to state that the High Court allowed the appeal of Adaikkalam and passed a decree in his favour, holding nevertheless that the Rs. 13,000 belonged not to him solely, but to the joint family. In the present appeals, the question to decide is, is Subban Chetty entitled to a fifth of this sum of Rs. 13,000? There were two suits filed in the Lower Court and each of them raised the question, is Subban Chetty entitled to a fifth of the amount or is Adaikkalam the sole owner? For the sake of brevity, Subban Chetty may be treated as the plaintiff and Adaikkalam as the defendant. The Lower Court has disallowed the claim of Subban Chetty.

2. On behalf of Subban, his learned Counsel, Mr. K.S. Sankara Aiyar, has strongly urged that the decision of the High Court in O.S. No. 49 of 1906 operates as res judicata in his favour. Before examining that contention, we shall deal with the merits of the case. The question of fact that arises is, on the date of the mortgage suit, to whom did the Rs. 13,000 belong, to Adaikkalam solely or to the five brothers jointly?

3. In Suit No. 49 of 1906, that question, as we have said, was raised at the instance of the Zemindar. Adaikkalams case then was