RAJAMANNAR, C. J. :-

The plaintiff in O. S. No. 59 of 1949 in the Court of the Subordinate Judge of Sivaganga appeals against the dismissal of his suit filed in the following circumstances. He is the paternal grandson of one Arumugam Pillai. Arumugam Pillai was one of the three sons of Subramaniam Pillai, the other two being Muniyandi Pillai and Muthukumaru Pillai. Muniyandi had three grand sons and they are defendants 1 to 3. Their mothers are respectively defendants 8, 4 and 10. Arumugam Pillai had an only son, Thothan Pillai alias Muniyandi Pillai, and the plaintiff is his son. The 11th defendant is his widow.

Since the filing of the suit the first defendant died and his widow was added as his legal representative as the 12th defendant. 9th defendant is an alienee and the fifth defendant is the daughter of the deceased eldest son Muniyandi Pillai and the sixth defendant is the daughters son of Arumugam Pillai. The plaintiffs mother had instituted in the same court, that is, the court of the Subordinate Judge, Sivaganga, a suit, O. S. No. 2 of 1943, for partition and separate possession of a half share as belonging to her and to her son, the plaintiff, on the footing that Muniyandi Pillai and Arumugham Pillai formed members of a Hindu joint family, the other brother, Muthukumaru Pillai having separated from the family earlier. In that suit a preliminary decree was passed by the trial Court as prayed for by the plaintiff and his mother.

Defendants 1 to 4 in this suit, who were also defendants in that suit, filed an appeal to this Court against that decree, A. S. No. 178 of 1944. This appeal was substantially allowed and the suit was dismissed except as regards properties in which alone the share of Arumugams branch was admitted by the defendants. The High Court remanded the suit back to the trial Court for partition by metes and bounds of such properties only.

The present suit was filed for the following reliefs : (1) for setting aside of the decree in A. S. No. 178 of 1944 on the file of this court and (2) for a division of plaint mentioned properties and other properties which may be held to belong to the joint family and delivery of plaintiffs halt share to the plaintiff of the agricultural properties, and one-fourth share in the non-agricultural properties, (3) an account from the first defendant and for other incidental reliefs. The ground on which the plaintiff sought to set aside the decree in A. S. No. 178 of 1944 was that there was gross negligence on the part of his mother who acted as his next friend. Several pleas in defence were raised, one of them being issue 3 :

Is the decree of the High Court in A. S. No. 178 of 1944, liable to be set aside on the ground of gross negligence of plaintiffs next friend as contended in the plaint?"

Subsequently another additional issue was framed which ran thus :

"Whether the suit is barred under S. 11, Explanation VI, C. P. C. by reason of the dismissal of the prior suit O. S. No. 2 of 1943, of this Court on appeal in A. S. No. 178 of 1944, on the file of the High Court, Madras?"

This additional issue was tried as a preliminary issue. The learned Subordinate Judge held in favour of the defendants on this issue and dismissed the suit. Hence this appeal.

2. In our opinion this appeal must be allowed. It is impossible to uphold the decision of the learned Subordinate Judge that the suit is barred under S. 11, Explanation VI. Sec. 11 embodies the rule of res judicata. Explanation VI runs thus :

"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."

So far as we were able to follow the argument of Mr. M. Natesan, learned counsel for one of the respondents, who tried to support the decision of the learned trial Judge, Explanation VI is sought to be availed of on the following reasoning