Wallis, C.J.@mdashThe subject of this suit is the amount of the kattubadi payable to the plaintiff Zemindar by the defendants who are
agraharamdars, and the question argued before us is whether this is res judicata against the 10th defendant by reason of the decree in second
appeal No. 838 of 1911 confirming the decree in A.S. No. 451 of 1905 which decided the question against the agraharamdars reversing the
decree of the Subordinate Judge in their favour.
2. In O.S. No. 56 of 1901 in the Court of the Additional Subordinate Judge''s Court of Rajahmundry two of the agraharamdars sued the Receiver
of the Nidadavole Estate and the Zemindar for a declaration that the kattubadi was only 580 joining the other agraharamdars as defendants.
3. The Additional Subordinate Judge of Godavari gave the plaintiffs a decree in O.S. No. 56 of 1901 which was reversed on 1st December 1910
by the District Judge of Kistna in A.S. No. 451 of 1905. Prativadi Bhayamkaram Rukminiamma, one of the agraharamdars through whom the
present appellant (the 10 defendant.) claims, was impleaded as the sixth defendant in the former suit and as the fourth respondent in the appeal to
the District Court. She died in Match 1908 nearly three years before the disposal of the appeal, and the appellant, who was the Receiver of the
Nidadavole Estate, failed to bring on her legal representatives, nor were they made parties in the second appeal to this Court preferred by the
plaintiffs in S.A. No. 838 of 1911. The District Judge has found the amount of the kattubadi in the present case to be res judicata against the 10th
defendant Sriman Madhabhushi Gopalacharyulu, on the ground that he was impleaded in the second appeal as the representative of the deceased
Rukminiamma, but this appears to be an error as Prativadi Bhayamkaram Gopalacharyulu who was impleaded as the fourth respondent in the
second appeal was the 9th defendant in the Original Suit and a different person from the present 10th defendant.
4. We must take it then that no legal representative of Rukminiamma, through whom the 10th defendant claims, was brought on after her death
either by the contesting defendant in his appeal to the District Court, or by the plaintiffs in their Second Appeal to this Court. It has none the less
been argued before us that the suit is res judicata as against the 10(h defendant by virtue of Explanation VI of Section 11 of the Code of Civil
Procedure, Act V of 1908 which says that ""where persons litigate bona fide in respect of a private 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.
It is clear from the judgment of the District Judge in the previous suit, which was confirmed in Second Appeal, that the plaintiffs in the previous suit
were litigating on behalf of themselves and the other agraharamdars whom they joined as defendants because they were unwilling to sue as
plaintiffs, as regards the amount of kattubadi, and that they obtained a decree in the Munsif''s Court which was reversed by the District Judge on
the ground that the full amount of kattubadi claimed by the. contesting defendant, the Receiver of the Estate, was payable; and the position
therefore is that Rukminiamma, the 6th defendant and her heirs were not represented in the appeal when the District Judge set aside the decree
which the plaintiffs had obtained on her behalf as well as well as their own, or in the second appeal preferred by the plaintiffs in which that decision
was affirmed. If there had been no appeal to the District Court from the decree of the Subordinate Judge the issue as to the kattubadi would
apparently have been res judicata in her favour by virtue of the explanation although she had been impleaded only as defendant and she remained
ex parte because the relief had been claimed on her behalf, Somasundara Mudali v. Kulandavelu Pillai ILR (1905) Mad. 457 and equally of
course it would have been res judicata against her if her representative had been properly impleaded in the appeals. The question whether the
explanation is applicable although Rukminiamma was not represented either in the appeal or in the second appeal is of considerable difficulty. The
explanation was first enacted as Explanation V of Section 13 of the Code of 1877 in which Section 30(now Order 1 Rule 8) was first enacted.
Section 30 was again taken with an important modification from Order XVI. Rule 9 of the new Rules of the Supreme Court which embodied the
practice of the Court of Chancery in representative suits as explained by Lord Eldon in Cockburn v. Thomson (1809) 16. Ves. 321 : 94 E.R.
1171 Order 16 Rule 9 of the Rules of the Supreme Court under the Judicature Act provides that ""where there are numerous persons having the
same interest in one cause or matter, one or more or such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in
such cause or matter, on behalf or for the benefit, of all persons so interested"" and, where a plaintiff properly so sues, the persons whom he
represents are bound Markt Co., Ltd. v. Knight Steamship Co. Ltd. (1910) 2 K.B. 1021. The rule was reproduced in Section 30 of the Code of
1877 with this important modification that the permission of the Court is required to enable the plaintiff to sue in such a case, where as under Order
16 Rule 9 no such permission is required in the case of plaintiffs. It therefore follows that in India the legislature considered that a plaintiff ought not
to be allowed to represent the other parties interested in the case mentioned in the section without the leave of the Court. Section 11 and the
explanation were enacted at the same time and must be read together and it has sometimes been stated that the explanation is applicable only to
cases where the consent of the Court to the institution of the suit had been given u/s 30. Thanakoti v. Muniappa ILR (1885) Mad. 496 Baiju Lal
Parbatia v. Bulak Lal Puthak ILR (1897) Cal. 385 Srinivasachariar v. Raghavachariar ILR (1897) Mad. 28. The explanation no doubt applies to
such cases, but it is not in terms confined to them. It may be that, if a suit to which Section 30 is applicable were brought without the consent of the
Court the plaintiff could not be considered to be litigating bona fide on behalf of the other persons interested, that is, not only honestly but with due
care and attention, or in other cases in which he failed to implgad parties who ought to have been joined, but it is in terms wide enough to include
accidental slips where no real prejudice has been caused, and we should not in my opinion be justified in refusing to apply it to such cases. This is
the view taken in Rangamma v. Narasimha Charyula 31. M.L.J. 26 but before coming to that decision it is desirable to refer to the other decisions
of this Court which have been cited. In Varanakot Narayanan Nambudri v. Varanakot Narayanan Nambudri ILR (1880) Mad. 328 it was merely
held that a decree against the karnavan of a Malabar tarwad, was binding on the other members of the tarwad, even though no order u/s 30 had
been obtained. This proceeded on the ground that the karnavan sufficiently represented the other members of the tarwad without any order u/s 30,
and even where the section was in terms inapplicable as where the members of the tarwad are not numerous. Similarly a widow sufficiently
represents her husband''s estate, and the nearest reveVsioner, it is now settled, sufficiently represents other reversioners in contesting an adoption
which would exclude them all. This case does not seem to me to help us as the other matters of the tarwad were properly represented throughout
the litigation by the karnavan. In Thanakoti v. Muniappa ILR (1885) Mad. 496 a ryot had sued for damages to his crops caused by the
defendants'' diversion of certain water which the plaintiff claimed to be entitled to along with the other ryots of the village. The suit was dismissed
on the ground that they had not the right claimed, but the explanation was held not to debar other ryots not parties to the former suit. from bringing
similar suits. This decision proceeded on the ground that the explanation was inapplicable as the plaintiff in the first suit had not sought any relief for
the other ryots which is in accordance with the subsequent ruling of the Full Bench in Somasundara Mudali v. Kulandavelu Pillai ILR (1905) Mad.
457 but the judgment also contains the following observations as to the effect of the explanation, "" Now, unless the other plaintiffs were aware of
the suit of plaintiff No. 3 and authorised him to make the claim for them (of which there is neither allegation nor evidence) Plaintiff No. 3 would
have had no authority to claim on their behalf so as to bind them from afterwards bringing their own suit. One party having a right in common with
others is not at liberty or authorized to sue in his own name to establish the right of others except by their authority. Explanation 5 must be read
with the provisions of Section 30 and the principles to be found in that section. If that section had been followed which it was not, then the other
plaintiffs would be bound."" These observations may be read as meaning that in such a case the other ryots could not have been bound unless they
were impleaded in the former suit on an order obtained u/s 30. That in my opinion might properly be so, because a plaintiff who sued on their
behalf without impleading them could not be considered to be litigating on their behalf bona fide i.e., with due care and attention and the
explanation should not be read as setting at naught the ordinary rules as to the joinder of parties. Be that as it may, it is a very different case from
the present one. In Mahadevan v. Keshavan ILR (1887) Mad. 191 it was held that where four out of the five trustees sued to recover trust
property the trust which was the real plaintiff was sufficiently represented and bound by the decision, and that the fifth trustee was not entitled to
sue again on its behalf. The decision was so understood by the Full Bench in Somasundara Mudali v. Kulandaivelu Pillai ILR (1905) Mad. 457
and does not I think really help either side. In Chandu v. Kunhamad ILR (1891) Mad. 324 certain members of a Mahomedan family sued to
recover their share in certain land joining the other members of the family as defendants and it was held that a subsequent suit by a plaintiff claiming
under one of these defendants for the recovery of that defendant''s share was barred under the explanation, but this decision was afterwards
overruled by the Full Bench in Somasundara Mudali v. Kulandavelu Pillai ILR (1905) Mad. 457 following the Full Bench in Surendra Nath Pal
Chowdhury v. Brojo Nath Pal Chowdhury ILR (1886) Cal. 352 on the ground that the plaintiff had not been suing in the first suit on behalf of the
other members of the family impleaded as defendants but merely claiming his own share. Latchanna v. Saravayya ILR (1894) Mad. 164 was to
the same effect and was also overruled by the Full Bench in Somasundra Mudali v. Kulandaivelu Pillai ILR (1905) Mad. 457. It was held by the
Full Bench in that case, overruling the decisions just cited that, where a co-sharer sues for his own share impleading the othar co-sharers as
supplemental defendants but not claiming any relief for them the decision is not res judicata against them although they were parties to the suit.
5. In these cases the Court had not to consider a case where the plaintiff in the second suit had not been impleaded in the first suit or properly
represented in it by virtue of an order under Order 1. Rule 8 or otherwise.
6. The only decision of this Court governing the present question appears to be Gudimolla Rangamma and Another Vs. Panchangam
Narasimhacharyulu and Others, where it was held upon the language of the explanation that the decision in a suit, brought by one agraharamdar to
recover the suit property for himself and the other agraharamdars, fourteen of whom were impleaded as defendants 3 to 16 and remained ex parte,
was res judicata in a subsequent suit for the same reliefs brought by the fourth defendant so impleaded and another agraharamdar who for some
reason had not been made a defendant in the previous suit. The learned Judges held that the plaintiff in the former suit had been litigating bona fide
in respect of a private right claimed in common for himself and others, and that the second plaintiff, though not a party to the suit was bound by
virtue of the explanation.
7. The language of the explanation may seem dangerously general, and Edge C.J., has observed in Ram Narain v. Bisheshar Prasad ILR (l888)
A11. 411 that we should be careful in applying it, and that it should not be applied to any case which does not come within its very wording. I
entirely agree, and should certainly hesitate to hold that any litigation had been bona fide within the meaning of he Explanation in which there had
been a substantial departure from the accepted rules as to the joinder of parties as for instance by suing without the leave of the Court in a case
properly falling under Order 1. Rule 8 or in suits as regards public rights without the authority prescribed in Sections 91 and 92. At the same time,
1 cannot say on the strictest construction that the plaintiff''s litigation in the earlier suit in this case was otherwise than bona fide within the meaning
of the section. He impleaded all the other agraharamdars as defendants including Rukminiamma through whom the present 10th defendant claims,
and they remained ex parte. When she died after being impleaded as a respondent in the first defendant''s appeal to the District Court and before
the hearing of the appeal, the failure to bring on her legal representatives was due to the default of the other side. When the plaintiff appealed to this
Court from the decree of the District Court the fact that he did not implead the representative of the deceased 6th defendant who had been ex
parte in the first Court and whose legal representatives had not been brought on by the other side in the District Court cannot in my opinion be said
to constitute such a want of bona fides as to render the explanation inapplicable. Onthis ground therefore I would support the Subordinate Judge''s
finding that the 10th defendant in this suit who claims through the 6th defendant in the previous suit is bound by res judicata and would dismiss the
second appeal with costs.
Spencer, J.
8. The question to be decided is whether the decision of the District Judge of Kistna in A.S. No. 451 of 1905 dated 1-12-1910 (Exhibit A in
these proceedings) confirmed in Second Appeal by the High Court in Second Appeal No. 838 of 1911 on 7-8-1913 (Exhibit XVII) is res
judicata against the 10th defendant, who is the appellant before us, on the point of Rs. 714-14 being the correct amount of kattubadi payable by
the agraharamdars on the Gopavaram Agraharam. It appears that the 6th defendant in that suit, whose name was Prativadi Bhayamkaram
Rukminiamma, was dead at the time when the High Court passed its remand order on 17-9-1909 and when the District Judge delivered his
judgment on 1-12-1910, although her name was still kept on the record. The Subordinate Judge is of opinion that this defect is cured by the fact
that the 10th defendant was one the record as Rukminiamma''s legal representative when the High Court judgment finally disposing of the Second
Appeal was passed on 7-8-1913.
9. The District Judge''s judgment in A.S. No. 451 of 1905 shows the name of Prativadi Bhayamkaram Gopalacharyulu as the 6th respondent and
the same individual''s name appears as 4th respondent in the High Court''s judgment.
10. The 10th defendant''s name is Sriman Madhabhushi Gopalacharyulu, The Subordinate Judge therefore appears to be in error in his statement
that this 10th defendant was added as the legal representative of Rukminiamma in the second appeal to the High Court.
11. A suit instituted for settling the amount of kattubadi due to the Receiver of the estate upon this agraharam was one in which all the
agraharamdars were necessarily interested. In Second Appeal No. 359 and 1789 of 1918 it was recently held by Krishnan J. and myself that
agraharamdars are jointly and severally liable for all the jodi payable on their agraharam. We followed prior decisions of this High Court in Ellaiya
v. Collector of Salem (1866) 3 M.S.C.R. 59 Ramayya v. Subbarayudu ILR (1889) Mad. 25 and Sobhanadri Apparao v. Gopalakrishnamma ILR
(1892) Mad 84
12. Under Explanation VI to Section 11 of the C.P. Code when there is a final decision by a competent Court in respect of a private right claimed
in common by parties to the suit and others and the litigation is conducted bona fide, all persons interested in that right are bound by the result of
the litigation.
13. In Gudimolla Rangamma and Another Vs. Panchangam Narasimhacharyulu and Others, it has been held by Sadasiva Aiyar and Moore JJ.,
that this explanation is not confined to suits brought under O.I.R. 8 by a few persons representing a numerous class after obtaining the Court''s
permission and after giving notice to others who may be interested. This decision followed the dictum in Varanakot Narayanan Nambudri v.
Varanakot Naraynan Nambudri ILR (1880) Mad. 328 under the Code of 1859. That was a case where a declaratory decree had been obtained
against the karnavan of a tarwad. A decree to which a karnavan is a party binds the other members of the tarwad because he is their recognised
representative in suits, as was well settled by a Bench of Four Judges in Vasudevan v. Sankaran ILR (1897) Mad. 129. But Gudimolla Rangamma
and Another Vs. Panchangam Narasimhacharyulu and Others, and the case before us are instances of private rights claimed by some individuals in
common with others rather than as representatives of a body of persons. Somasundara Mudali v. Kulandaivelu Pillai ILR (1905) Mad. 457 was a
Full Bench case under the Code of 1882. The words ""claimed in common"" occurring in explanation V to Section 13 of that Code and repeated in
explanation VI of the present Code are explained therein as referring to rights to relief which would benefit such parties by being granted and give
them such an interest as would enable them to join as co-plaintiffs u/s 26. (Now Order 1 Rule 1.)
14. There can be no doubt that agraharamdars have such a common interest, for as each agraharamdar can be made to pay the whole of the Jodi
if others do not pay, all are equally interested in the demand being decreased to the lowest possible figure, or at least not being increased.
15. Judged by this standard, I feel clear that the decision in A.S. No. 451 of 1905 is binding on the parties to this suit including the 10th defendant,
as that litigation was, so far as it appears conducted bona fide.
16. But Mr. T.R. Ramachandra Aiyar has sought to draw a distinction in a case where a party is represented at one stage of the suit and
afterwards ceases to be represented owing to a failure to bring his legal representatives on record. If such cases are to be made exceptions to the
general rule it would be necessary to import words in Explanation VI to Section 11 which are not there. ""All persons interested in such right"" must
then be understood as meaning ""all persons who are not already parties to the suit and are interested in such right.
17. I see no reason to put such a limited construction on the plain words of the explanation.
18. I agree with my Lord the Chief Justice that the lower Court''s decision is right and that this appeal should be dismissed with costs.
