Will the rule of res judicata apply if a suit between coparceners for the partition of immovable property was finally decided. Subsequently one of the coparceners filed another suit for partition to movable property.

Question: Will the rule of res judicata apply if a suit between coparceners for the partition of immovable property was finally decided. Subsequently one of the coparceners filed another suit for partition to movable property. [Raj J 1988, MPHJS 2015, UPHJS 2018]

Find the answer to the mains question only on Legal Bites. [Will the rule of res judicata apply if a suit between coparceners for the partition of immovable property was finally decided. Subsequently one of the coparceners filed another suit for partition to movable property.]

Answer

Explanation IV of Section 11 of CPC states the principle of constructive res judicata. It means that the parties to the litigation should bring their whole case before the court in a candid manner.

To attract the contention as to the bar on constructive res judicata it must be shown that the particular matter in issue or ground must have been a matter which ‘might and ought’ to have been raised in the former suit.

The Himachal Pradesh High Court in the case of Chandu And Ors. v. Kirpa Ram, AIR 1952 HP 65, has held that it is well established that a suit for partition between coparceners should embrace the entire family property.

That being so, for a final and complete decision in the former suit it was incumbent on the present plaintiffs to do as defendants in that suit what they seek to do in the present, viz., bringing the property in suit into the hotchpot.

It is noteworthy that it is not the plaintiffs’ case that the property in suit was excluded, from the previous partition by mistake, fraud, or accident, or that they withdrew from the previous suit with liberty to file a fresh one in respect of the present subject matter.

The matter which has been made a ground of attack in the present suit should have been made a ground of defence in the former suit and will, therefore, be deemed, under Explanation IV to Section 11, CPC to have been constructively in issue directly and substantially and to have been decided against the present plaintiffs, in the former suit.

Hence, in view of the above decision, it can be said that the subsequent suit by one of the coparceners for partition of movable property should not succeed as it is barred by the principle of constructive res judicata.

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