Balakrishna Menon, J.
1. Even though this second appeal by the defendant is admitted on as many as seven QUESTIONS of law formulated in the memorandum of appeal,the only point urged before us is on the question of res judicata covered by the order of reference of the case for decision by a Division Bench.
2. The suit is for redemption of Ext. AI mortgage executed by one Krishnan Asary to the defendant on 20-11-1958. Krishnan Asary died in 1964 and the plaintiff sues as his legal heir. Several pleas were raised in defence to the suit. It is not necessary to advert to all such pleas except the following : (1) There was a previous suit O.S. 586 of 1967on the file of the Munsiffs Court, Neyyattinkara for redemption of Ext. Al mortgage filed by the two wives and nine children of the deceased Krishnan Asary and that suit was dismissed as per Ext. B2 judgment on the finding that the transaction evidenced by Ext. Al being an otti kuzhikanam is a lease and not a redeemable mortgage. The present suit is accordingly barred for the reason of the decision in O.S. 586 of 1967. (2) The property did not belong to KrishnanAsary alone, but also to his brothers and the rights of the brothers have been acquired bythe defendant as per Exts. B7 to B9. The plaintiff is not therefore entitled to redeem Ext. Al. (3) The transaction evidenced by Ext. A1 is a lease and the defendant is entitled to fixity of tenure under the Kerala Land Reforms Act.
3. The issue relating to fixity of tenurewas referred to the Land Tribunal underSection 125(3) of the Kerala Land Reforms Actand the Tribunal returned a finding and (that)the transaction is not a lease and the defendantis not entitled to fixity of tenure. The trialcourt accepting the finding of the Land'Tribunal held that Ext. Al is a redeemablemortgage. The plea of res judicata based onExt. B2 judgment was rejected on the groundthat the plaintiff was not a party to the suitO.S. 586 of 1967. The suit was however: dismissed for the reason that the defendanthad by assignment acquired the shares ofother co-owners and the remedy of theplaintiff was only to sue for partition andredemption of his share in the suit property.In appeal by the plaintiff the lower appellatecourt has reversed the decision of the trialcourt and has decreed the suit for redemption of Ext. Al and for recovery of possession of the property. The appellate court held that Ext. Al mortgage was executed by Krishnan Asary alone. The defendant had not acquired any part of the equity of redemption under Exts. B7 to B9, the integrality of the mortgage had not been broken up and the plaintiff as a legal heir of the deceased Krishnan Asary is entitled to redeem the mortgage. The question of res judicata has not been considered by the lower appellate court.
4. The only question urged by the learned counsel Sri Krishna Moorthy on behalf of the appellant is that the present suit is barred by res judicata for the reason of Ext. B2 judgment in the previous suit O.S. 586 of 1967.
5. It is true that the plaintiff is not a party to the suit O.S. 586 of 1967. That suit was filed by 11 plaintiffs as legal heirs of deceased Krishnan Asary against the defendant for redemption of Ext. Al mortgage. The suit was dismissed as per Ext. B2 judgment on the finding that Ext. Al being an otti kuzhikanum is a tenancy under the Kerala Act 1/1964 as amended by Act 35/1969 and is hence irredeemable. The learned counsel for the appellant urges that the decision in Ext. B2 judgment is binding also on the plaintiff though not eo nominee a party thereto for the reason of Explanation VI to S. II of the C.P.C Reliance is placed on the decision of the Supreme Court in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu, (1977) 2 SCR 636 : (AIR 1977 SC 1268). The case before the Supreme Court, arose out of a suit for partition of the assets of one Narayana by one of his sons against his other legal heirs. The first defendant, the eldest son claimed several items as his self acquisitions. He had filed another suit in the Munsiffs Court against his brother the third defendant for recovery of money due for tobacco supplied from his business for the latter's business. The money suit was transferred to the Sub Court for trial along with the partition suit. The trial court upheld the contention of the first defendant regarding several items claimed as his self acquisitions and decreed the suit for partition of the remaining items. The money suit bythe first defendant was decreed against the third defendant. The plaintiff appealed against both the decisions. The appeals were heard together and this court by a common judgment held that the items of properties claimed as the self acquisitions of the first defendant also belonged to the joint family of Narayana and his sons and passed a preliminary decree for partition of those items also. The money suit was dismissed on the ground that the tobacco trade of the first defendant was also found to be a joint family trade and the first defendant is not entitled to a decree against his brother for the value of tobacco supplied for the latter's business which was also found to be a joint family business. The first defendant filed an appeal before the Supreme Court against the preliminary decree for partition passed in appeal. There was no appeal against the decree of this court dismissing the suit for recovery of money against the third defendant. The question before the Supreme Court was as to whether the decision in the money suit was res judicata against the appellants plea in the appeal before the Supreme Court. Even though the money suit was only against the third defendant and the other sharers were not parties thereto, the Supreme Court held that the decision therein operates as res judicata against the first defendant appellant for the reason of Explanation VI to S. 11, C.P.C. It is stated at page 643 (of SCR) : (at p. 1274 of AIR) :
'We think that the submission made by the learned counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right 'in common for themselves and others'. Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrineof res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here'.
The Supreme Court refers to the principle of res judicata at page 641 (of SCR): (at p. 1272 AIR):
'Sir Lawrence Jenkings pointed out, in Sheoparsan Singh v. Ramnandan Prasad Singh, (AIR 1916 PC 78) that the rule of res judicata 'while founded on ancient precedent, is dictated by a wisdom which is for all time'. Litigation which has no end or finality defeats its very object. This object is decision of disputes or an end to each litigation. Bul, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible. Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy. An 'estoppel, even if it be by record', rests on somewhat different grounds. Even such an estoppel savours of an equity or justice created by actions of parties the results of which have become recorded formally behind which they are not allowed to go'.
6. Thus the principle of res judicata is a matter of public policy and is an estoppel by judgment against all those bound or are deemed to be bound by a previous judgment. Explanation VI to Section 11, C.P.C. provides that 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 be deemed to claim under the persons so litigating.
7. Counsel for the appellant submits that the estate of deceased Krishnan Asary was fully represented by the plaintiffs in O.S. 586 of 1967, the interest of the present plaintiff is common with the interests of the plaintiffs in the previous suit and the decision in Ext. B2 judgment is binding on the plaintiff also. In N. K. Mohammed Sulaiman Sahib v. N. C. Mohammed Ismail Saheb, AIR 1966 SC 792 there was a previous suit for enforcement ofa mortgage executed by three persons, one of the mortgagors had died before the suit and the suit was against the two surviving mortgagors and the widows of the deceased mortgagor. That suit ended in a decree and in execution of the decree the mortgaged properties were sold in court auction and purchased by the mortgagee - decree holder himself with the leave of the court. A son of the deceased mortgagor was not impleaded in that suit. He brought the second suit for partition of the mortgaged properties by metes and bounds and in the alternative for a declaration that he was entitled to redeem the mortgage or the portion thereof equal to his share in the mortgaged properties. On these facts the Supreme Court held that the second suit is barred by the decision in the earlier suit for the reasons stated in paragraph 14 of its judgment at page 796 :
'Ordinarily the Court does not regard a decree binding upon a person who was not impieaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The court will also enquire, whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground whichtaint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion'.
8. The principle of the above decision is that the persons impleaded in the absence of fraud or collusion represent the estate of the deceased and all persons interested in the estate are also bound by the decision in the suit. The plaintiff here has no case of any fraud or collusion in the conduct of the earlier suit nor does he have a special case apart, from the case for redemption pleaded in the prior suit. The question of bona fide enquiry does not arise in a case like this where the plaintiffs in the earlier suit sued as legal heirs of the deceased mortgagor. This principle is clear from the decision in Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49. In that case 11 plaintiffs sued for declaration of occupancy right in certain lands. The suit was dismissed by the trial court. The plaintiffs appealed. During the pendency of the appeal one of the plaintiffs died. His widow and a major son got themselves impleaded as additional appellants. The appeal was allowed and the suit was decreed. In second appeal by the defendants, a preliminary objection was raised that since a minor son and two daughters of the deceased plaintiff who are also his legal representatives were not brought on record, the appeal before the Subordinate Judge's Court had abated in toto. Negativing this plea and referring to the principles laid down in the decisions in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049 and in N. K. Mohammed Sulaiman Sahib v. N. C. Mohammed Ismail Saheb, AIR 1966 SC 792 the Supreme Court observed at page 51 :
'(4) It has been contended on behalf of the appellants that the principle of these cases applies to the present case and the fact that three of the heirs were left out would make no difference as the entire estate of Dolai deceased must be held to be represented by the widow and the major son who were brought on the record. It will be noticed that there is one difference between the presentcase and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist'.
9. The learned counsel for the plaintiff-respondent Sri M. Abraham relies on the decisions in Ahmedbhoy Hublbhoy v. Vulleebhoy Cassumbhoy, (1882) ILR 6 Bom 703; Kumarandy Kudumban v. Venkata-subramania Aiyar, (1927) 52 Mad LJ 641 : (AIR 1927 Mad 645); Madhua Nand v. Suresha Nand, AIR 1953 All 547 and Jitendra Singh v. Alliance Bank, Simla, AIR 1942 Oudh 199 in support of his submission that the plaintiff-respondent is not bound by the decision in O.S. No. 586 of 1967 and the judgment Ext. B2 is not res judicata against his plea in the present suit. (1882) ILR 6 Bom 703 is not concerned with Explanation VI to S. 11, C.P.C. and is not relevant for deciding the present controversy. In (1927) 52 Mad LJ641 : (AIR 1927 Mad 645) the learned Judge foundthat the contention in the second suit was nol the same as was put forward in the previous suit and hence the decision in the previous suit cannot operate as res judicata to bar the second suit. It is, however, observed at page 645 (of Mad LJ) : (at p. 647 of AIR) :
'Where a party sets up his own individual right which happens to be common to him and others, he canno be said to be litigating on behalf of the others. It is not necessary that in order to attract the provisions of Expl. VI the suit should be a representative suit, for if it is a representative suit under O. 1, R. 8 no question can arise as to the binding nature of the decision in such suit, nor it is necessary that the party should be sued in a representative capacity. But the person litigating must put forward a right common to him and others not only on his behalf but on behalf of the others as well'.
These observations were obiter and were not necessary for the decision of the case before the learned Judge. Explanation VI enacts at presumption that 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 the section, be deemed to claim under the persons so litigating. A co-owner of the equity of redemption obtaining possession of the property on redemption of the mortgage should hold the same for benefit also of the other co-owners, vide Section 90 of the Indian Trust Act. If the suit for redemption prosecution bona fide ends in failure, there is no reason why the decree will not be binding on the other co-owners. Explanation VI to Section 11, C.P.C. provides for such a contingency if it is shown that the plaintiff was bona fide litigating in respect of a right common to himself and to the other co-owners. In Madhu Nand v. Suresha Nand, AIR 1953 All 547 the question related to the right of the people of a certain village to graze cattle in certain plots of land. There was a previous decree of the revenue Court relating to the grazing rights based on the award of an arbitrator. The plaintiffs were not parties to the arbitration agreement. A second suit by them for a declaration that the decree of the revenue Court is not binding onthem was held to be not barred by Explanation VI to Section 11, C.P.C. In this case the learned Judge seems to think that the Explanation will be attracted only if the previous suit was a representative suit. It is observed at page 548 :
'Where the previous suit was not representative and the persons -sought to be bound by the decision arrived at in that ease cannot be deemed to have been represented in that litigation, Explanation VI to Section 11 can have no application'.
10. It is clear from the decision of the Supreme Court in Narayana Prabhu's case (AIR 1977 SC 1268) referred (o above that the previous suit need not be a representative suit in order to attract Explanation VI to Section 11, C.P.C. The case in Jitendra Singh v. Alliance Bank, Simla, AIR 1942 Oudh 199 arose out of proceedings under the Encumbered Estates Act. It was held that when a creditor opposes the claim of another creditor he is doing it for himself and not on behalf of the other creditors, even though they may also be benefited if the opposing creditor succeeds. In such circumstances, it was held that Explanation VI to Section 11 can have no application. This case related to the opposing claims among creditors and no question of a person litigating bona fide in respect of a public right or of a private right claimed in common within the meaning of Explanation VI arose for decision therein. Jetendra Singh v. Alliance Bank, Simla, AIR 1942 Oudh 199 is not therefore of any assistance in deciding the question of res judicata in the present case.
11. Counsel for the respondent also submits that a second suit for redemption of a mortgage is not barred for the reason of the dismissal of an earlier suit for redemption and relies on the decisions in Subba Rao v. Raju, AIR 1950 FC I and Reghunath Singh v. M. T. Hansraj, AIR 1934 PC 205 in support of the proposition. It is well settled that the dismissal of an earlier suit for redemption of a mortgage does not bar a second suit for redemption, unless the earlier decree extinguishes the right to redeem. In the present case, the earlier suit O.S. 586 of 1967was dismissed oh the finding that the suit transaction is a lease and not a mortgage This decision is binding on the parties, actual and constructive and they will be precluded from selling up a claim for redemption of a transaction found to be a lease and not a mortgage.
12. Applying the principle laid down by the Supreme Court in the decisions in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu, (1977) 2 SCR 636 : (AIR 1977 SC 1268); N. K. Mohammed Sulaiman Sahib v. N. C. Mohammed Ismail Saheb, AIR 1966 SC 792 and Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49 it should be held that the plaintiff-respondent is bound by Ext. B2 judgment in the previoussuit O.S. 586 of 1967 for the reason of Explanation VI to Section 11, C.P.C. and also for the reason that the estate of deceased Krishnan Asary was represented by the plaintiffs in that suit. We, therefore, hold that the present suit is barred by Ext. B2 judgment in O.S. 586 of 1967.
In the result we set aside the judgment and decree of the lower appellate Court and restore the decree dismissing the suit passed by the trial Court. The Second Appeal is allowed. The parties will suffer their respective costs.