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Laxman Shivashankar Vs. Saraswati and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai High Court
Decided On
Case NumberL.P.A. No. 18 of 1958
Judge
Reported inAIR1961Bom218; (1961)63BOMLR152
ActsCode of Civil Procedure (CPC), 1908 - Seciton 11 - Order 7, Rule 11; Specific Relief Act - Sections 42 and 80; Hindu Widows Re-marriage Act, 1856 - Sections 2; Customary Law
AppellantLaxman Shivashankar
RespondentSaraswati and anr.
Appellant AdvocateSharad Manohar, Adv. for ;Y.V. Chandrachud, Adv.
Respondent AdvocateT.N. Walavalkar, Adv.
Excerpt:
.....suit are the widow and the son respectively of shivshankar. on the first issue, whether the suit property was the separate property of chanbasappa, the court held that the plaintiffs had failed to prove the alleged partition between chanbasappa and shivshankar. , if the decree or order was passed in spite of the finding, as where a finding was recorded against a party who succeeded, or in favour of a party who failed, on other issues. the plaintiff in that ease had filed a previous suit for declaration of his title to a share of the property in dispute, and the court which decided that suit, while giving a finding in the plaintiff's favour that his joint ownership was proved, had rejected the plaintiff's suit under the proviso to section 42 of the specific relief act on the ground..........the suit of 1950, the court accepted both these defences. on the first issue, whether the suit property was the separate property of chanbasappa, the court held that the plaintiffs had failed to prove the alleged partition between chanbasappa and shivshankar. on the second issue, whether the plaintiffs were the heirs of the deceased malkappa, the learned trial judge observed that at the time when the suit was filed,one nilawwa the mother of chanbasappa and shivshankar, was alive, and that nilawwa was a nearer heir of the deceased malkappa,' being his grandmother; than the plaintiffs who were his sisters. nilawwa, however, died during the pendency of the suit, and this fact was brought to the notice of the learned judge. but the learned judge was of the view that ambawa, despite.....
Judgment:

Tarkunde, J.

1. This Letters Patent Appeal arises from a suit for possession of an agricultural land filed by the plaintiff Saraswati. The trial Court held on a preliminary issue that the suit was barred by res judicata and dismissed the suit. On appeal, the District Court found that the suit was not so barred and remanded it to the trial Court for disposal on the remaining issues. An appeal from this order was filed in this Court and was heard by Miabhoy J., who confirmed the decision of the District Court. The present appeal was then filed on a certificate granted by Miabhoy J. under Clause 15 of the Letters Patent.

2. The previous suit, the decision in which is claimed to operate as res judicata was filed in 1950 by the present plaintiff Saraswati and her stepsister Parvati. In both the suits, Saraswati claimed that the property in dispute originally belonged to the joint family consisting of her father Chanbasappa and his brother Shivshankar, and that on a partition between Chanbasappa and Shivshankar, the property had fallen to the share of Chanbasappa. Chanbasappa died in 1942, leaving behind his son Malkappa, his daughters Saraswati and Parvati, and his widow Ambawa. Shivshankar died in 1946, and the defendants in the suit of 1930 as well as the present suit are the widow and the son respectively of Shivshankar. Saraswati claimed in the former suit, as she has done in the present suit, that after the death of Chanbasappa in 1942, the property went to his son Malkappa, who died in 1943; that after Malkappa's death, the property was vested in his mother (Chanbasappa's widow) Ambawa, who remarried in 1944; and that on the remarriage of Ambawa, the property was inherited by the daughters Saraswati (the present plaintiff) and Parvati.

3. In the suit of 1950, the claim of the plaintiffs was opposed by the defendants on two grounds : firstly, that there was no partition between Shivshankar and Chanbasappa, so that on the death of Chanbasappa and Malkappa, the property went by survivorship to Shivshankar and thereafter to the defendants; and secondly, that even supposing that the property was the separate property of Chanbasappa and then of Malkappa, the plaintiffs Saraswati and Parvati were not the nearest heirs of Malkappa. In dismissing the suit of 1950, the Court accepted both these defences. On the first issue, whether the suit property was the separate property of Chanbasappa, the Court held that the plaintiffs had failed to prove the alleged partition between Chanbasappa and Shivshankar. On the second issue, whether the plaintiffs were the heirs of the deceased Malkappa, the learned trial Judge observed that at the time when the suit was filed,one Nilawwa the mother of Chanbasappa and Shivshankar, was alive, and that Nilawwa was a nearer heir of the deceased Malkappa,' being his grandmother; than the plaintiffs who were his sisters. Nilawwa, however, died during the pendency of the suit, and this fact was brought to the notice of the learned Judge. But the learned Judge was of the view that Ambawa, despite her re-marriage, was the nearer heir of the deceased Malkaprp. Hence the second issue was also decided against the plaintiffs.

4. The question which we have to consider is whether the finding given by the Court in the previous suit on the first issue, that the property was not the separate property of Chanbasappa, is res judicata so as to bar the claim made by the plaintiff in the present suit.

5. The only reason why some difficulty arises in deciding this question is that the decree in the previous suit was supported by two findings, and it is claimed for the plaintiff that only one of the findings, and not both, are res judicata. Obviously, a finding can operate as res judicata only if it has resulted in a particular decree or order. Where a decree or order is based on only one finding, there, can be no doubt that the finding would have the force of res judicata. Similarly, a finding cannot be res judicata if it has not gone into the making of a decree or order, i.e., if the decree or order was passed in spite of the finding, as where a finding was recorded against a party who succeeded, or in favour of a party who failed, on other issues. In the present case, it is urged by Mr. Valavatkar for the plaintiff that the finding which really decided the former suit was regarding the plaintiffs not being the nearest heirs, and that therefore the other issue about the alleged partition was not a matter which was substantially in issue and, at any rate, was not finally decided.

6. There is apparently some conflict of authority on the question whether, in a case where a decree or order is based upon several findings, each one of the findings operates as res judicata. In Shib Charan Lal v. Raghu Nath ILR 17 AH 174, it was observed by a Division Bench :

'......... .if there were two findings of fact,either of which would justify in law the making of the decree which was made, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found, and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can operate as res judicata.'

The facts of that case, however, show that this observation of the learned Judges was obiter. The plaintiff in that ease had filed a previous suit for declaration of his title to a share of the property in dispute, and the Court which decided that suit, while giving a finding in the plaintiff's favour that his joint ownership was proved, had rejected the plaintiff's suit under the proviso to Section 42 of the Specific Relief Act on the ground that the plaintiff, though he was not in possession of the property in question, had failed to ask the further relief of being placed in joint possession. It was held that In the subsequent suit by the plaintiff for joint pos-session of the property, the finding given in his favour in the previous suit that he was a part-owner of the property did not operate as res judicata against the defendants. The decree by which the previous suit was dismissed was obviously not grounded on the finding that the plaintiff was a part-owner of the property, and the finding could not therefore operate as res judicata. It was not a case in which the decree in the previous suit was apparently based upon two findings.

7. Peary Mohun Mukerjee v. Ambica Churn Bando Padhya ILR 24 Cal 900 was a case in which such a question was directly involved. In that case the plaintiff's suit was for damages for the failure of the defendant, who was the chairman of a Municipality, to remove certain offensive matter from the property belonging to the plaintiff. A similar suit had been previously filed by the plaintiff against the same defendant for a similar relief, but that suit had been filed without serving a notice on the defendant as required by a certain local Act. The previous suit wag dismissed on the ground that the plaintiff had not proved that he had given notice to the defendant, and also on the ground that the defendant was not liable to remove the offensive matter from the property. Although the subsequent suit was filed after giving notice, it was held by the Calcutta High Court that the finding in the previous suit that the defendant was not liable to remove the offensive matter was res judicata so as to bar the subsequent suit. It was held that although the previous suit might have failed for want of notice, the question of the defendant's liability was properly raised in the former suit, and that the decision thereon formed an additional ground for the dismissal of the suit and had the force of res judicata.

8. In M. Vencataraju v. Ramanamma ILR 38 Mad 158 : AIR 1915 Mad 864 it was held that where a judgment is based on the findings 011 two issues, the findings on both the issues will operate as res judicata, though the finding on only one would have sufficed to sustain the judgment. The defendant in that suit had filed a previous suit against the plaintiff for possession of certain properties and that suit was dismissed on two grounds, viz., that the properties had been purchased by the defendant (Plaintiff in the prior suit) Benaini for the plaintiff, and that the plaintiff had acquired a title to the properties by prescription. A subsequent suit was filed by the plaintiff for possession from the defendant of another property which was covered by the same sale deeds as the properties in the previous Suit. Although the decision in the former suit was based on the additional ground of prescription which was not available to the plaintiff in the subsequent suit, it was held that the finding with regard to the sale deeds being Benami for the plaintiff was binding on the defendant in the subsequent suit.

9. There are, however, a number of cases where, out of several findings on which a previous decision was based, one finding only was held as decisive and the others were held not to operate as res judicata. Ahmedbhoy Habibhoy v. Sir Dinshaw M. Petit 11 Bom LR 366 was a suit for thc specific performance of a contract of purchase and the suit was decided by a single Judge on the Original Sideof this Court. The question which arose for decision in that case was whether the plaintiff had cleared his title to the property which he had agreed to sell. The plaintiff's sons were parties to the suit, and they denied the plaintiff's right to sell the property. A previous suit filed by one of the plaintiffs sons against the plaintiff for partition of the property had been dismissed primarily on the ground that, according to the customary law governing the parties, the plaintiff's son was not entitled to enforce a partition during the father's life time. The Court in the previous suit -- it was a decision of the Privy Council -- after saying that this finding was sufficient to dispose of the case, observed that it was 'advisable to express an opinion' on the question whether the property was joint family property, and found that it was not proved to be so. The learned Judge who heard the subsequent suit for specific performance held that the prior suit was really decided on the finding that the son had no right to partition, and that the further finding with regard to the property not being of the joint family was an obiter dictum, not amounting to res judicata.

10. In Irawa v. Satyappa Shidappa 12 Bom LR 766, a previous suit between the parties had been dismissed both on the merits as well as on the ground that the plaintiff had refused to pay the requisite additional Court-fee. It was held that the failure of the plaintiff to pay the necessary Court-fee was sufficient by itself for the dismissal of the suit, and that therefore the findings on the merits, not being necessary for the decision of the suit, did not have the force of res judicata.

11. In Shankarlal Patwari v. Hiralal Murarka AIR 1950 PC 80, the Privy Council approved the decision of the Calcutta High Court that the findings in a certain prior suit did not operate as res judicata. In the prior suit it was held that the suit did not- lie because the notice required by Section 80 of the Civil Procedure Code was not given, but while dismissing the suit, the Court had also given findings on the merits against the plaintiff. The Calcutta 'High Court had held that the learned Judge who had dismissed the prior suit was bound to dismiss it under Order 7, Rule 11 of the Civil Procedure Code, and that the findings given by him on the merits were obiter and could not support the plea of res judicata. This view was found by the Privy Council to be correct.

12. In Dinkar Raoji v. Anant Ganesh 30 Bom LR 902 : AIR 1928 Bom 349 : the plaintiffs who were alienees from the mortgagor had filed a previous suit for redemption of the mortgage, and that suit Was dismissed on two grounds -- firstly that the sale deed by which the plaintiffs claimed to have acquired the equity of redemption was hollow and fraudulent, and secondly that the plaintiffs were not agriculturists and that the suit having been brought before the expiry of the period of redemption was premature. In a subsequent suit filed by the plaintiffs after the expiry of the period of redemption, it was held by a Single Judge of this Court that the finding in the previous suit regarding the bogus and fraudulent nature of the alienation in favour of the plaintiffs was res judicata so as to bar thc second suit. The learned Judge, however, observed that if the previous suit had been decided 'principally' on the ground that it was pre-mature, the 'other finding that the plaintiffs' sale decd was hollow or fraudulent would not have operated as res judicata.

13. Several other cases were cited before us, but they are not material to the question which we have to decide. It appears from the decisions mentioned above that it cannot be laid down as a general proposition, that where a previous decision is supported on two or more findings, all the findings will necessarily operate as res judicata. Where the previous suit was dismissed on a technical ground which made the suit untenable, findings recorded on the merits would normally be obiter dicta. Similarly, if the Court which decided the prior suit has itself based the decision on only some of the findings recorded by it, or if under the circumstances of the case its decision can be fairly attributed to only some of the findings so recorded, the other findings would not operate as res judicata. In other cases, where the previous decision is based upon, and is attributable to, several findings, all the findings will have the force of res judicata.

14. Turning to the present case, the finding of the Court in the previous suit that the property was not the separate property of Chanbasappa was as completely decisive of the suit as the other finding that the plaintiffs wore not the nearest heirs of Malkappa. The major portion of the judgment of the learned Judge who decided the previous suit was devoted to the consideration of the first issue. After finding on the first issue against the plaintiff, he learned Judge observed :

'As plaintiffs have failed to prove the alleged partition, plaintiffs have no right to file this suit and Shivshankar had become owner, of all the family properties by survivorship'. This was followed by the following observation : 'Even if my finding on issue No. 1 is not correct still it has come in evidence that mother of Shivshankar and Chanbasappa and grand-mother of Chanbasappa's son Malkappa was alive when this suit was filed and......'.

Mr. Valavalkar, who appeared on behalf of the plaintiff-respondent No. 1, urged that this observation shows that according to the learned Judge himself his finding on the second issue was decisive of the suit. We do not think such a conclusion would be justified. The two sentences taken together make it clear that, according to the learned Judge, the plaintiffs' suit failed on account of his findings on each of the two issues. Obviously, the plain-tiffs' suit was liable to be dismissed if either of the two issues was found against them. Under the circumstances, it is not possible to say that the decree in the previous suit was based on, or is attributable to, Only one of these two findings.

15. It seems to have been urged on behalf of the plaintiff in the District Court as well as before Miabhoy J. that the plaintiffs in the previous suit could not challenge the finding on the first issue by filing an appeal, because the finding on the second issue was in any case bound to go against them and was a complete answer to their claim. This argument seems to have found favour with the learned District Judge as well as with Miabhoy J. With great respect, we find that the finding of the learned trial Judge on the second issue in the previous suit was at least as open to challenge as his finding on the first issue. The reason why the learned trial Judge held that the plaintiffs were not the nearest heirs of Malkappa was that in his view, Malkappa's mother Ambawa continued to be vested with the property of the deceased Malkappa even after her re-marriage. The learned Judge had himself noted that Ambava's re-marriage took place after the death of Malkappa. If so, it appears prima facie that, by virtue of Section 2 of the Hindu Widows Re-marriage Act, 1856, Ambawa was divested of such property as she had inherited from. Malkappa and that the property had passed first to Nilawwa and after her death to Saraswati (the plaintiff in the present suit) and her step-sister Parvati. We therefore do not agree that the finding of the learned trial Judge on the second issue was so obviously unchallengeable as to have prevented the plaintiff from filing an appeal from the decree in that suit.

16. In the result, we hold that the learned trial Judge in the present suit was right in dismissing the suit on the ground that it is barred by res judicata. Accordingly, the orders passed by the District Court and by this Court in the appeal from order are set aside, and the decree of the trial Court dismissing the plaintiff's suit is restored. There will be no order as to costs in this Court as well as in the District Court.

17. Appeal allowed.


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