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Savitri Ramayya Hegde Vs. Holebasappa Murgeppa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 626 of 1928
Judge
Reported inAIR1932Bom257; (1932)34BOMLR198; 137Ind.Cas.600
AppellantSavitri Ramayya Hegde
RespondentHolebasappa Murgeppa
DispositionAppeal allowed
Excerpt:
.....on land-right of worship independent of payment.;in a suit in 1906 between the predecessors of the present parties it was held that a money payment under a deed was not dependent on the performance of worship in a certain temple. in the subsequent suit in 1925 between the present parties, the same question was raised again :-;that the construction of the document having formed the subject of an issue between the predecessors of the present parties in a former suit, it was not open to the present parties to re-agitate the question, and that, therefore, the finding in the first suit was binding on them as res judicata.;a decision on an issue of law operates as res judicata if the cause of section in the subsequent suit is the same as in the first suit.; gowri koer v. audh koer (1884)..........that at which the learned district judge has arrived, because both in the former suit and in the present suit we are dealing with the construction of: the same document, and the parties to this suit are the representatives in interest of the parties in the former suit. there is thus an adjudication upon a point of law on the same subject-matter, namely, the construction of the same document. there is no difference between this suit and the former suit except that the former suit was for two years' payments, whereas the present suit is for ten years' payments. apart from this,since the cases quoted by the learned district judge were decided, there have been numerous cases which lead to the conclusion that a finding on a point of law of this nature would be binding. a decision on an.....
Judgment:

Baker, J.

1. The facts are that one Govindappa owned the land in suit, and made a gift thereof to Venkappa subject to the condition that Rs. 25 was to be paid annually to one Vishweshwar Shastri for performing worship in the month of Shravan in the Mahableshwar temple of Gokarn. Venkappa sold the property to Murgeppa, father of defendants Nos. 1 and 2, in 1903. Murgeppa let the property on mulgeni tenure to defendant No. (5 in 1913, and the latter similarly sublet the leasehold to defendants Nos. 7 and 8. After Vishweshwar's death his sons borrowed Rs. 375 from the plaintiff, and assigned their right of recovering the sum of Rs. 25 a year to the plaintiff in lieu of payment of interest. The plaintiff brought this suit for recovery of ten years' dues under Exhibit 60 from the sons of Murgeppa and the mulgeni lessee and sub-lessees. The lower Court found that the transfer in favour of the plaintiff was valid, and that defendants Nos. 1 and 2 were barred by res judicata from raising any contention regarding the non-performance of worship. It accordingly decreed the plaintiff's claim. Defendants Nos. 1 and 2, who were the sons of Murgeppa, that is, the vendee from Venkappa the original donee, appealed, and on appeal the District Judge of Kanara held that the transfer in favour of the plaintiff was not valid, and that the decision in suit No. 148 of 1906 of the Sirsi Court could not operate as res judicaia regarding the contention of the appellants that the allowance under Exhibit 60 cannot be recovered unless the worship is performed. He, therefore, set aside the decree of the first Court, and dismissed the suit. The plaintiff appeals.

2. The question of res judicata arises in this way. In 1906 Vishweshwar brought a suit for arrears of two years against Venkappa, Murgeppa, father of the present defendant No. 1, and one Mahableshwar, apparently a tenant, and obtained a decree against them, and one of the issues in that case was whether the performance of the worship of the idol at Gokarn is a condition precedent to the plaintiff claiming Rs. 25 a year, and it was found in the negative. The learned District Judge has held that this being a finding on a point of law, is not binding on the parties as res judicata, and he has relied on the cases of Mangalathammal v. Nayayanswami Aiyar I.L.R. (1907) Mad. 461 and Chamanlal v. Bapubhai I.L.R. (1897) Bom. 669 and also on Gohu Kolandavelu Chetty v. Sami Royar I.L.R. (1905) Mad. 517 from which he quotes a passage, saying (p. 519), 'In our view it is quite decided that an adjudication upon a point of law, though binding upon the parties in any future suit quoad the same object-matter is not conclusive even between the same parties when the subject-matter of the second suit is different.' This paragraph leads to a conclusion contrary to that at which the learned District Judge has arrived, because both in the former suit and in the present suit we are dealing with the construction of: the same document, and the parties to this suit are the representatives in interest of the parties in the former suit. There is thus an adjudication upon a point of law on the same subject-matter, namely, the construction of the same document. There is no difference between this suit and the former suit except that the former suit was for two years' payments, whereas the present suit is for ten years' payments. Apart from this,since the cases quoted by the learned District Judge were decided, there have been numerous cases which lead to the conclusion that a finding on a point of law of this nature would be binding. A decision on an issue of law operates as res judicata if the cause of action in the subsequent suit is the same as in the first suit. That was laid down in Gowri Koer v. Audh Koer I.L.R. (1884) Cal. 1087 Kaveri Ammal v. Sastri Ramier I.L.R. (1902) Mad. 104 and Waman v. Hari I.L.R. (1906) Bom. 128 : 8 Bom. L.R. 932 The cause of action in the present suit is the same as in the first suit, Then in Tarini Charan Bhattacharya v. Kedar Nath Haldar I.L.R. (1928) Cal. 723 which is a full bench case, it was held at p. 735:-

The question whether a decision is correct or erroneous has 110 bearing no. on the question whether it operates or does not operate as res judicata... (p. 736) In anycase in which it is found that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and has been beard and finally decided by such court, the principle of res judicata is not to be ignored merely on the ground that the reasoning, whether in law or otherwise, of the previous decision can be attacked on a particular point. On the other hand, it is plain from the terms of Section 11 of the Code that what is made conclusive between the parties is the decision of the court and that the reasoning of the court is not necessarily the same thing as its decision, The object of the doctrine ofres judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or re-contesting that which has been finally decided.

3. Very recently a similar case was before this Court regarding the recovery of certain sums due on certain land in particular years, and we then followed this decision: Keshav v. Gangadhar : (1931)33BOMLR1443 . It was pointed out in that case that to hold otherwise would lead to a great deal of confusion, because if this Court came to a particular decision with regard to the amount payable for this particular year, it would, unless the principle of res judicata be applied, be open to a Court to come to a contrary decision with regard to the sums claimable for subsequent years, and in the case of a recurrent payment there might be an indefinite series of contradictory decisions. In Sitaram Sakharam v. Laxman Vinayak I.L.R. (1921) Bom. 1260 : 23 Bom. L.R. 749 it was held by a majority of a bench that the plea of res judicata is not dependent upon the merits of the reasons given for a particular conclusion, and the conclusion, whether right or wrong, is binding upon the parties. To the same effect is Sree Rajah Bommadevara Venkata Narasinha Naidu v. Andavolu Venkataratnam : (1917)32MLJ63 , Sanichar Mahton v. Raja Dhakeshwar Prasad Narain Singh I.L.R. (1929) Pat. 674 and also Badar Bee v. Habib Meriean Noordin [1809] A.C. 615 In these circumstances, I have no doubt that the construction of this particular document having formed the subject of an issue between the predecessors-in-title of the present parties in a former suit, and the document having been construed in a particular manner, it is not open to the present parties to re-agitate the question, and therefore the finding of the Court in the previous suit No. 148 of 1906 is binding upon them. No appeal was made against that decision, and therefore it must be taken that the performance of the worship of the idol at Gokarn is not a condition precedent to the plaintiff claiming Rs. 25 per year, and therefore the arguments which the learned District Judge has founded on the decision in Anjaneyalu v. Sri Venugopala Rice Mill, Ltd. I.L.R. (1922) Mad. 620 will not apply. This is not a case of a vritti, but of a payment charged upon particular land. The object may be that particular religious ceremonies should be performed by the person entitled to the money charged on the land, but there is no assignment of an office, but only of the right to recover Rs. 25 a year from the land in suit. The case in Digambar v. Hari (1926) 29 Bom. L.R. 102 seems to apply. Reference has also been made to the case in Balmukand v. Tula Ram I.L.R. (1927) All. 394 and in view of the finding of the Court in the former suit that the right to receive Rs. 25 a year out of this land is independent of the offering of the ceremonies at Gokarn, there is no reason for holding that the right is not transferable, nor in my opinion is the transfer forbidden by Section 6 of the Transfer of Property Act.

4. In these circumstances, I am of opinion that the view of the lower appellate Court is wrong, and that the judgment of the first Court should be restored. The appeal will consequently be allowed with costs throughout.


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