1. This short point that falls for determination in this second appeal is whether the suit of the plaintiff is barred by the principle of res judicata on account of the decision in O. S. 152 of 1942 against the 5th defendant which has become final having been affirmed by the Appellate Courts. Of course, there is another point raised, grounded, as it is either on what is alleged to be want of cause of action for the palintiff or extinction of her right, if any, by reason of the sale deed in favour of the 5th defendant. Based as the action of the plaintiff is on the theory and assertion that her sale deed is a valid sale deed, it is neither proper nor possible for us to pronounce on this question when it is obvious that if the question of res judicata be decided in favour of the plaintiff, correct decision of the said question can be based only on the facts that may be investigated and found by the Courts below. Of course if the question of res judicata is held against the plaintiff the other question would not arise at all for consideration. So then the only point that we have to decide now is the question of res judicata.
2. The facts of the case are in a narrow compass. The suit property, acres, 3.64 cents in extent, is a zeroiti land situate in Thangellamudi Village originally belonging to Veburupaka Subbayya, the father of the plaintiff. The said Subbayya, according to the case of the plaintiff, has executed a will on 5-5-1941 bequeathing to her all his property including the suit property on condition that she should pay off all his debts and maintain for life his wife Sobhanadri. The plaintiff, as a result, became the owner in possession of al the properties on the death of her father. She however, conveyed the suit land to her husband, the 5th defendant, under a sale deed dated 14-7-1941 to meet the expenses of the obsequies and pay off the debts of her father. Her husband, thereafter, continued in possession of the suit land. While so, defendants 1 to 3 sought to physically dispossess him on the basis of a sale deed registered on 19-1-1942 long after the death of Subbayya and when the 5th defendant got an order in his favour under Section 144, Cr. P.C. they brought against him O. S. No. 152 of 1942 on the file of the District Munsif's Court, Eluru. That was an action for recovery of possession laid on the basis that their father Appanna got an agreement of sale from Subbayya on 18-5-1941 and a sale deed thereafter on 2-6-1941 in relation to the suit property. The latter document was executed not only by the Subbayya but also by Ghantayya alleged to be his adopted son.
Subbayya died the very next day before the sale deed could be registered. A few days later./ Appanna also died on 17-6-1941. Defendants 1 to 3 therefore presented the sale deed for registration before the Registrar. Whereas Ghantayya admitted the execution of the document, Sobhandri, the widow of Subbayya, denied the sale deed. Eventually the document was registered on 19-1-1942. Thereafter as the defendant No. 5 obtained orders in his favour under Section 144 Cr. P.C. defendants 1 to 3 filled the said suit. To that suit defendant No. 5 was the sole defendant. Defendant No. 5 disputed the truth and validity of the sale deed alleged to have been executed by Subbayya and Ghantayya. He denied also that it was supported by consideration. He further denied that Ghantayya was the adopted son of Subbayya. He pleaded that during his life-time, Subbayya had executed a will in pursuance whereof his wife became the owner of the suit property. Later she executed, for valuable consideration, a sale deed in his favour as a result of which he came in lawful possession of the suit land. In this state of pleadings the District Munsif, after inquiry came to the conclusion that the sale deed was true and valid and supported by consideration and binding on the defendant. that Ghantayya was the legally adopted son of Subbayya and that the will alleged was not true. As a result he decreed the suit. These findings were affirmed in appeal and finally in second appeal in S. A. No. 1514 of 1946 decided on 19th August, 1948. It is significant to note that soon after O. S. No. 152 of 1942 was decided against the 5th defendant herein, Ghantayya claiming to be the adopted son of Subbaya brought a suit O. S. No. 40 of 1947 in the District /Court, Eluru against the plaintiff herein and also her husband, defendant No. 5 for possession of all other properties that subbayya died possessed of. But that suit ended wholly in favour of the plaintiff and defendant 5. Defendants 1 to 3 herein were. however, not made parties to that suit. It was found therein that the will in favour of the plaintiff was true and valid and that Ghantayya was not the legally adopted son of Subbayya. Ghantayya preferred an appeal A. S. 78/50. But that was ultimately withdrawn by him. As a result the decision on O. S. No. 40 of 1947 became final. Before that suit was filed the 5th defendant. In execution of the decree in O. S. No. 152 of 1942, was dispossessed from the suit land in April. 1946. The plaintiff thereupon gave notice to defendants 1 to 3 demanding possession of the land and thereafter brought the present suit impleading also defendant No. 4 as the alienee in possession from defendants 1 to 3. She prayed that a decree for possession of the suit property may be granted in her favour by ejecting the defendant 1 to 4 in order to enable her to perform the warranty of title and peaceful enjoyment of the suit property which was necessary as warranted by her sale deed in favour of the 5th defendant and that an account be taken of the income of the suit property from April 1946, which was the date of dispossession of defendant 5 until the date of putting him back into possession. She also, in the alternative claimed that if the sale deed in favour of the father of defendants 1 to 3 ultimately be proved to be true and valid, a decree may be granted in her favour for the unpaid purchase money due on the sale deed with a charge on the suit property for the same.
3. Defendants 1 to 4 resisted the suit on the basis that the will by Subbayya was not true that after the sale by Subbayya in favour of their father, there remained no interest left in the property with the deceased which could pass off to the plaintiff, that at any rate the plaintiff was bound by the decree and judgment in O. S. No. 152 of 1942 an d that they themselves are not bound by the decision in O. S. No. 40 of 1947 to which they were not parties that the plaintiff is not entitled in the alternative to any sale amount as nothing was due from defendants 1 to 3, the entire sum having been paid to Ghantayya.
4. The Trial Court, after framing the issues in the case, took up issue No. 2 as the preliminary issue and holding it against the plaintiff dismissed the suit, The said issue No. 2 reads thus:-
'2 Whether the decision of this Court in O. S. No. 152 of 1942 and in the appeal and second appeal arising therefrom is res judicata against the plaintiff?'
The aggrieved plaintiff went in appeal. The appellate court agreed with the trial court on the question of applicability of the principle of res judicata. Nevertheless it remanded the case to the Trial Court having observed that the plaintiff may still implead Ghantayya in relation to the alternative relief claimed by her and that if it be found that the entries sale consideration was paid to Ghantayya, the plaintiff, subject to the law of limitation. was entitled to recover the said amount from him. Against the order of remand the plaintiff, came in appeal to this Court. As no stay orders were obtained with the trial. Once again the suit was dismissed. Aggrieved by that decree and judgment, the plaintiff went in appeal but with little success. Sometimes thereafter judgment was rendered by this Court in the appeal preferred by the plaintiff referred to above. All the findings of the Appellate Court were set aside and the Appellate Court was directed to decide the case on all the points including the issue of res judicata. Thus all the proceedings after remand in the trial and Appellate Courts were rendered ineffective by reason of this order. The original appeal was thereafter taken back on file. The parties requested the Appellate that the material that was brought on record after remand may be read in the appeal as additional evidence. The Appellate Court considered afresh the question of res judicata and also the merits of the alternative relief of recovering the purchase money from defendants 1 to 3 and found both the questions against the plaintiff and in favour of defendants 1 to 4. As a result, the plaintiff came once again to this Court. The questions involved being of some importance, not covered by any direct decision. the case is before us on reference.
5. As we have stated at the very outset the only question of res judicata. We are concerned not so much with the specific provisions of this doctrine as with the specific provisions of Section 11 C. P. C. which governs the case. Learned Counsel, Mr. K. Ramachandrarao, has rightly argued that though the general principles of res judicata based, as they are on the avowed policy of law that no one should be vexed twice over in respect of the same matter and that there should be finality to the decisions of Courts and consequent end to litigation, are wider than the provisions in that behalf contained in S. 11 C. P. C. and are applicable to cases which do not come within the four corners of the said section. It is well settled that where a case does fall within in the terms of Section 11 C. P. C. the conditions laid down therein must be strictly complied with. If the conditions prescribed therein under which the decision in a suit can be res judicata are not satisfied it is not permissible of res judicata. This argument gains sufficient strength also by reason of the compelling authority of the Supreme Court in Janakirama Iyer v. Nilakanta Iyer, : AIR1962SC633 . There Gajendragadkar. J., ( as he then was ) speaking for the Court observed thus:-
'Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. WE are dealing with a suit and the only ground on which re judicata can be urged against such a suit can be the provisions of Sections 11 and no other. In our opinion therefore there is no substance in the ground that the present suit is barred by res judicata.......'
Thus the question raised has to be decided strictly on the provision of Section 11, C. P. C. and no other. The said section so far as is material for our purpose, read thus:-
'11. No Court shall try any suit or issue in which the matter directly and substantially in the issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.
Explanation I .................................Explanation II .................................Explanation III .................................Explanation IV .................................Explanation V ................................. Explanation VI. 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 purpose of this section, be deemed to claim under the persons so litigating.'
The contention is that the present case governed though as it is by Section 11 does not satisfy the conditions of Section 11 as the plaintiff in the present suit was neither a party to the former suit nor can she be held to be a person claiming under any of the parties to that suit. The section refers to 'the same parties' or 'parties under whom they or any of them claim.' The expression 'same parties' is self-explanatory. It means the same persons as in the former suit who were parties to that suit. For purposes of Section 11 C. P. C. It may, be borne in mind that a party is a person whose name appears on the record at the time of the decision. In case his name is struck off at any stage of the suit or he is discharged from the suit or his name was introduced by fraud or without knowledge or he was a minor on record unrepresented by a guardian he cannot be said to be a party to the litigation. Similar is the case with the person who applied in vain to be brought on record. There may be other cases besides. It is difficult to give an exhaustive list of the same. It is sufficient to bear in mind that the person must be in fact a party to the former litigation at the time of the decision of the case.
6. Judged thus, it cannot be postulated that the plaintiff was a party to the former suit. Indeed she was in no way a party to the suit. She was not sought to be brought on record even though defendant 5 set up her title for the period before he himself acquired right by virtue of the sale deed executed by her. After she had sold her right she may not concern herself with any dispute in relation to that land until it becomes necessary for her to do so which could happen only in the event of success of the plaintiffs in that case when she may be called upon by the 5th defendant to discharge her obligation under the sale deed. By reason of such interest or conditional obligation, she cannot be deemed to be a party to the former suit. Nor was it incumbent on her to make herself a party to the said suit. If the plaintiffs wanted to bind her they could make her party as soon as they came to know of her in the same manner as the plaintiff in this suit, notwithstanding their transfer of right in favour of defendant 4 who is in possession, has made them parties to the litigation. As held in Narhar v. Narain, AIR 1920 Nag 184 at p. 186 the person merely interested in litigation cannot be said to be a party to the suit. Such a person is neither bound to make himself a party not can he be bound by the result of the litigation. It must be noted that the provision refers to the same parties and does not introduce any fiction in that behalf. It follows that the plaintiff who was not eo nomine a party cannot come within the description of party to the former suit. So the dispute between defendants 1 to 3 and plaintiff cannot be said to be a dispute between the same parties within the meaning of Section 11, C. P. C.
7. Then the next question is whether she is a person claiming under a party to the former suit. The expression used in Section 11 is between parties under whom, they or any of them claim. The underlying policy seems to be that a decision obtained in a properly constituted proceeding will bind not only the parties but all persons on whom the right or interest may devolve. A person is said to claim under another when he derives his title through that other by assignment or otherwise. The right claimed by him must be attributable to the party in the former suit and further this right must have been acquired subsequent to the commencement of the said suit. As a privy or representative in interest he would then be bound by the decision reached against his predecessor in interest. It is unnecessary to detail here the various aspects of this question. Suffice it to say that plaintiff is not claiming any right from him which she may set up in the case. On the other hand it was she who had conferred on him right in the property by executing a sale deed. If at all it is defendant 5 who can be said to possibly claim under the plaintiff but not vice versa. Section 11 does not contemplate a case of a person who is a predecessor-in-interest of a party to the former suit. The expression 'under whom' is inconsistent with any such theory. If she set up any claim in this case it is in her own right and not at any rate under defendant 5 who was a party to the former suit.
8. It is however, argued that the scope of that expression used in Section 11 has been enlarged by the deeming provision in Explanation VI to that section. It is true certain persons who would not otherwise have come under that expression used in substantive provision have been by reason of fiction introduced in Explanation VI included in that expression. Even so, the scope of fiction is limited by the clear language of the explanation. It purports to lay down that parties who were represented by a party in previous suit in respect of a public or private right claimed in common for such persons and others come within the said expression. The explanation categorically says 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 where litigating. The explanation thus takes in cases of persons interested where litigation was in a representative capacity. It is not however confined to cases contemplated by Order 1, Rule, 8, C. P. C. or Section 91 C. P. C. The language of the explanation may cover a much wider field the only condition being that it should satisfy essential requisites provided therein. Not only that litigation must be bona fide but also it should relate to a public or a private right in common and that should be claimed for themselves and others. It means there should not only be a community of interest but also the litigation should in fact be in a representative capacity.
There can be little doubt that what defendant 5 had claimed in the former suit was a private right which vested exclusively in him by reason of the sale deed. He did not claim any right in common with the plaintiff. Indeed neither under the sale deed not even under the will, which was source of right of plaintiffs, could be claim a right in common with the plaintiff. The will executed by Subbayya did not give any right to him. It was essentially and wholly in favour of the plaintiff and the sale deed executed by the plaintiff was exclusively in favour of the 5th defendant. If he was claiming any right in the property it was exclusively for himself. He was claiming non right or interest in common with himself and the plaintiff in the property. Community of interest they did have none in relation to the property at any relevant period. All that he did say while setting up the will or disputing the adoption of Ghantayya or the sale deed in favour of the plaintiffs therein was that the plaintiff herein was the owner of the suit land prior to the sale deed in his favour and thereafter he is the owner in possession. Where a right is thus claimed exclusively for himself and not in common with the plaintiff and there could be no right acquired or maintained in common the case cannot fall within the explanation. The pleas taken by the 5th defendant in the litigation cannot be on the basis of a representative character but only in an individual character. It is, however, argued since all the rights that the plaintiff had became vested in him by reason of the sale in favour of defendant 5 with the result that defendant 1 to 3 could effectively sue defendant alone in their suit brought for recovery of possession, it should be assumed that defendant 5 sufficiently represented the interest of plaintiff and the plaintiff should therefore be held to be bound by the decision in that case.
Learned Counsel contends that defendant 5 had thus enjoyed the privity of estate and hence could bind the plaintiff. Reliance is placed on Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy, (1881-82) ILR 6 Bom 703 at p. 709. That case is a little assistance to the respondents. On the other hand it goes against them. There Latham, J., at page 709 divided the persons other than parties to a suit in which a decree or judgment has been obtained into 3 classes with reference to their position as affected by the judgment. The first category is of persons who under the old Section 13 C. P. C. claim under the parties to the former suit. The learned Judge says that in the language of English Law they are privies to those parties and such privies according to Lord Coke are of three kinds:- (1) privies in blood, (2) privies in estate and (3) privies in law. Learned Judge refers to a six-fold division according to wharton's Law Lexicon, page 764. He however expresses that he was unable to discover any original authority for such division. Therein he refers also to privies in representation such as the executor or administrator to his testator or intestate. The second main division is of persons who though not claiming under the parties to the former suit were represented by them. Such persons are the persons interested in the estate of a testator and share-holders in a company etc. In India members of a joint undivided family also are such persons as held in Jogendro Deb Roy v. Funindro Deb, (1873) 14 Moo Ind App 367 at p. 376 (PC). The third category is of strangers who are neither privies to nor represented by the parties to the former suit. Whereas category Nos. 1 and 2 may be bound by the judgments in the former suit, category No. 3 will not be affected by judgment inter parties which is not a judgment in rem. There is nothing in the statement of the learned Judge (based mostly as it is on English law) which can support the contention of the learned counsel. It cannot be accepted on the basis of the said decision that the plaintiff was a privy to or was represented by any party to the former suit. We are not concerned, for the purposes of this suit with the general principles of res judicata which are much wider than Section 11 C. P. C.
9. Evidently the plaintiff neither literally speaking nor otherwise by any stretch of imagination, can be deemed to claim under the 5th defendant, who was a party to the former suit. Much as the learned Counsel would like to regard her as a privy in estate, she is not within the meaning of that term stretched to its fullest extent. A privy to a party in English Law is but a person claiming under that party and he stands in the shoes of he party under whom he claims. Plaintiff is not certainly any of such privies. The learned author of Bigelow on Estoppel in 5th edition has stated that the ground of privity is the property and not personal relation and this view has been accepted by Mahmood, J., in Sita Ram v. Amir Begum, (1886) ILR 8 All 324 at p. 327 and cited with approval by the Madras High Court in Seshappayya v. Venkat Ramana Upadya, (1910) ILR 33 Mad 459 at o. 461-2. The learned author at page 143 of the said edition has stated thus:-
'To make a man privy to an action he must have acquired an interest in the subject-matter of the action either by inheritance or succession or by purchase from a party subsequently to the action or he must hold property subordinately.' AS an instance of subordinate holding, the learned author takes the case of a landlord and tenant and says: 'A lawful judgment which deprives the landlord of the estate deprives the tenant of necessity of his subordinate right.............'
It is thus clear that it is the successor-in-interest or a purchaser from a party who becomes a privy and that only in respect of the interest and rights in property to which he has succeeded or which he has purchased. AS the learned Judges of the Madras High Court have observed at page 462-3 of the above decision, 'the rule that the interest to be bound must be acquired after the action is supported by English and American cases......' In Kali Dayal v. Umesh Pershad, ILR 1 Pat 174 = (AIR 1922 Pat 63), it was observed that a person claims through or under another when he derives title through that other either by assignment, inheritance or succession or when he holds a subordinate title granted by the other, and except in cases specially provided for by statute or common law, he can have no better title than the person through or under whom he claims.
10. Judged in any manner the plaintiff in this case is in no sense a party claiming under defendant 5. She does not claim any right acquired from the 5th defendant. She, indeed, claims in her own right. She cannot be deemed to be the person interested within the meaning of Explanation VI as the said explanation has no application where what the party to the former suit had claimed is a right for himself and not a right in common for both of them. He cannot be said to have represented her in litigation in the absence of a right common to both. The explanation VI cannot therefore he attracted in the absence of representative character of the claim and litigation. It is only in case both these characteristics exist that a person interested though not eo nomine a party to the former suit. is bound by the decision is that suit. If the defendant 5 had set up only the right of plaintiff a decision on such a plea cannot bind the plaintiff. It was so held in M. Jagannadham v. M. Venkata Subbarao, AIR 1927 Mad 844 where a plea of jus tertii was raised. On the other hand, where under a settlement properties were given to a husband and his wife and other issues, and in a suit to which the husband and wife were parties it was decided that the settlement was invalid and plaintiff was not bound by it, a subsequent suit brought by the child on the basis of the same settlement was held by the Madras High Court in Narayanashami v. Parvatibai, AIR 1949 Mad 379 to be barred by res judicata as the husband and wife had not only represented their own interest but of the children. It is unnecessary to multiply citations. Suffice it to say that the case of the plaintiff is not hit by the principle of res judicata as the requisite conditions prescribed by S. 11 C. P. C. to attract that principle have not been satisfied. IN our opinion the Court below erred in holding that the suit was barred by res judicata. The appeal therefore must be allowed.
11. It is no doubt next argued that where once the plaintiff has parted with her rights she cannot maintain the present suit. To our mind this is not a matter so obviously simple as to be decided apart from the facts alleged, cause of action pleaded and relief claimed in the plaint. As we have already said this aspect of the case which has to be considered and decided on the facts of the case has not been considered by both the Courts. In our opinion the case has to go back to the Trial Court so that the case may be tried and disposed of in accordance with law. The appeal is allowed. The Judgment and decree of the Court below are set aside. The case will go back to the Trial Court so that it may dispose of the case in accordance with law. Plaintiff will get her costs of all Courts. There will be a certificate of refund of court-fee.
12. Appeal allowed.