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Said Begam and ors. Vs. Dost Muhammad Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All81
AppellantSaid Begam and ors.
RespondentDost Muhammad Khan and ors.
Excerpt:
.....to do so, it must now be held, in accordance with the second explanation to section 13 of the code of civil procedure, that that claim was a 'matter directly and substantially in issue' in the former suit and that therefore the present suit is barred. in such a suit the decree is not--like a decree for money or for the delivery of specific property--a decree in favour of the plaintiffs only......in that suit. the only defendants who appeared were the eight sons of the sardar bahadur. in that suit a decree was passed by the subordinate judge on january 15th, 1892, in favour of the plaintiffs, and that decree was, on appeal to this court, affirmed on april 23rd, 1897. the present suit was instituted on the 21st may 1892, more than four months after the subordinate judge had given his decree in the former suit, and while that decree was pending in appeal in this court. the contention in the present appeal is that the plaintiffs respondents might and ought to have made their present claim a matter of defence in the former suit, and that as they failed to do so, it must now be held, in accordance with the second explanation to section 13 of the code of civil procedure, that that.....
Judgment:

Burkitt and Knox, JJ.

1. This is a first appeal by the defendants from a decree of the Subordinate Judge of Meerut, dated July 10th, 1893, in favour of the plaintiffs, respondents.

2. The plaintiffs, Musammat Said Begam and Musammat Shahzadi Begam, are daughters of the late Syed Mir Khan, Sardar Bahadur, of Khanpur by his wife Hasno Begam. The plaintiffs' mother died in 1879, and their father in 1889. The present suit was instituted in May 1892. The defendants impleaded in the suit were all the surviving descendants, male and female, of the plaintiffs' father and also his surviving widows. The plaintiffs allege that when he married their mother their father on the same day (August 11th, 1863) executed a kabin-nama, or deed of dower, by which he agreed that the dowry of his intended wife should be Rs. 12,000 in cash and one-seventh of all his immoveable property. They further allege that out of the dower debt due to their mother one-fourth devolved on their father, as one of her heirs on their mother's death. They therefore sued for possession of three-fourths of oue-seventh of the immoveable property, after deducting so much of it as might be recoverable from their shares as heirs to their father's estate, and Rs. 8,182 in cash.

3. The Subordinate Judge gave the plaintiffs a decree for possession of the property as claimed out of their father's estate as it existed at his death, and for Rs. 4,091 in cash. The decree for possession was made as against the whole estate left by the Sardar Bahadur. No deduction was made on account of the amount of the dower debt payable from the plaintiff's personal share by inheritance in that estate. Out of the twenty-one defendants impleaded, nine submitted to the decree of the Court. Twelve appealed, and they impleaded as co-respondents with the plaintiffs one Syed Hasan Khan, son of the late Sardar Bahadur, because it was alleged he had purchased the interest of one of the plaintiffs in the decree. This Syed Hasan Khan is one of the defendants who did not join in this appeal.

4. The first plea argued on behalf of the appellants at the hearing is a plea which, if successful, must put a summary end to the suit. It is the second plea in the memorandum of appeal, and is to the effect that 'the present suit was barred under Section 13 of the Code of Civil Procedure with reference to the litigation ending in decree of the Subordinate Judge of Meerut, dated January 15th, 1892.'

5. To explain this plea it is necessary to set out some facts respecting the previous litigation. They are as follows:

On January 23rd, 1890, two ladies, named Bibi Jan and Bibi Sahib Jan (the latter of whom is now deceased and is represented by the appellants Nos. 7-12), daughters of Syed Mir Khan, Sardar Bahadur, instituted a suit against all the surviving descendants, male and female, and the surviving widows of their father, to recover by partition their shares as daughters according to Muhammadan Law in their deceased father's estate. Among the defendants impleaded in that suit were the two plaintiffs (who also are daughters of the Sardar Bahadur), Musammat Said Begam and Musammat Shahzadi Begam, of the present suit. The latter did not put in any written defence in that suit. The only defendants who appeared were the eight sons of the Sardar Bahadur. In that suit a decree was passed by the Subordinate Judge on January 15th, 1892, in favour of the plaintiffs, and that decree was, on appeal to this Court, affirmed on April 23rd, 1897. The present suit was instituted on the 21st May 1892, more than four months after the Subordinate Judge had given his decree in the former suit, and while that decree was pending in appeal in this Court. The contention in the present appeal is that the plaintiffs respondents might and ought to have made their present claim a matter of defence in the former suit, and that as they failed to do so, it must now be held, in accordance with the second explanation to Section 13 of the Code of Civil Procedure, that that claim was a ' matter directly and substantially in issue' in the former suit and that therefore the present suit is barred. There is no dispute as to the facts. It is admitted that these plaintiffs respondents were impleaded as defendants in the former suit and they did not put in any defence. A perusal of the plaint in the former suit, a copy of which has been put in evidence in this appeal, shows that these plaintiffs respondents were, conjointly with the other defendants in that suit, impleaded as being in possession of the estate left by the deceased Sardar Bahadur their father, the estate of which the plaintiffs in that suit sought to recover their legal shares as heirs.

6. For the appellants here our attention was called to the decisions of their Lordships of the Privy Council in the cases of Mahabir Parshad Singh v. Macnaghten L.R. 16 I.A. 107, and Kameswar Parshad v. Rajkumari Ruttun Koer L.R. 19 I.A. 234, and on their authority we were asked to hold that the claim of the plaintiffs in the present suit was barred by the principle of res judicata.

7. In the former suit the plaintiffs asked for possession by partition of 14/120 shares out of the whole of certain specified properties (set forth in schedules) which they alleged had been of the Sardar Bahadur at his decease and were at the date of the suit in possession of the persons impleaded as defendants, and amongst others of the female plaintiffs respondents to this appeal. The contention for the appellants is that those ladies not merely might but ought to have pleaded in the former suit that the plaintiffs to that suit could not get a decree for 14/120 shares in the whole immoveable property left by their deceased father, because (debts by Muhammadan Law taking precedence of inheritance) they (the present plaintiffs respondents here) had a title to three-fourths of one-seventh of the estate as it stood at the date of the kabinnama, and to a large sum in cash, which claim should be paid before the plaintiffs of that suit could take their shares in the estate by partition as heirs. As their father and mother had both died before 1890 the cause of action for the dower debt had accrued before the institution of the former suit. In our opinion it was incumbent on these ladies when defendants in the former suit, which was a suit for partition, even if they did not on other grounds dispute the claim of the plaintiffs in that suit, to have pleaded, at least as a partial defence to that suit, that a decree for partition should not be made until the debt due to them, on the footing of their mother's dower, both in moveable and in immoveable property, had first been deducted from the property left by their father. The effect of the claim to the dower debt, if then made by these ladies and substantiated, would have been to reduce considerably the extent of the immoveable property and the cash out of which the plaintiffs in the former suit would take their 14/120 shares. We are of opinion that in that suit for partition these ladies should have informed the Court and the plaintiffs that they had a claim which would have the effect mentioned above, and should have objected then to the Court giving to those plaintiffs a decree for possession of 14/120ths out of their father's estate as it stood at his death, and should have represented that those plaintiffs were only entitled to a decree for possession by partition of 14/120ths of as much of that estate as remained after the dower debt had been discharged, or due allowance made for it.

8. What has happened is that in the former suit the Subordinate Judge, and this Court in appeal, after deciding distributively the number of shares into which the property left by the late Sardar Bahadur should be divided, and the number of such shares to which each of the heirs (all of whom were impleaded in the suit) of the deceased was entitled, held that the plaintiffs in that suit were entitled to possession of 14/120ths of the property left by the Sardar Bahadur and gave a decree accordingly. It follows therefore that, if the decree in the present case is to stand, the decree in the former suit--to which the plaintiffs in the present suit were parties--must be torn up, and considerable deductions will have to be made from the area of the immovable property and from the amount of the movable property, possession of which was adjudged to the plaintiffs of the former suit. Those plaintiffs have thus most unnecessarily been exposed to the trouble, annoyance and expense of a second suit, the subject matter of which might have been decided in the former suit.

9. In our opinion the second explanation to Section 13 of the Code of Civil Procedure is peculiarly applicable to such a state of things. The rule laid down in that explanation appears to us to be, to some extent at least, founded on the principle which underlies Section 43 of the same Code, namely, that of preventing a multiplicity of suits and unnecessary litigation. We have shown above that the present suit was quite unnecessary. Bearing in mind the observations of their Lordships of the Privy Council as reported at page 238 of their judgment in Kameswar Parshad v. Rajkumari Ruttun Koer L.R. 19 I.A. 234, we have no hesitation in holding that this matter of the dower debt ought to have been made a ground of defence by the respondents Said Begam and Shahzadi Begam when they were defendants in the former suit. It must therefore be considered to have been directly and substantially in issue in that suit. It follows therefore that the present suit is barred as a res judicata and should have been dismissed, certainly as far as the plaintiffs in the former suit and their representatives in title (defendants appellants in the present suit) are concerned.

10. As to the other defendants to this suit (some of whom have appealed and some have not), all of whom were defendants in the former suit, we note that no suggestion was made at the hearing of this appeal on behalf of the respondents, that the decree under appeal should be modified so as to exempt from its operation the plaintiffs of the former suit. Irrespective of that matter we are of opinion that the present suit is barred by the principle of res judicata, not merely against the plaintiffs (as decided above), but also as against the defendants in the former suit, and even though the plaintiffs in the present suit were co-defendants in the former suit. That suit, as we have already pointed out, was a suit for possession by partition. In such a suit the decree is not--like a decree for money or for the delivery of specific property--a decree in favour of the plaintiffs only. In a suit for partition (as the former suit was) the decree is, or ought to be, a joint declaration of the rights of the persons interested in the property of which partition is sought, and is a decree in favour of each sharer. It decides what interest each of the sharers has in the property, the subject of partition, whether those sharers be plaintiffs or defendants, and renders unnecessary any subsequent suit by any of such sharers for a declaration of his interest in the property (vide Sheikh Ehoorshed Hossein v. Nubbee Fatima I.L.R. 3 Cal. 551, and Ramchandra Narayan v. Narayan Mahddeo I.L.R. 11 Bom., 216. In the former suit, in order to adjudicate on the relief to be given to the plaintiffs, i.e., in order to ascertain to what share in their father's property they were entitled, it was absolutely necessary to ascertain also what were the shares of all the other heirs of the Sardar Bahadur, and who they were. Those other heirs were all the defendants of the former suit, including the female plaintiffs respondents to this appeal, and the decree therefore was not merely an adjudication as to the shares in the property of which partition was sought to which the plaintiffs in that suit were entitled, but also of the shares to which each of the defendants inter se was entitled out of the property left by the Sardar Bahadur at his death. Practically each of the defendants obtained a decree for his or her fractional share in that property, a decree which he or she could not have obtained had the female respondents in the present suit put forward (as we think they ought to have done) and established their claim to their mother's dower debt. The question whether all these defendants are entitled to their various shares out of the property left by the Sardar Bahadur at his death, and not to the same fractional shares out of that property diminished by payment of the dower debt, is, we think, just as much a res judicata in favour of those defendants as we have held it to be in the case of the plaintiffs in the former suit. For the above reasons we are of opinion that the present suit is barred by the principle of res judicata as against all the persons impleaded as defendants in the former suit, and that it should have been dismissed as against them also.

11. Some arguments were addressed to us for the appellants on other points arising in the appeal, but, as in our opinion the suit fails, we consider it unnecessary to discuss them.

12. We allow this appeal. We set aside the decree of the lower Court and, as we hold that the suit was barred ab initio, we, under the provisions of Section 544 of the Code of Civil Procedure, direct that it stand dismissed as against all the persons impleaded as defendants. The respondents will pay appellants' Costs in both Courts.


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