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Raval Prabhulal Bapalal Vs. Bai Godavri W/O. Dhirajram Kripashankar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Application No. 464 of 1960
Judge
Reported inAIR1963Guj183
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantRaval Prabhulal Bapalal
RespondentBai Godavri W/O. Dhirajram Kripashankar and anr.
Appellant Advocate H.L. Patel, Adv.
Respondent Advocate A.N. Surti,; Y.P. Trivedi and; B.I. Patel, Advs.
DispositionPetition dismissed
Cases ReferredIn Munni Bibi v. Tirtoki Nath
Excerpt:
.....suit filed against respondent on ground that by certain act respondent's interest forfeited in suit property - judge in earlier suit reached final conclusion and passed decree - question in present suit decided earlier - decision became res judicate so cannot be litigated again between same parties. - - 3. the claim in the suit is based on the terms and conditions of the gift deed, one of which, so far as is relevant for the present purpose was to the effect that if bai godavri did any 'bad act',the donees were entitled to take the possession from her. by the deed of gift godavri was to possess and enjoy the property for her full life and after her death the property was to be taken possession of by the two donees jointly. a provision however, was in the gift deed as stated..........remained the sole donee. the plaintiff has filed this suit for recovering possession of the suit property which according to the plaintiff has been gifted to him, as stated above, by bai godavri.3. the claim in the suit is based on the terms and conditions of the gift deed, one of which, so far as is relevant for the present purpose was to the effect that if bai godavri did any 'bad act', the donees were entitled to take the possession from her. by the deed of gift godavri was to possess and enjoy the property for her full life and after her death the property was to be taken possession of by the two donees jointly. a provision however, was in the gift deed as stated earlier that if during her life-time, she did any bad act, the donees could immediately take possession of the.....
Judgment:
ORDER

R.B. Mehta, J.

1. This is a civil revision application against an interlocutory order made by the learned Civil Judge, Junior Division, Kadi, by which order on the application of opponent No. 2 in this revision application (who was second defendant in the suit) an issue which was raised was deleted. The deletion of this issue has the effect of substantially affecting the rights of the parties in the suit as it relates to a point of 'res judicata'.

2. The matter arises this way. On 10th June 1951, by a registered deed of gift, one Bai Godavri, widow of one Dhirajlal Kripashanker, who is the first opponent in this revision application and also defendant No. 1 in the suit made a gift of the property in the suit to the applicant Raval Prabhulal Bapalal, who is the plaintiff In the suit and one Bal Shivganga jointly. Bai Shivganga was a sister of the husband of Godavri. Sometime after the execution of this deed, Bai Shivganga died with the result that under the deed of gift the plaintiff remained the sole donee. The plaintiff has filed this suit for recovering possession of the suit property which according to the plaintiff has been gifted to him, as stated above, by Bai Godavri.

3. The claim in the suit is based on the terms and conditions of the gift deed, one of which, so far as Is relevant for the present purpose was to the effect that if Bai Godavri did any 'bad act', the donees were entitled to take the possession from her. By the deed of Gift Godavri was to possess and enjoy the property for her full life and after her death the property was to be taken possession of by the two donees jointly. A provision however, was in the gift deed as stated earlier that if during her life-time, she did any bad act, the donees could immediately take possession of the property for their beneficial enjoyment. The case of the plaintiff was that Bai Godavri committed a bad act in that after the death of her husband Dhirajram Kripashanker, she contracted a re-marriage on 16th November 1954 with one Harishanker. The plaintiffs case was, therefore, that Godavri having committed a bad act, under the terms of the Gift Deed, he, being the sole surviving donee ot the two joint donees, was entitled to recover possession of the property, which was the subject-matter of the gift.

4. One of the issues raised at the trial was whether Godavri contracted a remarriage. Before proceeding further at this stage it is necessary to refer to another suit No. 15 of 1055, which was filed in the Court of the Civil Judge, J. D., Kadi, by one Bai Jadav against Bai Godavri, who was defendant No. 1, in that suit and against the present opponent No. 2, Raval Ravishanker Ramrarayan, who was defendant No. 2 in that suit. Opponent No. 2 is an alienee from Bai Godavri of the suit property. In that suit, It was the case of Bai Jadav that that she was an heir of Bai Godavri's deceased husband and that Bai Godavri had contracted a remarriage and that she had forfeited her Interest in her deceased husband's estate and that, therefore, her husband's estate which included the property In dispute, should be restored to her i.e. Bai Jadav as the sole heir of the deceased husband of Godavri.

In this Kadi suit an application was made by the present applicant Raval Prabhulal Bapalal that he was interested in the decision of that Kadi suit and, therefore, he be made a co-plaintiff, as according to him Jadav was not the sole heir of the deceased husband of Godavri and that he had also one-half share in that inheritance along with Bai Jadav. As a result of this application by Raval Prabhudas, who is the present applicant, he was added as a party-defendant and became Qefendant No. 4. In that suit, the learned Civil Judge came to the conclusion that Bal Godavri had remarried and decreed the suit. Against that decision there was an appeal to the District Judge, Mehsana, being No. 102 of 1956. In that appeal, the learned DiS; trict Judge, Mehsana, reversed the decision of the learned Trial Judge and held that Bai Godavri had not remarried and, therefore, Jadav's suit was dismissed. There was no appeal from the decision of the learned District Judge, with the result that the decision in that suit was binding on the parties to that suit, and the decision an the issue whether Godavri had contracted remarriage was binding c the parties to the suit.

5. It appears that alter the decision in this Kadi suit of Bai Jadav, the present plaintiff Raval Prabhulal Bapalal filed the present suit again basing his claim as a donee of the said property for possession on the ground that Bai Godavri had committed a bad act, viz., that she had remarried and, therefore, the property should be handed over to the plaintiff as a sole surviving donee. It was In these circumstances that in the present suit, In which Bai Godavri was the first defendant and Raval Ravishanker was the second defendant, that the alienee from Godavri i.e. Raval Ravishanker applied to the Court that the issue of Godavri's remarriage had already been decided between the parties in Bai Jadav's suit and that the same Issue should not be allowed to be reagitated as It was a matter covered by the principle of 'res judicata'.

6. The learned Trial Judge upheld the contention of the second defendant, It is against that decision of the learned Trial Judge that this revision application is directed.

7. The narration of the events which I have given above, makes it quite clear that the issue of Godavri's remarriage was decided between the parties previously and that, therefore, that matter was 'res judicata' between the parties. Consequently, the decision of the learned Trial Judge, in my view, deleting this issue was correct.

8. It was quite clear that in the Kadi suit, there was a conflict of interest between Godavri and her alienee Raval Ravishanker Ramnarayan, defendants Nos. 1 and 2 respectively on one hand and the present plaintiff Raval Prabhulal, who was added as a party defendant no. 4 In that suit on the other; and that conflict of interest was that the present plaintiff Raval Prabhulal Bapala] alleged that Godavri had remarried and her interest in the suit property had come to an end and that, therefore, the property or a half share in it should go to defendant No. 4. Further it was necessary in the Kadi suit to decide this conflict of interest between the co-defendants in order to give relief to the plaintiff Bai Jadav, for to give relief to the plaintiff Bai Jadav in that Kadi suit, it was necessary to decide the question whether Bai Godavri had remarried; and further, as a matter of fact, that question was decided in the Kadi suit both as between the plaintiff and Godavri and her alienee on one hand and defendant No, 1 (Godavri) and defendant No. 2 (alienee) and defendant No. 4, who is the plaintiff in the present suit on the other hand. In view of these conditions being satisfied, tharacan be no doubt that this decision would be 'res judicata' between the co-defendants and, if that is so, that point cannot be litigated over again in the present suit between the same parties.

9. In this connection, reference may be made to a Privy Council decision in the case of Chandu Lal Agarwalla v. Khalilur Rahaman, 52 Bom LR 469 : (AIR 1950 PC 17), where the Privy Council has observed as follows at p. 170 (of Bom LR) : (at p. 18 of AIR):

'In Munni Bibi v. Tirtoki Nath , the conditions for the application of the doctrine of 'res judicata' as between the parties who have been co-defendants in a previous suit are thus laid down; there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants.'

10. In view of this clear decision of the Privy Coun-cil and the decision in the Kadi suit, which was reversed in appeal and over which no appeal has been filed by any of the parties, the issue whether Gedavri had contracted remarriage is res judicata between the plaintiff in this suit and defendant Nos. 1 and 2. In other words, the decision arrived at by the learned trial Judge in deleting the issue in question was correct.

11. In the circumstances, the revision application fails and is dismissed with costs. Rule discharged.


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