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Bhanwarlal and ors. Vs. Raja Babu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 4 of 1964
Judge
Reported inAIR1970Raj104; 1969()WLN201; 1969()WLN467
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 23, Rule 3; Evidence Act, 1872 - Sections 115
AppellantBhanwarlal and ors.
RespondentRaja Babu and ors.
Appellant Advocate R.K. Rastogi and; N.K. Jain, Advs.
Respondent Advocate P.N. Datta, Adv.
DispositionAppeal dismissed
Cases ReferredHewlett v. Tarte
Excerpt:
.....as well. thus it cannot be said that there is any admission by implication on the part of mst. rajbai that she could not adopt without the authority of her husband. the test to be applied in such cases is that the court could not have passed that judgment without determining that particular point against the party who is raising that point over again. - - ' to the like effect are the following observations of the judicial committee in 'kinch v. it may well be that the adoption of mannalal may not have in fact taken place or that it was invalid because no giving and taking ceremony could take place, he being orphan and the admission could have well been made by accepting any of these two grounds. in this case, the particular finding that mannalal was not adopted son of motilal could..........plaintiff had put forward several grounds for challenging the factum and validity of adoption of mannalal. mannalal and mst. rajbai when they admitted that mannalal be declared not to be the adopted son of motilal, it cannot be said that they necessarily admitted all the grounds put forward by the plaintiff gaindilal in that case to be correct. there is no indication to that effect in the admission made by learned counsel on their behalf nor is such admission indicated by the judgment of the jaipur high court.it may well be that the adoption of mannalal may not have in fact taken place or that it was invalid because no giving and taking ceremony could take place, he being orphan and the admission could have well been made by accepting any of these two grounds. it does not necessarily.....
Judgment:

Bhandari, C.J.

1. This is a special appeal under Section 18 of the High Court Ordinance. The suit out of which this appeal arises was filed by Gaindilal against Mst. Rajbai, Rajababu, Mannalal and three other persons in the court of Civil Judge Jaipur. The case set up by the plaintiff is that one Motilal husband of Mst. Rajbai died in the Samwat year 1971 and that according to the pedigree-table submitted in the plaint, the plaintiff was the next reversioner. Gaindilal plaintiff further alleged that in his lifetime Motilal had made an oral will in his favour bequeathing all his property in favour of the plaintiff and that after the death of Motilal Mst. Rajbai continued to live with the plaintiff. On 20th December, 1941 she executed an adoption deed purporting to adopt Mannalal. On this the plaintiff filed a suit which was dismissed in the trial Court and in the Court of firstappeal but was decreed by the High Court of the former Jaipur State on 5th April, 1944. In spite of this, Mst. Rajbai executed another adoption deed on 22nd November, 1945 purporting to adopt Rajababu minor son of Mannalal. The plaintiff stated that in fact Rajbai never adopted Rajababu. Mst. Rajbai who was a Hindu widow had merely a right of residence in the house left by Motilal and in the light of the averments made in the plaint, he prayed for a declaration that Rajababu was not the adopted son of Motilal and that he being the nearest reversioner was entitled to his property. After the death of Mst. Rajbai, the plaintiff amended his plaint and prayed for a decree of possession in respect of certain properties. The suit was contested by Rajababu.

2. The trial Court held that Mst. Rajbai who was a Jain widow had a right to adopt a son to herself and to her husband without any authority from her husband and that in fact, she had adopted Rajababu defendant to her husband. On the question of will the finding was against the plaintiff. The trial Court also decided issue No. 9 about res judicata against the plaintiff. With these findings, the suit was dismissed.

3. Plaintiff Gaindilal filed an appeal in the Court of District Judge, Jaipur City. During the pendency of the appeal, he died and his sons and widow were brought on record as his legal representatives. The learned District Judge dismissed the appeal holding inter alia that the bar of res judicata was not available in the present case. Thereupon the appellants filed a second appeal in this Court which was decided by Bhargava J. The only point argued before the learned single Judge was that of res judicata inasmuch as the question whether Mst. Rajbai could take a son to her husband in adoption without the authority of her husband roust be taken to have been decided against her in the previous suit which was decreed by the High Court of the former Jaipur State. It may be mentioned that the judgment of the former Jaipur State High Court was based on the admission made by learned counsel for the respondent in that case that the suit may be decreed against the respondent but the defendant may be exempted from paying the costs incurred by the plaintiff. The learned single Judge held that the relief claimed in the previous suit was for declaration that Mannalal was not the adopted son of Motilal and that this relief could be granted to the plaintiff on this ground alone that Mannalal who was orphan was given in adoption by his brother and that it was quite unnecessary in the circumstances of the case to make any admission by counsel for Mst. Rajbai that Mst. Rajbai could not adopt any boy without the authority of her husband. He, however, granted permission under Section 18 to the appellants to file a special appeal. In pursuance of this, they have filed this special appeal.

4. It is argued by learned counsel for the appellants that the judgment of the Jaipur High Court be held to operate as an estoppel by conduct against Mst. Rajbai on the point that she had no right to adopt to her husband as she had not the authority to do so. The judgment of the Jaipur High Court is based on admission of the counsel for the respondent No. 2 and it does not specifically say that Mst. Rajbai had in any manner admitted that she had no right to adopt a son to her husband. In the previous suit Gaindilal plaintiff had challenged the adoption of Mannalal on several grounds including its factum and legality. The legality was challenged on the grounds that Mannalal was an orphan and could not be given in adoption and that Mst. Rajbai who was a Hindu widow could not adopt him to her husband as she had no authority to do so. It is contended by learned counsel for the appellants that all the defences raised by Mst. Rajbai must be taken to have been decided against her or in any event, she was now estopped from raising those very defences, and as one of the defences raised by her was that she had a right to adopt without the authority of her husband as she was a Jain widow, that defence must not be permitted to be raised again in the present suit.

5. We have to examine how far this contention is correct. It must be taken to be settled law that a compromise decree is not a decision of the court and as such Section 11 C. P. C. is not applicable in its term to such a decision because such a decision cannot be said to have been given after the case had been heard and finally decided. In this connection, we may refer to the following observations of their Lordships of the Supreme Court in Venkata Subba Rao v. V. Jagannadha Rao, AIR 1967 SC 591:

'The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court could be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests.'

6. It is, however, urged that a consent decree is as much binding upon the parties as a decree passed after contest. In this connection learned counsel has placed reliance on Sunderabai v. Devaji Shankar, AIR 1954 SC 82; Shankar Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352 and Sailendra Narayan v. State of Orissa, AIR 1956 SC 346. He has particularly relied on the following observations of the Supreme Court made in the last case:

'The plea of estoppel is sought to be founded on the compromise decree, Ex. 'O' passed by the Patna High Court on 2-5-1945 in F. A. No. 15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In 'In re, South American and Mexican Co., Ex parte, Bank of England', (1895) 1 Ch 37, it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaugham Williams, J., Lord Herschell said at page 50:

'The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end.

And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.'

To the like effect are the following observations of the Judicial Committee in 'Kinch v. Walcott', 1929 AC 482 at p. 493:

'First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal.'

The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the cases of 'Secy. of State v. Ateendranath Das', (1936) ILR 63 Cal 550 at p. 558; Bhaishankar v. Morarji, (1912) ILR 36 Bom 283 and Kumara Venkata Perumal v. T. Ramasamy Chetty, (1912) ILR 35 Mad 75. In the Calcutta case after referring to the English decisions the High Court observed as follows:

'On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded.

When we say 'every step in the reasoning' we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment.'

7. These observations show that when a judgment has been given in a particular case, then in spite of the fact that such a judgment is given by consent, the cause of action merges in the judgment and no further action can be brought on that causeexcept an appeal from that judgment or unless that judgment is set aside for collusion or otherwise. What has been decided by that judgment is final and binding on the parties.

8. Viewed in this light, the judgment of the Jaipur State High Court only decided that Mannalal be declared that he was not the adopted son of Motilal, There were various grounds on which the adoption of Mannalal was challenged by Gaindilal plaintiff in that suit. They were (1) that adoption had not in fact taken place, (2) that he could not be validly adopted as he was an orphan and there was nobody to give him in adoption and (3) that Mst. Rajbai who was a Hindu widow had no authority from her husband to adopt. Mannalal could be declared as not adopted to Motilal on any one of the three grounds raised by Gaindilal plaintiff in that case. It is not clear either from the admission recorded in the judgment of the Jaipur High Court or from the judgment itself as to which ground operated for making that declaration. It is contended by learned counsel for the appellants that even if it be so, all the grounds raised for challenging the adoption of Mannalal should be taken to be impliedly admitted to be correct by Mst. Rajbai and Mannalal.

It has been urged relying on (1936) ILR 83 Cal 550 which must be taken to have been approved by the Supreme Court that not only the conclusion that was arrived at in that case that Mannalal was not the adopted son of Motilal was final and effective between the parties but also the judgment was final and effective with regard to every step in the process of reasoning on which the said conclusion was founded. In our opinion what is laid down in the Calcutta case is that if a finding is necessary to arrive for sustaining the judgment in a particular case, such finding may operate as an estoppel by judgment in the subsequent suit. The same may be expressed in other words by saying if the judgment in the previous suit could not have been passed without determination of the question which was put in issue in the subsequent case, the finding on that question would operate as estoppel. Their Lordships of the Supreme Court examined the facts of the case in AIR 1956 SC 346 supra on the basis whether the judgment in the previous suit could have been passed without examination of the question which was put in issue in the sub-sequent case in which the plea of estoppel in the previous judgment is raised.

9. There may not be so much difficulty in determining what must be taken to be necessary finding for a judgment by admission in a case in which there is only one ground raised by a party to set up a claim. But when several grounds have been put forward by a plaintiff in the alternative for claiming a particular relief and the defendant admits that the relief claimed by the plaintiff may be granted without saying anything more, it becomes difficult to come to the firm conclusion as to which finding the defendant intended to accept while giving consent that the relief prayed for be granted. For example, in this case Gaindilal plaintiff had put forward several grounds for challenging the factum and validity of adoption of Mannalal. Mannalal and Mst. Rajbai when they admitted that Mannalal be declared not to be the adopted son of Motilal, it cannot be said that they necessarily admitted all the grounds put forward by the plaintiff Gaindilal in that case to be correct. There is no indication to that effect in the admission made by learned counsel on their behalf nor is such admission indicated by the judgment of the Jaipur High Court.

It may well be that the adoption of Mannalal may not have in fact taken place or that it was invalid because no giving and taking ceremony could take place, he being orphan and the admission could have well been made by accepting any of these two grounds. It does not necessarily follow that Mst. Rajbai and Mannalal in that case admitted the correctness of the third ground that Mst. Rajbai had no authority to adopt and could not adopt without the authority of her husband. Logically a finding is necessary to arrive at a conclusion if that conclusion could not be arrived at without that: finding. In this case, the particular finding that Mannalal was not adopted son of Motilal could be maintained on other grounds as well. Thus it cannot be said that there is any admission by implication on the part of Mst. Rajbai that she could not adopt without the authority of her husband, The test to be applied in such cases is that the court could not have passed that judgment without determining that particular point against the party who is raising that point over again.

10. In England similar test has been applied in cases when the judgment is a judgment in default and which in India is covered by the terms of Section 11 C. P. C. It was observed in New Brunswick Rly. Co. v. British and French Trust Corporation Ltd. 1939 AC 1 that an estoppel based on default judgment must be very carefully limited and the principle in such a case seems to be that a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment. The Privy Council examined this question in connection with a judgment in default in Kok Hoong v. Leong Cheong Kweng Mines Ltd., 1964 AC 993. That was an appeal from Malaya, In that case in 1954 the appellant claimed arrears of rent for the hire of machinery under an alleged lease made in connection with written agreement of 1952. The respondent was refused leave to defend and the appellant obtained judgment by default in 1957. The appellant commenced a second suit claiming arrears of rent from a date in 1955 when a fresh hiring agreement was made. The respondent pleaded that the appellant was a money-lender and that in fact in 1952 the appellant had advanced the respondent money and the respondent had purported to sell the machinery to the appellant and that the machinery was in fact security for the loan and the hire charges were in fact interest on the loan. The appellant denied that he was money-lender or that the transaction was a money-lending transaction and pleaded that the respondent was estopped from raising this plea by virtue of the earlier judgment in 1954. Their Lordships of the Privy Council approved the law laid down in 1939 AC 1 and observed as follows:--

'In their Lordships' opinion the New Brunswick Railway Co. case, 1939 AC 1 can be taken as containing an authoritative reinterpretation of the principle of Hewlett v. Tarte, 1861-10 CBNS 813 in simpler and less specialised terms. This reinterpretation amounts to saying that default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and to use the words of Lord Maugham L. C., they can estop only for what must 'necessarily and with complete precision' have been thereby determined .... . . . . . . . . . .

On the whole their Lordships think it impossible to say that there was anything in the first judgment which necessarily and with complete precision decided this issue against the respondent, and they hold consequently that the estoppel claimed cannot be maintained against it.'

11. We do not mean to say that same test will be applicable in applying the rule of res judicata in India with respect to a default judgment. But these decisions are instructive for finding out the principle behind the doctrine of estoppel by judgment. In our opinion, the principle enunciated by the Privy Council must be taken to have been laid down by their Lordships of the Supreme Court with regard to the consent decree when they approved the decision of the Calcutta High Court in (1936) ILR 63 Cal 550.

12. Learned counsel for Rajababu has further pointed out that it is an accepted position in Rajasthan that a Jain widow can adopt without the authority of her husband and that in the circumstances of the case Mr. G. C. Kasliwal who was appearing for the respondents could not have made such a fatal admission against his clients. It is further urged that such an admission was an admission on a point of law and if erroneous was ineffective. It is also urged that such an admission was not intended tobe made may also be inferred from the other circumstances in this case inasmuch as soon-after the judgment of the Jaipur High Court. Mst. Rajbai adopted Rajababu to her husband. These circumstances no doubt show that such an admission may not have been intended to be made. In our opinion, the principle of estoppel by judgment is not attracted in this case.

13. The learned Single Judge has rightly dismissed the appeal filed by the plaintiff. This appeal has therefore no force and is dismissed with costs.


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