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Cheria Veetil Madhavan Variar (Died) and ors. Vs. Chathu Nambiar of Memenda Amsom Kizhal Desam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 101 of 1947
Judge
Reported inAIR1951Mad285; (1950)2MLJ501
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantCheria Veetil Madhavan Variar (Died) and ors.
RespondentChathu Nambiar of Memenda Amsom Kizhal Desam and ors.
Appellant AdvocateN.R. Sesha Aiyar, Adv.
Respondent AdvocateS. Venkatachala Sastri, Adv.
DispositionAppeal allowed
Cases ReferredGopalan v. Shankaran Nair
Excerpt:
.....former suit between same parties - title asserted in second suit different from title in issue in earlier suit - bar under section 11 does not apply. - - this kanam deed states that the property was given as putravakasam property to he enjoyed by the children of kunhunni viriar, and the plaintiff is the only surviving son of the said kunhunni variar entitled to the entire rights in the property as the sole surviving member of the putravakasam tavazhi. the learned district judge assumed that at the time the earlier suit was instituted by the plaintiff as karnavan he was the only member of the tarwad then alive and that therefore he would have validly included the alternative title based on the putravakasam tavazhi right in the earlier suit and as he failed and neglected to plead the..........decree was reversed on appeal by the learned district judge on the ground that his title to the suit property became extinguished by reason of a prior decree in o. s. no 183 of 1931 on the file of the badagara additional district munsif's court.2. the suit out of which this second appeal arises was instituted for recovery of rent due under a registered marupat dated 27.12 1909 executed by defendant 1's brother, one krishnan nambiar since deceased to the plaintiff's brother, deceased govinda variar defendant 2 in the suit is alleged to be the tenant under defendant 1 and defendants 3 to 13 and 15 were subsequently impleaded as parties interested in the property under the will of krishnan nambiar, the executant of the marupat. defendant 14 is a member of the tarward of the plaintiff and.....
Judgment:

Satyanarayana Rao, J.

1. The plaintiff obtained in the District Court the decree for rent claimed by him for the years 1932 to 1942 but that decree was reversed on appeal by the learned District Judge on the ground that his title to the suit property became extinguished by reason of a prior decree in O. S. No 183 of 1931 on the file of the Badagara Additional District Munsif's Court.

2. The suit out of which this second appeal arises was instituted for recovery of rent due under a registered marupat dated 27.12 1909 executed by defendant 1's brother, one Krishnan Nambiar since deceased to the plaintiff's brother, deceased Govinda Variar Defendant 2 in the suit is alleged to be the tenant under defendant 1 and defendants 3 to 13 and 15 were subsequently impleaded as parties interested in the property under the will of Krishnan Nambiar, the executant of the marupat. Defendant 14 is a member of the tarward of the plaintiff and he was impleaded to protect the intereats of the members of the tarwad. Defendant 1 disclaimed interest in the property by his written statement and defendant 2 and the other defendants were the main contesting defendants. The principal defence to the action was that the suit was barred by reason of the decree in O. S. No. 183 of 1931 on the file of the Badagara Additional District Munsiff's Court and that the plaintiff had no title to the property. The title claimed by the plaintiff to the suit property is based on the compromise decree in O. S. No. 419 of 1892 on the file of the District Munsif's Court, Badagara, in pursuance of which a kanam document Ex. P. 2 was executed in respect of three items of property of which the suit property is one. This kanam deed states that the property was given as putravakasam property to he enjoyed by the children of Kunhunni Viriar, and the plaintiff is the only surviving son of the said Kunhunni Variar entitled to the entire rights in the property as the sole surviving member of the putravakasam tavazhi. The plaintiff sues now to recover the rent due under the marupat. There is no dispute now that if otherwise the title of the plaintiff was not extinguished he would be entitled to recover the rent claimed by him in the suit.

2a. In 1931 the plaintiff who was also the then Karnavan of his tarwad instituted suit O. S. No. 183 of 1931 for recovery of possession of the property on the basis that the title to the property vested in the tarwad. He obtained a decree for possession on that basis and a certificate copy of the decree is marked as Ex. P. 5. That decree was not executed and was allowed to be barred. The plaintiff now alleges that he did not know his rights at the time he instituted that suit as he was then under the impression that the property belonged to the tarwad while, in fact, it belonged to the putravakasam tavazhi of which he is now the sole surviving member. The learned District Munsif who tried the pre-sent suit overruled the plea of the defendants that the present suit was barred by the decision in O. S. No. 183 of 1931. The earlier suit was brought by the plaintiff as a karnavan of his tarwad while the present suit is based on a different title, viz., the title of the putravakasam tavazhi. Defendant 14 who was subsequently impleaded as a party to the suit is the senior-most anandravan of the tarwad. The view of the learned District Munsif is that the parties were not litigating in the previous suit under the same title as is now claimed in the present suit and, therefore, there was no bar of res judicata for the present suit under, Section 11, Civil P. C. The learned District Judge assumed that at the time the earlier suit was instituted by the plaintiff as karnavan he was the only member of the tarwad then alive and that therefore he would have validly included the alternative title based on the putravakasam tavazhi right in the earlier suit and as he failed and neglected to plead the alternative title and make it a ground of attack in the earlier suit he is now precluded from asserting the title of the putravakasam tavazhi in the present suit. According to his opinion the only course left open for the plaintiff was to have executed the decree in the earlier suit and the present suit was also barred under Section 47, Civil P. C. He relies for this position on the decisions of the Fall Bench in Narayanan Nambudri v. Theva Amma, 50 Mad. 46 : A. I. E. 1927 Mad. 1013 and he also adds as a further ground for disallowing the claim of the plaintiff that the cause of action for the suit became merged in the earlier suit and that the second suit was incompetent also on the principle of the decision in Mayan Kutti v. Kunkammad. 41 Mad. 641 : A. I. b. 1918 Mad. 370 and Gopalan v. Sankaran Nair, 1946-1 M.L.J, 326 : A. I. B. 1946 Mad. 197. In the latter decision it was held by Wadaworth and Patanjali Sastri JJ., that a subsequent suit for rent based on a lease, after the plaintiff had once obtained a decree in ejectment on the basis of that very lease was incompetent under Section 47, Civil P. C. 3. Under Section 11, Civil P. C., one of the requisites for applying the principle of res judicata is that the issue raised in the second suit (sic) have 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. If the title asserted in the second suit is different from the title which was in issue in the earlier suit the bar under Section 11 does not apply. In the earlier suit, the property was claimed as the property of the tarwad and the plaintiff instituted that suit in a representative capacity. As held by Halloway J., in an unreported decision in A.S. No. 130 of 1862 'A Malabar family apeaks through its head in all Courts of Justice and except in antagonism to its head can speak in no other way.' It is on this principle that the earlier suit was constituted as a representative suit by the karnavan. The assumption made by the learned District Judge that, at that moment, the plaintiff was the sole surviving member of his tarwad is obviously incorrect as there is defendant 14 who is the seniormost anandravan of the tarwad who is still alive. As pointed out by the learned District Munsif, the marupat now in suit (EX. P. 1) was taken by the plaintiff's brother Govinda Variar at a time when the karnavan of the tarwad was one Raghava Variar as is proved by the fact that this Raghava-Variar was alive even in 1914 (Ex. P.4). The marupat now in suit could not, therefore, have been taken by Govinda Variar on behalf of, and in his capacity as, karnavan of the tarwad. In view of the finding of the learned District Munsif which has not been challenged, the property, it has now been conclusively established, belongs in fact to the putravakasam tavazhi of which the plaintiff is now the sole surviving member. The title, therefore, now put forward by the plaintiff is totally different and wholly independent of the title pat forward in the earlier suit. The decision in Narayanan Namludiri v. Theva Amma : AIR1927Mad1043 does not conflict with the view that if the title put forward in a subsequent suit is different the principle of res judicata does not apply. On the contrary, the observations at page 65 of the report supports the contention urged on behalf of the appellant by Mr. Sesha Aiyar, the learned advocate. It was observed at page 65:

'It appears to me that it does not follow that because a decision is binding upon a person, therefore, be must be taken to be a party to the suit. Prima facie only those are parties to the suit within the meaning of Section 47, Civil P. C, whose names appear in the decree. If any person's name so appears, then all questions raised by him relating to the execution, etc., of the decree should be determined by the execution department, and not by a separate suit. If his name does not so appear, then the next question is were his interests (that is, those put forward by him) represented in the suit. He may have his own separate or private inte-reits, and he may have his common interests in the tarwad properties as a member of the tarwad. If only his common interests in the tarwad were represented, then it seems to me it is impossible to hold that his other Interests (separate and private interests) should also be taken to have been represented la the suit, with the result that if in execution proceedings occasion arises for putting forward such separate and private interests, he should be treated not as a stranger qua such interests but as a party to the suit within the meaning of Section 47, Civil P. C.'

This last sentence in the quotation clearly gives out the distinction between the representa-live interest of a karnavan of the tarward and his separate interest. He represents the common interests of the tarwad in the suit and no more. The fact that he was a party in a representative capacity would not make him representative also of his separate and private interests in that particular suit. It cannot, therefore, be assumed that when the plaintiff instituted the earlier suit he thereby brought into the action not only the interests of the tarwad which he held in common with the other members of the tarwad but also his individual, separate or private, interests. The view taken by the learned District Judge, therefore, that the earlier suit operates as res-judicata cannot be upheld.

4. It was also suggested on behalf of the respondent that, at any rate, the plaintiff in the earlier suit must have made this alternative title as a ground of attack and as he did not do so it must be deemed to have been a matter directly and substantially in issue in the earlier suit under Expl. 4 to Section 11, Civil P. C., and he is now precluded from raising that question in a suit in which the tarwad rights are being agitated. The explanation requires that the matter not only 'might' but 'ought' to have been made a ground which implies that he was bound to include the present claim also in the earlier suit. There is no justification for holding that the plaintiff was under a duty to have included in that suit his individual or private right to the property. No principle of law and no decision in support of the argument that he is under an obligation to so include the present claim in the earlier suit has been brought to our notice; nor are we able to find any authority in support of such a view. No doubt a person in instituting a suit for recovery of possession of property based on his title in his individual capacity 13 bound to include all the available grounds of attack, that is, all the available titles under which he could have recovered possession of the property as, for example, in the case in Fateh Singh v. Jagannath Baksh Singh . In thatcase, the first suit was instituted by the plain-tiffs as the presumptive heirs to a widow's estate and when the widow died during the pendency of the suit the presumptive heirs applied to amend the plaint by setting up a family custom of inheritance and claiming possession of a share in the property. That application failed and the presumptive heirs thereafter admitted that, apart from the alleged custom, they could not succeed in the suit. The suit was accordingly dismissed. They instituted the subsequent suit basing their right to recover possession of the property on the alleged family custom. One of the questions decided was that they could not maintain a suit as they were bound to have included the title based on family custom in the earlier suit. On those facts if I may say so with respect it was rightly held by the Privy Council that the claim was within Expl. 4 to Section 11, Civil P. C., and was barred by res judicata. But that decision, in my opinion, has no bearing on the question now under consideration, for the reason that the capacities of the plaintiff in which the two suits were instituted were different and the titles agitated by the parties were also totally different. As karnavarthe of the tarwad the plaintiff was bound to include in the earlier suit all the available titles of the tarwad and not his individual right. As the cause of action in the present suit is different from the cause of action in the earlier suit, the decision in Mayan Kutti v. Kunhammad, 41 Mad. 641: A. I. R.1918 Mad. 370 has no application. In the judgment in S. A. No. 2329 of 1947 which has been delivered today I have given reason for not applying the principle of the decision in Mayan Kutti v. Kunhammad, 41 Mad. 641: A. I. R. 1918 Mad 370 where the causes of action are different. Nor doea the decision of Wads, worth and Patanjali Sastri JJ. in Gopalan v. Sankaran Nair, 1946-1-M L. J. 326: A. I. R. 1945 Mad. 197 even if correatly decided, apply to the facts of the present case as the parties are different. The correctnesa of this decision is also open to doubt for the reasons mentioned in the judgment in S. A. no. 3329 of 1947. Its is, however, unnecessary in this second appeal to go into the question of the correctness of either the decision in Mayan Kutti v. Kunhammad, 41 Mad. 641 : A. I. R.1918 Mad 370 or the decision in Gopalan v. Shankaran Nair : AIR1945Mad197 as Section 11, Civil P. C, has no application to the present case. The bar, therefore, of Section 47, Civil P. C., does not arise.

6. For those reasons, we are of opinion that the decision of the learned District Judge is wrong and must be set aside and that of the District Munsif restored with costs here and in the Court below. Ordered accordingly. J.

6. Viswanatha Sastri J.--I had the opportunity of reading the judgment just delivered and I agree with the conclusion of my learned brother both for the reasons stated by me in my judgment in S. A. no. 2329 of 1947 and for the reasons stated by him in his judgment in this second appeal.


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