Venkatasubba Rao, J.
1. The question raised in this appeal is whether the present suit is barred by res judicata by reason of the decree in O.S. No. 846 of 1923. The bar that is pleaded is not confined to any particular matter in issue but extends to the entire claim. The suit has been brought by one Rayarappan Nambiyar, who fills the dual position of (1) the karnavan of Karakath Idam and (2) the Uralan of Kadamberi Devaswom where the presiding deity is Bhagavathi; in other words, the plaintiff's right to hold the trusteeship of the temple arises from his being the manager of his tarwad. Several reliefs are claimed in the plaint over, what is alleged to be a subsidiary shrine known as Muttapan Devasthanam, under the control of one Valia Ramunni, the karnavan of a Thiya tarwad, and as such, the 'Matayan' or the head of the shrine in question. 1 he plaintiff s case shortly is that the defendant shrine is a subsidiary temple owing allegiance to its suzerain - the Kadamberi Devaswom - and bound to render it homage inter alia by making certain recurring payments. There are some other reliefs which are claimed, to which it will become necessary to refer presently. The question is, whether either of the two grounds taken by the learned Advocate-General is well founded, namely, first that the parties to the present and the previous suit are different and secondly, that the previous suit was tried by a Court which had no jurisdiction to try it. As to the former contention, it is urged that in the present action the right put forward is that of the deity, whereas in the previous suit, the karnavan was asserting his private or individual right. The argument, however, proceeds upon a thorough misreading of the two plaints. There has been a disingenuous attempt in the plaint to make it appear that the present claim differs from the old one which however has not succeeded. In spite of the wilful confusion, that has been introduced, the two claims are not only substantially but identically the same. On the previous occasion, the trustee was described as the plaintiff, suing on behalf of the institution; in the present complaint, the institution figures as the plaintiff suing through its trustee. This is a distinction without a difference; even otherwise, almost every paragraph of the previous plaint shows, that the right put forward by Rayarappan Nambiar (the same person as the present plaintiff) was then, as now, on behalf of the devaswom and not in his capacity as the karnavan of his tarwad. The matter is so patent and so manifest that it would be a waste of time to refer in any detail to the relevant passages. Not only were these two very shrines the plaintiff and the defendant in the previous suit, but they happened to be represented by the same individuals as at present. I fail to see what principle can be deduced from either of the two cases cited by the learned Advocate-General, which can possibly be applied to the facts here. In the first case Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) 49 M.L.J. 30 : L.R. 52 IndAp 245 : I.L.R. 52 Cal. 809 (P.C.) all that was held was, that a Hindu idol is a 'juristic entity' and has a juridical status with the power of suing and being sued. The conception of a family idol as a movable chattel, capable of being treated as property, is not warranted by the authorities and is opposed to principle: that is, the gist of the decision. There was a dispute in regard to a right claimed by one of the parties, to remove the idol from the allotted place of worship, and the only matter decided was, that there was a broader question, which the action raised, than the mere establishment of individual rights, namely, that relating to the interests of the deity. It was therefore held that a disinterested third party, other than either of the contesting claimants, should act as the next friend of, and appear for, the idol. It is difficult to discover any principle laid down here applicable to the facts of the present case.
2. Nor does the second case cited Radha Binode Mandal v. Gopal Jiu Thakur (1927) 53 M.L.J. 123 : L.R. 54 IndAp 238 (P.C.) appear to have any application. The question turned entirely on the construction of the pleadings in the earlier litigation. Both the plaintiffs and the defendants had been described as the shebaits of the gods and the Judicial Committee naturally enough found it difficult to treat the idol as the party (p. 245). Their Lordships expressly declare that owing to the nature of the earlier litigation, it was not thought necessary to make the gods, the plaintiffs in the subsequent suit, parties to the previous suits (p. 246). The facts here as already shown are entirely different. The former suit as the present one, was filed on behalf of the Kadamberi Devaswom, and in both the suits, the plaintiff is virtually the goddess Bhagavathi, the deity in that temple. The contention therefore that the operation of res judicata is excluded by reason of the parties being different, entirely fails.
3. Now turning to the second contention, it is based on a totally wrong assumption. There is a relief claimed in the present plaint (that is the one material to the present contention), namely, that the defendant should be directed to surrender the land where the temple stands, along with the improvements effected thereon. In the plaint, the value of the buildings inclusive of the improvements, has been stated to be upwards of Rs. 13,000. There is a definite averment made in paragraph 3(vi) that the plaintiff is entitled to the improvements without being liable to pay for them. Now, the learned Advocate-General says that in the former suit also a similar claim had been made. There has been some debate as to the correct rendering of the relief No. (a) in the previous plaint (see p. 194, documents paper), but whichever of the two rival renderings is accepted, it is clear that there was no claim made in the earlier suit to the improvements. On the contrary, there is a definite offer in the former plaint to pay for the improvements; in the alternative, the plaint goes onto say that the defendants should be directed to demolish and remove the buildings which constitute the improvements. Surely, this cannot be construed as a claim to improvements, which naturally enough were not even valued in the plaint. Upon the claim made and upon the valuation given of the reliefs, the Court that had jurisdiction was the Munsiff's Court and the suit was rightly filed and tried by that Court. Now on these facts, it is perfectly obvious that the present claim to the improvements is barred either under Section 11, Explanation (4), Civil Procedure Code, or under Order 2, Rule 2. It is in order to get over this difficulty, that the learned Advocate-General has been constrained to contend - quite wrongly as I have said - that even in the previous plaint the improvements had been claimed. The next step in his argument is, that the former suit, understood as comprising a claim to the improvements, was beyond the pecuniary jurisdiction of the District Munsiff who tried it; the decision in such a suit is incompetent and cannot operate as res judicata.
4. Granting for a moment that the construction sought to be placed upon the previous plaint is correct, is the learned Advocate-General's contention valid in law? It is a fundamental rule that a judgment of a Court without jurisdiction is a nullity and that want of jurisdiction cannot be waived. To this rule there are two exceptions recognised by the Indian Law; Section 11 of the Suits Valuation Act deals with defects of jurisdiction due to wrong pecuniary valuation and Section 21, Civil Procedure Code, makes a like provision when the place of suing has been wrongly chosen. But in another way, there is a distinction between inherent incompetency in a Court and irregular exercise of jurisdiction and under the Indian Statute Law, the two defects mentioned above are treated as irregularities which can be waived. The argument pressed upon us is, that beyond the terms of the two sections, the exceptions they embody can have no operation. This contention has been overruled, in regard to Section 21, Civil Procedure Code, by several decisions of our Court. In Zemindar of Ettiyapuram v. Chidambaram Chetty : (1920)39MLJ203 , it was held that the objection to jurisdiction having been waived, the waiver extends to execution proceedings. In that case a wrong Court passed the final mortgage decree without objection and when it was sought to be executed, the defendant objected to its validity. Sir John Wallis, C.J., delivering the judgment of the Full Bench, held that the effect of Section 21 is that objections which the appellate or revisional Court is precluded from allowing, must be considered cured for all purposes. In Chokkalinga Pillai v. Velayudha Mudaliar : AIR1925Mad117 , the Court which passed the final decree without objection had ceased to have jurisdiction over the mortgaged properties. In a suit brought to set aside the decree on the ground that it was void for want of jurisdiction, it was held that Section 21, Civil Procedure Code, enacts an exception to the general rule and that the plea of want of territorial jurisdiction may be waived. As I observed then, if in appeal or revision the decree cannot be impeached, it stands to reason that it should not be allowed to be attacked in a subsequent suit brought to set it aside (p. 459). This was the view taken by Phillips, J., and myself, but as we differed on a question of fact, there was a Letters Patent Appeal filed. Two of the Judges who heard it agreed with our view although the other member refrained from expressing any opinion. In Rajagopala Pandarathiar v. Thirupathia Pillai (1925) 50 M.L.J. 161 : I.L.R. 49 Mad. 746 the sale of the mortgaged property was ordered without objection, by a Court which had ceased to possess territorial jurisdiction. The validity of the sale was assailed by the judgment-debtor in an application subsequently made by him to set it aside. After referring to Section 11, Suits Valuation Act and Section 21, Civil Procedure Code, I went on to observe:
By virtue of these sections, certain defects of jurisdiction are put on a par with 'irregularities in the initial procedure'. In regard to the pecuniary jurisdiction of a Court, Section 11, Suits Valuation Act and in regard to its territorial jurisdiction Section 21, C.P. Code, recognise that there may be a waiver on the part of the defendant and that the absence of jurisdiction does not render the decree a nullity. (See page 750.)
5. In this case it will be seen that the principle of waiver was pushed much further than in the two cases already noticed; the objection waived was not to the 'place of suing' - to which alone Section 21 refers, the defect of jurisdiction having occurred in the course of execution.
6. In Sivakanda Raju v. Rajah of Jeypore : AIR1927Mad627 , the principle laid down in the two last mentioned cases was affirmed, the Court holding that the omission to object to jurisdiction estopped the mortgagor from disputing the validity of the final decree. The learned Judges further held a point with which we are not here concerned - that though the final decree could not be attacked, the mortgagor was not estopped from objecting to the jurisdiction of the Court to order a sale - meaning presumably that the objection could be taken before the sale was ordered but not after the event.
7. The principle laid down in Chokkalinga Pillai v. Velayudha Mudaliar : AIR1925Mad117 has been adopted by the Lahore High Court in Parshottam Das v. Radha Kishnan A.I.R. 1929 Lah. 449, where it is observed that Section 21 creates what may be called a statutory waiver of the objection to jurisdiction so far as it relates to the place of suing.
8. The learned Advocate-General seeks support for his argument in some decisions of the Calcutta High Court to which Mukherjee, J., was a party. After referring to the exception created by the two sections mentioned above the learned Judges (Mukherjee and Chotzner, JJ.) observe:
This exception cannot obviously be so interpreted as to have wider application than what is justified by its terms. Kunja Mohan Chakravarty v. Manindra Chandra (1922) 27 M.W.N. 542.
9. In that case, in execution of a decree certain property was sold by a Court which had no jurisdiction over it. A subsequent suit by the purchaser for recovering the property was dismissed on the ground that the sale had been held by a Court without jurisdiction. This decision, it will be seen, is in direct opposition to Rajagopala Pandarathiar v. Thirupathia Pillai (1925) 50 M.L.J. 161 : I.L.R. 49 Mad. 746 already cited. There is yet an earlier case of the Calcutta High Court - Rajalakshmi Dasee v. Katyayani Dasee I.L.R. (1910) Cal. 639 - which is frequently cited in this connection. There owing to the undervaluation of the suit, the appeal was heard by the District Court, instead of by the High Court, which passed a decree by consent. In a subsequent suit brought for a declaration that the consent decree was a nullity, the learned Judges, Mukherjee, J., being one of them, observed:
If a Court has no jurisdiction, its judgment is not merely voidable, but void, and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been.
10. This statement, so far as it goes, is with great respect unexceptionable, and the real question that arose in the case, as the judgment itself points out, was whether a stranger was bound by the decree in question. The learned Judges say:
We are not now called upon to consider what the effect of such lack of jurisdiction would be upon the decree in so far as the parties thereto were concerned. (Page 668).
11. There is nothing in the positive language of this judgment which supports the contention.
12. A Bench of the Allahabad High Court was in favour of preferring the narrower view of the principle underlying Section 21 and refused to follow the Madras decisions Raghubir Saran v. Hori Lal I.L.R. (1931) All. 560.
13. Finally, it may be pointed out that in Mulla's Civil Procedure Code, the learned author expresses the opinion that the Madras view is sounder in principle than that taken in the decision referred to above, to which Mukerjee, J., was a party. (Commentaries under Section 21.)
14. To treat want of territorial or pecuniary jurisdiction as amounting to inherent incompetency, seems incompatible with the idea underlying the two statutory provisions mentioned above. These sections provide that even had the objection not been waived, that is to say, had been taken in the Court of first instance, the presence of a further element is essential, namely, that there has been a consequent failure of justice. The principle that they appear to embody is, that these defects of jurisdiction are not fundamental in character and are no more than 'irregularities in the exercise of jurisdiction'.
15. Rajah Satrucherla v. Maharaja of Jeypore (1919) 37 M.L.J. 11 : L.R. 46 IndAp 151 : I.L.R. 42 Mad. 813 (P.C.) decided by their Lordships of the Judicial Committee, does not, as explained in several cases, lend the slightest support to the Advocate-General's contention. The general rule, as already stated, is that consent cannot give jurisdiction; but Sections 21 and 11 provide exceptions to that rule. The effect of that decision is that the operation of Section 21 of the Code being excluded in the case of scheduled districts where the lands were situated, the objection was not to the nullity of the order on the ground of want of jurisdiction.
16. That territorial and pecuniary jurisdiction stand in this respect on the same footing has not been disputed, although most of the decided cases refer to the principle embodied in Section 21 alone. However, there is a direct decision of the Allahabad High Court, where the question was one of pecuniary jurisdiction, which supports our view Khudaijat-ul-Kubra v. Amina, Khatun I.L.R. (1923) All. 250.
17. Finally, this case differs from the usual type, as it was the plaintiff himself who on the former occasion invoked the jurisdiction of, what he now contends, was the wrong Court see Chokkalinga Pillai v. Velayudha Mudaliar : AIR1925Mad117 . An objection which a defendant is precluded from raising, is a fortiori not open to the party who was the plaintiff in the previous suit.
18. In the result, the contention of the learned Advocate-General that the present suit is not barred by res judicata fails.
20. The lower Court although it came to the conclusion that the suit was barred by res judicata, went into issues of fact and recorded findings against the plaintiff. We should have also dealt with the questions of fact raised, but for the statement of the learned Advocate-General filed in Court, to the effect that in the view we have taken on the point of res judicata, the merits of the case need not be gone into.
21. Lastly remains the application made by the plaintiff to the lower Court under Order 2, Rule 4, Civil Procedure Code, which has been disallowed by that Court. This forms also the subject of C.R.P. No. 1695 of 1930 posted before us along with this appeal. We substantially agree with the reasons given by the lower Court. Moreover, it would be futile for the plaintiff to urge that to the main claim obviously barred by res judicata, he should be permitted to tack on other claims of a subordinate nature.
22. In the result, both the appeal and the Civil Revision Petition are dismissed with costs. Under Rule 46(2), Appellate Side Rules, we allow in the appeal two sets of fees, the respondent having been represented by more than one counsel. The Counsel's fee in the Civil Revision Petition is fixed at Rs. 25.
23. It was practically admitted and indeed it would be extremely difficult to deny that the two suits are between the same parties and that the identical reliefs were prayed for in both suits. In both the plaintiff sues in a dual capacity as karnavan of his family (tarwad) and uralan (owner and manager) of the goddess Bhagavathi and her property. Both suits were inspired by feudal intolerance and flavoured with the jealousy of a goddess. Both were brought with a view to the suppression of a lesser deity, owned and managed by the karnavan of a so-called upstart family, inferior in caste, prestige and status to the plaintiffs. Though both the plaintiff Devaswom and the defendant institution have been declared to be public temples, it is indeed almost inconceivable to the karnavan of a Malabar family that a temple built by his ancestors on the family paramba should ever be anything but family property. Even a cursory analysis of the plaints will show that both suits are identical.
24. The real argument was that the present suit is not barred because the former suit was tried by a Court which had no pecuniary jurisdiction to try it. It will be assumed for this purpose that if the plaintiff appellant had valued the former suit properly it would have been a suit beyond the pecuniary jurisdiction of a District Munsiff. Section 11 of the Suits Valuation Act, as I understand it, applies the major principle of constructive res judicata to suits valuation, just as Section 21 of the Civil Procedure Code applies that same principle to the question of the territorial jurisdiction of Courts. These two matters are primarily the province of parties; within limits a party may choose his own forum, for example, by under-valuing or overvaluing his claim or by suing in one District or in another. That being so, Section 11, Suits Valuation Act, and Section 21, Civil Procedure Code, propound the salutary and indeed quite inevitable maxim that unless objection to the pecuniary or territorial jurisdiction of a Court is taken by the parties at the earliest possible opportunity, the principle of constructive res judicata will apply. That is to say, the objection may not be taken at any later stage in the suit. And even if the objection is taken at the earliest possible moment and overruled, it cannot prevail in appeal unless such want of jurisdiction has materially affected the result. From this it is obvious that the jurisdiction of a Court is only artificially limited by minor considerations such as the value of the suit or the place where the cause of action arose. Inherent defects stand on an entirely different footing. For example, if a Court not empowered to grant divorces were to pass a decree nisi its decree would be void ab initio. Such inherent want of jurisdiction is not curable by consent of parties. But as I have said, parties have been given a limited right to choose the forum which shall hear their causes and when once they have chosen they must abide by their choice. If it were otherwise, Courts would be at the mercy of parties litigant, would become mere arenas for preliminary trials of strength. It has been argued further that Section 11, Suits Valuation Act and Section 21, Civil Procedure Code, must be strictly construed. They bar the plea being taken in the subsequent stages of the same suit; but do not in terms bar another suit. This argument I have already answered. As soon as it is realised that these two sections are applications of the general principle of, constructive res judicata to the valuation of suits and to the place of suing, it becomes rather absurd to attempt to detract from a principle so wide and universal as the rule of res judicata. Indeed, if the plea is barred in subsequent stages of the same suit it necessarily follows a fortiori that another suit is barred. The suggestion made really amounts to this - that these two sections merely render the first suit in all its stages meaningless, empty and theatrical, while leaving it open to the parties to file another and a real suit. That is a fantastic interpretation. No litigant can ever have the same case tried twice. That is the fundamental principle of res judicata, not to be evaded by a literal and narrow interpretation of a special section.
25. I agree with my learned brother on all points and in the decree proposed.