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Alla Viraswami Vs. Polavarapu Nayudamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported inAIR1925Mad1270; (1925)49MLJ430
AppellantAlla Viraswami
RespondentPolavarapu Nayudamma and ors.
Cases ReferredRisal Singh v. Balwant Singh
Excerpt:
.....sivaganga case katama natchiar v. dap bin nuru ilr (1918) b 249. for the position that the widow must have represented not only her own interests but the interests of the reversioners as well in order that the decision might be binding on them. assuming that the duchess of kingstone case does not lay down the above condition as being necessary for the application of the rule of tes judicata, we think that so far as the indian law is concerned this condition must also be satisfied before a plea of res judicata coul'd be upheld even in a case like the present one. ' there seems to be no reason therefore, so far as the necessity for this condition is concerned, for making any distinction between a case to which the strict rule of res judicata as enacted in section 11 of the code of..........was whether the alleged ' will ' wasgenuine the plaintiff therein (present 3rd defendant) and the widow (present 1st defendant) maintaining that it was genuine and, the other parties saying that it was not. the issue was hotly contested and the trial court declared the alleged ' will ' to be a forgery ; but the appellate court reversed its decision and held that the ' will ' was genuine. it is argued for the appellant that, because the widow was a party to the prior suit, the decision in it to the effect that the will is genuine is binding on the present plaintiff who is a reversioner. it has no doubt been held in various decisions by the privy council as well as by the high courts in india that where a hindu widow in whom her husband's estate has vested represents the estate in a.....
Judgment:

1. This is an appeal by the 3rd defendant against an order of remand made by the District Judge of Guntur in A.S. No. 330 of 1922 of his file which arose out of an original suit instituted in the Subordinate Judge's Court of Bapatla.

2. The relationship between the parties to the suit is shown in the following table:

___________________________________

| | |

Subbayya 3rd defendant 1st defendant Nayudamma (1stwife)

(2nd wife) |

_______________________________________

| | |

Daughter (died) Daughter (died) 2nd

| Defendant:

Plaintiff.

3. The plaintiff is the daughter's son of one Nayudamma by his first wife, the 2nd defendant being his mother's sister. The 1st defendant is Nayudamma's second wife and the 3rd defendant, her brother. The suit is for a declaration that a will alleged to have been left by Nayudamma in favour of defendants 1 and 3 is not genuine, that he (plaintiff) as the daughter's son is entitled to the properties of Nayudamma after the death of the widow (1st defendant) and of the daughter (2nd defendant) and that the alienation made by defendants 1 and 2 would not be binding on the plaintiff after their death. The Subordinate Judge dismissed the suit on two preliminary grounds, viz., (1) that the suit is barred by res judicata by reason of the prior decision (O.S. No. 100 of 1923 of the District Munsif's Court of Ongole ; A.S. Nos. 72 and 74 of 1915, Additional Subordinate Court of Guntur) and (2) that the suit is barred by limitation. On appeal, however, to the. District Judge, he held that there was no bar by res judicata. He also held that on the evidence on record it could not be held that the suit was barred by limitation. He therefore, remanded the suit to the first Court with a direction to consider the question of limitation afresh in the light of any further evidence that the parties may be willing to offer, and if it comes to the conclusion that the suit is not barred by limitation then to proceed to dispose of the suit on the merits. Against this order of remand 3rd defendant has filed the present appeal ; and the learned vakil who appears for him has argued before us that the District Judge's decision is wrong on both the above points.

4. As regards limitation, the plaintiff's case was that he came to know of the existence of the alleged will and of the decision in the prior suit regarding its genuineness only in 1918 and that, therefore, the cause of action must be deemed to have arisen only on that date. As, however, the 2nd defendant, a nearer reversioner knew of the existence of the alleged will at least on the 5th February, 1914, the date of her deposition in O.S. No. 100 of 1913, it is clear that the cause of action arose at least on that date. As observed by the Lower Court there is nothing on the record to show that either the 2nd defendant or the plaintiff knew of it earlier; we must, therefore, for the purposes of this appeal, proceed on the basis that the cause of action arose only on that date, viz., 5th February, 1914. The case is governed by the six years' rule under Article 120 of the Limitation Act. The suit was at first filed by the plaintiff on the 23 rd December, 1919, in the District Munsif's Court of Ongolc. It was transferred to the Principal District Munsif's Court of Bapatla from where it was again transferred to the Additional District Munsif's Court of Ongole. On the 4th August, 1921, this latter Court returned the plaint for presentation to the proper Court as the subject-matter of the suit was found to be beyond the pecuniary jurisdiction of the District Munsif's Court and it was presented on the next day, i.e., 5th August, in the Subordinate Judge's Court at Bapatla. Plaintiff's caseis that he is entitled to a deduction of the time taken by him in prosecuting the suit in the District Munsif's Court (i.e., from 23rd December, 1919, to 4th August, 1921) under Section 14 of the Limitation Act as he had been prosecuting it there in good faith. The learned District Judge has on a. consideration of the various circumstances upheld this contention of the plaintiff, and we are not prepared to say that he has gone wrong in coming to that conclusion. As observed by him, the fact that the plaintiff had at first asked for relief only as regards the two-thirds of the properties comprised in the will is not relevant in considering whether he is entitled to the deduction of the time when the case lasted in the District Munsif's Court. It has been argued that the plaintiff must be held to have purposely undervalued the two-thirds portion itself, especially as he himself filed a statement, Ex. 111, before the Munsif on 4th August, 1921, saying that the then market value of the properties was Rs. 30,000. There is nothing to show that on the date of the plaint he made the undervaluation purposely. The Court-fee that he would have had to pay was the same even if he had put the valuation at a higher figure. We, therefore, agree with the District Judge in holding that the plaintiff is entitled to the deduction claimed by him under Section 14 of the Limitation Act.

5. The facts necessary for the determination of the question as to whether the suit is barred by res judicata are briefly these: The widow, the 1st defendant, had made certain alienations from out of her husband's properties in her possession in favour of her brother Subbayya. In 1913 the present 3rd defendant brought a suit, O.S.No. 100 of 1913, in the District Munsif's Court of Ongole against Subbayya for setting aside the alienations. Defendants 2 and 3 to that suit were alienees from Subbayya. The plaintiff therein (present 3rd defendant) alleged that under the will executed by Nayudamma shortly before his death in 1880, the widow (1st defendant) and himself were constituted joint legatees of2/3rds of the testator's properties, that they were in possession of the 2/3rds share in their capacity as such joint legatees and that therefore the 'widow' alone had no power to make the alienations in question in favour of Subbayya. The widow was also added as the 4th defendant in that suit and one of the issues raised between the parties was whether the alleged ' will ' wasgenuine the plaintiff therein (present 3rd defendant) and the widow (present 1st defendant) maintaining that it was genuine and, the other parties saying that it was not. The issue was hotly contested and the Trial Court declared the alleged ' will ' to be a forgery ; but the Appellate Court reversed its decision and held that the ' will ' was genuine. It is argued for the appellant that, because the widow was a party to the prior suit, the decision in it to the effect that the will is genuine is binding on the present plaintiff who is a reversioner. It has no doubt been held in various decisions by the Privy Council as well as by the High Courts in India that where a Hindu widow in whom her husband's estate has vested represents the estate in a litigation to which she is a party, the decision in such litigation, fairly and honestly conducted, given for or against her, will bind the reversioners. The leading case on the point is the well-known Sivaganga case Katama Natchiar v. The Rajah of Sivaganga (1863) 9 M Ind. Ap. 539, and it has been followed in several subsequent decisions [see Pertabnarain Singh v. Trilokinath Singh ILR (1884) C 186, Risal Singh v. Balwant Singh ILR (1918) A 593, etc. The rule of res judicata as enacted in Section 11 of the Code of Civil Procedure is not strictly applicable as the reversioners do not claim under the widow ; but the principle of res judicata has been held to apply ' so as to bind the reversioners by decisions in litigation, fairly and honestly conducted, given for or against Hindu females who represented estates ' in such litigation vide Risal Singh v. Balwant Singh ILR (1918) A 593. This rule can be applied only if the widow did, as a matter of fact, represent the estate in the prior litigation.

6. In Risal Singh v. Balwant Singh ILR (1918) A 593. the widow brought the prior suit against the adopted son to set aside the adoption pleading that she had no authority from her husband to adopt and that she had not made any adoption according to any ceremony under the Hindu Law. The adopted son contested the suit and the Courts in India dismissed her suit on the ground that she was estopped from setting up this plea in view of an earlier statement by her that she had her husband's authority to adopt and did make a valid adoption. On appeal, however, the Privy Council did not base their judgment on estoppel alone but raised an issue as to her authority to adopt and held on the evidence on that issue that the adoption was valid. The subsequent suit was brought by the reversioner against the adopted son for a declaration that the adoption was invalid and for possession of the estate. The Judicial Committee state at page 603 that ' There can be no doubt in their Lordships' opinion that Rani Dharam Kunwar (the widow) in her suit against Balwant Singh (the adopted son) did, notwithstanding the personal estoppel Under which she laboured, represent the estate on the question of fact as to whether Balwant Singh had or had not been validly adopted, and that she represented the estate within the meaning of the ruling in Katama Natchiar v. The Rajah of Sivaganga (1863) 9 M Ind. Ap. 539 ; ' and it was on this ground that they held that the reversioner was bound by the judgment in the prior suit. The question, therefore, in each case will be whether the estate was properly represented by the widow in the prior suit. If, for instance, she had litigated in assertion of an absolute right inconsistent with her representative character, we do not think that she could in any sense of the word be said to have represented the estate or the interest of the reversioners in such litigation, and a decision given therein upholding such contention of hers could not obviously be held binding on them. Reference might also be made to Bai Kanku v. Bai Jadav ILR (1919) B 869 and Ramabin Samu v. Dap bin Nuru ILR (1918) B 249. for the position that the widow must have represented not only her own interests but the interests of the reversioners as well in order that the decision might be binding on them. In the present case we agree with the learned District Judge in his view that ' the widow was not a party to the suit in her capacity as representative of the estate which would afterwards devolve upon the reversioners, but as a beneficiary under a will according to the terms of which the reversioners were disinherited. ' In contending that the will alleged to have been left by the husband was genuine and that she herself was a joint legatee under it along with her brother, the present 3rd defendant, we think that she was not only not representing the estate or the interests of the reversioners in such litigation, but was setting up a case in direct opposition to their interests. It could not, therefore, be held that the decision in the prior suit that the ' will ' is genuine is binding on the plaintiff.

7. Mr. S. Varadachariar for the respondent (plaintiff) has also sought to support the Lower Court's judgment on another ground which has not been referred to by either of the Lower Courts. His argument is that the plea of res judicata could not be set up by the appellant in the present case inasmuch as the prior suit was in the District Munsif's Court and that Court is obviously incompetent to entertain the present suit as it is beyond its pecuniary jurisdiction. There is ample authority in support of this position : vide Misir Raghobardial v. Sheo Baksh Singh. ILR (1882) C 439 Run, Bahadur Singh v. Lucho Koer ILR (1884) C 301and Giria Chettiar v. Sabapathy Mudaliar ILR (1905) M 65. These cases decided that ' in order to make the decision of one Court final and conclusive in another Court it must be the decision of a Court which would have had jurisdiction over the matter in the subsequent suit on which the first decision is given in evidence as conclusive. ' In all these cases the prior suit was in the Munsif's Court which by reason of the limit placed on its pecuniary jurisdiction could not have entertained the subsequent suit and the plea of res judicata was rejected on that ground. The answer to this argument that was urged by Mr. Raghava Rao for the appellant is that this condition as to the competency of the 1st Court to entertain the subsequent suit though found in Section 11 of the Code of Civil, Procedure is not observed in the English Law as laid down by the Judges in the Duchess of Kingstone case and that, because in the present case we have not to apply the strict rule of res judicata as enacted in Section 11 but only the principle of res judicata as mentioned in Katama Natchiar v. The Rajah of Sivaganga (1863) 9 M Ind App. 539 and other cases, we need not in deciding this case be controlled by the strict provisions of Section 11 but might be guided by the principles of English Law. Assuming that the Duchess of Kingstone case does not lay down the above condition as being necessary for the application of the rule of tes judicata, we think that so far as the Indian Law is concerned this condition must also be satisfied before a plea of res judicata coul'd be upheld even in a case like the present one. In considering the reasons as to why this condition must be insisted upon, their Lordships of the Privy Council in Misir Raghobardial v. Sheo Baksh Singh ILR (1882) C 439. state thus : ' In their Lordships' opinion it would not be proper that the decision of a Munsif upon (for instance) the validity of a will, or of an adoption, in a suit for a small portion of the property affected by it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which might depend upon the will or the adoption * * * * * * * : and although it may be desirable to put an end to litigation, the inefficiency of many of the Indian Courts makes it advisable not to be too stringent in preventing a litigant from proving the truth of his case.' Reference may also be made to Run Bahadur Singh v. Lucho Koer ILR (1884) C 301. where their Lordships of the Privy Council after quoting the above passage state thus : ' If this construction of the law were not adopted, the lowest Court in India might determine finally, and without appeal to the High Court, the title to the greatest estate in the Indian Empire.' There seems to be no reason therefore, so far as the necessity for this condition is concerned, for making any distinction between a case to which the strict rule of res judicata as enacted in Section 11 of the Code of Civil Procedure applies and a case like the present in which the principle of res judicata laid down by the Privy Council in Katama Natchiar v. The RajaH of Sivagang a (1863) 9 M Ind. App. 539, Risal Singh v. Balwant Singh ILR (1918) A 593, and other cases is, sought to be availed of. Therefore, On the alternative ground also relied on by Mr. Varadachariar, we hold that the present suit is not barred by res judicata.

8. In the result the appeal fails and is dismissed with costs.


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