1. These three appeals are connected and they are now heard together.
2. L. P. A. 3 of 1965:-This appeal has been filed with leave of Srinivasan J., against S. A. No. 1243 of 1964 confirming the decisions of the courts below. The facts of the case are as follows: One Ramakrishna Pillai had two sons Arunachala and Appavoo. Arunchala's first wife Rathinathammal died in 1922 leaving no children and Arunachala died on 12-9-1949. Prior to his death certain proceedings in Court, to which he was a party, were pending and they were (1) O.S. 218 of 1943 on the file of the Sub-Court, Pudukottai, filed by one Sachidanandam Pillai against the assets of Ramakrishna Pillai in the hands of Arunachala and Appavoo and (2) A. S. 401 of 1949 on the file of the District Court, Tiruchirapalli. Vijayambal, the respondent in the above appeal applied herself in the above pending proceedings to be impleaded as heir of Arunachala, her deceased husband, on the ground that she was his legally wedded wife. In the proceedings in O. S. 218 of 1943, her claims to the legally wedded status was negatived, while the District Court in A.S. 401 of 1949 upheld her legal status. She filed C. R. P. Nos. 1343 and 1344 of 1954 to this Court against the order denying her married status and her husband's brother Ayyavoo, who denied her married status and who had filed applications recognising himself as legal representative filed C. M. A. 225 of 1952 to the High Court against the order of the learned District Judge upholding her status as legally wedded wife. This appeal would appear to have been converted into a revision petition and on 2-10-1954 this court in the Civil Revision Petitions filed by Vijayambal and the converted revision petition of Appavoo negatived her legal status as a lawfully wedded wife.
Vijayambal thereupon filed O. S. 34 of 1955 in the Subordinate Judge's Court, Pudukottai, for declaration of her status as a legally wedded wife and heir of the deceased Arunachala and for recovery of possession of the plaint A and B Schedule and for direction to the defendant to render an account in respect of rents and profits of the suit property from 12-9-1949 (the date of death of Arunachala) upto the date of recovery of possession. Her case is that her marriage with Arunachala took place in a temple on 26-11-1936 in accordance with the custom of the community to which she and Arunachala belonged, that Arunachala tied the tali around the neck of the plaintiff, that after the marriage Arunachala lived with her separately owing to misunderstandings between her husband and his brother, that about 9 years after the marriage Arunachala sent her to Killukottai, her native village, directing her to live with her mother for safety, as he had instituted a suit for partition against his brother, Appavoo, in the Chief Court, Pudukottai, and in the District Court, Tanjore, and during the pendency of those proceedings he used to visit her once in two or three months, that he did not want to take his wife back, during the pendency of the court proceedings. Arunachala died in Tiruvadi in December, 1949, she thereupon applied to implead herself as heir of her husband in the proceedings arising out of O. S. 218 of 1943 and A. S. 401 of 1949, that Appavoo (the husband's brother) falsely denied her married status, that the decision in the applications filed and the order of the High Court in the revision petitions denying her married status arose only out of summary proceedings and that the decision therein cannot preclude her from instituting the present suit for declaration of her status.
3. Appavoo, the defendant in the suit filed a written statement contending that his brother Arunachala married Rathinathammal; but denied that he ever married the plaintiff, Vijayambal, that Vijayambal's marriage to Arunachala is not true, that the allegations regarding her stay in Pudukottai are false, that the ultimate decision of the High Court in the revision petitions will operate as res judicata precluding her from agitating the same claim once again in the present suit. The defendant further contended that the plaintiff sold Items 1 and 2 of B Schedule to Lakshmana Chettiar, who instituted a suit O. S. 337 of 1953 on the file of the District Munsif Court, Pudukottai, against him and others for possession, that the said suit was dismissed negativing Vijayambal's legally marriage status and that the said decision also would operate as res judicata.
4. The trial court held that the plaintiff was the legally wedded wife of Arunachala, that the judgment of the prior suit instituted by Lakshmanan Chettiar (O. S. No. 337 of 1953 on the file of the District Munsif Court, Pudukottai) will not operate as res judicata so far as the plaintiff's status is concerned. In the result, the suit was decreed in respect of the plaint A and B Schedule properties other than Items 1 and 2 of the plaint B Schedule. The trial Judge also ordered an enquiry into the mesne profits prior to suit and subsequent to suit.
5. Against the said judgment and decree the defendant filed A. S. 184 of 1958 to the District Judge of Tiruchirapalli. The learned Judge confirmed the finding of the trial court that the plaintiff was the legally wedded wife of Arunachala and that as widow of Arunachala she became entitled to his property on his death.
6. The defendant filed S. A. 1350 of 1961 to this court and Srinivasan, J., confirmed the decree of the courts below and dismissed the second appeal. The learned Judge, however, granted leave to file an appeal against his judgment. The present Letters Patent Appeal is preferred against the said judgment.
7. A. S. 867 of 1967:-The above appeal has been transferred from the District Court, Tiruchirapalli, and directed to be heard along with S. A. 1243 of 1964, which is one of the appeals which was heard along with the Letters Patent Appeal referred to above. The above appeal arises out of O. S. 18 of 1963 filed by the purchasers of a shop bearing T. S. 2508 purchased by the husband of the first plaintiff and father of plaintiffs 2 to 5 from Vijayambal purporting to be the owner of the suit property being the sole legal representative of the deceased Arunachala, for declaration of their title to the suit property and for recovery of possession. Appavoo was impleaded as the first defendant, Vijayambal as the second defendant. The tenant having died, his legal representatives were thereafter added as parties to the suit.
8. The first defendant in the suit, viz., Appavoo filed a written statement contending that the plaintiffs' vendor had no title to the suit property and the declaration of title asked for by them cannot be granted.
9. The second defendant filed a written statement contending that she is the lawfully wedded wife of Arunachala and is his only heir and the sale by her to the first plaintiff's husband and father of plaintiffs 2 to 5 is valid and her title is not affected by the decision in O. S. 337 of 1953.
10. The trial Judge held that the decision in O. S. 337 of 1953 would operate as res judicata as against the plaintiffs, who are the representatives-in-interest of Lakshmana Chettiar and that the present claim of the plaintiffs was barred by res judicata. The learned Judge further held that the plaintiffs were not the owners of the suit properties and the suit was accordingly dismissed.
11. The plaintiffs filed A. S. 202 of 1966 to the District Judge of Tiruchirapalli and the said appeal has been transferred to this court and numbered as A. S. 867 of 1967 and has been posted to be heard along with S. A. 1243 of 1964.
S. A. 1243 of 1964:-This appeal arises out of O. S. 524 of 1961 and the main question arising for determination is whether Vijayambal is the lawfully wedded wife of Arunachala and whether the suit will be barred by res judicata in view of the decision in O.S. 337 of 1953. The trial Court consequently held that the plaintiff was not entitled to the declaration and for recovery of possession.
12. The plaintiff filed A. S. 78 of 1963 to the Subordinate Judge, Pudukottai, and the learned Judge dismissed the appeal against which S. A. 1243 of 1964 has been filed.
13. The result is that in all the above three matters the principle question arising for decision is whether Vijayambal is the lawfully wedded wife of Arunachala, the brother of Appavoo.
14. We shall now take up L. P. A. 3 of 1965. Even during the lifetime of Arunachala, suits had been filed by third parties against both the brothers, Arunachala and Appavoo and decrees had been obtained and at the time of the death of Arunachala execution proceedings had been taken by the decree-holder in O. S. 218 of 1943 and O. S. 529 of 1964 on the file of the Chief Court, Pudukottai. On Arunachala's death in September 1949 the pending proceedings had to be continued by or against the legal representatives of Arunachala. Therefore, disputes arose as to who the legal representatives of Arunachala were. Vijayambal claiming to be the wife of Arunachala was putting forward a claim and Appavoo Pillai as the brother of Arunachala claimed to be the legal heir of Arunachala on his death. In those circumstances in E. P. 271 of 1959 in O. S. 218 of 1943 Vijayambal filed E. A. 704 of 1949 claiming to be the legal representative of the deceased Arunachala. E. A. 991 and 992 of 1949 were filed by Appavoo Pillai in the same suit, Appavoo claiming to be the legal representative.
Similarly in A. S. 401 of 1949 arising out of O. S. 529 of 1944 on the file of the Chief Court, Pudukottai, I. A. 821 of 1949 was filed by Vijayambal seeking to get herself impleaded in the place of deceased Arunachalam. This application was referred by the District Court to the Subordinate Judge to be considered along with E. A. 707, 991 and 992 of 1949. Therefore, the claims and counter claims which were made by both Vijayambal and Appavoo Pillai were considered by the learned Subordinate Judge of Pudukottai. The only point which arose for determination in those applications was whether Vijayambal is the legally married wife of Arunachala in which event Appavoo would have been excluded. The learned Subordinate Judge elaborately considered the rival claims of the competing claimants to the estate of the deceased Arunachala and ultimately held that Vijayambal is not the wife of Arunachala and therefore her application to implead herself as the legal representative of Arunachala was dismissed. In accordance with the above finding E. A.991 and 992 of 1949 were allowed and E. A. 706 of 1949 was dismissed and the finding in I. A. 821 of 1949, in A. S. 401 of 1949 was submitted to the District Court, Tiruchirapalli in pursuance of the finding called for. The District Judge (Additional) Tiruchirapalli at Pudukottai, however, did not accept the finding and held by order dated 31-10-1950 that Vijayambal was the legally wedded wife of Arunachala and therefore she is the proper legal representative of Arunachalam. Against the orders made in E. A. 707, 991 and 992 of 1949, C. R. P. 1343 to 1345 of 1954 were filed in this Court. Against the order in I. A. 821 of 1949 in A. S. 401 of 1949 made by the District Court (Additional) Tiruchirapalli at Pudukottai dated 31-10-1950 Appavoo Pillai filed C. R. P. 12 of 1951.
The above four civil revision petitions were heard by Krishnaswamy Naidu, J. The learned Judge agreed with the order of the Subordinate Judge dated 7-8-1950 in E. A. 706, 991 and 992 of 1949 and dismissed the civil revision petitions. The learned Judge, however, disagreed with the view of the District Court expressed in the order dated 31-10-1950 in I. A. 821 of 1949 in A. S. 401 of 1949, with the result that C. R. P. 12 of 1951 was allowed. Thereupon Vijayambal filed O. S. 34 of 1955 for a declaration that she is the legally wedded wife and heir of the deceased Arunachalam and for recovery of possession of the plaint A and B Schedule properties except Item No.1 of B Schedule and for an account in respect of the rents and profits of the suit property from the date of the death of her husband Arunachalam on 12-9-1949. This suit has given rise to the present L. P. A. 3 of 1965. The question that arises in this appeal is whether the finding of the Subordinate Judge dated 7-8-1950 in E. A. 706, 991 and 992 of 1949 and I. A. 821 of 1949 confirmed by this court in C. R. P. 1343 to 1335 (?) of 1954 so far as the plaintiff's status is concerned would operate as res judicata. In the trial Court evidence was adduced by the parties afresh, and all the evidence was adduced. The trial Court held on a consideration of the evidence on record that Vijayambal was the legally wedded wife of Arunachala. On the question of res judicata all the courts including Srinivasan, J., in the second appeal held that the finding in the prior application cannot operate as res judicata.
15. It is no doubt true that See. 11 Civil Procedure Code will not apply. But the principles of constructive res judicata will be applicable where an identical question has been raised between the same parties and finally decided between them. Normally a summary determination as to who the legal representative of the deceased party is cannot be said to be finally decided and a regular suit seeking to establish the claim of one party against the other is not precluded. But the position here is entirely different whereas in this case each claimant put forward a claim that he or she is the true legal representative of the deceased and the entire evidence was let in and a decision rendered. Such decision in the prior proceedings cannot, in the circumstances, be said to be summary. Entire evidence was let in on the first occasion and on a consideration of the entire evidence the court came to the conclusion, which conclusion was affirmed by the High Court. The contention raised is whether the prior proceedings will operate as constructive res judicata precluding the parties from going behind the finding given on the former occasion.
16. The learned Counsel for the appellant cited the judgment in Khartar Shah v. Shyamlal Singh, AIR 1936 Pat 616. The passage relied on is at page 619 which runs as follows:-
"The doctrine of res judicata applicable to execution proceedings does not rest on Section 11 of the Code, and distinctions are sometimes made between positive decisions and mere dismissals for default. In the present case there was no mere dismissal for default, but on the contrary the question whether Thakur Madhusudan Singh was not the representative of Shyam Lal Singh which was directly raised by the respondent, was dealt with by the lower court and decided adversely to the respondent. It seems to me impossible to ignore the force of that decision whether right or wrong as res judicata on general principles. This is quite irrespective of whatever may be the respondent's position in relation to the proceedings under Order 21, Rule 58."
The learned Counsel referred to Rangappa Kelavadeppa v. Rindawa Vasangouda, . The facts therein are as follows:
17. One Kelavadappa had obtained a decree for partition against Venkappa, the father of the plaintiff Rangappa, who claimed to be Kelvadeppa's adopted son in respect of two properties. Kelvadeppa died after filing the application for execution of the decree and a question arose as to whether his sister, the defendant Rindawa was entitled to be brought on record as his legal representative for the purpose of carrying on execution. Rindawa claimed under a Will left by her brother; but the genuineness of which was denied by all the four defendants judgment-debtors. The question was then tried and the executing court held that the Will was genuine. Subsequently the plaintiff filed the suit from which the present appeal arose for recovery of possession of all the properties left by Kelvadeppa upon the footing that he was the adopted son of Kelvadappa, and the Will, which had been propounded by Rindwa, was not a genuine one, Rindwa, however, claimed inter alia that the agitation of the question as to whether the will was genuine was barred by the adjudication in the earlier execution proceedings. She has succeeded in both the courts below and the question was again raised in the second appeal before the Bench. Their Lordships first considered the effect of Section 47(3) of the Code. Chainani, J., as the then was referred to Section 47(3) of the Code and observed as follows:-
"This provision has been enacted evidently in order to make it clear that the question as to who is the legal representative of a deceased party should be decided by the court executing the decree, and not by a separate suit. The object of the provision is to enable execution proceedings to go on and to prevent their abrupt termination by reason of death of one or the other party. The words 'for the purposes of this section' in my opinion, mean 'for the purposes of determining the question referred to in subsection(1)', that is, all question arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree. The court will no doubt decide the question as to who is the representative of a party for the purposes of the proceedings before it, but this decision will have the same effect as its decision on any other question, and would be binding on the parties to the execution proceedings, or their representatives.
Mr. Murdeshwar has contended that the words 'for the purposes of this section' mean that the decision of the court will be binding on the parties only in the proceedings under the section i.e., in the execution proceedings, and not in any other proceedings, and that it would be open to the parties to re-agitate the same question in some other proceedings. Something can undoubtedly be said in support of this view, but after careful consideration, I consider that the better view is the one indicated by me above, that once the executing court has decided who is the representative of a party, its decision on this question will have the same effect as its decision on any other question. It is a general principle of law that the same question should not be litigated twice, for otherwise there would be no end to litigation, or to use the words of Lord Coke 'great oppression might be done under colour and pretence of law."
At page 144, the learned Judge further observed as follows:
"A determination in execution proceedings can operate as res judicata in a subsequent suit between the same parties: See Ramkripal Shukul v. Mt. Rupkuari, (1883) 11 Ind App 37(PC), Shamrao v. Shantaram, AIR 1935 Bom 174. It was observed in the former case that the binding force of a judgment depended upon the general principles of law, and not upon Section 13 of Act 10 of 1877, which corresponded to Section 11 of the present Code."
In the present case what was happened is that the rival claimants put forward their claims as the legal representatives of the deceased Arunachalam and the matter was fully considered and the entire evidence was let in. It is not as if the decision on the former occasion was of a summary character on the application of one of the contesting claimants. In those circumstances, we are of opinion that the principles of constructive res judicata will apply and the prior decision in E. A. 706, 991 and 992 of 1949 in O. S. 218 of 1943 on the file of the Chief Court, Pudukottai, affirmed by this court will preclude the plaintiff in O. S. 34 of 1955 from agitating this question once again.
18. In the result L. P. A. 3 of 1965 is allowed. The appellant will be entitled to his costs.
19. The result of allowing L. P. A. 3 of 1965 is that S. A. No. 1243 of 1964 filed by Vijayambal claiming to be the lawful wife of Arunachalam has to be dismissed. There will, however, be no order as to costs.
20. A. S. 867 of 1967 arises out of O. S. 18 of 1963 filed by the legal representatives of purchaser of a shop bearing T. S. No. 2508 from Vijayambal has to be dismissed, as Vijayambal had no right to convey and Lakshmanan Chettiar the purchaser from Vijayambal cannot acquire any title and his legal representatives who are the plaintiffs in O. S. 18 of 1963 and the appellant in A. S. 867 of 1967 have no right to maintain the suit. The appeal is accordingly dismissed. There will however be no order as to costs in this Court. The direction as to payment of court-fee made in the trial court will stand. C. M. P. 13246 of 1970 for leave to raise additional grounds is ordered.
21. Order accordingly.