Skip to content


Samavedam Sarangapani Ayyangar Vs. Kandala Venkata Narasimhacharyulu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal No. 302 of 1947
Judge
Reported inAIR1952Mad384; (1951)IIMLJ464
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 115; Specific Relief Act, 1877 - Sections 43
AppellantSamavedam Sarangapani Ayyangar
RespondentKandala Venkata Narasimhacharyulu and anr.
Appellant AdvocateN. Rajeswara Rao, Adv.
Respondent AdvocateB.V. Ramanarasu, ;T.V.R. Thathachari and ;B.S. Ramachandra Rao, Advs.
Cases ReferredJagadis Narain v. Nawab Syed Ahmed Khan
Excerpt:
.....evidence act, 1872 - whether decree of district munsif's court operates as res judicata in present suit - decree in previous suit cannot be pleaded as res judicata in subsequent suit unless judge by whom it was made had jurisdiction to try and decide not only particular issue but also the subsequent suit - held, decision of previous suit operate as res judicata. - - 3. learned counsel have referred roe to a large number of decisions, but i shall riot deal with them individually, for in my opinion, the principles are well settled by the decisions of the judicial committee and this court. on any other view section 11 might as well not have been enacted at all. estoppel results from the acts and conduct of the parties, and i fail to see how the decision of a court for which a party is..........my opinion, be read subject to section 11, c. p. code, and no exception with regard to declaratory suits and decrees can now be read into section 11, c. p. c. some support for this view is found in the decision in 'maqsood ali v. hunter,' 18 luck 683. it is, however, unnecessary to pursue this matter further in view of the decree in this case, which must have been one for a declaration that the alienation by the limited owner was not binding on the plaintiff and the other reversioners of the last male owner. there could not have been an adjudication or declaration that the plaintiff was the presumptive reversioner or that he would be entitled to succeed to the property on the death of the limited owner.9. the plaintiff suing in ejectment must prove his title and could only succeed on the.....
Judgment:

Viswanatha Sastri, J.

1. The first defendant is the appellant. The plaintiff, claiming to be the nearest reversioner to the estate of one Narasimhacharyulu deceased, sued for possession of 2 1/2 acres of mam lands with mesne profits from the first defendant, an alienee of the said lands from the daughter of Narasimhacnaryulu. The last male owner died in 1870 leaving a widow who died in 1920, and a daughter who died in 1942. The daughter executed a deed of settlement of the suit lands in favour of the 1st defendant on 4-3-1937, valuing the lands at Rs. 1000/-. The deed of settlement proceeded on the footing that Narasimhacharyulu had bequeathed the lands absolutely to his daughter under his will and that she, in her turn, was making a settlement of the lands in favour of the 1st defendant. Even during the lifetime of the daughter, the plaintiff claiming to be the presumptive reversioner, filed O. S. No. 84 of 1940 on the file of the Court of the District Munsif of Bezwada for a declaration that the settlement deed executed by the daughter in favour of the 1st defendant was not binding on him and the other reversioners of Narasimhacharyulu beyond the lifetime of the daughter. The suit was valued for purposes of court-fees and jurisdiction in the sum of Rs. 1000/- which was the value of the properties as stated in the deed of settlement. Both the daughter and her alienee, the present 1st defendant, were impleaded as defendants to that suit and they set up the will of Narasimhacharyulu dated 7-4-1869 in and by which the suit lands were bequeathed absolutely to the daughter. They also denied that the plaintiff was a reversioner of Narasimhacharyulu. The suit was tried and decreed in favour of the plaintiff. An appeal preferred against the decree by the 1st defendant was dismissed for default. The plaintiff brought the suit out of which this appeal has arisen in the Court of the Subordinate Judge of Tenali for recovery of possession of the lands after the death of the daughter relying upon the previous decision in O. S. No. 84 of 1940 as conclusive of his title to the properties. In the plaint the lands were valued at Rs. 4537-8-0 on the basis of 15 times their net annual rental. A sum of Rs. 952-1-0 was claimed as mesne profits. The total value of the suit being Rs. 5489-9-0, it was filed in the Court of the Subordinate Judge of Tenali. The 1st defendant denied the title of the plaintiff as a reversioner of Narasimhacharyulu and asserted that the will of Narasimhacharyulu and the settlement executed by his daughter were true and valid. He also pleaded that the decision in O. S. No. 84 of 1940 was vitiated by a fraud practised on the Court and by false testimony adduced by the plaintiff as regards his relationship to Narasimhacharyulu. Even otherwise, it was stated that the decision could not operate as 'res judicata'.

2. The following were among the issues framed by the Court below:

'1. Whether the plaintiff is not the nearest reversioner to the late Narasimhacharyulu?

2 Whether the decree of the District Munsif's Court in O. S. No. 84 of 1940 is binding on the 1st defendant and operates as 'res judicata' in this suit?

3. Whether the said decree is void for the reasons stated in paragraphs 5 and 7 of the first defendant's written statement?

4 Whether the will dated 7-4-1869 and the gift deed dated 4-3-1937 relied upon by the first defendant are true and valid?'

Beyond exhibiting the plaint, the judgment and a pedigree filed in O.S. No. 84 of 1940 the Court below did not take any other evidence. Relying on certain decisions of the Judical Committee and this Court which will be noticed presently, it held that the defence was barred by 'res judicata' and by Section 43 of the Specific Relief Act, and decreed the suit. Mr. Dikshitulu for the 1st defendant, here appellant, maintains that neither Section 11, C. P. C. nor any general principles of 'res judicata', nor Section 43 of the Specific Relief. Act barred the defence and that the decision of the learned Subordinate Judge to the contrary is erroneous. Mr. B.V. Ramanarasu for the respondent contends that on general principles of 'res judicata', if not on the language of Section 11, Civil Procedure Code, the trial of the present suit was barred and that in any case the parties were bound by the decision in O.S. No. 84 of 1940 by virtue of the provisions of Section 43 of the Specific Relief Act.

3. Learned counsel have referred roe to a large number of decisions, but I shall riot deal with them individually, for in my opinion, the principles are well settled by the decisions of the Judicial Committee and this Court. Section 11 Civil P. C. is not an exhaustive statement of the doctrine of 'res judicata' and the principle has a wider application than is warranted by the strict language of the section. 'munni Bibi v. TRILOKINATH', 53 All 103 : 58 Ind App 158; 'maung sein done v. ma pan nyun', 10 Rang 332 : 59 Ind App 247. The principle of Section 11 applies to decisions rendered in the exercise of a special jurisdiction conferred by statutes and in proceedings other than a suit as Jot instance, probate proceedings 'Kalipada De v. Dwijapada Das', 57 Ind App 24 : land acquisition proceedings 'T.B. Ramchandra Rao v. Ramachandra Rao', 45 Mad 320 and 'Mt. Bhagwati v. Mt. Ramkali', I.L.R. (1939) All 460 and proceedings under the Madras Hindu Religious Endowments Act 'Balakotayya v. Nagayya : AIR1946Mad509 . The principle of 'res judicata' has also been invoked with reference to decisions given in the course of execution proceedings 'Ram Kirpal v. Rup Kauri', 6 All 269; Shivraj Gopalji v. Ayissa Bi', (1949) 2 Mad L J 493, or the previous stages of the same suit ('Hook v. Administrator General of Bengal', 48 Cal 499).

4. Though Section 11 does not codify the entire law of 'res judicata' it certainly covers a large number of cases caliing for the application of the principle. To the extent to which Section 11 goes and in respect of cases falling within the enacted words, the conditions and limitations imposed by the section cannot be overridden or ignored by an appeal to general principles. On any other view Section 11 might as well not have been enacted at all. Dealing with the language of Section 13 of the Code of 1882 (Section 11 of the Code of 1908) the Judicial Committee said:

'A decree in a previous suit cannot be pleaded as 'res judicata' in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. In this repeet the enactment goes beyond Section 13 of the previous Act X (10) of 1877, and also as appears to their Lordships beyond the law laid down in 'Duchess Of Kingston's Case', 2 Sm L C 11th Edn 731. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.'

In 'Gokul Mandar v. Pudumanand Singh', 29 Cal 707 ; 'Misser Raghabardial v. Sheo Baksh Singh', 9 Cal 439 the Judicial Committee had held that the decision of a Court in order to be conclusive in another Court must have been the decision of a Court which would have had jurisdiction to try the subsequent suit in which the question arises. 'In 'Run Bahadur Singh v. Mt. Luchoo Koer', 11 Cal 301 the Judicial Committee cited with approval the dictum of Sir Barnes Peacock, in 'MT. Edun v. Mt. Bechun', 8 W R 175 which was as follows:

'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 jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as conclusive.'

In 'Venkatasubba Rao v. Vigneswaradu', 56 Mad L J 52 a Bench of this Court refused, to extend the principle of Section 11 Civil P. C. in a manner implicitly forbidden by its wording so as to treat the decision of an inferior tribunal as binding on a superior tribunal. Section 11 Civil P. C. requires that the Court which decided the former suit must be a Court of concurrent jurisdiction as regards pecuniary value. Misser Raghobar Dial v. Sheo Baksh Singh', 9 Cal 439; 'Rajaram Bahadur Singh v. Lachoo Kuer', 11 Cal 301 . It is silent as to the point of time with reference to which the competency of the Court, that decided the earlier suit to try the subsequent suit is to be determined. The preponderance of opinion in this and the other High Courts is that the competency of the Court to try the subsequent suit has to be judged with reference to the time when the earlier suit was brought, that is, as if the later suit has been instituted at the time when the earlier suit was filed. If during the interval between the institution of the two suits there has been a rise in the market value of the property and in consequence the later suit had to be filed in a Court of higher pecuniary jurisdiction, the bar of 'res judicata' would apply to the subsequent suit, if on the date of the institution of the earlier suit, the later suit, having regard to the value of its subject matter on that date, could have been filed in the Court in which the earlier suit was filed. 'Nasib Khan v. Mt. Kutubunnissa', I L R (1940) All 691; 'Sultan Asad Jan v. Secretary of State', I L R (1937) Lah 100; Subbayya v. Nagayya', 71 Mad L J 619; 'Lal Mohan v. Ram Lakhmi Dasya', 35 Cal W N 1203. The augmentation of a claim by the subsequent, accrual of interest or mesne profits is not similar to a rise in the value of one and the same property and a judgment in a previous suit will not, on a plain reading of Section 11 Civil P. C. operate as 'res judicata' in a subsequent suit in respect of the same subject matter if the value of the relief in the subsequent suit is above the pecuniary limits of the jurisdiction of the Court which decided the previous suit. 'Giriya Chettiar v. Sabapathi Mudaliar', 29 Mad 65.

5. The word 'suit' in the expression 'such subsequent suit or the suit in which such issue has been subsequently raised' occurring in Section 11, Civil P. C., has been construed as meaning part of a suit. This Court has held that when a matter has been decided by a Court of competent jurisdiction, the decision should be regarded as conclusive between the parties when the question arises in a different suit, though that suit as a whole could not be tried by the Court which decided the earlier suit. The effect of the decisions relied on by Mr. Rama Narasu in 'Pathuma v. Salimamma', 8 Mad 83; 'Kunjiamma v. Raman Menon', 15 Mad 494; 'Ranganathan Chetti v. Lakshmiammal, 25 Mad L J 379; 'Raman v. Manakkal', 28 Mad L J 134; 'Patrachariar v. Alamelumangalammal', : AIR1927Mad273 is that if a decision has been given by a competent Court in a previous suit regarding part of the claim in the subsequent suit, and between the same parties, then so much of the claim which is common to the two suits should be excluded from the subsequent suit as barred by the principle of 'res judicata' even though the subsequent suit as a whole could not be tried by the Court which decided the earlier suit. There has been a considerable amount of refinment of the language of Section 11, Civil P. C. and however much one would wish to write on a clean state, it is not now feasible. I am unable, with great respect, to agree with the observation of Sadasiva Iyer J, in the case in 'RAMAN v. MANAKKAL', 28 Mad L J 184 that even if a decision is not 'res judicata', it nevertheless operates as an estoppel. Estoppel results from the acts and conduct of the parties, and I fail to see how the decision of a Court for which a party is not responsible and which might be erroneous, can operate as an estoppel. If it is a judgment 'in rem' it is binding on all persons whether parties or not. If it is any other kind of adjudiction, it binds the parties if it falls within Section 11, Civil P. C. or the general principle of 'res judicata' recognised by the decisions. Estoppel by record is what is provided for, in Section 11, Civil P. C. It is not within the province of a Court to introduce another kind of estoppel by judgment not covered by Section 11 or the general principles of 'res judicata'. See 'The Secretary of State v. Syed Ahmed Badsha Bahadur', 44 Mad 778 .

6. The jurisdiction of the District Munsif of Bezwada who tried O. S. No. 84 of 1940, extended upto Rs. 3000. In the case of declaratory suits the market value of the land determines the jurisdiction of the Court. Veeremma v. Butchayya', 50 Mad 646. Could the market value of the land now in suit have exceeded Rs. 3000/- on the date of when O.S. No. 84 of 1940 was filed? Its present value on the basis of 15 times the net paddy rent of the land is Rs. 4,537-8-0. But the current price of paddy is far higher than what it was in 1940 and this figure cannot be taken as the criterion. The prior suit was valued at Rs. 1000/- but that vajue, though somewhat low, does not matter because even if the value was anything upto Rs. 3,000/- the Munsif would have had jurisdiction to try the present suit. The Court below dismissed this part of the case with a quotation, taken out of its context, from a decision of the Judicial Committee that 'the importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute'. I am however unable to accept the appellant's contention that the District Munsif would not have had pecuniary jurisdiction to try the present suit. The 1st defendant raised no objection to the jurisdiction of the District Munsif who tried O.S. No. 84 of 1940 evidently because the value of the land did not then exceed Rs. 3,000. The settlement deed, under which he claimed title to the land, valued it at Rs. 1000. No material has been placed before me to show that the value of the land in 1940 must have been more than Rs. 3,000, The decision in O.S. No. 84 of 1940 would therefore operate as 'res judicata'. There is no substance in the contention that the decree was vitiated by a fraud practised on the Court by the adduction of false evidence of relationship. The fact that the judgment was based on evidence now shown to be incorrect or untrue, assuming but not deciding that it is so, would not render the decree a nullity. 'Chinnayya v. Ramamma', 38 Mad 203. The further question arises as to whether the trial of all the issues in the present suit or only of some of them is barred by reason of the prior decision. This aspect of the case was not touched upon by the learned counsel The decision in O.S. No. 84 of 1940 declared that the settlement deed dated 4-3-1937 executed by the daughter of the last male owner in favour of the first defendant was not binding on the then plaintiff and the other reversioners and was inoperative beyond the life time of the daughter. It also negatived the plea of the defendant that the daughter took an absolute estate in the land under the will of her father relying on which she purported to execute the settlement. To this extent the prior decision is 'res judicata', and issue (4) must be decided against he defendant. But the decision in the previous suit is not, in my opinion, 'res judicata' so as to bar the trial of issue (1) raising the question whether the plaintiff is now the next heir entitled to succeed to the state of the last male owner.

7. It is true that in the prior suit there was an issue as to whether the plaintiff was the nearest reversioner entitled to maintain the suit for a declaration of the invalidity of the settlement deed as against the reversioners. This issue was found in favour of the plaintiff, negativing the claim of a rival reversioner who claimed priority to the plaintiff. But the question then was whether the plaintiff was the then presumptive reversioner and the question now is whether the plaintiff is now the next heir of the last male owner. A decision on the former question cannot conclude the latter. The cause of action for the present suit arose only when the succession opened by the death of the limited owner, and that event took place some years after the decree in the prior suit. It is elementary that during the lifetime of the limited owner the reversionery right is a 'spes succession's' or a bare possibility common to alt the reversioners, it being impossible to predicate who will be the nearest reversioner at the time of her death. During the lifetime of the limited owner a reversioner has no right to sue for a declaration that he is the next reversioner. As a presumptive reversioner he has a right to sue only as representing the body of reversioners for a declaration that an alienation by the limited owner is not binding on the reversion. He is not vindicating his individual right in the action. It may happen, as in this case, that his status as a reversioner is disputed and put in issue, but even so, no declaration can be made that he is the nearest reversioner. As pointed out by the Judicial Committee in 'Janki Ammal v. Narayanaswami', 39 Mad 634, such a declaration would be premature during the lifetime of the limited owner and might be futile. The reversioner's suit is brought in a representative capacity to protect the estate against a common injury to all the reversioners, presumptive and contingent alike, and to secure a relief for their common benefit. It is no doubt the general practice of Courts to insist on such suits being brought by the presumptive reversioner. But the rule is subject to exceptions. 'Lakshmiammal v. Anantharama', ILR (1937) Mad 948; 'Melaram v. Mt. Bhagi' ILR (1946) Lab 767 and 'Mataprasad v. Nageshar Sahai', 47 All 883. The Judicial Committee observed in the case last cited that 'the right to sue to set aside that common danger is given for obvious reasons of policy or convenience' to the presumptive reversioner. The rule is rather one of prudence and policy regulating the exercise of judicial discretion than one of jurisdiction. 'Varamma v. Gopaladasayya', 41 Mad 659; Balmakund Lal v. Mt. Sohano Koeri, 8 Pat 153 . Any decision, express or implied, that the plaintiff was the presumptive reversioner on the date of the prior suit is liable to be rendered futile and of no effect by the emergence of a nearer heir, either natural or statutory, before the succession opens. The decree in the prior suit has not been filed in the present case, but there is no reason to suppose that the decree contained any futile declaration that the plaintiff was the nearest reversioner. Such a declaration, even if one had been made, is not conclusive of the plaintiff's title as next heir after the death of the limited owner. I may, however, observe that the prayer in the plaint was merely for a declaration that the settlement deed was not binding on the plaintiff, the nearest reversioner, as well as other reversioners. The title now put forward by the plaintiff is different from and independent of the title put forward in the earlier suit, and the bar of 'res judicata' would not apply. The present claim of the plaintiff is based on his own individual right as heir which he could not possibly have included in the earlier suit filed as a presumptive reversioner. The prior decision cannot, therefore, be relied upon as 'res Judicata' on the question of the plaintiff's title to the property as heir at law. See 'Madhavan Wariar v. Chathu Nambiar', : AIR1951Mad285 .

8. Another contention based on Section 43 of the Specific Relief Act as interpreted by a decision of this Court in 'Subbayya v. Nagayya,' 71 Mad L J 619) may shortly be dealt with. This Court held that though a prior declaratory decree may not operate as 'res judicate' under Section 11, C. P. C., it may still operate as a bar to the trial of a subsequent suit raising the same question between the same parties under Section 43 of the Specific Relief Act, even though the subsequent suit was beyond the pecuniary jurisdiction of the Court which tried the former suit. This decision has been followed by the Nagpur High Court in 'Chattar Singh v. Roshan Singh,' I L R (1946) Nag 159. With the utmost deference, I venture to think that Section 43 of the Specific Relief Act has not the effect of abrogating the limitation imposed by Section 11, C. P. C. as regards the competency of the Court which passed the previous decree for a declaration. The Specific Relief Act was passed in 1877 at a time when the rule of 'res judicata' was found stated in a rudimentary and incomplete from in Section 2 C. P. C. of 1859, which ran thus:

'The Civil Courts shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim.'

In cases decided under this action it was held that, where the cause of action for the subsequent suit was different from that of the former suit, the later suit was not barred even if the issue decided was the same. The object of Section 42 of the Specific Relief Act empowering Courts to grant declaratory decrees was to enable disputes as to the legal character of a person or his title to property to be decided before evidence bearing on the question should be lost, even though the cause of action for a suit for possession or other relief may not have risen. Section 43 was a consequential provision enacted so as to make a declaratory decree binding of the parties in a subsequent suit even though the cause of action for the later suit may not be the same as that of the previous suit. It was designed to widen the scope of Section 2, C. P. C. of 1859 to a limited extent. The language of Section 43 of Specific Relief Act was designedly cast in a restrictive form, namely, that a declaration 'is binding only on the parties to the suit or persons claiming through them' in order to remove a possible misapprehension that declaratory decrees would have operation in the nature judgments 'in rem' so as to bind even third parties. Section 13, C. P. C. of 1882 and Section 11 of the Code of 1908 substituted the words 'No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit' for the words 'The Civil Court shall not take cognizance of any suit brought on a cause of action which shall have been heard, etc' found in the C. P. C. of 1859. The substance of Section 43 of the Specific Relief Act is now incorporated in Section 11, C. P. Code embodying the rule of 'res judicata' subject to certain conditions, one of which is the competency of the Court which tried the earlier suit to try the later suit. Having regard to the fact that the existence of jurisdiction in a Court to try a suit must be predicated before its decree can be held to be binding on the parties, Section 43 of the Specific Relief Act must, in my opinion, be read subject to Section 11, C. P. Code, and no exception with regard to declaratory suits and decrees can now be read into Section 11, C. P. C. Some support for this view is found in the decision in 'Maqsood Ali v. Hunter,' 18 Luck 683. It is, however, unnecessary to pursue this matter further in view of the decree in this case, which must have been one for a declaration that the alienation by the limited owner was not binding on the plaintiff and the other reversioners of the last male owner. There could not have been an adjudication or declaration that the plaintiff was the presumptive reversioner or that he would be entitled to succeed to the property on the death of the limited owner.

9. The plaintiff suing in ejectment must prove his title and could only succeed on the strength of his own title. The plaintiff is not relieved of this burden by relying on the decision in the previous suit as concluding the question in his favour. The defendant in the written statement denied the plaintiff's title, and under this plea he could avail himself of any defect which such title discloses. 'Jagadis Narain v. Nawab Syed Ahmed Khan'. The 1st issue therefore be tried and must be recast as follows:

Whether the plaintiff was the next heir of the late Kandala Narasimhacharyulu when the succession opened to his estate on the death of his daughter in 1942?

I reverse the decree of the Court below and remand the suit for the trial of this issue. The costs will abide and follow the result of the suit. The Court fee paid on the memorandum of appeal will be refunded to the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //