1. The facts which gave rise to this appeal are as follows: A certain Chandrasekara Bhattar was entitled to certain manibham lands appertaining to the office of alankara miras in a temple in Madura. He died on the 3rd May 1881. He had no children, but he left a widow called Thalamuthammal: he also had a nephew called Rajah Bhattar, who succeeded him as alankara mirasdar and enjoyed the properties partly under a Will alleged to have been made by Chandrasekara Bhattar before he died and partly by an agreement with Thalamuthammal. Rajah Bhattar died on the 25th January 1882, leaving a widow Akilandammal. Questions arose between the two widows, but they were settled by agreement, and Thalamuthammal went into possession of the lands and remained in possession till her death in 1885. Meanwhile, the plaintiff who is found by the lower Court to be the nearest agnate of Rajah Bhattar brought a suit, Original Suit No. 15 of 1882, to establish his reversionary rights, apparently considering those rights jeopardised by the arrangement between the ladies. He impleaded Akilandammal and Thalamuthammal as defendants together with Kuppa Bhattar, the present 4th defendant, and Deivasikamani Bhatar, the present 6th defendant, as heirs of Thalamuthammal who had died during the pendency of that suit. In that suit the defendants raised the plea among other matters that the alleged Will of Chandrasekara Bhattar was not genuine, because without the Will the chain of devolution to the plaintiff was broken on Chandrasekara's death. The suit was decided in favour of the plaintiff; and he obtained a declaration, as against the defendants he had impleaded, that he was entitled to succeed to the properties and the office on the death of Akilandammal. Akilandammal died some time in 1910, and as by this time the defendants were setting up claims to the office and its emoluments, the plaintiff brought the present proceedings against them to establish his right to the office. What happened to the office and who performed its duties during the first few years after Rajah Bhattar's death does not appear. But in August 1888 the Committee of the Devasthanam appointed the 1st and 2nd defendants to do the duties of the office (See Exhibits R and S). It is possible this was only giving sanction to an already-existing arrangement. At a later date the 1st and 2nd defendants seem to have associated with themselves the 3rd and the 6th defendants in the discharge of the duties of the office.
2. The present suit came on for hearing in October 1912 and was decided in February 1913 in favour of the plaintiff. The 7th defendant appeals against the judgment. The plaintiff at the trial relied upon the prior judgment in Original Suit No. 15 of 1882 as debarring the defendants from re-opening the question of the genuineness of the Will of Chandrasekara Bhattar, and the learned Subordinate Judge so held, regarding the matter as governed by the doctrine of res judicata. His view was that, though the 7th defendant was not a party to the prior proceedings, yet as other reversioners who stood in the same right were impleaded, the fact that the 7th defendant was not a party did not prevent the judgment from being binding upon him. Whether on the supposed facts the decision would have been right may be open to question. Mr. Krishnaswami Aiyar cited a large number of cases to show that it was erroneous; but it is unnecessary to decide this matter, because on further examination in this Court it appeared clearly that the facts were not as the lower Court supposed them to be. At the time when judgment was given in Original Suit No. 15 of 1882 Thalamuthammal had died. The 3rd defendant in that suit, Kuppa Bhattar, the present 4th defendant, was a degree nearer the common ancestor than the present 7th defendant, and was, therefore, not a reversioner at all but the legal heir of Chandrasekara Bhattar; and the present 7th defendant was not even a reversioner and had no interest in the matter. The position then was this: the plaintiff had brought before the Court the legal heir of Chandrasekara Bhattar, to whom it was conceded the properties had originally belonged and through whom any title to them must ultimately be traced. Those proceedings definitely determined the issue as to the rightful succession to Chandrasekara as between the present plaintiff and Chandrasekara's nearest descendant. The question is, whether the present 7th defendant who at the date of that judgment had no interest in the properties and whose interest, if any, arose subsequently can be heard to challenge it. It is quite clear that the judgment is not binding on him either as a judgment in rem affecting status or as a determination of a matter whereto he was a party or privy. But it is contended that the judgment formed a link in the plaintiff's title and that as such it cannot be challenged by any person who has not a claim, prior in origin and paramount to the claim of Chandrasekara's heir. It is strange that in a matter of this importance there should be a complete absence of English authority. The principle contended for by the plaintiff has, however, often been recognized in American decisions and is expounded in two text-books of authority, Black on Judgments, Volume 2, Section 607, and Bigelow on Estoppel (6th Edition), pases 50 and 167. It has also been recognised by a judgment of this Court in Sayam Ramamoorti Dhora v. Secretary of State for India in Council 19 Ind. Cas. 656 : 24 M.L.J. 469. I guard myself from assenting to all the reasoning of that judgment; in particular I think the passages cited from Littleton and Lord Coke have no bearing on the present question and refer to what now-a-days would be called judgments in rem. But I assent to the principle of the judgment which I take to be this: that where a link in the chain of a party's title consists of a decree of a Court of competent jurisdiction pronounced against the only person or persons who at the time of such decree had any interest which would entitle them to resist the plaintiff's title, no person whose claim is subsequent in origin can challenge that decree, or go behind it or challenge the plaintiff's title as at that date on any ground which was determined by that decree as a necessary step in its result. On this short ground I am of opinion that it is not open to the 7th defendant in these proceedings to maintain the invalidity of Chandrasekara's Will either as an imperfect testamentary instrument or as alienating properties which, by law, are inalienable.
3. In these circumstances, the plaintiff having established what I may call his paper title, the only plea open to the defendant is that of limitation. The learned Subordinate Judge decided that the Article of the Limitation Act which applied was Article J 41. I will assume for the present purposes that the defendant is right in contending that the proper Article to apply is Article 124 in accordance with the decision in Pydigantam Jagannadha Row v. Rama Doss Patnaik 28 M.K 197. The question then arises, what kind of possession must have been enjoyed by the defendant to defeat the plaintiff's title? There is no doubt evidence to show that the 7th defendant has had possession of the lands attached to the office of alankara miras for more than the statutory period, and it is contended on his behalf that possession of the lands was sufficient without it being necessary to show that he performed the duties of the office. That view is contrary to the decision in Bhaiaji Thahur v. Jharula Das 24 Ind. Cas. 501: 16 Bom. L.R. 845. It is also contrary to at least one decision of this Court, Kamalathammal v. Krishna Pillai 8 Ind. Cas. 998. It is enough for me to say that I respectfully agree with those decisions and hold that possession of the lands alone will not suffice. There is no evidence at all in this case that the 7th defendant ever actually performed the duties of this office. But it is said there is evidence that the 6th defendant performed those duties, and as the 6th and 7th defendants were jointly entitled to a fourth share of Chandrasekara's original office, the 6th defendant's performance of its duties must be held to have been undertaken on behalf of himself and the 7th defendant also. All that I need say as to that is that there is no evidence that the 6th defendant believed himself or stated himself to be performing the duties on behalf of anybody except himself; there is not even any evidence that the 6th and 7th defendants were undivided brothers. In the absence of such evidence it would, in my opinion, be quite wrong to defeat the right of the true owner by straining legal doctrines of presumptive representation.
4. In my opinion, the appeal fails and should be dismissed with costs to the first respondent to be taxed on one-eighth of the valuation of the memorandum of appeal, which is the share claimed by the only appellant.
5. I should like to add that the fact that I have referred in my judgment only to two or three of the very large number of cases cited in the arguments does not mean that I consider the citation of those cases to have been irrelevant. The fact is that the learned Subordinate Judge based his judgment on a number of untenable grounds, and it was only gradually in the course of the argument that it was possible to focus the discussion on to the two real questions.
6. With regard to the memorandum of objections filed by the 18th defendant, I see no reasonable ground for depriving him of costs on which a discretion could be judicially exercised to do so. His memorandum is, therefore, allowed with costs.
Srinivasa Aiyanagar, J.
7. Though the hearing of this appeal took some time, the questions which arise for decision are fairly simple and lie in a small com pass.
8. Plaintiff sues to recover possession of certain lands attached to an office in the Meenakshi temple at Madura. He claims to he the office holder. The office is a hereditary one and admittedly belonged to one Chahdrasekara Bhattar. Plaintiff relies on a judgment in Original Suit No. 15 of 1882 on the file of the Subordinate Court, Madura, which finally established as against Chandrasekara Bhattar's heir, the present 4th defendant, the title of the plaintiff to succeed to the office as the heir of one Rajah Bhattar the devisee under the Will of Chandrasekara Bhattar after the death of Rajah Bhattar's widow who was then alive. The 7th defendant who is the only appellant here had admittedly no title on the date of that adjudication and all persons who could possibly be interested in the title to the office were parties to that adjudication. The judgment is relied on by the plaintiff as the final link in the chain of his title just in the same way as the plaintiff could have relied, on a transfer of the property in his favour by the heir of Chandrasekara Bhattar. I have no doubt that for this purpose the judgment is relevant. As stated in Black on Judgments, Volume II, Section 604, 'for establishing the fact that such a verdict has been given, or such a judgment pronounced, and all the consequences of such a judgment, the judgment itself is invariably not only admissible as the proper legal evidence, but usually conclusive to prove that fact. The mere fact that such a judgment was given can never be considered as res inter alios acta, neither can the legal consequences of a judgment be so considered. But with reference to any fact upon whose supposed existence the judgment is founded, the proceeding may or may not be res inter alias, and consequently may or may not be evidence according to circumstances, considering the nature of the facts themselves and the parties,' 'and in another place, Volume I, Section 4, (page 10) it is stated that another consequence flowing from the rendition of a judgment is that it may constitute either an evidence or a source of title.' Mr. Krishnaswami Aiyar, who appeared for the appellant, did not seriously contest this position. He contends that inasmuch as he was not a party to the previous adjudication he is entitled now to impeach the correctness of that judgment I think he is not entitled to do that. Just as a transfer from the heir in favour of the plaintiff would have given the plaintiff a title to the property as against the whole world, so likewise the adjudication established the title of the plaintiff to the office in question as against all the world. I assume, of course, that the property was Chandrasekara's and all the persons who had any claim to his properties were parties to the previous litigation. On this question the decisions of this Court in Srinivasa Aiyanqar v. Arayar Srinivasa Aiyangar 6 Ind. Cas. 220; Sayam Ramamoorthi Dhora v. Secretary of State for India in Council 19 Ind. Cas. 656 and in Second Appeal So. 574 of 1909 referred to therein are conclusive. The principle is clearly stated in the judgment just now delivered, and I respectfully agree. Mr. Krishnaswami Aiyar referred us to the case of Peari Mohan Shaha v. Durlavi Dassya 20 Ind. Cas. 815 as being an authority against this position; but that case is clearly distinguishable inasmuch as the title claimed by Durlavi was a title paramount to the title of the parties to the previous adjudications. The cases reported as Ramnad Zamindar v. Dorasami 7 M.K 344 and Goluck Monee Delia v. Ram Monee Bose 12 W.R. 21 are also distinguishable. I am, therefore, of opinion that the 7th defendant is not entitled to question the correctness of the pervious judgment; he would, however, be entitled to show that the pervious judgment was a nullity just as he would be entitled to show that a conveyance by the heir of Chandrasekara Bhattar in favour of the plaintiff was void; but the grounds for declaring a judgment a nullity would obviously be different from the grounds on which a conveyance would be declared void. I think the only ground on which a judgment could be declared a nullity is an absolute want of jurisdiction in the Court over the parties or the subject-matter. 'Where a Court has jurisdiction it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought) eyen prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments of sentences are considered in law as trespassers.' Elliott Et. Al. v. The Lessee of Peirsol Et. Al. U.S. Supreme Court Reports 7 La 164; Malkarjun v. Narhari 5 C.W.N. 10. Mr. Krishnaswami Aiyar contended that the previous judgment was void, because it established the validity of an alienation of a religious office which is against public policy, and in support of his position relied on the decision in Lakshmanaswami Naidu v. Rangamma 26 N.P 31. In that case the learned Judges held that a decree passed on a compromise ordering the sale of an office was void and the decree-holder was not entitled to execute the decree. The learned Judges held that the compromise decree was in no better position than an agreement of the parties, and they thought that as the agreement between the parties was void, the decree passed on such a compromise was equally void. With all respect to the learned Judges, I think they have ignored the operation of the decree as a decree. For certain purposes a compromise decree may be of the same nature as the agreement on which it is founded. Whether a particular act is legal or illegal may itself be a subject of compromise and a decree passed on such a compromise would not be void even though the agreement may be illegal see the observations of the Judicial Committee in Great North-Wed Central Railway v. Charlebois (1899) A.C. 114. See also Section 331, Black-on Judgments, Volume I. It is, however, unnecessary to pursue this matter further as in this case the judgment was rendered after trial. In this view it is unnecessary to discuss the question raised by the learned Vakil whether an alienation of a religious office is absolutely void and a custom of alienability should not be recognised by Courts, as such a custom is against public policy. The weight of authority, however, seems to be against the contention see Mahamaya Dehi v. Haridas Haldar 27 Ind. Cas. 400.
9. The only other question which remains to be decided is whether the plaintiff's title to the office is extinguished by the adverse possession of the 7th defendant. Although the present suit is one for the recovery of immoveable property, still if the plaintiff had no subsisting title to the office, he could not recover the properties which are the emoluments of the office. If the 7th defendant was in adverse possession of the office for over 12 years prior to the suit, plaintiff's title would have been barred notwithstanding the fact that the widow of Rajah Bhattar was alive till 1910 Pydigantam Jagannadha Row v. Rama Boss Patnaik 28 M.K 197, Lilabati Misrain v. Bishun Chobey 5 C.L.J. 621. The 7th defendant who claims to have acquired a title by adverse possession has to prove that he took possession of the office adversely to the plaintiff. There is some evidence that he along with the other co-sharers was in enjoyment of the properties attached to the office, but that is not enough. He has to prove that he was performing the duties of the office see Kamalathammal v. Krishna Pillai 8 Ind. Cas. 998 : 20 M.L.J. 781 : 9 M.L.T. 73 : 27 M.L.J. 100. There is no evidence that he ever performed the duties of the office. He contends that the 6th defendant, his elder brother, did the duties of the office for himself and his brother, the 7th defendant. The 6th defendant himself who is called as a witness does not say so, nor does the 7th defendant. The only basis for this contention is a statement made by the 6th defendant that in the division of the lands belonging to Chandrasekara Bhattar a fourth share was allotted jointly to him and his brother (Exhibit II). From this Mr. Krishnaswami Aiyar wants us to infer that the duties of the office were performed by the 6th defendant not only for himself but for the 7th defendant as the joint owner of a fourth share of the office of Chandrasekara Bhattar. I am wholly unable to draw any such inference. It is further doubtful whether the possession of the 6th defendant was ' adverse to the plaintiff (see Exhibits R and S). I, therefore, hold that the plaintiff's claim is not barred by limitation.
10. I agree that the appeal must be dismissed with costs. I also agree to the order on the memorandum of objections.