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S. Gopalakrishna Iyer Vs. V.S. Subbaraya Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 916 of 1969
Judge
Reported inAIR1972Mad269
ActsEvidence Act - Sections 41; Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantS. Gopalakrishna Iyer
RespondentV.S. Subbaraya Iyer and ors.
Cases ReferredIttyavira Mathai v. Varkey Varkey
Excerpt:
.....out of which the second appeal arises is barred by res judicata as well as by limitation. it is in these circumstances the plea of res judicata as well as limitation was taken by the first defendant. according to the learned counsel for the appellant under article 141 of the limitation act, 1908, the plaintiff who succeeded his mother in the year 1951 should have filed the suit for recovery of possession within 12 years from the date of demise of his mother, and under that section the suit became clearly barred long before the commencement of the new limitation act of 1963 and that under section 31, the provisions of the new act will not enable any suit for which the period of limitation prescribed by the old act had expired before the commencement of the act to be instituted after..........the above plea based on res judicata and limitation has been raised are these: originally the suit property belonged to the joint family of one kuppa iyer and venkatasubramania iyer. kuppa iyer had two daughters, parvathi and subbulakshmi and a son sambasiva iyer. sambasiva iyer died issueless in march 1950 and his wife had predeceased him. the plaintiff is the son of subbulakshmi and the seventh defendant is the adopted son of parvathi. defendants 1 and 2 and one mahadevan are the grandsons of venkatasubramania iyer and defendants 3 to 6 and 8 are the children of he deceased mahadeven. out of the two daughters of kuppa iyer, parvathi and subbulakshmi, subbulakshmi predeceased parvathi. therefore, parvathi filed a suit o. s. no. 428 of 1950 on the file of the district munsif,.....
Judgment:

1. The only point that was urged by the learned counsel for the first defendant-appellant is that the suit out of which the second appeal arises is barred by res judicata as well as by limitation. The circumstances under which the above plea based on res judicata and limitation has been raised are these: Originally the suit property belonged to the joint family of one Kuppa Iyer and Venkatasubramania Iyer. Kuppa Iyer had two daughters, Parvathi and Subbulakshmi and a son Sambasiva Iyer. Sambasiva Iyer died issueless in March 1950 and his wife had predeceased him. The plaintiff is the son of Subbulakshmi and the seventh defendant is the adopted son of Parvathi. Defendants 1 and 2 and one Mahadevan are the grandsons of Venkatasubramania Iyer and defendants 3 to 6 and 8 are the children of he deceased Mahadeven. Out of the two daughters of Kuppa Iyer, Parvathi and Subbulakshmi, Subbulakshmi predeceased Parvathi. Therefore, Parvathi filed a suit O. S. No. 428 of 1950 on the file of the District Munsif, Namakkal, for a declaration of title to the suit property as an heir of Kuppa Iyer and for recovery of possession of the same from defendants 1 and 2 herein and their tenants. Parvathi Ammal, the plaintiff in that suit, claimed that the suit property had been allotted to the share of Kuppu Iyer and that she has succeeded to the same. The suit was resisted by defendants 1 and 2 on the ground that the property continued to be the joint family property of the family of Kuppu Iyer and Venkatasubramania Iyer, that there was no division of the joint family properties and that after the death of Kuppa Iyer and Sambasiva Iyer they have succeeded to the entirety of the properties of the joint family by survivorship. The suit ended in favour of defendants 1 and 2 and against Parvathi, the plaintiff, the Court holding that there has been no partition among the members of the joint family and defendants 1 and 2 got the suit properties by survivorship. Immediately after the dismissal of her suit, Parvathi died in the year 1951. Subsequently one of the creditors obtained a decree on the basis of a promissory note executed by Sambasiva Iyer in O. S. NO. 64 of 1952 against defendants 1 and 2 and their brother Mahadevan and attached he suit properties. The first defendant filed an application in that suit to raise that attachment effected by the decree-holder. The proceedings arising out of the said attachment reached finally this Court, and this Court had held that there was a partition between Sambasiva Iyer and his brothers, that the suit property was the separate property of the late Sambasiva Iyer and that the decree-holder was entitled to attach the said property in execution. Thereafter the present suit has been filed by the plaintiff, son of Subbulakshmi, claiming the suit property as reversioner of Sambasiva Iyer to whom the suit property belonged exclusively.

2. The first defendant contended that the plaintiff is not the sister's son of Sambasiva Iyer, that there was no partition between Sambasiva Iyer and his cousins, that they had got the property by survivorship, that the 7th defendant is not the adopted son of Parvathi, that the suit was barred by time as it has not been filed within 12 years after the death of Parvathi in 1951 and that the suit is also barred by res judicata by virtue of the dismissal of O. S. No. 428 of 1950 filed by Parvathi, the plaintiff's maternal aunt. Defendants 2 and 7 remained ex parte, and defendants 3 to 6 practically supported the case of the first defendant. It is in these circumstances the plea of res judicata as well as limitation was taken by the first defendant. The plaintiff also raise a plea of res judicata on the ground that the ultimate decision rendered in the execution proceedings arising out of the creditor's suit. O. S. No. 64 of 1952, wherein it has been held that the property attached was the separate property attached was the separate property of Sambasiva Iyer barred defendants 1 and 2 who were parties to those proceedings from raising the plea that the suit property was not the separate property of Sambasiva Iyer.

3. The plea of res judicata put forward by the plaintiff can easily be disposed of. Though defendants 1 and 2 were parties to that suit O. S. No. 64 of 1952, the plaintiff was not a party thereto and as such, it cannot operate as res judicata in the present suit. But the lower appellate Court, however, felt that though the decisions in O. S. No. 64 of 1952 may not constitute as res judicata, the judgment rendered therein is to be treated to be a judgment in rem and not a judgment in personam and as such, the defendants are bound by the decision in L. P. A. No. 73 of 1962 (Mad), Gopalkrishna Iyer v. Ramaswami Iyer and others arising out of the execution proceedings in that suit. This view of the lower appellate Court that the decision in L. P. App. No. 73 of 1962 operated as a judgment in rem cannot, in my view by sustained. Section 41 of the Indian Evidence Act makes a final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction relating to any legal character or status conclusive proof when the existence of such legal character or status comes to the questioned. The decision rendered in proceedings arising out of the creditor's suit cannot be brought in under Section 41 of the Indian Evidence Act. Section 42 also will not apply as the proceedings do not relate to matters of public nature. It is not as if the plaintiff in this suit claims his right through the creditor so as to invoke the principle of res judicata under Section 11 of the Civil Procedure Code.

4. Then there remains the plea of res judicata raised by the first defendant for consideration. The earlier suit O. S. No. 428 of 1950 was filed by Parvathi claiming to have succeeded to the suit property as the separate property of Sambasiva Iyer, In that suit it has been held that the suit property was not the separate property of Sambasiva Iyer but that the property continued to be the joint family property of Sambasiva Iyer and his cousins so that on the death of Sambasiva Iyer the property was inherited by defendants 1 and 2 as reversioners. The question is whether the decision obtained by Parvathi in her suit, O. S. No.428 of 1950 operated as res judicata against the plaintiff. According to the learned counsel for the appellant, the plaintiff in the present suit is bound by the decision rendered in Parvathi's suit as Parvathi should be deemed to have filed the suit on behalf of all the reversioners including the plaintiff, while the respondent's learned counsel contends that Parvathi should be taken to have asserted to her independent title to the suit property and not on behalf of the entire body of reversioners including the plaintiff. If Parvathi is deemed to have filed the suit representing he entire body of reversioners then the plaintiff will be bound by the decision rendered in that suit. But if Parvathi is held to have asserted her independent right and title to the suit property then the decision in her suit will not bar the present suit filed by the plaintiff. Explanation VI of Section 11 Civil Procedure Code is as follows:

'Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'

The question is whether the plaintiff should be deemed to claim under Parvathi who filed the earlier suit and got an adverse decision and whether Parvathi claimed to represent the entire reversionary interest. Mayne on Hindu Law and Usage, 11 the Edition at page 796, sets out the legal position thus:--

'A widow or other limited owner during her lifetime represent the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heir. As was observed in the Sivaganga case 'the whole estate would for the time be vested in her, absolutely for some purposes, though in some respects for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed......It is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.' In Risal Singh v. Ballwant Singh the principle of law to be applied in such cases was restated: 'Where the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir'. But the decree against the female holder must have involved the decision of a question of title, and not merely a question of the widow's possession during her life. The rule of res judicata therefore applies even if Section 11, C. P. Code with its Explanation IV is not strictly applicable.'

The principle of res judicata laid down in the Sivaganga case is not limited to decrees in suits contested to the end. It is therefore, competent to the widow to enter into a compromise in the course of a suit, bona fide in the interest of the estate and not for her personal advantage and a decree passed in such compromise is binding upon the reversioners. In this case, when Parvathi filed a suit to recover the properties from defendants 1 and 2 as the separate property of her brother Sambasiva Iyer she claimed the same representing the reversionary estate and she did not merely assert her right to possession during her lifetime. I am not inclined to agree with the view taken by the lower appellate court that Parvathi should be deemed to have asserted her personal right and that the plaintiff not being a party to that suit, it would not operate as res judicata. In Risal Singh v. balwant Singh, 40 All 593 : AIR 1918 PC 87, the Privy council laid down that though the rule of res judicata as enacted in Section 11, C. P. Code might not be strictly applicable to a particular case, the principle of res judicata should be rightly applied so as to bind the reversioners by decisions in litigations fairly and honestly given for or against Hindu females representing estates.

5. The learned counsel for the respondents, however, states that the earlier suit was not properly and fairly conducted by Parvathi, that the suit came to be dismissed only because she had not produced the original partition deed between Sambasiva Iyer and his cousins and that if Parvathi had taken proper and diligent steps she could have filed the original of the partition deed and succeeded in establishing that the property sought to be recovered by her was the separate property of Sambasiva Iyer. But the non-production of the original partition deed by Parvathi though was one of the grounds for holding that the property was not the separate property of Sambasiva Iyer, the decision in that case cannot be said to have been given otherwise than fairly and honestly and it cannot be also stated that Parvathi did not initiate, and conduct the suit bona fide. Notwithstanding the disadvantage Parvathi had, the trial in that suit should be held to be fair and honest. The learned counsel for the respondents, however, relies on the decision in (1861) 9 Moo Ind App 539 Katama Natchiar v. Rajah of Sivaganga. In that case a decree in a suit filed by A claiming as widow against B to succeed to her husband's estate in preference to B, his nephew on the ground of the family having been divided was held not to operate as re judicata in a later suit by C, a daughter claiming to succeed to her father's estate on A's death on the ground that the property was self-acquired by her father. Such a judgment though viewed otherwise by the courts below, determines only an issued raised concerning a particular person and is not a judgment in rem but simply in judgment inter parties. The facts of that case are entirely different from those in this case. In that case a widow filed a suit against her husband's nephew on the ground that the property is a coparcenary property, that there has been a division in the family and that she is entitled to succeed to her husband's share. But later the daughter had filed a suit against the same person after the death of her mother on the ground that the property is a self-acquired one. It is in view of this variation in the claims put forward in both the suits it was held that the earlier suit did not constitute res judicata. Dealing with the question of re judicata the Judicial committee expressed thus:

'Their Lordships are of opinion that, unless it could be shown that there had not been a fair trial of the right in that suit--or, in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to any new suit in the Zilla Court by any person claiming in succession to Anga Mootoo Nachiar. For assuming her to be entitled to the Zamindary at all, the whole estate would for the time be vested in her, absolutely for some purposes though in some respects, for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the courts of this country as to tenants in tail representing the inheritance, would seem to apply in the case of a Hindu widow; and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.'

The learned counsel refers to the decision of the Full Bench in Secretary of State v. Syed Ahmed Badsha, ILR 44 Mad 778 : AIR 1921 Mad 248, where a judgment was held to operate as a bar only as between the parties thereto or their privies, and that a judgment in a suit by A against B a rival claimant for an office negativing A's title as against B was held to be no bar to a suit by A against a third party for the emoluments of the said office and that such a judgment was held to be only a piece of evidence on the question of title. That decision has no application to the facts of this case where the original suit has been filed by the mother's sister representing the entire body of reversioners, claiming title to the suit property on the ground that it is the separte property allotted to her brother at the partition and the said right is again asserted by the present plaintiff who claims to be the next reversioner. Therefore, I have to hold that the earlier suit filed by the plaintiff's mother's sister will bar the present suit.

6. It was also contended by the learned counsel for the appellant that the suit itself is barred by limitation as it has been filed more than 12 years after the dismissal of the earlier suit filed by Parvathi. The courts below have held that the suit is not barred by limitation as Articles 65 of the Limitation Act gives the plaintiff a period of 12 years for recovery of possession of immoveable properties so long as the first defendant has not perfected title by adverse possession, as recovery of possession is based on title. According to the learned counsel for the appellant under Article 141 of the Limitation Act, 1908, the plaintiff who succeeded his mother in the year 1951 should have filed the suit for recovery of possession within 12 years from the date of demise of his mother, and under that section the suit became clearly barred long before the commencement of the new Limitation Act of 1963 and that under Section 31, the provisions of the new Act will not enable any suit for which the period of limitation prescribed by the old Act had expired before the commencement of the Act to be instituted after the new Act. Article 141 gives a period of twelve years to a Hindu or a Muhammadan to enter into possession of immoveable property on the death of a Hindu, Muhammadan female from the date when such female dies. In this case the suit had not been filed within the said period of 12 years before the commencement of the new Act. Therefore the Courts below were in error in invoking the provisions of Article 65 of the new Limitation Act so as to enlarge the period of limitation for filing the suit. The learned counsel for the appellant, however, states that the defendants were not continuously in possession from 1951 upto the date of the suit and that their possession has been interfered with by the appointment of a Receiver in certain criminal proceedings and that, therefore, the defendants cannot be said to have been in continuous possession for twelve years and he seeks to get supports for the view from the decision in Ittyavira Mathai v. Varkey Varkey : [1964]1SCR495 . It is unnecessary to consider this point, for whatever be the nature of the possession of the defendants, the plaintiff who seeks to succeed to the property on the death of his mother has to file a suit within twelve years of the demise of the female. Therefore the suit has become barred under Art. 141 of the Limitation Act and the provisions of the new Act will not able the plaintiff to file the present suit after the suit having become barred under the old Limitation Act.

7. The result is the decree and judgment of the courts below are set aside and the second appeal is allowed. There will be no order as to costs. No leave.

8. Appeal allowed.


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