Skip to content

Lal Mohan Dhupi and anr. Vs. Ram Lakhmi Dassya and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal271,137Ind.Cas.46
AppellantLal Mohan Dhupi and anr.
RespondentRam Lakhmi Dassya and ors.
Cases ReferredMata Prasad v. Nageswar Sahai
- .....the question therefore arises whether the explanation would apply. the explanation deals with representative suits, that is to say, suits instituted by or against a person in his representative, as distinguished from his individual character. in several decisions of the judicial committee the scope and nature of representative suits has been explained. in the case of venkata narayana pilial v. subbamal a.i.r. 1915 p.c. 124 it was explained that in a suit by the next presumptive reversioner to set aside an adoption or an alienation by a hindu widow the plaintiff sues in a representative capacity, because such a suit is not for the plaintiff's personal benefit, for the object is to remove a common apprehended injury to the interest of all the reversioners presumptive and contingent.....

1. The plaintiff Ram Lakhmi is one of the daughters of one Basiram Dhupi by his first wife. Defendant 1 Joy Lakshmi is Basiram's daughter by his second wife Mani Dhupini. Plaintiff's mother died first, then died Basiram in July 1904. Govinda Dhupi, father of defendants 2 and 3, was a brother of Basiram. In November 1904 Mani Dhupini executed a deed of partition in favour of Govinda admitting that the properties in suit belonged to Basiram and Govinda in equal shares. In 1917 defendant 1, Joy Lakshmi, instituted a suit in the Munsif's Court at Munshigunj, against Govinda and Mani and another person to whom Govinda had sold some of the properties; and she impleaded the plaintiff Ram Lakhmi in that suit as pro forma defendant. She alleged that Govinda had no share in the properties, that the deeds of partition and sale were fraudulent and collusive and that the same were not binding on her. Govinda's defence in that suit was that he had an 8 annas share in the properties and the deeds challenged were valid and operative. The plaintiff Ram Lakhmi did not enter appearance as a party in that suit, but figured as a witness therein, and in the deposition that she gave she supported Govinda's defence. The Munsif on 28th November 1917 passed a decree in that suit in these terms:

The disputed land is declared to have been included in the estate of Basiram Dhupi and the deed of partition executed by defendants 1 (i.e. Mani) and 4 (i.e. Govinda) are declared not to be binding on the plaintiff (i.e. Joy Lakshmi).

2. Mani Dhupini died in 1925. Earn Lakshmi then instituted the present suit against her stepsister Joy Lakshmi as defendant 1, Govinda's sons as defendants 2 and 3 and certain other persons who are transferees of some of the properties from Govinda or his sons as the other defendants.

3. The suit has been decreed by the Court below. Defendants 2 and 3 are the appellants in this appeal.

4. The question which arises in this appeal is whether the question of the title of Govinda in the properties in suit is barred by res judicata by reason of the decision in the previous suit to which reference has already been made. The Subordinate Judge has held that it is so barred.

5. The identity of the properties involved in the two suits is not disputed and we are satisfied that it is only by reason of their value having increased in the interval that elapsed that the present suit was no longer entertainable in the Court of the Munsif and so had to be instituted in the Subordinate Judge's Court. The present suit therefore was entertainable by the Munsif's Court at the date of the previous suit. It has been held by this Court that this is sufficient to meet the] requirements of the expression: 'Court competent to try such subsequent suit': Gopinath v. Bhagwat [1884] 10 Cal. 697. The appellants' contention that the incompetency of the Munsif's Court to entertain the present suit would bar the application of the doctrine of res judicata must therefore be overruled. The Subordinate Judge says;

I hold that as between defendants this suit would be governed by the principles of res judicata in virtue of the decision in. the previous suit and all the defendants would be bound by it, and I would find that Govinda had no right and title to the lands in suit; there was no legal necessity to bind the estate.

6. The appellant challenges the correctness of this view. In the recent decision of the Judicial Committee in the case of Mt. Munni Bibi v. Trilokinath their Lordships have approved of the dictum acted upon by Courts in this country that to apply the doctrine of res judicata as between co-defendants three conditions are requisite: (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. This decision is also an authority for the proposition that if these conditions are fulfilled, the fact that the defendant who has a common case with the plaintiff and who is a proper party to the suit does not enter appearance but chooses to stand by and let the plaintiff fight her battle does not stand in the way of the rule of res judicata applying as between him and his co-defendant who was in conflict with the plaintiff. It is clear therefore that if the plaintiff in the present suit had taken no part in the previous litigation but had left it to defendant 1 who was the plaintiff in that suit to fight it out with Govinda. Govinda and for the matter of that Govinda's sons, i. e., defendants 2 and 3 and the other defendants who are transferees from Govinda or his sons, would have been 'bound by the result of that litigation just as much as the plaintiff. The case however is different here because the plaintiff by the evidence that she gave in that litigation, supported Govinda and in that way repudiated the case which defendant, 1 as plaintiff therein, sought to make out against Govinda. All that can be said, in view of the result of that litigation, is that there should have been a conflict between the co-defendants, but it cannot be said that, in fact, there was any. We are of opinion therefore that the rule of res judicata does not bind the parties in the present suit on the footing of their having been co-defendants in the previous litigation.

7. On behalf of the plaintiff-respondent it has been urged that the rule of res judicate may be held to apply in view of Expl. 6, Section 11, of the Code. Notwithstanding the limited character of the reliefs asked for in the previous suit, if a fair and broad view is taken of the claim that was propounded in it, the suit was undoubtedly one for the establishment of a private right claimed by defendant 1, then plaintiff, in common for herself and the present plaintiff. The question therefore arises whether the explanation would apply. The explanation deals with representative suits, that is to say, suits instituted by or against a person in his representative, as distinguished from his individual character. In several decisions of the Judicial Committee the scope and nature of representative suits has been explained. In the case of Venkata Narayana Pilial v. Subbamal A.I.R. 1915 P.C. 124 it was explained that in a suit by the next presumptive reversioner to set aside an adoption or an alienation by a Hindu widow the plaintiff sues in a representative capacity, because such a suit is not for the plaintiff's personal benefit, for the object is to remove a common apprehended injury to the interest of all the reversioners presumptive and contingent alike. In the case of Janaki Animal v. Narayanasami Aiyar A.I.R. 1916 P.C. 117 it was said that a reversionary heir appealing to the Court truly for the conservation and just administration of the property does so in a representative capacity so that the corpus of the estate may pass unimpaired to those entitled to the reversion. In Kesho Prasad Singh v. Sheo Pragash Ojha A.I.R. 1924 P.C. 247 the question arose in this way: The widow of a deceased Hindu having in 1899 mortgaged part of his estate the mortgagee obtained a decree in 1903 upon the mortgage and purchased the property; subsequently the then presumptive reversioner brought a suit against the widow and the mortgagee, alleging that the mortgage was not made for legal necessity and obtained a decree on 21st June 1904 in the following terms:

Declaring that the mortgage deed dated . . . 1899 and decree dated . . . 1903 . . . obtained by defendant 1 against defendant 2 are ineffectual as against the plaintiff reversioner.

8. Thereafter the mortgagee sold the property to the appellant. After the death of the widow the respondents, the actual reversionary heirs sued for possession. A Full Bench of the High Court: see Kesho Prasad Singh v. Sheo Pragash Ojha A.I.R. 1922 All. 301 held that the decree made in 1904 was binding not only between the reversioner who brought the suit in which it was made and the transferee, but also between the whole body of reversioners and the transferee or his representative in title. In their opinion the reversioner who sued represented the other reversionors, and Expl. 6, Section 11 of the Code applied. The argument before the Judicial Committee was that the decree of 1904 was not binding upon the parties to the present suit, that the parties to the former suit were different, and the present plaintiffs, as reversioners, did not claim through the then plaintiff within the meaning of Section 46, Specific Belief Act, 1877. The argument also was that Expl. 6, Section 11 of the Code did not apply because the present plaintiffs had no rights when the decree of 1904 was made. It was hold by the Judicial Committee that the decree was binding upon the parties, and that the respondents, as reversionary heirs were entitled to possession. Their Lordships observed:

That decree is binding on the appellant as the successor-in-interest of Kishan Prasad and of the benefit of it the respondents are now possessed as the heirs of Monohar Ojha in the event 'entitled to the reversion.' To the present case the application of the principle is obvious and eminently salutary. It would be pessimi exempli that the appellant, whose predecessor-in-interest failed on the same issue and was content to accept the adverse judgment against him, should be held on-titled years afterwards, when it might be much of the relevant evidence was no longer available, to raise the same issue over again. Their Lordships of course recognize that the principle is loss obviously just where it operates to bind the ultimate reversioners by the result of a suit in which a plaintiff had failed whose interest then merely presumptive, never ultimately matured. The danger of a feigned issue in such a suit is not to he overlooked. But this danger is mainly serious where the failure of the first suit has been brought about by fraud or collusion, where, of course further and different considerations would arise. In their Lordships' opinion there is no answer either in principle or in fact to the contention of the respondents that the decree of June 1904 is conclusive of their claim to the property.

9. The question then arises, whether in view of what their Lordships held in the abovementioned case the rule of res judicata should apply to the case now before us. The points of difference between that case and this are the following:

10. In that case the presumptive reversioner had instituted the former suit, and the reversioners who instituted the subsequent suit were not parties to it; whereas in the case before us, one presumptive reversioner, Joy Lakshmi, had instituted the former suit to which the other presumptive reversioner Ham Lakhsmi, who has now sued as one of the actual reversioners, was a party.

11. In this case, Ram Lakshmi in the former suit did not enter appearance but gave evidence supporting Govinda's defence, whereas nothing similar to it happened in that case.

12. A history of the origin of the explanation and an exhaustive resume of the more important cases in this country which have any bearing upon it will be found in the order of Reference to a Pull Bench in the case of Sonachalam Pillai v. Kumaravelu Chettiar A.I.R. 1928 Mad. 77 and in the governing judgment in that case delivered by Ramesam, J., will be found a discussion of the principles of the law of res-judicata as were applied to representative suits in this country even before the Code of 1877, and to such suits in England even before 1873, when the Supreme Court Rules of Practice came into existence. From the case law bearing upon the point the following propositions appear to emerge:

First.--Where the plaintiff or the defendant sues or is sued in a representative capacity which attaches to him under the general law the decision binds the entire body whom he represents. These are cases of administrators, trustees, shebaits, muttawalis, the Official Assignee for certain purposes, a Hindu widow representing her husband's estate, a holder of inam lands and the like.

Second.--Where a person acting in a representative capacity has no such authority under the general law, if his litigation is to be a representative one to bind others, he must get some other authority to assume such representative character. Such authority need not necessarily be express; it may be implied.

Third.--Such authority, if it is to be had from the Court, is ordinarily obtained in the form of an order under Order 1, Rule 8 of the Code. But it need not necessarily be in that form. And if the suit is filed in a representative form and it is allowed to proceed in that character without objection and if a general issue is framed so as to put in issue the right of the whole class in whom it is alleged to exist and the evidence adduced is of a general character and the findings in the judgment are general in nature, that judgment is binding on the whole class notwithstanding that no leave under Order 1, Rule 8 has been obtained.

13. Now in the case of Mata Prasad v. Nageswar Sahai the contention urged: was that reversioners have each an independent cause of action, and that, as none of the reversioners derive title from the others the result of a suit against the widow and her assignees brought by a reversioner, presumptive or otherwise, does not bind the others, nor can the suit be considered as brought in a representative capacity. Their Lordships said:

Reversioners possess individually what has been called a spes successions, the bare possibility of succeeding to the estate of the last owner in case the widow dies leaving any one of them surviving entitled to take immediate possession after her, unless, of course the husband has left the power to her to adopt a son. But the spes is common to them all; so is the danger by the widow's act against the interests of the reversioners. The right to sue to set aside that common danger is given for obvious reasons of policy and convenience to the person, who, if the widow died at the moment, would take the estate. But the result, favourable or otherwise, affects the reversioners as a body.

14. Their Lordships also observed that Venkata Narayana Pillai v. Subbammal A.I.R. 1915 P.C. 124 was an authority for the proposition that Expl. 6, Section 11 of the Code exactly covers cases of the kind under consideration and bars a fresh litigation on the same cause of action. In a more recent decision of the Judicial Committee where the question arose as regards the representative capacity of a karta of a Hindu family their Lordships said:

In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he be-comes of age and then bring an action or bring an action by his guardian before; and in each of these cases therefore the Court looks to the Expl. 6, Section 11, Civil P.C., 1908, to see whether or not the loading member of the family has been acting either on behalf of minors in their interest, or if they are majors with the assent of the majors.

15. Their Lordships applied to the case their earlier decision in Mala Prasad v. Nageswar Sahai .

16. On the principles enunciated in the cases referred to above and especially in the case of Mata Prasad v. Nageswar Sahai we think there can be no escape from the conclusion that the former suit was a representative suit instituted by one presumptive reversionor viz., Joy Lakshmi. The fact that the present plaintiff Raj Lakhmi was a party to it is immaterial; even if she was not she would have been bound by the decision in it so long as fraud or collusion was not shown. The fact that she did not enter appearance in the suit is perhaps more immaterial. And the fact that she colluded with Govinda and supported his defence can, on no principle, be regarded as making the decree passed in that suit any the less a decree passed in a suit instituted by Joy Lakshmi in respect of a private right claimed by her in common for herself and Raj Lakshmi within the meaning of the explanation.

17. The result, in our opinion, is that the present plaintiff Raj Lakshmi must be regarded as a person claiming under Joy Lakshmi in the matter of the former suit, and the decision passed therein would operate as res judicata between her and the defendants in the present suit.

18. In the above view of the matter the decision of the Court below was right. The appeal therefore must be dismissed with costs; hearing fee being assessed at three gold mohurs.

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