Madras High Court
Pappammal And Ors. vs Swamikannu Padayachi And Ors. on 3 April, 1987
Equivalent citations: (1987)2MLJ306
JUDGMENT Srinivasan, J.
1. The appellants; before me are the legal representatives of the deceased plaintiff. The plaintiff filed an earlier suit O.S. No. 92 of 1961 on the file of the Subordinate Judge, Cuddalore, for setting aside the order dated 10.4.1981 passed by the Commissioner, Hindu Religious and Charitable Endowments (Administration Department), Madras, and to uphold his right of hereditary trusteeship with reference to Sri. Gurumani Vinayagar and Kannanur Mariamman temple in Kodikalkuppam Village, Cuddalore O.T. In that suit, the plaintiff claimed that the temple was founded by his ancestors and the members of his family were holding the hereditary office of Karnam of the village and the office of the hereditary trusteeship of the temple. It was alleged by him that his family had endowed properties for the maintenance of the temple.
It was also alleged that the trusteeship of the temple or the management thereof was never in the hands of anyone outside his family. When defendants 1 and 2 in that suit disputed his rights of hereditary trusteeship, he filed an application C.A. No. 9 of 1960 before the Deputy Commissioner, Hindu Religious and Charitable Endowments, to have his rights declared. The same was dismissed and his appeal to the Commissioner met with the same fate. Hence that suit was filed for setting aside the order of the Commissioner. In that suit he had made a reference to a will of his grand-father executed in the year 1903 whereby certain properties were endowed in favour of the temple.
2. The defendants in that suit contested the claim of the plaintiff that the temple was founded by his ancestors and that the members of his family were the hereditary trustees. While denying all the claims made by the plaintiff in that suit, the defendants contended with reference to the will put forward by the plaintiff that the same would not help him in his claim to hereditary trusteeship as it was only because of giving certain properties to the temple. The defendants did not raise any question as to the genuineness or the validity of the will.
3. The following issues were framed by the Subordinate Judge in that suit:
1. Whether the plaintiff is the hereditary trustee of the suit institution?
2. Whether the order dated 10.4.1961 of the Commissioner is liable to be set aside?
3. Whether the suit is barred by limitation?
4. To what relief is the plaintiff entitled?
4. After giving findings against the plaintiff On issues 1 and 2, the Court dismissed the suit, even though the finding on issue No. 3 was in favour of the plaintiff. The judgment of the learned Subordinate Judge is marked as Ex. A. 2 in the present case. In the course of his discussion on issue No. 1, the learned Subordinate Judge referred to the will relied upon by the plaintiff as that of his grandfather, which was marked as Ex. A. 2 in that suit, and observed as follows:
...The wording of this document clearly shows that certain family properties were being endowed for utilising the income for there expenses of Neiveidyam etc., for this temple and there was a direction that the properties should be enjoyed from generation to generation by the members of his family without alienating the same and that outsiders should not have any control over this endowment. It is not recited therein that Rathinam Pillai was the hereditary trustee of the Temple and his descendants should be the hereditary trustees of this Temple. It is not recited in this Will that the Temple was originally founded by his ancestor and it was a family temple or that the members of the plaintiff's family were hereditary trustees. There is absolutely no reference at all to the nature of the Temple or to the nature of the hereditary right now claimed by the plaintiff. It is surprising to find that this document is relied upon as the main document in support of the plaintiff's contention.
5. Thus, it is seen that the only question which was considered by the Court in that suit was whether the plaintiff was a hereditary trustee of the temple. The will referred to by him was only sought to be used as evidence in support of his claim to hereditary trusteeship. The defendants did not choose to question the truth of the will as they thought it unnecessary inasmuch as the will did not in any way support the claim of the plaintiff to hereditary trusteeship.
6. Against the dismissal of the suit, the plaintiff preferred an appeal in this Court which was taken on file as A.S. No. 297 of 1963. A Division Bench of this Court dismissed the appeal by its judgment dated 20.2.1969 and the judgment is marked as Ex. A. 3. The learned Judge who delivered the judgment on behalf of the Bench commences the same in his characteristic way with a strong observation that it was a frivolous appeal totally devoid of merits. He proceeds to observe that the only point that arose for decision was whether the appellant, plaintiff in the suit, had made out his claim that he was the hereditary trustee of the two institutions called Sri. Gurumani Vinayagar and Kannanoor Mariamman temple in Kodikkalkuppam village. While referring to the evidence on record, the will was also considered and the following observations were made:
...It appears that the grandfather of the plaintiff, one Rathina Pillai left behind a will Exhibit A. 2 dated 25.7.1903 under which, he bequeathed certain properties for the benefit of the temples for Neivedyam, putting UD lights etc., That will provide that during his lifetime he should manage the properties for the benefit of the institutions and after him, his heirs in succession. Relying upon this document, the plaintiff attempted to make out a claim that his ancestors, grand-father, Rathinam Pillai, his father, Natarajan Pillai and himself have been functioning as trustees of the institution. There is absolutely no evidence as to who founded the temple, nor is there any evidence whether Rathinam Pillai's father Vaidyalingam Pillai had anything to do with this temple.
Again the following observations are made at the end of the discussion:
...There is absolutely no evidence whatsoever that the trusteeship of the institution had inhered in the family of the plaintiff for generations. We have therefore no hesitation in confirming the judgment and dismissing the appeal.
7. After thus disposing of the only question which arose for consideration, the Bench proceeded to observe in the following terms:
We may also add that the fact that the plaintiff's claim to the heriditary trusteeship of the temples has been negatived, does not affect his right to be the trustee of the endowment. Under the powers conferred by the document Exhibit A. 2, the plaintiff will be entitled to be in possession and management of the properties and utilise the income of the properties as specified in Ex. A. 2. The authorities of the Endowment will see to it that his rights are not in any way affected by the present misconceived proceedings which the plaintiff had taken resulting in this useless litigation.
Emboldened by the above observations, the plaintiff launched another useless and frivolous litigation, in which the present second appeal has arise.
8. Alleging that the plaintiff's right to manage the present suit properties as a trustee of the endowment created by his grand-father -Rathinanr Pillai, was upheld by this Court in the aforesaid appeal, the plaintiff prayed for a declaration of his title to the suit properties and for an injunction restraining the defendants from interfering with his possession. According to the plaintiff, the suit properties belonged originally to his grand-father Rathinam Pillai, who endowed the same in favour of the temple under his will dated 25.7.1903. The defendants in the suit are the trustees appointed by the Hindu Religious and Charitable Endowment Department, the Assistant Commissioner, H.R. & C.E. (Administration) Department and the Collector of South Arcot. The defendants contested the suit on the ground that the will relied upon by the plaintiff was a forgery and not a genuine one and that the properties did not belong to his grand-father Rathinam Pillai. The case of the defendants is that the properties belonged to the temple always.
9.The trial Court framed the following issues:
1. Whether the will dated 25.7.1903 is true and valid?
2. Whether the plaintiff has title to the suit property?
3. Whether the plaintiff is entitled to the relief of injunction?
4. To what relief is the plaintiff entitled?
10. It has been pointed out that the pleadings in the earlier suit O.S. No. 92 of 1961 and the decree of this Court in A.S. No. 297 of 1963 have not been filed in the present proceedings as exhibits. After holding that the decision of this Court in A.S. No. 297 of 1963 will not constitute res judicata in the present proceedings, the trial Court considered the evidence on record and held that the plaintiff failed to prove the genuineness of the will put forward by him. The trial Court also held that the documents produced by the defendants establish beyond any doubt the title of the temple to the suit properties. Consequently, the trial Court dismissed the suit holding that the plaintiff is not entitled to any relief whatever. On appeal, the learned Principal Subordinate Judge affirmed the judgment and decree of the trial Court on all the issues.
10A. In this second appeal, it is vehemently contended that the Courts below were in error in holding that the decision of this Court in A.S. No. 297 of 1963 is not res judicata. Strong reliance is placed upon the, observation of this Court in the penultimate paragraph of its judgment extracted earlier. It is urged, by learned Counsel for the appellants that the said observation was also included in the preamble of the decree in the appeal and consequently it is binding upon all the parties concerned. It is argued that the defendants in the earlier suit might and ought to have raised the question of genuineness of the will relied upon by the plaintiff and not having done so, are bound by the decision of this Court recognising the right of the plaintiff to be a trustee of the endowment. According to learned Counsel, the decree passed in A.S. No. 297 of 1963 should be treated as one declaring the right of the plaintiff as trustee of the endowment and when that right is sought to be enforced in the present proceedings, the defendants are not entitled to resist the same.
11. Learned Counsel asserts that the present case is covered by the decision of a Division Bench of this Court in Karthian Kone v. Baghyathammal (1969) 82 L.W. 425. In that case, certain properties were endowed for Annadhanam Charity of Ayyan Papakudi Choultry by one Gnanambal and certain others and one Ramaswami Konar was appointed as the trustee. The deed of Endowment provided that after Ramaswami Konar his heir should manage the properties and perform the Charity. Ramaswami Konar had two wives and by the first wife he had a son by name Kartik Kone, who was the defendant in that suit. The second wife was the plaintiff in that suit and she had a daughter by name Chinna Ponnu. After the death of Ramaswarny konar, the second wife was in possession of one half of the trust estate. In 1955, Kartik bone filed a suit C.S. No. 248/55, District Munsif's Court, Madurai Taluk, for recovery of possession and accounts of the trust properties from the second wife of Ramaswami Konar and her daughter. It was alleged that she had taken possession on behalf of the plaintiff under an arrangement to manage the properties and to render an account. The suit was dismissed by the trial Court, but on appeal a decree was passed in favour of the plaintiff for recovery of possession and mesne profits. The matter came to this Court in S.A. No. 905 of 1959. It was held by this Court that after the death of Ramaswami Konar, his heirs inherited the trust estate and, therefore, the second wife of Ramaswami Konar was a co-trustee along with her step-son Kartik Kone. The decree of the lower Appellate Court was accordingly modified granting a declaration in favour of the second wife of Konar that she was also entitled to joint management along with Kartik Kone of the trust properties. However, she was directed to take appropriate steps by separate proceedings to work out her right to joint management. In pursuance of the right recognised by the above decree, Baghayathammal filed the suit out of which the second appeal which was considered by the Bench arose, for a decree for joint possession of the first properties along with her step-son Kartik Kone and for a direction to him to render accounts in respect of the same. Her claim was resisted by the defendant on the ground that the decision of this Court in S.A. No. 905 of 1959 did not confer any rights upon her for the reason that in the earlier suit Baghyatham mal had in fact repudiated the trust and there was no issue which went into the question of her rights to co-trusteeship. It is unnecessary to refer to the other contentions raised by Kartik Kone in that case. Though the trial Court found in favour of Baghyathannnal on almost all the issues, it refused to grant a decree for joint possession on the ground that she was already in possession of part of the trust properties and had not surrendered the same and, therefore, her claim for joint possession of the rest of the properties was not maintainable. Both sides appealed against the judgment of the trial Court and the learned Subordinate Judge allowed the appeal filed by Baghyathammal while dismissing that filed by Kartik Kone. The appellant before this Court 'was Kartik Kone, the defendant in the suit. The following four question were framed for consideration by the Bench.
1. Is the mere right of management of the trust conferred upon Ramaswami Kone and his heirs, without any beneficial interest in the properties being available to the trustees, heritable property as understood in law?
2. Is such property within the scope of the operation of the Hindu Women's Rights to Property Act?
3. The amendment of the Act in 1947 bringing within its scope agricultural lands not being retrospective in operation, can Bhagyathammal claim any rights under that Act? and
4. On the question whether Bhagyathammal was entitled to joint trusteeship along with the defendant, did this Court in S.A. No. 905 of 1959 render an enforceeble decision, or are the observations of the Court in this regard mere obiter dicta?
We are concerned only with the fourth question framed by the Bench. While answering that question against the appellant before them, the Bench gave its ruling as follows:
It seems to us that this Court undoubtedly embarked upon a determination of the question of title of Bhagyathammal and that question was in the nature of a question of law. In Rajlakshmi Desi v. Benemali Son , their Lordships point out that the test of res judicata is the identity of title in the two litigations and that so long as the competency of the former court to try the subsequent suit cannot be denied, the general rule of res judicata applies. Even apart from this, the defendant Kartik Kone against whom the point was decided in the second appeal, sought to have judgment of the court reviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is difficult to see how a review application could at all have been maintained. The learned Judge in dealing with the review application pointed out that though the question was raised for the first time in the second appeal, at the time of the hearing an objection was raised, and as we said earlier, both sides argued the question before the learned Judge rendered his decision in the second appeal. We may further point out that far from the observations of the learned Judge being in the nature of obiter dicta; the actual decision on this point was incorporated in the decree in the second appeal, the clause of the decree reading thus:
That the first defendant (Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trust properties and the first defendant shall be Pt liberty to take appropriate steps to work out her rights to joint management by way of separate proceedings....
There is accordingly a decree embodying the decision of the Court and it seems to me that it can no longer be maintained that the observations are merely obiter dicta having no executable force. It is not open to Kartik Kone to question the decree unless he can say it is nullity which it is obviously is not. In Kolu Nambiar v. Chathu Nambiar 9 L.W. 84 : (1919) 52 I.C. 258, this Court held that a matter could be in issue under Sea 11 of the Civil Procedure Code even though an express issue had not been framed. It would be an issue if the decision about it is necessary for the decree. They say further that if the finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter dicta. It follows that where the finding was incorporated in a decree, the position would clearly be otherwise. This has been emphasised in Sankara Mahaliga Chettiar v. Muthulakskmi (1917) 33 M.L.J. 740 : 43 I.C. 860, where it was held that though a finding might be unnecessary, yet if it is embodied in the decree, it will operate as res judicata.
It seems to us accordingly that the contention of the appellant that the decree in the second appeal S.A. No. 905 of 1959 - is not res judicata and that in spite of that decree, hecan still raise the question that Bhagyathammal is hot entitled to joint rights of management has to be negatived.
12. I cannot agree with the contention of learned Counsel for the appellants that the aforesaid decision will apply on all fours to the present case. The Division Bench has expressly referred to and relied upon the fact that the decree in the earlier proceeding contained an operation clause declaring the right of Bhagyathammal to be entitled to joint management and giving her liberty to take appropriate steps to work out her rights by way of separate proceedings. It is also found by the Division Bench that this Court had in the earlier proceedings embarked on a determination of the question of title which was in the nature of a question of law on the facts of that case. It is clear from the observations of the Division Bench that a matter would be in issue in a proceeding if the decision about it is necessary for the decree. It is to be noted that the Division Bench has with approval referred to the decision in Kolu Nambiar v. Chathu Nambiar (1919) 52 I.C. 258 : 29 L.W. 84, and recognised the position that if the finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter dicta. The basis of the conclusion arrived at by the Division Bench in that case was that the finding was incorporated in the decree and it was arrived at after the question was considered by the Court.
13. The facts in the present case are not so. The observation made by the Division Bench in A.S. No. 297 of 1963 cannot be equated to a finding on the question whether the will relied upon by the plaintiff was genuine or not. As pointed out already, that question was not in issue at all in those proceedings. Nor the question was necessary to be determined for passing a decree in that case. A perusal of the judgment of the Bench in the appeal shows that there was no discussion whatever of the question which arises in the present proceedings. The Division Bench proceeded on the assumption that the will propounded by the plaintiff is that case was a genuine one. The observation made by the Bench cannot be understood to mean that the Division Bench intended to negative the title of the temple to the properties in question and uphold the rights of the plaintiff thereto even when the matter was not in issue and the parties had no opportunity to let in evidence regarding the same. The direction to the authorities of the Endowment Board contained in the observation made by the Division Bench would only mean that if the plaintiff had any rights to the properties in question, such rights should not be interfered with by the authorities merely because he failed in that litigation. In other words, the Bench pointed out that if the plaintiff had any right as an endowment trustee, he did not lose the-same by his failure in that suit.
14. Even though the decree in A.S. No. 297 of 1963 has not been exhibited in the present proceedings, a copy of the same was produced before me by learned Counsel for the appellants. As it is a decree of this Court, I perused the same and found that the observation contained in the judgment is not incorporated in the operative portion of the decree which merely dismisses the appeal without costs. Of course, a reference is made to the observation in the preamble portion of the decree. That will not bring it within the rule laid down in, Kartik Kone v. Baghyathammal (1969) 82 L.W. 425, referred to above.
15. Learned Counsel for the appellants cited the decisions of the Supreme Court in Razia Begum v. Anwar Begum , Sheodan Singh v. Daryso Kunwar , in support of his argument. I find that neither of them has any relevance to the present case.
16. In order that a decision in a former suit should constitute res judicata it should have been directly and substantially in issue in that suit and such issue must have been heard and finally decided by the Court. On the facts of this case, it is already seen that the issue whether the will relied upon by the plaintiff was genuine or not, was not in issue in the former proceeding, nor was it heard and finally decided by the Court. A mere expression of opinion in a judgment of an obiter dictum will not have the effect of res judicata. In Devarakonda Narasamma v. Devarakonda Kanaya (1882) I.L.R. 4 Mad. 134, a Division Bench consisting of Innes, J., and Muttusami Ayyar, J., enunciated the rule as follows:
The first defendant, Mr. Shaw represents, is apprehensive that the expression of the Judge's opinion in the judgment as to the adoption said to have been made by her may be held to be res judicata upon that point in any suit hereafter instituted. As to this we are of opinion that to see whether a matter is res judicata you must look at tne former decree. If the decree does not decide the question, it is not res judicata. (Underlining mine). Certain recent decisions appear to have held that the first clause of Section 13, Civil Procedure Code, precludes a second trial between the same parties to matters which have been in issue and upon which the Judge has expressed his opinion in a former suit. We do not agree in this view. The words "has been heard and finally decided by such court", apply not to the expression of opinion in the judgment, but to what has been decided by the decree.
17. In Asrar Ahmed v. Durgah Committee, Ajmer A.I.R. 1947 P.C. 1, the question of res Judicata had to be considered on the following facts : The President and one member of a Durgah Committee filed a suit against the mutawalli praying for his dismissal from office on account of incompetency, dishonesty, neglect of duty etc The plaint did not raise any question of hereditary right to office, but the mutawalli contended in his defence that the office was hereditary. An issue was framed and it was decided that the office was a hereditary one. Even so, the Court found that the Mutawalli was not fit to be in office and, removed him and directed a Naib mutawalli to be appointed. On appeal, the finding as regards the hereditary nature of the office was confirmed but the appointment of Naib Mutawalli was postponed. On the death of the Mutawalli, his son filed a suit against the Durgah Committee claiming for a declaration that the office of Mutawalli was hereditary in his family and that the Durgah committee were not competent to question his status as a hereditary Mutawalli. The trial Court decreed the suit, but on appeal, the Judicial Commissioner, Ajmer-Merwara reversed the same. The plaintiff preferred an appeal to the Judicial Committee of the Privy Council. While rejecting the plea of res pdicata Lord Simonds spoke on behalf of the Judicial Committee in these terms:
...In the first place, as has already been pointed out, in that suit the issue raised by the plaintiffs was as to the competence of the defendant to remain in office, an issue to which it was irrelevant whether he had a hereditary right. For, whether he had or not, he could be removed. It is true that at his instance the question of hereditary right was brought into issue, and was indeed decided in his favour, but it was incidental to and not the substance of the suit, and though their Lordships would willingly uphold the plea whenever the circumstances justify it, they cannot think that in that case the question was a direct and substantial issue, particularly when it was at least doubtful whether such an issue could have been raised under the Act of 1863 under the authority of which the suit was brought.
18. In Srinivasa Row v. Kaliaperumal , Veeraswami, J. observed as follows:
...For a finding in an earlier suit to operate as res judicata in a subsequent suit, it must be necessary for disposal of the earlier litigation and in that, sense the point was substantially in issue between the parties and it must have been heard and finally decided. In the earlier litigation once the Court found that the character of the property conveyed to the 8th defendant was not coparcenary, the suit should automatically fall and no further issue arose for decision. It was for the sake of fullness in the earlier litigation the Court recorded findings on the other issues. In my view, such findings on issues which were not necessary, or which did not arise, in view of a finding on a vital issue which would by itself dispose of the suit will not operate, as res judicata in a subsequent suit between the same parties where identical issues which were not necessary or required to be decided in the earlier suit, arise for consideration. This view is supported by Raja Gopala Venkatanarasim hacharyulu v. Veeraswami (1935) 68 M.L.J. 626. In that case, Madhavan Nair J., held:
If a decision on the point or issue in an earlier suit between the same parties is unnecessary for the disposal of the previous suit it cannot be considered to be res judicata in a later suit when the point involved in that finding arises for decision.
With respect, I am of the same view.
19. The proposition was reiterated by Ismail. J, in Marisami v. Bluemount Switchgears Associates (Pvt) Ltd. (1969) 1 M.L.J. 573, in these terms:
...For the applicability of Section 11 of the Code of Civil Procedure and for invoking the bar of res judicata it must be established that the matter which is directly and substantially in issue in the present suit has been directly and substantially in issue in the former suit. As I pointed out already, notwithstanding the finding on the genuineness of Exhibit A. 1, which was a finding in favour of the plaintiff, the suit of the plaintiff was dismissed solely on the ground that the plaintiff was not entitled to call upon the defendants to render accounts. The very fact that the suit of the plaintiff was dismissed is sufficient to show that such a finding was not necessary for the disposal of that suit.
20. In Ganga Bai v. Vijay Kumar , a suit was filed to enforce a mortgage of joint family property executed by the father-manager. A preliminary decree for sale was passed only against a half share in the mortgaged property and the suit was dismissed against the sons on the ground that the mortgage was not binding on them as it was not for legal necessity. The sons filed an appeal not against the part of the preliminary decree but against the finding of the trial court that the partition between the father and sons effected subsequent to the mortgage was a sham and colourable transaction. The mortgagee had also filed an appeal in so far as the decree of the trial Court was against him. Both the appeals were part heard before a Division Bench when the sons applied for an amendment of their memorandum of appeal by which they sought the leave of the Court to challenge the preliminary decree passed by the trial Court. The mortgagee opposed the application for amendment and at the same time, informed the court that she did not desire to prosecute her appeal. Ultimately, the application for amendment was allowed and the appeals were taken up for hearing. The mortgagee's appeal was dismissed as she did not want to prosecute the same. In the appeal by the sons, the High Court took the view that the appeal was competent even though the suit was dismissed wholly as against them inasmuchas the sons were aggrieved by the adverse finding on the question of partition. On the merits, the High Court held that the partition was real and genuine. In the result, the appeal filed by the sons was allowed and the preliminary decree passed by the trial court as well as the final decree which was passed during the pendency of the appeals were set aside and a fresh preliminary decree was passed under Order 34, Rule 4, Code of Civil Procedure on the footing that the sons had become owners of equity of redemption and had a right to redeem the mortgage. That decision of the High Court was challenged before the Supreme Court. The Supreme Court held that the appeal filed by the sons in the High Court was not maintainable as it was directed against a mere finding. An argument was advanced before the Supreme Court that the finding of the trial Court on the issue of partition would have operated as res judicata against the sons in any subsequent proceedings and, therefore, they were entitled to appeal against the decree of the trial court. While rejecting the said arguments, the Court observed as follows:
...The trial Court decreed the mortgagee's suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3. Whether the partition between the father and sons, was sham or real had no impact on the judgment of the trial court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu law, would bind the interest of sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation, or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. (Emphasis supplied). Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding.
21. Turning to the case on hand, it is already seen that a determination of the question of genuineness of Rathnam Pillai's will was wholly unnecessary for passing a decree in the prior proceedings and that the observation made by the Division Bench in the appeal was not incorporated in the operative portion of the decree. Hence, I have no hesitation to hold that the decision in the prior proceedings is not res judicata in the present suit. There is no substance in the contention of learned Counsel for the appellants that the plea of the respondents relating to the genuineness of Ex. A39 will fall under Explanation IV of Section 11, Code of Civil Procedure and having failed to raise the same in the earlier proceedings, they are precluded from raising it in the present proceedings. Once it is held that it was wholly unnecessary for the defendants in the earlier suit to have attacked the genuineness of the will for non-suiting the plaintiff, the matter cannot fall under Explanation IV of Section 11 of the Civil Procedure Code.
22. Mr. Sivamani, learned Counsel for the respondents drew my attention to the ruling in Mt. Lechmi v. Hans Raj A.I.R. 1932 Lah. 232 and Shankernath v. Babulal A.I.R. 1936 Nag. 148. In the former case, a Division Bench of the Lahore High Court referred to an observation made by a Senior Subordinate Judge in a prior proceeding relating to the character of a woman as a stray observation which deserved to be ignored in the subsequent proceedings. In the latter case, Niyogi, J., observed that a mere suggestion by the Court cannot operate as res gudicata in a subsequent proceeding. It is not necessary to deal with either of the cases at any length as the facts therein were entirely different.
23. My attention is also drawn to the observations made by Jackson, J., in Khambham Chenchayya v. Bandarupalli Bapayya (1932) 62 M.L.J. 177 : A.I.R. 1932 Mad. 233, where a transferee of a mortgagee filed a suit for declaration that the mortgage was valid and it was contended that the trial of the issue was barred by the principle of res judicata in view of an order made in a proceeding to adjudicate the mortgagors as insolvents on the allegation that the act of insolvency was the fraudulent execution of the said mortgage. While passing an order of adjudication, the Court made another order declaring the mortgage to be void and vesting the assets in the Official Receiver. Jackson, J., held that the said order would not constitute res judicata on the following reasoning:
...But to build up a constructive res judicata it must be found in the first place that the matter was directly and substantially in issue. Can a matter be said to be thus in issue at a stage when the. Court cannot go into it? The answer is that it cannot; to hold otherwise would be to treat 'substantially' as meaningless. If the Court from an erroneous view of its powers, proceeds to deal with something not substantially In issue, the. absentee party cannot be held bound by that decision. There d.oes not seem to be a case exactly in point, because this sort of error by the court itself is happily rare. An ex parte decree can only be res judicata, in respect of a matter in which relief has been claimed in the plaint. But, the case has not previously arisen where the relief is claimed but claimed prematurely in the plaint, and the court has nevertheless passed a decree. I think that a party is justified in holding that such a relief would never be substantially in issue, because the court should be trusted to know its powers and to perform its duty, and if on the strength of that belief the party remains absent, an erroneous exercise of the Court's power cannot constitute res judicata.
24. As I have already held that the Division Bench in A.S. No. 297 of 1963 meant only to preserve the rights of the plaintiff if he had any as trustee of the endowment, there is no question of erroneous exercise of the power by this Court.
25. It is seen from the judgments of the Courts below that the documentary evidence adduced by the defendants in the present case is overwhelming to prove the title of the temple to the suit properties. I do not find any necessity to refer to them in detail. It-is sufficient if I point out that as early as in 1896 and 1898, the plaintiff's grand-father Rathnam Pillai was party to lease deeds in his capacity as trustee of the temple in which items 1, 2, 4 and 5 of the suit properties were dealt with as properties owned by the temple. (Vide Exs. B. 9 and B. 2). The same items were treated as temple properties and leased out by the present plaintiff himself along with some others as trustees of the temple on 3.4.1957 under Ex. B. 1. Item 3 of the suit properties was sold, by one Nallamuthu Padayachi to the trustees of the temple under Ex. B8, dated 2.10.1886. As regards item 6, Ex. B11 dated 14.6.1902 shows that it was dealt as a property owned by the temple. Both the Courts below have discussed in detail the entire evidence on record and come to a concurrent conclusion that the properties never belonged to the plaintiff's grandfather. I do not find any error in the factual finding of the Courts below that the plaintiff has not proved the genuineness of the will relied upon by him. Though in the plaint he referred to it as a registered will, it is found to be an unregistered one. The original is marked as Ex. A39 and the certified copy is marked as Ex. A1. The plaintiff in his deposition admits that he is not acquainted with the signature of his grand-father Rathnam Pillai. There is absolutely no evidence to prove the execution of the will as required by law.
26. There is no merit whatever in the second appeal and it is hereby dismissed. The appellant will pay the costs to the respondents.