Madras High Court
M.H. Ravindranath And Anr. vs M.L. Hanumantha Rao And Ors. on 13 January, 1987
Equivalent citations: AIR1988MAD177, (1987)IIMLJ384, AIR 1988 MADRAS 177, (1987) 2 MADLJ384, (1987) 6 REPORTS 299, 1987 TLNJ 50, (1988) 1 LANDLR 705, (1987) 100 MADLW 606, (1987) 2 HINDULR 30, (1987) 2 CURCC 885
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
V. Ramaswami, J.
1. O.S.A. 36 of 1978 has been filed by the plaintiffs in C.S. 82 of 1975 and O.S.A.14 of 1978 has been filed by defendants 7 and 8 in C.S. 12.6 of W2. Plaintiffs 3 and 4 and defendants I and 2 in C.S. 126 of 1972, are the sons of one Loganatha Mudaliar. The first appellant in these appeals is the son of the first defendant, and the second appellant is the son of the first appellant. The said Loganatha Mudaliar c6nsecrated Sri Sai Baba, his family deity, in a Sai Baba temple at Guindy, maintained by a Trust, called'Sri Sathya Sai Mandah. This Sri Satva Sai Mandali trust, which will hereinaiter be referred to as the 'Trust' is managed by a Board of Trustees. Under a Trust deed dt. 3-2 1949, the said Loganatha Mudaliar created the Trust and endowed two items of properties which are shown as 'A' and 'C' Schedules in C.S. 82 of 1975. By a gift deed dt. 4-12-1946, the said Loganatha Mudaliar gifted B Schedule house and ground bearing door No. 13 Big Street, Triplicane, Madras, to his daughter one Leela. The donee Leela executed a Trust deed dt. 30-6-1958 conveying the said house property to the Trust. This property is the subject-matter of the suit C.S. 126 of 1972, and this is also shown as B schedule in C.S. 821 of 1975. The suit C.S. 126 of 1972 was filed by the family deity and the Trust represented by the Trustees who are plaintiffs I and 2 and two of the sons of Loganatha Mudaliar as plaintiffs 3 and 4, for recovery of possession with mesne profits. Defendants I and 2 in this suit as already stated, are the sons of Loganatha Mudaliar. Defendants 4 to 6 are impleaded as parties since they claim to be the tenants under defendants I and 2, and the applicants herein are impleaded as defendants 7 and 8. The two sons of the second defendant were also impleaded as defendants 9 and 10. The third defendant is the brother of the wife of Loganatha Mudaliar. The suit was filed on the ground that as per the Trust deed, executed by the daughter of Loganatha Mudaliar, the trust is entitled to the property, that defendants 1, 2 and 7 to 10 have no right, title or interest in the property, and that though they were inducted as licencees, in view of the relationship to Loganatha Mudaliar, since they refused to vacate the premises the suit had been filed. Defendants 4 to 6 had been impleaded as already stated, because they claim some tenancy rights. When this suit was pending, the appellants who were defendants 7 and 8 in C.S. 126 of 1972, filed C.S. 82 of 1975, claiming that A, B and C schedule properties, above referred to, are the joint family properties of Loganatha Mudaliar and his sons, and that they are entitled to 1/ 10th share in the same as the son and grandson of the first defendant., the son of Loganatha Mudaliar. In this suit, the plaintiffs, and defendants 1, 2 and 3 in the earlier suit were added as defendants along with the alienees in respect of A and C schedule properties. Substantially, therefore, the issues arising in both the suits were the same. The issues related to the nature of property, whether it is a joint family or separate property of Loganatha Mudaliar, and whether the trust deed executed by Loganatho Mudaliar on 3-2- 1949 and the gift deed executed on 4-12-1946 were valid.
2. It may be mentioned that the Trustees of the Trust filed on an earlier occasion, two suits. O.S.2728 of 1960 and 2720 of 1%0 on the file of the VIII Assistant Judge, City Civil Court, Madras for recovery of two rooms in the occupation of defendants. 1 and 2 in the suit B schedule house. The first defendant the father of the first appellant herein, was the defendant in O.S. 2728 of 19W and the second defendant was the defendant in O.S. 2729 of 1960.
3. As may be seen from the defence in these earlier suits, and the issues framed, the question for consideration was whether B schedule property was the absolute and selfacquired property of Loganatha Mudaliar, or whether it was the joint family property of himself and his sons. The other issues related to the validity of the gift deed, as also to the truth and validity of the Trust deed executed by Loganatha Mudaliar, on 3-2-1949, and Leela on 30-6-1958.
4. The suit O.S. 2728 of 1960 was decreed, after contest on 11-2-1969 holding that the suit house (B schedule property herein) was the absolute property of Loganatha Mudaliar, that the gift deed executed by him in favour of his daughter Leela on 4-12-1946 was valid, and the trustdeed executed by Leela on 30-61958 was true, valid and binding on defendants I and 2, and that defendants I and 2 had no manner of right, title or interest in the suit house, and, therefore, they are bound to deliver the rooms in the occupation of the defendants to the plaintiffs.
5. The appeal preferred against this judgment is A.S. 373 of 1979 was dismissed on 3-10-1970 and the second appeal filed in this Court, in S.A. 743 of 1981 was also dismissed; the suit O.S. 2729 of 1960 was decreed ex parte and no further appeal or revision had been filed against that order, and that had become final.
6. On the basis of these decisions in the suits filed in the City Civil Court, Madras, the question of res judicata was also raised in the present proceedings. The learned Judge held that the issue as to whether B schedule property is the self-acquired or joint family property in the hands of Loganatha Mudaliar is barred by the principles of res, judicata both in view of the provisions of explanations 11 and IV to Section 11, C.P.C. but also dehors the same on the ground that even if &-c. 11, C.P.C., is not applicable, in terms, the ratio of the provisions would apply, and having regard to the fact that there should be a finality to the proceedings, findings in the earlier suits should be accepted as final and binding on the parties. Independently of the finding that the issues is barred by res judicata, the learned Judge also went into the merits of the case and ultimately came to the conclusion that B schedule properties are the selfacquired properties of Loganatha Mudaliar, and not joint family properties, and is in that view, decreed C.S. 126 of 1972 as prayed for.
7. So far as A and C schedules properties are concerned, they were not the subject matter of the earlier suits, and accordingly, the learned Judge went into the merits of the case and found that they are the joint family properties in the hands of Loganatha Mudaliar. However, the learned Judge held that since the Trust deed in respect of the same was executed on 3-2-1949 and the Trustees have taken possession of the same immediately thereafter, the suit filed in 1975 in C.S. 82 of 1975 was barred by limitation. The learned Judge also made a note that A and C schedules properties are not even now in the hands of the Trustees, that long before they were, alienated in favour of the third parties, and as against third party alienees the suit is barred by limitation. The learned Judge was further of the view that since the alienees have taken possession of the same in pursuance of the registered sale deeds executed after paying the consideration therefore and since they are in possession of the same, the suit should have been filed for setting aside the said sale and then only can seek the relief for possession, and without such a prayer for setting aside the said sales, the suit is not maintainable. In the result, C. S. 82 of 1975 was also dismissed. It is against these two decrees the present appeals have been filed.
8. In O.S.A. 36 of 1978, arising out of C.S. 82 of 1975, the appeal had already been dismissed, by an order of this Court dt. 16-31986, as against respondents 2,8,9,12 and 13, who are alienees of A and C schedules properties. Respondents 1, 3, 4, 5, 6, 7, 12, 13, 14, 15 and 16 are all respondents who are interested in B schedule properties and who supported the case of the plaintiff in C.S. 126 of 1972, and, therefore, a decision in O.S.A. 14 of 1979 will conclude their interest is concerned in O.S.A. 36 of 1978. The only, other person who is the alienee against whom the appeal has not yet been dismissed is the 11th respondent. Even in respect of this person, neither the appellant nor his counsel is present in O.S.A. 36 of 1978 and therefore O.S.A. 36 of 1978 will have to be dismissed.
9. As already stated, the subject matter of the suit, O.S.A. 14 of 1979 is house bearing door No. 13 Big Street, Triplicane, Madras. The first question for consideration in relation to this appeal is whether the findings in the earlier suit that it was the self-acquired property of Loganatha Mudaliar, that the gift deed dt. 4-12-1946, executed by him in favour of his daughter Leela is valid, and that the Trust deed dated 30-6-1958 executed by Leela was true and valid would operate as res judicata in this suit.
10. There would be no dispute that in the earlier suit O.S. 2728 of 1960, the question whether the suit property is the joint family or self-acquired property of Loganatha Mudaliar was directly and substantially in issue between the trustees of the Trust and the father of the first appellant and the grandfather of the second appellant herein. There was no dispute that there was a conclusive decision in the earlier suit that the suit property was the self-acquired property of Loganatha Mudaliar and that the settlement deed in favour of Leela and the settlement executed by her are true and valid. The teamed counsel for the appellants contended that the appellants were not parties to that proceeding, though the father of the first appellant was a party. According to the learned counsel, there is nothing on record to show that the father of the first appellant was impleaded in that suit as 'Kartha' or 'manager' of the joint family, or the father was defending the suit as'Kartha7 or Manager of the joint family. It was further contended that since the first appellant as the grandson of Loganatha Mudaliar gets a right to the joint family property by virtue of right by birth, any decision rendered against the father will not also operate as res judicata. The point is not res integra, and it is directly covered by the decision of the Supreme Court reported in Amrit v Sudesh, and Narayanaswami Naidu v. Parvathi Bai, (1948) 2 Mad U 211 : (AIR 1949 Mad 379). The 'Headnote' in full -
"It is not necessary, in order that a decree against the manager may operate &% res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as Manager or is being sued as Manager. It is sufficient if the Manager was in fact suing or being sued as representing the whole family. The suit by or against the Manager will be deemed to be one brought by him as against him as representing the family if the circumstances of the case show that he is the Manager of the family and the property involved in the suit is family property. It is not necessary, where the Manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as Manager. A Kartha can represent the family effectively in a proceeding though he is not named as such.
It may be seen, in the instant case that the defence taken by the father of the first appellant was that it is a joint family property. That could only be on the basis that he is the 'Kartha' of the junior joint family that he as the son of Loganatha Mudaliar was entitled to a share in the properties and Loganatha Mudaliar had no absolute right either to settle the property in favour of his daughter or endow the same in trust. In the circumstances, therefore, the earlier suit against the father of the first appellant shall be deemed to be one brought against him as representing the family, and not in any of his individual capacity.
11. In the decision reported in Narayanaswami Naidu v. Parvathi Bai, (1948) 2 Mad U 211 : (' AIR 1949 Mad 379), learned Justice P. V. Rajamannar, Offg. C.J. (as he then was) while considering the question whether a decision rendered against the father will operate as res judicata against the son in respect of a finding as to whether the property was the joint family property or separate property, observed that if the principle of res judicata is not applied on the ground that the son gets a right by birth to inherit the grand father's property.
"It would mean that the parents and after them their children and probably the children one after the other can be permitted to agitate the same question over and over again in respect of the same title to the same land. The rule of res judicata was certainly intended to cover this class of cases in which all the donees under the settlement claim a common right."
Thus, a finding in an earlier suit between the father and some other party would be binding on the parties to those proceedings also. However, it was contended that Sec. 11, C.P. C. in terms could not be invoked in the present case as the present suits could not have been tried by the City Civil Court, which disposed of the earlier suits because of the limitations of pecuniary jurisdiction. At the time when the City Civil Court disposed of the suit, its pecuniary jurisdiction is limited to Rs. 50.000. The present value as given in C.S. 126of 1972wasRs. 60,000, and therefore the present suit could not have been filed in the City Civil Court. We are not going into the question as to whether Explanation VIII, which was introduced by Act No. 104 of 1976 and which came into force on 1-2-1977 is applicable to the present case or not. Assuming that that provision is not applicable and therefore the test to be applied is whether the present suit C.S. 126 of 1972 could have been filed in the City Civil Court if it had been filed in 1960 when the earlier suit was filed in the City Civil Court, has to be considered.
11.A. The Supreme Court, in the decision in Jeevantha v. Hanumantha, , had held that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit regard must be had to the jurisdiction of the Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a Court which have been competent to try the subsequent suit, had it been then brought the decision of such Court would operate as res judicata although subsequently by a rise in the value of the property that Court had ceased to be a proper Court, so far as regards its pecuniary jurisdiction to take cognizance of a suit relating to that very property.
12. In this case, though the suit property is valued in 1972, at Rs. 60,000 there is no evidence to show as to what was the value in 1960. Having regard to the steady rise of prices of properties in the City of Madras and taking into consideration that the property valued In 1972 was only Rs. 60,000 it may not be proper for us even to assume that the Property would not be more than Rs.50,000 of value in 1960. In the circumstances, therefore, the decision in the earlier suit was given by a Court of competent jurisdiction. Even if there is any doubt in this ease, as the learned single Judge has held, the principle of res judicata is a general principle relating to avoidance of multiplicity of suits and giving finality to the decisions of Civil Courts, and, therefore, the ratio of S. 11 C.P.C. could be applied even to cases where the provisions are not strictly applicable.
13. In Daryao v. State of U. P., , considering the question of principle of applicability of res judicata, to Art. 226 and Am 32 of the Constitution of India, the Supreme Court observed :
"...............the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent Jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata. they cannot be treated as irrelevant or inadmissible even dealing with the fundamental rights in petitions filed under Art. 32."
14. We may also usefully quote a decision of this Court in Komarappa Gounden v. RamaswamiGounden, (1947) 1 Mad LJ365 (AIR 1948 Mad 150). In that case, the question for consideration was as to the powers of the Court to stay the suit under S. 10, C.P.C. It was held therein that the object of S. 10, C.P.C. being to avoid conflicting findings being given in two different suits by two different forums even if in terms See. 10, C.P.C. are not applicable for staying a latter suit, the Court could invoke its inherent power if it is in the interest of justice or to prevent abuse of process of the Court or there is no other remedy available to the applicant. On the ratio of this judgment even if in terms Sec. 11, C.P.C. is not applicable, the principles of res judicata could he applied if the issues were directly in dispute between the parties in the earlier suit and there was a decision on merit after contest.
15. For the foregoing reasons, we agree with the learned Judge that the findings in the earlier suit that the property which is the subject matter of C.S. 126 of 1972 (B schedule in the other suit) is the self-acquired property of Loganatha Mudaliar and the findings that the gift deed dated 4-12-1946 and the trust deed dt. 30-6-1958 are true and valid, would operate as res judicata in this suit.
We also agree with the learned Judge that even assuming that the bar of res judicata does not apply on the material produced and on the evidence recorded in this suit, it is not possible to say, that the suit property is the joint family property of Loganatha Mudaliar and his sons. In addition to the documentary and other evidence produced in the earlier suits on behalf of the appellants three other documents were produced in this case and they are Exs. D.38, D.39 and D.40. The property which is the subject matter of the suit was purchased under Ex. P-I dt. 21-71919, for a sum of Rs. 8000. The consideration for the same could not have come out of the sale proceeds in Exs. D-38, D-39 and D-40 as all those documents were long subsequent to the purchase under Ex. P-11. Ex. D-38 is dt. I i-9-1919, Ex. D-39 is dt. 24-8-1922 and Ex. D-40 is dt. 20-6-1923. However, it is contended by the learned counsel on the basis of certain recitals in Ex. D-38 and D-39 that a portion of the consideration seems to have been spent for discharging the loan borrowed for the purpose of purchasing the house and that, therefore, the suit property is the joint family property. The learned Judge has clearly analysed the entire document, and it is not necessary for us to deal with it in detail. However, we may point out that the recitals in Exs. D-38 and D-39 do not in any way show that the amount was in any way utilised for discharging the loan obtained for purchase of the house or for any improvement. The recital in Ex. D40 is also to the effect that the property was sold for discharging a Government loan taken by the ancestors of Loganatha Mudaliar for putting up a well. The evidence also does not disclose that there was any income yielding nucleus from which a property could have been purchased. In fact, the evidence showed that the said Loganatha Mudaliar was employed in Railways at Hyderabad and he had received a lump sum at the time when he had left the services of the railways which was about the time the property was acquired. There was also evidence to show that a sum of Rs.3M was advanced by the wife of Loganatha Mudaliar. In the circumstances, we are unable .o hold that the property was purchased either out of the joint family funds or that it was at any time thrown into the hotch pot. The document is in the name of Loganatha Mudaliar and there is no evidence of any type that the property was treated as a joint family property subsequent to the acquisitions. In the circumstances, we agree with the learned Judge that the property is the selfacquired property of Loganatha Mudaliar and that it has not been established to be the joint family property in his hands.
16. These two findings conclude the dispute between the parties because if once the property is a self-acquired property and the gift deed in favour of the daughter of Loganatha Mudaliar is valid, it is not open to the appellants herein to question even the Trust deed executed by the daughter (Leela). In the result, the appeal 0. S. A. 14 of 1979 fails and it is dismissed. In view of the findings in O.S.A. 14 of 1979, the appeal O.S.A. 36 of 1978, in so far as it related to B schedule also is liable to be dismissed. As already stated, in respect of A and C schedule's properties, the properties are now in the possession of the alienees, and the appeals against them have already been dismissed except in regard to 11th defendant/ 11 the respondent and even in regard to him since neither the appellant nor his counsel are present, the appeal will have to be dismissed. Accordingly, both the appeals are dismissed in its entirety. However, there will be no order as to costs.
17. Appeal dismissed.