Madras High Court
W.Rajan D. Yesudian vs G.Jeyachandran Devasahayam on 17 December, 2020
Author: M.Govindaraj
Bench: M.Govindaraj
AS (MD) NO.87 OF 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
AS (MD) NO.87 OF 2019
W.Rajan D. Yesudian ... Appellant / Plaintiff
Vs.
1.G.Jeyachandran Devasahayam
2.G.Selvaharan
3.Ganesan alias Moni
4.Murughan alias Yesaya ... Respondents / Defendants
PRAYER: First Appeal filed under Section 96 CPC against the decree and
judgment passed in O.S.No.101 of 2014 on the file of the Principal
District Court, Nagercoil, dated 12.07.2018.
For Appellant : Mr.K.P.S.Palanivelrajan
For Respondents 1&2: Mr.V.Meenakshi Sundaram
For Respondents 3&4: Mr.S.Xavier Rajini
1/40
https://www.mhc.tn.gov.in/judis
AS (MD) NO.87 OF 2019
JUDGMENT
This First Appeal has been preferred against the decree and judgment dated 12.07.2018 passed in O.S.No.101 of 2014 on the file of Principal District Judge, Kanniyakumari Division at Nagercoil.
2. The Original Suit was filed for partition of southern 1/3rd vacant site of the plaint schedule property by metes and bounds and for a decree declaring the partition deed No.2467/88, WILL No.1/2004 and partition deed No.3857/2009 of Kanyakumari District Registrar's Office at Nagercoil as void and not binding on the plaintiff or his mother.
3. The plaintiff is the grandson of one Late Mr.Devasahayam. The plaint schedule property was purchased by the plaintiff's grandfather Late Mr.Devasahayam as per Sale Deed No.49/1955 at the Office of the Kanyakumari District Registrar at Nagercoil for valid sale consideration. He constructed a concrete house with tiled roof and constructed a compound wall and lived in it with his wife and children. The said Devasahayam had two sons namely, D.Giles Lal and D.Alos Roy and one daughter D.Adeline Kanthimathi. All the sons and daughter lived in the 2/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 house erected / constructed by their father even after the demise of their parents. The plaintiff's mother lived in the plaint schedule property upto 1980 and thereafter, she went with her husband to his work place. During Christmas, Easter seasons and other holidays, the plaintiff with his parents came and stayed in the plaint schedule property. The plaintiff's younger uncle had no issues and defendants 3 and 4 lived with him as helpers.
4. On all these occasions, the brothers of plaintiff's mother told her the Suit property can be partitioned as per the WILL of their father equally and all the three of them were in joint enjoyment of the property. After the death of the grandfather Late Devasahayam, his sons orally allotted in 1/3rd share in the southern portion to their sister namely, plaintiff's mother and retained 2/3rd part with the house on the northern side for them. The plaintiff's mother enjoyed it being a vacant site raising plantation and tapioca till her death. She died on 28.08.2010 and the plaintiff being the only son inherited his mother's property and in possession of it. The plaintiff's uncle also died. Thereafter, the plaintiff approached the elder uncle's son for partition by metes and bounds of his mother's 1/3rd share. But they protracted the matter by giving lame excuses. Thereafter, when he filed an application for encumbrance 3/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 certificate for the plaint schedule property, it came to light that his uncles have secretly partitioned the property among themselves in 1998 bypassing their sister's share and the younger uncle executed a WILL in the year 2004 in favour of the defendants 3 and 4 and they effected a Partition Deed in 2009 on the basis of the WILL and were living in the northern house portion. Since the documents are void and illegal and the consequential changes in revenue records are also void, it does not bind the plaintiff's mother's 1/3rd share, he filed a Suit for partition and for declaration of the documents executed by them.
5. In the written statement, the defendants denied the averments made in the plaint except for the fact that the property was a self acquired property of Late Devasahayam, the grandfather of the parties. The plaintiff's mother had already filed a Suit for partition in O.S.No. 25/1971on the file of Sub Court, Padmanabhapuram and also O.S.No. 66/1975 on the file of Principal Sub Court, Nagercoil. Both the Suits were dismissed. Against the decree and judgment in O.S.No.66/1975, she preferred an appeal in A.S.No.554/1997 before this Court and the same was dismissed on 08.09.1980. This judgment operate as res-judicata. In the previous Suit in O.S.No.66/1975, the plaintiff's mother sought 4/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 partition of her 2/9th share over the plaint schedule properties in Item Nos.A & B Schedule as daughter of deceased Devasahayam. But the present Suit is filed only for "B" Schedule property leaving out the "A" Schedule property of O.S.No.66/1975. Therefore, the Suit is bad for partial partition. The plaintiff's mother was given in marriage 67 years back and at the time of her marriage, she was given Rs.3000/- in cash and jewels worth Rs.3000/- in lieu of her share in her father's property. Therefore, she is not entitled to claim any share from the estate of deceased Devasahayam. The defendants 3 an 4 claiming right under a registered WILL and partition from D.Alos Roy, who was the third defendant in O.S.No.66/1975 and the widow of Devasahayam who was the first defendant in O.S.No.66/1975. On 19.10.1976, a judgment was passed declaring that the plaintiff is not entitled for the relief of partition of 2/9th share in the suit properties. In the result, the Suit was dismissed. She filed an appeal against the decree and judgment in A.S.No.554/1977 and the same was dismissed on 08.09.1980. Against which, the plaintiff's mother has not preferred any appeal and the judgment and decree with respect to her claim of partition in the Suit properties had become final. When the plaintiff's mother herself does not have any legal right to claim partition, the plaintiff who is claiming under his mother is also not entitled to claim 5/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 partition as he also does not have any legal right and the Suit is barred by res-judicata. The defendants 1 and 2 and the father of defendants 1 and 2 and his brother D.Alos Roy were enjoying their respective shares as per the registered partition deed No.2467/1988 and have become absolute owners and were in exclusive possession and enjoyment. After their death, the defendants have become absolute owners and in exclusive possession and enjoyment of the property. The partition deed of the year 1988, WILL of the year 2004 and mutation of revenue records were not challenged by the plaintiff's mother during her lifetime who died on 28.08.2010. The plaintiff on illusory cause of action has filed this present Suit in the year 2014 which is hopelessly barred by limitation. Therefore, the defendants prayed for dismissal of the Suit as not maintainable in law, barred by limitation and hit by res-judicata.
6. The Trial Court framed the following issues:-
"1.Whether the plaintiff's mother filed earlier suit for partition and whether it was dismissed?
2.Whether the suit decree was operated as Res-judicata?6/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
3.Whether the plaintiff is entitled to the partition of the suit properties?
4.What relief?"
7. During trial, the parties have agreed to decide the issue Nos.1 and 2 as preliminary issues. Exs.B1 to B4 were marked on the side of the defendants.
8. After hearing both the sides, the preliminary issues were decided. The preliminary issue was that whether the Suit was hit by res-judicata or not. The Trial Court has considered the factum of filing of the previous Suit in O.S.No.66/1975 by Ex.B1 - plaint, Ex.B2 - written statement, Exs.B3 and B4 - judgment copy of the Sub Court, Nagercoil dated 19.10.1976 in O.S.No.66/1975, come to a conclusion that the previous Suit was filed and a decree was passed against the plaintiff's mother disentitling her to get a share in the property. An argument was advanced that the previous Suit was dismissed following a judgment of the Division Bench in D.CHELLYAH NADAR VS. G.LETHA BAI [1977 (1) MLJ 451] that the Christians permanently residing in Kanyakumari District are governed by Travancore Christian Succession Act, Regulation 7/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 II of 1092 and that they were not excluded by virtue of Section 6 of the Central Act III of 1951. Therefore, the Travancore Christian Succession Act, Regulation II of 1092 was held applicable to the plaintiff's mother and as per which, the plaintiff's mother is not entitled to get partition. It is also brought to the notice of the Trial Court and the judgment of the Hon'ble Supreme Court in MARY ROY VS. STATE OF KERALA AND OTHERS [AIR 1986 SC 1011 = 1986 (2) SCC 209] wherein Indian Succession Act override Travancore Cochin Christian Succession Act and as per the judgment, Travancore Cochin Christian Succession Act stood repelled. The judgment in Mary Roy's case (cited supra) was followed by the Apex Court in several of its decisions. Therefore, the change of law would render the judgment erroneous and no res-judicata will be applicable on the erroneous application of law. However, the Trial Court following the judgment of this Court in PALAYYAN AND OTHERS VS. ISRAVEL (DIED) AND OTHERS [2017 (4) LW 950] has held the Suit is hit by res-judicata and dismissed the same. Against the decree and judgment of the Trial Court in the above Suit, dated 12.07.2018, the appellant herein preferred a Civil Revision Petition under Article 227 of the Constitution of India in CRP (MD) SR No.45053 of 2018. This Court by its order dated 28.02.2019 has held that the Civil Revision Petition is 8/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 not maintainable and the plaintiff has to file a regular First Appeal under Section 96 CPC. Accordingly, the plaintiff preferred the above Appeal.
9. The appellant herein has raised the ground that the Suit has been filed for declaration declaring the partition deed, WILL and consequential partition executed by their successor as null and void and therefore, is based on different cause of action. The previous Suit filed by the mother was not dismissed on merits but only on the ground that on the application of Transaction Christian Succession Act and exclusion of Indian Succession Act 1951. When the subject matter is not the one and the same and it was not decided on merits, the question of res-judicata will not apply. In Mary Roy's case (cited supra) the Hon'ble Supreme Court has declared that Christians are governed by Indian Succession Act, 1925 and not under the Travancore Christian Succession Act, 1092 and therefore, the erroneous decision of the Court will not operate as res-judicata and therefore, the Suit is very much maintainable and the illegal action of his maternal uncle are liable to be set aside. The Trial Court has failed to apply principles of res-judicata as held in SATYENDRA KUMAR AND OTHERS VS. RAJ NATH DUBEY AND OTHERS [AIR 2016 SC 2231]. The case should have been independently 9/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 decided on its own merits and dismissed on the preliminary issue is erroneous. On these grounds, the learned counsel would make his submissions.
10. On the basis of the above Memorandum of Grounds of Appeal, the following points are taken for consideration:-
(i)Whether the plaintiff has any legal right to maintain the Suit?
(ii)Whether the Suit is barred by limitation?
(iii)Whether the Suit is barred by res-judicata?
(iv)Whether the Suit is bad for partial partition?
11. The admitted facts are that the grandfather of the parties namely Late Devasahayam had purchased the property as per Sale Deed No.49/1955 at the Office of the Kanyakumari District Registrar at Nagercoil. The said Late Devasahayam had two sons and one daughter, namely D.Giles Lal, D.Alos Roy and D.Adeline Kanthimathi. The plaintiff is the son of D.Adeline Kanthimathi, the daughter of Late Devasahayam. Defendants 1 and 2 are the sons of D.Giles Lal. Defendants 3 and 4 are the legatees of D.Alos Roy, as per his WILL dated 27.02.2004. 10/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
12. It is noted that the plaintiff's mother filed a Suit in O.S.No. 66/1975 for a relief of partition of landed and house properties mentioned therein. In the plaint in O.S.No.66/1975, there are two schedule mentioned. "A" Schedule pertains to 9 items of landed properties and "B" Schedule pertains to a house site measuring 20 Cents. From the perusal of the judgment passed in O.S.No.66/1975, it is noted that the Trial Court has taken up the issue that the main question is whether inheritance is governed by Indian Succession Act or Travancore Christians Succession Act. Following the judgment in D.CHELLYAH NADAR VS. G.LETHA BAI [1977 (1) MLJ 451] the Trial Court has come to a conclusion that the plaintiff's mother is not entitled to the relief of partition of her 2/9th share in the Suit properties and dismissed the Suit as per the prevailing law in force. On appeal in A.S.No.554/1977, this Court by its judgment dated 08.09.1980 followed the very judgment of the Division Bench and dismissed the appeal.
13. It is important to note that the grandfather of the plaintiff died as early as on 11.02.1970 itself. Thereafter, there was a partition between the sons of Devasahayam namely D.Giles Lal and D.Alos Roy 11/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 and brothers of Devasahayam in the year 1975. In a partition deed dated 29.01.1975, the properties in "A" Schedule in O.S.No.66/1975 was allotted to the sons of Devasahayam as his share. After the partition happened between the brothers of Devasahayam and his sons, the plaintiff's mother has filed a Suit for partition of "A" Schedule of properties derived from the partition and "B" Schedule and against the self acquired properties of Devasahayam in the "B" Schedule of the plaint. The Suit was dismissed on 19.10.1976 on the ground that the Christians who are permanent resident of Kanyakumari District. The inheritance of Christians are permanent residents of Kanyakumari District is governed by Christian Succession Act. The decree and judgment was confirmed by this Court in A.S.No.554 of 1977 on 08.09.1980. Thereafter, the plaintiff's parents said to have purchased the property in another street and settled down there. The judgment of the Hon'ble Supreme Court in Mary Roy's case (cited supra) came to be pronounced on 24.02.1986 and reported in 1986 (2) SCC 209. After that, the plaintiff's mother lived upto 28.08.2010 and she has not taken any action on the basis of the above said judgment.
14. In this background, the above points for consideration have to be analysed. As stated above, the plaintiff's mother had suffered a decree with regard to her claim against her brothers who have partitioned 12/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 the property. The decree and judgment has become final and she had acquiesced the decree and judgment and had not chosen to litigate even after the judgment of the Hon'ble Supreme Court in Mary Roy's case (cited supra). When the mother of the plaintiff herself was disentitled from claiming any share, the plaintiff in any view will not get any fresh right to sue against the legal representatives of his maternal uncle. As such, the plaintiff's mother does not have any legal right to sue and naturally the plaintiff who is claiming right of partition under his mother will also not have any legal right to sue.
13/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
15. It is pertinent to note that the partition between the plaintiff's grandfather and his brothers had taken place after the demise of his grandfather on 11.02.1970. The partition happened between his maternal uncle and the brothers of plaintiff's grandfather on 29.01.1975. By virtue of this partition deed, the properties were allotted to the plaintiff's maternal uncle. There was no challenge to the partition made in the year 1975. The plaintiff has chosen to seek for partition only with regard to the B Schedule properties which are the self acquired properties of his grandfather Devasahayam through his mother. Admittedly, his mother claimed partition for the properties owned by Devasahayam in his entirety viz., A and B Schedule properties in O.S.No.66/1975. In view of the delay in challenging the partition deed dated 29.01.1975, it appears that the plaintiff has chosen to claim only with respect to B Schedule property. In that view of the matter, the Suit is bad for partial partition as not claimed share in all the properties of grandfather.
16. Admittedly, the partition deed dated 29.01.1975 was not challenged. Thereafter, during the lifetime of his mother, there was a partition between the maternal uncle of the plaintiff namely D.Giles Lal and D.Alos Roy in the year 1988. His mother has not challenged the 14/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 partition even after the pronouncement of the judgment in Mary Roy's case (cited supra). Even though the limitation of three years is provided for setting aside the appending documents and to file a Suit for declaration, as per Article 59 of the Limitation Act, no such Suit was filed by the plaintiff's mother. Even assuming that no limitation is prescribed, as per Article 113 of the Limitation Act, 1963 the Suit should be filed within a reasonable period, i.e., three years when the right to sue accrues. But the plaintiff as well his mother have not chosen to challenge the partition entered between the sons of Devasahayam in the year 1988. Even thereafter, D.Alos Roy maternal uncle of the plaintiff executed a WILL on 27.02.2004. That was also not challenged in the manner known to law within the limitation period and that the subsequent partition which happened between the legatees of D.Alos Roy in the year 2009 was also not challenged in time. Thus, the totality of the circumstances would got to show that the prayer made in the Suit for declaration declaring the partition deed, is hopelessly barred by limitation. Going one step ahead, even assuming that res-judicata will not apply, the Suit is barred by limitation.
17. The learned counsel appearing for the appellant would vehemently contend that the principles of res-judicata will not operate 15/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 against an erroneous decision of a pure question of law. He would rely on the judgment of the Hon'ble Supreme Court in CANARA BANK VS. N.G.SUBBARAYA SETTY AND ANOTHER [AIR 2018 SC 3395]. The relevant portion of the said judgment is extracted hereunder:
"32.Since Mathura Prasad (supra) followed the Full Bench judgment of the Calcutta High Court in Tarini Charan Bhattacharjee and others v. Kedar Nath Haldar, AIR 1928 Calcutta 777 (at 781-782), it is important to set out what the Full Bench said in answer to the question posed by it – namely, whether an erroneous decision on a pure question of law operates as res judicata in a subsequent suit where the same question is raised. The answer given by the Full Bench is in four propositions set out hereinbelow:
“(1) The question whether the decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances, the Court shall not try a suit or issue, but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these 16/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 circumstances, it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not accordingly, as it conceives the previous decision to be right or wrong. To say as a result of such disorderly procedure that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.
(2) In India, at all events, a party who takes a plea of res judicata has to show that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and also that it has been heard and finally decided. This phrase “matter directly and substantially in issue” has to be given a sensible and businesslike meaning, particularly in view of Ex. 4,Section 11, Civil P.C., which contains the expression “grounds of defence or attack”. Section 11 of the Code says nothing about causes of action, a phrase which always requires careful handling. Nor does the section say anything about points or points of law, or 17/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 pure points of law. As a rule parties do not join issue upon academic or abstract questions but upon matters of importance to themselves. The section requires that the doctrine be restricted to matters in issue and of these to matters which are directly as well as substantially in issue.
(3) Questions of law are of all kinds and cannot be dealt with as though they were all the same.
Questions of procedure, questions affecting jurisdiction, questions of limitation, may all be questions of law. In such questions the rights of parties are not the only matter for consideration. The Court and the public have an interest. When plea of res judicata is raised with reference to such matters, it is at least a question whether special considerations do not apply.
(4) In any case in which it is found that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and has been heard and finally decided by such Court, the principle of res judicata is not to be ignored merely on the ground that the reasoning, whether in law or otherwise of the previous decision can be attacked on a particular point. On the other hand it is plain from the terms 18/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 of Section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.”
33. Given the conspectus of authorities that have been referred to by us hereinabove, the law on the subject may be stated as follows:
(1) The general rule is that all issues that arise directly and substantially in a former suit or proceeding between the same parties are res judicata in a subsequent suit or proceeding between the same parties. These would include issues of fact, mixed questions of fact and law, and issues of law.
(2) To this general proposition of law, there are certain exceptions when it comes to issues of law:19/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
(i) Where an issue of law decided between the same parties in a former suit or proceeding relates to the jurisdiction of the Court, an erroneous decision in the former suit or proceeding is not res judicata in a subsequent suit or proceeding between the same parties, even where the issue raised in the second suit or proceeding is directly and substantially the same as that raised in the former suit or proceeding. This follows from a reading of Section 11 of the Code of Civil Procedure itself, for the Court which decides the suit has to be a Court competent to try such suit. When read with Explanation (I) to Section 11, it is obvious that both the former as well as the subsequent suit need to be decided in Courts competent to try such suits, for the “former suit” can be a suit instituted after the first suit, but which has been decided prior to the suit which was instituted earlier. An erroneous decision as to the jurisdiction of a Court cannot clothe that Court with jurisdiction where it has none. Obviously, a Civil Court cannot send a person to jail for an offence committed under the Indian Penal Code. If it does so, such a judgment would not bind a Magistrate and/or Sessions Court in a subsequent proceeding between the same 20/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 parties, where the Magistrate sentences the same person for the same offence under the Penal Code. Equally, a Civil Court cannot decide a suit between a landlord and a tenant arising out of the rights claimed under a Rent Act, where the Rent Act clothes a special Court with jurisdiction to decide such suits. As an example, under Section 28 of the Bombay Rent Act, 1947, the Small Causes Court has exclusive jurisdiction to hear and decide proceedings between a landlord and a tenant in respect of rights which arise out of the Bombay Rent Act, and no other Court has jurisdiction to embark upon the same. In this case, even though the Civil Court, in the absence of the statutory bar created by the Rent Act, would have jurisdiction to decide such suits, it is the statutory bar created by the Rent Act that must be given effect to as a matter of public policy. (See, Natraj Studios (P) Ltd. v.
Navrang Studios & Anr., (1981) 2 SCR 466 at 482). An erroneous decision clothing the Civil Court with jurisdiction to embark upon a suit filed by a landlord against a tenant, in respect of rights claimed under the Bombay Rent Act, would, therefore, not operate as res judicata in a subsequent suit filed before the Small Causes Court between the same parties in respect of the 21/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 same matter directly and substantially in issue in the former suit.
(ii) An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions. We have seen how, in Natraj Studios (supra), it is the public policy of the statutory prohibition contained in Section 28 of the Bombay Rent Act that has to be given effect to.
Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise 22/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 special principles of law are fastened upon parties when special considerations relating to public policy mandate that this cannot be done.
(iii) Another exception to this general rule follows from the matter in issue being an issue of law different from that in the previous suit or proceeding. This can happen when the issue of law in the second suit or proceeding is based on different facts from the matter directly and substantially in issue in the first suit or proceeding. Equally, where the law is altered by a competent authority since the earlier decision, the matter in issue in the subsequent suit or proceeding is not the same as in the previous suit or proceeding, because the law to be interpreted is different."
18. The Hon'ble Supreme Court has illustrated the exceptions to the issues of law. The first exception is that when a decision is made by an incompetent Court or the Court without jurisdiction that will not operate as res-judicata. That situation does not arise in this case whereas it is categorically held by the Courts below that the Sub Court, Padmanabhapuram, Sub Court, Nagercoil are competent to try a partition Suit. Therefore, it cannot be said that the Court which decided the issue on 23/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 the previous round of litigation between the same parties on the very same subject matter on the very same cause of action and on merits, are without jurisdiction. Secondly, the erroneous decision on the erroneous interpretation of the statute inter parties cannot stay at any statutory course of the legislation. In such cases, the statutory prohibition in the former Suit which were given effect or not given the effect will not operate as res-judicata. Thirdly, when the matter in issue in the subsequent Suit are proceeding in the same way as in the previous Suit are proceeding, the law which is altered by the competent authority will not operate as res-judicata.
19. But in the instant case, these exceptions will not apply as the law prevailing at that point of time was rightly applied in consonance with the statutes and the subject matter in issue in the previous Suit and the present Suit are one and the same. The parties who are claiming right under the parties in the previous Suit. Therefore, the principles of res-judicata will apply even the judgment rendered by the Division Bench of this Court in D.CHELLYAH NADAR VS. G.LETHA BAI [1977 (1) MLJ 451] was held to be erroneous in a subsequent proceedings. As far as the decree and judgment between the parties in O.S.No.66/1975 has 24/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 become final, it will operate as res-judicata and subsequent development will not give a fresh cause of action action to the parties.
20. In the judgment of the Hon'ble Supreme Court in PRADEEP KUMAR MASKARA AND OTHERS VS. STATE OF WEST BENGAL AND OTHERS [2015 (2) SCC 653] it has been held as under:
"23. At the very outset, we notice that Ganga Dhar Singh case was not decided by a Division Bench of the Calcutta High Court as observed by the Tribunal. In the year 1984, the appellants challenged the notice of vesting of their land by filing a writ petition which was allowed and the notice of vesting was quashed. On the basis of the said order passed by the High Court, the appellants moved the Tribunal for correction of the revenue record. The Tribunal kept the matter pending for a long time and only in the year 2002 by order dated 20.02.2002 dismissed the application holding that the Division Bench of the High Court in a subsequent decision in Ganga Dhar Singh case held otherwise.25/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
24.At the very outset, we are of the view that the Tribunal has no jurisdiction to differ with the decision given by the Calcutta High Court in the writ petition filed by the appellants. The Tribunal further committed grave error in following the decision in Ganga Dhar Singh case treating it to be a Division Bench judgment of the Calcutta High Court when as a matter of fact the decision in Ganga Dhar Singh case was decided by a Single Judge of the High Court. Even the judgment passed in the appellant's writ petition filed in 1984 was neither considered nor distinguished.
25.In the background of these facts, in our considered opinion, when the judgment rendered by the Calcutta High Court in the case of the appellants and the said decision having not been quashed or set aside by a larger Bench of the High Court or by this Court, the Tribunal ought to have refused to follow the order of the High Court.
26.It is well settled that even if the decision on a question of law has been reversed or modified by subsequent decision of a superior court in any other case 26/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 it shall not be a ground for review of such judgment merely because a subsequent judgment of the Single Judge has taken contrary view. That does not confer jurisdiction upon the Tribunal to ignore the judgment and direction of the High Court given in the case of the appellants.
27.In the aforesaid premises, the order passed by the Land Tribunal is erroneous in law. The High Court also fell in error in affirming the order of the Tribunal, hence these orders cannot be sustained in law."
21. In the judgment of the Hon'ble Supreme Court in ISHWAR DUTT VS. LAND ACQUISITION COLLECTOR AND ANOTHER [2005 (7) SCC 190] it has been held as under:-
"18. In the Reference Court or for that matter the High Court exercising its appellate jurisdiction under Section 54 of the Act could not have dealt with the said question. The principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply.27/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019
19. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Ed., pg. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as `cause of action estoppel' and `issue estoppel.'
20. In Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr., [1999] 5 SCC 590, this Court observed :
"Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation.28/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum..."
21. In `The Doctrine of Res Judicata' 2nd Edition by George Spencer Bower and Turner, it is stated:
"A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it...."
22. Reference, in this connection, may also be made to Ram Chandra Singh v. Savitri Devi and Ors., JT(2005) 11 SC 439.
23. Yet recently in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., JT (2005) 29/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 4 SC 472 in which one of us was a party, this Court observed:
"The object and purport of principle of res judicata as contained in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject- matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment.
The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment."
It was further noticed:
"In Ishwardas v. the State of Madhya Pradesh and Ors., AIR (1979) SC 551, this Court held:30/40
https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 "...In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim..."
24. Yet again in Arnold v. National Westminster Bank Plc., [1991] 3 ALL ER 41, the House of Lords noticed the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a 31/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also bar is complete to relitigation but its operation can be thwarted under certain circumstances. The House then finally observed: but there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success.
31. In any event, the directions issued by the court stood complied with. Having regard to Section 32/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 18 of the Act or otherwise the wheel cannot be turned back.
32. We must also note that the question raised by the learned Judges of the High Court was not raised by the Respondents although having regard to the decision of this Court in Dharam Das (supra) it was available."
22. The Hon'ble Supreme Court in UNION OF INDIA VS. MADRAS TELEPHONE SC & ST SOCIAL WELFARE ASSOCIATION [2006 (8) SCC 662] has observed as under:-
"21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal's case have been upheld or recognized by Court or Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment reported in 1997 (10) SCC 226. Since the 33/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly. "
As per the above judgments, it is well settled that when the cause of action is the same and identical to that of the earlier proceedings, later having been litigated between the same parties having involved in the same subject matter is barred is absolute. In the instant case, the cause of action for filing the Suit is based on the right of the plaintiff's mother to claim share in her father's property. That right was negatived in the previous round of litigation. Once the right of a party is determined, that determination cannot be revived by taking some other cause of action. Admittedly, the subject matter is one and the same, the parties under whom they claim right are also the same and a decision on merits according to the law prevailing at that point of time was taken on merits and it reached finality and the parties have not chosen to raise an issue even after the changed circumstances. Even though the party is not entitled to re-litigate on the decided issue after the alteration of law or legal 34/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 position, the principles of res-judicata will apply to the case on hand. The Trial Court relying on the judgment of this Court in PALAYYAN AND OTHERS VS. ISRAVEL (DIED) AND OTHERS [2017 (4) LW 950] has held as under:
"17. When Evidence of DW1 analysed, it could be seen that the defendants claim right right only on the basis of Ex.B4, Ex.B3 and Ex.B40 which are already exhibited in O.S.No.665 of 1968. His evidence also clearly shows that his father was fourth defendant and he is also aware of the fact that his father and his brothers have filed A.S.No.93 of 1972 before the District Court against the judgment and decree in O.S.No.665 of 1968. Though he claims to aware of filing of the appeal, he pleads ignorance of the dismissal of the appeal. His evidence clearly indicate that his predecessor-in-title namely father and his uncle hotly contested the suit in O.S.No.665 of 1968. Though the previous suit in O.S. No.665 of 1968 has filed for redemption of mortgage, the main issue in the above suit itself with regard to the right of the plaintiffs entitlement in the suit property. As already stated, two specific issues were framed by the 35/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 Court and the parties went on trial and several documents were marked and the rights have been decided and the entitlement of the plaintiffs share has been substantially decided in the above suit. When the matter directly and substantially was an issue in a former suit, between one and the same parties, or between the parties under whom there are any claim, under the same title, a subsequent suit is barred by principles of res judicata. It is also well settled that the principles of res judicata operates not only against parties to suit, but also against whom claim right from such parties. Therefore, now the defendants cannot assail the decree and judgment passed in O.S.No.665 of 1968 on the ground that it become nullity, since it was passed without impleading the necessary parties. To apply principles of res judicata it is immaterial whether the previous decision is right or wrong. Correctness or otherwise of the decree and judgment has no bearing upon whether or not operates as res judicata. Therefore, even assuming that the judgment suffers from some infirmity, the judgment between interparties binds a party if the judgment has been passed by the Court of competent jurisdiction. The decree and judgment in O.S.No.665 of 1968 is also marked as Ex.A3 36/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 and appeal suit is also marked as Ex.A4. Therefore, the plaintiffs right in the suit properties were already an issue in the earlier suit which was decided on merits. When the defendants, who claim the title through their predecessor in title and who were contesting parties in the earlier suit, their suit is certainly barred by principles of res judicata. Therefore, this Court does not find any infirmities in the judgment of the learned Trial Court decreeing the suit in O.S.No.38 of 1985 and dismissing the suit in O.S.No.30 of 1988. However, this Court is of the view to modify the preliminary decree in respect of item No.5 in O.S.No.38 of 1985 as far as the extent is concerned. Accordingly, the plaintiffs in O.S.No.38 of 1985 are entitled to ½ share in 4 cents (item No.5). With the above modification, the decree passed by the Trial Court in O.S.No.38 of 1985 is confirmed."
23. Reliance of the Trial Court on this judgment squarely applies to the facts and circumstances of the case. When the matter is directly and substantially is an issue in the former Suit between the one and the same party or between the parties under whom there are no claim, under the 37/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 same title the subsequent Suit is barred of principles of res-judicata. Even assuming that the judgment suffers from infirmity, it is binding between the parties. The above principle is based on very many judgments referred above. Therefore, this Court do not find any infirmity in the decree and judgment passed by the Trial Court.
24. The learned counsel for the appellant would rely on the judgment of the High Court of Kerala in O.YOHANNAN VS. VERONICA [AFA NO.44 OF 1998 DECIDED ON 25.08.2009]. In that case, the judgment was rendered on the basis of the non-existence of law after repeal of Travancore Christians Succession Act 1092. Therefore, applying a repeal law is erroneous and thereby, the judgment is without jurisdiction. It will fall under the exception provided in Canara Bank's case (cited supra). That judgment does not apply to the present facts and circumstances of the case.
25. The learned counsel for the appellant relied on a judgment of the Hon'ble Supreme Court in SATYENDRA KUMAR AND OTHERS VS. RAJ NATH DUBEY AND OTHERS [AIR 2016 SC 2231 = 2016 (14) SCC 49]. The Hon'ble Supreme Court has categorically held that the erroneous determination of pure question of law in a previous judgment 38/40 https://www.mhc.tn.gov.in/judis AS (MD) NO.87 OF 2019 will not operate as res-judicata in a subsequent proceeding for different property, though between the same parties. It is well settled that the erroneous decision as found in the judgment in Canara Bank's case (cited supra) will not operate as res-judicata. But in the instant case, the subject matter is not different but the same between the same parties and the parties under whom the right is claimed. Hence, the said judgment will not apply to the present case on hand.
26. In the result, the first appeal stands dismissed. No costs.
17.12.2020
Index : Yes/No
Internet : Yes/No
TK
39/40
https://www.mhc.tn.gov.in/judis
AS (MD) NO.87 OF 2019
M.GOVINDARAJ, J.
TK
To
The Principal District Judge
Principal District Court
Nagercoil.
AS (MD) NO.87 OF 2019
17.12.2020
40/40
https://www.mhc.tn.gov.in/judis