Karnataka High Court
N. Sreekantaiah Alias M.N. ... vs M.N. Mallikarjunaiah on 10 April, 1995
Equivalent citations: AIR1996KANT193, ILR1995KAR2804, 1995(5)KARLJ684, AIR 1996 KARNATAKA 193, (1995) ILR (KANT) 2804 (1996) 1 BANKCAS 42, (1996) 1 BANKCAS 42
JUDGMENT
1. This is a second appeal by the plaintiffs. Both the courts below have declined to grant the relief as claimed by the plaintiffs seeking declaration of title over the suit properties and the consequential relief seeking possession over one of the properties being wet lands measuring 3 acres.
2. In the present case the facts are all undisputed. One Naganna had three sons viz. Nanjundappa, Channabasappa, Neelakant-appa. The relevant geneological tree may be reproduced:--
NAGANNA _____________________________________________________________ | | | | Nanjandappa Channabasappa Neelukantappa | Gowramma (wife) Nagappa |_____________________ | | Parvthamma Nagarathnamma (wife) (wife) | Defendant Plaintiffs (son) (sons & daughters) Channabasappa died issueless leaving behind him his wife Gowramma. After his death his brother Nanjundappa executed a maintenance deed Ex. P-8 dated 10-9-1946 giving the suit properties to said Gowramma being an old mud roofed house and wet land measuring 3 acres (hereinafter to be referred to as suit house and suit land). Gowramma gifted the suit land to the defendant, who is the stepbrother of the plaintiffs, under the deed dated 2-3-1966 (Ex. D-1). Prior to execution of the said gift deed the defendant, pursuant to some settlement between him and his father had executed a release deed dated 27-12-1965 (Ex. P-2) in respect of joint properties held by the family. Admittedly pursuant to the gift deed executed in favour of the defendant he took possession of the land. Since the date of the gift, the defendant is in possession of the suit land and his name has been duly entered in the revenue records.
3. It appears that apprehending disturbances at the hands of plaintiffs 1 and 2 the present defendant filed O.S. No. 467/67 seeking declaration of his title and restrainment of the present plaintiffs from interfering with his peaceful possession over the suit land. The suit was dismissed. On an appeal by him being RA No. 203/1989, the same was partly allowed and the suit was decreed in the following terms:
"The suit of the appellant praying for injunction restraining the defendants from interfering in the peaceful possession of the appellant over the suit property is decreed in the following terms:--
This injunction to remain in force till the property remains to the estate of the widow Gowramma and till the said Gowramma remains a member of the family of the defendants."
The judgment and decree in the aforesaid proceedings was based on a premise that in view of the maintenance deed (Ex. P-8) executed in favour of Gowramma she had acquired only a limited interest and therefore she could not have gifted any interest in excess thereto by executing a gift deed in favour of the defendant. The said judgment was delivered in complete ignorance of the statutory provisions incorporated under Section 14 of the Hindu Succession Act, 1956 (hereinafter in short 'the Succession Act'). Judgments in the said suit and the appeal are Exts. P-6 and P-7.
4. After the death of Gowramma, by relying on the judgment of the appellate Court in the previous proceedings being Ex. P-7 dated 31-8-1971, the present suit has been filed claiming the reliefs as aforesaid. The reformulated question of law requiring consideration in this appeal is-- "Whether the life interest acquired by Gowramma under the deed of maintenance dated 10-9-1946 (Ex. P-8) was not enlarged to full ownership by operation of Section 14(1) of the Hindu Succession Act, 1956 conferring absolute title over the suit land on the defendant under the gift deed dated 2-3-1966 (Ex. D-1) to the exclusion of the plaintiffs?"
5. The plaintiffs before the Courts below as well as before this Court have submitted that in view of the judgment in the earlier proceedings between plaintiffs and the defendant, the suit land has to be treated as having reverted to the family and defendant cannot claim any exclusive title over the same, since the said issue is now barred by the principle of res judicata as contained under S. 11 of the Code of Civil Procedure. Smt. Nagarathna, learned advocate appearing for the plaintiffs submits that no doubt, keeping in view S. 14 of the Hindu Succession Act, the limited interest of Gowramma acquired by her under Ext. P-8 got enlarged into full ownership with an absolute right of alienation but nonetheless since in the previous litigation she was held as having only a limited interest, the defendant is bound by the same. To substantiate her submissions she has relied on the decisions of the Supreme Court in the cases of Satyadhyan Ghosal v. Smt. Deorajin Debi and State of West Bengal v. Hemant Kumar Bhattacharjee , wherein it has been held that the principle of res judicata is based on the need of giving finality to judicial decisions and as such even a wrong decision by a competent court is as much binding on the parties as the right decision by such competent court. According to her even if a transaction which is otherwise prohibited by law is erroneously held to be valid, the same cannot be corrected keeping in view the principles underlying the doctrine of res judicata.
6. In the present case, so far as the facts are concerned, on which the parties claim right, title and interest are not at all in dispute. The only dispute is relating to the legal consequence flowing from those admitted facts. Both in the earlier proceedings as also in the present proceedings, the consequences were required to be ascertained by applying the relevant operative law on the subject. In. the earlier suit as is apparent from the judgment of the appellate court (Ex. P-7) S. 14 of the Hindu Succession Act, which was the only relevant statutory provision for deciding the rival claims of the parties was not even touched upon and the legal rights were decided on the basis of non est of Shastraic Hindu Law on the subject which had been expressly abrogated by S. 4 of the said Act. The question is as to whether a decision rendered on an issue in complete ignorance of a relevant statutory provision can operate as res judicata in a subsequent proceeding between the parties based on a different cause of actions.
7. In the case of Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy it has been held that :
"10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation as between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier pro ceeding between the same parties may not, for the same reason, be questioned in a sub sequent proceed ing between the same parlies.
But, where the decision is on a question of law, i.e., the interpretation or a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in S. 11, Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata. for a rule of procedure cannot supersede the law of the land."
8. Following the said decision in Supreme Court Employees Welfare Association v. Union of India it has been held that :
"24. Thus, a decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same."
9. Recently a Full Bench of the Andhra Pradesh High Court in the case of 3 ACES, Hyderabad v. Municipal Corporation of Hyderabad , has held as follows :
"If the cause of action is the same both in the former and subsequent proceedings, then the decision on an issue of law will be res judicata between the same parties. If the cause of action is not the same in both the proceedings, it will not operate as res judicata. When the law has, since the earlier decision been altered by a competent authority, that will not operate as res judicata.
(Para 18)"
10. In the earlier proceedings even on admitted facts the courts by overlooking the relevant statutory provisions sanctioned the plea that Gowramma even after 1956 had remained to be a limited owner of the property. Such a view on pure question of law cannot be allowed to operate as res judicata as held by the Supreme Court in Mathura Prasad's case (supra), otherwise a rule of procedure based on public policy of avoiding multiple litigation will have to be permitled to override the law of the land to which the court concerned has just remained oblivious. Taking a view of extending the rule of res judicata to such an extent like the one suggested by the appellants, will manifestly result in perpetuating a social injustice which the legislature intended to undo by engrafting specific statutory provisions.
11. I am of the considered view that an issue of law decided by turning a blind eye to the relevant statutory provision cannot be held to be conclusive and binding on the parties litigating subsequently on a different cause of action. Such a decision on a question of law is clearly per incuriam and cannot acquire the status of a binding decision even in between the parties. "Per incuriam" are those decisions given in forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong (see A. R. Antulay v. R. S. Nayak, .
12. In the present case, the bar of res judicata will not apply for another reason as well. This rule, if it has to apply with all its technicalities on an issue of law, then it can operate only if the two suits are based on the same cause of action. In the present case the cause of action in the two suits are apparently different. Earlier suit was filed by the defendant aggrieved by interference of the plaintiffs, whereas the present suit has been filed by the plaintiffs on an assertion of a right allegedly resulting from the death of Gowramma. Therefore, the plea of res judicata cannot be of any avail to the plaintiffs. Accordingly their plea of claiming title over the suit land being based on the maintenance deed dated 10th September 1946 (Ex.P-8) has to be negatived.
13. So far as the suit house is concerned, as already noticed, in view of S. 14 of the Hindu Succession Act, Gowramma had become absolute owner of this property as well. She has died intestate and accordingly the suit house has to devolve on her heirs in accordance with S. 16 of the said Act. But since the plaintiffs have not claimed their right as the only legal heirs of Gowramma nor there is any adjudication by the Courts below as to who are the other legal heirs in terms of S. 16 of the Act, this question cannot be gone into in the present second appeal In that view of the matter, as claimed by the plaintiffs, they are not entitled to any declaration of their exclusive title in respect of suit house. If so advised they may bring another action to claim their right as legal heirs before a court of competent jurisdiction.
14. For all the discussions as above, I am unable to grant any relief in this appeal, which is accordingly dismissed. Parties to bear their own costs of this appeal.
15. Appeal dismissed.