Durjati Subbayya vs Anantaraju Nagayya and Others

Varadachariar, J.—This is an appeal by the first defendant who seeks to defeat the claims of the plaintiffs as reversioners to the estate of one

Sundararamiah, by setting himself up as the adopted son of Sundararamiah. Sundararamiah admittedly died on the 5th March, 1878, and it is not

denied that he died of cholera. It is the appellant''s case that just before his death he orally authorised his wife to take a boy in adoption and that

the first defendant who is the son of a cousin of Sundararamiah was accordingly adopted by the widow about a year after Sundararamiah''s death.

This alleged adoption was the subject of adjudication in a suit for declaration instituted by the first plaintiff and his brothers so long ago as in

1883. (O.S. No. 877 of 1883.) In that litigation, the Court of first instance upheld the adoption; but, on appeal, the lower appellate Court held that

the adoption was invalid as not authorised by Sundararamiah or consented to by the sapindas. This decision was confirmed in second appeal by

this Court. The point for determination in this appeal is whether the decision in that litigation can operate as res judicata in the present litigation.

An argument seems to have been advanced before the lower Court that the present appellant who was a minor in 1883, was not properly

represented in the former litigation, because his guardian ad litem was his natural father who, being himself one of the reversioners to

Sundararamiah''s estate, must be taken to have had an interest adverse to that of the minor. As pointed out by the lower Court, it is impossible to

find that in the conduct of that litigation the appellant''s natural father had been guilty of any negligence or laches. Mr. Rajah Aiyar admits that

according to the decision of a Full Bench of this Court, the question of adverse interest is one of fact dependent upon the circumstances of each

case and in the absence of any basis for the suggestion that the guardian ad litem had in fact an adverse interest, there is no reason for presuming

that his interest must have been adverse simply because he might have had a claim as one of six reversioners.

The only question pressed before us by Mr. Rajah Aiyar accordingly is that as the former suit was instituted in the Court of the District Munsif of

Nellore, the decision is not that of a competent Court within the meaning of Section 11 of the Code of Civil Procedure, because that Court could

not have entertained the present suit by reason of its higher valuation. There are two answers to this argument either of which will suffice to dispose

of the appeal against the appellant.

It has always been recognised in this Court that in determining the question of competency for the purpose of Section 11, Civil Procedure Code,

the Court need not take into account any change in the valuation resulting from a mere rise in the market value of the properties involved. See

Giriya Chettiar v. Sabapathy Mudaliar I.L.R (1905) 29 Mad. 65. If the properties concerned in the two suits are the same, the fact that fifty years

ago they were worth only an amount, which would have brought a suit relating to them within the jurisdiction of a Munsif''s Court is no reason, for

holding a pronouncement of the Munsif''s Court in respect of title thereto not final merely because according to. the present-day market value the

same properties are worth more than the limit of the pecuniary jurisdiction of that Court. Applying this principle to the present case, it has not been

shown that the properties covered by the two suits are not substantially the same. We were told that two or three extra items are comprised in the

present suit and that one item included in the former suit does not find a place here because it has since been sold away in a revenue sale. Even

making allowance for the value of the items now newly included in the suit, the present suit would have been within the jurisdiction of the District

Munsif''s Court if it had been instituted in the year 1883. In this view the rule of res judicata will be applicable here, even according to the

conditions prescribed in Section 11, Civil Procedure Code.

Another ground on which our decision may be rested is afforded by Section 43 of the Specific Relief Act which deals in particular with

declaratory decrees passed u/s 42 of that. Act. Section 43 provides that a declaration made under this chapter is binding only on the parties to the

suit and persons claiming through them respectively. It will be noticed that this provision does not incorporate the limitations laid down in Section

11, Civil Procedure Code, as to the competency of the Court to deal with the latter suit. Mr. Rajah Aiyar suggests that after the enactment of a full

and self-contained provision in the CPC embodying the rule of res judicata, Section 43 must be practically ignored as no longer necessary,

because it was enacted at a time when there was no complete rule in the Code of 1859, Section 2 of that Code being very imperfect. In support of

this argument he relied, upon a note by Dr. Whitley Stokes under this section in his Anglo-Indian Codes. He also laid stress upon the language of

the section which is framed in restrictive words and contended that it could not have been the intention of the legislature to give a declaratory

decree a wider operation than is permissible under the rule of res judicata as recognised in the CPC and the only object of the section must have

been to remove any misapprehension that a declaratory decree would have any operation in the nature of a judgment in rem so as to bind even

persons not parties td ''the suit. We do not wish to minimise the force of these suggestions; but, on the other hand, we cannot ignore the policy

underlying the recognition of the jurisdiction of the Court to make declaratory decrees. It was the very object of that procedure that questions of

this kind should be adjudicated on at the earliest opportunity before evidence bearing upon them should be lost but that purpose will be

undoubtedly defeated by holding that decades afterwards, simply because of some difference in the pecuniary jurisdiction of the Courts concerned,

a declaration once obtained should become futile. Of the expediency, if not the necessity, of having a rule of finality, one cannot find a better

illustration than the present case itself because the appellant is now asking the Court to retry, fifty years after the event, the question whether a

dying man gave oral authority to his wife to make an adoption.

It has no doubt been held by the Judicial Committee in Gokul Mandar and Another vs. Pudmanund Singh and Others that on matters governed

by the Code, the Code must be treated as exhaustive, but the observations of Lord Davey in that very case show that the limitations as to

pecuniary jurisdiction embodied in Section 13 of the Code of 1882 (and Section 11 of the Code of 1908) are not part of the general principle of

res judicata as laid down in the Duchess of Kingston''s case. In the face of the express provision contained in Section 43 of the Specific Relief Act,

it is not necessary to invoke the provisions of the Code in a case like the present. We are accordingly inclined to think that an alternative ground of

decision in the present appeal is furnished by Section 43 of the Specific Relief Act, because it is not disputed that the question now arises between

the parties to the former suit.

On both the above grounds, the appeal fails and is dismissed with costs of Respondents 1 to 4.