I.M.H. Ravindaranath and Another vs M.L. Hanumantha Rao and Another

V. Ramaswami, J.—O.S.A. No. 36 of 1978 has been filed by the plaintiffs in C.S. No. - 82 of 1975 and O.S.A. No. 14 of 1979 has been

filed by defendants 7 and 8 in C.S. No. 126 of 1972. Plaintiffs 3 and 4, and defendants 1 and 2 in C.S. No. 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 Nfludaliar consecrated Sri Sai Baba, his family deity, in a Sai Baba temple at Guindy, maintained by a Trust, called ''Sri Sathya

Sai Mandali''. This Sri Sathya Sai Mandali Trust, which will hereinafter be referred to as the ''Trust is managed by a Board of Trustees. Under a

Trust deed dated 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. No. 82 of 1975. By a gift deed dated 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. No. 126 of 1972, and this is also shown as B Schedule in C.S.

No. 82 of 1975. The suit C.S. No. 126 of 1972 was filed by the family deity and the Trust represented by the Trustees who are plaintiffs 1 and 2

and two of the sons of Loganatha Mudaliar as plaintiffs 3 and 4, for recovery of possession with mesne profits. Defendants 1 and 2 in this suit, as

already stated, are the sons of Loganatha Mudaliar. Defendants 4 and 6 are impleaded as parties since they claim to be the tenants under

defendants 1 and 2, and the appellants 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 licensees, in view of the relationship to Loganatha Mudaliar, since they refused to

vacate the premises the suit has 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. No. 126 of 1972, filed C.S. No. 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. joint family or separate property of

Loganatha Mudaliar,. and whether the trust deed executed by Loganatha Mudaliar on 3.2.1949 and the gift deed executed on 4.12.1946 were

valid.

It may be mentioned that the Trustees of the Trust filed, on an earlier occasion, two suits, O.S.Nos.2728 of 1960 and 2729 of 1960 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.No. 2728 of 1960 and the second defendant was the

defendant in O.S.No. 2729 of 1960.

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 self-acquired 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.

The suit O.S. No. 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 30.6.1958 was true, valid and

binding on defendants 1 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.

The appeal preferred against this judgment A.S. No. 373 of 1979 was dismissed on 3.10.1970 and the second appeal filed in this Court, in

S.A.No. 1743 of '' 1981, was also dismissed; the suit O.S.No. 2729 of 1960 was decreed ex parte and no further appeal or revision had been

filed against that order, and that had become final.

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 II and IV to Secll, C.P.C., but also de

hors the same on the ground that even if Section 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 issue 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 self-acquired properties of Loganatha Mudaliar, and not joint family properties and in that view,

decreed C.S. No. 126 of 1972 as prayed for.

So far as A and C Schedule 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. No. 82 of 1975 was barred by limitation. The learned Judge also made a note that A and C schedule

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 land since they are in possession of the same, the suit

should have been filed for setting aside the said sales 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. No. 82 of 1975 was also dismissed. It is against these two decrees the present

appeals have been filed.

In O.S.A. No. 36 of 1978, arising out of C.S. No. 82 of 1975, the appeal had already been dismissed, by an order of this Court dated

16.3.1986, as against respondents 2, 8, 9, 12 and 13, who are alienees of A and C schedule 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. NO. 126 of 1972,

and, therefore, a decision in O.S.A. No. 14 of 1979 will conclude their interest concerned in O.S.A. No. 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. No. 36 of 1978 and therefore O.S.A. No. 36 of 1978 will have to be dismissed.

As already stated, the subject-matter of the suit, O.S.A. No. 14 of 1979 is house bearing door No. 13, Big Street, Tripli-cane, 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 dated 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.

There would be no dispute that in the earlier suit O.S. No. 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 grand-father 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 learned 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 ''Kartha'' 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 Amritsagar Gupta and Others Vs. Sudesh Beharilal and Others, and M.

Narayanaswami Naidu (died) and Others Vs. Parvati Bai and Others, . The ''Headnote'' is as follows:

It is not necessary, in order that a decree against the Manager may operate as 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 or 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 ''Kartfca of the joint family, that he, as the, son of Loganatha Mudaliar, was en ; led 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

his individual capacity.

In the decision reported in M. Narayanaswami Naidu (died) and Others Vs. Parvati Bai and Others, , learned Justice P.V. Raja mannar, 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 grandfather''s property:

it would mean that 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 ; I be binding on the parties to those proceedings also. However, it

was contended that S.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 was limited to Rs. 50,000. The value as given in C.S. No. 126 of 1972 was Rs. 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. No. 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.

The Supreme Court in the decision in Jeevantha and Others Vs. Hanumantha and Others, , 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 has 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.

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 F s.

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 case, 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, therefore, the ratio of S.11, C;P.C., could be applied even to cases where the provisions are not strictly applicable.

In Daryao v. State of U.P., (1962) 1 S.C J. 709 : (1962) 2 An.W.R. 16 : (1962) 2 M.L.J. 1457(S.C), considering the question of principle of

applicability of res judicata, to Article 226 and Art 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 are individual 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 in dealing

with the fundamental rights in petitions filed under Article 32.

We may also usefully quote a decsion of this Court in S. Komarappa Goundan Vs. S. Ramaswamy Goundan, . In that case, the question for

consideration was as to the powers of the court to stay the suit u/s 10, C.P.C., It was held therein that the object of Section 10, C.P.C, being to

avoid conflicting findings being given in two different suits by two different forums even if in terms Section 10, C.P.C., is not applicable for staying

a later suit, the court could invoke its inherent power if it is in the interests 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 Section 11, C.P,C, is not applicable, the principles of res judicata

could be applied if the issues were directly in dispute between the parties in the earlier suit and there was a decision on merits after contest.

For the foregoing resons, we agree with the learned Judge that the findings in the earlier suit that the property which is the subject matter of

C.S. No. 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-

2-1946 and the trust deed dated 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 materials 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 suit on behalf of the appellants three other documents were produced in

this case, and they are Exs. No. D38, D39 and D40. The property which is the subject matter of the suit was purchased under Ex. P1 dated 21-

7-1919, for a sum of Rs. 8,000. The consideration for the same could not have come out of the sale proceeds in Ex. No. D38, D39 and D40 as

all those documents were long subsequent to the purchase under Ex. P''11. Ex. D38 is dt. 11-9-1919. Ex. D.39 is dated 24-8-1922 and Ex. D40

is dated 20-6-1923. However, It is contended by the learned Counsel, on the basis of certain recitals in Exs. D38 and D39 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 ha 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. D38 and D39 do not in any way show that the amount was in any way utilised for

discharging the loan obtained for purchase of the house 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 the 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. 3,000 was advanced by the wife of

Loganatha Mudaliar. In the circumstances, we are unable to hold that the property was purchased either out of the joint family funds or that it was

at any time thrown into the hotchpot. 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

self acquired property of Loganatha Mudaliar and that it has not been established to be joint family property in his hands.

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 O.S.A. No. 14 of 1979 fails and it is dismissed. In view of the findings in O.S.A. No. 14 of 1979, the appeal O.S.A.

No. 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 properties,

the properties are now in the possession of the alieness, and the appeals against them have already been dismissed except in regard to 11th

defendant/11th respondent and even in regard to him since neither the appellant nor his cousel are present, the appeal will have to be dismissed.

Accordingly, both the appeals are dismissed in their entirety. However, there will be no order as to costs.