Ko. Perumal Naidu and another vs Aishama Bi and four others

Mohan, J.—This second appeal raises an interesting question as to how a resourceful litigant, allowing the title to abide by a particular

person later on turns round and save that the title so allowed was only for an ulterior purpose. On the contrary, he had no title at all since the sale

deed in his favour executed by the original owner was sham and nominal. This appears to be a legal conundrum at the first sight. But, if facts are

sated the conundrum will be visible for solution. The facts areas under :�The second appeal arises out of Original Suit No. 747 of 1972, on the

file of the District Munsif Court, Chingleput, wherein the first respondent as the plaintiff prayed for a declaration of her title to the suit property,

setting aside the order, dated 4th October, 1971 passed in E.A. No. 1492 of 1970 in O.S. No. 342 of 1967. The allegations in the plaint are to

the following effect. The plaintiff is the owner of the suit property which is described as ABCD in the plaint plan. She got the same by exchange

with one Vedagiri, original owner under Ex. A4, dt. 12th August, 1958. Afterwards she put up a thatched shed therein and remained in possession

till 1959. She orally let out the same to the first defendant on a monthly rent of Rs. 50 per mensem. When the first defendant defaulted to pay rent

and denied the plaintiff''s title to the land and the house, the plaintiff filed O.S. No. 342 of 1967 on the file of the District Munsif Court, Chingleput,

against the first defendant for declaration of her title to the suit property and also for recovery of possession. There was a further prayer for

recovery of arrears of rent and damages for use and occupation. The first defendant denied the plaintiff''s title and claimed that he had purchased

the property from the plaintiff in the beginning of 1956 and he was in possession in his own right. When the suit was pending, the plaintiff obtained

a sale deed from Vedagiri in the name of Govindaswami who was her henchman and in whom she had confidence nominally and through him she

filed O.S. No. 61 of 1968 against the plaintiff herein as the first defendant and the first defendant herein as the second defendant for declaration of

his title to the suit site and for possession thereof. Both the suits were tried together. The present plaintiff supported the title of Govindaswami in

O.S. No. 61 of 1968 and prayed that a decree may be passed in his favour. Both the suits were decreed as prayed for and the defendants therein

were directed to deliver vacant possession of the suit property to Govindaswami. The plaintiff executed the decree in his favour passed against the

first defendant herein in O.S. No. 342 of 1967. The second defendant claiming to have purchased the suit property from Govindaswami,

obstructed delivery of possession. The court directed the plaintiff to take notice to the second defendant as an obstructer. After notice the Court

passed an order dismissing the plaintiff''s petition under O. 21, R. 97, C.P.C., It is this order which is sought to be set aside in these proceedings.

The second defendant in his written statement contended that the plaintiff had no title to the suit site or the house therein and was never in

possession of the same, much less within 12 years prior to the suit. The suit property is not properly described in the plaint. The alleged exchange

deed is neither true nor valid and binding on the defendants. The alleged oral lease and its imaginary terms are all false. Govindaswami Naicker is

not the plaintiff''s confidant and he is a bona fide purchaser for proper and valid consideration from Vedagiri. His purchase is not nominal. It is true,

valid and binding on the plaintiff. She has submitted to a decree in O. S. No. 61 of 1968. The second defendant''s obstruction to delivery was

lawful, bona fide and on his known account. He is a bona fide purchaser for proper and adequate consideration. The order in E.A.No. 1492 of

1970 is correct and is not liable to be set aside. The alleged understanding between the plaintiff and Govindaswami is imaginary and certainly

Govindaswami was never a name-lender for the plaintiff. The prior action having became conclusive either it would constitute res judicata or the

plaintiff will be estopped from asserting her title as against Govindaswami or the successors-in-interest, the suit is barred by limitation. The plaintiff

is estopped from laying any claim by her own conduct in view of her failure to raise defence in the earlier suit. For all these reasons, the suit is liable

to be dismissed. There was another suit, O.S. No. 200 of 1972 in which the plaintiff also prayed for a declaration and possession that she had

purchased the suit property from one Kadar Saheb under a sale deed, dt. 2nd May, 1950 which came to be tried along with that suit ; that need

not concern us. Evidence was let in common. On a consideration of the entire evidence, the learned District Munsif, Chingleput, came to the

conclusion that the plaintiff''s suit O.S. No. 747 of 1972 had to be dismissed with costs. Aggrieved by the same, the plaintiff took up the matter in

Appeal No. 142 of 1975. The learned Subordinate Judge, Chingleput reversed the findings of the trial Court and held that the prior suit O.S. No.

61 of 1968 would not constitute res judicata and consequently decreed the suit. It is under those circumstances, the second appeal has been

preferred.

Mr. R. Sundaravaradan, learned counsel for the appellants/defendants would strenuously urge that in the earlier suit when Govindaswami

asserted his title in the presence of the present plaintiff/respondent it was her duty to put forth the nominality of the sale under Ex.B7, dt. 30th

November, 1967 whereas on the contrary, she stood by and accepted the title of Govindaswamy, both on the ground of public policy as well as

estoppel, her present claim will clearly be barred. The contrary finding rendered by the lower Appellate Court is not tenable. In support of his

submission, the learned counsel citing a decision in Jagannadh Vs. Perumal Naidu and Others, states that where on the showing of the plaintiff

herself she allowed Govindaswami to set up his independent title and then played a fraud upon the Court with an ulterior purpose of evicting a

tenant, she cannot again turn round and say in the present suit that Govindaswami''s title is bad because the sale deed executed by Vedagiri in his

favour is sham and nominal. Courts should come down upon such practice of fraud, (sic) said one of the decisions which he cited. Again, it is not

open to the plaintiff-respondent to say that in the earlier suit she could not raise this plea lest she would be non-suited, because there also as laid

down in Kambaia Sundararajamma v. Ramulu Chetty AIR 1932 Mad. 519, where on the admission of certain facts, if no issue was raised a

decree comes to be passed, that would constitute res judicata. In Subbathal v. Kitammal 83 L.W. 383 at 386, it was categorically laid down that

in certain circumstances a compromise decree would as well operate as res judicata.

As against this Mr. T. Rangaswami Iyengar, learned counsel for the respondents would urge that in the prior suit, the present plaintiff''s interest

was to see that the defaulting tenant was out of the picture, and if she had stated that the title in favour of Govindaswami was not there, because

when he came to purchase the property from Vedagiri under Ex.B7, dt. 30th November, 1967, it was a sham and nominal document, O.S. No.

61 of 1968 would have been dismissed. Unless and until she supported the title of Govindaswami, there was no possibility of evicting the tenant. In

those circumstances a plea of this nature about the sham and nominal character of the sale in favour of Govindaswami could not have been and

ought not to be raised. Therefore, the admission cannot constitute res judicata. However, it may under certain circumstances constitute an

admission ; but that can be easily explained as it is now sought to be done. For such a stand authorities are not wanting. The decision in Banwari

Lal and Others Vs. Sukhdarshan Dayal, clearly shows that the principle of estoppel can be conclusive only in respect of feeding a grant under S.

43 of the Transfer of Property Act. In Pullangode Rubber Produce Co. Ltd. v. State of Kerala, 1973-2-S.C.J. 538 it has been held that an

admission can be property explained. So also the decision in Jadho Nagu Bai v. Jadho Gangu Bai AIR 1958 A.P. 19, states that unless it would

constitute an estoppel an admission is not conclusive as to the facts admitted and they are capable of explanation.

First and foremost, it is necessary on my part to find out as to what exactly was the conduct of the respondent. On her own showing, earlier she

set up Govindaswami who was her henchman or was her helping hand to file Original Suit No. 61 of 1968 wherein she did not raise a plea that the

title of Govindaswami was sham and nominal. She stood by the title of Govindaswami mainly with the object of evicting the tenant. But that part of

the object need not concern us. We are only interested in finding out whether the prior decision in O.S.No. 61 of 1968 would either constitute res

judicata or at any rate estoppel so as to preclude her from asserting an independent title contrary to the earlier stand, Once she had meekly

submitted, we would call it so, because that is the way Mr. Rangaswami Iyengar would sum up the position of his client earlier and the decree was

passed in favour of Govindaswami, it means only, in my considered view that she did not think it worthwhile to contest that title of Govindaswami.

Here again, at the risk of repetition I should state we are not concerned with the purpose or the reason which motivated her to stand by the title of

Govindaswami. After having stood by the title of Govindaswami, it is not open to her now to say that Govindaswami''s purchase from Vedagiri

under Ex.B7, dt. 30th November, 1967 is sham and nominal. To my mind it appears, if the respondent-plaintiff is allowed to take such a plea, it

would amount to the Court assisting the party to play a fraud upon the Court. The reason why I say ''play fraud upon the court'' is that when she

had an opportunity to raise a defence, she would not raise the defence in relation to her title and having got the decree against the defendant, she

would say that the benefit of the decree should come to her. Precisely, under those circumstances, a Division Bench of this Court in Jagannadh Vs.

Perumal Naidu and Others, after referring to Flower v. Lloyd 10 Q.B.D. 295, held as follows:

While pointing out the nature of the fraud which would vitiate the prior judgment, James, L.J. with the concurrence of Thesiger, L.J. made the

following observations:

I have to add some observations which have been made by the Lord Justice Thesiger and in which he concurs. We have thought it right and due to

the defendants to go through the allegations made against them ; and their counsel, in fact, scarcely asked for any judgment except one based on

their acquittal of the fraud charged against them. But, we must not forget that there is a very grave general question of far more importance than the

question between the parties to these suits. Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present

sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a

judgment obtained in an action but adversely between two litigants sua juris and at arm''s length could be set aside by a fresh action on the ground

that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents

or of a machine, or of a process had been given ? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting,

and must be on one side or other, wilfully and corruptly perjured. In this case, if the plaintiffs had sustained to this appeal the judgment in their

favour the present defendants in their turn might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and

subordination of perjury : and so the parties might go on alternately ad infinitum. There is no distinction in principle between the old common law

action and the old. Chancery suit : and the Court ought to pause long before it establishes a precedent which would or might make in numberless

cases judgment supposed to be final only the commencement of a new series of actions. Perjuries, falsehoods, frauds, when detected must be

punished and punished severally : but in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not

forget the evils which may arise from opening such new sources of litigation amongst such evils not the least being that it would be certain to

multiply indefinitely the mass of those, very perjuries, falsehoods and frauds.

It was also held by the Bench of this Court at page 565 Page 173 Column 2 in 82 L.W. of the same decision that

the right of a party to insist on his opponent acting with truth and honesty in the conduct of the suit must in the interest of finality of litigation be

taken to be exhausted with the adjudication by the Court and because a person against whom a decree has been passed alleges that it was wrong

and that it was obtained by perjury committed by the other party, the proceedings cannot be said to be vitiated by collateral fraud

The Bench further held as follows :�

The fact that a person had no title to the property would not render the decree obtained by him as being vitiated by extrinsic fraud. It is the duty of

the defendants to raise all the pleas while defending the suit. If the plaintiff obtained a preliminary decree and also a final decree, it may be he may

have to hold the same for the benefit of the real owner in spite of Ex. B.15 or it may be that real owner may allow the plaintiff, benamidar to enjoy

the fruits of the litigation. Again, it may be that the plaintiff, after obtaining possession may hand over the properly to the real owner. These are all

considerations with which the defendants are not concerned The passing of the preliminary decree in favour of the plaintiff involves an adjudication

that the plaintiff is entitled to the properties and the effect of that adjudication cannot be reopened.

Therefore, it is more a matter of public policy rather than res judicata and that will debar the plaintiff/respondent from asserting her title in the

instant case. It would undoubtedly, constitute an estoppel. One need not go into the question of res judicata since different considerations may

apply if that docile were to be applied. If it is a case of estoppel, the ordinary law is that a person cannot turn round and take a different stand. It is

not a mere admission for Mr. Rangaswami to contend that such an earlier admission can be explained. By deed, by conduct and defence she has

stood by the title of Govindaswami. If this does not constitute an estoppel, nothing else would. Therefore, the ruling in Banwari Lal v. Sukhdanghan

Dayal AIR 1973 S.C. 815 for explaining away the admission as laid down in Pullangode Rubber produce Co. Ltd. v. State of Kerala 1973-2-

S.C.J. 538 would not apply to the instant case. However, in Jadho Nagu Bai v. Jadho Ganga AIR 1958 A.P. 19 it is stated that an admission is

not conclusive unless it is a case of estoppel. Therefore, I am of the view that the lower appellate Court erred in setting aside the dismissal of the

suit as done by the learned District Munsif. Accordingly, the decree and judgment, in O.S. No. 747 of 1972 on the file of the District Munsif

Court, Chingleput, are hereby restored. The suit will stand dismissed. The second appeal is allowed. However, there will be no order as to costs.