Malkiat Kaur vs Bant Singh

M.S. Liberhan, J.

Pir Buksh was the owner of the land in dispute on whose death his widow Mukhtiar Kaur succeeded. She died on 6th April, 1956. Bant Singh plaintiff filed a suit claiming onethird share in the land measuring 76 Kanals 15 Marlas vide registered Will dated 30th January, 1969 by her and claimed himself to be Pir Buksh''s son. The validity and legality of her Will dated 4th April, 1969 in favour of defendant No. 1 was challenged. It was averred that in the suit filed by Hakam Singh against the plaintiff as well as the defendant, claiming title to the property in dispute, the Will dated 30th January, 1969 in favour of the plaintiff was found to be valid, the will dated 4th April, 1969 in favour of the defendant invalid and resultantly the suit of Hakam Singh was dismissed. No appeal against the said judgment and decree was preferred. It was contended that since it was necessary to determine the validity of the two Wills on the basis of which the defendants in a suit filed by Hakam Singh were claiming their rights, and in order to give relief to Hakam Singh, the issue between the codefendants, the present plaintiff and the defendantappellant, was determined finally and it operated as resjudicata.

The defendantappellant controverted the said allegations, claimed herself to be the adopted daughter of deceased Mukhtiar Kaur, on the basis of adoption as well as by treatment as daughter, and claimed the property in view of Will dated 4th April, 1969. The validity of the Will in favour of the plaintiff was challenged.

The following issue, which was treated as preliminary, was framed by the trial Court :

`Whether the judgment and decree dated 30th April, 1974 passed by the Court of Shri G.C. Suman, Sub Judge, Ludhiana, operates as res judicata regarding the Will dated 30th January, 1969 in favour of Bant Singh plaintiff and the Will dated 4th April, 1969 in favour of Malkiat Kaur defendant ?"

The learned trial Court came to the conclusion that the judgment and decree dated 30th April, 1974 passed by Shri G.C. Suman, Sub Jude, Ludhiana, in the suit by Hakam Singh, operated as re judicata. Finding with respect to validity of respective Wills could not be gone into afresh. The suit of the plaintiff was decreed. The defendant preferred an appeal against the said judgment which was dismissed and the finding of the trial Court was confirmed. The judgment and decree of the Court below has been impugned through this appeal.

The only contention raised before me is that the earlier suit was not between the plaintiff and the defendant. The suit of the plaintiff therein, i.e. Hakam Singh having been dismissed on 30th April, 1974, in which the plaintiff and the defendant were codefendants, the defendantappellant had no right of appeal against a finding returned on an issue against her when the ultimate decree was in their favour, i.e., the suit of Hakam Singh was dismissed. The codefendants in the suit of Hakam Singh were not the aggrieved persons by the decree in the said suit. The finding on an issue amongst the codefendants cannot operate as res judicata inter se them in subsequent proceedings. The learned counsel for the appellant relied upon the judgments rendered in P. Venkobacharlu v. S. Radabayamma and others, A.I.R. 1924 Madras 858; M. Latchayya v. S. Koctamma and others, A.I.R. 1925 Madras 264; (2) Sm. Tarabai Mohata and others v. Union of India, A.I.R. 1971 Calcutta 225, Konda Lakshman Bapuji v. The State of Andhra Pradesh and others, A.I.R. 1974 A.P. 427 and Sm. Ganga Bai v. Vijay Kumar and others, A.I.R. 1974 S.C. 1126.

The contesting respondent controverted the contentions of the appellant and urged that it was absolutely necessary and essential to determine the validity of the Wills executed in favour of the plaintiff and the defendant, i.e., codefendants in Hakam Singh''s suit, in order to grant relief to Hakam Singh. Since the issue between the codefendants was determined and the suit dismissed, the affected defendant in the said suit had a right of appeal. Malkiat Kaur defendant in the said suit was the aggrieved person against the finding, holding the will in her favour to be invalid. It is a wellestablished and elementary principle of law that an aggrieved person from a judgment and decree can prefer an appeal though he may not be even a party to the proceedings.

I have gone through the judgments cited as well as the record of the case. In judgment, copy Exhibit P.1, a categorical finding has been given with respect to the will in favour of Malkiat Kaur defendant as fictitious. In order to give the relief to Haka Singh in the said suit, it was essential to determine the validity of the Will executed in favour of Malkiat Kaur, defendant or the Will executed in favour of Bant Singh, present plaintiff, without which no relief could have been given to the plaintiff in the said suit.

One of the objects of the principal of res judicata is to obviate the possibility of contradictory verdicts by two or more Courts with respect to the same facts. The basic test for determining whether an earlier decision operates as res judicata or not, is whether two inconsistent findings could be there, if the doctrine of res judicata or constructive res judicata is not applied. Neither the absence of right of appeal wipes out the findings nor affects their finality. The learned counsel for the respondent has relied upon Hari Parshad v. Mangat Ram and another, 1985 R.L.R. 232 in which it has been observed :

"It is wellsettled that a party against whom a finding is recorded has got a right of appeal even though the ultimate decision may be in his favour if the finding can operate as res judicata in a subsequent suit or proceedings."

The right of appeal was also dependent on the fact whether an earlier decision operated as res judicata inter se the parties. The object of the law being to give finality to a lis, and not to bring into existence two contrary findings on the same fact by competent Courts, the judgment given earlier on the issue operates as res judicata. It can also be said that the earlier finding operates as an estoppel. The learned counsel further relied upon Gita Ram Kalsi v. S. Prithvi Singh and others, A.I.R. 1956 Punjab 129. It has been observed in the said judgment in the following terms :

"But a question may well be asked what are the circumstances in which a person may claim that a judgment rendered in an action to which he was a party is not `res judicata'' as to the facts therein decided. The answer is simple and clear. A party to an action can escape the binding force of a former adjudication between the same parities only if he can satisfy the Court that he had no right to be heard in the earlier case or that he had no control over the proceedings."

It was further observed :

"A `Proforma'' defendant is joined as a party in a suit because his presence is necessary in order to enable the Court effectually and completely to adjudicate upon the matters in controversy between the parties. He does not enjoy any special rights or privileges which are not available to others and is as bound by decision of the Court as the other parties to the litigation."

In my view that appellant had a right of appeal against the finding returned against her being the aggrieved person. Apart from this, even otherwise, the appellant is estopped from reasserting her Will being valid when it has been found in the judicial proceedings by a Court of competent jurisdiction to be a fictitious will and in case the principles of estoppel and res judicata are not invoked, it will give rise to contrary judgment which will be against the principle of consistency in findings by the judicial process.

The judgments cited by the learned counsel for the appellant are neither pari materia on facts nor on law involved in the present case. In Ganga Bai v. Vijay Kumar (supra), it was a suit for enforcement of a mortgage. It was found that the partition set up was a sham transaction. Their Lordships held that no appeal against the said findings was maintainable as partition was not material for passing of decree for enforcement of the mortgage and decision with respect to the issue of partition was unnecessary for the decision of the suit. The matter relating to partition not being directly and substantially in issue in the suit, the findings were held not to operate as res judicata. But here in view of the facts and circumstances, it was essential to determine the validity of respective Wills executed in favour of the plaintiff and the defendant in order to grant relief to Hakam Singh plaintiff in the said suit.

In Smt. Tarabai Mohata''s case (supra), it was observed that since the finding was returned that the execution application was not maintainable in the present form, consequently all other findings were not required. Any adverse finding against the successful party could not operate as res judicata.

In Konda Lakshman Bapuji''s case (supra), it has been held that it is well settled that a party who has been adversely affected by the decree can alone appeal against it. The defendant may challenge a finding against him in a suit dismissed if the finding operates res judicata and is binding in future, i.e., in other words, if the decree against the plaintiff could not have been passed without deciding an issue against the defendant, the defendant could have properly challenged the decree. However, if the plaintiff''s suit can be dismissed without recording a finding against the defendant, yet a finding has been recorded, then such finding is of no consequence as the success or failure of the plaintiff''s suit is not interlinked with it, rather the same depends on the proof or otherwise of the plaintiff''s own title. If the plaintiff cannot get his right adjudicated upon without trial and decision of claims between the codefendants, the Court would try and decide the issue, and the defendants would be bound by it. After reiterating the following principles or res judicata between the codefendants, i.e.

(i) there must be a conflict of interest between the codefendants :

(ii) it should be necessary to decide that conflict in order to give the plaintiff an appropriate relief; and

(iii) there must be a decision of the question between the codefendants, their Lordships came to the conclusion that as the plaintiff''s suit was dismissed with a finding that he has no title to the suit land, it was not necessary to return a finding with respect to the title of the defendant. Thus, it was held that it did not operate as res judicata, while in the case in hand as observed earlier, it was necessary to determine the issue between the codefendants to effectively give a relief to the plaintiff.

In P. Venkobacharlu v. S. Radabayamma''s case (supra), it was found that the findings were neither implied in the decree nor they were so embodied. Consequently, the findings were found not to operate as res judcicata. Here, in this case the finding has been expressly given in the judgment and impliedly embodied in the decree. Therefore, the said finding operates as res judicata.

In view of my above observations, I find no force in the contention raised by the learned counsel for the appellant. No grounds have been made out to interfere in the findings of the Courts below. As such, the judgment and decrees of the Courts below are affirmed and the appeal is dismissed with no order as to costs.