Mt. Sarswati Jiwa Ram vs Ralla Ram Gonda Ram and Others

Chopra, J.—This appeal by the Defendants in a declaratory suit arises out of the following facts; Mst. Saraswathi, Appellant 1, made a gift of her entire estate in favour of Jai Dev, her daughter''s son, Appellant 2. Ralla Ram Respondent; a reversionary, challenged this gift on the allegation that snipe the parties were governed by custom and the property was ancestral he was the presumptive heir of Mst. Sarswati and consequently the gift was invalid and ineffective against his reversionary rights

The suit was resisted both by Sarswati and lat Dev They denied ''that the parties were governed by customer that the Plaintiff was entitled to succeed, tot preference to the daughter''s son and further pleaded that the matter had been decided in an earlier suit, the decisions wherein operated as-resjudicata. On merits, it was assert ed that -the gift in favour of the next heir was valid and binding on the reversioners, and therefore the Plaintiff had no locus standi to file the suit. The pleadings gave rise to the following issues:

Whether the present suit is barred by res judicata? O.D.

Whether the parties are governed by custom in the matter of alienation and succession. If so what that custom is? O.P.

Whether the property in suit is ancestral qua the Plaintiff and Defendant 3? O.P.

Whether the gift in dispute is valid? O.D.

Relief? O.P.

The parties are Brahmins of Brahman majra in Tahsil Sirhand. Jiwa Ram, Gainda Ram and Kanwar Sen were brothers. Jiwa Ram died leaving his widow Sarswati and three daughter''s daughters and one daughter''s son. Ralla Ram Plaintiff is the son of Gainda Ram, Kanwar Sen had left two sons. Bakhtawar Ram and Ram Nath.

Facts ofthe prior litigation, on which the objection of resjudicata is based, are these: Mst. Sarswati executed a lease-deed relating to her agricultural land in favour of Sham Lal and others. ''.: The land was previously mortgaged to Bakhtawar Ram for Rs. 464/-. Sarswati and the lessees applied to the Collector for its redemption and got an O. in their favour.

Bakhtawar Ram then brought a suit u/s 13 of the Redemption of Mortgages Act challenging the Collector''s O. and also for a declaration that, the lease-deed was invalid and ineffective as against the Plaintiff''s reversionary rights. As a mortgagee, he averred that besides the principal amount he was entitled to a sum of Rs. 500/-by way of improvements, etc. With that part of the case we are not here concerned.

The second claim was based on his being a reversionary of Mst. Sarswati, and as such he contended that the lease-deed was executed'' without authority and without legal necessity and that it was therefore ineffective against his reversionary rights. The suit was contested both by Sarswati and the lessees. One of the pleas taken in their joint written statement was that Bakhtawar Ram had no locus standi to file the suit in the presence of the daughter''s son, Jai Dev, and daughter''s daughters of Sarswati, who were the rightful heirs. Issues Nos. 4 to 7 related to this part of the case, and they are

Whether the Plaintiff is a collateral of Jiwa Ram husband of Defendant NO. 2? O.P.

Whether the Plaintiff has got any locus standi to challenge the Patta-Kasht O.P.

In case issue NO. 4 is proved whether the Patta-Kasht was made for legal necessity O.P.

Whether Mst. Sarswati has got any daughter''s son'' and daughter''s daughter, if so what is its effect on the suit? O.D.

At the time of arguments in the case, Bakhtawar Ram Plaintiff contended (though it was not specifically stated in the plaint) that the suit-land belonged to a coparcenaries, of which he was a member, and therefore Sarswati had no authority to alienate it and that Bakhtawar Ram was entitled to challenge the alienation even in the life time of Sarswati''s daughter''s son and her daughter''s daughters

The trial Sub Judge did not find in favour of the Plaintiff on these points and held that Jai Dev was the next heir and that in his presence the Plaintiff had no locus standi to file the suit. Issues Nos. 5 and 7 were therefore decided against the Plaintiff and this part of the Plaintiff''s suit was dismissed. The decision was upheld in appeal filed by Bakhtawar Ram. His petition for revision was dismissed1 by the High Court in liming.

The present suit was tried merely on the preliminary issue regarding res Judicata. The trial Court decided the issue in favour of the Defendant and held that the question as regards the law by which the parties were governed and as to who was the next heir of Sarswati was barred by resjudicata; and since it had already been decided in the earlier suit, which was a representative one, that Jai Dev was to succeed to the estate after Sarswati''s death, the Plaintiff had no right to impugn the gift.

The suit was consequently dismissed, but the parties were left to bear their own costs. In Plaintiff''s appeal, the District Judge took the view that the previous decisions did not operate as resjudicata because (1) Jai Dev was not a party to that case and (2) the question whether the parties were governed by custom or Hindu Law was not directly and substantially in issue. The appeal was consequently accepted and the case remanded to the trial Court for decision of the rest of the issues. The Defendants have now come in appeal against this appellate Order of the District Judge.

As regards the first ground relied upon '' by the District Judge, Dalip Chand, learned Counsel for the Appellants, contends that Jai Dev is only a representative-in-interest of Sarswati and since the latter was a party to the previous case Jai Dev too ought to be regarded as having been a party to it. The contention is irrefutable, Section 11, CPC applied not only to parties to the case but also to persons claiming under them.

Alienation of a part of the estate was in question in the previous suit. Sarswati while defending the suit represented the estate. The same is her position in the present case. Jai Dev s interest arises out of the gift by Sarswati in his favour. Since Jai Dev derives his title from Sarswati he would be bound by or entitled to the benefit of any previous decision against or in favour of Sarswati.

Mr. Handa, learned Counsel for the Respondents expresses his inability to support the judgment of the District Judge on the above ground. He, however, contends that Ralla Ram Plaintiff, who did not join the first suit, could not be deemed to have been a party by application of Explanation VI to S. 11, as held by the Courts below.

Explanation VI, according to the counsel, only applies to cases where recourse is taken to Order 1, Rule 8, CPC and the suit is brought in a representative capacity by leave of the Court. He further argues that, the right which Bakhtawar Ram claimed might have been common to others as well but Bakhtawar Ram in fact claimed that right only for himself and not on behalf of the others or in common with them,

Reliance in this connation is placed upon ''Magan Nath v. Harbans Singh'' AIR 1936 Lah 969 (AIR v. 23) (A); ''Mehr Mohammad Khan v. Adalat Khan'' AIR 1937 Lah 425 (AIR v. 24) (B), and '' Kumarandy Kudumban (died) and Others Vs. Venkatasubramania Aiyar and Others, There are, however, cases to which Order 1 Rule 8, CPC " applied and proceedings in which were started without the required permission because the claim though common with others, was based upon some individual right.

In ''AIR 1936 Lah 965 (AIR v. 23) (A)'', the suit was instituted by residents of the locality, with permission of the Court under Order 1, Rule 8, CPC for removal of encroachment on a walk property. The Defendant pleaded that the suit was barred by resjudicata by reason of the decisions in a previous suit on behalf of some others for the same relief.

The plea was not accepted because the plaint and the judgment in the previous suit showed that the Plaintiffs did not purport to sue or conduct the proceedings on behalf of the residents of the locality in a representative capacity. They merely sued to seek relief for .an injury done to them individually by infringement of a right which, they alleged, they enjoyed in common with some others.

In spite of an objection by the Defendant, the Plaintiffs made no attempt to amend the plaint or to comply with the requirements of Order l, Rule 8. CPC They preferred to fight the case in their individual capacity and not on behalf of the numerous other persons who in common with them might have been affected by the acts of Defendant complained of. It was under these circumstances that the rule of resjudicata was not held to be; applicable.

In '' AIR 1937 Lah 425 (AIR v. 24) (B)'', the suit was for a declaration that the Defendant was not authorized to close a thoroughfare used by the Plaintiffs from time immemorial. In a previous suit by some other persons against the same Defendant; the same right of thoroughfare was claimed; but the suit was not instituted in the interest Of any person, other than the Plaintiffs, nor was any private right common for themselves and others claimed1 by them. The notice enjoined in Rule 8 of Order 1, CPC was not issued. It was, therefore, held that the subsequent suit was not barred under Explanation VI of Section 11.

In AIR 1927 Mad 645 (AIR v. 14) (C)'', residents of several villages brought a suit for declaration of their exclusive right to fishery in a tank. The Defendants denied the Plaintiff''s right to fishery and contended that the suit was barred by resjudicata because of a previous decision in their favour.

It was held that where a party sets up his individual right which happens to be common to him and others, he cannot be said to be litigating, on behalf of the others; the suit would be a representative one where he puts forward a right-common to himself and others not only on his own behalf but on behalf of others as well, if he simply puts forward'' a right alleged to be common to him and others that alone would not make him. a representative of others.

Decisions in the above cases are of no- help to the Respondent for the facts here are absolutely different. Whether a Plaintiff, in a particular case, such: in a representative character or c Defendant is sued or defends in la representative character depends upon the facts of the case. Further, it depends upon the substance and No. the form of the pleadings.

It is not necessary that the title of the suit or pleadings should make it plain that the suit is not one in a representative capacity, nor is it necessary that the suit must have been brought in a representative capacity with leave of the Court as provided by Order 1, Rule 8, CPC That rule is not conclusive or exhaustive as to the mode in which a representative suit may be instituted of defended. The rule is only an enabling provision.

It lays down that where numerous persons;, are similarly interested1 in a suit one or more of them can, with the permission of the Court sue or be sued on behalf of themselves and such others. The first essential condition for the application of this rule is that ''numerous'' persons-should be interested in the suit.

The rule can have no application to the present case. Here there are only three or four reversionary having a common right to challenge the alienations of her estate by the widow. A suit'' by a reversionary for declaration that alienation made by a widow or other limited heir is void, except for her life, is always a representative suit ] on behalf of the reversionary, then existing or 1 thereafter to be born, and all of them have a '''' single cause of action arising on the date of the alienation.

The litigation is in respect of a private right claimed in common to himself and others and therefore Explanation VI to Section 11 clearly applies A decree fairly and properly passed in such a suit, whether it is for or against the reversionary, suing, operates as resjudicata for the whole body of reversionary. Inasmuch as a decree obtained''" or finding given in favour of a reversionary endures for the benefit of all members of the reversionary- body, a decree passed or finding arrived at against him injures the rights of other reversionary as. well.

The principle that suit by a reversionary Is always in a representative capacity and that a finding arrived at in that suit binds all the reversionary and all those who derive their title from them is now well established, vide ''Ven-katanarayana Pillai v. Subbammal AIR 1915 PC 124 (AIR v 2) (D); - '' AIR 1925 272 (Privy Council) - Maharaja Kesho Prasad Singh Vs. Sheopargash Ojha and Others, ''Challagundla Varamma v; Gopaladarayya'' AIR 1919 Mad 911 (AIR V 6) (PB) (G) and Ram BhaJ Ahmad Said Akhtar Khan'' AIR 1938 Lah 571 (AIR V 25) ''(H), On the basis of this Principle, the finding arrived at in the previous suit binds not only the Plaintiff in that suit but he entire -reversionary body, including Bala Bam Plaintiff.''

Another objection to the application of the rule of resjudicata half-heartedly urged by Mr. Handa is that the present suit was not tri able by the Court which decided'' the first suit. Counsel for gent that Plaintiff himself valued this suit for the purposes of jurisdiction at Rs. 1814/- which O. of the Court, was sub sequent amended Rs. 1,870/-. That makes the Auittrlable a Sub Judge III Class, who decided the earlier suit

Another requirement of Section 11 is that the parties to the previous suit must have been litigating under the same title. In this connection, Mr. Handa contends that Bakhtawar Bam instituted the previous suit as a mortgagee and his primary object was that his possession be not disturbed. That, however, is true only with respect to the first part of the suit, which has no relevancy to the present, case; Bakhtawar Bam combined two causes of action, and relief�s in one and the same suit.

The second part of the suit was based upon his claim as a reversioners and was brought in that capacity to challenge an alienation made by Mst. Sarswati. On that cause of action and for that relief, he was surely litigating .the-same title. With the findings on this part of his claim alone we are here concerned.

It has then to be determined whether any matter ''directly and substantially in issue in the first, suit is directly and substantially in issue In the present case. To constitute a matter directly "and substantially in issue it is not necessary that a distinct issue should have been raised upon it; it is sufficient if the matter was in issue in sub-stance."

''Again'' as laid down by Explanation IV to Section 11 any matter which might and ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit. The object of this explanation is to force the Plaintiff or the. .Defendant to rely upon all grounds of attack or defence which were open to him.

One of the grounds of defence taken in the previous suit was that Jai Dev, daughter''s son of Jiwa Ram was-the rightful heir to the estate''(after the death of his widow Mst. Sarswati) to preference to Bakhtawar Bam, and therefore, Bakhtawar Ram had no locus standi to contest the alienation This plea was made the subject "matter of issues Nos. 5 and 7, which have already, been reproduced.

These issues were taken together and finally decided against the Plaintiff, both by the trial Sub Judge and in Appeal by the District Judge. The Courts; did not accept the Plaintiff" contention that the find question was, coparcenaries property and no suited him on the finding that Jai Derives the .text heir of Sarswati. This is what the learned urge says on the point.

Now it has got to be seen whether the Plaintiff can still maintain this declaration suit when the property in dispute is not found to be coparcenaries property of the family. Jai Dev is clearly Mst. Sarswati''s daughter''s son and thus he is the daughter''s son of Jiwa Bam deceased who was the last male holder of this property. It is clear law that self-acquired or separate property of a deceased goes by succession to his daughter''s son if the latter is alive.

In the present case Jai Dev is the rightful heir to the property in dispute after the death of Mst. Sarswati. He will take property as absolute owner and on his death it will pass to the father of Jai Dev and so on. In this way the present Plaintiff can have no possibility of succeeding to this property.

It is true as argued from the Appellant''s side-that this is a suit for declaration only and so remote reversionary also can bring such suit. This argument however is of no force when it is found that the chance of succession for the Plaintiff to this property is so -remote that it amounts to practically no chance. The claim is more or so of a speculative nature".

The question whether Jai Dev was the next heir of Sarswati was thus directly and substantially in issue in that suit and it was heard and finally decided against the reversionary.

The answer depended upon the law by which the parties were governed''. under Hindu Law, unless the parties formed coparcenaries, the daughter''s son was entitled to succeed in preference to the reversionary. Probably, in view of the fact that the parties are high caste Brahmins, the Plaintiff did not dispute that they were governed by Hindu Law. He, on the other hand, alleged that the family was joint and the suit-land was a part of the coparcenaries property.

Under custom, collaterals of the last male holder within fifth degree generally succeed to his ancestral property in preference to a daughter or daughter''s son. Plaintiff in the present case relies upon custom to be the governing law and alleges that the property is ancestral. He further contends that this was not a matter directly and substantially in issue in the first suit. That no doubt was a matter which might and ought to have been made a ground of attack, and it would therefore be deemed to have been raised and'' decided. In any case, the decisive point as to who was the next heir did directly and substantially arise and was finally decided.

In the present case also the same matter is of principal importance. If Jai Dev is the next heir, a gift of her entire estate by Sarswati in his favour amounts to an acceleration of succession and would, therefore, be valid.

Section 11 not only bars the trial of a subsequent suit but also the trial of an issue which has been previously heard and Anally decided. The question as to who is the next heir of Sarswati having been already heard and decided between the parties cannot be allowed to be re-agitated. On the answer to that question alone rests the decision of issue No. 4. Since, Jai Dev must bather to be the next heir of Sarswati, issue No. 4 shall have to be decided in favour of the defend ants.

In view of my decision on issue No. 1, no useful purpose is going to be, served by sending the case back to the trial Court for deciding the rest of the issues. The. Respondent''s suit must .ultimately fail.

In the result, the appeal is accepted, the judgment and decree of the District Judge are se� aside and those of the trial Court restored. The parties are directed to bear their own costs throughout.