Munyaraj vs Venkatapati and others

This is a second appeal by the plaintiff horn the judgment and decree of the District Judge, Medak, dated 10-1-1953, affirming the judgment of the Munsiff of Siddipet, who dismissed the suit mainly on the preliminary ground that it was barred by ''res judicata''.

In order to see whether the suit is so barred, a few facts need be noticed. It appears that Bhattu Ramayya, the second respondent was the owner of the suit house and Survey Nos. 151, 152. 157, 163, 169, 172, 175, 177, 192, 193 and 208 situate in Nimatta, Siddipet Taluq. By a registered instrument dated 2nd Isfandar 1351, he made a gift of these properties in favour of Bhattu Nar sayya, the third respondent.

Bhattu Venkatapati, the first respondent, thereupon brought suit No. 120 of 1355 F., renumbered 81 of 1355 F., on being restored to file, in the Court of the Munsiff of Siddipet for a declaration of ins status as being the adopted son of the second respondent and for cancellation of the deed of gift to the extent of a moiety alleging that the subject-matter of the gift were ancestral properties and the gift of more than half the share was not binding. The respondents 2 and 3 resisted the suit but ultimately the trial court decreed the suit on 30th Khurdad 1356 F., in terms of the prayer. On second appeal by the respondents 2 and 3, the learned Judges of the High Court by their judgment of 18-7-1952 refused to upset the decision of the trial Court with which the Court of first appeal had concurred.

Bhattu Munyaraj, the appellant, instituted the present suit on 22-8-1952 against the respondents alleging that he was the validly adopted son of the respondent 2, who had never adopted, the respondent 1 nor performed any ceremonies essential for a valid adoption and that the gift made by the respondent 2 in favour of the respondent 3 was ineffective as against the appellant to the extent of a moiety on the same ground as alleged by the respondent 1 in his previous suit. It was therefore prayed that the appellant be declared to be the adopted son of the respondent 2 and as such to be entitled to remain in possession of the suit property to the extent of a moiety. A further prayer was that the decree obtained by the respondent 1 on 30th Khurdad 1356 F. in the previous suit be declared as ineffective in so far as the appellant was concerned.

The respondents 2 and 3 admitted the appellant''s allegation in respect of his adoption and repudiated the adoption of the respondent 1 as held proved in the previous suit. They, however, maintained the validity of the gift in its entirety on the ground that the property gifted was the self-acquired property of the donor. The first respondent, in his written statement, traversed all the material allegations in the plaint and ''inter alia'' raised the pleas of ''res judicata'' and estoppel.

The learned Munsiff on 29-9-1952 raised a preliminary issue as to whether the plaintiff could maintain the present suit and whether it was not barred by ''res judicata''.

The learned Munsiff without discussing the provisions of S. 11, Civil P. C. held that Ex. A-1, the sworn testimony of the respondent 2 in the previous suit and the judgments of 30th Khurdad 1356 F., and 18-7-1952 conclusively establish that the respondent 1 was adopted on 20th Dai 1350 F. In view of that fact, even if it be assumed that the appellant was adopted, as alleged by him, on 15th Thir 1352 F., the adoption would be invalid because under the Hindu law, no person could adopt during the life-time of a previously validly adopted son. The appellant''s contention that the previous decisions could not operate as ''res judicata'' because he was not a party thereto was repelled on the ground that he was aware of the previous litigation as was evident from the sworn statements of P. Ws. 11 and 12, Exs. A-2 and 3 in the former suit, therefore, he should have made an attempt to get himself impleaded in that suit. The other ground urged was that the respondent 2 effectively represented the appellant in the previous suit.

On appeal, Shri Suraj Chand, in para 6 of his judgment conceded that the decision in the previous suit was not binding on the appellant, but instead of remanding'' the case to the trial court he took each prayer in the plaint separately and discussing them in the light of the documentary evidence placed on the record, held that none of them could be granted.

As the learned Advocates appearing on behalf of the parties confined their arguments to the question of ''res judicata'' and did not rely on the reasoning adopted by the courts below in support of their conclusion, we need not at this stage go into the merits of the case except in so far as it was necessary to determine the limited issue in controversy between the parties.

There can be no doubt that the courts below have unjustifiably travelled beyond the legitimate scope of the preliminary issue raised by the trial court. They ought not to have discussed the probabilities or other aspects of the case, the proper occasion for which was at the close of the trial. We note with regret that the depositions of witnesses recorded in the previous suit were used in evidence without due regard to the provisions of S. 33 of the Indian Evidence Act.

The lower appellate court in one part of its judgment no doubt conceded that as the appellant was not a party to the previous litigation, he could not be held to be bound by any finding arrived at in that suit, but in the succeeding paragraph relying on the deposition of the respondent 1 recorded in the previous suit and finding on adoption therein, it held that the appellant being a legal representative of the respondent 2 was estopped from asserting that the respondent 1 was not the adopted son of the second respondent.

It is difficult to see how the doctrine of estoppel could successfully be invoked in this case. An estoppel by conduct can only come into operation if by the conduct of one party the other party had to change his position to his prejudice. To invoke the doctrine of estoppel by representation, it is essential that the party to whom it was made in acting upon it should have altered his position to his detriment. It envisages a combination of several essential elements, the representation or a statement to be acted upon, action on the faith of such statement and in the manner intended and resultant prejudice or detriment to the person acting.

There is nothing on the record to show that the respondents acted on the faith of any conduct or representation on the part of the appellant, which resulted in detriment or prejudice to themselves.

The learned advocate for the appellant cited the Full Bench case of -- ''Bhiman Gowda v. Somshanker Gowda'', 14 Deccan LR 96 (A) in support of the contention that the declaration in the previous suit as to the status of the respondent 1 was not a judgment in rem binding upon strangers as well. That judgment is directly in point and is supported by a decision of the Privy Council in the case of -- ''Katama Natchiar v. Rajah Moottoo Vijaya'', 9 Moo IA 539 (PC) (B). At p. 601 of the report, their Lordships observed that a judgment is not a judgment in rem because in a suit by A for the recovery of an estate from B, it has determined as issue raised concerning the status of a particular person or family. That a declaration made in respect of the adoption of a certain person is not a judgment in rem is obvious from the terms of S. 43, Specific Relief Act which enacts that a declaration made under Chap. VI of the Act is binding on the parties to the suit and person claiming'' through them respectively.

In order to constitute ''res judicata'', it is essential that the former suit must have been between the same parties or between parties under whom they or any one claim. Explanation VI of S. 11, Civil P. C. extends the meaning of the words ''under whom they or any of them'' by enacting that ''when persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall be deemed to claim under him.'' In the case of -- ''Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy'', 6 Bom 703 (C), Latham J., has made the point very clear. The learned Judge at p. 709 says:

I think that persons other than parties to a suit in which a decree or judgment, to use the more general term, has been obtained, may be divided into three classes with reference to their position as affected by such judgment. These classes are:

(a) Persons who in the language of the Civil P. C. claim under the parties to the former suit or in the language of English law, privies of those parties.

(b) Persons who though not claiming under the parties to the former suit were represented by them therein. Such are persons interested in the estate of a testator or intestate in relation to the executor or administrator. Share-holders in a company in relation to the registered officer of that company, and in India members of a joint and undivided family in such cases as those referred to in -- Jogendro v. Funindro'', 14 Moo IA 367 (D) where the interest of a joint and undivided family being in issue, one member of that family has prosecuted a suit or has defended a suit and a decree has been made in that suit which may afterwards be considered as binding upon all the members of the family, their interest being taken to have been sufficiently represented by the party in the original suit.

(c) Strangers, neither privies to nor represented by the parties to the former suit.

It is admitted in all hands that the appellant cannot be said to be included in the class of persons mentioned under category (a). If he be regarded to be stranger to the former suit, obviously the rule of ''res judicata'' would not apply. The controversy between the contesting parties therefore resolves itself to the question whether the appellant was represented by the respondent 2 in the former litigation. Explanation VI to S. 11, Civil P. C. provides:

Where persons litigate in respect of........a private right claimed in common for themselves and others, all persons interested in such right shall, for purposes of this section be deemed to claim under the persons so litigating.

According to this explanation 6 to S. 11, in order to constitute ''res judicata'' against a person not ostensibly party to the suit, ''it is essential that the right must have been litigated in common for oneself and other''. The learned Advocate for Bhattu Venkatapati strenously contended that the respondent 2 must be deemed to be defending the previous suit for himself and for the appellant as well in his capacity as the manager of the family. To support this proposition, reliance was placed upon -- ''Risal Singh v. Balwant Singh'', AIR 1918 PC 87 (E); - AIR 1925 272 (Privy Council) - AIR 1927 56 (Privy Council) ; - AIR 1936 147 (Privy Council) -- Dinanath Jha Vs. Sabuj Lal Chaudhuri and Others, - AIR 1925 75 (Oudh) and -- AIR 1933 66 (Lahore)

We need not discuss these authorities in detail because in all these cases the distinguishing feature was that either the widow was representing the estate of the deceased owner or the father was deemed to be representing the family or the joint property. In the present case, it is difficult to see how the second respondent could be said to have represented the appellant in the previous suit as father or manager of the family when the very fact of the filial relationship was in dispute. In our opinion, the Full Bench has correctly laid down the law in 14 Deccan LR 96 (A) and the lower appellate Court was wrong in refusing to follow it.

For these reasons, we allow the appeal and setting aside the judgments of the courts below, remand the case to the trial court to be dealt with according to law. The appellant will be entitled to the costs of this court and that of the lower appellate court from the first respondent. The costs of the trial court will abide the result.