Neelambal Ammal vs Gopal and Others

Varadarajan, J.—The Plaintiff who failed in both the Courts below is the Appellant. She filed the suit for declaration of her title to the suit

property, which is 3 acres 16 cents of land comprised in Suit No. 74/4 of Vasudevambattu Village, and for a permanent injunction restraining the

Defendants from interfering with her possession. The suit property and other items originally belonged to one Subramania Mudaliar. Subramania

Mudaliar had an elder brother Sadayappa Mudaliar, and younger brother Dronachari alias Narayana Mudaliar. Respondents 1 to 3 are the sons of

Shanmugam, Nataraja and Rajamanikka are the son''s Sadayappa. During the minority of Subramania''s daughter and son Chennammal and

Mugugati, the suit property and other properties were sold to the Appellant under exhibit A-1, dated 25th April 1957 for a consideration of Rs.

500, Shanmugha acting as the guardian of Chennmmal and the 1st Defendant acting as the guardian of Murugan. The consideration of Rs. 500 for

the sale was made up of the debt due from Subramania under two mortgages and two promissory notes and cash of Rs. 44. The Appellant filed

Original Suit No. 175 of 1961 in the trial Court for possession of the suit property and other properties covered by the sale deed, exhibit A-1.

Subramania''s minor children, Chennammal and Murugan, were impleaded in that suit as Defendants 1 and 2 and Dronachafi''s three sons, the

Respondents 1 to 3 were impleaded as Defendants 6 to 8 in that suit. Nataraja and the second herein were Respondent appointed as the guardian

of the minor children of Subramania, who, as already stated were Defendants 1 and 2 in that suit. That suit was decreed on 17th April 1961.

Exhibit A-8 is the certified copy of the decree. The Appellant took possession of the property through Court on 26th June 1961. Exhibit A-9 is the

copy of the delivery receipt He thereafter filed Interlocutory Application No. 613 of 1963 for ascertainment of mesne profits under Order XX,

Rule 12 Code of Civil Procedure. During the pendency of that application, a joint memo exhibit A-10, was filed by the Appellant and the

guardians of Defendants 1 and 2 in that suit whereby the Appellant gave up her claim for mesne profits and she was to enjoy the property

delivered to her without any let or hindrance. That memo was recorded and that application was dismissed. Exhibit A-11 is the certified copy of

the decretal order made in that application. But, after attaining majority, Murugan sold 75 cents out of the suit property to Respondents 2 and 3

under exhibit B-1, dated 6th May 1968 and one acre and 50 cents to the 4th Respondent under exhibit B-2, dated 6th May 1968. The Appellant

thereafter filed the present suit for declaration and injunction alleging that Respondents 2 to 4 attempted to interfere with her possession of the suit

property taking advantage of the sale deeds, exhibits B-1 and B-2.

The defence was that the sale under exhibit A-1 was void on the ground that the permission of the Court had not been obtained by Shanmugha

and the first Defendant under the provisions of the Hindu Minority and Guardianship Act for alienating the minor''s property. u/s 8 of the Act, even

the natural guardian has no right to alienate the minors'' properties without the sanction of the Court. It was further contended that Chennammal

had no interest in the suit property as Subramania died in 1955 prior to the commencement of the Hindu Succession Act of 1956. The

Respondents 2 to 4 denied that the Appellant discharged the mortgage and promissory note debts of Subramania.

The trial Court found that Dhanakoti Mudaliar had obtained the decree under exhibit A-6 in Original Suit No. 120 of 1960 on the file of that

Court against the Appellant and the minor children of Subramania represented by their guardians on two mortgages, dated 27th September 1947

and 19th November 1954 executed by Subramania in favour of Dhanakodi Mudaliar and that after receiving the amount due to him under the

decree, Dhanakodi Mudaliar had filed the full satisfaction memo, exhibit A-7, into Court on 14th November 1960. The trial Court further found

that Subramania had executed the promissory note, exhibit A-2, dated 2nd April 1953 for a sum of Rs. 250 in favour of Dhanakodi Mudaliar and

another promissory note, exhibit A-3 dated 2nd June 1954 in favour of the same Dhanakodi Mudaliar for Rs. 75 and that the Appellant

discharged those debts by the endorsements, exhibit A-4 and A-5 made on those promissory notes. The trial Court did not go into the question of

payment of the balance of Rs. 44 in cash at the time of the sale under exhibit A-1. In effect, it found that the sale under exhibit A-1 was for

consideration. But, the learned District Munsif observed in paragraph 15 of his judgment that ""on the facts on record, it does not need any effort on

one''s imagination to conclude that there had been collusion between the Plaintiff, the executants of exhibit A-1 and the said guardians who acted in

a blatantly irresponsible and grossly negligent manner in suffering the said ex parte decree to be passed against the minors and that their conduct in

doing so cannot in the least be justified. There is, therefore, no gain saying the fact that the said ex parte decree came to be passed under

circumstances which would clearly render it ab initio void. In the result, the decree cannot bind the minors Murugan and Chennammal. The decree

referred to in this passage is the ex parte decree passed in O.S. No. 175 of 1961. In that view, the learned District Munsif held that the Appellant

had not acquired title to the suit property. The learned Subordinate Judge had agreed with the learned District Munsif on this aspect of the case

and has observed in paragraph 21 of the judgment that

The erstwhile minor after attaining majority had executed a sale of the very same property in favour of Defendants under exhibit B-1 and B-2. That

would go to show that he has repudiated and ignored the sale under exhibit A-1. The Defendants who have stepped into the shoes of erstwhile

minor of Murugan can validly put forward the pleas which are available to minor Murugan.

Regarding the alleged void nature of the sale deed, exhibit A-1, the learned Subordinate Judge has observed in paragraph 22 of the judgment that

he agreed with the trial Court and he has held that the decree in Original Suit No. 175 of 1961 is invalid. It may be stated at this juncture that the

Respondents 2 to 4 who alone contested the suit did not raise the plea that the decree in Original Suit No. 175 of 1961 was vitiated by fraud, etc.

Nor was any such evidence adduced by Respondents 2 to 4. Therefore, it was not open to the learned Subordinate Judge to hold that the decree

in that suit is vitiated by negligence, etc., on the part of the guardians of the minor Defendants.

Mr. Thiagaraja Iyer, learned Counsel appearing for the Appellant, strenuously, contended that the Courts below erred in failing to note the

distinction between a decree passed by the Court having no jurisdiction and a decree which had been wrongly passed by a Court having

jurisdiction. He invited my attention to the decision of a Full Bench of this Court in Ramaswami v. Rangachariar ILR [1940] Mad. 259 where the

learned Judges have observed at page 278 thus:

In respect of decrees passed against him in suits in which he had been eo nomine impleaded as a party, it is plain that he must pay the fee

prescribed by Section 7(IV-A). Such decrees bind him until set aside, and therefore, he cannot seek to obtain a decision on the footing that his

interest in the joint family property is not affected by them. It makes no difference that the Plaintiff is a minor or merely a junior member of the

family as the considerations which apply to the decree of a competent Court once it is passed are essentially different from those applicable to the

transactions of a party.

It is clear from this decision that the daughter and son of Subramania who are eo nomine parties to Original Suit No. 175 of 1961 are bound by

the decree passed in that suit, though ex parte, until they have the same set aside in a manner known to law. The facts in Navaneethammal v.

Ammakannammal (1944) 2 M.L.J. 252 were: The Appellant filed the suit for partition and recovery of her share of the property left by her

deceased husband, Thangavelu Pillai, by virtue of the provisions of the Hindu Women''s Rights to Property Act, 1937 which came into force on

14th April 1937. Before that Act, a widow had no right to a share in any part of her husband''s property, if he had died as a member of a co-

parcenary or had left a son or sons surviving. The Act gave the widow such a right for the first time. The Appellant was the second of the three

wives of Thangavelu Pillai who died on 28th June 1939. It is common ground that the estate left by Thangavelu Pillai comprised amongst others,

agricultural lands. Under the Act, the Appellant was entitled to an one-sixth share in the divisible properties and was not entitled to any share in

agricultural lands. But in her plaint, the Appellant claimed a share in all the assets left by Thangavelu Pillai, including the agricultural lands. Neither in

the written statements filed by the Defendants nor in the issues framed for trail was objection taken to the demand for a share in such lands on the

ground that the Act did not apply to agricultural lands. The results was that when the Subordinate Judge came to pass the preliminary decree on

31st July 1940, he declared the right of the Appellant to a share in all the properties in suit including the agricultural lands, and directed the

appointment of a Commissioner for effecting a division by metes and bounds. In pursuance of the preliminary decree the Plaintiff applied for

appointment of a Commissioner for effecting division and a Commissioner was appointed and he submitted a report regarding the division of the

immovable properties, including agricultural lands. Then it was contended that it was not open to the Court to grant a decree for partition of

agricultural lands. The learned Judges observed:

The Subordinate Judge is apparently of the opinion that he derived his jurisdiction to pass a preliminary decree from the Hindu Women''s Rights to

Property Act, 1937, and as that Act did not confer on him jurisdiction in respect of agricultural lands, the decree passed by him on the footing that

it did, is a nullity. This, in our opinion, is a fundamental error due to a misconception of a source of his jurisdiction which is really derived not from

that Act but from the Madras Civil Courts Act, 1873, and the Civil Procedure Code, 1908... If we now look at the plaint and consider it in the

light of the decision of the Federal Court, the only criticism to be made is that it includes a claim for the partition and recovery of a share in

properties in which the Hindu Women''s Rights to Property Act, 1937, did not give her a share. In other words, the plaint included a claim which

was untenable and which might even be taken as being untenable on the face of it, though the untenability was only discovered after the decision of

the Federal Court.... The test to be applied in deciding a question of this kind is to enquire whether a Court had the power and was under a duty to

decide the matter, the wrong decision of which is alleged to make the order a nullity. This indeed was the test applied in Nageswara v. Ganesa ILR

[1943] Mad. 217 where the question was whether an order of adjudication passed on a debtor''s petition containing a false allegation of residence

in Madras made in order to invoke the insolvency jurisdiction of this Court was a nullity, and this objection was put forward in an inter pleader suit

instituted for determining whether the Official Assignee or a creditor of the insolvent was entitled to a sum of money. The objection was negatived

on the ground that the High Court was a Court of competent jurisdiction notwithstanding that the debtor was not in fact a resident of Madras as the

question of residence was a matter which the Court was entitled and bound to decide before making the order of adjudication.

It was further observed:

A distinction has always to be made between competency or jurisdiction to make an order, and the correctness of the order on the merits where

the Court had the jurisdiction to decide the question. We are of opinion that the High Court was a Court of competent jurisdiction for the present

purpose and notwithstanding the fact that the debtor made a deliberately false allegation that he was a resident within the jurisdiction, the order is

not rendered a nullity.... In the light of the foregoing discussion, it appears to us plain that the decision of the Court below cannot be supported. It is

unquestionable that the nature and the value of the subject-matter was such that the suit fell within its jurisdiction. The preliminary decree was no

doubt passed on what we may now take it to be an error in that it recognised in the Plaintiff a right to a share in the agricultural lands which had not

been really conferred on her by the Hindu Women''s Rights to Property Act, 1937, as it was wrongly thought. But this error was merely an error

of judgment, not touching the jurisdiction of the Court, which remained as it was, wholly unimpaired by anything contained in that Act. In this view

the decision of the Subordinate Judge must be set aside.

In Chinnappareddi v. Srinivasa Rao Garu 69 M.L.J. 196 reference has been made to the decision of the Patna High Court in Girwar Narayan

Mahton v. Kamla Prasad I.L.R.(1932) Pat. 117 and the following head-note in that case has been extracted by the learned Judges. The head-note

runs as follows:

There is a distinction between an inherent want of jurisdiction in a court and want of jurisdiction on grounds which have to be determined by the

Court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity

but only voidable ; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached. A Court which is

empowered by law to try a suit, has power to try it either rightly or wrongly ; the validity of a decree does not depend on whether it embodies a

correct decision. A judgment of a Court having jurisdiction over the subject-matter and the parties of the suit and having territorial and pecuniary

jurisdiction, however erroneous, cannot be a mere nullity and cannot be collaterally challenged.

The learned Judges in that case having extracted the head-note in Rajaram v. Central Bank of India Limited (1926) Bom. L.R. 879 which runs as

follows:

The Court having jurisdiction to decide the question whether or not it had jurisdiction has the power to decide that question rightly or wrongly. No

doubt a judgment pronounced by a court without jurisdiction is void, but the rule is subject to the well-known reservation that when the jurisdiction

of Court is challenged or is constructively subject of an issue the Court is competent to determine the question of jurisdiction whether the decision

upon the particular question be correct and pass a decree and simply because a higher tribunal has in a subsequent suit held contrary on the point

of jurisdiction that decree does not become a nullity.

The Supreme Court in State of West Bengal v. Hemant Kumar Bhattacharjee [l963] 2 S.C.R. 542 has observed thus:

A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to

higher tribunals or other procedure like a review which the law provides. The learned Judges of the High Court who rendered the decision on 4th

April 1952 had ample jurisdiction to decide the case and the fact that their decision Was on the merits erroneous as seen from the later judgment

of this Court, does not reader it any the less final and binding between the parties before the Court.

Having regard to these decisions, I agree with the learned Counsel for the Appellant that it was not open to the Courts below collaterally to hold

that the decree in Original Suit No. 175 of 1961 was not binding on the children of Subramania and that Respondents 2 to 4 had acquired any

interest in any portion of the suit property by virtue of the sales in their favour by Murugan under exhibits B-1 and B-2.

Mr. T. R. Rajagopalan, learned Counsel appearing for Respondents 2 to 4 sought to make a distinction between the facts of the case in

Navaneethammal v. Ammakannammal (1944) 2 M.L.J. 252 and the facts of the present case. He submitted that there was no prohibition in the

Hindu Women''s Rights to Property Act, 1937, against the widow getting a share in agricultural lands of her husband and that there was only no

provision for the same in that Act, whereas, under the Hindu Minority and Guardianship Act, there is a specific provision for even the natural

guardian of minors having no power to alienate property belonging to minors, except with the permission of the Court and, therefore, the alienation

of the property under exhibit A-1 was void. I am not able to see any such distinction. The Subordinate Judge who passed the preliminary decree

even for agricultural lands in that case had in doing so ignored the provisions of the Hindu Women''s Right to Property Act. Similarly, the trial

Court in granting a decree for declaration and possession of the suit property and other properties in Original Suit No. 175 of 1961 ignored the

provision of the Hindu Minority and Guardianship Act which lays down that for alienating the minor''s properties even the natural guardian of the

minors had to obtain the permission of the Court and it had not been obtained in the present case. Therefore, no such distinction can be made in

the present case. Under the circumstances, I agree with the learned Counsel for the Appellant that it was not open to the Courts below in this

collateral proceeding to hold that the decree in Original Suit No. 175 of 1961 was void especially having regard to the fact that there was no plea

that the decree was vitiated by fraud, etc. Naturally, no such evidence had been recorded in this case.

The second appeal is, therefore, allowed with costs throughout. No leave.