T. Kolappan vs Meenakshi and 13 others

K.P. Sivasubramaniam, J.—Defendants 1 and 2 in O.S. No. 89 of 1964 on the file of District Munsif, Kuzhithuri are the appellants in the above two Second Appeals. The said suit was filed by one Marthanda Pillai. The first defendant/appellant in S.A. No. 2143 of 1985 is the brother of the plaintiff while the second defendant/appellant in S.A. No. 1571 of 1985 is the son of one Ramachandra Pillai, another brother of the plaintiff. On the death of the plaintiff, the second defendant was added as the legal heir of the first plaintiff.

In the above two Second Appeals, the dispute pertains only to the rights declared in favour of the 22nd defendant and therefore in referring to the pleadings and the judgments rendered by the courts below, it is sufficient to deal with only such of those facts and circumstances relevant for decision over the said dispute.

The suit was filed for a decree for partition of the plaintiffs 1/6th share in the plaint schedule items excluding the portion sold to defendants 9 to 17 and for other consequential relief''s. The plaintiffs contended that the properties belonged to the first plaintiffs paternal grandfather Ananchuperumal Ananchu as his separate and self-acquired properties. 22nd defendant is the first plaintiffs wife and second plaintiff is his daughter born through 22nd defendant. 22nd defendant had been married to the first plaintiffs elder brother Ananchu Pillai who died issueless in 1096 and married to the deceased brother as per the custom in the Krishnavaka community to which the family belongs. The first plaintiff married the 22nd defendant and she has all along been living with him as his wife. The first plaintiff and the first defendant are brothers. Another brother of the first plaintiff Thanu Pillai died in 1950 and his son is the second defendant. The third defendant is the son of the deceased brother of the second defendant. The first plaintiff''s father was Ananchupillai and he had two brothers namely Marthanda Pillai and Ayyappan Pillai. Ayyappan Pillai died leaving his only son, the 8th defendant and Marthanda Pillai died in the year 1104. The sons of Marthanda Pillai namely Marthanda Pillai, Mathevan Pillai and Nambu Pillai had pre-deceased their father and Mathevan Pillai and Nambu Pillai died unmarried. Marthanda Pillai died in the year 1096 leaving his two sons Perumal Pillai and Kulasekaran Pillai. The defendants 5 and 6 are the sons of Ananchu Pillai who survived his father. The defendants 5 and 6 had brother Marthanda Pillai who died issueless in the year 1949. 7th defendant is his widow. The paternal grandfather of the first plaintiff allotted separate properties to his three sons and retaining some items for his own use by an oral partition which was accepted by his three sons. According to the plaintiffs, the parties are entitled to the following shares:

3-A 1st defendant to 1/6th share, 2nd defendant to 1/12th share, 3rd defendant to 1/12th share, 5th defendant to 1/16th plus 1/12-1/4 and 6th defendant to 1/4th share. Defendants 9 to 21 are alieness. Defendant 23 to rest are the other mortgagees of first plaintiff. According to the plaintiff though certain plaint items are enjoyed in whole and specific gifts have also been executed pursuant to such enjoyment, since there was no partition by metes and bounds between the plaintiffs and the defendants, it was necessary that the partition by metes and bounds was effected and the properties enjoyed by them may be allotted to their share.

In the written statement filed by the first defendant it is contended that the first plaintiff was incompetent to make gift of certain specific items of the properties to the second plaintiff and that he has built up over some of the properties and have executed gift in respect of those properties. The gift can take effect only subject to the equities to be worked out among all the co-sharers. The first defendant has also given details of certain properties which according to him were not included in the suit. The first defendant also contended that there were certain purchasers who have not been impleaded as parties to the suit. It is further contended that he has constructed a shop building in S. No. 1169 and that the said building belongs to himself. In plaint item 421 also the first defendant had a shop building and he prayed that his share in the property must be partitioned including of the building.

The second defendant in his written statement contended that the 22nd defendant was not the legal wife of the first plaintiff and the custom referred in the plaint was opposed to law. According to him the parties have already entered into an oral partition and were enjoyment of specific plots. He has also contended that there were other properties besides the plaint schedule properties belonging to the family and that the suit was not maintainable without including those properties. He also contended that the suit as framed was for partial partition.

An additional written statement was also filed contending that the 22nd defendant was not wife of the first plaintiff and they never lived as husband and wife. The status of the second plaintiff and the 22nd defendant was disputed by the second defendant. In the written statement filed by the 22nd defendant it is contended that she was interested in items 4, 5 and 7.

The trial court on consideration of the said pleadings, oral and documentary evidence, granted a preliminary decree for partition holding that the second plaintiff was entitled to 5/36, first defendant to 5/36, 22nd defendant to 1/12, defendants 2 and 3 each for 5/72nd share, defendants 5 to 7 each for 1/6th share and that the 50th defendant was allotted a limited share in respect of share allotted in favour of defendants 2 and 3. Three appeals were filed before the Additional Subordinate Judge, Nagercoil in A.S. Nos. 82, 88 and 96 of 1973 by different parties. In A.S. No. 88 and 96 of 1973, allotment of 1/12th share in favour of 22nd defendant was questioned by defendants 1 and 2, the appellants herein and A.S. No. 88 of 1973 was allowed in their favour and the first defendant''s objection as regards the share in favour of 22nd defendant was upheld. The second plaintiff filed S.A. No. 178 of 1976 questioning the said conclusion and C.M.P. No. 8353 of 1978 was also filed to receive the judgment of the Sub-Court, Padmanapuram in A.S. No. 134 of 1973, as additional evidence, contending that it recognises to the effect that the 22nd defendant is entitled to the share of her husband. Ratnam. J (as he then was) by his order dated 4.1.1980 remitted the matter to the Appellate Court for reconsideration on merits of the appeal and giving opportunity to the plaintiff to file additional evidence before the Appellate Court. The learned Sub Judge disposed A.S. Nos. 16 to 18 of 1983 and by his judgment dated 24.4.1984 it was held that 22nd defendant has no right to inherit her husband''s share in the joint family property and that she had not inherited the share. According to the learned Judge, the right of inheritance of women was recognised only under Hindu Women''s Right Property Act 1937, which itself was extended to Kanyakumari District only in 1951 and that the 22nd defendant''s husband died long back in the year 1924 itself. But in respect of the said finding, the decision went against the defendants/appellants herein, in view of the finding of the Appellate Judge that the judgment rendered in A.S. No. 134 of 1973 (Ex. A20) upholding the right of 22nd defendant, would operate as res judicata. With the result, A.S. Nos. 17 and 18 of 1983 filed by the appellants herein were dismissed and hence the present Second Appeals.

The following substantial question of law was framed in both the Second Appeals at the time of the admission:

"Whether the conclusion arrived at by the first appellate court is right in view of its finding that the 22nd defendant does not inherit any share?"

Mr. Sundar, Learned Counsel for the appellants would submit the following points for determination:

22nd defendant cannot claim any right over the property of Ananchu Pillai since he died in the year 1924 itself and his succession would open on the death of Ananchu Pillai. Women were not entitled to claim any share till the Hindu Women''s Right Act. 1937 was enacted and subsequently extended to the area only in 1951. Hence Section 14 of the Hindu Succession Act can have no application to the 22nd defendant and the findings of the courts below are erroneous.

With reference to the judgment rendered in A.S. No. 134 of 1973, he has stated that it cannot operate as res judicata for the following reasons:-

a. There is no pleading by the plaintiffs in the said context.

b. Principle of res judicata will only apply if the cause of action is the same and in the present case the relief claimed in the earlier suit was not the same.

c. At any rate, decision which is wrong in law and opposed to the provisions of law relating to Women''s Right Property Act as well as laid down by the Supreme Court, cannot operate as res judicata.

Per contra, Mr. Aranthakrishnan Nair, Learned Counsel appearing for the respondents would contend that the assumption that the right of 22nd defendant would flow only under Hindu Women''s Right Property Act, 1937 is erroneous. The Supreme Court has interpreted Section 14 of the Hindu Succession Act and held that the preexisting right of a widow for maintenance was traceable to old shastric Hindu Law which would accrue to the widow immediately and on the death of her husband, whether before or after 1937 Act. The right is not a creature of the statute either under 1937 Act or the Succession Act, 1956 but something inherent and referable to the right emanating from the old Hindu Law itself. On the question of res judicata, the Learned Counsel would contend that assuming that the earlier decision was wrong in law, even then the decision would operate as res judicata between the same parties.

With reference to the points concerning whether in law, the claim of 22nd defendant was sustainable in terms of the 1937 Act and 1956 Act, Mr. Sundar referred to various rulings of the Supreme Court and this Court in a very analytical, persuasive and impressing manner. Equally effective was the interpretation of law by Mr. Ananda Krishnan Nair by referring to the statutory provisions and quoting extensively from the observations contained Tulasamma ''s case, the leading case on the subject reported in AIR 1977 SC 1944. But having regard to the fact that if I conclude in favour of the plaintiffs/respondents on the issue of res judicata, it would be unnecessary for this Court to go into first point raised for consideration, I would take up the issue of res judicata for immediate consideration. It may be assumed for the sake of further discussion that 22nd defendant''s claim over Ananchu Pillai estate is illegal, agreeing with the contention of the Learned Counsel for the appellants.

On the question of res judicata, the first contention of the Learned Counsel for the appellants is that the issue had not been pleaded in the plaint and hence it cannot be entertained, I am unable to accept this allegation for two reasons. The first reason is that this issue came to be considered by the first Appellate Court on remand from this Court in S.A. No. 178 of 1978. As stated earlier, C.M.P. No. 8353 of 1978 was filed to admit the copy of the judgment in the earlier proceeding as additional evidence. this Court considered the context in which the additional evidence was sought to be relied upon and ultimately, while remanding the appeal; permitted the petitioner to renew the application before the Appellate Court. It is only pursuant to the order of remand the Appellate Court had admitted Exs. A19 to A21 on the side of the plaintiffs and Ex. B127 on the side of the defendants. A perusal of the judgment of the Appellate Court also shows that there is no reference to any objection on the side of the appellants either to the receipt of the additional evidence or to the point of res judicata being raised for consideration. In fact the appellants themselves have sought to rely upon Exs. A19 and A21 for contending that 22nd defendant''s claim was barred by res judicata, but was negatived by the Court on the ground that the character of the properties under the proceeding in Exs. A19 and A29 was different and hence cannot operate as res judicata. But with reference to Ex. A20 it was found in favour of 22nd defendant and held that it would operate as res judicata. It is also pertinent to note that this objection had not been raised even in the grounds of appeal in these Second Appeals. Therefore, I am unable to agree with the objection so raised by the Learned Counsel.

The next objection is that the subject matter and cause of action should be identical so as to invoke the principle of res judicata. There can be no quarrel over the principle thus stated. But I am not inclined to hold that there is identity of cause of action. In O.S. No. 358 of 1972 the dispute was over the ancestral properties of Ananchu Pillai and his three brothers. In that suit also the status of 22nd defendant (the second defendant in that suit) was disputed by the appellants herein, contending that she was not the widow of Ananchu Pillai. 17th defendant in that suit (50th defendant in the present suit) had also raised the contention that 22nd defendant was not married to Ananchu Pillai and hence she had no right in the suit properties. On the other hand 22nd defendant had claimed definite shares on her paying court fees thereon. It is also to be noted that in the plaint it was specifically pleaded (Ex. A15) that Ananchu Pillai died leaving his widow Kaliamma Pillai who was in possession as life interest holder and that the limited estate had enlarged into the absolute estate u/s 14 of the Act, 30 of 1956 and that thus she was entitled to 1/24th share. The issue as to whether there was any custom in the community recognising the remarriage of the brother''s widow by the husband''s brother was also considered. It was ultimately concluded by the Appellate Court that the second defendant (22nd defendant) was originally married to Ananchu Pillai and after his death as per custom prevailing in the community, she became the wife of Marthanda Pillai. The objection by the appellants herein that the 22nd defendant was not the wife of Ananchu Pillai was rejected. Consequently the plaintiff, the first defendant, second defendant and third defendant in the earlier suit (who are second plaintiff, first defendant, 22nd defendant and 2nd defendant respectively in the present suit) were declared as entitled to equal shares. The entitlement of the 22nd defendant was due to the recognition of her status as the wife of Ananchu Pillai. The Appellate Judge was therefore right in holding that the finding in the earlier suit that each of them was entitled to equal shares holds the field and therefore the contesting the parties cannot plead otherwise disputing the right of 22nd defendant to succeed to Ananchu Pillai''s estate. He has also taken note of the fact that in the earlier suit the claim of Bhoothanatha Pillai for 1/18th share was rejected and it was held that he was entitled to only 1 /24th share belonging to other three branches and had concluded that the decision would operate as res judicata as between the parties even if the decision was erroneous. Therefore there is identity of matters which are directly and substantially in issue namely the right of 22nd defendant to succeed to the estate of Ananchu Pillai.

It is in this context, the question which arises for consideration is whether assuming that the entitlement of 22nd defendant to succeed to the share of Ananchu Pillai is legally not sustainable whether the decision in the earlier suit would operate as res judicata?

In support, of his submission that erroneous decision in law cannot operate as res judicata, the Learned Counsel for the appellants relied on the decision of the Supreme Court reported in Allahabad Development Authority Vs. Nasiruzzaman and Others,

"In that case the Supreme Court was concerned with proceedings under the Land Acquisition Act and on the facts and circumstances it was held that the land had already stood vested in the State free from all encumbrances and that therefore the question of divesting did not arise. In those circumstances an erroneous decree cannot operate as res judicata or as estoppel. In other words, in that case, the Supreme Court was concerned with a case where the previous judgment lacked jurisdiction because of granting the declaration that the acquisition proceeding stood lapsed. Such a declaration cannot have the result of divesting and revesting with the land owners since possession had already been taken and the land stood vested with the State. In may opinion the said decision cannot be a relevant decision to consider the scope of Section 11 of C.P.C, in the facts and circumstances of the present case.

Per contra, the following decisions will squarely establish that the previous decision between the same parties, however erroneous it may be in deciding the question of law, would still operate as res judicata. A constitution Bench of the Supreme Court in its judgment reported in State of West Bengal Vs. Hemant Kumar Bhattacharjee and Others, considered the contention that the order of the High Court was wrong since the law laid down had been disapproved by the Supreme Court in a subsequent decision. The Supreme Court has held as follows:-

"Before proceeding with these arguments in detail, we can dispose of second contention, very shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. 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 review which the law provides."

In Ram Gobinda Dawan and Others Vs. Smt. Bhaktabala, it was held that the test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. The previous decision should be in respect of art issue which has been raised, disputed, heard and finally decided by the court. In the present appeal, in the earlier suit, the 22nd defendant''s right to succeed to Ananchu Pillai estate and her status as his wife was asserted and disputed and the courts having given a definite finding, it cannot be ignored in the subsequent proceedings between the same parties.

In Lonankutty Vs. Thomman and Another, it was held that in order to bring the dispute or issue within the scope of res judicata, it was necessary that it must be directly and substantially in issue and that it cannot be said to be directly in issue unless alleged by one party and denied or admitted by other party. The facts in the present appeal certainly satisfy the requirements of this ruling.

In Har Pyari Devi v Ghanshiam Singh, (1982) 2 SCC 109 the Supreme Court was concerned with the case wherein the earlier proceedings the genuineness of the Will was challenged and upheld and subsequently in a interpleader suit, the Will was again challenged and it was held that the issue was barred by res judicata.

In the judgment reported in Jai Kishan Dass and Others Vs. Smt Nirmala Devi and Others, the issue was whether the decision in the earlier suit holding and recognising that the status of joint Hindu family was disrupted resulting in a separation of 5 brothers can be ignored in a subsequent suit by the son of one of the five brothers contending that the family continued to be a joint family. The Supreme Court held that the issue was barred by res judicata.

Mr. Sundar was however at pains to emphasize that when an earlier decision was erroneous in law, such a decision cannot operate as res judicata per contra reference has already been made to the judgment of the Constitution Bench as cited supra reported in State of West Bengal Vs. Hemant Kumar Bhattacharjee and Others, .

In a later judgment also, the Supreme Court had re-emphasised the same in judgment reported in Supreme Court Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, . In that case also it was contended that the earlier decision of Delhi High Court on the same issue was erroneous in law and hence cannot operate as res judicata. It was also contended that the said decision was violative of Article 14 of the Constitution. The following passage in the judgment are relevant:

"The question whether the High Court judgment relating to the LDCs and class IV employees are right or wrong, may not be necessary to be considered. But, the relevant question that requires consideration is whether the said judgments of the Delhi High Court have become final and conclusive and binding on the parties. In case it is held that the judgments have not attained finality and do not operate as res judicata between the parties, the question as to the correctness of the judgments may be considered. Let us, therefore, advert to the contention of Mr. Thakur that the Delhi High Court judgments have become final and conclusive between the parties and operate as res judicata."....

"Thus, a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action."

"The doctrine of res judicata is an any universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the provision of Article 14, as contended by the learned Attorney-General. The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of Article 14 of the Constitution even though it may be, to some extent, violative of Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the LDCs and the class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India."

The above extracted statement of law leaves no room for any doubt that an earlier decision as between the same parties, even if it amounts to a wrong decision in law, would operate as res judicata. The only exception to the said Rule would be that the decision was without jurisdiction. In the present case, there is no dispute over the fact that the court in rendering the earlier decision in A.S. No. 134 of 1973 had requisite jurisdiction to decide theirs between the parties. Therefore the decision of the Appellate Court holding that the appellant cannot dispute or contend against the terms of Ex. A20 judgment has to be upheld even assuming that the said judgment was wrong in law. This conclusion spares me of the need to go into the question as to whether the 22nd defendant could claim any right over Ananchu Pillar''s property. In the result, I am unable to find any reason to sustain the above two Second Appeals. Hence the Second Appeals are dismissed. No costs.