Mst. Sudehaiya Kunwar v. Ram Dass Pandey

Desai, J.:— This is an appeal by the defendants from a judgment of a Civil Judge allowing an appeal and decreeing the suit of Ram Dass plaintiff.

2. The property in dispute admittedly belonged to the last male owner Jangi who died on 10-6-1901, leaving his widow Mst. Deobarta, his sister Mst. Sudami and his mother Mst. Bageshra. On his death, Mst. Deobarta and Mst. Rageslira obtained mutation in their favour in respect of the property left by Jangi. Mst. Bageshra died in 1911 and on her death, the name of Mst. Sudami was added. In 1912 a suit was brought by the sons of Matadin for possession and, in the alternative, for declaration that they were entitled to the property after the deaths of Mst. Deobarta and Mst. Sudami. Matadin was fungi's grand-father's brother. His sons, who filed the suit, were Dudh Nath proforma defendant-respondent, Sripat and Banwari. It was decreed only for the alternative relief. Subsequently Mst. Sudami died and on 6-5-1932 Mst. Deobarta made a gift of a substantial portion of the property in favour of her husband Ram Sewak defendant—appellant no. 2. Thereupon suit no. 155 of 1933 was instituted by Dudh Nath against Mst. Deobarta and Ram Sewak. Ram Das plaintiff-respondent first cousin of Dudh Nath was at that time a minor living jointly with and under the guardianship of, Dudh Nath. Dudh Nath sought the relief of cancellation of the gift deed on behalf of himself and Ram Das. The suit was contested by Mst. Deobarta and Ram Sewak on various grounds and not on the ground that Dudh Nath was not entitled to sue because he was not the nearest reversioner of Mst. Deobarta and Mst. Sudami and that there was a sister of Mst. Sudami named Mst. Dudhaiya defendant-appellant no. 1 in existence. It was decreed by the trial court and Mst. Deobarta and Ram Sewak filed an appeal. The appellate court framed an issue whether Jangi left any sister Mst. Sudhaiya and remitted it to the trial court for its finding. It seems to have done this not on the basis of any plea, but on the basis of some statements made by witnesses of Mst. Deobarta and Ram Sewak suggesting the existence of Mst. Sudhaiya as another sister of Jangi. The trial court decided that Jangi left no other sister, but the appellate court upset the finding and held that Mst. Sudhaiya was a sister of jangi, that she was a nearer heir of Jangi than Dudh Nath and Ram Das and that consequently Doodhnath had no right to sue. The appeal was allowed and Dudh Nath's suit was dismissed; his appeal was dismissed by this Court in 1937. On 16-6-1941 Mst. Deobarta died and Mst. Sudhaiya and Ram Sewak obtained mutation in their favour over the property in dispute. On 21-1-1942, Ram Das applied for mutation but his application was dismissed. Then on 5-7-1944 he instituted the suit giving rise to this appeal. It was instituted against the two appellants and also Dudh Nath who was arrayed as proforma defendant. It was for possession over the property; it was pleaded that Mst. Sudhaiya was no sister of Jangi, that the gift by Mst. Deobarta in favour of Ram Sewak was invalid, that Ram Das and Dudh Nath were the nearest reversioners and that Ram Das was not bound by the decision in suit no. 155 of 1933 because he was not a party to it and it was a collusive suit conducted negligently by Dudh Nath. The trial court dismissed the suit holding that the decision in suit no. 155 of 1933 operated as res judicata and that Ram Das was not entitled to inherit the property in the presence of Mst. Sudhaiya, who was a nearer heir. On appeal the lower appellate court held that the previous decision did not operate as res judicata because Ram Das was not a party to the suit, that Mst. Sudhaiya was not a sister of Jangi, that Ram Das and Dudh Nath were the nearest reversioners of Jangi and that consequently Ram Das was entitled to a decree for himself and on behalf of Dudh Nath. A decision in a previous suit is res judicata in a subsequent suit brought by the same parties or between persons who claim under parties to the previous suit litigating under the same title, vide Sec. 11, C.P.C Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. In the previous suit no. 155 of 1933 Dudh Nath claimed the right to have the gift deed cancelled, expressly in common for himself and Ram Das. Ram Das was not impleaded probably because he was a minor and living jointly with and under the guardianship of Dudh Nath. There is nothing whatsoever to indicate that it was not a bona fide claim made by Dudh Nath for himself and Ram Das. As the subsequent events show Mst. Sudhaiya was not a sister of Jangi and the nearest reversioners were Dudh Nath and Ram Das. There was no reason for suspicion of any collusion between Dudh Nath and Mst. Deobarta and Ram Sewak against whom the suit was brought. Ram Das was interested in the right to have the gift deed cancelled exactly as much as Dudh Nath was; they were equally related to Jangi. If one was the nearest reversioner, so was the other and if one was entitled to inherit his property, so was the other. Consequently Explanation VI applied and Ram Das must be deemed to be claiming under Dudh Nath, who litigated in the earlier suit and under Sec. 11, the decision in the previous suit would operate as res judicata and prevent Ram Das from reagitating the same question now.

3. The lower appellate court relied upon Daleep Misir v. Jadunath Misir . A.I.R 1926 Alld. 573. but the facts of that case are distinguishable from those of the present case. They were these. The previous suit was brought by Deva Rai and Dwarka Rai to challenge a mortgage executed by Srimati Pavitri, widow of their cousin Behari; it was dis missed on account of the failure of Deva Rai and Dwarka Rai to prove the pedigree connecting them with Behari. The subsequent suit was brought by Jadunath, who relied upon the same pedigree and claimed to be the next reversioner of Behari; it was for redemption of the mortgage. It was contested by the mortgagee on the ground that Jadunath was bound by the decision in the earlier suit that the pedigree was not proved. This Court held that Explanation VI did not apply because Deva Rai and Dwarka Rai were held in the earlier suit not to be reversioners and so could not be said to have represented the reversionary body. Since Jadunath claimed independently of Deva Rai and Dwarka Rai and not through them, he was held not to be barred from relying upon the same pedigree in his suit. Deva Rai and Dwarka Rai were no reversioners at all, either presumptive or contingent; in the present case, Dudh Nath was a reversioner, even if contingent. Deva Rai and Dwarka Rai did not claim the right on behalf of the reversioners. Under the Hindu Law, only a next reversioner can file a suit to challenge an alienation by a Hindu widow; such a suit would bind the whole reversion. It would not be necessary in such a suit for the plaintiff to claim that he was suing on behalf of reversioners. But it does not follow that if a suit is brought by a remoter reversioner expressly for himself and other similar reversioners, the decision arrived at in it will not bind the others on whose behalf it was expressly instituted. If Deva Rai and Dwarka Rai were the nearest reversioners, the decision in their suit would have bound the entire revision even if they did not claim to have sued on behalf of it. We do not know what the decision of this Court would have been if they had claimed that they were suing on behalf of themselves and other reversioners similarly situated. The Hindu Law permits the next reversioner to bring a suit in such a manner as to bind persons other than those not named in the plaint; but Explanation VI does not apply only when such a suit is brought. It is couched in wide language and applies whenever a person claims a right, private or public, in common to himself and others, proved he does so bona fide. Even when a suit is brought by a person who challenges an alienation made by a Hindu widow on the ground of its being without legal necessity, if the plaintiff claims the right in common to himself and others similarly situated and has filed the suit bona fide, Explanation VI applies because all its requirements are fulfilled. It makes no difference that the plaintiff derives his title to suit under Hindu Law and not under some other law. Since Deva Rai and Dwawka Rai did not claim to sue on behalf of themselves and Jadunath, Jadunath could not be deemed, in the subsequent suit, to have claimed through them and would not be stopped from setting up the same pedigree. For the applicability of the Explanation, what one has to consider is the claim actually made by the plaintiff in the previous suit and not the result or decision of the previous suit. Whether a decision is res judicata or not does not depend upon its nature. If the previous suit is decided in one way, it may bind one party, but certainly it would bind the other party, if decided the other way. There is no law that a decision in the previous suit can be res judicata only if it is given one way and will not be res judicata at all if it is the other way. It the suit of Dudh Nath had been decreed, the decision would have been binding upon Mst. Deobarta and Ram Sewak, if they were subsequently sued by Ram Das or any other reversioner; if so, the decision in their favour is binding against Dudh Nath and any other person who is deemed to be claiming through him.

4. Reliance was also placed upon Maharaja Kesho Pd. Singh v. Sheo Pargash Ojha . A.I.R 1924 P.C 247 64.. The facts of that case were that a Hindu widow Oudha Koer executed a mortgage in favour of Kishan Prasad, who sued on the foot of it and obtained a decree for sale of the property. Dhanai Ojha, claiming to be the presumptive reversioner, sued Kishan Prasad and Oudha Koer for a declaration that the mortgage was without legal necessity and that neither the mortgage nor the decree could affect the estate after the death of Oudha Koer. The suit was decreed. Kishan Prasad executed the decree and purchased the property in dispute and obtained possession over it. From him, the property went to Maharaja Kesho Prasad Singh. Then Oudha Koer died and Sheo Pargash claiming to be the next reversioner sued Maharaja Kesho Prasad Singh for possession of the property. It was held that the decree obtained in the earlier suit brought by Dhanai Ojha bound the alienee. Their Lordships of the Judicial Committee observed at page 249:—

“It would be pessimi exempli that the appellant, whose predecessor-in-interest tailed on the same issue and was content to accept the adverse judgment against him, should be held entitled years afterwards when it might be, much of the relevant evidence was no longer available, to raise the same issue all over again. Their Lordships of course recognise that the principle is less obviously just where it operates to bind the ultimate reversioners by the result of a suit in which a plaintiff had failed whose interest, then merely presumptive, never ultimately matured. The danger of a feigned issue in such a suit is not to be overlooked.

But this danger is mainly serious where the failure of the first suit has been brought about by fraud or collusion where, of course, further and different considerations would arise.”

5. Their Lordships were simply dealing with an earlier suit brought by the next reversioner and its effect upon a subsequent suit brought by the then next reversioner. In the present case also the earlier suit was brought by Dudh Nath claiming to be the nearest reversioner and the present suit also was brought by Ram Das claiming to be the nearest reversioner. It is immaterial if in the earlier suit the decision was adverse to Dudh Nath and he was not held to be the nearest reversioner because, as we said earlier whether a decision operates as res judicata does not depend upon its nature. If the decision would have operated as res judicata against one party or the other, if Dudh Nath's suit had been decreed, it would operate as res judicata even if it was dismissed, the only difference being that this time it would be he and those persons who claimed through him who would be estopped from suing again. There is nothing in the decision of their Lordships to support the view taken by the lower appellate court.

6. Reference was also made to the provisions of Order 1, Rule 8, C.P.C If a representative suit governed by Order 1, Rule 8, C.P.C is filed, but the prescribed procedure is not followed, the decision may not bind the other persons on whose behalf the suit was brought. Explanation VI however, does not apply in only representative suits governed by Order 1, Rule 8; it applies in other suits also. The distinction between a suit, which is expressly a representative suit under Order 1, Rule 8 and a suit in which there is no such claim but to which Explanation VI to Sec. II may apply has been recognised by the Judicial Committee in Kumaravelu Ghettiar v. T.P Ramaswami Ayyar . A.I.R 1933 P.C 183.. At page 189, their Lordships said:—

“As to authority they are impressed by the fact that even before the Code of 1908 there were several decisions—Thanakoti v. Muniappa . 1885 8 Mad. 496. may be selected as typical—in which the view was taken that if what may be called an O. 1, R. 8 suit was to Rave the benefit of the explanation the conditions of the Rule must have been complied with fully. While in other cases in which it might superficially be supposed that the opposite view had been taken it will be found that the question at issue was not so much whether where none of the conditions of the Rule had been complied with the benefit of the explanation could be extended to the decree in a suit expressly within the terms of the Rule—which is the present case—as whether to bring the decree within the explanation, the conditions of the Rule had not to be observed even in a suit which while within the words of the explanation was not within the words of the rule at all. And the result of the decisions has shown that the explanation is not confined to cases covered by the Rule but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.”

7. The suit brought by Dudh Nath was not at all a suit governed by Order 1, Rule 8; it was a suit brought on behalf of himself and only Ram Das. Order 1, Rule 8, applies when a suit can be brought against “numerous” parties. If there are only two parties, Order 1, Rule 8 cannot apply. Therefore, the fact that the procedure laid down under Order 1, Rule 8 was not followed does not mean that the decision given in his suit does not operate a res judicata. The Explanation VI to Sec. 11 is not controlled by the provisions of Order 1, Rule 8 because as we said earlier, there may be a suit in which a person claims a right in common to himself and others though not governed by Order 1, Rule 8.

8. On behalf of the appellants we were referred to Lingangowda Dod-Basangowda Patil v. Basangowda Bistangoda Patil.5 Their Lordships observed at page 56:

“In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again and each infant to wait till he becomes of age and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 of Sec. 11 of the Code of Civil Procedure to see whether or not the leading members of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors. In this case there is no question of majors. It seems clear that the plaintiff in the previous suit was acting on behalf of himself and his minor children to try to exclude a collateral branch from a share of the family property. If he had succeeded the judgment would have inured for the benefit of the children and as he has failed, they must take the consequences.”

9. Ram Das was a minor living with and under the guardianship of, Dudh Nath and the suit was brought by Dudh Nath on behalf of himself and Ram Das. When he failed, Ram Das cannot be permitted to file another suit on the same allegations.

10. The position that emerges from the lower appellate court's decision is that though Dudh Nath failed in the earlier suit, he has succeeded in the suit brought by Ram Das. The suit of Ram Das is on behalf of himself and Dudh Nath. The result is clearly unjust; the injustice arises from the interpretation placed by the lower appellate court upon Explanation VI and holding that it does not apply to the facts of the case. The lower appellate court has given a decision exactly contrary to the decision which was given in the earlier suit and on the basis of which it was dismissed. The two contradictory decisions cannot be permitted to exist. Mst. Sudhaiya was either a sister of Jangi or not; she could not be both. The result of the decree passed by the lower appellate court is to make her both a sister and not a sister. Such a result can be avoided only by holding that the decision in the earlier suit is res judicata. We, therefore, allow the appeal, set aside the decree passed by the lower appellate court and dismiss the suit with costs throughout.