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Case Number

S.A No. 101 of 1947.

Advocates

Mr. N.R Sesha Ayyar Appts.
Ms. S. Veakatachala Sastri for Respts.

Judges

Satyanarayana Rao
Viswanatha Sastri, JJ.

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Smart Summary

Judgment Summary — Satyanarayana Rao, J. (Second Appeal)

Factual and Procedural Background

The plaintiff originally obtained in the District Court a decree for rent claimed for the years 1932 to 1942. That decree was reversed on appeal by the learned District Judge on the ground that the plaintiff's title to the suit property had been extinguished by a prior decree in O.S. No. 183 of 1931 on the file of the Badagara Additional District Munsif's Court.

The present suit (out of which this second appeal arises) was for recovery of rent due under a registered marupat dated 27-12-1909 executed by Krishnan Nambiar (deceased) to the plaintiff's brother Govinda Variar (deceased). The 1st defendant disclaimed interest; the 2nd defendant was alleged to be the tenant; defendants 3–13 and 15 were impleaded as parties interested under a will of Krishnan Nambiar; the 14th defendant was impleaded to protect tarwad interests.

The plaintiff's title rests on a compromise decree in O.S. No. 419 of 1892 and a kanam document (Ex. P-2) showing the property given as putravakasam (to be enjoyed by children of Kunhunni Variar). The plaintiff claimed to be the sole surviving son entitled to the property on that basis and sued to recover rent under the marupat.

In 1931 the plaintiff, acting as karnavan of his tarwad, instituted O.S. No. 183 of 1931 alleging that title vested in the tarwad and obtained a decree for possession (Ex. P-5). That decree was not executed and was allowed to be barred. In the present suit the defendants contended the present claim was barred by the earlier decree (O.S. No. 183/1931) and that the plaintiff had no title. The District Munsif overruled that plea, holding the earlier suit was brought in a representative capacity for tarwad rights and that the present suit is based on a different title (putravakasam tavazhi).

The learned District Judge reversed the District Munsif, concluding that the earlier suit effectively encompassed the plaintiff's alternative private title and that res judicata (S.11 C.P.C.) and the bar under S.47 C.P.C. operated to preclude the present suit. The plaintiff appealed from that decision; the present opinion disposes of the second appeal.

Legal Issues Presented

Whether the earlier decree in O.S. No. 183 of 1931 (brought by the plaintiff as karnavan for the tarwad) operates as res judicata under Section 11 of the Civil Procedure Code to bar the plaintiff's present suit based on a putravakasam (private) title.
Whether, by reason of the earlier decree, the present suit is barred under Section 47 of the Civil Procedure Code as an execution or otherwise incompetent (i.e., whether the cause of action has merged or been otherwise disposed of so as to preclude the present suit).
Whether a representative suit instituted by a karnavan represents the individual/private interests of the karnavan (or other members) in addition to the common tarwad interests, so as to bind them in subsequent suits.

Arguments of the Parties

Appellant / Plaintiff's Arguments

The plaintiff asserted that the property in fact belongs to the putravakasam tavazhi and that he is the sole surviving member entitled to the property; the present suit is therefore founded on a different title from that alleged in the earlier representative suit.
The plaintiff stated that when he instituted O.S. No. 183 of 1931 he believed the property belonged to the tarwad and did not know his putravakasam rights at that time; accordingly he could not be held to have asserted the private title in that earlier suit.
The plaintiff relied on the District Munsif's finding (unchallenged) that the marupat (Ex. P-1) could not have been taken on behalf of the tarwad and that a senior anandravan (the 14th defendant) existed at the time of the earlier suit, so the earlier suit did not represent or extinguish his private title.

Respondent / Defendants' Arguments

The defendants contended that the earlier decree in O.S. No. 183 of 1931 extinguished the plaintiff's title and therefore barred the present suit.
They argued that the present suit was barred by res judicata under Section 11 C.P.C. because the matters in issue “ought” to have been raised in the earlier suit (relying on explanation 4 to S.11).
The learned District Judge (respondent's position adopted by that court) relied on authorities (including the Full Bench decision in Narayanan Nambudri v. Theva Amma and decisions such as Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad and Gopalan v. Sankaran Nair) to support the proposition that the plaintiff was precluded from raising the present private title and that S.47 C.P.C. barred the subsequent suit or that the cause of action had merged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narayanan Nambudri v. Theva Amma (Full Bench) / A. Narayanan Nambudiri v. Puthisseri Theva Amma	Authority on res judicata and representation; relied upon by the learned District Judge to argue that a party may be bound by matters represented in an earlier suit.	The Court held that this decision did not conflict with the appellant's position: observations in that decision (specifically at p. 65) support the distinction between representative/common tarwad interests and separate/private interests. The Court therefore did not apply the Full Bench decision to bar the present suit.
Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad	Invoked by the District Judge to support the view that a subsequent suit may be barred where causes of action are not properly distinguished (applied as res judicata/merger argument under S.11/S.47).	The Court held that this decision had no application where the causes of action are different; therefore it did not apply it to bar the present suit.
Gopalan v. Sankaran Nair	Decision (Wadsworth and Patanjali Sastri, JJ.) that a subsequent suit for rent based on a lease is incompetent under S.47 C.P.C. after a decree in ejectment based on the same lease.	The Court observed that this decision did not apply to the present case because parties and facts differ; the correctness of that decision was noted as open to doubt, and it was unnecessary to decide its applicability here.
Fateh Singh v. Jagannath Baksh Singh	Principle that a person suing in his individual capacity must include all available grounds/titles (example where presumptive heirs should have included family custom as ground in earlier suit).	The Court distinguished that case: it held Fateh Singh inapplicable because the capacities in which suits were instituted there were the same (individual) whereas in the present matter the earlier suit was representative (karnavan) and did not encompass the plaintiff's private title.
Unreported decision: A.S. No. 120 of 1862 (Justice Halloway)	Statement of representative principle for Malabar families: "A Malabar family speaks through its head in all Courts of Justice..." — supports the rule that the karnavan represents only common tarwad interests.	The Court relied on this principle to explain that the earlier suit, brought by the karnavan, represented only the tarwad's common interests and did not bind private/individual rights which were not litigated.

Court's Reasoning and Analysis

The Court's reasoning proceeds in a stepwise application of statutory provisions and principles of representation:

The Court began with Section 11 C.P.C., observing that for res judicata to apply an issue in the second suit must have been "directly and substantially in issue" in the earlier suit between the same parties or parties under whom they claim litigating under the same title. If the title asserted in the second suit is different, the bar of S.11 does not apply.
The nature of the earlier suit was examined: it was instituted by the plaintiff as karnavan in a representative capacity claiming tarwad ownership. The Court invoked the unreported A.S. No. 120 of 1862 (Justice Halloway) to reaffirm that a Malabar family speaks through its head and that a karnavan represents the common tarwad interests only.
The Court rejected the District Judge's assumption that the plaintiff was the sole surviving member of the tarwad at the time of the earlier suit. The record showed the 14th defendant (senior anandravan) was alive; the marupat (Ex. P-1) was taken at a time when another karnavan (Raghava Variar) was alive (Ex. P-4), so the marupat could not have been taken on behalf of the tarwad.
On the facts, the District Munsif's finding (unchallenged) established that the property belongs to the putravakasam tavazhi and that the plaintiff is now its sole surviving member. Thus the plaintiff's present title is totally different and independent from the tarwad title asserted in the earlier suit.
The Court addressed the District Judge's reliance on explanation 4 to S.11 C.P.C. — which treats a matter as res judicata if it not only "might" but "ought" to have been made a ground of attack in the earlier suit. The Court found no justification for holding the plaintiff was under a duty to include his individual private right in a representative tarwad suit; no authority compelling such inclusion was shown for that position.
The Court distinguished Fateh Singh (where the same individual capacity required inclusion of all grounds) from the present case on the basis of differing capacities: in Fateh Singh the capacity in both suits was individual; here the earlier suit was representative and concerned tarwad common rights only.
The Court further held that decisions relied upon by the District Judge (including Nynam Veetil Mayan Kutti and Gopalan v. Sankaran Nair) were inapplicable because causes of action and parties differ; the correctness of some of those decisions was also said to be open to doubt but the Court deemed it unnecessary to decide those points because S.11 C.P.C. in any event did not apply to the present case.
Conclusion of the analysis: because the title now asserted (putravakasam tavazhi/private right) is distinct from the tarwad title litigated earlier, the bar of res judicata under S.11 C.P.C. does not apply, and consequently the bar under S.47 C.P.C. does not arise.

Holding and Implications

The learned District Judge's order is set aside and the decision of the District Munsif is restored with costs here and in the Court below.

Implications:

Direct effect: The appeal is allowed; the District Munsif's ruling (that the present suit is not barred by the prior decree and that the plaintiff's private putravakasam title can be maintained) is restored. The plaintiff's claim for rent can therefore be pursued consistent with that ruling.
Costs: The judgment orders costs in favour of the appellant here and in the lower court, as specified in the opinion.
Precedential impact: The Court did not purport to lay down any novel general principle beyond applying established distinctions between representative (tarwad) and private/individual titles for the purposes of res judicata. The opinion expressly states that it is unnecessary to decide the correctness of certain earlier decisions and does not indicate that a new binding precedent was created.

Signed: Satyanarayana Rao, J.; concurrence by Viswanatha Sastri, J. (who agreed with the conclusion and reasons referenced to another judgment S.A No. 2329 of 1947).

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Cheria Veetil Madhavan Variar (Died) And Others v. Chathu Nambiar Of Memenda Amsom Kizhal Desam And Others.

Satyanarayana Rao, J.—The plaintiff obtained in the District Court the decree for rent claimed by him for the years 1932 to 1942 but that decree was reversed on appeal by the learned District Judge on the ground that his title to the suit property became extinguished by reason of a prior decree in O.S No. 183 of 1931 on the file of the Badagara Additional District Munsif's Court.

The suit out of which this second appeal arises was instituted for recovery of rent due under a registered marupat dated 27-12-1909 executed by the 1st defendant's brother, one Krishnan Nambiar, since deceased to the plaintiff's brother, deceased Govinda Variar. The 2nd defendant in the suit is alleged to be the tenant under the 1st defendant and defendants 3 to 13 and 15 were subsequently impleaded as parties interested in the property under the will of Krishnan Nambiar, the executant of the marupat. The 14th defend, ant is a member of the tarwad of the plaintiff and he was impleaded to protect the interests of the members of the tarwad. The 1st defendant disclaimed interest in the property by his written statement and the 2nd defendant and the other defendants were the main contesting defendants. The principal defence to the action was that the suit was barred by reason of the decree in O.S No. 183 of 1931 on the file of the Badagara Additional District Munsif's Court and that the plaintiff had no title to the property. The title claimed by the plaintiff to the suit property is based on the compromise decree in O.S No. 419 of 1892 on the file of the District Munsif's Court, Badagara, in pursuance of which a kanam document Ex. P-2 was executed in respect of three items of property of which the suit property is one. This kanam deed states that the property was given as putravakasam property to be enjoyed by the children of Kunhunni Variar, and the plaintiff is the only surviving son of the said Kunhunni Variar entitled to the entire rights in the property as the sole surviving member of the putravakasam tavazhi. The plaintiff sues now to recover the rent due under the marupat. There is no dispute now that if otherwise the title of the plaintiff was not extinguished he would be entitled to recover the rent claimed by him in the suit.

In 1931 the plaintiff who was also the then karnavan of his tarwad instituted suit O.S No. 183 of 1931 for recovery of possession of the property on the basis that the title to the property vested in the tarwad. He obtained a decree for possession on that basis and a certificate copy of the decree is marked as Ex. P. 5. That decree was not executed and was allowed to be barred. The plaintiff now alleges that he did not know his rights at the time he instituted that suit as he was then under the impression that the property belonged to the tarwad while, in fact, it belonged to the putravakasam tavazhi of which he is now the sole surviving member. The learned District Munsif who tried the present suit overruled the plea of the defendants that the present suit was barred by the decision in O.S No. 183 of 1931. The earlier suit was brought by the plaintiff as a karnavan of his tarwad while the present suit is based on a different title, viz., the title of the putravakasam tavazhi. The 14th defendant who was subsequently impleaded as a party to the suit is the senior most anandravan of the tarwad. The view of the learned District Munsif is that the parties were not litigating in the previous suit under the same title as is now claimed in the present suit and therefore there was no bar of res judicata for the present suit under S. 11 Civil Procedure Code. The learned District Judge assumed that at the time the earlier suit was instituted by the plaintiff as karnavan he was the only member of the tarwad then alive and that therefore he would have validly included the alternative title based on the putravakasam tavazhi right, in the earlier suit and as he failed and neglected to plead the alternative title and make it a ground of attack in the earlier suit he is now precluded from asserting the title of the putravakasam tavazhi in the present suit. According to his opinion the only course left open for the plaintiff was to have executed the decree in the earlier suit and the present suit was also barred under S. 47 Civil Procedure Code. He relies for this position on the decision of the Full Bench in Narayanan Nambudri v. Theva Amma(1) and he also adds as a further ground for disallowing the claim of the plaintiff that the cause of action for the suit became merged in the earlier suit and that the second suit was incompetent also on the principle of the decision in Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad(2) and Gopalan v. Sankaran Nair(3). In the latter decision it was held by Wadsworth and Patanjali Sastri, JJ., that a subsequent suit for rent based on a lease, after the plaintiff had once obtained a decree in ejectment on the basis of that very lease was incompetent under S. 47 Civil Procedure Code.

Under S. 11 of the Civil Procedure Code one of the requisites for applying the principle of res judicata is that the issue raised in the second suit must have been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title. If the title asserted in the second suit is different from the title which was in issue in the earlier suit the bar under S. 11 does not apply. In the earlier suit, the property was claimed as the property of the tarwad and the plaintiff instituted that suit in a representative capacity. As held by Justice Halloway in an unreported decision in A.S No. 120 of 1862 “A Malabar family speaks through its head in all Courts of Justice and except in antagonism to its head can speak in no other way.” It is on this principle that the earlier suit was constituted as a representative suit by the karnavan. The assumption made by the learned District Judge that, at that moment, the plaintiff was the sole surviving member of his tarwad is obviously incorrect as there is the 14th defendant who is the seniormost anandravan of the tarwad who is still alive. As pointed out by the learned District Munsif, the Marupat now in suit—Ex. P. 1 was taken by the plaintiff's brother Govinda Variar at a time when the karnavan of the tarwad was one Raghava Variar as is proved by the fact that this Raghava Variar was alive even in 1914 (Ex. P. 4). The marupat now in suit could not, there, fore, have been taken by Govmda Variar on behalf of, and in his capacity as, karnavan of the tarwad. In view of the finding of the learned District Munsif which has not been challenged, the property, it has now been conclusively established, belongs in fact to the putravakasam tavazhi of which the plaintiff is now the sole surviving member. The title, therefore, now put forward by the plaintiff is totally different and wholly independent of the title put forward in the earlier suit. The decision in A. Narayanan Nambudiri v. Puthisseri Theva Amma does not conflict with the view that if the title put forward in a subsequent suit is different the principle of res judicata does not apply. On the contrary, the observations at page 65 of the report support the contention urged on behalf of the appellant by Mr. Sesha Aiyar, the learned Advocate. It was observed at page 65:

“It appears to me that it does not follow that because a decision is binding upon a person, therefore, he must be taken to be a party to the suit. Prima facie only those are parties to the suit within the meaning of S. 47 Civil Procedure Code whose names appear in the decree. If any person's name so appears, then all questions raised by him relating to the execution etc., of the decree should be determined by the execution department, and not by a separate suit. If his name does not so appear, then the next question is were his interests (that is, those put forward by him) represented in the suit. He may have his own separate or private interests, and he may have his common interests in the tarwad properties as a member of the tarwad. If only his common interests in the tarwad were represented, then it seems to me it is impossible to hold that his other interests (separate and private interests) should also be taken to have been represented in the suit, with the result that if in execution proceedings occasion arises for putting forward such separate and private interests, he should be treated not as a stranger qua such interests but as a party to the suit within the meaning of S. 47 Civil Procedure Code.”

This last sentence in the quotation clearly gives out the distinction between the representative interest of a karnavan of the tarwad and his separate interest. He represents the common interests of the tarward in the suit and no more. The fact that he was a party in a representative capacity would not make him represent also his separate and private interests in that particular suit. It cannot, therefore, be assumed that when the plaintiff instituted the earlier suit he thereby brought into the action not only the interests of the tarwad which he held in common with the other members of the tarwad but also his individual, separate or private, interests. The view taken by the learned District Judge, therefore, that the earlier suit operates as res judicata cannot be upheld.

It was also suggested on bealf of the respondent that, at any rate, the plaintiff in the earlier suit must have made this alternative title as a ground of attack and as he did not do so it must be deemed to have been a matter directly and substantially in issue in the earlier suit under explanation 4 to S. 11 Civil Procedure Code and he is now precluded from raising that question in a suit in which the tarwad rights are being agitated. The explanation requires that the matter not only “might” but “ought” to have been made a ground which implies that he was bound to include the present claim also in the earlier suit. There is no justification for holding that the plaintiff was under a duty to have included in that suit his individual or private right to the property. No principle of law and no decision in support of the argument that he is under an obligation to so include the present claim in the earlier suit has been brought to our notice; nor are we able to find any authority in support of such a view. No doubt a person in instituting a suit for recovery of possession of property based on his title in his individual capacity is bound to include all the available grounds of attack, that is all the available titles under which he could have recovered possession of the property as, for example, in the case in Fateh Singh v. Jagannath Baksh Singh. In that case, the first suit was instituted by the plaintiffs as the presumptive heirs to a widow's estate and when the widow died during the pendency of the suit the presumptive heirs applied to amend the plaint by setting up a family custom of inheritance and claiming possession of a share in the property. That application failed and the presumptive heirs thereafter admitted that, apart from the alleged custom, they could not succeed in the suit. The suit was accordingly dismissed. They instituted the subsequent suit basing their right to recover possession of the property on the alleged family custom. One of the questions decided was that they could not maintain a suit as they were bound to have included the title based on family custom in the earlier suit. On those facts if I may say so with respect it was rightly held by the Privy Council that the claim was within explanation 4 to S. 11 C.P.C and was barred by res judicata. But that decision, in my opinion, has no bearing on the question now under consideration for the reason that the capacities of the plaintiff in which the two suits were instituted were different and the titles agitated by the parties were also totally different. As karnavarthe of the tarwad the plaintiff was bound to include in the earlier suit all the available titles of the tarwad and not his individual right. As the cause of action in the present suit is different from the cause of action in the earlier suit, the decision in Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad has no application. In the judgment in S.A No. 2329 of 1947 which has been delivered today I have given reason for not applying the principle of the decision in Nynam Veetil Mayan Kutti v. Valappilakath Kunhammad, where the causes of action are different. Nor does the decision of Wadsworth and Patanjali Sastri, JJ., in Gopalan v. Sankaran Nair, even if correctly decided, apply to the facts of the present case as the parties are different. The correctness of this decision is also open to doubt for the reasons mentioned in the judgment in S.A No. 2329 of 1947. It is, however, unnecessary in this second appeal to go into the question of the correctness of either the decision in Mayan Kutti v. Kuhammad, of the decision in Gopalan v. Sankaran Nair as S. 11 C.P.C, has no application to the present case. The bar, therefore, of S. 47 C.P.C, does not arise.

For these reasons, we are of opinion that the decision of the learned District Judge is wrong and must be set aside and that of the District Munsif restored with costs here and in the Court below. Ordered accordingly.

Viswanatha Sastri, J.: I had the opportunity of reading the judgment just delivered and I agree with the conclusion of my learned brother both for the reasons stated by me in my judgment in S.A No. 2329 of 1947 and for the reasons stated by him in his judgment in this second appeal.

N.R.R

Cheria Veetil Madhav... v. Chathu Nambiar Of Me...