Bai Nathi v. Narsi Dullabh, Bombay High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The plaintiffs filed suit to recover possession of certain properties listed in the plaint's schedules and claimed mesne profits, asserting that these properties formed part of a bhag in Rahad, Waghra Taluka. The 1st plaintiff claimed ownership as the daughter of Bapu, who was alleged to be the surviving owner of the bhag in dispute between himself and Desai Purshottam, his first cousin. The defendants asserted ownership through various familial and transfer claims involving Desai Manor and others. The suit was dismissed by the Subordinate Judge on the basis of a prior suit's decision that females were excluded from inheritance of this particular bhag. The prior suit involved parties including the 1st plaintiff and some defendants, and concluded that Desai Manor was not the nearest pitrai heir, thus dismissing the claim. The issue of female exclusion from inheritance was discussed but not finally decided in that suit. The present appeal challenges the dismissal on grounds including res judicata and misjoinder of parties and causes of action.

Legal Issues Presented

Whether the issue of female exclusion from inheritance in the bhagdari village of Rahad was conclusively decided (res judicata) by the prior suit under section 11 of the Code of Civil Procedure.

Whether misjoinder of parties and causes of action in the plaint warrants dismissal of the suit.

Whether the lower court erred in dismissing the suit without allowing amendment of the plaint to correct alleged procedural defects.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Niamut Khan v. Phadu Buldla	Consideration of whether an issue was finally decided and thus res judicata.	The Court noted that this case was referred to but contrasted with a later Privy Council opinion emphasizing finality of decision for res judicata.
Thakur Magundeo v. Thakur Mahadeo Singh	Clarification on the test for finality of decision under res judicata.	The Court adopted the test from this case that an issue is not res judicata if it was not necessary for the decree and no appeal was possible against the finding.
Parbati Debt v. Mathura Nath Banerjee	Support for the principle that an issue must be finally decided to constitute res judicata.	The Court followed this precedent in confirming the correct test for res judicata applied to the facts.
Daudbhai Allibhai v. Daya Rama	Supporting authority on the point of res judicata.	Heaton, J., concurred referencing his prior judgment in this case to support the conclusion on res judicata.

Precedent

Rule or Principle Cited For

Application by the Court

Niamut Khan v. Phadu Buldla

Consideration of whether an issue was finally decided and thus res judicata.

The Court noted that this case was referred to but contrasted with a later Privy Council opinion emphasizing finality of decision for res judicata.

Thakur Magundeo v. Thakur Mahadeo Singh

Clarification on the test for finality of decision under res judicata.

The Court adopted the test from this case that an issue is not res judicata if it was not necessary for the decree and no appeal was possible against the finding.

Parbati Debt v. Mathura Nath Banerjee

Support for the principle that an issue must be finally decided to constitute res judicata.

The Court followed this precedent in confirming the correct test for res judicata applied to the facts.

Daudbhai Allibhai v. Daya Rama

Supporting authority on the point of res judicata.

Heaton, J., concurred referencing his prior judgment in this case to support the conclusion on res judicata.

Court's Reasoning and Analysis

The Court analyzed the issue of res judicata by examining whether the question of female exclusion from inheritance was finally decided in the prior suit. It found that although the issue was heard and decided, it was not necessary for the prior suit's dismissal and thus was not finally decided. The Court emphasized that a finding not necessary to the decree and against a party who obtained the relief sought cannot be res judicata, especially when no appeal was possible or taken. Regarding misjoinder of parties and causes of action, the Court held that this is a technical defect that should not lead to dismissal without giving the plaintiff an opportunity to amend the plaint and correct the defects. The Court therefore set aside the dismissal order and remanded the case for trial on merits, allowing amendment under Order XLI, Rule 23 of the Code of Civil Procedure.

Holding and Implications

The Court reversed the decree dismissing the suit.

The suit dismissal on the ground of res judicata was held to be erroneous because the issue of female exclusion from inheritance was not finally decided in the earlier suit. The Court also ruled that misjoinder is a curable procedural defect and not a ground for outright dismissal. Consequently, the appeal was allowed with costs, and the case was remanded to the lower court for trial on the merits, with liberty to the plaintiff to amend the plaint if so directed. This decision directly reinstates the plaintiffs' opportunity to litigate their claim and does not establish a new precedent beyond clarifying the application of res judicata and procedural fairness in cases of misjoinder.

Bai Nathi v. Narsi Dullabh

Macleod, C.J:— The plaintiffs sued to recover possession of the properties described in Schedules C, E, F, attached to the plaint, and mesne profits, alleging that the plaint properties formed part of a bhag in Rahad in Waghra Taluka. The 1st plaintiff claims as the daughter of Bapu who is alleged to have become the owner of the bhag as a survivor between himself and Desai Purshottam, his first cousin. The 2nd defendant was the son of Bai Lalu, the sister-in-law of the plaintiff's mother. The 1st defendant claims title to the plaint property through Desai Manor, a distant relation of Bapu, and also in virtue of a transfer from. Gadbad, the 2nd defendant. The defendants Nos. 3 to 5 claim to be in possession through Bapu's cousin Desai Purshottam, and the 6th defendant claims through Desai Manor.

The suit was dismissed by the learned Subordinate Judge on the ground that it had been decided in a former suit, in which the 1st plaintiff and defendants Nos. 1, 3, 4 and 5 were parties, that females were excluded from inheritance to this particular bhag. That suit was brought by the transferees of Desai Manor against the present plaintiffs and others alleging that Desai Manor was the nearest male agnate and heir of Desai Purshottam and Bapu. The suit was dismissed on the ground that, whether females were excluded from the inheritance or not, Desai Manor was not proved to be the nearest pitrai heir to Bapu. An issue was raised whether the custom of the daughter's exclusion by a pitrai was proved to have been in existence in the bhagdari village of Eahad. The Court held that it was proved in the case that in the bhagdari village of Rahad the daughter was excluded from inheritance to her father's property. It must be noted that the suit was dismissed because plaintiffs claimed through Desai Manor who was not proved to be the nearest pitrai heir to Bapu, and, therefore, there was no necessity for a finding on the issue whether the daughter was excluded by a pitrai in this particular bhagdari village. It has been argued in support of the judgment of the Court below that this finding is res judicata within the meaning of section 11 of the Code of Civil Procedure. No doubt the issue was heard and the issue was decided, but it was not finally decided, because it was not necessary for the decision which the Court came to dismissing the suit, and Bai Nathi had no opportunity of appealing against the Court's finding on that issue. In fact there was no necessity for her to appeal, even if she could have appealed against it, because she got everything which she wanted in the suit which was filed against her. We have been referred to the case of Niamut Khan v. Phadu Buldla. But that case was referred to in Thakur Magundeo v. Thakur Mahadeo Singh, The Judges there say that the Privy Council in a more recent case have expressed an opinion which is in opposition to the judgment of the Full Bench in Niamut Khan v. Pliadu Buldia. The test they applied is this has the issue been finally decided, and they say “We think that the finding of the Court in the previous suit was not final, inasmuch as the decree was not based upon it, and there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded,” and that case was followed in Parbati Debt v. Mathura Nath Banerjee.In my opinion that is a correct test to apply to the question before us. If when drawing up the decree it had been declared that females were excluded from inheritance in this bhagdari village, then it might have been urged that the matter had been finally-decided, on the ground that Bai Nathi might have appealed against that decision, and had not done so. But ordinarily where a suit is dismissed nothing is stated in the decree except “the suit is dismissed.” Against that decree the defendant cannot appeal. In my opinion, therefore, the finding of the lower Court that this question was res judicata against Bai Nathi was wrong, and therefore the suit ought not to have been dismissed on that ground.

But it has been suggested that the suit is also liable to be dismissed as bad for misjoinder of parties and causes of action. That should never be a ground by itself for dismissing a suit. The party against whom misjoinder is alleged, must always have an opportunity of remedying the defect, by striking out the parties who ought not to have been joined and amending the plaint, and also by making any necessary amendments so as to strike out any causes of action which ought not to have been joined. This is only a technical ground, which should never form the foundation for an order dismissing a suit, as the matter can always be put straight by directing the party who has made the original mistake to pay the costs of the opposite party incurred on account of a mistake having been made. Therefore the order dismissing the suit must be set aside and the appeal allowed with costs. The case will then go back to the lower Court to be tried on the merits under Order XLI, Rule 23, and the plaintiff must have an opportunity, if the Judge so directs, to amend her plaint.

Heaton, J.:— I agree, and as to the point of res judicata I agree for the reasons given by me in my judgment in the case of Daudbhai Allibhai v. Daya Rama.

Decree reversed.

J.G.R