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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Subba Row
  • Chinna Durai
  • A.M. Dunne
Judges
  • Sir Shadi Lal
  • Thankerton
  • Justice Lords Blanesburgh
Acts
  • S. 18, Religious Endowments Act, 20 of 1863,
  • S. 44, Evidence Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Subba Row
  • Chinna Durai
  • A.M. Dunne
Judges
  • Sir Shadi Lal
  • Thankerton
  • Justice Lords Blanesburgh
Acts
  • S. 18, Religious Endowments Act, 20 of 1863,
  • S. 44, Evidence Act,
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion Delivered by Lord Thankerton

Factual and Procedural Background

This is a consolidated appeal from a judgment and decree of the High Court of Judicature at Madras dated 30th November 1927, which set aside a judgment and decree of the Subordinate Judge of Masulipatam dated 5th February 1925 and dismissed the appellants' suit.

The present suit was instituted on 21st August 1923 by the appellants (together with a plaintiff who died during the trial) as representatives of the interested public under Order 1, Rule 8, Civil Procedure Code, with the Subordinate Judge's permission. The plaintiffs sought:

  • a declaration that five temples in the village of Vellatur (Guntur District) are public temples;
  • a declaration that certain inam lands situated in Kowthavaram village form the endowment of these temples;
  • restoration of possession of the lands to defendant 1, who was the hereditary Dharmakarta of the temples.

The defendants included the permanent lessee's successors in possession and members of an undivided family who had purchased the right to the annual rent reserved under the permanent lease.

The opinion recounts the relevant historical facts: the temples were built early in the 19th century by Thadikonda Seshayya, who left a will dated 26th August 1826 directing a permanent endowment; lands were purchased and gifted to the idols; subsequent generations conducted the temple affairs; mortgages, leases and litigation followed (key dates and instruments are described in the body of the opinion, including mortgage/lease dates of 1887–1888, a suit filed in 1891, later suits and appeals culminating in High Court decisions in 1913, and an execution sale in 1919).

Legal Issues Presented

  1. Whether the suit is barred by limitation.
  2. Whether the suit is maintainable under Order 1, Rule 8, Civil Procedure Code.
  3. Whether the suit is barred by res judicata.

Arguments of the Parties

Appellants' Arguments

  • The appellants argued that they represent the public interest and claimed the Kowtharam lands and the five temples as public endowments.
  • They conceded (through Mr. Dunne) that, subject to bona fides, the present appellants must be deemed to be claiming under the plaintiffs in the 1891 suit within the meaning of Explanation 6 to Section 11, Civil Procedure Code.
  • The appellants maintained that the 1891 suit was not bona fide: it was asserted to be collusive and conducted with gross negligence by the plaintiffs in 1891, and therefore those earlier decrees should not operate as res judicata against the present plaintiffs.
  • The appellants relied on inferences drawn from (a) failure to produce a deed of gift of 1838 and certain inam-enquiry documents in the 1891 proceedings, and (b) the omission to place the plaintiffs' oral and documentary evidence before the High Court on appeal from the 1891 trial court.

Respondents' Plea

  • The respondents relied on the judgments in the 1891 litigation (District Court judgment of 5th February 1892 and High Court dismissal of appeal on 3rd August 1893) as establishing res judicata.
  • They asserted that the appellants are claiming under the plaintiffs in the 1891 suit and that the matters in issue are substantially the same; therefore Section 11 and its Explanation 6 apply to bar the present suit unless the earlier litigation was tainted by fraud or collusion (as defined by Section 44, Evidence Act).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Lalla Sheo Churn Lal v. Ramnandan Dobey, (1895) 22 Cal 8 Illustrative of the principle that negligent conduct of a former litigation by a guardian (or representative) may bind an absent or later litigant in certain contexts. The opinion records this case as one of several illustrative authorities relied upon by the lower Courts, but their Lordships state they are not concerned to discuss its validity and conclude that the principle is not applicable to the present case.
Punnayyah v. Viranna, AIR 1922 Mad 273 (70 IC 668 = 45 Mad 425 = 42 MLJ 429) Illustrative authority on applying principles about negligent conduct of prior litigation by representatives acting for public interest or minors. The case is referenced as illustrative; their Lordships note the principle was accepted by lower Courts but hold the principle does not apply in the circumstances of this case.
Karri Bapanna v. Yerramma, AIR 1923 Mad 718 (74 IC 218 = 45 MLJ 324) Illustrative; additionally contains a view extending Section 44, Evidence Act to cases of gross negligence (as noted in the opinion). Their Lordships explicitly state they do not agree with the view in Karri Bapanna that Section 44 can be extended to cover gross negligence; they record the case but decline to adopt that extension.
Ananda Rao v. Appa Rao, AIR 1925 Mad 258 (85 IC 812 = 47 MLJ 700) Another illustrative authority concerning negligent conduct of prior litigation by representatives in public-interest suits. The opinion notes the authority but states the judicial principle exemplified by these cases is not applicable to the present facts; their Lordships do not rely on these authorities to avoid res judicata.

Court's Reasoning and Analysis

Their Lordships identified three main contested issues (limitation, maintainability under O.1 R.8 CPC, and res judicata) and determined that res judicata alone disposed of the appeal; consequently the Court did not express any opinion on the other two questions.

The Court's analysis proceeded as follows:

  1. Statutory framework: Section 11, Civil Procedure Code (including Explanation 6) is treated as mandatory. Under Explanation 6, the present appellants are deemed to be claiming under the plaintiffs in the 1891 suit because both claim as representatives of the public interest with respect to the temples and the Kowtharam lands.
  2. Standard for avoiding res judicata: The Court emphasized that the statutory exception to Section 11 is narrow. A litigant claiming under a party to a former suit can avoid the binding effect of res judicata only by taking advantage of Section 44, Evidence Act — which specifies the permissible grounds (fraud or collusion) to impeach prior proceedings. The Court held that negligence, even gross negligence, cannot be equated to fraud or collusion unless fraud or collusion is the proper and necessary inference from the facts.
  3. Concessions and appellants' evidential basis: Counsel for the appellants conceded the legal relationship to the 1891 plaintiffs (subject to bona fides). The appellants' attempt to impeach the 1891 decrees rested on inferences from (a) the non-production in 1891 of a deed of gift of 1838 and certain inam-enquiry documents, and (b) the omission to place the plaintiffs' oral and documentary evidence before the High Court on the 1891 appeal.
  4. Findings of lower Courts and appellate review: The Subordinate Judge had found the 1891 plaintiffs guilty of gross negligence in conducting the earlier litigation; the High Court reversed, holding there was no fraud, collusion or even gross negligence. Their Lordships reviewed the record and the evidence adduced in the present suit and found no basis to infer collusion or want of bona fides in the 1891 proceedings.
  5. Conclusion from analysis: Because the appellants did not establish fraud or collusion (as strictly required), and because the statutory condition of bona fides for applicability of Explanation 6 was not rebutted, res judicata applied. The Court therefore concluded that the decisions in the 1891 suit are binding on the present appellants.

The Court also expressly rejected the extension of Section 44 (Evidence Act) to encompass mere negligence or gross negligence as being adequate to avoid res judicata. They stressed the special protective context in which negligence principles were applied to minors or to parties who had sued through guardians and noted that those authorities did not establish a general rule applicable here.

Holding and Implications

APPEAL DISMISSED; HIGH COURT JUDGMENT AND DECREE OF 30TH NOVEMBER 1927 AFFIRMED

Direct consequences:

  • The appeal fails on the ground of res judicata and is dismissed with costs (as advised to His Majesty by their Lordships).
  • The High Court of Madras's judgment and decree dated 30th November 1927 are affirmed.
  • Because the Court disposed of the matter on res judicata, it did not decide (and expressly refrained from expressing any opinion upon) the questions of limitation or the maintainability of the suit under Order 1, Rule 8, Civil Procedure Code.

Broader legal implications reflected in the opinion:

  • The opinion emphasizes the mandatory effect of Section 11, Civil Procedure Code, and limits the avoidance of res judicata to the precise grounds recognized by Section 44, Evidence Act (fraud or collusion).
  • The Court refused to treat negligence or gross negligence as equivalent to fraud or collusion in the absence of facts permitting such an inference; it declined to extend Section 44 to cover gross negligence (expressly disagreeing with that aspect of Karri Bapanna's case where stated).

This summary is strictly confined to the facts, legal reasoning and conclusions as stated in the provided opinion and does not introduce any material not contained in that opinion.

Show full summary ...

    Talluri Venkata Seshayya And Others v. Thadikonda Kotiswara Rao And Others

    Lord Thankerton:-

    This is a consolidated appeal from a judgment and decree of the High Court of Judicature at Madras, dated 30th November 1927, whereby a judgment and decree of the Subordinate Judge of Masulipatam, dated 5th February 1925, was set aside and the appellants' suit was dismissed. The present suit was instituted on 21st August 1923, by the present appellants, along with plaintiff 5 who died during the trial, as representing the interested public, under O. 1, R. 8. Civil PC, with the requisite permission of the Subordinate Judge of Masulipatam. The plaintiffs seek a declaration that five temples of the village of Vellatur, Guntur District, are public temples and that certain inam lands, situated in Kowthavaram village, form the endowment of these temples, and they seek to have set aside : (a) a permanent lease in respect of these lands executed on 6th December 1888, by the then managers of the temples, (b) a mortgage deed on the security of these lands, dated 3rd November 1900, and (c) the Court sale effected in execution of the decree obtained on the basis of the said mortgage in O. S. No. 29 of 1911, on the file of the District Court of Kistna; they further seek restoration of possession of these lands to defendant 1, who is the present hereditary Dharmakartha of the temples. The other defendants are the persons who are in possession of the temple lands, claiming under the permanent lessee, and the members of an undivided family, who purchased the right to the annual rent reserved under the permanent lease.

    Three main questions were argued before their Lordships, namely, (1) whether the suit is barred by limitation, (2) whether the suit is maintainable under O. 1, R. 8, Civil PC, and (3) whether the suit is barred by res judicata. The appellants' failure on any one of these questions will involve the dismissal of the appeal. In the view that is taken by their Lordships, the suit is barred by res judicata, and it becomes unnecessary to deal with, or express any opinion upon either of the other two questions, or the particular facts out of which they arise. The five temples in suit were built early in last century by one Thadikonda Seshayya, a native of Vellatur and the grandfather of respondent 1's adoptive father, who had amassed wealth in Hyderabad and had returned to his native place. The temples were built for the deities of Siddhi Ganapati Swami, Rajeswara Swami, Bhimeswara Swami, Adi Seshachala Swami and Kameswara Maharani, and Thadikonda Seshayya conducted the festivals and the other affairs of the deities during his lifetime; he left a will, dated 26th August 1826, shortly before his death, directing his widow, Adilakshmamma, to make a permanent endowment for the temples to the extent of Rs. 70,200 out of his self-acquired properties. The widow purchased two sets of properties in the villages of Kowtharam and Peddapulivarru for the temples, conducted the affairs of the temples out of the lands so purchased, and afterwards made a formal gift of the lands to the idols. Another set of properties in the village of Vellatur was endowed to the same temples by the Zamindar of Narasaraopet.

    Seshayya's two sons, Siddhi Ganapati Doss and Nagabhushana Gajanana Doss, conducted the festivals and other affairs until the death of Ganapati in 1857. The latter's widow claimed the Dharrnakartaship, but the Collector decided in favour of Gajanana. In 1859 the Inam Commissioner granted an Inam title deed in respect of the Devadayam Inam situated in the village of Kowtharam. In 1867 Gajanana started borrowing money on the security of the Devadayam lands, which culminated in a usufructuary mortgage for Rs. 8,000, dated 15th January 1887, under which the lands of Kowtharam were handed over to the mortgagee. In order to discharge this mortgage, Gajanana and his adopted son Seshayya, granted the permanent lease of Kowtharam lands, dated 6th December 1888, which is in suit, and the mortgagee, Gopalkrishnamma, on the same day executed the counterpart of the lease.

    On 18th January 1891, two persons, interested in the temples and in the performance of the service and worship thereof, who had obtained the leave of the Court under S. 18, Religious Endowments Act, 20 of 1863, filed a suit, O. S. No. 4 of 1891 on the file of the District Court of Kistna, against Gajanana, his adopted son Seshayya and Gopalakrishna, the permanent lessee, claiming that the five suit temples at Vellatur were public temples, and praying for the removal of the first two defendants from the office of Dharmakarta. The main defence was that the temples and lands were private property to which Act 20 of 1863 did not apply. Gajanana died before the suit was heard. In a judgment dated 5th February 1892, the District Judge of Kistna dismissed the suit, holding that the temples were private and that the lands were a private foundation, and that Act 20 of 1863 did not apply. An appeal by the plaintiffs to the High Court of Madras was dismissed by a judgment dated 3rd August 1893. The respondents' plea of res judicata rests upon these judgments but before dealing with them, it will be convenient to refer to the subsequent history of the temples and the Kowtharam lands in suit.

    On 3rd November 1900, Seshayya mortgaged for Rs. 4,000 his rights in the Kowtharam lands, subject to the permanent lease, and the Vellatur lands to Vadlmannati Srinivasa Dikshit. Seshayya died about 1905 leaving a will by which he appointed executors and gave them directions for the management of the temples and the properties. He was survived by his widow Subbama, who brought a suit on 22nd October 1908, (O. S. No. 65 of 1908 in the District Court of Guntnr) against the executors of her husband's will, Srinivasa, the mortgagee, and others claiming the Vellatur lands on the ground that she had succeeded Seshayya as Dharmakarta and that the mortgage of 1900 and other alienations by Seshayya were not valid. This suit which did not relate to the Kowtharam lands was subsequently renumbered as O. S. No. 84 of 1910, and on 14th February 1913, the Subordinate Judge of Guntur decided in favour of Subbama, holding that the Vellatur lands were public endowments to the temples, and the mortgage of 1900, so far as relating to the Vellatur lands, was not binding on Subbama as hereditary manager of the temples. Meantime, Srinivasa had brought a suit on his mortgage in the District Court of Kistna (O. S No. 29 of 1911) against Subbama and the executors of Seshayya, in which Subbama contended that the mortgage was not binding on the properties. The Court granted a mortgage decree on 31st July 1912.

    Appeals were taken in the Guntur suit of 1910 and the Kistna suit of 1911 to the High Court of Madras, and judgment in both the appeals was delivered on 23rd March 1913. The High Court held that the mortgage of 1900 was binding on Kowtharam lands but not on Vellatur lands, and that the Kowtharam lands were liable to be sold. The decree of the Kistna Court was modified by dismissing the mortgagee's suit so far as Vellatur lands were concerned. On 15th April 1919, Srinivasa purchased the mortgaged properties at Kowtharam in execution of his mortgage decree. The appellants seek cancellation of this sale in the present suit. Shortly after the decision of the High Court of Madras, Subbama adopted respondent 1, and the validity of the adoption, although raised in the suit, is no longer challenged by the appellants, in view of the concurrent findings of the Courts below. It is unnecessary to refer to certain other suits which were brought during the intervening period before the present suit was brought in 1923. It is now necessary to return to the suit of 1891. Mr. Dunne, on behalf of the appellants, conceded that subject to the question of bona fides, the present appellants must be deemed to be claiming under the plaintiffs in the 1891 suit within the meaning of Expl. 6, S. 11, Civil PC, as they were both claiming as representing the public interest in the temples and the Kowtharam lands. He further conceded that the matter in issue in the two suits was substantially the same. But the appellants maintain that the 1891 suit was not a bona fide litigation, that it was brought by the plaintiffs in collusion with the defendants, and that there was gross negligence in the plaintiffs' conduct of the suit; and that accordingly it could not form res judicata against the present plaintiffs.

    The appellants' contention is founded on the non-production of a deed of gift of 1838 and of some of the documents connected with the inam enquiry and also on the fact that on their appeal to the High Court, the plaintiffs did not place their own oral and documentary evidence before the High Court, but only the defendants' evidence. The learned Subordinate Judge held that the plaintiffs in the suit of 1891 had been guilty of gross negligence in the conduct of the proceedings before the Courts and that therefore the decision in such a suit could not bind the present plaintiffs or the worshippers at large. This decision was reversed by the High Court, who held that the plaintiffs in the 1891 suit were not guilty of fraud or collusion, or even of gross negligence. In both Courts the principles relating to negligent conduct of a former litigation by a guardian in the name of a minor were accepted as applicable to the case of parties litigating on behalf of the public interest, as in the present case. The cases illustrative of this principle which are referred to in the judgments, are Lalla Sheo Churn Lal v. Ramnandan Dobey, (1895) 22 Cal 8, Punnayyah v. Viranna, AIR 1922 Mad 273 70 IC 668=45 Mad 425=42 MLJ 429, Karri Bapanna v. Yerramma, AIR 1923 Mad 718=74 IC 218=45 MLJ 324, and Ananda Rao v. Appa Rao, AIR 1925 Mad 258=85 IC 812=47 MLJ 700. Their Lordships are not concerned to discuss the validity of these decisions, or the illusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. Their Lordships would only add that they are not prepared to agree with the view expressed in Karri Bapanna's case (supra) that the principle of S. 44, Evidence Act, can be extended to cases of gross negligence.

    The provisions of S.11, Civil PC, are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of S. 44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. Under S. 11, Expln. 6, Civil PC, the plaintiffs in the present suit are deemed to be claiming under the plaintiffs in the 1891 suit, and again the statute defines a condition as necessary to the applicability of the section, namely, that the plaintiffs of 1891 litigated bona fide. In the opinion of their Lordships, no case of fraud apart from collusion being suggested, the appellants are bound to establish either that the 1891 decrees were obtained by collusion between the parties, or that the litigation by the 1891 plaintiffs was not bona fide. At the hearing before their Lordships, the appellants based their case entirely on inferences to be drawn (a) from failure to produce to the Courts in the 1891 suit certain documents, and (b) from the omission to lay the plaintiffs' evidence before the High Court. The appellants' oral evidence in the present suit tending to show collusion in the 1891 suit was not accepted by the subordinate Judge, and was not referred to before their Lordships. The Subordinate Judge's finding of gross negligence is very far from a finding of intentional suppression of the documents, which would amount to want of bona fides or collusion or of such intentional suppression of the plaintiffs' evidence before the High Court. In their Lordships' opinion, there is no evidence in this suit which establishes either want of bona fides or collusion on the part of the plaintiffs in the 1891 suit, and, accordingly, the appellants have failed to show that the decisions in the 1891 suit are not binding on them as res judicata. It follows, on this ground alone, that the appeal must fail. Their Lordships will humbly advise His Majesty that the appeal should be dismissed with costs and that the judgment and decree of the High Court, dated 30th November 1927, should be affirmed.

    Appeal dismissed.

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    Talluri Venkata Seshayya And Others v. Thadikonda Kotiswara Rao And Others
    (Nov 20, 1936)