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Parsotam Rao Tantia v. Radha Bai
Legal Opinion Summary — Richards and Tudball, JJ.
Factual and Procedural Background
The plaintiffs sued for a declaration that they were the proprietors in possession of the property in suit and that the defendant, Musammat Radha Bai (widow of Madho Rao), had no right to the property or to have her name entered in the revenue records. The family pedigree (admitted correct) and the facts arise from a will made by Nana Narain Rao dividing his property between his three sons. Litigation began circa 1901 when one son, Babu Ram Chandra Rao, claimed partition. Parsotam Rao and Madho Rao (two of the sons) were defendants in that partition suit; their pleadings shifted during proceedings for tactical reasons. Ram Chandra Rao died during the pendency of that suit and his widow, Musammat Janki Bai, continued the litigation. The litigation proceeded through multiple courts and the High Court ultimately decreed in March 1907 that the family was separate.
Madho Rao died in 1905 while the earlier litigation was pending. In the present suit the learned Subordinate Judge dismissed the plaintiffs' claim on the basis of section 42 of the Specific Relief Act (holding that Musammat Radha Bai was in possession after mutation in her favour and that the plaintiffs sued only for declaration without seeking possession), and refused to permit amendment of the plaint to add a claim for possession. On appeal, Richards and Tudball, JJ. declined to uphold the decree on the Section 42 ground but dismissed the appeal on the alternative basis that the prior partition decree precluded the plaintiffs from re-opening the questions previously adjudicated.
Legal Issues Presented
- Whether the plaintiffs were entitled to a declaration of proprietorship and to prevent Musammat Radha Bai from getting her name entered in the revenue papers.
- Whether the suit was barred by section 42 of the Specific Relief Act because the defendant had been mutated as being in possession.
- Whether the decree in the earlier partition litigation operated as res judicata and precluded the plaintiffs from bringing the present suit.
- Whether the document executed by Madho Rao on 31 January 1905 could be construed as a will/bequest that altered the rights of the parties.
Arguments of the Parties
Appellants' (Plaintiffs') Arguments
- The appellants contended that the decision in the prior partition suit could not operate as res judicata against them because it did not appear that there was any dispute or conflict of interests between the present plaintiffs and Madho Rao in that prior suit; in the earlier proceedings they and Madho Rao had been arrayed on the same side (the defendants' side), and therefore the prior decision should not preclude them from re-opening the question as between themselves and Musammat Radha Bai.
- The appellants sought to amend the plaint to add a claim for possession (which the Subordinate Judge refused to allow) and argued that amendment should be permitted so that all points could be adjudicated.
- It was contended (by a party in the present proceedings) that a document dated 31 January 1905 executed by Madho Rao ought to be construed as a will and that its declaration as to the family being joint should be treated as a bequest in favour of other family members, with consequential effects on rights.
Positions Noted from the Lower Court / Respondent-Linked Contentions
- The learned Subordinate Judge treated the mutation of the revenue record in favour of Musammat Radha Bai as establishing her possession and held the plaintiffs' suit to be a mere declaration suit barred by section 42 of the Specific Relief Act, because they did not claim possession.
- The Subordinate Judge also refused to permit amendment of the plaint to claim possession on payment of the proper court fees.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheikh Khoorshed Hossein v. Nubbee Fatima | That "a decree for partition is not like a decree for money or the delivery of specific property... It is a joint declaration of the rights of persons interested in the property ... and such a decree ... is in favour of each share-holder." | The Court relied on this principle to treat a partition decree as a joint declaration binding each sharer and to support the conclusion that a subsequent suit by a sharer for declaration of his interest is unnecessary and barred. |
| Dost Muhammad Khan v. Said Begam | Approval of the view that a partition decree is a joint declaration that decides the interest of each sharer and renders subsequent suits by sharers unnecessary. | The Court cited this case (and the observations at page 87 of the report) to reinforce that the earlier partition decree determined the shares and therefore precluded later suits by those sharers to re-open the same questions. |
| Assan v. Pathumma | Explanation that in a suit for partition every co-owner, whether plaintiff or defendant, is in effect both plaintiff and defendant and can claim the allotment of his share by decree. | The Court used this reasoning to support the proposition that a partition suit, properly constituted, allows a decree to be a complete and binding determination of the rights of all sharers, preventing parties from being driven to subsequent suits. |
| Ashidbai v. Abdulla Saji Muhammad | That for a valid, final and binding decree for partition the court must have before it all persons admittedly having or claiming shares; the court must determine quantum of shares and allot to each party, whether plaintiff or defendant. | The Court relied on these observations to emphasize that an earlier final partition decree, having determined the shares, should prevent a defendant from being forced into another suit to get what has already been determined and allotted. |
Court's Reasoning and Analysis
The Court undertook a two-step analysis. First, it considered the ground on which the Subordinate Judge dismissed the plaintiffs' suit (section 42 of the Specific Relief Act because Musammat Radha Bai had been mutated as in possession). The appellate court stated it was "impossible to support the decree of the court below on the ground on which it was passed" and indicated that, had that been the only issue, the court would have allowed the plaintiffs to amend their plaint to include a claim for possession so that all points could be decided between the parties.
Second, and crucially, the Court found an alternative and decisive ground for dismissal: the doctrine of res judicata as applied to the earlier partition litigation. The Court explained that the prior suit (Babu Ram Chandra Rao v. Parsotam Rao and Madho Rao) resulted in a binding decree of the High Court declaring the family to be separate. The Court relied on established principles from the cited authorities that a partition decree is a joint declaration fixing the interest of each sharer (whether plaintiff or defendant). Because the earlier decree had ascertained the rights of the parties in the partition suit, and because the present plaintiffs and Madho Rao had been parties in those proceedings (with the widow of Madho Rao being a respondent in the appeal from that litigation), the Court concluded it was not open to the plaintiffs to re-open the questions decided in the former suit.
The Court expressly addressed two particular allegations in the present plaint. First, it held that the allegation of re-union pleaded in paragraph 5 had already been decided against the plaintiffs by the earlier decree (the High Court had held there had never been a joint title and therefore reunion could not arise). Second, regarding paragraph 7, the Court examined a document dated 31 January 1905 (produced on adjournment and assumed genuine for purposes of argument). That document contained a declaration by Madho Rao that the family was joint and directions about maintenance; the Court concluded the document was executed in the context of the pending litigation and "solely for purposes of the then pending litigation" and therefore could not be construed as a testamentary bequest or as altering the legal position established by the earlier decree. On that basis the document was held to have no bearing on the appeal.
Having applied these legal principles and the authorities cited, the Court concluded that the plaintiffs could not re-open the questions adjudicated in the prior partition proceedings and therefore dismissed the appeal.
Holding and Implications
Holding: The appeal was dismissed with costs. The Court ordered: Appeal dismissed.
Implications:
- Direct effect on the parties: The plaintiffs' attempt to obtain a declaratory judgment that they were proprietors in possession and to exclude Musammat Radha Bai from the revenue records was rejected; the earlier partition decree stands as the binding determination of the parties' rights.
- The Court indicated that the Subordinate Judge's reliance on section 42 of the Specific Relief Act as the basis for dismissal was unsustainable in the appellate view and that amendment to plead possession could have been permitted; nevertheless, the appeal failed on the independent ground of res judicata arising from the earlier partition decree.
- No new legal principle was formulated; the decision rests on application of established authorities concerning the nature and effect of partition decrees and the binding character of those decrees on sharers.
Appeal dismissed.
Richards and Tudball, JJ.:— This appeal arises out of a suit brought by the plaintiffs for a declaration that they were the proprietors in possession of, and the defendant Musammat Radha Bai had no right to, the property in suit and that the said Musammat Radha Bai was not entitled to get her name entered in the revenue papers. Musammat Radha Bai is the widow of Madho Rao, who was a nephew of the plaintiff Parsotam Rao. A pedigree of the family, which is admitted to be correct, will be found at page 5 of the paper book. One Nana Narain Rao made a will, under which he divided up his property between his sons. The will contained a provision that it might be well for the family of Nana Narain Rao if, notwithstanding the division, it continued together. The terms of the will gave rise to some litigation which was commenced about the year 1901. In that suit one Babu Ram Chandra Rao, one of the three sons of Nana Narain Rao, claimed a partition. He claimed that if his father's will operated to divide the family, he was entitled to a partition by metes and bounds of the property bequeathed to him. If, on the other hand, the family was joint and undivided, notwithstanding the will, he claimed usual partition of all the family property. Parsotam Rao was a defendant to that suit, as also Madho Rao representing the third brother. Madho Rao and Parsotam Rao pleaded that the family was separate. At that time they considered it best for their interests to plead separation, which would tie Ram Chandra Rao to the particular property bequeathed to him by the will. However, during the pendency of the suit, Ram Chandra Rao died and his widow took his place; and then it became the interests of the defendants Madho Rao and Parsotam Rao to urge that the family was joint. By doing so, the rights of Musammat Janki Bai, the widow of Babu Ram Chandra Rao, would be limited to a mere right of maintenance. The suit was litigated from court to court, and finally there was a binding decree of the High Court holding that the family was separate. This decree was passed in March, 1907. Madho Rao died in 1905, while the litigation was pending, but subsequent to the prelimkiary decree in the original court. The learned Subordinate Judge has dismissed the present suit on the ground that the suit is barred by the provisions of section 42 of the Specific Relief Act. It appears that after the decision of the High Court already referred to mutation of names was passed in favour of Musammat Radha Bai in respect of the share of Madho Rao, and the learned Judge held that it follows that Musammat Radha Bai must be deemed to be in possession, and that therefore the plaintiffs' suit fails because they have sued for a mere declaration without asking for possession. At the same time the learned Judge refused to allow the plaintiffs to amend the plaint by adding acclaim for possession on payment of the proper court fees. We think it is impossible to support the decree of the court below on the ground on which it was passed. If there was nothing else in the case, we certainly would have allowed the plaint to be amended under the circumstances, so that all points might be threshed out between the parties. We, however, think that there is another clear ground on which the plaintiffs' suit ought to be dismissed, namely, that having regard to the decision in the suit of Babu Ram Chandra Rao v. Parsotam Rao and Madho Rao, it is no longer open to the plaintiffs Parsotam Rao and his son to bring the present suit. The decree passed in the previous suit was a decree ascertaining and declaring the rights of the parties in a suit for partition. Madho Rao, Parsotam Rao and Ram Chandra Rao were, as already mentioned, parties to that suit. It is argued on behalf of the appellants that inasmuch as it does not appear that there was any dispute or conflict of interests between the plaintiffs in the present suit and Madho Rao, and as they were all arrayed on the defendants'side in the prior suit, the decision in that suit cannot operate as res judicata, and that the plaintiffs are now entitled to re-open the entire question as between themselves and Radha Bai, the widow of Madho Rao. The nature of a partition suit has been dealt with in a number of cases. In the case of Sheikh Khoorshed Hossein v. Nubbee Fatima the learned Judges were of opinion that “a decree for partition is not like a decree for money or the delivery of specific property, which is only in favour of the plaintiff in the Suit. It is a joint declaration of the rights of persons interested in the property of which partition is sought, and such a decree, when properly drawn up, is in favour of each share-holder or set of share-holders having a distinct share.” This case was cited with approval by a Bench of this Court in the case of Dost Muhammad Khan v. Said Begam . The remarks of the learned Judges will be found at page 87 of the Report. They observe:—“In a suit for partition (as the former suit Was) the decree is or ought to be a joint declaration of the rights of the persons interested in the property of which partition is sought, and is a decree in favour of each sharer. It decides what interest each of the sharers has in the property, the subject of partition, whether those sharers be plaintiffs or defendants, and renders unnecessary any subsequent suit by any of such sharers for a declaration of his interest in the property.” In the case of Assan v. Pathumma the Madras High Court deals with the nature of a partition suit at page 499:—“If on the other hand they were suits for partition, which in my opinion, they really were, a fortiori the plaintiffs were entitled to join. For in a suit for partition each co-owner, as against another, occupies in himself the role of plaintiff as well as defendant. It is in consequence of the reciprocal character of the right which co-owners have in the matter of partition that even those who are not actual plaintiffs can claim that their shares be allotted to them by the decree.” The learned Judge refers to the case of Sheikh Khoorshed Hossein v. Nubbee Fatima, already referred to, and also to Domat's Civil Law, paragraph 2757. In the case of Ashidbai v. Abdulla Saji Muhammad the learned Judge says, at page 291:—“When a suit for partition is brought by a person alleging that it is undivided property and that he has a share in it, the law requires that in order to enable the court to ascertain such person's share it must have before it as parties to the suit all the persons admittedly having or claiming to have shares in the property, otherwise there cannot be a valid, final and binding decree for partition. The quantum of the share of the plaintiff must be determined with reference to the number of sharers and their respective shares. And such a determination of the shares, being essential for the determination of the plaintiff's share, enables the court to pass a complete decree for partition allotting to each party, whether he is plaintiff or defendant, his share. In such a case it is obvious injustice that a defendant should be driven to another suit to have his share, already determined, partitioned off. That is the reason of the rule.” We quite agree with the view taken in the several cases we have referred to, and we think that the plaintiffs cannot re-open any of the questions which were tried in the former suit. It is worthy of note that when the appeal in the former litigation was decided, the widow of Madho Rao, i.e, the present defendant, was arrayed as a respondent with the present plaintiffs as appellants.
At the conclusion of the judgement our attention was called to paragraphs 5 and 7 of the plaint. With regard to paragraph 5, where it is pleaded that re-union took place, we must say that this question of re-union has already been decided in the former suit. The learned Judges say:—“But in addition to this there had never been a joint title to the testator's property in the hands of his sons. Nana Narain Rao held it as self-acquired property, he made three separate devises to his sons, who took separately as self-acquired property the interest so devised to them. That being so, a question of reunion does not arise., That cannot be reunited which had never been joint”. In paragraph 7 of the plaint it is alleged:—“Madho Rao executed a document on the 31st of January, 1905. In it he repeated the allegation of his family being joint and fixed only a maintenance allowance from Rs. 50 to Rs. 75 for Musammat Radha Bai in case she refused to live with the plaintiffs. If for some reason or other, the family of the plaintiffs and Madho Rao should be considered to be separate according to law, the result of this document would be that Madho Rao made the plaintiffs owners of the property and only fixed a maintenance allowance for the defendant.” Having regard to the above allegations, which raised a question which had not been specifically dealt with in the court below, we allowed an adjournment to enable the appellant to produce before us the document of the 31st January, 1905. Mr. Surendra Nath Sen has produced a certified copy of the said document. We assume, merely for purposes of argument, that this document of the 31st January, 1905, is, a genuine document and proceed to consider its provisions in order to ascertain if it could possibly have any bearing on the present appeal. The document (assuming it to be genuine) was executed by Madho Rao a day before his death. At that time the litigation between Musammat Janki Bai and Parsotam Rao and Madho Rao was still pending. We have already pointed out that Madho Rao in conjunction with Parsotam Rao was at that particular period setting up the case that the family was joint for the purpose of defeating the claim of Musammat Janki Bai as the widow of Baba Ram Chandra Rao. The relevant portion of the document is a declaration by Madho Rao that the family was joint, and an exhortation to his nephew Waman Rao Bhaiya, to whom the document was addressed, as to how he should manage the property, and giving instructions as to the amount of maintenance to be paid to the widow in certain events. It is contended that this document ought to be construed as a will and that the declaration as to the family being joint ought to be construed as a bequest of the property of Madho Rao to the other members of the family, as if the family was joint and not separate. We think it quite impossible be give this construction to the document. The document was executed solely for purposes of the then pending litigation, in the hope probably that it might be used as evidence. In the view we take of the true construction of the document, it can have no bearing, even on the assumption that it is genuine, on the present appeal. The order of the Court accordingly is that the appeal be dismissed with costs.
Appeal dismissed.
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