These two appeals arise out of the partition suit No. 19 of 1936 of the Court of the Subordinate Judge, Jalpaiguri, instituted by one Khateman Nessa Bibi, since deceased, for self and on behalf of her two minor sons claiming in all pies share in the properties given in the schedule to the plaint as some of the heirs, of late Safik Uddin Ahammad.
Admittedly the properties given in the schedule ka to the plaint once belonged to Safik Uddin Ahammad and he died on March 11, 1924. The present suit was instituted on September 9, 1936.
The plaintiffs' case is that the said Safik Uddin Ahammad married three wives, namely, Taibannessa, who predeceased him, Bibi Tanjina Khatun, the defendant No. 1 in this case, and Bibi Khateman Nessa, the plaintiff No. 1; and that he died leaving the following relations as his heirs;—
1. Two wives—
(a) Bibi Tanjina Khatun, defendant No. 1;
(b) Bibi Khateman Nessa, plaintiff No. 1;
2. Five sons—
(a) Khalilar Rahaman, plaintiff No. 2;
(b) Khatibar Rahaman, plaintiff No. 3;
(c) Latifar Rahaman, died before suit;
(d) Tahmidar Rahaman, defendant No. 3;
(e) Tabiur Rahaman, defendant No. 2.
3. Two daughters—
(a) Syeda Khatun, defendant No. 4;
(b) Sufia Khatun, died before suit.
Latifar Rahaman's heirs are the plaintiffs themselves. Sufia Khatun's heirs, are her husband Moulvi Ahamad Hossain Pradhan (defendant No. 5) and two daughters Begum Umme Salema (defendant No. 6) and Begum Rabeya Khatun (defendant No. 7).
The plaintiffs thus claimed pies share of the properties left by Safik Uddin Ahammad.
It is not disputed that if the plaintiffs are the widow and sons of Safik Uddin as stated in the plaint their share in the property will be pies.
It has been found by the Court of first instance that the items 3, 7, 14, 15, 17, 20, 21, 22, 23, 24, 27, 28, 30 and 36 of Sch. ka were sold away in execution of decrees for arrears of rent obtained by the landlords in suits to which the present plaintiffs were made parties as heirs of Safik Uddin Ahammad and purchased by the defendants Nos. 17 and 18. Consequently the plaintiffs' claim to those properties were barred by the provisions of s. 47 and O. XXI, r. 92 of the Code of Civil Procedure. The Subordinate Judge dismissed the plaintiffs' claim in respect of these properties, but allowed them their costs against the defendants Nos. 17 and 18. There has been no appeal or cross-objection by the plaintiffs regarding these properties. The defendants Nos. 17 and 18, however, have preferred an appeal against the decree for costs. This is F.A 34 of 1939.
The defendants Nos. 1 to 7 are not contesting the claim of the plaintiffs.
So far as the properties now in dispute are concerned the only contest is by the defendants Nos. 9 and 14 and they are claiming the properties on the strength of mortgages given to the defendant No. 14 by the defendant No. 1 for sale and as certificated guardian of her minor sons, the defendants Nos. 2 and 3. The defendant No. 14 instituted suits in enforcement of these mortgages against these defendants Nos. 1 to 3, obtained decrees in them and put these properties to sale in execution of those decrees and purchased some of them himself, the others being purchased by the defendant No. 9. The defendant No. 9 also claimed title to some of these properties on the strength of his purchase in execution of a decree for arrears of rent obtained by the landlord in suits to which the plaintiffs were not at all impleaded. It may be stated that in none of the above transactions and proceedings the plaintiffs were parties.
The case of the contesting defendants was:—
(1) that the plaintiff No. 1 was not the widow of late Safik Uddin Ahammad and that the plaintiffs Nos. 2 and 3 were not the sons of Safik Uddin; that the plaintiff No. 1 was never married to Safik Uddin;
(2) that Safik Uddin died leaving defendant No. 1 and defendants Nos. 2, 3, 4 and one Safia Khatun as his legal heirs; that they were in exclusive possession of the properties to the knowledge of the plaintiffs.
These defendants further contended that in more than one suit the plaintiffs themselves declared that they were not the legal heirs of late Safik Uddin Ahammad and defendants Nos. 1 to 4 in the presence of the plaintiffs asserted their exclusive right and title to the properties left by Safik Uddin and there have been several decisions by this Court and other Courts that the plaintiffs are not the legal heirs of Safik Uddin.
Fourteen issues vpere raised on the pleadings of the parties. Of these issues 5, 8 and 11 only will be relevant for the purposes of the appeals before us and these were as follows:—
5. Is the suit barred by the rule of res judicata? Can the plaintiffs maintain the suit without setting aside the decrees and execution sales at which the defendants purchased the properties? Are they bound by decrees and execution proceedings in which the defendants purchased some of the properties?
8. Was plaintiff No. 1 the legally married wife of Safik Uddin Ahmmad?
Are plaintiffs Nos. 2 and 3 sons and legal heirs of Safik Uddin?
11. Have the plaintiffs their alleged title to the disputed properties? If so, what is the extent of their share?
The learned Subordinate Judge decreed the plaintiffs' claim in respect of the properties involved in this appeal on the following findings:—
(1) The issue as to whether or not Khateman Nessa was the legally married wife of Safik Uddin is not barred by the principle of res judicata;
(2)(a) Safik Uddin legally married Khateman Nessa, who was his maternal cousin, according to Mahamedan law and she was not his concubine;
(b) the defence story that Khateman Nessa was a maidservant in the house performing menial works both inside and outside the house, appearing in public road, accompanying Tanjina and others to railway station, walking behind the carts, etc., is quite absurd.
(3) Kiateman Nessa and her sons have all along been in possession and full enjoyment of their right in the properties left by Safik Uddin and they had nothing to suspect that their right was being denied by anybody.
The defendants Nos. 9 and 14 have preferred an appeal from this portion of the decree and this is F.A 7 of 1939.
In F.A 7 of 1939.
Mr. Gupta appearing in support of the same raised only the following points;—
(1) That the issue as to whether Khateman Nessa and her sons were the legal heirs of Safik Uddin was barred by the principle of res judicata between co-defendants in view of the prior decision on the matter in Rent Suit No. 1 of 1922.
(2) That on the evidence on record the reasonable conclusion is that Khateman Nessa was not married with Safik Uddin.
(3) That, in any case, the plaintiffs cannot be allowed to get their share in the property from the appellants except on payment of their share of the debt left by Safik Uddin.
Mr. Gupta also formulated a fourth point for the appeal, namely, “that the title of the plaintiffs, if any, became extinct by adverse possession”. He, however, gave this point up in course of the hearing of the appeal and conceded that, in view of the evidence on the record, there was no substance in it.
As has been stated above, the case of the plaintiffs is that the plaintiff No. 1, Khateman Nessa Bibi, was the legally married wife of Safik Uddin and that the plaintiffs Nos. 2 and 3 and Latifar Rahaman were the three sons of that marriage. The defendants, in their written statement, denied that the plaintiff No. 1 was the legally married wife of Safik Uddin and that her sons, the plaintiffs Nos. 2, 3 and Latifar Rahaman were the sons of Safik Uddin. On this pleading, therefore, the factum prohandum before the Court was “whether the plaintiff No. 1 was married with Safik Uddin and whether the plaintiffs Nos. 2 and 3 and Latifar Rahaman were the issue of that marriage”.
Though disputed at the hearing of the suit, it is 310 longer in dispute that the plaintiffs Nos. 2, 3 and iatifar Rahaman were begotten by Safik Uddin on the plaintiff No. 1 Khateman Nessa. The only fact now in dispute, therefore, is whether the plaintiff No. 1 Khateman Nessa was married with Safik Uddin, and, was so married before the birth of these children.
The case of the plaintiff is: (1) that Khateman Nessa was related to Safik Uddin as a cousin being his maternal uncle's daughter; (2) that she became an orphan when she was a mere infant of 7 or 8 years; (3) that Safik Uddin, who admittedly was a respectable gentleman of substantial means, brought her up from that age as a member of his own family; and (4) that on the death of his first wife in 1912 he himself married her and lived with her till his death; (5) that all the children were born of this marriage during this period.
Though, at the hearing of the suit, the defendants contested each one of these facts, they now admit—
(1) that she became an orphan at the early age of 7 or 8;
(2) that since then she was brought up by Safik Uddin in his own family;
(3) that from some time after the death of Safik Uddin's first wife till his own death he co-habited with Khateman Nessa in the same dwelling house with his admitted wife and children and begot children on her also, who were all born and brought up in the family house.
The only facts denied by them are (1) her relationship with Safik Uddin as cousin, and (2) her marriage with Safik Uddin.
At the trial the defendants wanted to say that Khateman Nessa was a mere maidservant in the family, doing menial services of all sorts, both outdoor and indoor. This case has now been abandoned. The case of the defendants now is that she was a mere concubine of Safik Uddin and all the children born of her were the issue of this concubinage.
In order to establish the factum of marriage, the plaintiffs relied on—
(1) the presumption arising in favour of the relationship of husband and wife from the now admitted fact of long, continuous and exclusive co-habitation as man and woman;
(2) the direct evidence of marriage given by the persons—
(a) taking part in the solemnisation of the marriage: P.W 3;
(b) attending the marriage: P.Ws 2, 4, 5, 6, 7, 8, 14, 16;
(c) invited to attend the marriage, though failing so to attend: P.Ws 10, 23;
(3) the evidence of opinion of certain relations as expressed by their conduct as to the relationship of husband and wife between Safik and Khateman: P.Ws 11 and 17.
In order to counteract this evidence the defendants relied on—
(1) the evidence of some relations—
(a) who denied the factum of marriage (D.Ws 31, 18); and
(b) asserted that she was kept in concubinage (D.Ws 18, 31);
(2) the conduct as expressive of opinion as to the relationship—
(a) of certain relations (Ex. S. Ex. 225, Ex. Y95, Ex. Y149 and D.Ws 18, 31);
(b) of certain officers of the family [Ex. Z116, Z81(b) and D.W Rampada Chatterji];
(3) alleged admissions by Khateman Nessa herself (Exs. W, W1, W2).
They also urged that the question could not be re-agitated in this suit, it having been decided in a former Rent Suit No. 1 of 1922 in which the present plaintiffs and the admitted heirs of Safik Uddin were arrayed as co-defendants. As the contesting defendants are claiming under the admitted heirs, that decision would operate as res judicata in their favour.
It may be noticed here that so far as the claim of the plaintiff No. 1 is concerned it is also a relevant question whether, assuming that she had been married with Safik Uddin, that relationship continued till the death of the latter. It is, however, not the case of the defendant that such relationship, if it existed at any time, ceased to exist subsequently before the death of Safik Uddin. Moreover, under s. 4 of the Evidence Act, it is open to a Court upon proof of a marriage to hold as proved the subsistence, of that marriage on later date, unless and until it is disproved; Ismail Ahmed Peepadi v. Momin Bibi . As has been pointed out above, in the present case nothing has even been pleaded against the subsistence of the marriage at the date of death of Safik Uddin, if there was such a marriage at all.
Section 2(1) of the Evidence Act prohibits the employment of any kind of evidence not specifically authorised by the Act itself.
What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute, to define. Once a statute is passed, which purports to contain the whole law, it is imperative. It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by the statute, because to him it appears that the irregular evidence would throw light upon the issue.
Sris Chandra Nandi v. Rakhalananda (deceased) .
Whether or not the statute approaches the realisation of the hope for “a system of evidence simple, aiming straight at the substance of justice, not nice or refined in its details, not too rigid, easily grasped and easily applied” it is this statute alone that can be looked into.
It cannot be disputed that the Indian Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship; Lakshmi Reddi v. Venkata Reddi .
Reputation is simply a cumulation of ordinary “perception testimonies”, heard and gathered and reduced to a single implied assertion, which assertion is now reported to the tribunal by the witness who perceived the cumulative assertions.
The special weakness of reputation is the anonymity of the original assertors. All the considerations for hearsay testimony apply here.
The other special weakness of “reputation evidence” is the difficulty of checking the trustworthiness of the witness reporting it. Where a witness asserts that a reputation existed as to the particular relationship of some particular persons, it is ordinarily impracticable to uncover his error, if any. Cross examination, or other witnesses, may disclose grounds for doubt. But for the most part his assertion is likely to remain simply an assertion, dependent for its value on his own appearance and relationship to the parties.
Section 50 of the Evidence Act is the only provision which to a certain extent allows evidence somewhat akin to “reputation evidence”.
The section runs as follows;—
When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact……….
Opinion means judgment or belief—what one thinks on a particular question—a belief, a conviction.
So, wrhen a Court has to judge as to the relationship of one person to another, it is permitted to take into consideration the “belief” or “judgment” of a person provided the requirements of this section are satisfied.
The “belief” is indeed a state of mind and can be evidenced by (i) external circumstances, calculated by their presence or occurrence to bring about the state of mind in question; and consequently showing the probability that the state of mind subsequently ensued; (ii) conduct or behaviour illustrating and pointing back to the state of mind producing it; (iii) a prior or subsequent state of mind indicating, within certain limits, its existence at the time in question.
The section allows only “conduct” as evidence of the opinion, a conduct which is the expression, in outward behaviour, of the belief entertained.
The conduct must be the result, the opinion being the moving cause. The results are the traces by which we may infer the moving cause. We are to infer from an observed effect, conduct—the probable cause—a specific mental state. Conduct may reveal the belief of the actor in so far as the specific act is of a tenor which cannot well be supposed to have been willed without the inner existence of that belief.
It should be remembered that, in the present case, the specific mental state—the opinion,—the belief is not of itself material to the issue as a prohandum. It is of service only evidentially, as forming a step of inference to some other fact, viz., the relationship, which forms the ultimate object of the trial.
The section makes only “opinion” as relevant and enjoins how this opinion itself is to be proved. It is only “opinion as expressed by conduct” which is made relevant. This is how the conduct comes in. The offered item of evidence is “the conduct”, but what is made admissible in evidence is “the opinion”, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision; its immediate effect is only to move the Court to see if this conduct establishes any “opinion” of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer “the opinion”, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the “opinion”.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as to the factum probandum—as to the relationship in question.
The state of the English law on the point, at the time when the Indian Evidence Act was enacted in 1872, will appear from the following summary of the law to be found in the then edition of Taylor on Evidence, s. 584 of which ran as follows:—
Again, family conduct, such as the tacit recognition of relationship and the distribution and devolution of property is frequently received as evidence from which the opinion and belief of the family may be inferred and as resting ultimately on the same basis as evidence of family tradition. For, since the principal question in pedigree cases turns on the parentage or descent of an individual, it is obviously material, in order to resolve this question, to ascertain how he was treated and acknowledged by those who sustained towards him any relations of blood or of affinity. Thus, in the Barkeley Peerage Case, Sir James Mansfield remarked, that “if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate. So the concealment of the birth of a child from the husband, — the subsequent treatment of such child by the person who, at the time of its conception was having in a state of adultery with the mother, — and the fact that the child and its descendants assumed the name of the adulterer, and had never been recognised in the family as the legitimate offspring of the husband — are circumstances that will go far to rebut the presumption of legitimacy, which the law raises in favour of the issue of a married woman. Again, if the question be whether a person, from whom the claimant traces his descent, was the son of a particular testator, the fact that all the members of the family appeared to have been mentioned in the will, but that no notice is taken of such person, is strong evidence to show, either that he was not the son, or at least that he had died without issue before the date of the will; and if the object be to prove that a man left no children, the production of his will, in which no notice is taken of his family, and by which his property is bequeathed to strangers or collateral relations, is cogent evidence of his having died childless”.
This might have been the material source of the Indian s. 50. But, it seems that the language used in the section makes the Indian law much more restricted.
The section opens with the words: “when the Court has to form an opinion as to the relationship”. These words would certainly mean “as to the existence or the non-existence of the relationship”. But the opinion that is made relevant by the section is “the opinion………. as to the existence of such relationship”, and not “the opinion as to such relationship”. This may mean that “the opinion as to the non-existence of such relationship” will not be admissible in evidence at all. A comparison of the language of this section with those of ss. 47, 48 and 49 also seems to lend some support to this view. But in view of the facts of the present case it is not necessary for us to pursue this matter further.
The persons, whose opinion is made evidence by the section, must be shown to have “special means of knowledge on the subject”.
So evidence under this section can come in only when the following requirements are fulfilled:—
(1) The person whose opinion is sought to be given in evidence must be proved to have special means of knowledge on the subject.
(2)(a) The opinon alone is evidence;
(b) The opinion as expressed by conduct only is evidence; or, in other words,
(i) Conduct only can be given in evidence,
(ii) from the conduct given in evidence the Court is to see whether it is the result of any opinion held by the person.
(3) The opinion which is relevant must be one as to the existence of the relationship—
(i) As has been pointed out above, the negative opinion—or the opinion as to the nonexistence of the relationship may not be relevant under this section.
But the question does not fall to be decided in the present case. The defendants no doubt have offered in evidence conduct of certain near relations as expressive of this negative opinion. In our opinion, however, the offered items do not establish any such opinion at all and consequently it becomes quit unnecessary for us to consider whether a negative opinion is relevant under s. 50 of the Evidence Act. We shall discuss this evidence in its proper place.
The plaintiffs, it has been stated above, also rely on the presumption of marriage arising from long-continuous co-habitation.
There can be no doubt that such a presumption, arises in favour of the plaintiffs in view of the—admitted facts of this case. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan their Lordships of the Judicial Committee observed:—
It might not be considered necessary to enter into any question of presumption of proof, as their Lordships find themselves in agreement with the District Judge to the effect that the marriage is proved; and they do so on a broad induction of the oral and documentary evidence as a whole.
But their Lordships think it expedient to deal with the reasons which, have induced the Judicial Commissioner to differ from the District Judge. He correctly says:— “The law presumes in favour of marriage and against, concubinage, when a man and a woman have cohabited continuously for a number of years. There is ample authority for this position, which will be found cited in a ruling of the Lahore High Court, Indar Singh v. Thahar Singh ”.
In the case before the Judicial Committee there was an undoubted difficulty on account of the fact that, the mother of the appellant was not a pardânashin lady. The other wives lived behind the pardâ according to the well-known Mahomedan habit. They were strict Mahomedans, young persons brought from Afghanistan. The third wife, Mt. Babo, had been in fact a maidservant and house-keeper in the household of the deceased. When the marriage took place, she continued her duties in the household and was not pardânashin. In considering how far this fact went against the presumption of marriage raised by continuous co-habitation the Judicial Committee observed;—
Even if that had involved or recognised a lack or disregard of social status, these things were essentially matters for herself and her husband to consider. But it is no part of the law of India that to have lived and to remain behind the pardâ is a necessary part of a lady's legal marriage or a conclusive evidential fact. It is a circumstance to be considered when, the fact of the marriage is in issue. But that issue is to be determined on a broad conspectus of the whole situation, including, of course, the pardâ item. In the present case, it is by no means sufficient to interfere either with the presumptions of law or the balance of the proof of fact.
The law presumes in favour of marriage and against concubinage when a man and a woman have co-habited continuously. Even if the direct evidence of marriage, if any, be unsatisfactory, this fact alone may not displace this presumption. Where there is prima facie evidence of co-habitation as man and wife, and a long course of treatment as a wife, the presumption of marriage can be repelled only by evidence of the clearest character: Imambandi v. Mutsaddi .
In Khajah Hidayut Oollah v. Jan Khanum the Right Hon'ble Dr. Lushington in delivering the judgment of the Judicial Committee quoted the following passages from Macnaghten:—
The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of marriage from the proof of co-habitation………… None but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father. The evidence of persons who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law will rather do so than bastardize the issue, and whether a marriage be simply voidable or void ah initio the offspring of it will be deemed legitimate.
His Lordship then observed:—
It may be observed that this is the statement of Mr. Macnaghten, evidently after great deliberation upon the subject, because he goes on to refer to what has been said by Sale; and he then observes— “This I apprehend, with all due deference, is carrying the doctrine to an extent unwarranted by law; for where children are not born of women proved to be married to their fathers, or of female slaves to their fathers, some kind of evidence (however slight) is requisite to form a presumption of matrimony”. He then observes—“The mere fact of casual concubinage is not sufficient to establish legitimacy; and if there be proved to have existed any insurmountable obstacle to the marriage of their putative father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes.” The effect of that appears to be, that where a child has been born to a father, of a mother where there has been not a mere casual concubinage, but a more permanent connection, and where there is no insurmountable obstacle to such a marriage, then, according to the Mahomedan Law, the presumption is in favour of such marriage having taken place.
This decision was given by the Judicial Committee in 1844, long before the Indian Evidence Act was enacted and it appears from the same judgment that their Lordships looked upon this as a, principle of evidence recognised in the Mahomedan system. It was observed:—
We apprehend that in considering the question of Mahomedan Law we must, at least to a certain extent, be governed by the same principle of evidence which the Mussahnan lawyers themselves would apply to the consideration of such a question.
This may not be the correct position after the enactment of the Indian Evidence Act. But, even after this Act, the presumption has been raised in favour of marriage from similar facts and circumstances as has already been pointed out. See also Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy ; Sadik Husain Khan v. Hashinu Ali Khan .
It has always been held, even after the enactment of the Indian Evidence Act, that where the parties constantly, openly and continuously lived and co-habited together for several years and had several children and were regarded and recognised as man and wife by their relations and friends, these facts, in the absence of countervailing circumstances, afforded clear and conclusive evidence of marriage. This presumption will now arise under s. 114 of the Indian Evidence Act, remembering that, amongst the Mahomedans, marriage may be constituted without any ceremonials and that adultery is a heinous offence according to Moslem faith. These is always a presumption against misconduct, against immorality and illegality.
[Here the Court discussed the evidence.]
This direct evidence of marriage is further corroborated by the evidence of opinion, as expressed by their conduct of persons who were near relations of the family and had this special means of knowledge of the relationship. These are P.Ws 11 and 17.
P.W 11 is a big jotedâr and is the son-in-law of Safik Uddin and Taiban Nessa. P.W 17 is a pleader at Jalpaiguri. It is difficult to see why these respectable persons should perjure themselves to support the case of the plaintiffs.
There is not much evidence on the record as to the treatment accorded to her and her children by Safik Uddin himself during his lifetime. The only relevant evidence on the point is Ex. 23, Safik Uddin's own note book, which contains entries showing that sârhis of the same value were purchased for Tanjina and Khateman.
Then there are the photographs of the family group [Exs. 5(b), 5(c), 6(a)]. Admittedly Safik Uddin and his wife Tanjina are in these groups. The witnesses of the plaintiffs (P.Ws 10, 19 and 20) identified a figure in the group as of Khateman Nessa and certainly the position occupied by her in the group shows her to be a prominent member of the family. It is absurd to suggest that a concubine or a maidservant could be allowed to occupy that position. It is highly improbable that Safik and his admitted wife and other members of the family, including grown-up children, will thus sit together for photography with a concubine of Safik in their midst. It is still more improbable that such a photo will be kept by the respectable relations of Safik. The conduct evidenced by this of the family members including Safik and Tanjina and those respectable relations who kept this group photo greatly go to show their own opinion of the relationship. These photos were proved in evidence on August 15, 1938. The defendants' witnesses were all examined after that date. But none of their witnesses including Raich Uddin (D.W 81) and Ram Pada (examined on commission) ventured to deny that the figure pointed out as of Khateman Nessa was really hers.
In our judgment, the evidence adduced by the plaintiffs to prove the factum of marriage is quite satisfactory. But over and above that, the plaintiffs have in their favour also the presumption of law, semper praesumitur pro matrimonio. The burden of impeaching this rests heavily on the defendants.
As has been stated above, the defendants contended that the issue as to whether the plaintiffs were the heirs of Safik Uddin was barred by the principle of res judicata, the same having been decided in a previous suit, namely, the Rent Suit No. 1 of 1922 [Exs. Z27 and Z27(a)]. Assuming that the issue was not so barred, they sought to counteract the above evidence of marriage by relying on what they characterised as—
(i) Khateman Nessa's own admission on a previous occasion that she was not the married wife of Safik Uddin and her sons were not the heirs of Safik Uddin; (Exs. W, Wl, W2).
(ii) Opinion of Tanjina as to the non-existence of the relationship as expressed by her conduct: (a) at the guardianship proceeding under Act VIII of 1890 wherein she asserted that she and her sons and the daughters of Taiban Nessa were the only heirs of Safik Uddin (Ex. S); (b) as also in the khâs mehâl mutation proceeding (Ex. Z25).
(iii) Opinion of the old officers of the family as to the non-existence of the relationship as expressed by their conduct in differently addressing Khateman and Tanjina [Exs. Z116, Z81(b)].
(iv) Opinion of other relations as to the non-existence of the relationship as expressed by their conduct in getting their names mutated in certain ten shares as also in getting the same partitioned (Exs. Y95; Y149).
They further relied on the evidence of some near relations of the family who deposed to deny: (i) Khateman's ante-nuptial relationship with Safik Uddin, and (ii) her marriage with Safik Uddin. These are D.Ws 31 and 18.
We shall take up the plea of res judicata first.
It cannot be disputed that a matter may be res judicata between co-defendants.
If a plaintiff cannot get at his right without trying, and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.
Cottingham v. Earl of Shreweshury .
As was pointed out by the Judicial Committee in Munni Bibi v. Tirloki Nath in order that a decision may operate as res judicata between the co-defendants, three conditions must be fulfilled, namely, there must be—
(i) a conflict of interest between the co-defendants;
(ii) the necessity to decide that conflict in order to give plaintiff appropriate relief; and
(iii) a decision of the question between the co-defendants.
See also Kishun Prasad Pandey v. Durga Prasad Thakur ; Kedar Nath Goenka v. Ram Narain Lal .
In Munni Bibi v. Tirloki Nath (supra). M & K were the rival claimants to a house. M alleged that the house belonged to her deceased father Amar Nath and that she inherited it from him. K alleged that the house belonged to her mother and that she inherited it. A creditor of Amar Nath (M's father) sued M & K to establish his right to sell the house as the property of Amar Nath. Though K was made a defendant in this suit she did not appear and contest the claim. The Court found that the house belonged to Amar Nath and decreed the creditor's suit. K's son paid off the creditor and took possession of the house. M sued to recover possession of the house from K's son who claimed title under K.M urged that the question of title as between her and K was res judicata by reason of the decision in the creditor's suit. The Judicial Committee held that the conditions of res judicata were established in this case.
The fact that K had not entered appearance and contested the creditor's suit was held to be immaterial. It was observed that she was a proper party and had a right to be heard if she so desired.
In Maung Sein Done v. Ma Pan Nyun the intestate had left two daughters P. & S. and two sons. The sons took possession of his estate. Thereupon S. filed a suit against her two brothers and her sister P. for administration of the estate and to recover her fourth share under Burmese Buddhist law. P. filed no written statement, but gave evidence for her sister the plaintiff. The suit was dismissed on the ground that the succession was governed by the Chinese customary law under which the sons succeed to the exclusion of the daughter. Subsequently P filed a suit for administration and to recover her fourth share. The Judicial Committee held that the suit was barred by res judicata as: (i) there was a conflict of interest between P and her brothers, (ii) that conflict would necessarily have to be decided to give the relief she claimed, and (iii) the question between P and her brothers was finally decided.
The principle laid down in the cases of Munni Bibi (supra) and Maung Sein Done (supra) was reiterated by the Judicial Committee again in Kedar Nath Goenka v. Ram Narain Lal (supra). In this case the right of judgment-debtor to bring the properties of a math to sale in execution of a money-decree against the mohanta of the math, which had for more than a quarter of a century been the subject of incessant litigation, was in question. Some of the properties were sold and the sale was set aside by the Subordinate Judge on the application of the judgment-debtor. There was an appeal by the judgment-debtor against this order. During the pendency of this appeal the judgment-debtor obtained an order that the auction purchasers should redeposit the purchase monies which they had been allowed to withdraw. Two of the auction purchasers, thereupon, instituted two different suits in 1918 against K, the decree-holder, and M, the mohanta in possession of the math properties, for a declaration that they were not bound to redeposit the purchase monies on the ground that the Court-sale was invalid and the mohanta would not allow them to take possession of the properties they had purchased. In the opinion of their Lordships of the Judicial Committee, in these suits it was clearly necessary to decide the dispute as to the validity of the Court-sale between K and M, then arrayed as co-defendants, for the purpose of giving plaintiffs appropriate relief. The mohanta, as defendant No. 2, sided with the then plaintiffs. The suits were ultimately decided by the High Court against the then plaintiffs, it having been held that the sale was valid and that the auction-purchaser plaintiffs were bound to redeposit the money withdrawn by them. After this decision, K proceeded to take possession of the properties purchased by himself, but was opposed by the mohanta. He thereupon instituted the present suit against the mohanta and the suit once more raised the issue as to the validity of the sale of the math properties in execution of the decree. The Subordinate Judge held that this issue was not res judicata between the present plaintiff (decree-holder auction-purchaser) and the present defendant (the mohanta), because the then plaintiffs who are the auction-purchasers of other properties at the Court-sale had not in their suits sought for any relief as against the mohanta who was defendant No. 2 in those suits. Their Lordships seem not to have approved of this conclusion and observed:—
This ruling was given before the recent decisions of this Board as to res judicata between co-defendants………………
Their Lordships later on observed:—
In their Lordships' opinion, it was necessary in those suits to decide the dispute between them as to the validity of the Court-sale for the purpose of giving the plaintiffs appropriate relief, and therefore this case is governed by the rule as to res judicata between co-defendants in Cottingham v. Earl of Shrewshury which was recently been applied by this Board in Munni Bibi v. Tirloki Nath and Maung Sein Done v. Ma Pan Nyun .
The doctrine of res judicata as between co-defendants must, however, be applied with great caution. Where the plaint itself in a prior suit did not raise any conflict between the co-defendants and a defendant did not appear, but a co-defendant appeared and claimed an interest conflicting with the interest of the absentee defendant, the decision, if any, on the point cannot operate as res judicata unless the absentee defendant gets notice of the conflict. In such circumstances the matter cannot be said to have been heard and finally decided so as to bind the parties. The basis of the principle of res judicata is best expressed in the maxim res judicata pro veritate accipitur:—
“A judicial decision is conclusive evidence inter partes of the matter decided”. A matter once formally decided is decided-once for all.
That which has been delivered in judgment must be taken for established truth. For in all probability it is true in fact, and even if not, it is expedient that it should be held as true none-the-less. Ezpedit reipublicæ ut sit finis litium.
The respondents strongly relied on the decision in Lalmohan Dhupi v. Ramlakshmi Dassee to support the view that the decision in the rent suit of 1922 did not operate as res judicata against them. In that case M and J were daughters of B by two different wives. G was brother of B. In 1904 J's mother M executed a deed of partition admitting that properties in suit belonged to B and G in equal shares. In 1917, J instituted a suit against G and M making R a pro forma defendant, alleging that G had no share in the properties, that the deed of partition was fraudulent and collusive and that the same was not binding on her. G's defence in that suit was that he had an 8 annas share in the properties and that the partition deed was valid and operative. R did not enter appearance as a party in that suit, but gave evidence as a witness supporting G's claim. The suit was decreed in J's favour, the disputed land being declared as having been included in the estate of B and deed of partition, as not binding on J. Therefore R instituted the present suit against J and the sons of G for her share in the property. The matter for consideration was whether the decision in the former suit was res judicata as regards the question of the title of G in the properties in suit.
Mukerji and Guha, JJ. held that the rule of res judicata on the footing of the parties having been co-defendants in the previous litigation did not apply to this case; but that—
There can be no escape from the conclusion that the former suit was representative suit instituted by one presumptive reversioner, namely, J,…….. and that R must be regarded as a person claiming under J in the matter of the former suit, and the decision passed therein operated as res judicata between her as claiming under her and the dependants in the present suit (J and G's sons as claiming under G).
In arriving at the conclusion that the rule of res judicata as between the co-defendants did not apply to this case the learned Judges, after referring to the decision of the Judicial Committee in Munni Bibi v. Tirloki Nath (supra), observed as follows:—
Their Lordships have approved of the dictum acted upon by the courts in this country that to apply the doctrine of res judicata as between co-defendants three conditions are requisite: (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. This decision is also an authority for the proposition that, if these conditions are fulfilled, the fact, that the defendant, who has a common case with the plaintiff and who is a proper party to this suit, does not enter appearance but chooses to stand by and let the plaintiff fight her battle, does not stand in the way of the rule of res judicata applying as between him and his co-defendant, who was in conflict with the plaintiff. It is clear, therefore, that, if the plaintiff in the present suit had taken no part in the previous litigation but had left it to defendant No. 1, who was the plaintiff in that suit, to fight it out with Gobinda, and, for the matter of that, Gobinda's sons, i.e, defendants Nos. 2 and 3 and the other defendants, who are transferees from Gobinda or his sons, would have been bound by the result of that litigation just as much as the plaintiff. The case, however, is different here, because the plaintiff by the evidence that she gave in that litigation supported Gobinda and in that way repudiated the case which defendant No. 1 as plaintiff therein, sought to make out against Gobinda. All that can be said, in view of the result of that litigation, is that there should have been a conflict between the co-defendants, but it cannot be said that, in fact, there was any.
There is some difficulty in deducing the view as expressed in the last sentence quoted above from the decisions of the Judicial Committee. These decisions do not require as a requisite condition that the co-defendants must have pleaded so as to raise the conflict of interest. It is not the conflict between the co-defendants in the previous litigation, but only their interest in that litigation being in conflict, which is required for the application of the bar. In our opinion, if the pleadings on record, no matter whether the co-defendants pleaded anything inter se or not, should raise the conflict of interest as between the different sets of the defendants, this requisite condition, namely, that there must be a conflict of interest between the defendants concerned, shall be satisfied.
In the present case, the decision which is set up as res judicata is the decision in the Rent Suit No. 1 of 1922. This suit was originally instituted against Safik Uddin himself by his landlord Prasanna Deb Raikat. Safik Uddin died during the pendency of the suit, and, as far as can be gathered from the materials on record, the present plaintiffs, the present defendants Nos. 1 to 3, and Safik Uddin's daughter by his first wife were substituted in his place as his heirs. The defendants Nos. 1 to 8 appeared and filed a written statement denying that the present plaintiffs were also the heirs of Safik Uddin. But, from the evidence on the record, it appears to us that Khateman Nessa was designedly kept from the knowledge of this conflict.
Mr. Gupta contends that as the present plaintiffs were parties co-defendants in that suit and as admittedly the present defendant No. 1, Tanjina, denied that the present plaintiffs were the heirs of Safik Uddin: (1) there was a conflict of interest between the then two sets of defendants; (2) it was necessary to decide this conflict in order to give the then plaintiff the relief he claimed and (3) the question was decided in that suit, no matter on what materials that decision might have been based. Consequently that decision, so long as it is allowed to stand, shall operate as res judicata, between the plaintiffs and the defendants Nos. 1 and 3 or persons claiming under them.
In our opinion, this will be a dangerous extension of the rule laid down by the Judicial Committee. The present plaintiffs were made parties as the heirs of Safik Uddin. There was nothing on the record till then to give them any notice of any possible conflict. If they had no defence to put forward, and the result of that suit shows that they had none, they were not bound to put in useless appearance. If, therefore, behind their back anything was pleaded assailing their interest and if the then plaintiff thereupon chose to accept the relief as modified by such pleading, it is difficult to see how the matter can be said to have been heard and decided. The absentee co-defendants having no notice of the conflict and thus having no occasion for exercising their right of appearance and contest, the matter, so far as they are concerned, were not heard and decided by the Court. In our opinion, the decision is not res judicata and the plaintiffs are not debarred from agitating the matter in the present suit. The decision in that suit was by the agreement of the then plaintiff and the appearing co-defendants. In our opinion, the correct view of the decision is as if the then plaintiff withdrew his claim as against the absentee defendants and by consent confined his relief only against the consenting defendants.
It should further be noticed that, after this suit No. 1 of 1922, there were several other suits for arrears of rent for subsequent periods by the said plaintiff in which Khateman Nessa was made party defendant as second widow of Safik Uddin and her sons, the present plaintiffs Nos. 2 and 3, were made parties as sons of Safik Uddin. In these suits, Tanjina and her sons, the present defendants Nos. 1 to 3, were also made party defendants as other heirs of Safik Uddin. All these suits were decreed against all these persons as heirs of Safik Uddin and, consequently, if the decision in Suit No. 1 of 1922 could operate as res judicata, it is difficult to see why these later decisions should not also be res judicata. These being the later decision will overrule the effect of the decision in Suit No. 1 of 1922 in this respect.
[Here the Court discussed the evidence.]
In the result, both the appeals fail and are dismissed with costs. There will be only one hearing fee in both the appeals, which we assess at thirty gold mohurs.
Appeal dismissed.
G.K.D