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AMICUS AI
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Advocates
  • Messrs. C. V. Anantakrishna Aiyar and K. Kuttikrishna Menon for the Appellant.
  • Mr. C. Madhavan Nair for the Respondents.
Judges
  • Ayling
  • Krishnan, JJ.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Messrs. C. V. Anantakrishna Aiyar and K. Kuttikrishna Menon for the Appellant.
  • Mr. C. Madhavan Nair for the Respondents.
Judges
  • Ayling
  • Krishnan, JJ.
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Smart Summary

Judgment Summary — Res Judicata Issue

Factual and Procedural Background

Plaintiff Kelu Nambiar sued to recover certain lands and arrears of rent as the Karnavan of the Meethala Veetil Tavazhi from the tenant in possession (1st defendant). The tenant denied the existence of a distinct Meethala Veetil Tavazhi and asserted that the lands belonged to the main tarwad whose Karnavan was Chathu Nambiar (added as 2nd defendant). Chathu Nambiar supported the 1st defendant's contentions. The first primary issue framed was whether an independent Meethala Veetil Tavazhi existed with separate properties and management. Additional issues were framed by the parties concerning whether that question was res judicata by reason of several earlier decrees (variously identified as O.S. Nos. 38 of 1890, 203 of 1893, 168 of 1893 and O.S. No. 3 of 1895) and their appeals. Both lower courts agreed that O.S. 168 of 1893 had no value on the res judicata question; they differed as to the effect of other prior judgments. The matter came before the court to examine each prior judgment and determine its res judicata effect between the tavazhi and the tarwad (i.e., in their representative capacities).

Legal Issues Presented

  1. Whether a tavazhi called Meethala Veetil Tavazhi existed with separate properties and management.
  2. Whether the plaintiff (as Karnavan of the alleged tavazhi) was estopped from asserting the existence of Meethala Veetil Tavazhi by reason of decrees in O.S. No. 38 of 1890 and O.S. No. 203 of 1893 (and their appeals).
  3. Whether the main tarwad (of which the 2nd defendant was Karnavan) was estopped from denying the existence of Meethala Veetil Tavazhi by reason of the decree in O.S. No. 168 of 1893 and O.S. No. 3 of 1895 (and related proceedings).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The plaintiff claimed the Meethala Veetil Tavazhi existed as a separate and distinct entity with its own properties and Karnavan, and sought recovery based on that status.
  • The plaintiff and his counsel relied on the judgment in Muthaya Shetti v. Kanthappa Shetti (as represented by Seshagiri Aiyar, J.'s classification) to argue that an earlier finding in O.S. No. 3 of 1895 rendered the question of the tavazhi's existence res judicata in the plaintiff's favour.

Respondents' (Defendants') Arguments

  • The tenant (1st defendant) denied the existence of the tavazhi and asserted the lands belonged to the main tarwad with Karnavan Chathu Nambiar; he pleaded that the plaintiff was not entitled to sue and pleaded payment of rent to Chathu Nambiar.
  • The 2nd defendant (Chathu Nambiar) supported the 1st defendant's contentions and both defendants contended that judgments previously given in their favour constituted res judicata, while adverse judgments against them did not.
  • In relation to O.S. No. 203 of 1893 and its appeal, respondents argued that the issue of the tavazhi's existence had been directly involved and decided against the tavazhi and that both tarwad and tavazhi were properly represented in that litigation; therefore the finding should bind the tavazhi.
  • Mr. Ananthakrishna Aiyar argued that because the karnavan of the tarwad (1st defendant in that earlier suit) had remained ex parte, and the question arose between co-defendants, there was no active controversy inter se and the finding should not operate as res judicata (relying on Kandiyil Cheriya Chandu v. The Zamorin).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Run Bahadur Singh v. Lucho Koer (Privy Council) Where a decree is given to a party despite a finding against him, that finding does not operate as res judicata in subsequent litigation. Applied to hold that the finding in O.S. No. 3 of 1895 (that a tavazhi existed) could not be treated as res judicata because the decree dismissed the removal and the finding was not necessary for disposal nor embodied in the decree.
Thakur Magundeo v. Thakur Mahadeo Singh Authority following the principle that findings not necessary for the decree do not become res judicata. Cited as consistent authority supporting the Court's conclusion about non-final findings (used collectively with other similar authorities).
Parbati Debi v. Mathura Nath Banerjee Same line of authority on the finality of findings and res judicata. Used as supporting precedent in the line of cases holding incidental findings not to be res judicata where decree goes the other way.
Ahmed Bhoy Hari Bhoy v. Sir Dinshaw M. Pitit Illustration of the principle that incidental findings not necessary for decree lack res judicata effect. Relied upon (via citation) to support the proposition and cited with other consistent authorities.
Venkatasuryanarayana v. Sivasankara Narayana Supporting authority on the non-finality of incidental findings. Referred to as part of a group of cases consistently following the Privy Council principle.
Mittar Boddar v. Jadab Chandra Chattopadya Supporting authority on res judicata and incidental findings. Used as part of the body of precedent the Court relied on to reject res judicata effect of the O.S. No. 3 finding.
Ahmedbhoy Haribnoy v. Sir Dinshaw M. Pitit (Beaman, J. cited) On finality: a decision not open to appeal to the next court is not a final decision unless the court is itself one of final jurisdiction. Quoted to explain that a finding not opening the door to appeal is not final and so cannot be res judicata; used to support treatment of incidental findings as obiter dicta for res judicata purposes.
Muthaya Shetti v. Kanthappa Shetti (Seshagiri Aiyar, J.) Relied on by appellant to argue a classification (a so-called "fourth class") in which such findings would be res judicata. The Court expressed doubt about the distinctness of the fourth class and declined to follow this authority as supporting res judicata in the present facts, finding it inapplicable.
Kandiyil Cheriya Chandu v. The Zamorin of Calicut Holds that where a defendant against whom a plea is urged takes an active part in the controversy as against co-defendants, the matter may be res judicata. Relied upon by respondents' counsel to argue that active participation by a co-defendant makes the finding res judicata. The Court discussed it and distinguished the present facts, concluding the earlier decision did not prevent res judicata applying here because both sides actively litigated and appealed.
Ramanuja Ayyangar v. Narayana Ayyangar Relevant on the proposition that between co-defendants there must be active controversy inter se for a finding to be res judicata. Cited to explain the High Court's view that active inter se controversy among co-defendants is necessary; the Court nonetheless found sufficient active participation in the earlier suit to sustain res judicata here.

Court's Reasoning and Analysis

The Court framed the res judicata question as existing between the tavazhi and the tarwad (i.e., their representative Karnavans), not merely personally between the parties before the Court. It then examined each prior decree relied upon by the parties to determine whether the earlier decisions were directly and substantially in issue and were heard and finally decided within the meaning of Section 11 of the Civil Procedure Code.

1. O.S. No. 3 of 1895 (Exhibit L): That suit was brought to remove Ambu Nambiar as Karnavan and to recover properties allegedly improperly alienated. Although an issue was framed and decided in favour of the existence of the Meethala Veetil Tavazhi, the suit failed insofar as it sought removal of the Karnavan, and the finding was not embodied in the decree. The Court held that this finding was not necessary to the disposal of the suit and thus was only incidentally in issue; following Privy Council authority (Run Bahadur Singh v. Lucho Koer) and subsequent cases, such a finding cannot operate as res judicata because it was not finally decided in a manner that precludes appeal. The Court rejected the appellant's reliance on a classification suggested in Muthaya Shetti v. Kanthappa Shetti and refused to treat the O.S. No. 3 finding as res judicata.

2. O.S. No. 38 of 1890: This was a maintenance suit by junior members against Ambu Nambiar as Karnavan of the tarwad. The District Judge had treated Ambu's omission to plead that some properties belonged to the tavazhi (and thus should be excluded in calculating maintenance) as barring the tavazhi by res judicata. The Court rejected that reasoning: Ambu was sued only as Karnavan of the tarwad and had consistently denied the tavazhi's existence; he could not be expected to plead in favour of an entity whose existence he denied. Consequently, the Court held O.S. No. 38 did not operate as res judicata against the tavazhi.

3. O.S. No. 203 of 1893 and its appeal (Exhibits I and II): This ejectment suit concerned the validity of a melcharth granted by the tarwad karnavan. The validity was challenged on the sole ground that only the karnavan of the tavazhi could have granted a valid melcharth; therefore, the existence of the Meethala Veetil Tavazhi was necessarily involved in the issue. The District Munsif and the District Judge both found there was no such separate tavazhi and decreed for the plaintiff. The Court found that both the tarwad and the tavazhi were properly represented in that litigation by large numbers of members on opposite sides, and that active contestation and subsequent appeal made the District Judge's confirming finding final. Therefore the question of the tavazhi's existence is res judicata against the tavazhi and binds the appellant in the present suit. The Court rejected arguments that an ex parte position of the tarwad karnavan in the earlier suit negated res judicata because other members represented the tarwad and actively opposed the tavazhi, and because the issue was litigated and finally decided on appeal.

Additional point: An estoppel argument was raised that the 1st defendant was estopped from disputing the plaintiff's title as landlord; the Court held that even if such an estoppel existed, it would be ineffective insofar as the 2nd defendant (the tarwad's Karnavan) was also a party and could not be estopped by the tenant's conduct.

On this analysis, the Court concluded that the District Judge had correctly treated the finding of no tavazhi in O.S. No. 203 of 1893 and its appeal as binding on the appellant, and that other earlier decisions either did not involve a final adjudication on the tavazhi's existence or could not be treated as operating as res judicata in favour of the appellant.

Holding and Implications

The Second Appeal is dismissed.

Direct effect on the parties:

  • The finding in O.S. No. 203 of 1893 (and its appeal) that there was no separate Meethala Veetil Tavazhi is binding on the appellant in the present suit.
  • Accordingly, the plaintiff's second appeal fails and is dismissed with costs.
  • The argument that the tenant (1st defendant) was estopped from disputing the plaintiff's title is of no consequence in this proceeding because the 2nd defendant is also a party and cannot be estopped by the tenant's position.

Broader implications:

This opinion confines its conclusions to the effect of earlier judgments on res judicata between the tavazhi and the tarwad in the specific factual matrix presented. It does not purport to establish any novel legal principle beyond applying settled authorities concerning when incidental findings incorporated in judgments do or do not have the force of res judicata.

K. V. S. — Appeal dismissed.
Show full summary ...

    Meethala Veetil Kaitheri Kelu Nambiar v. Narikott Parambath Kaitheri Chathu Nambiar

    JUDGMENT

    The question for decision in this case is one of res judicata.

    By the suit from which this second appeal arises, plaintiff, one Kelu Nambiar, sought to recover as Karnavan of one Meethala Veetil Tavazhi certain lands and arrears of rent from the tenant in possession, the 1st defendant. It was stated that this was a separate and distinct tavazhi under the Mani Madathil Kaitheri tarwad, having its own properties and its own Karnavan and that the plaint lands were some of its properties. The tenant denied the existence of any such tavazhi and pleaded that the lands belonged to the main tarwad of which one Chathu Nambiar was the Karnavan and not the plaintiff, and that the latter was not entitled to sue; he also pleaded payment of rent to the karnavan Chathu Nambiar. On these pleas, Chathu Nambiar was added as the 2nd defendant; and he supported the 1st defendant's contentions.

    The first issue in the case was “whether a tavazhi called. Meethala Veetil Tavazhi existed with separate properties and management.”

    As however both the plaintiff and the 2nd defendant claimed that this question was res judicata by reason of previous decisions between the parties two further issues were framed viz., “whether the plaintiff was estopped from setting up the Meethala Veetil Tavazhi by reason of the decrees in O S. No. 38 of 1890 and of 203 of 1893 of the Courts of the District Munsifs of Nadapuram and Panur respectively and their appeals” and “whether the main tarwad of which the 2nd defendant was the karnavan was estopped from denying the existence of the Meethala Veetil Tavazhi by reason of the decree in O. S. No. 168 of 1893 of that Court (Court of the Principal District Munsif of Tellicherry) and of O. S. No. 3 of 1895 on the file of the Sub-Court, North Malabar.”

    On these issues both the Lower Courts have agreed that the decree in O. S. 168 of 1893 was of no value on the question of res judicata and the point has not been reagitated before us. But they have differed in their opinions as regards the effect of the other judgments; and both the plaintiff—appellant, and defendants—respondents, have contended before us that the judgments in his or their own favour constitute res judicata whereas the judgments against him or them do not. We have therefore to examine each of those judgments separately to see its effect on the question at issue.

    Before doing so, it may be observed that the question as to res judicata has to be considered as between the tavazhi and the tarwad and not as between the plaintiff and the 2nd defendant personally as they are parties to this suit in their representative capacities as Karnavans. Taking the judgment in O. S. No. 3 of 1895, Exhibit L, first, which is relied on by the plaintiff as settling that the Meethala Veetil Tavazhi does exist, it will be seen that the suit in which that judgment was given was one brought by one Sankaran Nambiar, a junior member of the family to remove one Ambu Nambiar from Karnavanship for alleged misconduct and for recovering for the tarwad certain properties said to have been improperly alienated by him. Permission was asked for under Sect. 30 of the Old Code of Civil Procedure to sue on behalf of the tarwad and on the publication of the notice required by the section a large number of the members of the tarwad had joined as defendants. Plaintiff had asserted in the plaint that Ambu Nambiar was the Karnavan of the Meethala Veetil Tavazhi also and had asked him to be removed from that position as well; Ambu Nambiar as well as several other defendants had among other pleas denied the existence of such a tavazhi and an issue was framed as to “whether there was in fact an independent branch called Meethala Veetil subordinate to the Madathil Veetil tarwad.” The finding on this issue was no doubt in plaintiff's favour that such a tavazhi did exist. But in spite of that finding the suit so far as it prayed for the removal of the Karnavan was dismissed and Ambu Nambiar was not removed from the Karnavanship of either the tarwad or the tavazhi. Nor was the finding embodied in the decree. The finding was not necessary for the disposal of the suit and we agree with the District Judge that it cannot be held to have the force of res judicata against the tarwad. It has been settled by the ruling of the Privy Council in Run Bahadur Singh v. Lucho Koer, that where a decree is given to the party in spite of a finding against him, that finding is not res judicata in subsequent litigation. This view has been consistently followed since. See Thakur Magundeo v. Thakur Mahadeo Singh(2), Parbati Debi v. Mathura Nath Banerjee(3), Ahmed Bhoy Hari Bhoy v. Sir Dinshaw M. Pitit(4), Venkatasuryanarayana v. Sivasankara Narayana(5) and Mittar Boddar v. Jadab Chandra Chattopadya(6).

    To constitute the finding on an issue res judicata in a later suit between the parties, it is necessary under Sect. 11 of the Code that the matter should have been directly and substantially in issue between them and should also have been heard and finally decided. Where a finding has been arrived at on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties; it can only be said to have been incidentally in issue. Such findings are more in the nature of obiter dicta than of res judicata. Nor can the question be said to have been finally decided by such a finding. As observed by Beaman, J., in Ahmedbhoy Haribnoy v. Sir Dinshaw M. Pitit above cited,” a decision upon any question that does not open the door to the parties aggrieved to carry it to the next Court (in appeal) is not in any sense a final decision unless the Court which has decided it is itself the Court of final jurisdiction for that suit.” Otherwise, as pointed out by the learned Judge, it would lie with his adversary to decide whether a finding against a party when the decree is in his favour should remain res judicata against him or not; for if he the adversary appealed, as he could do, the finality would be gone. We must therefore hold that a decision on a question in an appealable suit when the decree is in favour of the party against whom that decision is given is not a final decision. Explanation II, which has been newly added to Sect. 11 of the present Code, Act V of 1908, does not affect this question as it deals only with the competency of the Court and not with the finality of its decision. That explanation was added to put an end to the controversy whether a finding arrived at or a decree passed by a Court in a suit is or is not res judicata in the same Court in a subsequent suit when the decree in the first suit is not appealable to the same tribunal as that in the second suit. That happens, for example, in the Subordinate Judge's Court when the first suit is below Rs. 5,000 in value and the second suit is above that value.

    The learned Vakil for the appellant relied on the judgment of Seshagiri Aiyar, J., in Muthaya Shetti v. Kanthappa Shetti, and contended that this was a case which fell within the fourth class of cases referred to by the learned Judge and therefore the finding was res judicata. It seems to be very doubtful if there is such a fourth class of cases at all distinct from the 1st class. The cases which seem to fall in that class will probably on careful examination be found to fall in the first class. In the very case which the learned Judge had before him, it would seem, with all respect to him, that on the facts stated in page 484 it was quite immaterial for the District Judge to decide if the alienation was a mortgage or a sale so long as it was valid against the plaintiff; for in the view taken by him the suit failed whether it was a mortgage or a sale. It has been pointed out to us that Bakewell, J., who sat with Seshagiri Aiyar, J., in that case did not adopt this classification and we are not prepared to follow the learned Judge's view as to the fourth class of cases. Moreover we think the present case falls in the first class. It is argued that it was necessary to decide in this case if a tavazhi existed at all before deciding whether its Karnavan should be removed. It was not strictly necessary to do so, as in any event the suit failed as the Court found there were no grounds for his removal. In any view, therefore the ruling in Muthaya Shetti v. Kanthappa Shetti is no authority in the plaintiff's, favour. The judgment in O. S. No. 3 of 1895 cannot thus be held to render the first issue in this case res judicata.

    Passing on to the decree in O. S. No. 38 of 1890, we think that the District Judge is wrong in holding that it operated as res judicata in favour of the tarwad. It has not been relied on by the learned counsel for the respondents. That was a suit brought by some junior members of the tarwad for maintenance against Ambu Nambiar as the Karnavan of the tarwad. The District Judge considers that Ambu Nambiar might and ought to have pleaded that some of the properties belonged to Meethala Veetil Tavazhi and their income should have been excluded from calculation in assessing the rate of maintenance and as Ambu Nambiar was the Karnavan of the tavazhi according to the plaintiff's case and as he failed to set up the tavazhi's claim, the tavazhi should be taken as barred by res judicata presumably under Explanation IV of Sect. 11, Civil Procedure Code, from setting up its existence thereafter. This view cannot be supported. Ambu Nambiar was sued only as the Karnavan of the tarwad and not as the Karnavan of the tavazhi and as he was always strenuously denying the very existence of the tavazhi he could not be expected to raise any pleas in its favour and his failure to put forward any particular plea cannot be treated as concluding the tavazhi as to it.

    The last two judgments we have to deal with are those in O. S. No. 203 of 1893 on the file of the Court of the District Munsif of Panoor and its appeal, Exhibits I and II. The suit was brought by one Chappari as the holder of a melcharth granted by the tarwad karnavan the same Ambu Nambiar to redeem a kanom and recover possession of a paramba from the kanomdar, the 2nd defendant. The karnavan, the 1st defendant, remained ex parte but the 2nd defendant though he admitted the kanom pleaded that the property belonged to the tavazhi of which Sankaran Nambiar was the karnavan, and not to the tarwad and melcharth by the tarwad karnavan was therefore invalid. Sankaran Nambiar was added as the 3rd defendant and he supported the 2nd defendant's case. As notice of suit was published in the District Gazette and in a local paper, 50 other members including the present plaintiff and the 2nd defendant joined as defendants, 28 of them supported the 3rd defendant while the rest opposed the claim of the tavazhi. The issue framed in the case was “Has plaintiff a valid melcharth right in the plaint paramba and can he maintain this ejectment suit on the strength of it ?” No separate issue was framed about the existence of the tavazhi but as the validity of the melcharth was challenged solely on the ground that the karnavan of such a tavazhi alone could have granted a valid one, the question of the existence of the tavazhi was involved in the issue framed and was clearly a matter in issue within the meaning of Sect. 2, Civil Procedure Code. For a matter to be in issue under that section it is not necessary that an express issue should be framed about it; it is enough if a decision about it is necessary for the decree.

    The District Munsif found that there was no such separate tavazhi as Meethala Veedu as alleged by the 3rd defendant and his party and he overruled the plea of the invalidity of the melcharth and gave a decree in plaintiff's favour. 3rd defendant and his party thereupon appealed to the District Judge making the plaintiff and the 1st defendant and his supporters respondents and again raised the same contentions. The District Judge however confirmed the findings in appeal. It would therefore seem that the question of the existence of the tavazhi is res judicata against tavazhi. Both the karnavans were parties to the suit as well as a large number of members of the family. We must therefore hold that both the tarwad and the tavazhi were properly represented in that litigation. Mr. Ananthakrishna Aiyar however points out that the 1st defendant, the karnavan of the tarwad, remained ex parte and he argues that as the question arose between the tarwad and the tavazhi as co-defendants in the suit and as there was no active contest between the 1st defendant, the karnavan of the tarwad and the members of the tavazhi, the finding should not be treated as res judicata. He relies on Kandiyil Cheriya Chandu v. The Zamorin of Calicut. In that case it was held that the matter was res judicata as the defendant against whom the plea was urged took an active part in the controversy as against his co-defendants. We think it must be taken as the view of our High Court that as between co-defendants there must be active controversy inter se before a finding can be treated as res judicata, See also Ramanuja Ayyangar v. Narayana Ayyangar, In this case, however, there are good reasons why the appellant's argument cannot be accepted. The tarwad was represented not merely by the karnavan but by all or nearly all the members of it, who certainly took an active part in the dispute; the res judicata pleaded is against the tavazhi, the karnavan and members of which undoubtedly actively disputed the claim of the plaintiff and the other defendants. Furthermore the controversy did not stop with the 1st Court. The karnavan and members of the tavazhi as already stated appealed to the District Court making the plaintiff as well as the 1st defendant and the other members of the tarwad respondents. When the District Judge confirmed the finding that there was no tavazhi he did so as between the two sets of members on opposite sides of the record. With reference to his finding which is a final one in the case, no question of res judicata between the co-respondents arises.

    We must therefore hold that the District Judge was right in considering that the finding that there was no tavazhi is binding on the appellant in this suit.

    A question was raised that the 1st defendant, the tenant, was estopped from disputing the title of the plaintiff as his landlord. But this plea, even if valid, is of no effect in this case as the 2nd defendant is also a party and against him there can be no such estoppel.

    The Second Appeal fails and must be dismissed with costs.

    K. V. S.Appeal dismissed

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    Meethala Veetil Kaitheri Kelu Nambiar v. Narikott Parambath Kaitheri Chathu Nambiar
    (Sep 11, 1918)