Waris Khan & Others Defts. v. Ahmadullakhan & Others Plffs.

JUDGMENT

1. This judgment will govern the decisions of First Appeal No. 74 of 1940 & Second Appeal No. 108 of 1940 also.

2. This appeal & First Appeal 74/40 arise out of civil Suit No. 29-A of 1936, on the file of the Second Subordinate Judge, First Glass, Jubbulpore, while Second Appeal 108/40 arises out of Civ. suit No. 180-A of 1938, on the file of the Second Subordinate Judge, Second Glass, Jubbulpore. In civil suit No. 29-A of 1936 the plffs. respondents claim partition & separate possession of 7/36 share in five houses in Jubbulpore Nos. 74, 447, 458, 468 & 631 & also mesne profits for three years amounting to Rs. 2034 plus interest thereon at 1 percent, i.e, Rs. 393/4/-, in all amounting to Rs. 2427/4/-. They claim to have purchased this share from one Amir Khan, the step-brother of appellants 1 to 3 & the step-son of appellant 4. In civ. Suit No. 180-A/38 one of the appellants claims rent for a portion of house No. 458 from the plffs.-respondents & their ejectment therefrom. It is admitted that the property in suit & a house at Bhopal were the property of Nawab Khan, the father of appellants 1 to 3 & the deceased resp. 5 & the husband of appellant 4. It is also admitted that Amir Khan's share in Nawab Khan's property was 7/36. On 6-12-1926 the appellants 1 to 3 instituted a suit for partition against Amir Khan. The suit was decreed on 15-1-1929 & a Commissioner was appointed to partition Nawab Khan's property. The Commissioner divided the property amongst all the heirs of Nawab Khan & allotted the house at Bhopal, the whole of house No. 631 at Jubbulpore & /2/4 share in house No. 74 at Jubbulpore to the share of Amir Khan. Besides this, he also allotted some moveable property & cash to Amir Khan's share. We are, however, not concerned with the moveables or the cash in this appeal. The final decree for partition was passed in pursuance of the Commissioner's report, & it would appear that all the parties were put in possession of their respective shares by the Commissioner before the final decree was passed.

3. During the pendency of the partition suit, Amir Khan executed a mortgage in favour of Sheikh Dulloo, the father of the plffs. respondents, on 5-9-1928, & under that mortgage he hypothecated with him his 7/36th share in the entire property of Nawab Khan at Jubbulpore Subsequent to the partition the plffs.-respondents brought a suit against Amir Khan upon the mortgage executed by him in favour of their father. To that suit the present appellants & the deceased respondent 5 were joined as parties. It may be mentioned here that respondents 6 & 7 as well as Sheikh Subrati, who is said to be the purchaser at an auction sale in execution of the decree against Amir Khan of the property allotted to him at the partition, were also joined as parties. Respondents 6 & 7 were joined because they are mortgagees from the appellants & Mahboob Khan. In that suit one of the pleas raised by the appellants & Mahaboob Khan was that the mtge. in favour of the plffs.-respondents was void as it was executed during the pendency of the partition suit. To that plea the plffs.-respondents replied by saying that the partition decree was void as the suit comprised of property which lay outside British India & that the decree must be treated as a nullity. This contention was upheld by the trial Court & a decree was passed on the foot of the mortgage apparently against all the defts. to that suit including the present appellants & Mahaboob Khan. From that decree the present appellants took an appeal to the late Court of the Judicial Commissioner & in that appeal it was held that while the present appellants had no right to redeem the mortgage & consequently were not necessary parties to the mortgage suit, they could not merely be discharged from the suit but that they should also be held to be bound by the finding, that the partition decree was a nullity. Their appeal was however allowed & the suit was dismissed against them. According to the respondents, this decision operates as res judicata & precludes the appellants from relying upon the partition. They also reiterate the contention that the partition must be regarded as a nullity.

4. The appellants contend that since the suit was finally dismissed against them by the late Judicial Commissioner's Court they are not bound by the findings arrived at by the learned Additional Judicial Commissioner who decided their appeal Further, according to them, the partition having been accepted by Amir Khan & actually acted upon by him, the plffs.-respondents, who claim through Amir Khan must be deemed to be estopped from challenging that partition. They also assert that the partition is not a nullity.

5. What we then have to see is whether the previous decision relied on by the plffs-respondents Operates as res judicata. It would be pertinent to Set out here the relevant portions of the judgment of Niyogi, A.J.C (as he then was):

“4. The defts.-appellants had two courses open to them: (1) to accept the partition decree & to say that they have esquired the share of Amir Khan in some of the Jubbulpore houses & on that footing claimed to redeem, or (2) that the partition is no longer binding on the parties & that they have acquired no interest in Amir Kran's share & that they are not liable to redeem. Out of these two coarse they have adopted the second course which perhaps was forced on them by the adverse finding of the two Courts below that the partition decree was void.

5. As I hold that the defts-appellants, have no right to redeem the mortgtge they are not necessary parties to the suit. They cannot, however, be merely discharged from the suit inasmuch as they joined issue with the mortgagees on the point of the validity & binding character of the partition decree & invited a decision on it. The proper coarse is to dismiss the suit against the appellants so that the finding against the partition decree may continue to bind them.”.

6. From this it would be clear that Niyogi, A.J.C regarded the appellants as strangers to the suit & therefore entitled to be discharged from it. It is true he has said specifically that they cannot be discharged for so many reasons & that he wanted chat they should be bound by a finding concerning the validity of the partition. That, however, in our opinion, does not alter the matter, for having succeeded in that appeal they could not have preferred any further appeal for challenging an adverse finding contained in the judgment. The case accordingly falls within the rule laid down by their Lordships of the Privy Council in Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, 48 Cal. 460. This is what their Lordships observed at p. 467:

“Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go farther as to the finding against them:….”

7. This decision was followed by this Court in Scott v. Mohammad Din, I.L.R (1944) Nag. 465.

8. These decisions are sought to be distinguished by the plffs-respondents' learned counsel on two grounds in the first place, he says that the appellants had withdrawn their intention regarding the validity of the partition in the appeal before the Court of the Judicial Commissioner, & secondly, in this case, the decision of the Judicial Commissioner's Court was based upon the adverse finding given by it.

9. We think that it was immaterial for the present appellants to take any definite stand regarding the partition in the appeal before the Court of the Judicial Commissioner. The plffs.-respondents' case would not have improved one bit if the appellants had continued the stand which they had taken in the Courts below. We also think that the Court of the Judicial Commissioner could have passed the very decree it passed without binding the appellants by an adverse finding. In any case, we are clear that the question whether the finding regarding partition in the suit should operate as res judicata in a subsequent proceeding was not before the Court of the Judicial Commissioner & therefore we are not concluded by whatever the learned Judge may have said in his judgment.

10. Then it is said that in any case the appellants are estopped by their conduct in the previous litigation from contending now that the partition is good. That argument is untenable is whether the partition in question was valid or void is merely a question of law & there can be no estoppel on such a question.

11. Then, on the basis of the commentary at p. 273 of Chitaley's Code of Civil Procedure Vol I, the plffs.-respondents' learned counsel argued that the test whether a decision favourable to a party operates as res judicata depends on the question whether it is based upon a finding favourable to the party or adverse to it. This is much the same argument advanced by him earlier & we do not see how the particular passage relied upon by him supports him. In that passage all that has been said is that the previous decision was held not to operate as res judicata as it was based upon a finding not adverse to the deft. The present case is a converse of that case & it does not necessarily follow that for a finding not to operate as res judicata it must always be favourable to the party sought to be estopped by res judicata.

12. Finally, the plff's. respondents' learned counsel argued that the dismissal of the suit against the appellants has to be understood in the sense the Judge meant it, that is, the grounds for dismissal given by him should be looked into. This is precisely contrary to what their Lordships of the Privy Council have held in the Privy Council case referred to above.

13. The plffs.-respondents' learned counsel then placed reliance on the following three cases: Veeraswamy v. Palaniyappan, A.I.R (11) 1924 Mad. 626, Murad Biswas v. Basti Mandal, A.I.R (16) 1929 Cal. 449 & Mithoolal v. Jainarayan, A.I.R (28) 1941 Nag. 346. In our opinion, all these cases are distinguishable.

14. The facts of the Calcutta case (Murad Biswas v. Basti Mandal) were as follows. A landlord had instituted a suit for declaration of title & for possession against a tenant. In that suit the tenant contended that he was a co-sharer with the landlord in respect of the suit land & further that as no notice of the suit was given, the claim for possession could not be decreed. The Court found in the landlord's favour on the question of title but held that possession could not be given as he failed to give notice to the tenant. In a subsequent suit between the same parties it was contended on behalf of the tenant that the finding regarding title in the previous suit did not bind him as that suit had been dismissed against him. In point of fact, there was no dismissal of the whole suit but only the Comt refused to grant one of two reliefs sought by the plffs. Clearly, therefore the tenant could have preferred an appeal against the decision & as he failed to do so, he was rightly held to be bound by the finding regarding title in the previous suit. This case, therefore, does not help the plffs. respondents.

15. In the Madras case Veeraswamy v. Palaniyappan, A.I.R (11) 1924 Mad. 626, what was held was that a favourable finding in an adverse decree operates as res judicata. Since the decree passed was adverse to the party sought to be estopped by res judicata, he became entitled to prefer an appeal from it & if he failed to do so, he would necessarily be held to be bound by what was decided in that suit. The present case is not of this kind.

16. In the Nagpur case, Mithoolal v. Jainarayan, A.I.R (28) 1941 Nag. 846, what was held was that a judgment by consent & facts admitted are just as effective for the purposes of res judicata as a judgment passed on contest or facts which were in dispute, & that a question decided by necessary implication operates as res judicata. Here it is nobody's case that the judgment of the Judicial Commissioner's Court was a judgment by consent. A mere withdrawal or want of plea does not make judgment in a contested case a judgment by consent. Further, there is no question here of anything having been decided by implication in the previous suit. The case therefore, is of no assistance to the plaintiff respondents.

17. The next question is whether the appellants, are entitled to rely upon the partition decree dated 15-1-1929. The plaintiffs respondents' plea is that the appellants are precluded from relying upon the partition decree as that decree is a nullity. As we have said already, we do not think it necessary to decide that question here. The alternative case of the appellants is that the partition was accepted by Amir Khan & acted upon by him & that Amir Khan & those who claim through him are estopped from challenging the fact of that partition.

18. The first question to be considered is whether the partition was actually acted upon. In this connection we would refer to the evidence of Iftikar Ali (6 & 7 D.W 2) who was the Commissioner appointed in the partition suit for effecting a partition. He has stated in his evidence that after the partition of the family property by metes & bounds, he put the parties in possession of their respective shares. Then there is the fact that within a few months of being put in possession of the property Amir Khan sold the house at Bhopal under Ex. 4-D-5. In that sale deed Amir Khan has stated quite clearly that he got the house under the partition between him A the other heirs of Nawab Khan. No doubt he makes a reference to the partition suit but that makes little difference as he in effect claims exclusive title to the house under the partition. Then again there is the fact that Amir Khan's share in house No. 74 at Jubbulpore & the whole of house No. 631 at Jubbulpore which fell to his share at the partition, were sold in execution of a decree against Amir Khan alone & purchased by one Abdul Hamid. Though the plaintiffs-respondents as well as their father were aware of this fact, they have never challenged it. Not only that, but in Civil Suit No. 279/199, which was instituted by one of the appellants against Sheikh Dullu, the father of the plffs.-respondents, the former had relied upon the partition & asserted his exclusive ownership of ??? share in house No. 458 at Jubbulpore & this fact was not denied by Sheikh Dullu. Since part of the consideration of the sale deed in favour of the plaintiffs respondents on which they based their suit is a mortgage executed by Amir Khan, we must hold that they are bound by the acquiescence or implied admission of Sheikh Dullu. Then again, we may say that in this very suit the plffs.-respondents have admitted, & even relied upon, the partition which they now seek to challenge. This is what they say in their rejoinder dated 9-3-1937:

“It is admitted that Rs. 6000 is due to deft. Mustafa Jan for dower, but no interest is claimable as she was given possession of house No. 447 (which is actually worth Rs. 12000) under the partition decree in lieu of her dower, & before that she was in possession of the Jubbulpore houses jointly with the other heirs of Nawab Khan.”

19. This admission of theirs coupled with the fact that Mustafa Jan has been in exclusive possession of house No. 447 at Jubbulpore ever since the partition is proof positive of the fact that the partition was accepted by all concerned. That being so, we do not think it is open to any of the parties to the partition, or to anyone claiming through any of those parties, now to say that there was no partition in fact or in law.

20. The plffs.-respondents' learned counsel argues that the partition was one under a decree & since that decree is a nullity, the very basis for that partition goes away. We do not agree. If the decree is a nullity, it can be put on one side, but the fact remains that the heirs of Nawab Khan did in fact partition the property & enter upon their separate share. There is no Law which says that a partition can be effected only through a decree & there is no question here of enforcing any decree & so the question of the decree being a nullity makes little difference.

21. Then it is argued that as the mortgage which was part of the consideration for the sale deed in suit, was executed prior to the partition of the property, the mortgagee is not affected by the manner in which the property was divided by the heirs of Nawab Khan. In our opinion, this is a matter which would have been pertinent in the suit based upon the mortgage or it may be pertinent in some other proceeding. It has however, no bearing on the present litigation as it is based on the sale deed of 1935 by which date the partition had been completely acted upon by the heirs of Nawab Khan.

22. Finally, the plaintiffs respondents' learned counsel argues that the plffs.-respondents are not bound by the statements of Amir Khan or by his acts. In our opinion, this argument is of no avail to them as transferees from a person are bound by the previous acts & admissions of that person.

23. For all these reasons, we have no hesitation in holding that the partition having been fully acted upon is a good defence to the suit & that the suit must fail.

24. Shri Dabir has brought to our notice the fact that resp. 7, Khushalchand, whom he represented died on 20-9-1943. While this fact is admitted by the appellant's counsel Shri Sen, it is not denied by Shri Bobde. Kushalchand & Komalchand (deft. 6) were joined as parties to the suit on the ground that they were co-mortgagees from the appellants & Mohboob Khan. These persons were joined as parties to the suit as the plffs.-respondents contended that they were not bound by the mortgage & as they wanted to secure in the suit a title free from the mortgage liability. The lower Ct. held that the mortgage was for consideration & was binding not only on the appellants but also on the plffs.-respondents & that defts. 6 & 7 should be paid Rs. 5,000 & interest thereon “out of the house property in suit “before effecting partition.

25. Shri Dabir's first contention is that by reason of the appellants' failure to bring on record the legal representatives of the deceased deft. 7 the whole of the appeal abates. His second contention is that the appeal abates at least in so far as the interests of deft. 6 & the legal representatives of deft. 7 are concerned.

26. We agree that by the failure of the appellants to bring on record the legal representatives of the deceased deft. 7 there is an abatement. The only question is whether the abatement is of the whole appeal or of a part of the appeal only, that is, in so far as the interests of deft. 6 & the legal representatives of deft. 7 are concerned. Shri Dabir referred us to the decision in Ghanaram v. Balbhadrasai, I.L.R (1938) Nag. 370 to which one of us (Bose, J.) was a party. There also the question was whether the whole appeal abated or only a part of it because of the appellants' failure to bring on record within time the legal representatives of one of the deceased respondents. It was observed there that it is impossible to lay down any general rule which will be of universal application & that each case must be decided on its own facts. The following underlying principles are, however, set out at p. 372:

“(1) If a decree can be passed & given effect to in be far as the rights of the parties actually before the Ct. are concerned without interfering with the interests of others, then the suit or the appeal can continue'; if not, it abates as a whole.

(2) The Court must see that it does not pass a decree, which it may find itself incapable of executing owing to the circumstances that the lower Court's decree in favour of the deceased respondent has become final in consequence of the partial abatement of the appeal against him.”

27. These two propositions have our respectful concurrence.

28. In view of these principles what is to be seen then is whether the dismissal of the suit would interfere with the interests of defts. 6 & 7 or whether such a course would bring into existence a decree which is incapable of execution. In our opinion, the relief which has been granted to defts. 6 & 7 is separate from the relief which was granted to the plffs.-respondents & the other parties to the suit. Therefore, though the dismissal of the suit against the plffs.-respondents would leave intact some provisions in the decree of the Court below which may be inconsistent with the dismissal of the suit, it cannot be said that the dismissal of the suit would adversely affect the rights of defts. 6 & 7 or would bring into existence a decree incapable of execution. It is unfortunate that a somewhat inconsistent decree may emerge as a result of our decision, but for that there is no help. We, therefore, hold that there is only a partial abatement of the appeal & that it is perfectly legal to interfere with the decree of the Court below in so far as it affects the plaintiffs-respondents.

29. The plffs.-respondents in this appeal are appellants in First Appeal 74 of 1940. There what they want is a finding to the effect that the mortgage in favour of defts. 6 & 7 does not bind them & that they should be allowed a share in the profits from the property. These contentions become immaterial in view of the fact that their suit has to be dismissed. For this reason we dismiss the appeal with costs.

30. For the reasons given above, we set aside the decree of the Ct. below in so far as the interests of the plffs.-respondents are concerned but leave it intact in so far as the interests of defts. 6 & 7 are concerned. As regards costs, we order that the plffs.-respondents will bear their own costs & those of the appellants in this Court & the Court below. As regards the costs of defts. 6 & 7, the plffs.-respondents will bear those incurred in the trial Court while the appellants will bear those incurred in this Court. Finally, we will advert to Second Appeal No. 108 of 1940. In the suit out of which this appeal arises the appellants i.e, the plffs-respondents in First Appeal No. 128 of 1939, resisted their liability to ejectment at the instance of Waris Khan appellant 1 in First Appeal 128 of 1939, on the ground that they had 7/36 share in certain property of which the house in suit was a part. In view of our finding on the question of title in First Appeal 128 of 1939, there can be no force in this contention. The appeal is, therefore, dismissed with costs in all the three Courts.

31. Appeal dismissed.