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1924 Supreme(SC) 56
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SUMNER, LORD PHILLIMORE, SIR JOHN EDGE, AND SIR LAWRENCE JENKINS.
FATEH SINGH - Appellant
Versus
JAGANNATH BAKHSH SINGH (DEFENDANTS) - Respondents
On Appeal from the Court of the Judicial Commissioner of Oudh.
Decided On : Nov. 17. 1924.
Solicitor for appellants: E. Dalgado.
Solicitors for respondents: T. L. Wilson & Co.; H. S. L. Polak.
A claim that might and ought to have been raised in a previous suit is barred by res judicata under Section 11, Explanation IV of the CPC. Furthermore, a court cannot grant liberty to file a fresh suit upon the dismissal of a suit, as such power applies only to withdrawals.
Headnote:(A) Code of Civil Procedure, 1908 - Section 11 and Explanation IV - Order XXIII, Rule 1 - Res judicata - Matter which might and ought to have been made ground of attack or defence in a former suit is deemed to be directly and substantially in issue - A subsequent suit raising such a matter is barred.
(B) Specific Relief Act, 1877 - Section 42 - Suit to declare a gift by a Hindu widow void - Prima facie competent only to the nearest prospective reversioner; distant relations must show collusion or similar reason to maintain the suit.
(C) Order XXIII, Rule 1, Code of Civil Procedure, 1908 - Withdrawal of suit - Liberty to file a fresh suit can be granted upon withdrawal, but not upon dismissal of the suit.
Facts of the case:
Plaintiffs filed a suit to declare a gift deed by a Hindu widow void, claiming to be presumptive heirs. It was contended that another individual was the nearest reversioner. After the widow's death, plaintiffs sought to amend the suit to claim possession based on a family custom. The amendment was rejected, and the suit was dismissed. The trial judge observed that the plaintiffs had liberty to file a fresh suit for possession. Subsequently, a new suit for possession based on the same family custom was filed.
Findings of Court:
The court held that the plea of res judicata was established. The claim based on family custom was essential to prove the plaintiffs' status as nearest reversioners and should have been raised in the first suit. The trial judge's observation regarding liberty to file a fresh suit was legally erroneous as the suit was dismissed, not withdrawn.
Issues: Whether a subsequent suit for possession based on a family custom is barred by res judicata under Section 11 of the Code of Civil Procedure, 1908, when the issue of heirship was central to a previously dismissed suit, and whether a trial judge's comment granting liberty to file a fresh suit overrides this bar.
Ratio Decidendi: Under Explanation IV to Section 11 of the Code of Civil Procedure, any matter which might and ought to have been made a ground of attack in a former suit is deemed to have been a matter directly and substantially in issue. Since the family custom was essential to prove the plaintiffs' title as nearest reversioners in the first suit, it ought to have been pleaded then. Liberty to file a fresh suit under Order XXIII is only applicable to suits withdrawn with permission, not to suits that have been dismissed.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- res judicata
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civil procedure
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family law
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hindu law
- succession and reversionary heirs
- widow's estate
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hindu law
Judgement
Appeal (No. 141 of 1923) from a decree of the Court of the Judicial Commissioner (February 6, 1913) affirming a decree of the Subordinate Judge of Bahraich.
The suit was brought by the appellants to recover a moiety of the estate of a deceased Hindu, Raghunath Singh ; they claimed that according to a custom of the family they were the next reversionary heirs upon the death of the widow of the deceased.
The respondents by their written statements, pleaded (inter alia) that the claim was barred under s. 11 of the Code of Civil Procedure, 1908, as being res judicata.
The facts are fully stated in the judgment of the Judicial Committee.
Both Courts in India held that the plea of res judicata was established, and that the suit should be dismissed.
1924. Oct. 24. De Mello for the appellants, referred to Parsotam Gir v. Narbada Gir (( 1899) L. R. 26
I. A. 175.); Kailash Mondul v. Baroda Sundari Dasi (( 1897) I. L. R. 24 C. 711.); Konerrav v. Gurrav (( 1880) I. L. R. 5 B. 589.) ; Chand Kour v. Partab Singh (( 1888) L. R. 15 I. A. 156.) ; Kali Krishna Tagore v. Secretary of State for India (( 1888) L. R. 15 I. A. 186.); Sheosagar Singh v. Sitaram Singh (( 1897) L. R. 24 I. A. 50.) ; and to C. P. Code, s. 11, and Order XXIII., r. 1.
Parikh for respondent No. 1 and Dube for respondent No. 2 were not called upon.
Nov. 17. The judgment of their Lordships was delivered by
LORD PHILLIMORE. This is an appeal by the plaintiffs from concurrent judgments against them given by the Subordinate Judge of Bahraich and affirmed by the Court of the Judicial Commissioner of Oudh.
It is a suit for possession of land, in which the defendants and present respondents raised as a first defence that the matter was res judicata, having already been decided between the same parties. Both Courts being of this opinion and having determined this issue, found it unnecessary to determine any of the other issues and dismissed the suit.
The history of the case is as follows The present appellants and plaintiffs with others filed a suit in July, 1908, against one Musammat Ram Kunwar, and the present defendant and respondent Jagannath Bakhsh Singh, and one Ganga Bakhsh, now represented by the defendant and respondent Bishunath Singh, in which they stated that Musammat Ram Kunwar, being a Hindu widow, was in possession of her husbands property for the ordinary Hindu womans estate, that they (the plaintiffs) and Ganga Bakhsh were the presumptive heirs of her husband, and that she, intending to defeat their succession, had purported to make a deed of gift of the property to Jagannath Bakhsh, her daughters son; and they claimed that the deed of gift might be declared void and illegal against them.
The defendants in that suit among other defences pleaded that the plaintiffs were not equal in degree with Ganga Bakhsh, but that he was the nearest reversioner and the only person entitled to dispute the deed of gift. To this the plaintiffs replied that if he were the nearer heir—-" even then the plaintiffs are entitled to maintain this suit on account of Ganga Bakhsh Singhs denial and his not joining the suit, owing to his indifference towards the preservation of his rights, having regard to his views expressed in the written statement and on account of his colluding with the defendants 1 and 2 ; and the defendants 1 and 2 cannot derive any benefit by setting up, a jus tertii in favour of Ganga Bakhsh Singh, as alleged by them." In this state of the pleadings the widow died.
A suit for a declaration that a gift by a Hindu widow is void as against the reversionary heirs of her husband is one which is contemplated by the Specific Relief Act (Act I. of 1877, s. 42), as is shown by the explanation lettered (e) to that section. But it is established that such a suit is prima facie competent only to the nearest prospective reversioner, and that if a more distant relation claims to sue, he can only maintain his suit by showing that the nearer reversioner has colluded with
