1983 Supreme(MP) 115

K. N. Shukla, J .
Kanubai Motital v. Ayodhyabai
S. A. No. 21 of 1973 (I); Decided on 6-4-1983

Headnote:(1) Hindu Succession Act, 1956 -- S. 14 -- widow having limited interest under Quanoon Mal, Gwalior -- acquired full owner ship under.

        (2) Hindu Law -- family settlement -- can be made by a person having undivided share.

        (3) Transfer of Property Act, 1881 -- S. 53.A -- ingredients neither pleaded not proved -- no assistance of provision is available.

        (4) Civil P. C., 1908 -- S. 11 -- document considered and rejected in earlier suit between same parties -- operates as resjudicata on its general principle.

        The suit lands originally belonged to one Jagannath, Jagannath had two wives, plaintiff Kanubai is the daughter of the first wife. Defendant No. 1 Ayodhyabai was the second wife of Jagannath. Defendant No. 2 Anokhilal is the son of Ayodhyabais daughter, Jagannath died sometime in 1942. Plainliff Kanubais mother had pre-deceased him. These facts were not disputed before me.

        The foundation of the plaintiffs title was an unregistered document, dated 17-4-1960, said to have been executed by Ayodhyabai in favour of the plaintiff allotting 1/3rd share in the entire property of Jagannath to her. It was alleged that after executing ibis document Ayodhyabai put her in possession thereof, and thus she was entitled to declaration of title and permanent injunction.

        Held : Admittedly, Jagannath, original owner of the suit property; died in the year 1942. At that time the Quanoon Mal Gwalior was in force in the area where the suit lands were situated. Under the said revenue law, daughters of the tenant were not entitled to succeed to the agricultural holding. On Jagannaths death, therefore, the suit property devolved on his widow, i.e. Ayodhyabai. Under the said law Ayodhyabal bad only a limited interest but after passing of the Hindu Succession Act she became an absolute owner thereof. This legal position could not be repelled. Plaintiff, therefore, had no right or title over the suit lands by inheritance.

        The question is whether the document, Ex. P./12, dated 17-4-1969 could confer any title on her. This document was unregistered and inadmissible in evidence. It could not be called any family settlement, because family settlement can be made only by persons having an undivided share in any properly. Thus, the document could not create any title in the plaintiff.

        Learned counsel for the appellant contended that since possession was deLi"Vered in pursuance of the contract, the plaintiff was entitled to protect the same. I do not agree. The document could not be admitted for any collateral purpose u/s 53-A of the Transfer of Property Act, because the necessary ingredients of the provision were neither pleaded nor proved. It was no bodys case that this document embodied a contract of transfer for consideration. Even if it was assumed that Ayodhyabai had agreed to gift these lands to the plaintiff and had placed her in possession, this fact alone could not entitle the plaintiff to claim a declaration of title and permanent injunction against the rightful owner.

        This document was considered in the earlier suit between the plaintiff and Anokhilal (S. No. 6-A of 1964.) The trial Court, the first appellate Court as well as the High Court held that execution of this document by Ayodhyabai was not proved. Copy of the High Court judgment in the suit between Anokhilal and Kanubai has been filed in this Court under O. 41, R. 27. CPC. The same is relevant ill order to show that execution of this. Patta was the very basis of the present plaintiffs case in the earlier suit and it was held up to the highest Court that such execution was not proved.

        Learned counsel for the appellant contended that the finding about the Patta in the earlier suit will not operate as res-judicata in the present suit, be cause the parties to the suit and the subject-matter, there of are not the same as in this suit. True, the requirements of S. 11, CPC are not strictly present in respect of this finding, because parties were not identical and the subject-matter was also not the same. However, S. 11, CPC is not exhaustive of the circumstances in which an issue may be res-judicata, Kalipada Di v. Dwijapada Das: (AIR. 1930 P.C22): Sheoparsadsingh v. Ramnandan Prased (ILR 43 CAL, 694): and G. H. Hook v. Administrator General Bengal (AIR 1921 P.C. 11)- See Mullas Code of Civil Procedure (14th. Edn.) Note 15 to Sec. 11, at pages 48 and 149).

        It may be noted that very basis; of the plaintiffs claim in the present suit and his defence in the earlier suit was the said document dated 17-4-1969. In the earlier suit present defendantd`respondent-Anokhilal had challenged the genuineness of this document. Anokhilal had acquired title on a Patta in his favour by his grand mother, Ayodhyabai (defendantd`respondent No. 1).Thus, even though S. 11, CPC in terms will not apply, the fact that this document was rejected in the earlier suit between the plaintiff and defendant Anokhilal, who claimed title through defendant Ayodhyabai, will justify rejection of this document on the general principles of res-judicata. AIR 1930 PC 22, ILR 43 Cal. 694 and AIR 1921 PC 11 relied on. Appeal dismissed.