1960 Present : Basnayake, C.J., H. N. G. Fernando, J.,
and T. S. Fernando, J.

SATHUK, Appellant, and LAYAUDEEN
and others, Respondents

S. C. 452-D. C. Colombo, 7521/L

Res judicata-Estoppel by judgment-" Same parties "-Privity between father and son-Civil Procedure Code, s. 207-Evidence Ordinance, s. 100.

On an issue of res judicata, a decree against the father in respect of the same property binds the son when the latter bases his claim on the same deed on which his father based his claim.

APPEAL from a judgment of the District Court, Colombo.

On 27th May 1927 Saffra Umma gifted certain property to the defendants, who were her grandchildren. On 4th February 1928 she revoked the gif£ and gifted the property to her son Sathuk. On 27th September 1943 the defendants sued their paternal uncle, Sathuk, in case No. 2997for a declaration that they were entitled to the land, and judgment was entered in their favour. After Sathuk died, the plaintiff, who was Sathuk's son, sued the defendants for a declaration of title in respect of the same property. He based his claim on the very deed on which his father relied in case No. 2997. The defendants pleaded that the decision in Case No. 2997 was res judicata.

E. B. Wikramanayake, Q.C., with Nimal Senanayake, for Plaintiff-Appellant.

C. Ranganathan, with S. Sharvananda, for Defendants-Respondents.

Cur. adv. vult.

July 22, 1960. BASNAYAKE, C.J.-

This appeal was first heard by my brethren de Silva and H. N. G. Fernando. As they were unable to agree it has been re-heard before a bench of three Judges.

The relevant facts are not in dispute and are as follows : The plaintiff-appellant Mohamed Sathuk Mohamed Huzahir also known as Mohamed Huzahir Sathuk (hereinafter referred to as the plaintiff), son of Idroos Lebbe Marikar Mohamed Sathuk (hereinafter referred to as Sathuk senior) who died on 11th January 1946, sought by this action against the defendants a declaration that he is the owner of the land and buildings bearing assessment No. 57 Messenger Street, Colombo, described in the

schedule to the plaint and asked for an order of ejectment therefrom against them. Saffra Umma the paternal grandmother of the plaintiff by deed No. 1428 attested by Noor Hadjiar Mohamed Abdul Cader, Notary Public, on 27th May 1927 gifted to the five defendants, who are her grand-children, the gremises in question subject to a fideicommissum in favour of their children, reserving her life interest. At the time of the gift she was their curatrix and guardian and administratrix of their father's estate. The gift was accepted by their mother. Sathuk senior  joined in the deed as their paternal uncle and expressly renounced all his rights to the premises, in these words:
 
" And the said Idroos Lebbe Marikar Mohamed Sathuk who is the paternal uncle of the said donees doth hereby renounce all and every right interest or claim whatsoever which he may or shall have in respect of the said premises hereby gifted adverse to them and in the event of any question arising as to the validity of these presents by reason of the said donees not being put into possession of the said premises according to law the said Idroos Lebbe Marikar Mohamed Sathuk hereby agrees not to take any objection whatsoever to his advantage or take any other steps whatsoever detrimental to the interests of the said donees in respect of the premises hereby conveyed."

At the time of the gift the donees were 13, 12, 10, 7, and 5 years of age respectively. By deed No. 1483 attested by the same Notary on 4th February 1928 Saffra Umma revoked the earlier gift to her grand-children and gifted the premises to her son Sathuk senior on the following terms :-

" do hereby grant convey set over and assure by way of gift absolute and irrevocable (subject nevertheless to the terms conditions and restrictions hereinafter contained) unto my said son Idroos Lebbe Marikar Mohamed Sathuk his