2005 Supreme(SC) 618

2005(3) Supreme 360
Supreme Court of India
(From Himachal Pradesh High Court)
N. Santosh Hegde, D.M. Dharmadhikari & S.B. Sinha, JJ.
Shakuntala Devi —Appellant
versus
Kamla & Ors. —Respondents
Civil Appeal No. 3644 of 1998
Decided on 11-4-2005
Counsel for the Parties :
For the Appellant : Uttam Dutt, Gaurav Juneja and Nikhil Nayyar, Advocates.
For the Respondents : R.K. Maheshwari (N.P.), E.C. Agrawala, P.N. Puri (N.P.) and Satish Vig, Advocates.

Important point
If earlier judgment which is sought to be made a basis of res-judicata is delivered by a Court without jurisdiction or is contrary to the existing law at the time issue comes up for reconsideration such earlier judgment cannot be held to be res-judicata in the subsequent case unless protected by any special enactment.

Headnote:(i) Hindu Succession Act, 1956—Section 14—‘Will’ dt. 1-10-1938 providing maintenance right in property in favour of widow and after death of wife property was to revert back to daughter, mother of appellant—By virtue of Section 14(1) of the Act, limited right got by the widow under the ‘Will’ got enlarged to an absolute right in suit property and she became absolute owner of property—Declaratory right obtained earlier by reversioner i.e. mother of appellant, as contemplated in the Will could not be the basis on which suit for possession could be maintained.

       Held : On the coming into force of the Hindu Succession Act by virtue of Section 14(1) the limited right got by Uttamdassi under the Will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property, hence, any declaratory right obtained earlier by the reversioner as contemplated in the Will cannot be the basis on which the suit for possession could be maintained unless, of course, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them. (Para 11)

       (ii) Civil Procedure Code, 1908—Section 11—Res-judicata—Exception to the application of the principle—Earlier declaration obtained where is established to be contrary to an existing law—Two declaratory decrees obtained by appellant being contrary to law u/s 14 of Hindu Succession Act as laid down by Supreme Court in Tulas­amma’s case, it was open to defendants to challenge those declarations as void in present suit for possession—High Court rightly held that declaratory decrees obtained by appellant ­earlier being contrary to judgment in Tulasamma’s case would not be of any assistance to appellant in obtaining possession of suit property.

       Held : There are some exceptions in regard to the application of this principle. One such exception would be where the earlier declaration obtained by the court is established to be contrary to an existing law. In Mathura Prasad Bajoo Jaiswal & Ors. vs. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613) this Court held:

       “7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties; Tarini Charan Bhattacharjee’s case (supra). It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”­

       It is to be noticed that in the present case when the first declaratory decree was obtained, the law as it stood then right of Uttamdassi remained a limited right, in the suit property hence, a declaratory decree was given in favour of the plaintiffs in that suit, but by the time the second declaratory decree was obtained by the appellant herein, this Court by the judgment in V. Thulasamma’s case had declared the law under Section 14 of the Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi got enlarged and a beneficiary under a Will with limited rights became the absolute owner of the same. Since the judgment of this Court in Tulasamma’s case was the law on that date and is the law currently, the second declaratory decree was contrary to the said declaration of law made by this Court. Therefore, that declaration cannot be of any use to the appellant. (Paras 12 and 13)

       If the earlier judgment which is sought to be made the basis of res judicata is delivered by a court without jurisdiction or is ­contrary to the existing law at the time the issue comes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless, of course, protected by any special enactment. (Para 19)

       A declaratory decree simplicitor does not attain finality if it has to be used for obtaining any future decree like possession. In such cases of suit for possession based on an earlier declaratory decree is filed it is open to the defendant to establish that the declaratory decree on which suit is based is not a lawful decree. (Para 20)

       Unfortunately for the appellant the declaration obtained by her based on which she was seeking possession in the present suit being contrary to law, the courts below correctly held that the appellant could not seek possession on the basis of such an illegal declaration. Thus, the law is clear on this point i.e. if a suit is based on an earlier decree and such decree is contrary to the law prevailing at the time of its consideration as to its legality or is a decree granted by a court which has no jurisdiction to grant such decree, principles of res judicata under Section 11 of the CPC will not be attracted and it is open to the defendant in such suits to establish that the decree relied upon by the plaintiff is not a good law or court granting such decree did not have the jurisdiction to grant such decree. In the instant case, as noticed hereinabove, the present suit is filed for possession of the suit properties on the basis of a declaratory decree obtained earlier which is found to be not a lawful decree as per the law prevailing at present. Hence, the impugned judgment cannot be interfered with. (Paras 21 and 22)