judgement:
Appeal No. 216 of 1956.
Appeal by special leave from the judgment and decree dated August 28, 1950, of the Punjab High Court in Civil Regular First Appeal No. 343 of 1944.
L.K. Jha, K. P. Bhandari and Harbans Singh, for the appellants.
Darya Datt Chawla for respondent Nos.
1(i) to (iii).
February 9.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave arises from a partition suit filed by Baij Nath against his other coparceners.
Baij Nath is the son of Behari Lal and he had four brothers Kidar Nath, Raghunath Sahai, Jagan Nath and Badri Nath.
Kidar Nath was dead at the time of the suit, and his branch was represented by his five sons Ghansham Lal, Shri Ram, Hari Ram, Tirath Ram and Murari Lal, who were impleaded as defendants 1 to 5 respectively.
On the death of Ghansham Lal pending the Suit his two minor sons Jai Pal and Chandar Mohan were brought on the record as his legal representatives and their mother Mst.
Kaushalya was appointed guardian ad item.
The two minors are the appellants before us.
Chuni Lal, the son of Raghunath Sahai was defendant 6, Bal Kishan and Hari Kishan the two sons of Jagan Nath were defendants 7 and 8, and Badri Nath was defend.
ant 9.
Baij Nath 's case was that the family was undivided and he wanted a partition of his share in the family properties, and so in his plaint he claimed appropriate reliefs in that behalf.
The several defendants made out pleas in respect of the claims made by Baij Nath, but for the purpose of this appeal it is unnecessary to refer to the said pleas.
The suit wail instituted on Juno 11, 1941, 771 It appears that by consent of parties a preliminary decree was drawn by the trial court on October 30, 1941, but the validity of this decree was successfully challenged by an appeal to the Lahore High Court.
It was held by the High Court that all parties had not joined in the compromise and so the preliminary decree could not be sustained.
In the result the said decree was set aside and the case was remanded for trial.
It further appears that after remand parties again came together and by consent requested the court to pass a preliminary decree once again.
This was done on October 15, 1943.
This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by Chuni Lal, defendant 6, who it was agreed should be appointed Commissioner in that behalf.
Pursuant to this preliminary decree the Commissioner submitted his interim report on November 19,1943, and his final report on November 29, 1943.
On receipt of the reports the trial court gave time to the parties to consider the said report which had been explained to them.
Parties wanted time and so the case was adjourned.
Since the property in dispute was valuable and the parties were unable to make up their minds about the said reports further time was granted to them by the court to consider the matter.
Ultimately, when parties did not appear to come to any settlement about the reports the case was adjourned to December 17, 1943, for objections to be filed by the parties.
Tirath Ram, defend ant 4 alone filed objections; nobody else did.
The said objections were considered by the court in the light of the evidence which had been led and a final decree was drawn on June 21, 1944.
Against this decree an appeal was preferred by the appellants before the High Court of Punjab, and it was urged on their behalf that the preliminary decree was invalid in that at the time of passing the said decree the court had failed to comply with the mandatory provisions of 0. 32, r. 7 of the Code of Civil Procedure.
The High Court did not allow the appellants to raise, this point because it held that their 99 772 failure to make an appeal against the preliminary decree precluded them from challenging its correctness or validity under section 97 of the Code.
Certain other minor objections were raised by the appellants on the merits but they were also rejected.
In the result the appeal failed and was dismissed, but in view of the circumstances of the case the parties were directed to bear their own costs.
It is this decree that is challenged by the appellants in their present appeal by special leave; and the only point which has been urged by Mr. Jha on their behalf is that the High Court was in error in disallowing the appellants to challenge the validity of the preliminary decree in their appeal before it.
Mr. Jha contends that in dealing with the question about the competence of the plea raised by the appellants the High Court has misjudged the effect of the provisions of 0. 32, r. 7.
It is common ground that at the time when the preliminary decree was passed by consent and the appellants ' guardian Kaushalya Devi agreed to the passing of such a preliminary decree and to the appointment of Chuni Lal as Commissioner the appellants were minors and that leave had not been obtained as required by 0. 32, r. 7.
Order 32, r. 7(1) provides that no next friend or guardian for the suit shall without the leave of the court expressly recorded in the proceedings enter into any agreement or compromise on behalf of the minor with reference to the suit in which he acts as next friend or guardian.
It is also not disputed that the agreement which resulted in the drawing up of the preliminary decree and the appointment of Chuni Lal as Commissioner fell within the scope of this rule and that sanction required by the rule had not been recorded in the proceedings.
The argument is that the failure to comply with this mandatory provision of the rule makes the agreement and the preliminary decree void, and if that is so section 97 of the Code of Civil Procedure would be no bar in the way of the appellants challenging the validity of the decree at the appellate stage.
The effect of the failure to comply with 0. 32, r. 7(1) is specifically provided by 0, 32, r. 7(2) which says 773 that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.
Mr. Jha reads this provision as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor; in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned.
In our opinion this contention is clearly inconsistent with the plain meaning of the rule.
What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major, and that it cannot be avoided by the parties who are major against the minor.
It is voidable and not void.
It is voidable at the instance of the minor and not at the instance of any other party.
It is voidable against the parties that are major but not against a minor.
This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of 0. 32, r. 7(1) will entitle a minor to avoid the agreement and its consequences.
If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest.
The protection of the minors ' interest requires that he should be given liberty to avoid it.
No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with 0. 32, r. 7(1).
The non observance of the condition laid down by r. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all.
The non observance of the said condition makes the agreement or decree only voidable at the instance of the minor.
That, in our opinion, is the effect of the provision of 0. 32, r. 7(1) and (2).
The question as to the procedure which the minor should adopt in avoiding such an agreement or decree has been the subject matter of several decisions, and 774 it has been held that a compromise decree may be avoided by the minor either by a regular suit or by an application for review by the court which passed the said decree.
The decision in Manohar Lal vs Jadu Nath Singh (1), is an illustration of a suit filed by the minor for declaration that the impugned decree did not bind him.
It is, however, not necessary for us to deal with this aspect of the matter in the present appeal any further.
In support of his argument that the failure to comply with the requirements of 0. 32, r. 7(1) makes the decree a nullity Mr. Jha has very strongly relied on the decision of the Privy Council in Chhabba Lal vs Kallu Lal (2).
In that case an objection to the validity of a reference to arbitration was taken by a party in an appeal against the decree passed on an award; and one of the points raised for the decision before the Privy Council was whether an appeal lay against the decree in question.
Under Schedule 2, paragraph 16(2) of the Code which was then in force it was provided that upon the judgment pronounced according to the award a decree shall follow and no appeal shall lie from such decree except in so far as it is in excess of or not in accordance with the award.
The argument urged against the competence of the appeal was that the objection against the validity of the reference and the award could and should have been raised under paragraph 15(1)(c) of the said Sche dule, and since such an objection had not been so raised and a decree was drawn in accordance with the award under paragraph 16, r. 1 no contention could be raised against the validity of the decree outside the terms of paragraph 16(2).
This argument was repelled by the Privy Council.
It was held that the objection against the validity of the reference based on the ground that the requirements of 0. 32, r. 7(1) had not been complied with did not fall within the purview of paragraph 15(1)(c).
The said paragraph specified the grounds on which an award could be challenged.
It provided that the award could be set aside if it was made after the issue of an order by the (1) (1906) L.R. 33 I A. 128.
(2) (1946) L.R. 73 I.A. 52.
775 court superseding arbitration and proceeding with the suit or if it was made after the expiration of the period allowed by the court, or if it was otherwise invalid.
It is on the last clause in paragraph 15(1)(c) that reliance was placed in support of the contention that the challenge to the validity of the reference should have been made under the said clause.
The Privy Council did not uphold this argument.
" In their opinion," observed Sir John Beaumont, who spoke for the Board, " all the powers conferred on the court in relation to an award on a reference made in a suit presuppose a valid reference on which an award has been made which may be open to question.
If there is no valid reference the purported award is a nullity, and can be challenged in any appropriate proceeding.
" It is on this last observation that Mr. Jha has naturally relied; but, in our opinion, the observation in question does not purport to be a decision on the interpretation of 0. 32, r. 7(2).
The context shows that the said observation was made in support of the decision that the challenge to the validity of the arbitration and the award could not have been made under paragraph 15(1)(c) and nothing more.
We are not prepared to extend this observation to cases like the present where the point in dispute is in regard to the interpretation of 0. 32, r. 7.
It is significant that while describing the award as a nullity the Privy Council has also added that it can be challenged in any appropriate proceeding which postulates the adoption of necessary proceedings to avoid the award.
The point for consideration by the Privy Council was whether a proceeding under paragraph 15(1)(c) was indicated or whether an appeal could be regarded as an appropriate proceeding; but it was assumed that a proceeding had to be adopted to challenge the award.
The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 15(1)(c).
Since it could not be challenged under paragraph 15(1)(c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal.
It is unnecessary 776 for us to examine the merits of the said decision in the present appeal.
All that we are concerned to point out is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of 0. 32, r. 7(2).
That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question.
As we have already pointed out, the words used in 0. 32, r. 7(2) are plain and unambiguous and they do not lend any support to the argument that non compliance with 0. 32, r. 7(1) would make the impugned decree a nullity.
Mr. Jha has also relied upon another decision of the Privy Council in Jamna Bai vs Vasanta Rao (1).
In that case two defendants of whom one was a minor compromised a suit pending against them, and in doing so entered into a bond by which they jointly agreed to pay a certain sum to the plaintiff at a future date.
The leave of the court was Dot obtained on behalf of the minor as required by section 462 of the Code of Civil Procedure, 1882, which was then in force.
When a claim was made on the said bond it was held that the bond was not enforceable against the minor but it was enforceable for the full amount against the joint contractor.
We do not see how this case assists the appellants.
It appears that Jamna Bai who was the joint contractor on the bond advanced the plea that one of the two promisers can plead the minority and consequent immunity of the other as a bar to the promise 's claim against him.
This plea was rejected by the Privy Council, and that would show that the bond which was executed in pursuance of a compro mise agreement was not treated as null and void but as being unenforceable against the minor ' alone.
In ,that connection the Privy Council observed that the minor 's liability could not be enforced in view of the fact that the requirements of section 462 of the Code had not been complied with.
Indeed, in the judgment an observation has been made that the Privy Council was not expressing any opinion as to whether the bond could be enforceable against a minor even if section 462 had (1) (1916) L.R.43 I.A.99. 777 been complied with.
Thus this decision is of no assistance to the appellants.
Similarly, the decision of the Privy Council in Khiarajmal vs Daim (1), can also be of no help to the appellants, because in that case all that the Privy Council decided was that a court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it, or are properly represented on the record.
In other words, if a minor is not properly represented on the record no order passed in the proceedings can bind him.
We are unable to see how this proposition has any relevance to the point which we are called upon to decide in the present appeal.
If the preliminary decree passed in the present proceedings without Complying with the provisions of 0.32, r. 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree ? It is in dealing with this point that the bar of section 97 of the Code is urged against the appellants.
Section 97, which has been added in the Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit.
It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of section 97 of the Code.
The whole object of enacting section 97 was to make it clear that any party (1) (1904) L.R. 32 I.A. 23. 778 feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed.
When section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties.
In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge.
It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties.
Whether or not 0. 32, r. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of section 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal.
The whole object which section 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed.
Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court.

summary:
Order 32, r. 7(2) of the Code of Civil Procedure, which is intended to protect the interest of the minor, really means that an agreement or compromise entered into on behalf of the minor in contravention of 0. 32, r. 7(1) is voidable only at the instance of the minor and not at the instance of any other party to it.
Such contravention does not render the agreement or decree a nullity and the same has to be avoided in an appropriate proceeding.
Manohar Lal vs jadu Nath Singh (1906) L.R. 33 I.A. 128, referred to.
Chhabba Lal vs Kallu Lal (1946) L.R. 73 I.A. 52, jamna Bai vs Vasanta Rao (1916) L.R. 43 I.A. 99 and Khiarajmal vs Daim (1904) L.R. 32 I.A. 23, held inapplicable.
Where a preliminary decree is passed in non compliance with the provision of 0. 32, r. 7(1), the remedy of the minor is by way of an appeal against that decree and not against the final decree since section 97 of the Code is a bar to the challenging of the preliminary decree in an appeal against the final decree.
Consequently, in a suit for the partition where preliminary decree by consent was passed against the minor in contravention of 0. 32, r. 7(i) and that decree having been sought to be set aside in an appeal from the final decree the High Court held that section 97 of the Code precluded the appellant from doing so.
Held, that the decision of the High Court was correct and must be ashamed, 770 Held, further, that the object section 97 of the Code was intended to achieve would be wholly frustrated if it were to be held that the section merely prohibited a challenge to the factual correctness of the decree and not its legal validity.


judgement:
Appeals Nos. 110 and 111 of 1951.
Appeals from the Judgment and Decree dated May 6, 1946, of the High Court of Judicature at Calcutta (Biswas and Chakravartti JJ.) in Original Decree No. 43 of 1942 with Civil Rule 399 of 1945, arising out of Judgment and Decree dated June 30, 1941,, of the Second Court of Additional Subordinate Judge, 24 Parganas, in Title Suit No. 63 of 1938.
N. C. Chatterjee (Saroj Kumar Chatterjee and A. N. Sinha, with him) for the appellants in Civil Appeal No. 110.
Panchanan Ghose (section N. Mukherjee and Benoyendra Prasad Bagehi, with him) for Respondents Nos.
I (a) and 1 (b) in Civil Appeal No. 110 and the appellants in Civil Appeal No. I I I. Ram Krishna Pal (guardian ad litem) for responded No. 5 (3) in Civil Appeal No. 110 and No.4 (3) in Civil Appeal No. 111, 156 1952.
October27.
The Judgment of the court wag delivered by MAHAJAN J.
These two connected apeals from the judgment and decree of the High Court of Judicature at Calcutta in appeal from Original Decree No. 43 of 1942 dated the 6th May, 1946, arise out of Title Suit No. 63 of 1938, instituted the 21st September, 1938, in the Court of the Second Additional Subordinate Judge of Alipore, by Rajlakshmi against the Sens and the Dasses for possession of the properties which represent a four anna share of the estate once held by one Raj Ballav Seal.
the 8th June, 1870, two days before his death, Raj Ballav Seal, a Hindu inhabitant of the town of Calcutta governed by the Bengal School of Hindu law, executed a will giving authority to his widow Mati Dassi to adopt a son and appointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties.
Raj Ballav was one of those persons who believe 0in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them.
How his wishes have been respected by his descendants is now a matter of history.
Since the year 1890 this is the eighth or ninth litigation concerning the construction of the testament he made that fateful &ay, and if by any means Raj Ballav could be informed of the result of these litigations and was told that it had been held that he had died intestate, he would surely rise out of the ashes and lodge an emphatic protest against what has happened.
Raj Ballav died the 10th June, 1870, leaving him surviving his widow Mati Dassi and three grandsons, who were sons of a predeceased daughter by another wife and one of whom died in 1880 unmarried.
The grandsons ' line will be referred to in this judgment as the Sens.
On Raj Ballav 's death, Mati Dassi entered 157 into possession of the estate and adopted one Jogendra Nath Seal in 1873 under ' the authority conferred her.
Jogendra married Katyayani, and Rajlakshmi, the plaintiff in the suit out of which these appeals arise, is their only child.
She was less than one year old when Jogendra died in 1886.
Shortly after the death of Jogendra, Mati Dassi adopted Amulya Charan, a brother of Katyayani in further exercise of the authority conferred her.
Mati Dassi died in 1899 and the Sens then appeared to have taken possesion of the estate.
During the lifetime of Mati Dassi, the two grandsons commenced a suit 22nd July, 1890, against Mati Dassi and the other executors then living, Amulya and Katyayani, for a declaration of the rights of the parties under the will, administration of the estate, accounts and a declaration ' as regardit their quarter share of the net income.
Trevelyan J. declared that the grandsons were entitled to an onefourth share of the estate absolutely and directed accounts to be taken.
This declaration was granted against Mati Dassi alone, the suit having been dismissed against the other defendants.
The two grandsons having taken possession of the whole estate after the death of Mati Dassi, Amulya brought a suit the 9th October, 1901, against them and Katyayani for construction of the will and a declaration that he was the duly adopted son and heir of Raj Ballav and that as such, he was entitled to a three fourth share of the estate and the Sens were entitled only to the remaining one fourth share.
By a judgment dated 5th January, 1903, the trial court dismissed the suit the view that under the will the first adopted son had acquired an absolute right, Pitle and interest.in the share of the estate left by the will of his adoptive father and he having left a widow and a daughter, Mati Dassi had no authority to make a second adoption.
This decision was affirmed appeal.
[Amitlya Charan Seal vs Kalidas Sen(1)].
13th January, 1903, eight days after the decision of the trial, court dismissing Amulya 's suit, (I) Cal.
361 158 Katyayani commenced suit No. 11 of 1903 against the Sens, Amulya and the receiver appointed in Amulya 's suit, for construction of the will, declaration of title, partition and accounts.
In, the plaint as originally filed, Katyayani admitted the title of the Sens to an one fourth share of the estate and claimed only a three fourth share for herself as the widow of Jogendra.
The Sens claimed the whole estate for themselves as the heirs of Raj Ballav.
They pleaded that the will was not genuine and that even if it was genuine, the bequests in favour of the adopted son and for the worship of the deity were invalid and that even if they were valid, Jogendra having died before attaining the age of 20 years had taken nothing under the will.
During the pendency of this suit, the 25th September, 1903, the Sens mortgaged the whole sixteen annas of the estate to one Shib Krishna Das in order to secure a loan of Rs. 7,000.
The mortgagee and his representatives in interest will be described in this judgment as the Dasses.
Amulya 's appeal against the judgment of the trial court dated 5th January, 1903, was decided in 1905, during the pendency of Katyayani 's suit No. 1 1 of 1903 instituted the 13th January, 1903, and after the Dasses as mortgagees had entered into possession.
the 26th September, 1905, after the decision of the High Court in Amulya 's suit, Katyayani applied for an amendment of the plaint so as to include a claim for the whole estate in accordance with that decision.
This application was allowed.
To this amended plaint no further written statement was filed by the Sens.
By a judgment dated 21st December, 1905, the trial Judge decreed the claim of Katyayani for,the whole of Raj Ballav 's estate and a decree for recovery of possession of the whole estate was passed in her favour.
It was held that the whole of the corpus of the estate had vested in Jogendra and the provisions of the will whereby a fourth share had been bequeathed to the grandsons were void and ineffectual.
The plea of adverse possession and limitation taken by the Sens was abandoned at the trial, 159 Against this decision an appeal was taken to the District Judge.
The mortgagee Shib Krishna Das was also added as a party in the appeal.
The appeal was compromised and under the compromise Katyayani was to get a six anna share in absolute right in the estate, Kanai, her father, was to get another six anna share for his supposed troubles and expenses in connection with the litigation and each of the Sons a two anna share, their shares to be subject to the mortgage.
charge.
The compromise decree was passed 9th January, 1907, and the suit was remanded to the trial court in order that a partition might be effected and a final decree passed.
A partition was made in due course and final decree was passed 10th September, 1907.
On the 18th April, 1907, after the consent decree had been made by the appellate court in Katyayani 's suit, Rajlakshmi, daughter of Katyayani and the next reversioner to the estate of Jogendra, commenced suit No. 59 of 1907 'against the parties to the compromise for a declaration that the compromise and the consent decree were void and inoperative and that they were not binding her.
The trial court held that the compromise was binding Rajalakshmi but that she was entitled to a declaration that Katyayani had taken only a widow 's estate 'in the six annas share given to her.
appeal by Rajlakshmi, the High Court 8th August, 1910, reversed the trial court 's decree and declared that the consent decree was void and inoperative as against Rajlakshmi and that she was in no way bound by the partition proceedings which had taken place in execution thereof.
The appeal was not contested by the Sons but was contested by the representatives of their mortgagees (the Dasses) who asserted the title of their mortgagors to an one fourth share of the estate both under the compromise decree and the will.
(Bajlakshmi Dassee vs Katyayani Dassee(1).
In the year 1919, two cross suits were commenced by the grandsons and by Katyayani and Rajlakshmi (I) Cal.
160 for recovery of the twelve annas share and the four annas share respectively in the possession of the respective parties.
Katyayani brought suit No. 115 of 1919 for recovery of the four anna share against the Sens and the Dasses, while the Sens brought suit No. 112 of 1919 for recovery of the twelve annas share of the estate against Katyayani and Rajlakshmi.
Both these suits were dismissed by the trial judge and his decision was affirmed appeal 21st July, 1925.
Before the commencement of this suit, the Dasses had brought a suit the foot of their mortgage and had obtained a mortgage decree which was made final 23rd November, 1918.
The property described as 2, Deb Lane, Calcutta, forming part of Raj Ballav 's estate and which had ' been allotted under the compromise to the share of the Sens was notified by a declaration under the Land Acquisition Act for acquisition the 16th January, 1921.
the 27th April, 1928, Ajit Nath Das, mortgagee, made an application ' claiming the entire amount of compensation money and contended that the mortgagee decree holders were entitled to the whole of it.
Rajlakshmi claimed the entire amount as owner of the sixteen anna share of Raj Ballav 's estate.
the 7th July, 1928, a joint award was made in favour of 'all the claimants.
Rajalakshmi asked for a reference to the court the point of apportionment of compensation by a petition made by her the 18th July, 1928.
She asserted that the Sens and the Dasses were not entitled to any portion of the compensation money.
Ajit Nath Das, mortgagee, also made an application for reference the 18th August, 1928.
A similar petition was made by Jogender Mohan Das.
Bholanath Sen filed a statement of the claim 8th June, 1929.
A special judge was appointed under the Land Acquisition Act to try the matter.
He disallowed Rajlakshmi 's claim and held that the Sens were entitled to the entire compensation money.
Both the Sens and the Dasses were represented by their respective counsel and made common cause against Rajlaksbmi.
161 Rajlakshmi appealed to the High Court against the decision of the special judge but without any success.
Her appeal was dismissed 8th March, 1935.
She preferred an appeal to the Privy Council.
This was allowed and Rajlakshmi was declared entitled to the entire compensation money.
(Rajlakshmi vs Bholanath Sen) (1).
Within two months of the decision of the Privy Council, the suit out of which these appeals &rise was commenced, as already stated, by Rajlakshmi 21st September, 1938, against the Sens and the Dsses for possession of the properties which represented the four anna share of the estate allotted to the Sens, and possession of which was delivered to them in pursuance of the terms of the final decree in suit No. 11 of 1903.
A portion of these had since then been purchased by the Dasses in execution of the mortgage decree.
This suit was dismissed by the trial judge.
Rajlakshmi appealed to the High Court against the dismissal of her suit.
The High Court allowed the appeal in part, the judgment and, decree of the trial court in so far as they dismissed the plaintiff 's suit as against the Sens were set aside and the suit was decreed against them and the plaintiff 's title to the properties in suit was declared as against them.
It was ordered that she should recover possession from them, as also from defendant 14 as receiver but that her title and possession were subject to the rights of the defendants respondents 3 to 13 (Dasses) to proceed against the properties in execution of their mortgage decree the basis that these properties were in the possession of and dealt with by defendantsrespondents 1 and 2 as representing the four anna share of the estate to which they had title.
An enquiry was also ordered as to the amount of the mesne profits.
The appeal was dismissed as against respondents 3 to 13, the Dasses.
The correctness of this decision has been impugned before us in these appeals by the respective parties to the extent that it goes against them.
(I) (1938) 65 I.A. 365. 162 In order to appreciate the contentions raised in the two appeals it is necessary to determine the true scope and effect of the decision of the Privy Council in the land acquisition case of 1928 (Rajlakshmi vs Bholanath Sen) (1).
The premises acquired in those proceedings admittedly formed Part of the estate of Raj Ballav Seal, which under the compromise decree of 1907 had by partition fallen to the four anna share allotted to the Sens.
There was a triangular contest about the award of the compensation and a joint award was made in their favour after notice to all the parties interested in the property acquired including the mortgagees.
That the mortgagees were within the definition of the phrase " person interested" is plain from the language of section 10 of the Act and perhaps it would have been unnecessary to mention this elementary fact by reference to the provisions of the Act had not the High Court thought otherwise.
As already stated, the Sens, the Dasses and Rajlakshmi required the question of apportionment of compensation to be referred to the determination of the court and they stated the grounds which their claims were based.
The dispute that arose between the parties is apparent the face of those proceedings and in the words of Lord Thankerton who delivered the decision of the Board, the matter in controversy was whether Rajlakshmi was entitled to the compensation money awarded in respect of the acquisition of part of the premises, 2 Deb Lane, in the town of Calcutta as successor to the estate of Raj Ballav Seal of which the said premises formed part.
The claim to compensation made by the respective parties was founded the assertion of their respective titles in that part of Raj Ballav 's estate which under the partition decree of 1607 had been allotted to the Sens subject to the charge of the Dasses, and the decision the question of apportionment depended the determination of that title.
The land acquisition court had thus jurisdiction to decide the question of title of the parties in the property (I) (1938) 65 I.A. 365.
163 acquired and that title could not be decided except by deciding the controversy between the parties about the ownership of the four anna share claimed by the Sens and Rajlakshmi.
The Land Acquisition Court and the High Court appeal held the title of the four annas share proved in the Sens.
But their Lordships of the Privy Council held otherwise and found that the Sens had no such title, and that Rajlakshmi alone was entitled to the whole of the estate of Raj Ballav Seat including the four anna share that was in possession of the Sens and which their mortgagees had a charge.
This is how their Lordships settled the matter in controversy: "It is important to get a clear view of the position of the estate after the decision of the High Court of 8th August, 1910, the effect of which (inter alia) was to annul the consent decree of the District Court in No. 11 of 1903, and to leave the decree of the Subordinate Judge, dated December 21, 1905, which has been already quoted, as final and binding.
This decree declaring Katyayani 's title to the whole estate, was clearly a decree in Katyayani 's favour as representing the whole interests in the estate, and it has rightly been so regarded by both the courts below in the present case; and it formed res judicata in any I question with the Sens.
As regards possession of the estate, while the decree made an order for recovery of possession, the possession given under the partition of 1907 continued, the Sens being in possession of the four annas.
It seems clear that possession under an agreement which was not binding the reversionary heirs could not avail the Sens in a question with a reversionary heir, whose right to possess could not arise until the succession opened to such heir.
" The above is a clear determination of the question of title between the Sens and Rajlakshmi in regard to the four anna share.
It was argued behalf of the Sens before the Privy Council that in any case 164 the decision in suit No. 115 of 1919instituted by Katyayani against the Sens and their mortgagees for recovery of the four anna share operated as res judicata the claim of Rajlakshmi.
This plea was Inegatived and it was held that the decree in suit No. 115 of 1919 could not and did not affect Rajlakshmi 's right to possession.
There can thus be no doubt that the determination of the question of title to this part of Raj Ballav 's estate was within the scope of the land acquisition proceedings and the title was finally determined in those proceedings.
In order successfully to establish a plea of res judicaia or estoppel by record it is necessary to show that in a previous case a court, having jurisdiction to try the question, came to a decision necessarily and substantially involving the determination of the matter in issue in the later case.
It was at one time a matter of doubt whether the determination of a court to which a matter had been referred by the collector was such a decision and that doubt was resolved by the judgment of the Privy Council in Bamachandra Bao vs Ramachandra Rao(1), which decided that where a dispute as to the title to receive the compensation had been referred to the court, a decree thereon not Appealed from renders the question of title resjudicata in a suit between the parties to the dispute.
In that case it was observed as follows: "The High Court appear only to have regarded the matter as concluded to the extent of the co 'mpensation money, but that is not the true view of what occurred, for, as pointed in Badar Bee vs Habib Merican Noordin(2) it is not competent for the court, in the case of the same question arising between the same parties, to review a previous decision no longer open to appeal, given by another court having jurisdiction to try the second case.
If the decision was wrong, it ought to have been appealed from in due time.
Nor in such circumstances can the interested parties be heard to say that the value of the subject matter (1) (1922) 49 I.A. 129.
(2) 165 which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it.
If such a plea were admissible, there would be no finality in litigation.
The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute.
It has been suggested that the decision was not in a former suit, but whether this were so or not makes no difference, for it has been recently pointed out by this Board in Hook vs Administrator General of Bengal(1) that the principle which prevents the same matter being twice litigated is of general application, and is not limited by the specific words of the Code in this respect." In Bhagwati vs Bam Kali(1) an issue was decided in favour of B in a land acquisition proceeding that she was entitled to the whole of the compensation money.
In a subsequent suit by another widow, who was also a claimant in the land acquisit ion proceedings, for a declaration that she was entitled to a half share in the estate inherited by her husband and his brothers, it was held that her suit was barred by the rule of res judicata, the District Judge having in the previous proceeding decided that she had no title to the land.
In that case part of the property in dispute was, acquired under the Land Acquisition Act and the Collector by his award apportioned the compensation between the widows in equal shares.
Both the widows raised the question of title to the compensation.
The objections were referred under the Act to the District Judge and the District Judge the issue as to whether Bhagwati was entitled to the entire compensation or whether Ram Kali was entitled to a half, found in favour of Bhagwati.
Ram Kali then brought a suit ' against Bhagwati for a declaration of her right to a half share of the whole of the property inherited by the brothers and their mother.
The Subordinate Judge held that the suit was barred by res judicala by the decision of the District Judge in the reference under the Land Acquisition Act.
The High Court (1) (1921) 48 I.A. 187.
(2) (1939) 66 I.A. 145.
166 reversed this decision holding that Ram Kali 's title ,was not the subject matter of the reforence to the ;District Judge and he was not therefore competent to try it.
The Privy Council reversed this decision and held that the District Judge did determine the question of the ownership and his decision was binding upon the parties and the matter was res judicata.
These two decisions, in our opinion, are conclusive the point of resjudicata raised in the present case and in these circumstances it has to be hold that the question of title to the four anna share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a court having jurisdiction to try it and that decision(thus operates as res judicata and estops the Sens @ and the mortgagees from re agitating that matter in this suit.
We are not now concerned with the question whether the Privy Council was right or wrong.
The High Court held that there can be no question that this decision is binding the Sens and concludes them the question of their title as against Rajlakshmi and that there could be no question also that it is binding the mortagees who were parties to the proceeding.
In the concluding part of the judgment they observed as follows "Our conclusion, therefore, is that there is nothing in the decision of the Privy Council which can operate as res judicata against the Dasses, either directly or constructively, the question of the title of the Sens to the mortgaged properties.
They are bound by the decision so far as it goes: just as the Sens can no longer say that the decision in suit No. 11 ,is not res judicata against them in a question with the plaintiff, both as regards title and the right to possession,so cannot the Dasses say that the decision is not res judicata against the Sens.
But their own right to prove the title of the Sens against the plaint iff is in no way affected.
This may look anomalous, 'but such anomaly is inherent in the doctrine of res judicata which does not create or destroy title but is only a rule of estoppel," 167 With great respect it seems to us that the, conclusion reached as regards the mortgagees is neither illuminating nor sound.
The anomalous result arrived at is account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent in the doctrine of res judicata.
The learned Judges posed certain questions and then attempted to answer them in view of the limited provisions of section 11, Civil Procedure Code, which in terms apply only to suits, forgetting for the moment, if we may say so with respect, that the doctrine of res judicata is based general principles of jurisprudence.
The questions were: (1) Did the judgment of the Privy Council in the 1928 land acquisition proceedings decide any question as to the right of the mortgagees to hold from the Sens a mortgage of the four anna share, or their right to prove the title of their mortgagors in a question between themselves and the reversioners to Jogendra 's estate ? (2) Could the mortgagees have raised these questions in the land acquisi tion proceedings and even if they could have, are the questions such that they ought to have been raised? It is difficult to appreciate how both these questions were germane to the issue to be decided in the case.
Here it is worthwhile repeating what was said by Sir Lawrence Jenkins in delivering the judgment of the Board in Sheoparsan Singh vs Ramnandan Singh(1):" `` In view of the arguments addressed to them, their Lordships desire to emphasize that the rule of res judicata while founded ancient precedent, is dictated by a wisdom which is for all time. 'It hath been well said ' declared Lord Coke, 'interest reipublicaeut sit finis litium otherwise, great oppression might be done under colour and pretence of law ' ; Though the rule of the Code May be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators.
Vijnaneswara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of (i) (1916) 43 I.A. 91 at p. 98 168 Katyayana who describes the plea thus: If a person, though defeated at law, sue again, he should be answered, "you were defeated formerly".
This is called the ple a of former judgment.
And so the application of the rule by the courts in India should , ',be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.
" The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not upon section 11 of the Act.
If it were not binding, there would be no end to litigation, The mortgagees had been fighting about the title of the mortgagors from the year 1910.
When Rajakshmi lost her suit instituted 18th April, 1917, to contest the compromise decree in suit No. 59 of 1907 and preferred an appeal to the High Court, that appeal was not contested by the Sens at all, but was contested by the representatives of their mortgagee who asserted the title of the mortgagors to one fourth share of the estate both under the compromise decree and under the will.
In the year 1919 when the two cross suits above mentioned wore commenced, the mortgagees were impleaded as parties and took an active interest in the cases.
When the proceedings under the Land Acquisition Act were commenced in the year 1928 a joint award was made in their favour along with the Sens and Rajlaksmi.
As parties interested in the property acquired they asked for a reference and gotit.
They were represented by counsel before the land acquisition court and got a decision the question of title as to the four anna share of the estate of the late Raj Ballav in favourofthemortgagorsandthemselves.
They were impleaded as parties in the appeal preferred by Rajlakshmi to the High Court and before that court also they were represented by counsel and were successful in defending that appeal.
They were again impleaded as parties by Rajlakshmi in the appeal preferred by her to the Privy Council.
They took active part in the proceedings for leave to appeal and in 169 having the papers prepared for the use of the Privy Council.
As a matter of fact, they paid part of the printing cost.
Their non appearance before the Privy Council at the time of hearing cannot thus relieve them of the consequence of an adverse decision given against them by, the Privy Council.
They had every, right in those proceedings to defend the title of their, mortgagors to the four anna share and they fully exercised their right except that at the last stage, possibly having won in the two courts below, they assumed that the decision in the final court would also be favourable to them and did not appear before the Privy Council.
It had been held in a number of cases prior to the amendment made in section 73 of the Transfer of Property Act by Act XX of 1929 that where the property acquired forms part of an estate which is mortgaged for an amount larger than the amount awarded as compensation, the mortgagee is entitled to the whole of the compensation in liqcuidation of the mortgage debt.
This view was accepted by the legislature when it added sub sections (2) and (3) to section 73.
Sub section (2) is in these terms "Where the mortgaged property or any part thereof or any interest therein is acquired under the Land ' Acquisition Act, 1894, or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgagemoney, in whole or in part, out of the amount due to the mortgagor as compensation.
" In view of the provisions of sections 9, 10, 18 and 30 of the Land Acquisition Act, it is evident that if the mortgagee actually intervenes in the land acquisition proceedings and makes a claim for the compensation, and any question of title arises about the right of the mortgagor in respect to the land acquired which affects the claim for compensation, he has every right to protect that title.
In the proceedings commenced in 1928 for the acquisition of 2, Deb Lane, Calcutta, as already stated, the mortgagees actually 170 intervened and defended the title of their martgagors but without success.
In those circumstances the view taken by the High Court that they had no locus standi to make the claim, as it was not based their own title cannot be sustained because a mortgagee has no other title than the title of his mortgagor.
The judgment of the High Court when it says that the Dasses claimed it the footing that they being; creditors of the Sens, with a lien the property, were entitled to receive the money towards the satisfaction of their debt and their claim therefore was not a claim of title, but only a claim to receive the compensation money, is clearly erroneous as the claim could be established only by proving the title of their mortgagors as against Rajlakshmi.
We have further not been able to follow the judgment of the High Court when it says that the and acquisition court must be presumed to have dismissed the mortgagees ' claim the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money.
It would have been more accurate if it was said that the land acquisition court having held the title of the Sens proved to the premises acquired, presumed that the compensation money to which the Sons were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common cause against Rajlakshmi.
The High Court further observed that the mortgagees were bound by the decision of the Privy Council so far as it goes against them.
We are not able to see to which part of the decision this remark relates.
The only decision that the Privy Council gave was the question of the title of the Sens.
The award of compensation to Rajlakshmi was a mere consequence of it, and if the Sens had no title in the four anna share of Raj Ballav 's estate, the mortgagees obviously can have no lien any part of the property included in that share.
The strangest part of the judgment of the High Court is when it says that the right of the Dasses to prove the title of the Sens against the plaintiff was in no way affected by the Privy Council decision.
171 ,It seems to have lost sight of the fact that that right was advanced by the Dasses more than once.
It was exercised by them in the litigation of the year 1907 which ended in the decision of the High Court in 1910.
It was exercised by them in the 1919 litigation and was again exercised by them in the land acquisition proceedings of 1928.
In these circumstances it appears to us that they had no further right left to establish the title of their mortgagors in the four anna share of Raj Ballav 's estate claimed by them.
It may be pointed out that the mortgagees having got a decision in their favour from the High Court, absented themselves before us.
One of the representatives of the original mortgagees, Ram Krishen Das, is a minor and was represented by a guardian ad litem appointed for the suit in the court below.
He appeared and contested the appeal and urged that the mortgagees had no interest whatever in the property acquired and that they were interested only in realising their debt.
This contention is directly opposed to the provisions of section 58 of the Transfer of Property Act and the clear provisions of section 73 which only states the law that prevailed even before then.
The result is that we are of the opinion that the High Court was in error in holding that the decision of the Privy Council in the land acquisition case of 1928.
was not binding the mortgagees the question of the title of the Sens to the four anna share of Raj Ballav 'section estate as against Rajlakshmi.
Mr. Panchanan Ghose for the.
Sens made a valiant effort to escape from the effect of the Privy Council judgment in Rajalakshmi vs Bholanath Sen(1) a number of grounds.
None of his arguments, however, was convincing and might well have been summarily ,rejected but we think that it is due to Mr. Ghose and ,his long standing at the Bar that the arguments are noticed and met.
The first contention raised by :him was that the judgment of the Privy Council could not operate as (i) [1938] 65 I.A. 365.
172 res judicata against the present contention of the Sens and the mortgagees,about the title to the four anna share of Raj Ballav 's estate, because the subject matter of those proceedings was the compensation money, a sum of Rs. 900, and not the property that is the subject matter of the present suit.
He argued that when the plea of res judicata is founded general principles of law, that plea can only prevail provided the subject matter in the two cases is identical.
It was conceded that such contention could not be sustained under the provisions of section 11 of the Code.
In our opinion this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati vs Bam Kali(1), cited above, in clear and emphatic terms.
In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable.
The quotation already cited earlier from this decision brings out that point clearly.
The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.
It was then argued by Mr. Ghose that the judge who decided the apportionment issue in the land acquisition proceedings of 1928 was a special judge appointed under the Land Acquisition Act and not being a District Judge, the two decisions of the Privy Council.
, i.e., Bamachandra Bao vs Bamachandra Rao(2) and Bhagwati vs Bam Kali(1), had no application, as the special judge had no jurisdiction to hear the present suit, while the District Judge in those cases would have jurisdiction to hear the regular suits.
It was urged that to substantiate the plea of resjudicata even general principles of law it was necessary that the court that heard and decided the former case should be a court competent to hear the subsequent case.
This contention was based the language of (I) [1939] 66 I. A. 145.
(2) [1922] 49 I.A. 129.
173 section 11.
The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted the general rule of res judicata by section 11 of the Code and has application to suits alone.
When a plea of res judicata is founded general principles of law, all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction.
It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit.
A plea of res judicata general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction, like revenue courts, land acquisition courts, administration courts, etc.
It is obvious that these courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred them by the statute.
We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was decided by a special judge the effect was different.
The District Judge when exercising powers of a court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises the regular civil side.
Next it was urged that the decision given by the Privy Council was ex parte, and it had not the force of res judicata unless the subject matter of the two proceedings was identical.
Reliance for this proposition was placed certain observations contained in the decision of the House of Lords in NeW Brunswick Rly.
Co. vs British,* French Trust Corporation(1).
in that case a view was expressed that in the case of a judgment in default of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it (I) (1939] A.C. I. 23 174 was said that if a Writ is issued for a small claim, the defendant may well think it is better to let judgment ,go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendat precluded from contesting the later case.
These observations have no apposite.
application to the circumstances of the present case where the judgments of the first two courts were given after full contest and then a party defaulted in appearing before the Privy Council after having obtained judgment in his favour in the courts below.
A now point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court.
The point was that the present suit of Rajlakshmi was barred by section 47, Civil Procedure Code, inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No. II of 1903 and having obtained a decree for possession, her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit.
, The plea has no substance in it.
The decree given in suit No. 11 of 1903 became unexecutable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property.
When that, decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter partes during the lifetime of Katyayani and that was the reason why Katyayani 's suit brought in 1919 for recovery of possession of the four anna share was dismissed.
That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogendra 's estate.
It was for this reason that the Privy Council in, the 1928 land acquisition case held that it 175 had not the effect of res judicata Rajlakshmis suit claiming title in the four anna share of Raj Ballav 's estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed.
She had a fresh cause of action ' to bring a new suit for possession by setting aside the compromise.
This she did but failed.
As against Raj lakshmi the plea of section 47 in these circumstances can have no validity.
Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit.
For the reasons given above this contention of Mr. Ghose also fails.
Mr. Ghose raised a question of limitation and urged that Rajlakshmi 's suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to Jogendra and he having failed to file a suit, both Katyayani and Rajlakshmi must be taken to have lost the title to the part of the property in the possession of the Sens.
The premises which this contention is based is erroneous.
Jogendra died long before the Sens took possession of the property and therefore Jogendra before his death had no cause of action against the Sens to eject them as they were not in possession.
the other hand, the trustees were holding the property his behalf.
The pleas of limitation and adverse possession were abandoned by the Sens a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings.
It is evident that the possession of the Sens during the lifetime of Katyayani could not confer any title them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise the death of Katyayani.
For the reasons given above we hold that the appeal (No. 111 of 1951) preferred behalf of the 176 Sens has no merits and must fail.
It is accordingly dismissed with costs.
The appeal preferred by Rajlakshmi against the mortgagees '(No. 110 of 1951) is allowed with costs in all the courts and her title to the property in suit and for possession of the f same is decreed and it is directed that the defendants do deliver Possession of the suit properties to the plaintiff.
It is further declared that the plaintiff is entitled to mesne profits from the defendants.
An enquiry will be made as to the amount of mesne profits due prior and subsequent to the institution of the suit and there will be a decree for the amount so determined.
In conclusion we do express the hope that this judgment will finally conclude the ruinous litigations which have been going in courts since the last 62 years in respect of Raj Ballav 's estate and ingenuity of counsel will no longer be pressed into service to again reopen questions which must now be taken as finally settled.
Appeal No. 110 allowed.
Appeal No. 111 dismissed.
Agent for the appellants in C. A. No. 110 and respondent No. 1 in C.A. No. Ill section C. Bannerjee.
Agent for respondents Nos. 1 (a) and (b) in C.A. No. 110 and appellants in C. A. No. Ill: Sukumar Ghose.

dataset_name: IN-Abs

summary:
Where the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depends the title to the property acquired and the dispute as to title is raised by the parties and is decided by the Land Acquisition Judge after contest, this decision as to title operates as res judicata in a subsequent suit between the same parties the question of title.
The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not section 11 of the Civil Procedure Code, and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit.
If a mortgagee intervenes in land acquisition proceedings and makes a claim for compensation, and any question of title arises about the title of the mortgagor in respect to the land acquired which affects the claim for compensation, he has every right to protect that title and if he defends that title and the issue is decided against his mortgagor, the decision would operate as res judicata even as against the mortgagee.
Certain premises which formed part of the estate of a de ceased person were acquired in land acquisition proceedings.
There was a triangular contest about the right to the compensation money between A and B, two rival claimants to a four annas 155 share in the estate of the deceased, and C, a mortgagee from one of the claimants.
The three parties required the question of apportionment to be referred to the Court and a Special Judge who was appointed decided the question of title to the four annas share upon which the right to receive the compensation depended and made an award.
The Land Acquisition Judge and High Court found the title in favour of B after due contest between the parties but the Privy Council reversed the decision and decided the question of title in favour of A.
In a subsequent suit between the same parties the question of title was again raised:, Held (i) that the decision of the Privy Council the ques tion of title in the land acquisition proceedings operated as res judicata as against B &a well as C, even though the Land Acquisition Judge was a Special Judge who would have had no juris diction to try the subsequent suit; (ii)that the rule of res judicata was applicable even though the subject matter of dispute in the land acquisition proceedings was the compensation money and not the property which was in dispute in the subsequent suit ; (iii)the fact that the mortgagee did not appear at the hearing before the Privy Council was immaterial as the judgments in the first two courts were given after full contest.
Ramachandra Rao vs Ramachandra Rao [1922] 49 I.A. 129, and Bhagwati vs Ram Kali [1939] 66 I.A. 14 applied.


judgement:
Appeal No. 263 of 1956.
Appeal from the judgment and decree dated January 6, 1953, of the Madras High Court in A. section Appeal No. 7 of 1949.
M. C. Setalvad, Attorney General of India and Naunit Lal, for the appellants.
100 780 A. V. Vimanatha Sastri and B. K. B.Naidu, for respondent No. 1.
M. B. K. Pillai, for respondent No. 2. 1961.
February 9.
The Judgment of the Court was delivered by GAJENDRAGADKAR,J.
This appeal has been brought to this Court with a certificate granted by the Madras High Court and it arises from a suit filed by the appellants Mallesappa and Chenna Basappa against their uncle Mallappa, respondent 1 and granduncle Honnappa, respondent 2, for partition.
According to the plaint, the family of the appellants and respondent 1 was an undivided Hindu family until the date of the suit, and respondent 1 was its manager.
The ancestor of the family was Desai Mallappa.
He had three sons, Kari Ramappa who died in 1933, Virupakshappa who died long ago and Honnappa, respondent 2.
Kari Ramappa had four sons Guru shantappa (died 1913), Bandappa (died 1931), Mallappa (respondent 1) and Veerabhadrappa (died 1927).
Gurushantappa married Parvathamma; the two appellants are the sons of Bandappa, their mother being Neelamma.
They were born in 1926 and 1929 respectively.
Their case was that respondent 1 who has been the manager of the family for many years has been trying to deprive them of their legitimate share in the property and refused their request for partition, and so they had to file the present suit.
According to them, in the property of the family they and respondent 1 were entitled to half share each.
To the plaint were attached the schedules describing the several items of property.
Schedule A consisted of items 1 to 163 which included houses and lands at Jonnagiri.
Schedule B described the movables while Schedule C included items 1 to 35 all of which had been acquired by the family under a document exhibit B 32.
It is in respect of all these properties that the appellants claimed their half share and asked for a partition in that behalf.
This claim was resisted by respondent 1 principally on the ground that in 1929 Ramappa, the father of 781 respondent 1 and the grandfather of the appellants had effected a partition of the joint family properties between respondent 1 and his elder brother Bandappa who is the appellants ' father.
That is how, according to respondent 1, the appellants ' claim for partition was untenable.
In this way he pleaded separate title to all the properties in suit.
On these pleadings the learned District Judge, who tried the suit, framed eight issues; two of these related to the question regarding the status of the family.
He found that the plea of partition made by respondent 1 was not proved, and accordingly he declared that the appellants were entitled to half share in the properties of the family and passed a preliminary decree for partition.
According to the learned judge, the appellants were entitled to their half share in the items of property described in Schedule A excluding items 63, 64, 65, 86 and 151 and items in paragraph 14(d) of the written statement of respondent 1 as well as items of property described in Schedules B and C.
This decree was passed on November 22, 1948.
The said decree was challenged by respondent 1 by his appeal before the Madras High Court.
He urged that the trial court 's finding as to the status of the family was erroneous, and he pleaded that in any case the appellants were not entitled to any share in the properties at Jonnagiri, items 4 to 61, as well as the properties acquired under exhibit B 32.
The first argument was rejected by the High Court, but the second was upheld.
In the result the decree passed by the trial court was confirmed except in regard to the said two categories of properties.
It is this appellate decree which is challenged before us by the learned Attorney General on behalf of the appellants.
In order to appreciate the contentions raised before us it would be necessary to recapitulate briefly the findings concurrently recorded by the courts below in respect of the plea of partition set up by respondent 1.
These findings afford a background in the light of which the pleas raised before us would have to be considered.
It appears that respondent 1 relied on several documents in support of his plea that there 782 was a partition effected by Ramappa in 1929.
The trial court repelled this argument and observed that from 1937 respondent began to do mischief.
The transfer of patta in 1937 on which respondent 1 relied was entirely his work and the appellants ' mother Neelamma had not been consulted and had given no consent to it.
In the opinion of the trial court respondent 1 through his agents whom he examined as witnesses in the suit (D. Ws. 2 and 14) managed the family lands, arranged to pay cist for them and manipulated entries in the revenue record purporting to show that Neelamma had paid the said cist as pattadar.
Neelamma was an illiterate and Gosha woman and it appeared that a certain amount of coercion had been practised on her as well as deception in persuading her to execute the original of exhibit B 10 which contained the recital that the house there described had fallen to the share of Neelamma 's husband at a prior partition.
The trial court was satisfied that the said recital had been fraudulently made and the 'document had not been read to Neelamma at all.
The demeanour of respondent 1 in the witness box was also criticised by the trial judge when he observed that he did not impress the trial judge as a truthful witness, and in his opinion he was a powerful and influential man in the village who was able to do a number of things as he wished and so it was not surprising that he was able to get a number of witnesses to speak to separate enjoyment of a few items of land by the appellants ' mother.
When the question of status of the family was reagitated before the High Court it felt no hesitation in confirming the conclusions of the trial court in regard to the general conduct of respondent 1, the documents brought into existence by him, and the unfair manner in which he had dealt with the appellants ' mother.
For the reasons set out by the High Court in its judgment " and also for the various reasons put forward by the learned District Judge in his exhaustive judgment " the High Court agreed with the learned judge that the alleged partition of 1929 had not been proved.
Thus the dispute between the parties has to be considered 783 on the basis that until the date of the institution of the suit the family was an undivided Hindu family with respondent I as its manager.
The first point which has been raised before us by the learned Attorney General relates to items 4 to 61 at Jonnagiri.
These properties originally belonged to Karnam Channappa.
He died in 1904, and in due ' course the said property devolved upon his widow Bassamma who died in 1920.
Bassamma left behind her three daughters Channamma, Nagamma and Veeramma.
Channamma married Ramappa, and as we have already indicated the couple had four sons including the appellants father Bandappa and the first respondent Mallappa.
It is common ground that the properties at Jonnagiri had been obtained by Channamma by succession from her father and were held by her as a limited owner.
The appellants ' case was that after Channamma obtained these properties by ,succession she allowed the said properties to be thrown into the common stock of other properties belonging to her husband 's family, and so by virtue of blending her properties acquired the character of the properties belonging to her husband 's family; in other words, the appellants ' claim in respect of this property is based on the principle of blending or throwing into the com mon stock which is recognised by Hindu law.
The trial court relied on some transactions adduced by the appellants and upheld the plea that Channamma 's properties had become joint family properties in which the appellants had a half share.
The High Court has reversed this finding, and it has held that the transactions on which the appellants relied do not prove blending as known to Hindu law.
That is why the appellants ' claim to these properties has been rejected by the High Court.
Before considering the appellants ' case in regard to ,/these properties it is necessary to enquire whether the doctrine of blending can be invoked in such a case.
Is this doctrine based on any Sanskrit Text of Hindu Law? According to the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Debi (1).
(1) (1932) L.R. 59 I.A. 331. 784 this doctrine is based on the text of Yagnavalkya and the commentary of Mitakshara; the text of Yagnavalkya reads thus: " In cases where the common stock undergoes an increase, an equal division is obtained " (1).
In his commentary on this text Vijnyaneshwara has observed as follows: " Among unseparated brothers, if the common stock be improved or augmented by any one of them through agriculture, commerce or similar means, an equal distribution nevertheless takes place; and a double share is not allotted to the acquirer " (2).
Sir Dinshah Mulla, who delivered the judgment of the Privy Council in the case of Shiba Prasad Singh (3) has observed that the words of Yagnavalkya mean that " if a member of a joint family augments joint property, whatever may be the mode of augmentation, the property which goes to augment the joint family property becomes part of the joint family property, and he is entitled on a partition to an equal share with the other members of the family, and not to a double share, as in some other cases dealt with in the preceding verses.
This is the placitum on which the whole doctrine of merger of estates by the blending of income is founded " (p. 349).
It would thus be seen that according to this decision the doctrine of blending or throwing into the common stock is based on the text just quoted.
With very great respect, however, the text of Yagnavalkya and the comments made by Vijnyaneshwara on it do not appear to have any relation to the doctrine of blending as it has been judicially evolved.
The context of the discussion both in the text of Yagnavalkya and in the commentary clearly shows that what is being discussed is the acquisition of property by a coparcener with the use of the family stock; in other words, taking the benefit of the family stock and making its use if a coparcener through trade, agriculture or any other means augments the initial or original family stock, the augmentation thus made is treated as forming part of the original stock and an accretion to it, and in this augmentation the acquirer is not given any extra share for his special exertions.
(1) Ch. 1, sect.
4, 30.
(2) Mitakshara, ch.
1. sect.
(3) (1932) L.R. 59 I.A. 331.
785 This position is clarified by the comments made by Sulapani.
Says Sulapani: " that an equal division is here specifically ordained; for in a partnership with a common stock, the difference in the gains of each individual member is not to be taken into account at the time of partition.
" Vijnyaneshwara observes that this text is intended to be an exception to the text of Vasishtha which allows two shares to the acquirer and which is cited in the Mayukha (1).
It would thus be clear that the relevant text and the commentary are not dealing with a case where the separate property of a coparcener independently acquired by him is thrown into the common stock with the deliberate intention of extinguishing its separate character and impressing upon it the character of the joint family property.
The subject matter of the discussion is addition to the common stock made by the efforts of a coparcener with the assistance of the common stock itself.
Therefore, in our opinion, the said text cannot be treated as the basis for the doctrine of blending as it has been judicially evolved.
It is, we think, unnecessary to investigate whether any other text can be treated as the foundation of the said doctrine since the said doctrine has been recognised in several decisions and has now become a part of Hindu law.
In Rajani Kanta Pal vs Jaga Mohan Pal (2) the Privy Council held that " Where a member of a joint Hindu family blends his self acquired property with property of the joint family, either by bringing his self acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all the property so blended becomes a joint family property." The question which falls for our decision is: Does this principle apply in regard to a property held by a Hindu female as a limited owner? In our opinion, it, is difficult to answer this question in favour of the; appellants.
The rule of blending postulates that a;, coparcener who is interested in the coparcenary property and who owns separate property of his own may, (1) The Vyavahara Mayukha, Pt. 1, by Vishvanath Narayan Mandlik, 215.
(2)(1923) L.R. 50 I.A. 173.
786 by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property.
If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate ; in other words, the separate property of a coparcener loses its separate character by reason of the owner 's conduct and get thrown into the common stock of which it becomes a part.
This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property.
There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property.
A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener.
How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand.
Such a Hindu female is not a coparcener and as such has no interest in coparcenary property.
She holds the property as a limited owner, and on her death the property has to devolve on the next reversioner.
Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother 's estate as in Madras, or a Hindu widow succeeding to her husband 's estate, to efface herself and accelerate the reversion by surrender; but, as is well known, surrender has to be effected according to the rules recognised in that behalf.
A Hindu female owning a limited estate cannot circumvent the rules of surrender 787 and allow the members of her husband 's family to treat her limited estate as part of the joint property belonging to the said family.
On first principles such a result would be inconsistent with the basic notion of blending and the basic character of a limited owners ' title to the property held, by her.
This aspect of the matter has apparently not been argued before the courts below and has not been considered by them.
Thus, if the doctrine of blending cannot be invoked in regard to the property held by Channamma, the appellants ' claim in respect of the said property can and must be rejected on this preliminary ground alone.
However, we will briefly indicate the nature of the evidence on which the plea of blending was sought to be supported.
It appears that in 1921 a deed of maintenance was executed in favour of Gurushantappa 's widow Parvathamma by the three surviving brothers of Gurushantappa.
This deed was attested by their father Kari Ramappa.
It is clear that this deed includes some of the lands which Channamma had acquired by succession to her father (exhibit A 10).
Subsequently, on July 5, 1923, some additional properties belonging to Channamma were charged to the said maintenance (exhibit A 11).
It also appears that pattas in respect of the same lands belonging to Channamma were obtained in the names of the members of the family; and consequently, the said pattas were shown in the relevant revenue papers.
Broadly stated, that is the nature of the evidence on which the plea of blending rests.
It is obvious that even if the doctrine of blending were applicable it would be impossible to hold that the transactions on which it is sought to be supported can lead to the inference that Channamma did any act from which her deliberate intention to give up her title over the properties in favour of the members of her husband 's family can be inferred.
It is not difficult to imagine Channamma 's position in the family.
If her husband and her sons dealt with her property as they thought fit to do Channamma may not know about it, and even if she knew about it, may not think it necessary to object 788 because she would not be averse to giving some income from her property to her sons or to her widowed daughter in law.
As we have already pointed out, the conduct of the owner on which the plea of merger can be invoked must be clear and unequivocal, and the evidence about it must be of such a strong character as to justify an inference that the owner wanted to extinguish his title over the property and impress upon it the character of the joint family property.
Besides, as we will later point out, Channamma executed a deed of surrender in 1938 and the said document is wholly inconsistent with the plea that she intended to give up her title to the property in favour of her husband 's joint family.
However, this discussion is purely academic since we have already held that the principle of blending cannot be invoked in respect of the limited estate held by Channamma.
Therefore, we must hold that the High Court was right in rejecting the appellants ' claim in respect of the properties in Jonnagiri.
That takes us to the properties in Schedule C in respect of which the trial court had decreed the appellants ' claim and the High Court has rejected it.
This property has been obtained by respondent 1 as a result of the decree passed in O. section No. 5 of 1940.
The property originally belonged to Virupakshappa, and in O. section No. 5 of 1940 respondents 2 and 1 claimed a declaration against the two widows of Virupakshappa, their daughter and certain alienees.
The declaration claimed was that the wills of Virupakshappa therein specified were invalid and inoperative and that the respondents had reversionery right to Virupakshappa 's estate after the lifetime of his widows and daughter.
A further declaration was also claimed that alienations and gifts specified in the plaint were invalid beyond the lifetime of the widows and the daughter of Virupakshapna.
This suit ended in a compromise decree, and it is common ground that the properties in Schedule C came to the share of respondent 1 by this compromise decree.
The question which has been argued before us in respect of these properties is whether or not the appellants 789 are entitled to a share in these properties.
The appellants contend that respondent 1 had joined respondent 2 in the said suit as representing their undivided family and the properties acquired by him under the compromise decree passed in the said suit has been allotted to him as representing the whole of the family.
On the other hand, respondent 1 contends that he joined respondent 2 in his individual character and the decree must inure for his individual benefit.
It is clear that at the time when the said suit was filed respondent 2 was a presumptive reversioner and not respondent 1 ; but it appears that respondent 2 wanted the help of respondent 1 to fight the litigation, and both of them joined in bringing the said suit.
It is common ground that respondent 2 asked Neelamma whether she would like to join the litigation.
Respondent 2 has stated in his evidence that Neelamma was not willing to join the said litigation and respondent 1 has supported this version.
The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1.
That is one of the main reasons why the High Court held that the decree passed in the said suit did not enure for the benefit of the family.
In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence.
This is what Neelamma has stated in her evidence: " Defendants 1 and 2 came to me at the time of filing their suit and said that the expenses are likely to be heavy and that minors ' properties would not be wasted.
1 said 1 had no objection and gave my consent." The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors ' properties should not be wasted, whereas according to the witness the said statement was that the minors ' properties "would" not be wasted.
It would be noticed that it makes substantial difference whether the words used were " would not " or " should not.
" 790 We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to join respondents 1 and 2.
Besides, as we have already pointed out, the evidence of respondents 1 and 2 have been disbelieved by both the courts, and in fact the conduct of respondent 1 whereby he wanted to defeat the claims of his nephews has been very strongly criticized by both the courts.
Therefore, we feel no hesitation in holding that the trial court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager.
If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.
In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket.
It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/ in 1925 (exhibit B 4).
We do not know what the income of the said properties was; obviously it could not be of any significant order; but, in our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund.
The onus of proof must in such a case be placed on the manager and not on his coparceners.
But,, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint 791 family income.
Therefore, apart from the fact that Neelamma was consulted and agreed to join the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds.
This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which be was the manager.
The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial court restored.
That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A.
These items of property form part of Jonnagiri property, and we have already held that the appellants cannot make any claim to the whole of this property.
It appears that though the trial judge passed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants ' share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1.
It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898.
That is how they formed part of Channappa 's estate.
Both the courts have found that the sale deed in question was a real and genuine transaction, and they have rejected the appellants ' case to the contrary.
Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma (exhibit B. 3) on December 5, 1938.
This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law.
Indeed this document is wholly inconsistent with the appellants ' case that Channamma wanted to convert her separate properties into properties of the joint family of her husband.
Therefore, there is no substance in the appellants ' argument that they should be given a share in these three items of property.
792 The result is the appeal is partly allowed and the decree passed by the High Court is modified by giving the appellants their half share in the properties described in Schedule C.
The rest of the decree passed by the High Court is confirmed.
In the circumstances of this case the parties should bear their own costs. ' Appeal allowed in part.

summary:
The rule of blending in Hindu Law as evolved by judicial decisions can have no application to a property held by a Hindu female as a limited owner.
That rule postulates a coparcener deliberately and intentionally throwing his independently acquired property into the joint family stock so as to form a part of it.
Although it is unnecessary now to investigate whether there is any other text on which that rule could be founded, it is quite clear that the text of Yagnavalkya in a different context and the commentary thereupon by Vijnyaneshwara, relied on by the Privy Council in this connection, can have no relation to the said rule.
Shiba Prasad Singh vs Rani Prayag Kumari Debi (1932) L.R. 59 I.A. 331, disapproved.
Rajanikanta Pal vs Jaga Mohan Pal (1923) L.R. 50 I.A. 173, relied on.
Consequently, where in a partition suit certain immovable properties acquired by a Hindu female from her father as a limited owner were claimed to form part of the joint family property of her husband by virtue of the said rule: Held, that the claim must fail.
Held, further, that a Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the members of her husband 's family to treat her limited estate as part of the joint family property of her husband.
Before the said rule can be invoked, it must be shown that the owner wanted to extinguish his title to the property in question and impress upon it the character of joint family property.