B J MANGE GOWDA Vs. G RATNAMMA DEAD

JUDGEMENT

(1.) The solitary ground on which the learned trial Judge has disallowed the bar of res judicata that was pleaded by the present petitioner is that the plaintiff Rathnamma has filed the present proceeding in a capacity other than the one in which the earlier suit had been instituted. Briefly stated, what had happened was that in respect of the property in dispute which admittedly belonged to the deceased Girijamma, the plaintiff Rathnamma had instituted O.S. No. 289 of 1979 claiming the suit schedule properties as heir of Girijamma. That suit came to be dismissed on merits and the order in question has become final. Thereafter, the same plaintiff Rathnamma instituted a second proceeding namely the present one in which she contended that she was litigating in her capacity as a legatee of Girijamma by virtue of Will dated 8-4-1982. The Trial Court framed Issue No. 5 principally because the defendants had contended that the present suit was barred by the principles of res judicata. After hearing the parties, the Court passed an order wherein the solitary ground on which the plea of res judicata was dismissed was because the plaintiff had sued in the earlier proceeding in the capacity of legal heir and on the present occasion, has sued in the capacity of a legatee. The learned trial Judge took the view that the plaintiff was not claiming the property under the same title or in other words, that the status pleaded by her in the two proceedings was different and that therefore, the bar of res judicata would not apply. It is this finding that is under challenge in the present petition.

(2.) The petitioner's learned Advocate has placed reliance on an old Division Bench decision of the Allahabad High Court in the case of Radha. Mohan and Others v Mrs. Eliza Jane Hilt and Others, wherein the Court was considering a somewhat identical situation wherein the parties who had lost a proceeding in their capacity as legal heirs, sought to reagitate the matter through a subsequent proceeding on the ground that they had approached the Court as legatees. The Division Bench held that the bar of res judicata would apply and dismissed the suit. The submission canvassed in the present case is that it is not the contention raised by the plaintiff or the descriptive title of the plaintiff that is material, but that the Court must, when the same party is reagitating the same issue in respect of the same property, carefully scrutinise as to whether the cause of action is virtually one and the same. The learned Advocate submits that this is so and that therefore, the suit is barred.

(3.) I have carefully considered the position in law and to my mind, the Trial Court was clearly in error. There is considerable substance in the submission canvassed before me on behalf of the petitioner that the plaintiff is the same person, that the suit is between the same parties in respect of the same property and that merely by contending that she has now come forward in the capacity of a legatee, that it is not be permissible in low to reopen the matter. What the Trial Court has overlooked is that the legal status of the plaintiff is identical in the present situation to the one in which she had instituted the earlier proceeding. Even though she describes herself as a legatee in this case in order to get out of the obvious problem since the earlier proceeding was filed in the capacity of legal heir, there can be no doubt about the fact that the plaintiff could not have approached the Court as legatee except in the status of a legal heir. The positions are virtually synonymous and under these circumstances, the petitioner's learned Advocate is right when he points out that the bar of res judicata clearly applies.