SRINIVASA AIYANGAR Vs. SRINIVASA AIYENGAR

JUDGEMENT

(1.) Judgment in this case was reserved as we wished to consider, in connection with an argument of Mr. P.R. Sundara Aiyar, to be noticed presently, the true effect, with reference to the present claim, of the adjudication in O.S. No. 2 of 1896 on the file of the Subordinate Judge's Court of Tinnevelly, where it was established that the right to the Adhyapakam office in the temple of Nachiar and Vatapatra Sayanar in Srivilliputhur as well as in all the shrines attached thereto was vested in the Thengalai and other Thirtakars, residents of that place, as found in the decree and judgment, and that the Vadagalais other than the Thirtakars possessed no interest whatsoever in the office. As was intimated by us in the course of the argument, t here can be no doubt that in that litigation the then plaintiffs acted on behalf of all the Thengalais, while the then defendants respresented the Vadagalais of the place, having been duly constituted so to represent by the notification issued by the Court under Section 30 of the Civil P. C.. As the present plaintiffs belong to the community of Vadagalais of Srivilliputhur, the previous adjudication cleary binds them as mere Vadagalais, if the Vedanta Desikar shrine be, as contended on behalf of the Thengalai defendants in the present suit, a shrine attached to the Nachiar and Vatapatra Sayanar temple.

(2.) No doubt, in the execution proceedings taken in that suit, it was held that the shrine in question was one so attached. The execution was, however, with reference to the enforcerment of the order restraining the then actual defendants from interfering with the discharge of the duties of the Adhyapakam office. The present plaintiffs, not having been impleaded in the previous suit as defendants actually, were not liable to be proceeded against in execution for any alleged disobedience of the injunction granted therein-Sadagopa Chart v. Krishnama Chari (1889) I.L.R. 12M. 356. Consequently the finding in the execution proceedings as regards the question whether the Vedanta Desikar shrine was appurtenant to the main temple or an independent institution, is not res judicata, and that question would have to be tried in the present suit regarding the plaintiffs as "mere members of the Vadagalai community and a fortiori if, as the plaintiffs allege, the right of management of the shrine belongs to them.

(3.) Before, however, passing orders as to the trial of the point, we proceed to deal with the argument of Mr. Sundara Aiyar referred to, viz., that even on the assumption that the shrine in question is subordinate and attached to the big temple, the finding that the Adhyapakam miras belongs exclusively to the Thengalais, and the Vadagalai Thirtakars, is with reference to the plaintiffs special capacity as trustees of the shrine, res inter alias acts and therefore it is open to them to prove that the rightful holders of the office are not the Thengala is but the Vadagalais, to restrain the former from interfering with the office and to ensure the observance of the usage of the institution by executing the duties of the office from the Vadagalais. Though the decision of the question thus raised is not altogether free from difficulty, we are of opinion that the contention ought not to prevail, as the office of Adhayapakam in the shrine belongs, according to the plaintiffs, exclusively to the Vadagalais of Srivilliputhur and is vested in them and their descendants hereditarily, and as between that community and the Thengalais of the place the adjudication in favour of the latter in the litigation of 1896 is as already stated, absolutely binding. The case, with reference to these special facts, must be held to be governed by the rule stated in Bigelow on Estoppel as an exception to the general doctrine that judgments in personam bind only parties and privies, according to which exception the relation established between parties by such judgments is conclusive against third persons in the absence of fraud upon them. (5 Edition, p. 150). A clear instance of this exception is furnished by Candee V/s. Lord 51 Am. Dec. 294 ; 2 N.Y. 269, followed in other cases, where it was held by the Supreme Court of New York that a judgment is conclusive evidence in a creditor's suit founded on it, as against the other creditors of the debtor that the plaintiff is a creditor and to the amount awarded him by the judgment, unless it is impeached for fraud or collusion. In the absence of any precedents, Indian or English, elucidating this point, the reasoning of Gardiner J. who delivered the judgment may usefully be set forth. He observed :-"A debtor may be said to sustain two distinct relations to his property, that of owner and quasi trustee for his creditors. As owner he may contract debts to be satisfied out of his property, confess judgments, create liens upon it, sell or give it to others at pleasure and, so far as he is personally concerned, will be bound by his own acts. But the law lays upon him an obligation to pay his debts and holds him, in behalf of his creditors, to the exercise of good faith in all transactions relating to the fund upon which they must depend for payment. He can, therefore, neither create a debt nor do any of the things above mentioned mala fide to their prejudice. The common law, of which the English Statute and our own is but the exposition, declares that every such debt, judgment or assurance contracted or given with the intent to hinder, delay or defraud his creditors is as against them to be void. And equity in many cases holds the debtor and his confederates in the fraud as trustees for the parties aggrieved. The rights of creditors to the property of the debtor are to be worked out through the different relations to which I have alluded. In creating debts or establishing the relation of creditor and debtor, the debtor is accountable to no one unless he acts mala fide. A judgment therefore obtained against the latter without collusion is conclusive evidence of the relation of debtor and creditor against others : (1) because it is conclusive between the parties to the record who in the given case have the exclusive right to establish it ; and (2) because the claims of other creditors upon the debtor's property are through him and subject to all previous liens, preferences or conveyances made by him in good faith. Any deed, judgment or assurance of the debtor, so far at least as they conclude him, must estop his creditors and all others. Consequently neither a creditor nor stranger can interfere in the bona fide litigation of the debtor or retry his cause for him or question the effect of the judgment as a legal claim upon his estate. A creditor's right, in a word, does not arise until the latter has violated the tacit condition annexed to the debt, that he has done and will do nothing to defraud his creditors.