MARUVADA VKATARATNAMA Vs. MARUVADA KRISHNAMA

JUDGEMENT

(1.) IN the suit in which the appeal has arisen the plaintiffs-respondents, who are the reversioners to the estate of one Gopalakrishnamma, seek for a declaration that the adoption of the 2nd defendant made by the 1st defendant, the widow of Gopalakrishnamma, on the 29th January 1917 is invalid inasmuch as it was not, authorized by the 1st defendant s deceased husband and was not made by the consent of his kinmen. The question for decision on which the learned Chief Justice and Mr. Justice Napier differed in the appeal from the judgment of the Court of 1st instance is whether the suit is barred by res judicata by virtue of the decision in a previous suit (Original Suit No. 20 of 1900, in the Ganjam District Court). In the latter suit, the present first plaintiff and some other reversioners bad asked for a declaration that a Will dated 2nd December 1897, propounded as being the last Will and testament of the above mentioned Gopalakrishnamma, was a forged and "false document. The learned Chief Justice field against the plea of res judicata while Mr. Justice Napier was of a contrary opinion. By the plaint in the suit of 1900 all that was asked for was a declaration that the alleged Will was not genuine. It did not contain any alternative prayer that even if the document was found to begenuine, the Court should hold that it was not a Will, but an authority to adopt and as such invalid for non-registration. The issue framed was also confined, as we gather from the judgment of the District Judge in that suit, to the question of the genuineness of the document. But it is clear that at a later stage of the trial the other question of the construction and operation of the document was allowed to be raised and was determined by the learned Judge. He says in the last paragraph of the judgment: "The Will is a Will as it stated he wishes to record his intentions as to disposal of his property and, therefore, be gives authority to defendant to adopt a son who shall inherit it. As a Will it nerd reither be stamped nor registered, and it is not a mere authority to adopt as the plaintiffs Vakil contends." The plaintiffs appealed from that judgment to the High Court and not only contested the findings of the District Judge on the question of the genuineness of the alleged Will, but also challenged his conclusion on the question of construction and validity of the document. No lees than two or three of the grounds of appeal were prominently directed to the latter question. The High Court dismissed the appeal in the following words: "The finding of the District Judge that the Will is a genuine is fully supported by the evidence, and the suit being one for a declaration that it is a forgery, it was rightly dismissed." It is clear that the High Court only decided the question as to the genuineness of the document and refused to decide the other question dealt with by the lower Court, namely, whether the document was a Will and if not, whether it was invalid as an authority to adopt inasmuch as it was not registered. We must treat the judgment of the High Court as the final decision in the suit. It is difficult to see how it can be said that any bar is orated by Section 11 of the Civil Procedure Code in this case, since the Court of Appeal never decided the present issue. Section 11 says: "No Court shall try any suit or issue which has been directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court." To my mind, it is a sufficient answer to the plea of res judicata to point out that the Court of Appeal chose not to decide the present question though expressly asked to do so. It is true that there was no prayer in the plaint in the previous suit for a declaration that the document was inoperative as authority to adopt, but the question was allowed to be raised before the trial Court; the Court gave a decision upon it and the plaintiffs challenged that decision before the Court of Appeal. It does not seem to me, therefore, that this is a case under Explanation 4 of Section 11, which says "any matter which might and ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit." Our Rules of procedure provide for issues being raised for trial upon statements of parties and their Pleaders though not contained in the pleadings, and the plaintiffs in the suit of 1S0O were allowed by the trial Court to raise this very question and they raised the question again in appeal. There was, therefore, no omission to which Explanation 4 would have application.

(2.) No reason is expressly stated in the judgment of the High Court in the former suit for its not deciding the question o f the validity of the authority to adopt and one can only make conjectures on the point. The learned Judges probably thought it was not nec3ssary to express any decision on that question as no adoption had been purported to be made, nor was it alleged that the widow was about to act on that authority. If that was the reason which actuated the learned Judges in confining themselves to the question of the genuineness of the document, I think it would be right to impute to them an intention that they wanted to leave the ether question open for future litigation in case any necessity arose, and not that they wanted to conclude that question against the respondent while refraining from giving a declaration upon it although asked to do so.

(3.) The ruling of the Privy Council in Sheosagar Singh v. Sitaram Singh 24 C. 616 : 24 I.A. 50 : 1 C.W.N. 297 : 7 Sar P.C.J. 124 : 12 Ind. Dec. (N.S.) 1079. lays down the principle, which, in my opinion, covers this case. Lord Maonaghten says, "To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the l3t suit, the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that in a suit constituted as the suit of 1835 was, no decision ought to have been pronounced on the merits." That judgment is cited with approval by the Privy Council in a later decision of theirs in Abdullah Ashgar Ali Khan v Ganesh Dass 42 Ind. Cas 959 : 45 C. 448 : 128 P.W.R. 1917 : 22 M.L.T. 451: 22 C.W.N. 121 : 3 P.L.W. 381 : 26 C.L.J. 568 : 15 A.L.J. 889 : 19 Bom. L.R. 972 : 34 M.L.J. 12 : 7 L.W. 62 : 132 P.L.R. 1917 : (1918) M.W.N. 7 : 44 I.A. 213 (P.C.), In Parsotam Gir v. Sarboda Gir 21 A. 503 at p. 514 : 1 Bom. L.R. 700 : 3 C.W.N. 517 : 26 I.A. 175 : 7 Sar. P.C.J. 538 : 9 Ind. Dec. (N.S.) 1028 the Judicial Committee observed as follows: ?The conditions for the exclusion of jurisdiction on the grounds of res judicata are, as Wallis, J., says, that the same identical matters shall have come in question already in a Court of competent jurisdiction, that the matter shall have been controverter and that it shall have been finally decided. That is just what Section 13 requires; there must be a final decision. " The plaintiffs, or rather the persons whose interest they represent, sought a decision in their favour on two questions on the merits. The Court of Appeal decided against them on one question and refused to decide the other question apparently because they thought it unnecessary to do so in that suit. I am of opinion that, under the circumstances, the plea of res judicata fails and the appeal should be dismissed with costs. Oldfield, J.