SUPPA BHATTAR Vs. SUPPU SOKKAYA BHATTAR

JUDGEMENT

(1.) The facts which gave rise to this appeal are as follows: A certain Chandrasekara Bhattar was entitled to certain manibham lands appertaining to the office of alankara miras in a temple in Madura. He died on the 3rd May 1881. He had no children, but he left a widow called Thalamuthammal: he also had a nephew called Rajah Bhattar, who succeeded him as alankara mirasdar and enjoyed the properties partly under a Will alleged to have been made by Chandrasekara Bhattar before he died and partly by an agreement with Thalamuthammal. Rajah Bhattar died on the 25th January 1882, leaving a widow Akilandammal. Questions arose between the two widows, but they were settled by agreement, and Thalamuthammal went into possession of the lands and remained in possession till her death in 1885. Meanwhile, the plaintiff who is found by the lower Court to be the nearest agnate of Rajah Bhattar brought a suit, Original Suit No. 15 of 1882, to establish his reversionary rights, apparently considering those rights jeopardised by the arrangement between the ladies. He impleaded Akilandammal and Thalamuthammal as defendants together with Kuppa Bhattar, the present 4th defendant, and Deivasikamani Bhatar, the present 6th defendant, as heirs of Thalamuthammal who had died during the pendency of that suit. In that suit the defendants raised the plea among other matters that the alleged Will of Chandrasekara Bhattar was not genuine, because without the Will the chain of devolution to the plaintiff was broken on Chandrasekara s death. The suit was decided in favour of the plaintiff; and he obtained a declaration, as against the defendants he had impleaded, that he was entitled to succeed to the properties and the office on the death of Akilandammal. Akilandammal died some time in 1910, and as by this time the defendants were setting up claims to the office and its emoluments, the plaintiff brought the present proceedings against them to establish his right to the office. What happened to the office and who performed its duties during the first few years after Rajah Bhattar s death does not appear. But in August 1888 the Committee of the Devasthanam appointed the 1st and 2nd defendants to do the duties of the office (See Exhibits R and S). It is possible this was only giving sanction to an already-existing arrangement. At a later date the 1st and 2nd defendants seem to have associated with themselves the 3rd and the 6th defendants in the discharge of the duties of the office.

(2.) The present suit came on for hearing in October 1912 and was decided in February 1913 in favour of the plaintiff. The 7th defendant appeals against the judgment. The plaintiff at the trial relied upon the prior judgment in Original Suit No. 15 of 1882 as debarring the defendants from re-opening the question of the genuineness of the Will of Chandrasekara Bhattar, and the learned Subordinate Judge so held, regarding the matter as governed by the doctrine of res judicata. His view was that, though the 7th defendant was not a party to the prior proceedings, yet as other reversioners who stood in the same right were impleaded, the fact that the 7th defendant was not a party did not prevent the judgment from being binding upon him. Whether on the supposed facts the decision would have been right may be open to question. Mr. Krishnaswami Aiyar cited a large number of cases to show that it was erroneous; but it is unnecessary to decide this matter, because on further examination in this Court it appeared clearly that the facts were not as the lower Court supposed them to be. At the time when judgment was given in Original Suit No. 15 of 1882 Thalamuthammal had died. The 3rd defendant in that suit, Kuppa Bhattar, the present 4th defendant, was a degree nearer the common ancestor than the present 7th defendant, and was, therefore, not a reversioner at all but the legal heir of Chandrasekara Bhattar; and the present 7th defendant was not even a reversioner and had no interest in the matter. The position then was this: the plaintiff had brought before the Court the legal heir of Chandrasekara Bhattar, to whom it was conceded the properties had originally belonged and through whom any title to them must ultimately be traced. Those proceedings definitely determined the issue as to the rightful succession to Chandrasekara as between the present plaintiff and Chandrasekara s nearest descendant. The question is, whether the present 7th defendant who at the date of that judgment had no interest in the properties and whose interest, if any, arose subsequently can be heard to challenge it. It is quite clear that the judgment is not binding on him either as a judgment in rem affecting status or as a determination of a matter whereto he was a party or privy. But it is contended that the judgment formed a link in the plaintiff s title and that as such it cannot be challenged by any person who has not a claim, prior in origin and paramount to the claim of Chandrasekara s heir. It is strange that in a matter of this importance there should be a complete absence of English authority. The principle contended for by the plaintiff has, however, often been recognized in American decisions and is expounded in two text-books of authority, Black on Judgments, Volume 2, Section 607, and Bigelow on Estoppel (6th Edition), pases 50 and 167. It has also been recognised by a judgment of this Court in Sayam Ramamoorti Dhora v. Secretary of State for India in Council 19 Ind. Cas. 656 : 36 M. 141 : 24 M.L.J. 469. I guard myself from assenting to all the reasoning of that judgment; in particular I think the passages cited from Littleton and Lord Coke have no bearing on the present question and refer to what now-a-days would be called judgments in rem. But I assent to the principle of the judgment which I take to be this: that where a link in the chain of a party s title consists of a decree of a Court of competent jurisdiction pronounced against the only person or persons who at the time of such decree had any interest which would entitle them to resist the plaintiff s title, no person whose claim is subsequent in origin can challenge that decree, or go behind it or challenge the plaintiff s title as at that date on any ground which was determined by that decree as a necessary step in its result. On this short ground I am of opinion that it is not open to the 7th defendant in these proceedings to maintain the invalidity of Chandrasekara s Will either as an imperfect testamentary instrument or as alienating properties which, by law, are inalienable.

(3.) In these circumstances, the plaintiff having established what I may call his paper title, the only plea open to the defendant is that of limitation. The learned Subordinate Judge decided that the Article of the Limitation Act which applied was Article J 41. I will assume for the present purposes that the defendant is right in contending that the proper Article to apply is Article 124 in accordance with the decision in Pydigantam Jagannadha Row v. Rama Doss Patnaik 28 M. 197. The question then arises, what kind of possession must have been enjoyed by the defendant to defeat the plaintiff s title? There is no doubt evidence to show that the 7th defendant has had possession of the lands attached to the office of alankara miras for more than the statutory period, and it is contended on his behalf that possession of the lands was sufficient without it being necessary to show that he performed the duties of the office. That view is contrary to the decision in Bhaiaji Thahur v. Jharula Das 24 Ind. Cas. 501 : 18 C.W.N. 1020 : 27 M.L.J. 100 : 1 L.W. 549 : 16 M.L.T. 210 : (1910) M.W.N. 636 : 42 C. 241 (P.C.) : 12 A.L.J. 1176 : 20 C.L.J. 360 : 16 Bom. L.R. 845. It is also contrary to at least one decision of this Court, Kamalathammal v. Krishna Pillai 8 Ind. Cas. 998 : 20 M.L.J. 781 : 9 M.L.T. 73. It is enough for me to say that I respectfully agree with those decisions and hold that possession of the lands alone will not suffice. There is no evidence at all in this case that the 7th defendant ever actually performed the duties of this office. But it is said there is evidence that the 6th defendant performed those duties, and as the 6th and 7th defendants were jointly entitled to a fourth share of Chandrasekara s original office, the 6th defendant s performance of its duties must be held to have been undertaken on behalf of himself and the 7th defendant also. All that I need say as to that is that there is no evidence that the 6th defendant believed himself or stated himself to be performing the duties on behalf of anybody except himself; there is not even any evidence that the 6th and 7th defendants were undivided brothers. In the absence of such evidence it would, in my opinion, be quite wrong to defeat the right of the true owner by straining legal doctrines of presumptive representation.