PATTARACHARIAR Vs. ALAMELUMANGAIAMMAL

JUDGEMENT

(1.) The plaintiff, who now prefers this second appeal, sued to recover a sum of Rs. 3,032-13- 3 from the assets of one Srinivasachari, making his widow the defendant, in the following circumstances. Srinivasachari's father, of the same name whom we may refer to as Srinivasachari senior, bequeathed the plaint property to his daughter Kuttiammal under a Will. With a view to dispute this bequest, Srinivasachari junior sold the property to the plaintiff for Rs. 1,000. In 1912, the plaintiff sued for possession, making Srinivasachari senior's children as well as certain lessees, parties. Srinivasachari junior raised the defence that the sale-deed was nominal and unsupported by consideration, while Kuttiammal, besides advancing this plea (which it was not open to her to do) pleaded the validity of the bequest. The District Munsif found against both these pleas and gave the plaintiff a decree for Srinivasachari junior's half share (there being another brother), Against this decision, Kuttiammal alone appealed and the Appellate Court held that the bequest was good and dismissed the plaintiff's suit. In second appeal this decision was confirmed. The plaintiff then filed the present suit against Srinivasachari junior's widow for damages for breach of warranty of title, including in his claim not only the sale price of Rs. 1,000 and interest, but the costs incurred by him in the previous litigation, the whole claim amounting to the figure given above. The learned Subordinate Judge who tried the suit disallowed the claim to costs and decreed the remainder, holding that the defendant had failed to prove want of consideration for the sale. On appeal, the District Judge disagreed with this finding and dismissed the claim. I can see no reason for interfering with his decision on the question of fact. Substantially, the only point pressed in appeal is that the question whether or not the sale was nominal is barred by res judicata; and a preliminary objection is raised that this point cannot be taken in second appeal, since it was given up in the lower Appellate Court. That this was so, is clear from the District Judge's judgment, and the matter is placed beyond doubt by an assurance given by the respondent's Vakil, who appeared, in that Court. The point formed the subject-matter of the second issue, and the Subordinate Judge found is the negative upon it. In support of his contention that the matter cannot be re-agitated here, the respondent's Vakil refers in the first place to two cases decided respectively by the Oudh Judicial Commissioner's Court, Sheo Mangal Singh v. Jagmohan Singh and the Nagpur Judicial Commissioner's Court Narayan V/s. Beharilal 89 Ind. Cas. 18 : A.I.R. 1926 Nag. 160. In the former case, the party acquiesced in. first appeal in a refusal by the trial Court to allow an alternative case to be set up. The latter related to some question of rent abandoned by the party in first appeal. In Dhanraj Joharmal V/s. Sonibai their Lordships of the Privy Council refused to objections to a decree, not urged before the lower Courts. It seems to me that whether or not a plea not pressed below should be permitted in second appeal, is largely a question of the nature of the plea. In Muhammad Ismail V/s. Chattar Singh 4 A. 69 : A.W.N. (1881) 116 : 2 Ind. Dec. (N.S.) 634 (F.B.) it was held by a Full Bench that the plea of res judicata not only may, but must be entertained in second appeal, even when it has not been urged in either of the lower Courts or in the memorandum of appeal; and the reason given is that the objection is one which goes to the very root of the case, and to the jurisdiction of the Court, and if established, is an absolute bar to the suit. It is true that that was not a case in which the plea had once been raised and later abandoned. But, there is authority in a later Allahabad case, Balkaran Upadhya V/s. Gaya Din Kalwar 24 Ind. Cas. 255 : 36 A. 370 : 12 A.L. 635 for the position that even in such circumstances the plea of limitation to which that of res judicata is akin, as affecting the Court's jurisdiction, may be so raised. Although, therefore, the general rule may be that a plea once abandoned may not be revived, the right view seems to be that such fundamental issues as limitation and res judicata are exceptions to it. I overrule the objection.

(2.) The learned Subordinate Judge rejected the plea of res judicata on the ground that the question for consideration was not a material issue in the former suit, but only of incidental importance. That is, no doubt, true as regards one of the defendants, Kuttiammal, but I do not think that it applies to the defence of Srinivasachari junior, who executed the sale-deed. A reference to his written statement shows that his case Was that there was an understanding between the plaintiff and himself that he should sue Kuttiammal for the property, and only upon succeeding in that suit and paying the purchase-money should he have anything to do with it; and that he had not satisfied either condition. Whatever the merits of this defence, the issue was framed and tried whether the sale-deed was not supported by consideration and was, I think, a material issue. A further point raised here is that the issue was not "finally decided", but again, as between the plaintiff and Srinivasachari junior, that is clearly not correct, as the district Munsif decreed the claim and the latter preferred no appeal. The circumstances find no parallel in Abdullah Ashgar Ali Khan V/s. Ganesh Dass 42 Ind. Cas. 959 : 45 C. 442 : 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.) where the Court of second appeal had before it the issue of fraud, but found it unnecessary to decide it.

(3.) The main argument is based on the fact that the District Munsif who tried the first suit was not competent to decide the second, as its value was beyond his pecuniary jurisdiction. It seems inadvisable to go for decisions bearing upon this point further back than to the Privy Council case, Gokul Mandar V/s. Pudmanund Singh 29 C. 707 : 29 I.A. 196 : 6 C.W.N. 825 : 4 Bom. L.R. 793 : 8 Sar. P.C.J. 323 (P.C.), in which their Lordships observed that under Section 13 (now Section 11) of the Civil Procedure Code, "a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit, unless the Judge, by whom it was made, had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent suit itself, in which the issue is subsequently raised. In this respect, the enactment goes beyond Section 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the Judges in the Duchess of Kingston's case (1776) 2 Sm. L.C. (11 Ed.) 731. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction". The scope of these observations has been differently interpreted in Calcutta and in Madras, In a Calcutta case, Shibo Raut V/s. Baban Raut 35 C. 353 : 12 C.W.N. 359 : 7 C.L.J. 470. the first suit had to do with only a part of the property which was the subject-matter of the second, so that the Court which tried the first was not competent to try the second. It was held that no part of the claim was barred, Mookerjee, J., observing: "If the principle thus interpreted by the Judicial Committee is applied to the case before us, there can be no possible controversy that the plea of res judicata cannot be sustained." This view was not adopted by Sadasiva Iyer, J., in Thekkemannengath Raman V/s. Kakkesseri Pazhiyot Manakkal 27 Ind. Cas. 989 : 28 M.L.J. 184 : 2 L.W. 433 on the ground that their Lordships observations were only in criticism of an objection that the finding of a Revenue Officer in a revenue suit was res judicata in the subsequent suit which was not within the Revenue Officer's jurisdiction. The learned Judge felt himself, therefore, at liberty to follow Pathuma V/s. Salimamma 8 M. 83 : 4 Ind. Dec. (N.S.) 58, in which it was held that the principle of res judicata did apply to that part of the claim, which was within the jurisdiction of the Court which tried the first suit. He goes on to quote Sir Arnold White, C.J., in Ranganatham Chetty V/s. Lakshmi Ammal 21 Ind. Cas. 15 : 25 M.L.J. 379 : 14 M.L.T. 189 : (1913) M.W.N. 690 thus: Although taking all the causes of action together, the second suit may be said to be outside the jurisdiction of the original Court, still, if the specific question be within the jurisdiction of the original Court and was determined by the original Court, it is no answer to say that the whole suit is beyond the jurisdiction.