PATTRACHARIAR Vs. ALAMELUMANGAI AMMAL

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 and Pattrachariar appealed, and the appellate Court held that the bequest was good and dismissed the plaintiff's suit.

(2.) 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 in 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 A. I. R. 1925 Oudh 329 and the Nagpur Judicial Commissioner's Court in Narayan V/s. Beharilal 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.

(3.) In Dhanraj Joharmal V/s. Soni Bai A. I. R. 1925 P. C. 118 their Lordships of the Privy Council refused to allow a party to bring forward before them 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 [1881] 4 All. 69 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 [1914] 36 All. 370 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 raised, the right view seems to be that such fundamental issues as limitation and res judicata are exceptions to it. I overrule the objection.