AHMEDBHOY HABIBBHOY Vs. SIR DINSHAW MPETIT

JUDGEMENT

(1.) The question in this case is whether certain of the defendants are precluded from contesting the plaintiff's allegation that the property in his hands is his self- acquired property by the decision in Ahmedhhoy Ilubibhhoy V/s. Cassumbhoy Ahmedhhoy 12 B. 280. And this question breaks up into two main parts, first, whether this point was in fact decided in Ahmedbhoy's case 12 B. 280. Next, whether if it, was so decided, that decision constitutes resjudicata against the defendants concerned.

(2.) With reference to the first of these points, it is material to quote their Lordships actual words, which are : this is sufficient .for the decision of the case," that is to say, their finding upon the point with which they had just dealt is sufficient to dispose of the case. But they go on to say: "We think it advisable to express an opinion on the question &c. and, therefore, they proceed to discuss the evidence relating to the character of the property in Ahmedbhoy's hands and come to the conclusion, a somewhat hesitating conclusion, that the evidence was not sufficient to enable them to say that property had the impress of what is called joint ancestral family property. Now I confess it appears to me impossible, merely reading those words, to hold as the plaintiff has asked me to hold, that what follows them is in the nature of a decision of the question raised. I think that their Lordships meaning is easy to be guessed. The Court below had come to its own conclusion upon this part of the case and if that decision had not already appeared in the law books, it had been the common property of the bar; and, therefore, it is quite intelligible that if their Lordships of the Appeal Court took a different view they would have wished to intimate that other Judges sitting alone on the original side were not to consider themselves bound by the decision arrived at by Mr. Justice Jardine. That, I apprehend, to be the intention of their Lordships in going into this second question at the length they did, and, therefore, upon that point I should feel considerable hesitation in holding that this part of the decision in Ahmedbhoy's case was in any sense a decision within the meaning of Section 11 of the Code.

(3.) Passing on from that, however, to the more important question whether if this is to be regarded as an answer to the question, it constitutes res judicata between the present parties concerned; it is necessary to bear in mind what the nature of this suit was. It was brought by Cassumbhoy, the son of Ahmedbjoy, as a partition suit and two main questions arose. First, whether it was competent to the plaintiff according to the law governing Khojas, to enforce a partition in his father's life- time? That was the first and perhaps the principal issue. Next, assuming that that point was found in his favour, the second question would arise whether the property of which he sought partition was ancestral family property? The Court below appears to have found both these points in plaintiff's favour. Then on appeal their Lordships decided the first point against the plaintiff-respondent, that is to say, they held that amongst Khojas a son cannot enforce a partition in his father's life-time and that, of course, completely disposes of the whole case. For this, as I have said, was merely a suit for partition and as soon as the Appeal Court held against the plaintiff that there was no right to enforce a partition during his father's life-time, so far as this suit goes there is an end of it. However, their Lordships proceeded to deal with the second question whether the property in the hands of Ahmedbhoy was ancestral family property and no doubt they discussed the evidence and came to their own conclusion upon that point, a conclusion which differs from that arrived at by the Judge of the first Court; and they end by saying: "therefore, we must reverse the decree with costs." Now, it appears to me perfectly plain that if we look both at the words of Section 11 and the principle of res judicata, even assuming that this second decision was intended to be a decision of the question raised by their Lordships, it would not satisfy all the conditions and requirements of res judicata. In all such cases where Courts come to a final decision so far as they are concerned upon any point which is sufficient in itself to dispose of the suit or appeal and then proceed thereafter to discuss some connected or ancillary point, it is perfectly clear, I think, that throughout the whole current of decisions in English Courts, at any rate the Judges have never doubted that what follows is merely an obiter dictum, and cannot be treated as res judicata. And that, I think, for a very simple reason of principle and only a reason of principal, but a reason expressed in the plain words of the section. To constitute res judicata, something substantially and materially in issue between the parties must have been finally decided by the Court empowered to deal with it. And while no doubt everything which is necessary for the disposal of the suit, even though only incidentally necessary, yet necessary, does fall within the scope of those words and would constitute res judicata, yet once a decision has been come to upon any preliminary point, be it Other a point of law or of fact or a mixed question of law and fact, which is sufficient in itself to dispose of the whole suit, if the Judge goes on to discuss merely perhaps for the satisfaction of the Appellate Court other questions, the decision of them would not be. final. The test again is exceedingly simple. For, indeed, what can be or is meant by a final decision? Where we have Courts in steps from the grade of Munsifs up to the Privy Council, it is plain that only that decision can be final which is (a) final in itself, or (b) allows the party aggrieved by it to carry it further and get it made final. And, therefore, a decision upon any question which does not open the door to the parties aggrieved to carry it to the next Court is not in any sense a final decision unless the Court which has decided it is itself the Court of final jurisdiction for that suit. The underlying principle may be clearly illustrated by the converse case-a case which frequently occurs in the mofussil, of a plaintiff while he is substantially successful and obtains a decree, having some important issue decided against him. Now, in such a case although if the decree had been against him, he could have carried it up first to the District Judge and then to the High Court and then other conditions were fulfilled to the Privy Council, having so obtained the decision of the Court; of final jurisdiction upon the whole case including questions which were decided against him, as it is ho cannot proceed a step. He cannot appeal against the decree which is in his favour and there is no provision of law allowing him to appeal against part of a judgment. It would thus lie with his adversary to decide whether what was decided against the plaintiff should remain res judicata against him. I have thus, I think, reduced the argument, upon which the plaintiff relics in this case, to quite an evident absurdity. In all such cases, notably in this- the decision obiter of any question not necessary to the disposal of the suit is not a fined decision.