Amritsagar Gupta & Ors Vs. Sudesh
Behari Lal & Ors  INSC 79 (13 March 1969)
13/03/1969 HEGDE, K.S.
CITATION: 1970 AIR 5 1969 SCR (3)1002 1969
SCC (1) 810
Code of Civil Procedure (Act 5 of 1908), s.
11-Res Judicata- Suit against manager of Joint Hindu family-No allegation that
he was being so sued-Coparceners not parties-Decree if operates as res judicata
A suit between J the father of appellants and
B the father of respondents, each claiming possession of the suit properties on
the strength of an alleged gift deed in his favour, was decreed in favour of J
and the decree was confirmed by this Court. After various attempts by B and
after his death by his sons, to defeat J's rights, one of B's sons filed a suit
for partition of the suit properties on the allegation that they were gifted to
the joint family of which B was the karta.
On the question whether the decree in the
earlier suit operated as res judicata.
HELD : It is not necessary in order that a
decree against a manager may operate as res judicata against coparceners who
were not parties to the earlier suit, that the plaint or written statement
should state in express terms that he was suing or was being sued as a manager,.
It is sufficient if the manager was in fact suing or was being sued as
representing the whole family. A suit by or against the manager will be deemed
to be one brought by or against him as representing the family if the
circumstances show that he was the manager and the property involved in the
suit was family property. [1004 H; 1005 A-B] In the present, case, B must be
deemed to have been sued in the previous suit as the karta of his family,
because : (a) the alleged gift in favour of the joint family was at a time when
all the sons of B were minors and if true the gift could have been accepted by
B only as the karta, (b) there was no conflict of interest between B and his
sons and there was no allegation that B did not safeguard the family's interest
while contesting the previous suit; and (c) B did not claim in the earlier suit
that the gift was to him in his individual capacity. [1004 A-C; 1005 C]
Lalchand v. Sheogovind, (1929) I.L.R. 8 Pat. 788, Ram Kishan v. Ganga Ram,
(1931) I.L.R. 12 Lah. 428, Prithipal v. Rameshwar, (1927) I.L.R. 2 Luck. 288,
Surendranath v. Sambhunath, (1928) I.L.R. 55 Cal. 210, Mulgaund Co-operative
Credit Society v. Shidlingappa Ishwarappa, I.L.R.  Bom. 682,
Venkatanarayana v. Somaraju, A.I.R. 1937 Mad. 610 (F.B) and Mani Sahoo v.
Lokanath, A.I.R. 1950 Or. 140, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 349 of 1966.
Appeal by special leave from the judgment and
order dated December 17, 1963 of the Punjab High Court,. Circuit Bench at Delhi
in R.F.A. No. 164-C of 1963.
1003 S. V. Gupte and A. N. Goyal, for the
C. B. Agarwala, H. K. Puri and B. N. Kirpal,
for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. The only question that arises for decision in this appeal by special
leave is whether the suit from which this appeal has arisen is barred by res
judicata in view of the decision in Civil Suit No. 15 of 1943. The trial court
answered that question in the affirmative but the High Court has taken a
contrary view. Hence this appeal.
The facts of the case leading up to this
appeal, briefly stated, are as follows :
One Krishen Gopal had lease-hold rights in
the suit pro- perties. After the death of the aforesaid Krishen Gopal dispute
arose between Jawala Prashad, the father of the appellants and Banwari Lal
Verma, the father of the respondents as to the title of the suit properties.
Each one of them claimed that those properties had been gifted to him by
Krishen Gopal. As a result of this dispute Jawala Prashad instituted on January
20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming
possession of the suit properties on the strength of the alleged gift in his
favour. In defence Banwari Lal Verma pleaded that those properties had been
gifted to him by Krishen Gopal. The principal issue that arose for decision in
that suit was whether the suit properties had been gifted to Jawala Prashad or
Banwari Lal Verma. The trial court dismissed the suit but in appeal the decree
of the trial court was reversed and the suit was decreed as prayed for. That
decision was confirmed by the High Court and thereafter by this Court in, Civil
Appeal No. 164 of 1953. After the decision of this Court Banwari Lal Verma made
various applications to this Court asking for reliefs which if they had been
granted, would have practically nullified the effect of the decree but those
applications were rejected by this Court. Thereafter efforts appear to have
been made to obstruct the execution of the decree in diverse ways. When everyone
of those efforts failed Rangi Lal Verma the eldest son of Banwari Lal Verma
filed a suit praying for a declaration that the suit properties belonged to his
family consisting of Banwari Lal Verma and
his sons. This suit was dismissed for non-prosecution. It is only thereafter
the present suit has, been filed by one of the sons of Banwari Lal , Verma
claiming partition in the suit properties on the allegation that the same had
been gifted by, Krishen, Gopal to. his joint family.
1004 The gift put forward by the plaintiff is
said to have been made in 1928. Admittedly at that time all the sons of Banwari
Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on
behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if
true could have been accepted only by Banwari Lal Verma who was the Karta of
the family at that time. It. was not even urged that Banwari Lal Verma did not
safeguard the interest of his family while contesting the previous suit.
Further it is not the case of the respondents that there was any conflict of
interest between Banwari Lal Verma and his sons.
The facts disclosed make it obvious that
Banwari Lal Verma and after his death his sons are availing themselves of every
possible loophole in our judicial system to delay, if not defeat the course of
justice. The effort is one, and continuous. The suit from which this appeal has
arisen is a clear abuse of judicial process. It is in this setting that we have
to see whether the decision in Civil Suit No. 15 of 1943 operates as res
judicata in the present case.
In the Civil Suit No. 15 of 1943, there was
no room for con- troversy as to whether the alleged gift was in favour of
Banwari Lal Verma in his individual capacity or in his favour as the Karta of his
family. Therein the controversy was whether the suit properties had been gifted
to Jawala Prashad or Banwari Lal Verma. As seen earlier Banwari La] Verma
pleaded that they had been gifted in his favour. He did not make it clear nor
was it necessary for him to do so in that suit as to whether they were gifted
to him as the Karta of the family or in his individual capacity. The properties
that were in dispute in the former suit as well as in the present suit are
identical properties. It cannot be disputed that Banwari Lal Verma by himself
could have represented his family in that suit. That suit must be deemed to
have been instituted against Banwari Lal Verma in that capacity in which he
claimed title to it. If his claim in that suit is understood to have been made
on behalf of his family then he must be deemed to have been sued therein as the
Karta of his family. It was for Banwari Lal Verma to make clear the capacity in
which he was defending the suit.
That being so we fail to appreciate the
conclusion of the High Court that the decision in the previous suit does not
operate as res judicata in the present suit.
It is not necessary, in order that a decree
against the manager may operate as res-judicata against coparceners who were
not parties to the suit that the plaint or written statement should state in
express terms that he is suing as manager or is being sued as a manager. It is
sufficient if the manager was in fact suing or being sued as representing the
whole family, see Lalchand v. 1005 Sheogovind(1); Ram Kishan v. Ganga Ram(2);
Prithipal V. Rameshwar(3); Surendranath v. Sambhunath (4).
The suit by or against the manager will
deemed to be one brought by him or against him as representing the family if
the circumstances of the case show that he is the manager of the family and the
property involved in the suit is family property, see Mulgaund Co-operative
Credit Society v. Shidlingappa Ishwarappa(5). See also Venkakanarayana v. Somaraju(6).
It is not necessary, where the manager is the plaintiff, that the plaint should
state in distinct terms that he is suing as manager or where he is the
defendant that he is being sued as manager. A Karta can represent the family
effectively in proceeding though he is not named as such, see Mani Sahoo v. Lokanath(7).
For the reasons mentioned above this appeal
is allowed and the judgment and decree of the High Court is set aside and that
of the trial court restored. The respondent shall pay the costs of the
appellants in all the courts.
V.P.S. Appeal allowed.
(1) (1929) I.L.R.8, Pat. 788.
(2) (1931) I.L.R. 12, Lab. 428.
(3) (1927) I.L.R. 2, Luck. 288.
(4) (1928) I.L.R. 55, Cal. 210.
(5)  I.L.R. Bom. 682.
(6) A.I.R. 1937 Mad, 610 (F.B.), (7) A.I.R.
1950 Or. 140.