Narayana Prabhu Venkateswara Prabhu Vs.
Narayan Prabhu Krishna Prabhu & Ors  Insc 18 (19 January 1977)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) SHINGAL, P.N.
CITATION: 1977 AIR 1268 1977 SCR (2) 636 1977
SCC (2) 181
Code of Civil Procedure--s. 11 Explanations
II and Vl--Scope of--Existence of right of appeal--If a bar of res-judicata.
Explanation II to s. 11 C.P.C. provides that
for the purposes of the section, the competence of a Court shall be determined
irrespective of any provision as to a right of appeal from the decision of such
Court. Explanation VI provides that where persons litigate bona fide in respect
of a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section be deemed to
claim under the persons so litigating.
The respondents and the appellant were
brothers. The respondents filed a suit for partition of the family properties
in the Court of Additional Sub-Judge of competent jurisdiction. The appellant
on the other hand filed a money suit against one of the brothers in the Court
of a Munsiff in which he impleaded his other brothers. Ultimately, the money
suit was transferred to the Court of the Additional Sub-Judge, where the
partition suit was Rending and both the suits were tried together. In appeal,
the High Court heard and decided both the appeals together and pronounced separate
judgments in continuation but under separate headings and a separate decree was
prepared in each appeal. The appellant filed an appeal in this Court under Art.
133(1)(a) of the Constitution before its amendment, as a matter of right,
against the judgment of the High Court in the partition suit.
A preliminary objection was taken by the
respondents in this Court that the appeal was barred by res-judicata in that
the appellant did not file an appeal against the judgment and decree in the
money suit. The appellant on the other hand contended that neither in law nor
in equity was he barred by res-judicata because he filed the appeal in the
partition suit as a matter of right, which was not available to him in the
Dismissing the appeal,
HELD: The preliminary objection is supported
by s. 11 of the Code of Civil Procedure read in the light of Explanations II
and VI. [644 B] 1(a) Section 11 enables a party to raise the statutory plea of
res-Judicata if the conditions given therein are fulfilled. Section 11
contains, in statutory form, with explanations, a very salutary principle of
[641 C-D] In the instant case, the
incompetence of the Court, in which the money suit was initially filed, to try
the partition suit did not matter when the actual hearing of both the cases
took place in the same Court. That Court was competent to try both the suits.
After the money suit had been transferred, the second Additional Sub-Judge
actually tried and decided both of them. That was enough to make the difference
in the jurisdiction of the Court in which the suits were initially filed, quite
immaterial. Similarly the High Court was competent to hear the appeals from
judgments in both cases. It heard and decided the appeals together.
[642 A-C] Narhari & Ors. v. Shankar &
Ors.  S.C.R. 754 distinguished.
Lortankutty v. Thomman & Anr., A.I.R.
1976 SC 1645= Supp. S.C.R. 74 followed.
637 Sheoparsan Singh v. Ramnandan Prasad
Singh, .AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Anjorlekar v.
Dhondba 'Ea' V Bin Ganba' RA '17' 'V' Ta' Mbve, ILR Vol. XV Bombay 104 and
Avanasi Gounden & Ors. v. Nachammal, ILR 29 Madras 195 referred to.
Bhugwanbutti Chowdhrani v. A.H. Forbes ILR 28
Cal. 72 approved.
(b) The expression "former suit" in
Explanation I of s.
11 makes it clear that, if a decision is
given before the institution of the proceeding which is sought to be barred by
res-judicata, and that decision is allowed to become final or becomes final by
operation of law, a bar of res-judicata would emerge. [643 B] (c) One of the
tests in deciding whether the doctrine of res-judicata applies to a particular
case or not is to determine whether two inconsistent decrees will conap into
existence if it is not applied. In a partition suit each party claiming that
the property is joint asserts a right and litigates under a title which is common
to others who make identical claims. If that very issue is litigated in another
suit and decided, there is no reason why others making the same claim cannot be
held to be claiming the right in common for themselves and others. Each of them
can be deemed, by reason of Explanation VI, to represent all those the nature
of whose claims and interests are common or identical. To hold otherwise would
mean that there would be two inconsistent decrees. [643 G-H] In the instant
case, the fact that the other suit was a money suit between the appellant and
one of his brothers, who was also the respondent in the partition suit, does
not make any difference to the applicability of the principle of res-judicata.
[643 C] Kumaravelu Chettiar & Ors. v.T.P. Ramaswamy Ayyar & Ors, A/R
1933 PC 183 followed.
Sheodhan Singh v. Smt. Daryao Kunwar, 
3 S.C R.
300 and Bai Lakshmi Rani & Ors. v.
Banamali Sen & Ors.,  S.C.R. 154 referred to.
2. The question whether there is a bar of
res-judicata does not depend on the existence of a right of appeal of the same
nature against each of the two decisions, but on the question whether the same'
issue, under the circumstances given in s. 11, has been heard and finally
decided. [642 CD] In the instant case, the High Court heard and finally decided
both the appeals before it. The mere fact that the appellant could come up to
this Court in appeal as of right by means of a certificate of fitness under the
unaamended Art. 133(1)(c) in the partition suit, could not take away the
finality of the decision so far as the High Court had determined the money suit
and no attempt was made to question the correctness or finality of that
decision even by means of an application for special leave. [642 D-E]
3. The appellant's application for
condonation of delay in applying for leave to appeal against the High Court's
judgment in the money suit must be dismissed. His delay in waking up to the
existence of the bar of res-judicata is much too long to be condoned. The
judgment of the High Court based on the admissions of the appelant, does not
disclose any error of law so as to deserve the grant of special leave to
appeal. The partition suit was instituted as long ago as 1947. If there is a
case in which the principle that litigation should have an end ought'to be
applied, it is this. [644 C-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1763 of 1968.
(From the Judgment and Decree dated the 28th
July, 1964 of the Kerala High Court in Appeal Suit No.. 843 of 1960).
T.C. Raghavan, Sardar Bahadur Saharya and
V.B. Saharya, for the appellant.
T.S. Krishnamoorthy Iyer and M.R. Pillai,.
for Respondent No. 1.
T.S. Krishnamoorthy, P.K. Pillai and N.
Sudhakaran, for Respondent No. 2.
638 The Judgment of the Court was delivered
by BEG, J. This is a defendent's appeal by Certificate granted by the Kerala
High Court under Article 133(1)(a) of the Constitution as a matter of course
before its amendment because the High Court had modified a decree in a
partition suit and the subject matter satisfied the requirements of the
unamended Article 133.
The parties to the partition suit are
descendants of Narayana Prabhu (hereinafter referred to as 'Narayana').
Krishna, the plaintiff (now dead) was the 3rd
son of Narayana. The defendant-appellant, Venkateswara, was the eldest of the
four sons of Narayana. The partition suit related to 72 items mentioned in
schedule 'A' to the plaint claimed by the plaintiff to be joint family
property. It appears that there was no dispute with regard to certain items, but,
the defendant-appellant claimed other items as his exclusive property on the
ground that they had been purchased from his personal income. due to his own
enterprise and exertions and ability in carrying on business. The Trial Court
had accepted the case of the defendant-appellant that all items, except No. 35
and a part of item No. 52 which belonged, to the 3rd defendant, were the
self-acquired properties of the defendant-appellant. The High Court reversed
this finding on the ground that there was "little reliable: evidence on
record as to. the exact source of the.
fund with which the first defendant started
the trade". The High Court rejected the submission of the defendant-appellant
that, when the Tobacco business under consideration was started, Narayana being
the Karta of the family, the fact that the eldest son, Venkateswara, the
defendant-appellant, was carrying on the business, raised a presumption that it
was the separate or self acquired business of Venkateswara. The High Court
relying on certain documentary evidence, including the letter-heads showing the
business as that of "P. N. Venkateswara Prabhu & Brothers" held
that the business was joint family business.
The partition suit was filed originally in
another Court but was sent to the Court of the Second Additional Sub Judge of
Alleppey in 1957, and the preliminary decree was passed on 5th August, 1960.
The High Court allowed the appeal, modifying the decree to the extent that
3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52
standing in the name of the 3rd defendant, were held to, be partible properties
as part of Joint family business, but it excluded assets which came into.
existence after the filing of the. partition suit which operated as a clear
unequivocal expression of intention to separate. It also, left the extent of
mesne profits of landed properties to be decided in proceedings for the passing
of the final decree.
It appeals that the defendant-appellant had
also filed a money suit in the Court of the Munsif only against defendant No.
3, one of the four brother's, but all of them were impleaded in the partition
suit. The money suit was, however, transferred to the file of the Additional
Sub Judge and tried together with the partition suit and was also decreed by
the Additional Sub Judge of Alleppey on the same date as the partition suit.
The plaintiff-respondent had appealed against both the decrees in the High
Court. The two appeals were heard and decided together by the High Court. The
High Court, after pro639 nouncing judgment in the partition suit, proceeded to
give judgment, under a new heading and number of the appeal in the money suit.
It said, in this separate judgment:
"The suit that gave rise to. this appeal
has been instituted by the respondent against the appellant for money due on
14-10-1123 on account of tobacco delivered to the latter's shop. The defence
was that the trades run by both the brothers were parts of the joint family
trade, and not separate to foster such a claim by the respondent on the
The court below, having found in the other
suit the shops run by the parties to belong to the concerned individuals, has
decreed the suit. As we have reversed that finding in A.S. No. 843 of 1960 and
found the shop standing in the name of each brother to be a branch of the joint
family trade. in tobacco and directed ascertainment of the assets and
liabilities of the entire trade to be settled as on 2-3-1124, the date of that
partition suit, this suit has to be dismissed".
The judgments were, therefore, two. separate
ones given in one continuation but under' separate headings. Separate decrees
were prepared in each appeal relating to a separate case.
As the defendant appellant did not seek leave
to file any appeal against the High Court's judgment and decree in the money
suit and there is no appeal before us against the decree in the money suit, a
preliminary objection is taken on the ground that the defendant's appeal now
before us is barred by res-judicata.
Learned Counsel for the defendant-appellant
urges that the two suits were different in nature and were filed in different
Courts originally so that the Court trying the partition suit and the Court in
which the money suit was triable were not Courts of coordinate jurisdiction. It
was also. objected that the partition suit was earlier and the money suit
having been filed sixteen days later could not be deemed to be a suit decided
earlier. Furthermore, it was pointed out that the judgment was common. It was
also urged that. all the four brothers were parties to the partition suit but
the money suit was only between two brothers.
It is true that the appeals against both the
decrees of the Trial Court were heard together in the High Court, and,
although, the appeal in the money suit is decided under a separate. heading and
the short judgment in it appears to be practically consequential on the
judgment in the partition suit, yet, the judgments in the two appeals decide a
common issue and resulted in two decrees.
It is urged that, whereas the
filed an appeal on the strength of a
certificate granted to him as a matter of right, following upon the
modification of the decree of the Trial Court by the High Court, the defendant-appellant
had no such right of appeal in this Court.
Hence, it was submitted that neither in law
nor in equity could then. defendant-appellant be. barred from putting forward
his objections to the decree in the partition suit.
640 Certain decisions were relied upon by
learned Counsel for, the defendant-appellant Venkateswara in support of the
contention that the plea of res-Judicata is not available as a preliminary
objection to the respondent to the hearing of the appeal before us in the
circumstances of this case. We proceed to consider these cases.
Narhari & Ors. v. Shankar & Ors.,(1)
is no doubt the judgment of the Supreme Court of India, although it was, if one
may so put it, "the Hyderabad Wing" of it in a transitional period
when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided
over a bench of which the other two Members were formerly Members of His
Exalted Highness the Nizam's Judicial Committee. Technically, however, it was
this Court's judgment. In that case, Naik, J. had followed a decision of the
Judicial Committee of the Hyderabad State and held that, when there was only
one suit and the appeals had been disposed of by the same judgment, it was not
necessary to file two separate appeals. It elaborated the ratio of the decision
as follows (at p. 757758):
"It is now well settled that where there
has been one trial, one finding, and one decision, there need not be two
appeals even though two decrees may have been drawn up. As has been observed by
Tek Chand J. in his learned judgment in Mst. Lachmi v. Mst. Bhuli (AIR 1927
Lah. 289) mentioned above, the determining factor is not the decree but the
matter in controversy. As he puts it later in his judgment, the estoppel is not
created by the decree but it can only be created by the judgment. The question
of resjudicata arises only when there are two suits. Even when there are two
suits, it has been held that a decision given simultaneously cannot be a
decision in the former suit. When there is only one suit, the question of
res-Judicata does not arise at all and in the present case, both the decrees
are in the same case and based on the same judgment, and the matter decided
concerns the entire suit. As such, there is no question of the application of
the principle of res judicata. The same judgment cannot remain effective just
because it was appealed against with a different number or a copy of it was
attached to a different appeal.
The two decrees in substance are one".
It seems to us that to be fair to confine the
ratio decidendi of the Hyderabad case to cases where there is only one suit. In
the case now before us, not only were the decrees different but the suits were
different. The mere fact that the judgments in the two suits were given together
or in continuation did not matter. In fact, even in form. the judgment in the
appeal relating to the money suit was separate from the rest of the judgment.
And, in any case, there were two separate decrees.
(1)  S.C.R. 754.
641 We think that Section 11 Civil Procedure
Code enables the party to raise the statutory plea of res judicata if the
conditions given therein are fulfilled. The principle embodied in the statute
is not so much the principle of "estoppel by record", which the
British Courts apply, as one of public policy, based on two maxims derived from
Roman jurisprudence: firstly, interest reipublicoe ut sit finis litium--it
concerns the State that there be an end to law suits; and, secondly, "nemo
debet bis vexari pro una et eadem cause"--no man should be vexed twice
over for the same cause.
Sir Lawrence Jenkings pointed out, in
Sheoparsan Singh v. Ramnandan Prasad Singh(1), that the rule of res judicata
"while rounded on ancient precedent, is dictated by a wisdom which is for
all time". Litigation which has no end or finality defeats its very
object. This object is decision of disputes or an end to each litigation. But,
if there is no finality to it, the dispute cannot be said to be really decided
at all. It is the duty of the State to see that disputes brought before its
judicial organs by citizens are decided finally as early as possible. Hence,
Section 11 of our Civil Procedure Code contains in statutory form, with
illuminating explanations, a very salutary principle of public policy. An
"estoppel", even if it be "by record", rests on somewhat
different grounds. Even such an estoppel savours of an equity or justice
created by actions of parties the results of which have become recorded
formally behind which they are not allowed to go.
Reliance was also placed on Govind Bin
LakshmanshetAnjorlekar v. Dhondba 'Ra'V Bin Ganba' Ra'F'Ta'Mbye(2), on behalf
of the appellant. Here, it was held that decisions in previous suits of the
nature of small cause suits in which there was no right of second appeal could
not operate as res judicata in suits before Courts in which questions were
elaborately litigated and decided in cases which could go to the High Court in
second appeal. We were also referred to a Full Bench decision of the Madras
High Court in Avanasi Gounden & Ors. v. Nachamal(3), where it was similarly
held that: "A decision in a previous suit of a small cause nature, in
which no second appeal is allowed by law, is no bar to a subsequent suit, in
the same Court, which, not being of a small cause nature, is open to second appeal".
We have to remember that Small Cause jurisdiction is a limited one exercisable
only in specified matters. Decisions given beyond Jurisdiction to try an issue
cannot operate as res ]udicata.
Our attention was drawn to explanation II of
section 11, on behalf of the respondents. It reads:
"Explanation II. For the purposes of
this Section, the competence of a Court shall be determined irrespective of any
provision as to a right of appeal from the decision of such Court".
(1) A.I.R. 1961 P.C. 78=43 I.A. 91.
(2) I.L.R. Vol. XV Bombay 104.
(3) I.L.R. 29 Madras 195.
642 It seems to us that section 11 itself
refers to. a Court which actually tries the, two suits. We think that, in the
circumstances of the case before us, the incompetence of the Court, in which
the money suit was initially filed, to try the partition suit did not matter
when the actual hearing of both the cases took place in the same Court. That
Court was, obviously, competent to try both the suits. After the money suit had
been transferred from the Court of the Munsif, the Second Additional Sub Judge
actually tried and decided both of them. This was enough to make the difference
in the jurisdictions of the Courts, in which the suits were initially filed,
quite immaterial. Similarly, the High Court was competent to hear appeals from
judgments in both. It heard and decided the two appeals together.
So far as the question of appeal to this
Court is concerned, it is true that no appeal lay as a matter of right against
the judgment in the appeal in the money suit, but, we think that the learned
counsel for the respondents is correct in submitting that the question Whether
there is a bar of res judicata does not depend on the existence of a right of
appeal of the same nature against each of the two decisions but on the question
whether the same issue, under the circumstances given in section 11, has been
heard and finally decided. That was certainly purported to be done by the High
Court in both the appeals before it subject, of course, to the rights of
parties to appeal. The mere fact that the defendant-appellant could come up to
this Court in appeal as of right by means of a certificate of fitness of the
case under the un-amended Article 133(1)(c) in the partition suit, could not
take away the finality of the decision so far as the High Court had determined
the money suit and no attempt of any sort was made to question the correctness
or finality of that decision even by means of an application for Special Leave
Learned counsel for the respondents appears
to us to have rightly relied upon Bhugwanbutti Chowdhrani v. A.H.
Forbes(1), where it was held that "in
order to make a matter res judicata it is not necessary that the two suits must
be open to appeal in the same way". He also relied on Lonankutty v.
Thomman & Anr.(2), a recent decision of three Judges of this Court, where
Chandrachud, J., observed (at p. 1650):
"Respondents did not file any further
appeal against the decree passed by the District Court in the appeals arising
out of their suit. They filed a second appeal in the High Court only as against
the decree passed by the District Court in A.S. 66 of 1958 which arose out of
the decree passed by the trial' Court in the appellant's suit. Thus, the
decision of the District Court rendered in the appeal arising out of the
respondent's suit became final and conclusive".
It was also observed there:
"The decision of the District Court was
given in an appeal arising out of a suit which, though instituted subse(1)
I.L.R. 28 Cal. 78.
(2) A.I.R. 1976 S.C. 1645= Supp. S.C.R.
643 quently, stood finally decided before the
High Court disposed of the second appeal. The decision was, therefore, one in a
'former suit' within the meaning of section 11, Explanation I, Civil Procedure
The expression "former suit"
according to explanation I of section 11, Civil Procedure Code, makes it clear
that, if a decision is given before the institution of the proceeding which is
sought to be barred by res judicata, and that decision is allowed to become
final by operation of law, a bar of res judicata would emerge. This as learned
counsel for the respondents rightly submits, follows from the decision of this
Court in Lonankutty's case (supra).
The only other point which we need consider
is whether the fact that the money suit was only between the
defendant-appellant and one of his brothers, who was also a respondent in the
partition suit, makes any difference to the applicability of the principle of
res judicata in this case. Learned Counsel for the appellant submits that the
defendant-appellant could not come within the ambit of Explanation VI of
section 11, Civil Procedure Code which provides as follows:
"Where persons litigate bona fide in
respect of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating".
On the other hand, learned counsel for the
respondent submits that the case of the respondents fully covered by this
explanation and relies on Kumaravelu Chettiar & Ors. T.P.
Ramaswamy Ayyar & Ors. C) where it was
"Explanation 6 is not confined to cases
covered by O. 1, R. 8 but extends to include any litigation in which apart from
the Rule altogether, parties are entitled to represent interested persons other
We think that the submission made by the
learned counsel for the respondents is sound. In a partition suit each party
claiming that the property is joint, asserts a right and litigates under a
title which is common to others who make identical claims. If that very issue
is litigated in another suit and decided we do not see why the others making
the same claim cannot be held to be claiming a right "in common for
themselves and others". Each of them can be deemed, by reason of
Explanation VI, to represent all those the nature of whose claims and interests
are common or identical. If we were to hold otherwise, it would necessarily
mean that there would be two inconsistent decrees.
One of the tests in deciding whether the
doctrine of res judicata applies to a particular case or not is to determine
whether two inconsistent decrees will come into existence if it is not applied.
We think this will be the case here.
(1) A.I.R. 1933 P.C. 183.
7--112SCI/77 644 We need not deal with other
cases of this Court cited, including Sheodan Singh v. Smt. Daryao Kunwar(1),
which supports the respondents' submissions, and Raj Lakshmi Bai & Ors. v.
Banamali Sen & Ors.(-), which is not directly applicable inasmuch as that
was a case in which the general principles of res judicata, and not section 11
Civil Procedure Code, were applied. The preliminary objection in the case
before us is fully supported, for the reasons given above, by section 11, Civil
Procedure Code read in the light of the Explanation mentioned above.
Consequently, the preliminary objection must prevail.
Learned counsel for the appellant, conscious
of the difficulties in his way, filed after the hearing of the appeal was begun
before us, an application for condonation of delay in applying for leave to
appeal against the judgment of the High Court in the money suit. He submits
that, in view of the uncertain position in law, we should try to extend
equities as much as possible in his client's favour. On the other hand, learned
counsel for the respondents points out that the objection based on the bar of
res judicata was taken as long ago as 1968 by the respondents.
It seems to us that the delay in waking up to
the existence of the bar on the part of the appellant is much too long to be
condoned. Moreover, we also find that the judgment of the High Court, based on
the admissions of the appellant, does not disclose any error of law so as to deserve
grant of special leave to appeal. Indeed, in so far as we could express any
opinion at all upon the merits of the judgment of the High Court, based as it
is upon documents containing admissions of the defendant-appellant, it seems to
us that the appellant would have a very uphill task indeed in arguing his
appeal even in the partition suit. We may mention here that the partition suit
was instituted as long ago as 1947 and was only given a new number in 1957. If
there is a case in which the principle that litigation should have an end ought
to be applied, it is this on the face of facts of the case apparent to us. We,
therefore, reject the Civil Miscellaneous Petition No. 8585 of 1976, the
application for condonation of delay in the filing the Special Leave Petition.
We dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the
over-delayed special leave petition No. 2816 of 1976.
The result is that this appeal must be and is
hereby dismissed, but, in the circumstances of the case, the parties will bear
their own costs.
(1)  3 S.C.R. 300 (2)  S.C.R.