Sayed Md.B.E.Edr. Vs. Musa Dadabhai Ummer & Ors  INSC 79 (23 February 2000)
This appeal arises out of orders passed rejecting the preliminary objection
raised by the appellant.
preliminary objection was that the present proceedings initiated by the
deceased first respondent on 21.8.1967 before the Assistant Charity
Commissioner, Surat Region under section 19 of the Bombay Public Trusts Act,
1950 to declare three Rozas (situated at three places Ahmedabad, Broach and
Surat) were public trusts, were barred by res judicata in view of three
decisions arrived at earlier - one in 1931, another dated 19.1.1967 and a third
one initiated in 1965.
present proceedings, which relate to the Rozas at all the three places, the
Assistant Commissioner in his orders in Inquiry No.142/67 dated 26.7.68
accepted the preliminary objection of res judicata but the Joint Charity
Commissioner, Gujarat in his order in Appeal No.85/68 dated 17.12.73 did not
accept the plea (before him, the plea was confined to the Rozas at Broach and
Surat). He set aside the order and remanded the matter for inquiry. The said
order of the Joint Commissioner was affirmed on 30.9.76 by the learned
Assistant Judge in Misc. Civil Application No.32 of 1974 and by the Division
Bench of the Gujarat High Court in First Appeal No.985 of 1976 on 27.7.85. As
the preliminary objection was negatived, a direction was given to the Assistant
Commissioner to dispose of the Inquiry No.142 of 1967 on merits. Aggrieved by
the above-said orders, the appellant(who was respondent in the main Inquiry
No.142/67) has filed this appeal and has raised the same plea of res judicata
before us once again. In the present appeal, the plea of res judicata is
confined to the Rozas at Broach and Surat.
contention of res judicata raised by the appellant concerns three earlier
proceedings, we shall have to refer to them. But we may also point out that in
certain other proceedings relied upon by the respondents a view has already
been taken that principle of res judicata does not apply. These other
proceedings were those started in 1954 under section 19 of the Bombay Act
(Appl. 289/54) by one Ali Miya Mahmadiya & others, in connection with the
Ahmedabad Roza. There a similar plea of res judicata was raised by the
appellant Sayed Mohumed Baquir El-Edroos and the said plea was rejected by the
Deputy Commissioner on 23.4.56 and that decision was confirmed by the Charity
Commissioner in Appeal 125/56 on 29.5.57,-reversed by the District Judge in
149/57 on 29.12.1959 - but the plea of res judicata was once again rejected by
a learned Single Judge of the Gujarat High Court on 24.4.67 in the case
reported in Ali Miya vs. Sayed Mohammed [1968 (9) Guj.L.R. 1002] and that
decision of the learned Single Judge was affirmed on 14.9.70 by a Division
Bench in Sayed Mohammed vs.
Miya [1972 (13) Guj.L.R.285]. In fact, in the present proceedings, the Joint
Commissioner, the Assistant Judge and the High Court have all applied the ratio
of those two decisions relating to Ahmedabad Roza - on the question of res
judicata - in relation to the Broach and Surat Rozas as well. It was held that
on the same ratio, that the earlier orders relied upon by the appellant
declaring the Broach and Surat Rozas to be private trusts and not public
trusts, were not res judicata.
also point out that special Leave petitions Nos.2574, 2575/71 against the
Division Bench Judgment of the High Court dated 14.9.70 were got dismissed by
the appellant as withdrawn on 16.11.1971. No doubt, this Court observed that
the plea of res judicata would be available to the appellant in the regular
inquiry in that case. Later on, the District Judge renumbered the Petition
149/57 as CMA 352/67 and on merits held that the Ahmedabad Roza was a public
trust, RFA 488/72 filed by the appellant was dismissed by the High Court on
4.5.73 and SLP (CA No.1974/75) was dismissed for non- prosecution by this
Court. Thus the rejection of the plea of res judicata and the finding on merits
so far as the Ahmedabad Roza was concerned, became final. That was why in the
present proceedings at the stage of Joint Charity Commissioner, the plea of res
judicata was confined to the Rozas at Broach and Surat.
earlier history of these wakfs is set out in the reported judgments of the
Gujarat High Court referred to above. These judgments refer to two other
judgments of the Bombay High Court.
family in Gujarat claimed to be descendants of
Hazarat Imam Ali, the son-in-law and cousin of Prophet Muhamed. One of the
descendants of the said Hazrat came down to India in 1542 A.D. and founded his Gadi at Ahmedabad, Broach and Surat. The members of the Edroos family
were Sajjadanashins or Mutavallis of the wakf throughout. The three Rozas at
the three places as well as the villages which were granted - not only for the
maintenance of these Rozas but also for the benefit of the Waquif's family, -
constituted the wakf. The holder was buried in the house and his Dargah is
situated in this place. There is also a place for reciting prayers. In Sayed
Abdul Edroos vs. Sayad Zain Sayad Hasan Edroos [ILR 13 Bom. 555], a Division
Bench of the Bombay High Court, traced the history of the wakf and held that
the custom of primogeniture did not apply to the office of Sajjadanishin or
Mutavalli of this wakf. In the next litigation, in Saiyad Jaffar El Edroos vs.
Jayad Mahomed El Edroos [ILR 39 Bom.
which is more important, another Division Bench held, after construing the
royal grants relating to the villages Umrao and Orma that the grants were
primarily for the Rozas and Dargas and they clearly constituted
"wakf" but that the Sajjadanashin or Mutavalli had, however, a right
to the surplus income left over after discharge of the legal obligations
regarding the wakf.
exercise of that power over the surplus income, the Sajjadanishin, it was held,
could provide for the needs of the indigent members of the family and this was
a pious obligation which was only a moral obligation and not a legal obligation
and hence the indigent members of the Edroos family could not, as of right,
claim maintenance out of the surplus income.
shall now come to the 1928 suit filed under Section 92 of the Code of Civil
Procedure which is the first of the cases giving rise to the plea of res
judicata. This was a Regular Suit No.201 of 1928 filed under section 92 CPC by
three plaintiffs impleading the father of Sayed Mohamed Baquir-El-Edroos, the
appellant in this appeal, as defendant. (The appellant before us was also the
appellant before the Division Bench which decided Sayed Mohamed vs. Ali Miya
1972 (13) Guj.
in relation to the Ahmedabad Roza). The plaintiffs contended that the
appellant's father was not legally appointed to the shrines at the three places
and that he was mismanaging the properties and prayed that an injunction should
be granted. They also asked for the framing of a scheme and for appointing a
board of trustees. The Collector granted permission on 22.2.28 for filing the
suit under section 92 CPC. The first Sub Judge, Surat dismissed the suit on 6.10.1931.
No.80/31 filed by the plaintiffs was also dismissed and cross-objections were
allowed on 21.11.1938. The Second appeal to the High Court was withdrawn. In
the judgment of the District Court, we find that there were 8 points. Points 1
to 7 related to the validity of appointment of the defendant and the nature of
the office and the right to the surplus etc.
those points, it was held that the appointment of the defendant as
Sajjadanishin was valid and that the grant of the property was both for the
Rozas and for the maintenance, presumably of Sajjadanishin and his family
members. It was held that the Sajjadanishin had complete power of disposal over
the surplus as he was not in the position of an ordinary trustee. While the
upkeep of the Dargas, the holding of fairs and proper attention to the visitors
to the Rozas was a primary legal obligation and a charge on the income of then
villages, the Sajjadanishin, it was held, had full power over the surplus. On
this basis, the plaintiff's plea that the Sajjadanishin was misutilising the
income was rejected by the District Judge and the judgment of the trial Judge
dated 6.10.31 dismissing the suit filed under Section 92 of the Code of Civil
Procedure was affirmed. This judgment of the learned District Judge is dated
District Court in its judgment of 1931 had also framed Issue 9. The issue was
as to whether the wakf was a private wakf or a public wakf and the learned
Judge found that the wakf was a private wakf. He observed in para 15 of his
judgment that from 1746 A.D.
the "Sajjadanishins were using the revenue of these villages for their own
maintenance and that of the members of their families and other
dependants" and this was permissible according to the earlier judgment of
the Bombay High Court in Saiyad Jaffar El Edroos Case (39 Bom.L.R.277). Always
the Sajjadanishin was from the family and never a stranger or outsider. These
facts, the learned District Judge held were sufficient to lead to the
conclusion that the wakf was a `private' one.
observed that the documents in the case were also inconsistent with the wakf
being a public one. It is this finding that is pleaded by the appellant as res
judicata in the present proceedings.
have already stated that in relation to the Roza at Ahmedabad, an identical
plea raised by the appellant was rejected by the learned Single Judge of the
Bombay High Court in Ali Miya vs. Sayed Mohamed [(1968) 9. Guj.L.R.1002] and on
appeal by the Division Bench in Sayed Mohamed vs. Ali Miya [(1972) 13 Guj.L.R.
It is true that the above-said reported judgments of the High Court related to
the Ahmedabad Roza and were rendered at the preliminary stage on a plea of res
judicata but we find that the learned Judges in the said judgments have gone
into the matter in detail as to why the decision rendered by the District Judge
on 21.11.1938 would not be res judicata in the 1954 proceedings initiated under
section 19 of the Maharashtra Public Trusts Act, 1950. Our task in this behalf
has therefore been lightened and we will be adverting to the reasons given by
the Division Bench of the High Court in Sayed Mahomed vs. ali Miya [(1972) 13
Guj.L.R. 285] on the question of res judicata under Point 2. Under point 3, we
shall refer to two other proceedings of 1967 and 1965 as these two decisions of
the authorities also relied upon the 1931 judgment.
points that arise for consideration are:
What is meant in Section 11, CPC by an issue being collaterally or incidentally
in issue as distinct from being directly and substantially in issue? (ii)
Whether the decision of the District Judge, Surat in Appeal No.80/31 operates as res judicata in the present proceedings?
(iii) Whether the decision of the Assistant Charity Commissioner dated
19.1.1967 in Inquiry No.14/64 filed by Peer Mohammed Fruitwala and Inquiry
No.3/65 filed by Sayed Hasan Sayed Mohammed El-Edroos holding the properties in
respect of Dargahs at Ahmedabad, Broach and Surat not to be public trust are res judicata in the present proceedings?
words `collaterally or incidentally in issue' have come up for interpretation
in several common law jurisdictions in the context of the principle of res
judicata. While the principle has been accepted that matters collaterally or
incidentally in issue are not ordinarily res judicata, it has however been
accepted that there are exceptions to this rule. The English, American,
Australian and Indian Courts and Jurists have therefore proceeded to lay down
certain tests to find out if even an earlier finding on such an issue can be
res judicata in a later proceeding. There appears to be a common thread in the
tests laid down in all these countries.* We shall therefore refer to these
*See Holdsworth History of English Law 147-54 ( 1944);
- The Historical Relation of Estoppel by Record 35 Ill.L.Rev.41 ( 1940); Millar
- res Judicata in Continental and Anglo American Law - 39 Mich. L.R.1(1940);
Comparative Study ( 1940) Wisc L.R. 234; Development in Res Judicata 1952. 65
Harv. LR 818;
collaterally or incidentally in issue:
will be noticed that the words used in Section 11 CPC are "directly and
substantially in issue". If the matter was in issue directly and
substantially in a prior litigation and decided against a party then the
decision would be res judicata in a subsequent proceeding. Judicial decisions
have however held that if a matter was only 'collaterally or incidentally' in
issue and decided in an earlier proceeding, the finding therein would not
ordinarily be res judicata in a latter proceeding where the matter is directly
and substantially in issue.
pointed out in Halsbury's Laws of England (Vol.
para 1538) (4th Ed), the fundamental rule is that a judgment is not conclusive
if any matter came 1956(1) WLR. 289 (297)(PC); or if any matter was
incidentally Sanders ( otherwise Saunders) 1952 (2) All ERR p. 767 at 771).
collateral or incidental issue is one that is ancillary to a direct and
substantive issue; the former is an auxiliary issue and the latter the
principal issue. The expression 'collaterally or incidentally' in issue implies
that there is another matter which is 'directly and substantially' in issue (
Mulla, CPC 15th Ed., p.104).
in distinguishing whether a matter was directly in issue or collaterally or
incidentally in issue and tests laid down in various Courts:
in this area of law has been felt in various jurisdictions and therefore some
tests have been evolved. Halsbury says ( Vol.16, para 1538) ( 4th Ed.) that
while the general principle is clear, "difficulty arises in the
application of the rule in determining in each case what was the point decided
and what was the matter incidentally cognizable, and the opinion of Judges
seems to have undergone some fluctuations".
Bower and Turner on 'The Doctrine of Res Judicata' ( 2nd Ed, 1969) (p.181)
refer to the English and Australian experience and quote Dixon, J. of the CLR. 464 ( 553) to say:
"The difficulty in the actual application of these conceptions is to
distinguish the matters fundamental or cardinal to the prior decision on
judgment, or necessarily involved in it as its legal justification or
foundation, from matters which, even though actually raised and decided as
being in the circumstances of the case the determining considerations, yet are
not in point of law the essential foundation of a groundwork of the judgment".
authors say that in order to understand this essential distinction, one has
always to inquire with unrelenting severity_ - is the determination upon which
it is sought to find an estoppel so fundamental to the substantive decision
that the latter cannot stand without the former. Nothing less than this will
suggested by Dixon J that even where this inquiry is answered satisfactorily,
there is still another test to pass: viz. whether the determination is the
'immediate foundation' of the decision as opposed to merely "a proposition
collateral or subsidiary only, i.e. not more than part of the reasoning
supporting the conclusion".
well settled, say the above authors, "that a mere step in reasoning is
insufficient. What is required is no less than the determination of law, or
fact or both, fundamental to the substantive decision".
jurists and Courts have also found difficulty but they have tried to lay down
conceded in Corpus Juris Secundum ( Vol.50, para 725) that "it is
sometimes difficult to determine when particular issue determined is of
sufficient dignity to be covered by the rule of estoppel. It is said that
estoppel by judgment does not extend to any matter which was only incidentally
cognizable or which came collaterally in question, although it may have arisen
in the case and have been judicially passed on (Per Taft,J.
288). But this rule does not however prevent a judgment from constituting an
estoppel with reference to incidental matters necessarily adjudicated in
determining the ultimate vital point. American Jurisprudence ( Vol. 46
Judgments para 422) too says:
this rule, if the record of the former trial shows that the judgment could not
have been rendered without deciding the particular matter, it will be
considered as having settled that matter as to all future actions between the
parties". ( Per Harlan, J.
Hoag vs. New Jersey) ( 356, US 464 = 78. S.Ct.829),
quoting Restatement, Judgments (para 68(1)) and `Developments in the Law - Res
Judicata' (1952) 65 Harv.
818(820).(See also collateral estoppel by judgment - by Prof. Scott. (1942)
Harvha R 1.) In India, Mulla has referred to similar
tests (Mulla, 15th Ed.p.104). The learned author says: A matter in respect of
which relief is claimed in an earlier suit can be said to be generally a matter
'directly and substantially' in issue but it does not mean that if the matter
is one in respect of which no relief is sought it is not directly or
substantially in issue. It may or may not be. It is possible that it was
'directly and substantially' in issue and it may also be possible that it was
only collaterally or incidentally in issue, depending upon the facts of the
case. The question arises as to what is the test for deciding into which category
a case falls? One test is that if the issue was 'necessary' to be decided for
adjudicating on the principal issue and was decided, it would have to be
treated as 'directly and substantially' in issue and if it is clear that the
judgment was in fact based upon that decision, then it would be res judicata in
a latter case. (Mulla, p.104) One has to examine the plaint, the written
statement, the issues and the judgment to find out if the matter was directly
and substantially in 948 We are of the view that the above summary in Mulla is
a correct statement of the law.
have here to advert to another principle of caution referred to by Mulla
(p.105). "It is not to be assumed that matters in respect of which issues
have been framed are all of them directly and substantially in issue. Nor is
there any special significance to be attached to the fact that a particular
issue is the first in the list of issues. Which of the matters are directly in
issue and which collaterally or incidentally, must be determined on the facts
of each case. A material test to be applied is whether the Court considers the
adjudication of the issue material and essential for its decision".
Privy Council and the Supreme Court had occasion to deal with these points.
Three decisions,- two of the Privy Council and one decided by the Supreme Court
-can be referred to in this context as illustrations of cases where in spite of
an issue and a decision in an earlier case, the finding was treated as being
only collaterally or incidentally in issue and not ILR 11 Cal 301 (PC) ( see
Mulla p.107), A, a Hindu, died leaving a widow and a brother C.The widow sued
B, the tenant for rent of certain property forming part of the estate of her
husband. C, the husband's brother, claimed the rent on the ground that the
property was joint family property and that he was entitled to the rent by
survivorship. C was then joined as a defendant. Two issues were framed (1)
whether the deceased alone received the whole rent of the property in his life
time, or whether the rent was received by him jointly with his brother C? (2)
whether any rent was due and if so, how much was due from B? The finding on the
first issue was that the deceased alone received the whole rent in his life
time. Subsequently, C sued the widow for declaration that he and his brother
were joint, and he claimed the property by right of survivorship. The question
arose whether the deceased and C were joint or separate and the earlier finding
was held not res judicata inasmuch as the matter was not 'directly and
substantially' in issue in the earlier suit. It was in issue in the earlier
suit only 'collaterally or incidentally', as it did not cover the entire
question of C's title but related merely to the joint or separate receipt of
next decision, again of the Privy Council is (AIR 1947 PC 1) relating to the
famous Dargah of Moinuddin Chisti, Ajmer. In a former suit of 1880 under Section 18 of the Religious
Endowments Act, 1863 filed by the President and one Member of the Durgah
Committee for removal of one Ameer Ali, the Mutavalli on ground of
maladministration, the question as to the hereditary nature of the office was
the subject matter of a specific issue and it was held that the office was
hereditary, accepting the plea of the defendant.
decreeing the suit for removal of the Mutavalli, the Court however held that if
the Mutavalli behaved properly, he could be reinstated as the office was
hereditary. In 1918, the Dargah Committee filed a suit against Nisar Ahmed,
brother of the deceased Mutawalli, whom the Commissioner proposed to recognise
as legal heir and Mutawalli, thus treating the office as hereditary. But in
that case the Committee claimed that the office was not hereditary. Nisar
Ahmed, the defendant claimed the office as hereditary and relied upon the
earlier finding. This suit however abated.
Ahmed died in 1940. Then Ameer Ali's son filed a suit claiming the office to be
hereditary. The suit was decreed by the District Judge but dismissed on appeal.
plaintiff's appeal to the Privy Council, their Lordships rejected the plea of
res judicata and held that the issue as to the hereditary nature of the office
was irrelevant in the earlier suit and the decision was incidental to and not
the substance of the earlier suit.
Supreme Court decided a similar case in the question of res judicata arose at
two stages of the same proceeding. The plaintiffs filed a suit under Section 92
CPC in 1928 for (i) a declaration that the properties under the management of
the defendant were religious and charitable trust properties (ii) the defendant
be removed from the Gadi from possession of the properties and a suitable
successor be appointed, (iii) the defendant be called upon to account for his
period of management and (iv) to frame a scheme for proper management of the
institution. The defendant traversed the material allegations and pleaded that
the suit was not maintainable inasmuch as no public trust existed and the
properties were private properties of the defendant. On these pleadings, a
number of issues were framed of which two were treated as preliminary issues
(i) whether the temple and the properties in suit were public charitable
properties? and (ii) if not, whether this Court has jurisdiction to try the
suit? On the preliminary issues, the District Court gave a judgment on
18.7.1935 against the plaintiff and dismissed the suit. The High Court however
held on 24.1.1938 that the charity was a public one covered by Section 92 of
the Code of Civil Procedure. In the application for special leave, the Privy
Council refused the application inasmuch as the case was at a preliminary stage
but said that the order was without prejudice to the presentation of a fresh petition
( for special leave) after all the issues were determined.
the District Court took up the suit for decision on merits. The court held that
allegations of breach of trust and misconduct were not proved and the suit was
dismissed but "subject to the declaration already given by the High Court
that the temple and the properties in possession of the defendant were public,
religious and charitable properties". The High Court affirmed the same on
appeal by the plaintiff. The defendant came up in appeal to the Supreme Court
objecting to the 'declaration' as to the public nature of the properties,
virtually attacking the earlier finding dated 24.1.38.
Supreme Court vacated the 'declaration' made as to the public character of the
charity and its properties on the ground that the said question was beyond the
scope of Section 92 CPC in the earlier suit. This Court also held that in a
suit under Section 92 CPC the only reliefs that could be claimed were those
specified in Section 92 CPC and "a relief praying for a declaration that
the properties in the suit are trust properties, does not come under any of
these clauses". This Court observed:
the defendant denies the existence of the trust, a declaration that the trust
does exist might be made as auxiliary to the main reliefs under the section if
the plaintiff is held entitled to it".
then stated by this Court that when the suit failed for want of cause of
action, there was no warrant for giving the plaintiff a declaratory relief as
to the public nature of the trust under Section 92 CPC. The finding as to the
existence of a public trust in such circumstances was not more than an obiter
dictum according to this Court. The appeal of the defendants was allowed and
the declaration as to the trust being a public trust was set aside.
three cases are therefore instances where in spite of a specific issue and an
adverse finding in an earlier suit, the finding was treated as not res judicata
as it was purely incidental or auxiliary or collateral to the main issue in
each of these cases, and not necessary for the earlier case nor its foundation.
parting with this point, we would like to Narayanan Nair ( 1994 (2) SCC 14),
this Court held that a finding as to title given in an earlier injunction suit
would be res judicata in a subsequent suit on title. On the other hand, the
Madras High Court, in 355) held ( see para 8 therein) that the previous suit
was only for injunction relating to the crops. May be, the question of title
was decided, though not raised in the plaint. In the latter suit on title, the
finding in the earlier suit on title would not be res judicata as the earlier
suit was concerned only with a possessory right.
two decisions, in our opinion, cannot be treated as being contrary to each
other but should be understood in the context of the tests referred to above.
Each of them can perhaps be treated as correct if they are understood in the
light of the tests stated above. In the first case decided by this Court, it is
to be assumed that the tests above referred to were satisfied for holding that
the finding as to possession was substantially rested on title upon which a
finding was felt necessary and in the latter case decided by the Madras High
Court, it must be assumed that the tests were not satisfied. As stated in
Mulla, it all depends on the facts of each case and whether the finding as to
title was treated as necessary for grant of an injunction in the earlier suit
and was also the substantive basis for grant of injunction. In this context, we
may refer to Corpus Juris Secundum( Vol.50, para 735, page 229) where a similar
aspect in regard to findings on possession and incidental findings on title
were dealt with. It is stated:
title to property is the basis of the right of possession, a decision on the
question of possession is res judicata on the question of title to the extent
that adjudication of title was essential to the judgment; but where the
question of the right to possession was the only issue actually or necessarily
involved, the judgment is not conclusive on the question of ownership or
have gone into the above aspects in some detail so that when a question arises
before the Courts as to whether an issue was earlier decided only incidentally
or collaterally, the Courts could deal with the question as a matter of legal
principle rather than on vague grounds. Point 1 is decided accordingly.
point concerns the difference in the meaning of wakf in 1928 when the suit
under Section 92 of the Code of Civil Procedure was filed and the wider meaning
given in 1950 in the definition of wakf under the Bombay Act of 1950. While the
law of public Wakfs as it stood in 1928 did not take within its meaning a wakf
where the Sajjadanashin could spend the income for the maintenance of himself
and his family members after expending for the purposes of wakf, the 1950 Act
widened the definition of public Wakf even to situations where under the grant
the Sajjadanashin could expend the income for the maintenance of himself and
his family members. This aspect was considered in great detail by the Division
Bench of the Gujarat High Court in Sayed pointed out in that case that the
definition of Wakf in Section 2(19) of the Bombay Public Trusts Act, 1950
covered a permanent dedication by a person professing Islam not only for the
purposes which Islamic Law considered as 'religious' and 'charitable' but also
which it considered as 'pious' such as where provision was made for the benefit
of the members of the settlor's family or of the Sajjadanashin and his family
members, who were poor. Section 2(19) covered even a wakf such as the one
described in Section 3 of the Mussalman Wakf Validating Act, 1913 under which
any benefit was claimable by the founder, his family, children and descendants,
- provided that the ultimate benefit in such cases expressly or impliedly was
reserved for the poor or for any other purpose recognised by the Muslim Law as
religious, pious or charitable purpose of a permanent character. Section 9 of
the Bombay Act included charitable purposes also. The Gujarat High Court
pointed out as follows: (p.296) "It could never be argued after these
provisions that the wakf is not a public trust on the ground that the entire
surplus goes to the Sajjadanashin or Mutawalli or because the obligation was a
pious obligation and not a legal obligation so that he could dispose of surplus
in any manner he liked. This aspect cannot in any manner alter the public
character of the public trust".
agree with the above observations of the Gujarat High Court. The 1931 judgment
arising out of the 1928 suit treated the Wakf as 'private' on the ground that
apart from other obligations and charitable purposes, the Sajjadanashin could
spend the income for the pious purposes also, namely for maintenance of members
of his family. But now the definition in Section 2(19) brings in such a wakf
also into its fold.
for this reason also, the 1931 judgment does not operate as res judicata. Point
2 is decided against the appellant.
decision of the Assistant Charity Commissioner on 19.1.1967 in Inquiry 14/64
filed by Peer Mohammed Fruitwala was no doubt in a case arising under the
Bombay Act 1950. It is true that this very wakf was held to be private but the
point is that that decision dated 19.1.67 gets superseded by the latter
judgment of the 1972(13) Guj.LR 285) dated 14.9.1970. The latter judgment
governs. It is well settled that an earlier decision which is binding between
the parties loses its binding force if between the parties a second decision
decides to the contrary. Then, in the third litigation, the decision in the
second one will prevail and not the decision in the first. We may also state
that the 19.1.67 decision merely relied upon the 1931 decision without noticing
the change in the definition. Hence, the 19.1.67 decision cannot become res
as the proceeding initiated in 1965, no plea of res judicata based on it was
raised in the lower courts in the present proceedings.
we hold on point 3 against the appellant. The rejection of the preliminary
objection is confirmed. It will now be for the Assistant Charity Commissioner
to go into the merits in Inquiry No.
as directed by the Joint Commissioner in his orders dated 17.12.73 insofar as
the Rozas at Broach and Surat are concerned, in the light of this
judgment and the judgment of the Gujrat High Court in Sayed Mohammed vs.
Miya [1972 (13) Guj.L.R.285].
appeal is dismissed. There will be no order as to costs.