Shakuntla
Devi Vs. Kamla & Ors [2005] Insc 235 (11 April 2005)
N. Santosh
Hegde, D.M.Dharmadhikari & S.B. Sinha Santosh Hegde, J.
Noticing
certain contradictory views in three different judgments of this Court in Teg
Singh vs. Charan Singh [(1977) 2 SCC 732], Kesar Singh vs. Sadhu [(1996) 7 SCC
711) and Balwant Singh vs. Daulat Singh [(1997) 7 SCC 137), a Division Bench of
2-Judges of this Court referred the instant appeals for disposal by a larger
bench by its referral order dated 27th October, 2004, hence, this appeal is
before us.
Brief
facts giving rise to these appeals are as follows:
One Hirday
Ram was the owner of the suit property. He had three wives, namely, Kubja, Pari
and Uttamdassi. Kubja had pre- deceased Hirday Ram leaving behind a daughter
named Tikami.
During
his life time, Hirday Ram made a Will dated 1.10.1938 whereby he bequeathed a
part of his property to his daughter Tikami and the remaining property was
given to his two other wives, named above, for their maintenance with the
condition that they would not have the power to alienate the same in any
manner.
As per
the Will, after the death of the above two wives of Hirday Ram, the property
was to revert back to his daughter Tikami as absolute owner. After the death of
Hirday Ram and his second wife Pari in 1939, the property in question came to
be vested with the third wife, Uttamdassi as per the terms of the Will.
After
the coming into force of the Hindu Succession Act, 1956, Uttamdassi claiming to
be the absolute owner sold a part of the property to one Sandup on 28.11.1958
predecessor-in-interest of respondent Nos.1 and 2 herein. The said Sandup
mortgaged back the property to Uttamdassi who on 2.12.1958 made a gift of
another property in favour of respondent No.3 herein who in turn sold to it
respondent No.4.
The
appellant herein is a daughter of Tikami and granddaughter of Hirday Ram filed
a suit challenging the alienation made by Uttamdassi seeking a decree for
declaration that the alienation made by Uttamdassi would not effect her
reversionary rights. The suit was decreed by the trial court on 12.7.1961.
Appeal filed by Uttamdassi was dismissed on 25.1.1963. Thus the said
declaratory decree became final as it was not put to challenge in further
appeal in the High Court.
On
24.5.1975 Uttamdassi gifted the property sold by her to Sandup in 1958 in favour
of respondent No.5. The appellant herein again filed a suit challenging the
said alienation also and seeking a declaration that the said alienation made by
Uttamdassi would not effect her reversionary rights. The trial court dismissed
the suit but an appeal preferred by the appellant herein the was accepted by
the First Appellate Court and the gift made by the Uttamdassi in favour of
respondent No.5 was held to be void ab initio and a declaration was given that
the alienation made by Uttamdassi would not effect reversionary rights of the
plaintiff. This decree also became absolute as the same was not put to any
further challenge. It is relevant to mention herein that Uttamdassi had gifted
a part of the property in favour of respondent No.5 by way of a Will on
27.12.1986. She died on 1.1.1987.
After
the death of Uttamdassi, appellant the granddaughter of the original owner Hirday
Ram brought a suit for possession of the suit property being the nearest reversioner
and on the basis of the two earlier declaratory decrees obtained by her. The
trial court dismissed the suit on 22.8.1989. Relying upon a judgment of this
Court in the case of V.Tulasamma vs. V.Sesha Reddy [(1977) 3 SCC 99) holding,
inter alia, that though the suit property was given to the wives of Hirday Ram
as limited owners but in view of Section 14(1) of the Hindu Succession Act,
1956 Uttamdassi became the absolute owner of the suit property and had the
right to alienate the same by way of sale, gift or will.
Appeal
filed by the appellant was dismissed on 30.9.1991 by the First Appellate Court
holding inter alia that the declaratory decrees obtained by the appellant did
not operate as res judicata inter se parties as the same were passed in suits
filed by the appellant as presumptive reversioner of the widow of Hirday Ram
and the present suit was filed after her death for possession as owner. The
appellant preferred a regular second appeal which has been dismissed by the
impugned judgment of the High Court holding inter alia that interpretation of
Section 14 of the Hindu Succession Act, 1956 was a pure question of law and the
earlier decrees obtained on the interpretation of law in the case of Mst. Karmi
vs. Amru & Ors. (AIR 1971 SC 745) cannot operate as re judicata in the face
of the contrary interpretation put to Section 14 in the later decision of this
Court in V.Tulasamma's case (supra).
It was
also observed that the declaratory decree of 1978 (in the second suit) was given
after the interpretation of and declaration of the law ignoring the law laid
down by this Court in V.Tulasamma's case (supra). Therefore, these decrees were
erroneous on points of law and could not operate as res judicata. It was also
held that earlier decree of 1961 also could not operate as res judicata as the
same was based on the interpretation and declaration of law given in Karmi's
case (supra) which stood superceded by the later judgment in V.Tulasamma's case
(supra).
The
point for our consideration in this case is whether the finding of the High
Court in the impugned judgment that the earlier decree obtained by the
appellant being declaratory in nature would not operate as res judicata in favour
of the appellant and would not enable her to obtain possession through the
court of law by filing a suit for possession, is correct in law or not ?
Learned counsel appearing for the appellant contended that the two declaratory
decrees obtained by the appellant declaring her right as a reversioner to the
property in question having become final, she is entitled to the fruits of the
said decree. It is contended that the declaration of law made by this Court in V.Tulasamma's
case not being retrospective the judgments obtained by the appellant even if it
is contrary to the said judgment in V.Tulasamma's case the same having become
final cannot be held to be invalid in law, merely because by a subsequent
judgment law stood changed. In such cases, the parties opposing the said
judgment would be prevented by the principles of res judicata from contending
that the appellant has no right to claim the property as the reversioner by
virtue of the terms of the Will under which the property in question was
bequeathed by Uttamdassi, predecessor- in-interest of the respondents herein.
In
support of this contention the learned counsel for the appellant relied on a
judgment of this Court in Teg Singh's case (supra) which was a case in which a
declaratory decrees obtained under the Punjab Custom (Power to Contest) Act,
1920, as amended by Act 12 of 1973, held that though a suit to contest an
alienation of immovable property under the customary law may not lie after the
coming into force of the Amending Act of 1973, but a declaratory decree already
obtained by a reversioner would continue to be operative as the Amending Act
does not render such a decree a nullity. We do not think that the law laid down
by this Court in Teg Singh's case (supra) would support the case of the
appellant in this case because the law declared in that case is on the basis of
the special enactment referred therein which protected the declaratory rights
already obtained by a reversioner. The appellant in this case is not governed
by any such law. In Kesar Singh's case (supra), this Court took a different view
in that, in a case where a declaratory decree was obtained in 1924 by a reversioner
on the basis of custom after the death of the vendor in the year 1978, a suit
for recovery of possession was held to be not maintainable.
This
is also a case governed by the provisions of the Punjab Custom (Power to
Contest) Act, 1920. Thus in this case of Kesar Singh this Court took somewhat a
different view from the law laid down in the earlier case of Teg Singh (supra)
but we do not think that it is necessary for us to go into that controversy to
decide the issue arising in this appeal before us because the law applicable in
those two cases does not apply to the facts of this case. Therefore, we will
have to proceed to examine the merits of this case without going into the
correctness of the decision in Teg Singh and Kesar Singh (supra). Since the
provision of law involved in those case and the present appeal have nothing in
common.
However,
the decision of this Court in the case of Balwant Singh (supra) would have a bearing
on the merits of this case wherein it is held that suit for possession would
not be maintainable on the basis of a declaratory decree as the declaratory
decree did not convey any title in favour of the reversioners. This was a case
under the Hindu Law wherein the widow of the original owner in the year 1954
made a gift and got the land mutated in favour of her adopted sons. The reversioners
filed a suit seeking a decree that the alienation made by the widow was not
binding on their reversionary rights. The suit was decreed and it was held that
the gift made by the widow would not affect the rights of the reversioners. The
property was re-mutated in the name of the widow. In the year 1970, the widow
again gifted the suit property to the adopted sons and she died in the year
1973. A suit for recovery of possession filed by the reversioners on the basis
of the earlier decree, the court held that since the widow continued to be in
possession of the property even after the declaratory decree obtained by the reversioners
because of the enlarged rights she got under the Hindu Succession Act, 1956
which made her the absolute owner of the property the gifts of the property
made by her to her adopted sons in the year 1970 could not be set aside.
Almost
similar is the facts of this case inasmuch as in this case also since on the
coming into force of the Hindu Succession Act by virtue of Section 14(1) the
limited right got by Uttamdassi under the Will got enlarged to an absolute
right in the suit property. Thus, she became absolute owner of the property,
hence, any declaratory right obtained earlier by the reversioner as
contemplated in the Will cannot be the basis on which the suit for possession
could be maintained unless, of course, the claimants in the suit for possession
established a better title independent of the declaratory decree obtained by
them.
As
stated above, the learned counsel for the appellant contended that since the
two declaratory decrees obtained by them having become final and being a decree
inter se between the parties or their successors in interest, the defendants in
the present suit could not take a stand contrary to the declaration already
obtained by appellant. This argument is obviously based on the principle of res
judicata. Ordinarily such an argument ought to be accepted but there are some
exceptions in regard to the application of this principle. One such exception
would be where the earlier declaration obtained by the court is established to
be contrary to an existing law. In Mathura Prasad Bajoo Jaiswal & Ors. vs. Dossibai N.B.Jeejeebhoy [(1970 ) 1
SCC 613) this Court held :
"7.
Where the law is altered since the earlier decision, the earlier decision will
not operate as res judicata between the same parties; Tarini Charan Bhattacharjee's
case (supra). It is obvious that the matter in issue in a subsequent proceeding
is not the same as in the previous proceeding, because the law interpreted is
different." It is to be noticed that in the present case when the first
declaratory decree was obtained, the law as it stood then right of Uttamdassi
remained a limited right, in the suit property hence, a declaratory decree was
given in favour of the plaintiffs in that suit, but by the time the second
declaratory decree was obtained by the appellant herein, this Court by the
judgment in V.Thulasamma's case had declared the law under Section 14 of the
Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi
got enlarged and a beneficiary under a Will with limited rights became the
absolute owner of the same. Since the judgment of this Court in Tulasamma's
case was the law on that date and is the law currently, the second declaratory
decree was contrary to the said declaration of law made by this Court.
Therefore,
that declaration cannot be of any use to the appellant.
In
view of the law laid down by this Court in Mathura Prasad's case (supra) as
extracted herein above.
Apart
from the above in the very same case of Mathura Prasad (supra), this Court at para
11 held:
"Where,
however, the question is one purely of law and it relates to the jurisdiction
of the court or a decision of the court sanctioning something which is illegal,
by resort to the rule of res judicata a party affected by the decision will not
be precluded from challenging the validity of that order under the rule of res judicata,
for a rule of procedure cannot supercede the law of the land." If we apply
the above ratio with which we are in respectful agreement, the consequent
result would be that since the two declaratory decrees obtained by the
appellant being contrary to law laid down by this Court in Tulasamma's case, it
will be open to the defendants as rightly held by the High Court in the
impugned judgment to challenge those declarations and avoid the declaratory
decree if they succeed in such challenge. In the instant case, in our opinion,
the High Court rightly held that the declaratory decrees obtained by the
appellant being contrary to the judgment in Tulasamma's case (supra) would not
be of any assistance to the appellant to obtain the possession of the suit
property.
In
Chief Justice of Andhra Pradesh & Ors. vs. L.V.A.Dixitulu & Ors. (1979
2 SCC 34) at para 24 discussing the effect of Section 11 of the CPC on a pure
question of law or a decision given by a court without jurisdiction this Court
held:
"Moreover,
this is a pure question of law depending upon the interpretation of Article
371D. If the argument holds good, it will make the decision of the Tribunal as
having been given by an authority suffering from inherent lack of jurisdiction.
Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel
as urged in this case." This view of this Court in the case of Chief
Justice (supra) has been quoted with approval in subsequent judgment of this
Court in Ashok Leyland Ltd. vs. State of T.N. & Anr. (2004 (3) SCC 1 at para
56).
In the
Management of M/s. Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh (2005
(2) Scale 151) discussing the principles of res judicata and considering the
earlier judgment of this Court, this Court held thus:
"It
is true that the appellant did not challenge the judgment of the learned Single
Judge. The learned Judge in support of his judgment relied upon an earlier
decision of the High Court in Rajesh Garg vs. Management of Punjab State
Tube-well Corporation Limited & Anr. [1984 (3) SLR 397] but failed to
consider the question having regard to the pronouncements of this Court
including H.R.Adyanthaya (supra), Rajesh Garg (supra) was rendered following S.K.Verma
(supra), which being not a good law could not have been the basis therefor.
The
Principle of res judicata belongs to the domain of procedure. When the decision
relates to the jurisdiction of a court to try an earlier proceedings, the principle
of res judicata would not come into play. [See : Mathura Prasad Bajoo Jaiswal (supra)].
An
identical question came up for consideration before this Court in Ashok Leyland
Ltd. vs. State of Tamil Nadu and Another [(2004) 3 SCC 1] wherein it was observed:
"The
principle of res judicata is a procedural provision. A jurisdictional question
if wrongly decided would not attract the principle of res judicata. When an
order is passed without jurisdiction, the same becomes a nullity. When an order
is a nullity, it cannot be supported by invoking the procedural principles
like, estoppel, waiver or res judicata." It would, therefore, be not
correct to contend that the decision of the learned Single Judge attained
finality and, thus, the principle of res judicata shall be attracted in the
instant case." From the above principles laid down by this Court, it is
clear that if the earlier judgment which is sought to be made the basis of res judicata
is delivered by a court without jurisdiction or is contrary to the existing law
at the time the issue comes up for reconsideration such earlier judgment cannot
be held to be res judicata in the subsequent case unless, of course, protected
by any special enactment.
Learned
counsel for the appellant then contended that the judgment in Tulasamma's case
being prospective the first declaratory decree obtained by her would prevail
since that was based on the law as it stood then and had become final,
therefore, the first declaratory decree would be protected. In support of this
contention he relied upon the judgment of this Court Managing Director, ECIL, Hyderabad
& Ors. vs. B.Karunakar & Ors. [(1993) 4 SCC 727]. We do not think this
judgment would help the appellant in support of the contention raised by her.
It is true that the judgment in Tulasamma's case is not retrospective and would
not apply to cases which have ended finally. But a declaratory decree simplicitor
does not attain finality if it has to be used for obtaining any future decree
like possession. In such cases of suit for possession based on an earlier
declaratory decree is filed it is open to the defendant to establish that the
declaratory decree on which suit is based is not a lawful decree.
Unfortunately
for the appellant the declaration obtained by her based on which she was
seeking possession in the present suit being contrary to law, the courts below
correctly held that the appellant could not seek possession on the basis of
such an illegal declaration. Thus, the law is clear on this point i.e. if a suit
is based on an earlier decree and such decree is contrary to the law prevailing
at the time of its consideration as to its legality or is a decree granted by a
court which has no jurisdiction to grant such decree, principles of res judicata
under Section 11 of the CPC will not be attracted and it is open to the
defendant in such suits to establish that the decree relied upon by the
plaintiff is not a good law or court granting such decree did not have the
jurisdiction to grant such decree.
In the
instant case, as noticed hereinabove, the present suit is filed for possession
of the suit properties on the basis of a declaratory decree obtained earlier
which is found to be not a lawful decree as per the law prevailing at present.
Hence, the impugned judgment cannot be interfered with.
Thus,
examined from any angle, we do not find any merit in this appeal.
We
make it clear that we are not deciding the correctness of the judgment in the
case of Teg Singh (supra) and Kesar Singh (supra), since it is not necessary
for us to go into that question in this appeal.
Appeal
dismissed.
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