Report No. 69
II. Orders in Lunacy
16.20. Section 41-Lunacy proceedings.-
The section thus makes judgments in the exercise of probate, matrimonial, admiralty or insolvency jurisdictions relevant, and also conclusive proof of certain facts. The section does not mention judgments in the exercise of lunacy jurisdiction. This jurisdiction is exercised under the Indian Lunacy Act1, sections 37 to 45 (for Presidency Towns) and sections 62 to 56 (for areas outside Presidency Towns). It has been held in a Madras case2 that while an order in lunacy is not a conclusive judgment, because it does not fall under section 41. it is still relevant and binding upon the parties thereto and those who claim under them, just like any other judgment of a Civil Court.
In that case, a person who had been found to be a lunatic after inquisition executed a deed of assignment of the mortgage after the inquisition. The assignee of the mortgage brought a suit on the mortgage against the mortgagor, and the defence of the mortgagor was that the assignment in favour of the plaintiff gave him no right to sue, because it was executed at a time when the lunacy order was in force and when the management of the lunatic's property was entrusted to a Manager appointed by the court. The trial court considered the order in lunacy to be incorrect, holding that the order had been procured to defeat a suit brought against the person adjudged to be lunatic by a creditor on a promote.
Accordingly, the trial court held that the person concerned was never insane, and therefore the assignment was valid. The High Court, however, held that it was not open to the person concerned (lunatic) to contend that the order finding that he was a lunatic was incorrect, therefore, the plaintiff, who claimed by an alienation from the lunatic, was bound by the order. The High Court observed-
"As to this, however, although an order in lunacy is not a judgment which is conclusive against the world as one of the judgments enumerated in section 41. Evidence Act, it is still relevant and binding upon the parties thereto and those who claim under them, just like any other judgment of a Civil Court."
1. Indian Lunacy Act, 1912.
2. (a) Subha Naicker v. Solaianna Naicker, AIR 1933 Mad 624: ILR 56 Mad 904. (b) See also Padmahati Dassi v. Boromalil, 24 CWN 378.
16.21. Relying upon two English cases1-2, the High Court held that a court cannot recognize, as valid, a deed executed by a lunatic during a period during which his adjudication as lunatic was in force. In the later English case3, relied upon by the High Court, the reason given for such a view was that it could not be right that the Crown, or the "Committee" who represents the Crown (here the court), should have the control and management of the lunatic's estate, and at the same time she (the lunatic) should have power to dispose of her estate as she thinks fit.
With respect to the Madras High Court, we have not been able to persuade ourselves to agree with the reasoning on which the Madras decision is based. It must be pointed out that, in the Madras case, the person who was the assignee of the mortgage under the assignment executed by the alleged lunatic was not a party to the lunacy proceedings, and even if he claimed through the lunatic, what is more relevant to be pointed out is that the lunacy court was not competent to try the present suit, which was brought by the plaintiff on the mortgage.
Moreover,-and this is important-the mortgagors were not parties to the lunacy proceedings and, therefore, the earlier proceedings were not between the same parties as the present suit. The view of the Madras High Court that "though the order in lunacy does not fall within section 41, it is still relevant and binding upon the parties thereto and those claiming under them just like any other judgment of a civil court", is, with respect, an incomplete statement of the relevant law, because
1. Walker in re:) (1905) Cahncery 160.
2. Walker in re:) (1905) Cahncery 284.
3. Walker in re:) (1905) Cahncery 284.
16.22. Criticism of Madras case.-
With respect to the Madras High Court, we have not been able to persuade ourselves to agree with the reasoning on which the Madras decision is based. It must be pointed out that, in the Madras case, the person who was the assignee of the mortgage under the assignment executed by the alleged lunatic was not a party to the lunacy proceedings, and even if he claimed through the lunatic, what is more relevant to be pointed out is that the lunacy court was not competent to try the present suit, which was brought by the plaintiff on the mortgage.
Moreover,-and this is important-the mortgagors were not parties to the lunacy proceedings and, therefore, the earlier proceedings were not between the same parties as the present suit. The view of the Madras High Court that "though the order in lunacy does not fall within section 41, it is still relevant and binding upon the parties thereto and those claiming under them just like any other judgment of a civil court", is, with respect, an incomplete statement of the relevant law, because-
(i) the judgment which is now made to be binding must, if the relevancy is to be attributed to the principle of res judicata, be a judgment of a competent court;
(ii) further, the principle of res judicata does not apply where the parties are not the same;
(iii) if the judgment is to be regarded as relevant under any other provision of the law, that provision is not referred to in the decision of the Madras High Court, and, on the facts, none seems to be applicable.
16.23. One of the essential conditions prescribed by section 11 of the Code of civil Procedure, is that the Court which tried and decided the earlier suit must lave been a court have been a court competent to try the subsequent suit1 The importance of the condition relating to the competency of the earlier court to try the subsequent suit, has been particularly emphasised by the Privy Council in Gokul Mander v. Padranand Singh, 29 IA 196: 29 Cal 707 (PC), where, in considering the scope of section 13 of the Code of 882 (corresponding to section 11 of the present Code), it was observed as follows:-
"Under section 13, C.P.C., a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent suit itself in which the issue is subsequently raised. In this respect, the enactment goes beyond section 13 of the previous Act, 10 of 1877, and also, as appears to their Lordships, beyond the law laid down by the Judges in the Duches of Kingston's case2 They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction."
1. Krishnan Nilakantan v. Karumpan Kesavan, AIR 1956 TC 161 (163).
2. Duchess of Kingston's case, (1776) 2 SLC 10th Edn. 713.
16.24. This test was not satisfied in the Madras case. The fact that the present plaintiff, that is, the assignee of the mortgage, claimed his title from the lunatic, is not in itself sufficient to make the order in lunacy irrelevant, since section 43 of the Act clearly provides that judgments, orders and decrees other than those mentioned in sections 40, 41 and 42 are irrelevant unless their existence is a fact in issue or is relevant under some other provision of the Act.
16.25. English cases referred to in Madras case why not applicable.-
As regards the English cases referred to in the judgment of the Madras High Court, it is to be pointed out that the reasoning on which the English cases are founded is quite different from that of res judicata, and the English cases proceed on the foouting that the person adjudicated as a lunatic is Incompetent to transfer the property. At least, this is the gist of the English cases relied on in the Madras judgment. The truth of the matter is that if a judgment is within the category of res judicata, it is not only relevant, but it is a bar to any re-opening of the matter decided. On the other hand, if the judgment does not fall within the principle of judicata-either because there is no identity of parties, or because the court is not competent or for any other reason-then the judgment is totally irrelevant.
In India, there is no midway position, so far as the doctrine of res judicata is concerned, between a judgment which is not relevant at all, and a judgment which is a bar in toto-(We are not discussing section 41, Evidence Act, concerned with certain judgment affecting status). A judgment, if res iudicata, is conclusive between the parties; but there is no category of judgments (with reference to res judicata which are relevant but not conclusive. The view taken by the Madras High Court, treating the judgment relevant on the principle that a judgment binds the parties, does not fit in with the content of section 11, C.P.C., or section 40, Evidence Act.
16.26. Position in England as to lunacy.-
Apart from the English cases cited in the Madras judgment, we have also looked at other English decisions relevant to lunacy. It is settled, in England, that the old inquisitions and former master's orders in lunacy, are admissible, though not conclusive, evidence of the lunacy of the person to whom they refer.1 Their admissibility is not based on any principle analogous to res judicata, but under a category similar to public reports relating to matters of public interest.
1. Faulder v. Sik, (1811) 3 Camp 176: 13 RR 331.
16.27. In Harvey v. R., 1901 AC 601 (HL), it is noted that by the Lunacy Act1 in England, it is specifically provided that a master's order is a prima facie evidence of the Lunacy. The rubric under which English text books deal with judgments in lunacy is that of "inquisitions, certificates, assignments and reports made under public authority and in relation to matters of public interest".
1. Section 116 of the Lunacy Act, 1890 (English).
16.28. Even in England, it is doubtful whether, in the absence of statutory provisions, as under the Lunacy Act, a quasi judicial inquisition into a matter not of a public nature would, at the present day, be regarded as admissible, particularly because, after the decision in Hollington v. fiewthrone, (1943) 2 All ER 35 (CA), the category of judgments admissible but not conclusive has been narrowed down.
16.29. Scheme of English law.-
It may be observed here that in one of the English cases,1 it was said that there are two kinds of judgments in rem, one of which is conclusive against all the world, and the other of which is not; an example of the latter was said to be an inquisition in lunacy "which has always been allowed to be read in a subsequent suit between third parties, as evidence of the lunacy, though it is not conclusive and may be traversed." But this enumeration of judgment in rein does not seem to have been pursued in later English cases.
The definition given in an earlier edition of Haisbury,2 which has been adapted in an English case,3 is-"a judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from a particular interest in it) or a party to the litigation." In India, however, the matter is dealt with in section 41; and unless the matter is of a public nature relevant to the inquiry (section 42), a judgment, order or decree would be irrelevant (section 43).
1. Hill v. Clifford, (1907) 2 Ch 236 (244).
2. Halsbury's Laws of England, (2nd Edn.), Vol. 13, p. 405.
3. Lazarue-Barlow v. Regent Estates' Company Ltd., (1949) 2 AER 118 (122).
16.30. Judgments in rem and Indian Law.-
The English concept of judgments in rem has not been fully adopted into our Act, and instead of adopting the terminology used in the English common law on the subject, a specific enumeration of the judgments which are to be regarded as conclusive is given in section 41. We cannot, therefore, travel beyond that section and bring into existence a new class of conclusive judgments under the category of judgments in rem.
16.31. English concept of judgment in rem not identical.-
For these reasons, to appears to be inconsistent with the scheme of the Act to follow English decisions based on the English concept of judgments in rem without considering our scheme. It may be noted that the earlier English case1relating to lunacy was based on the principle that certain judgments on a status or condition are receivable in evidence against a third person, but not conclusive.
1. Faulder v. Sik, (1811) 3 Camp 176 (13) revised Reports 771.
16.32. Recommendation as to orders in lunacy.-
On a consideration of all aspects of the matter, we think that the correct position should be incorporated the section. We therefore recommend that section 41 should be clarified by expressly providing that an order adjudging a person lunatic does not fall within the section.
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