| SooperKanoon Citation | sooperkanoon.com/699726 |
| Subject | Contract;Civil |
| Court | Delhi High Court |
| Decided On | Mar-27-1998 |
| Case Number | S.No.200/80 |
| Judge | J.B.Goel, J. |
| Reported in | 1998IIAD(Delhi)945; 72(1998)DLT673; 1995(45)DRJ304 |
| Acts | Code of Civil Procedure (CPC), 1908 - Sections 11 |
| Appellant | Sanjiv Kakkar |
| Respondent | Shri L. Kumar and Five Others |
| Appellant Advocate | : Mr. Ishwar Sahai, Sr.Advocate and; Mr. A.S. Mathur, Adv |
| Respondent Advocate | Mr. L.R. Gupta Sr. Advocate, ; Mr. Mohinder Rana and ; Mr |
J.B.Goel, J.
1. By this judgment, the following preliminary issue framed in the suit is being disposed of.
Preliminary Issue:
'Whether the suit is not barred by rest judicata in view of decision in Suit No. 28/67 affirmed finally by the Supreme Court on 17th July, 1984? (OPP)'
2. When this suit was filed on 12.3.1980, the - plaintiff was a minor and the suit on his behalf was filed through his maternal grandfather Shri Brij Raj Krishna Tandon, as his next friend. On attaining majority the plaintiff has elected to pursue the suit and the plaint was amended and the aforesaid Mr. Tandon was transposed as defendant No. 7.
3. In this suit, the plaintiff seeks a declaration that the decree for specific performance passed in Suit No. 28/67 by a learned Single Judge, affirmed in appeal by a Division Bench and further appeal dismissed by the Supreme Court on 14.7.1984, is illegal, invalid and not binding on him, besides injunction against its enforcement. By that decree suit for specific performance filed by defendant No. 1 against defendants 2 and 6 was decreed with direction to complete the sale in favor of the vendor-plaintiff in that suit. The plaintiff and defendants 1 and 2 in the previous suit are defendants 2 and 6 respectively Defendant No. 6 is the father and defendants 2 to 5 are the uncles of plaintiff.
4. The facts giving rise to the earlier suit No. 28/67 are that Dr. Daya Shankar (defendant No. 3) as owner, through his Attorney and brother Shri Hari Shankar (defendant No. 2) on 27.2.1960 had entered into an agreement to sell property bearing No. 77, Sunder Nagar, New Delhi together with lease rights in the site in favor of Shri L. Kumar (defendant No. 1) for a consideration of Rs.2,02,500/-, out of which the vendee had paid a sum of Rs. 15,000/- by means of a cheque. The sale having not been completed the vendee had filed suit for specific performance being Suit No. 28/67 against Dr. Daya Shankar, in April, 1962. The said suit was contested by Dr. Daya Shankar. Inter alias a plea was taken by him in that suit that the property was a Joint Hindu Family property and in a partition between co-sharers it had fallen to the share of Bhawani Shankar and that the latter was in possession as owner. On this plea, Bhawani Shankar was imp leaded as defendant No. 2. Bhawani Shankar is the father of the plaintiff and is defendant No. 6 in the present suit. He had filed a separate written statement denying that Dr. Daya Shankar was the Karta of the HUF or that the agreement was for the benefit of the family. He did not claim that the property belonged to the HUF. Following issues were framed in that suit :-
(1)Whether the suit property is the Joint Hindu Family or Joint property of defendants and others as alleged? O.P. Defendants
(2)If issue No. 1 is proved, whether there was any partition of the Joint Hindu Family property/joint property as alleged and the suit property has fallen to the share of defendant NO. 2 as alleged? If so, when and to what effect? O.P. Defendants
(3)Whether there was any valid agreement to sell the said property, as alleged by the plaintiff? If so, on what terms and conditions? O.P.P.
(4)Whether the plaintiff was always ready and willing to perform his part of the contract and the breach has been committed by the defendant No. 1 as alleged? O.P.P.
(5)Whether the plaintiff is entitled to specific performance prayed for? If so, against whom? O.P.P.
(6)Whether the plaintiff is entitled to damages, if any, and refund of Rs. 15,000/-? If so, how much? O.P.P.
(7)Relief, and against whom?
(1-A)If issue No. 1 is proved, whether Daya Shankar was the Karta of the Joint Hindu Family and the agreement was for legal necessity, and for the benefit of the family? O.P.P.
(1-B)Whether Bhawani Shankar, defendant No. 2, had notice of the agreement and what is its effect on the present suit? O.P.P.
5. The suit was contested, the parties led oral and documentary evidence and a learned Single Judge of this Court vide his judgment dated March 8, 1979 decided the Issues against the defendants of that suit, and decreed the suit, directing for completing the sale. Shri Bhawani Shankar alone had filed appeal against it being RFA (OS) NO. 15/79 which was dismissed by a Division Bench of this Court on merits on January 21, 1980. Further appeal being Civil Appeal No. 958/80 filed by Shri Bhawani Shankar in the Supreme Court was also dismissed on July 17, 1984. The present suit has been filed challenging the legality and validity of that decree. The grounds of challenge are :-
1) That the property in question though purchased in name of Daya Shankar (defendant NO. 3) is joint ancestral property having been inherited from his grandfather late Shri Gauri Shankar and construction thereon was also raised from the income and assets of joint ancestral properties and common fund of the joint Hindu family;
2) in partition amongst the co-sharers this property was allotted to defendant No. 6 (father of plaintiff) with effect from April 1, 1961;
3) After death of Shri Gauri Shankar (in 1953) Hari Shankar defendant No. 2 who was his eldest son was the Manager of HUF;
4) Said Shri Hari Shankar had not entered into agreement to sell the house in his capacity as Karta or Manager of the said joint property;
5) The alienation is also not for legal necessity or for the benefit of the estate as an act of good management;
6) Shri Bhawani Shankar had contested the previous suit in his individual rights and not as representing his branch as envisaged under the Hindu Law;
7) Shri Hari Shankar and Shri Bhawani Shankar are guilty of gross negligence and absolute carelessness in defending that suit;
8) Shri Hari Shankar appears to have colluded with the defendants;
9) Shri Bhawani Shankar had acted prejudicially to the interests of the plaintiff by denying Joint Hindu Family of himself and the plaintiff and claiming his own ownership in the property.
6. It is thus claimed that the decree is not binding on him.
7. Defendants 2 to 6 in their written statements have supported the plaintiff. However, defendant No. 1 has contested the suit disputing the correctness, legality and validity of the grounds of challenge. Inter alias it is pleaded that the suit is barred by rest judicata by the judgment and decree in Suit No. 28 of 1967, also that the plaintiff has no locus standi to challenge the sale as he was not even born when agreement to sell dated 27.2.1960 was entered into. In replication these pleas have been denied.
8. Learned counsel for the plaintiff has contended that the property in question is a joint Hindu family property and in a Joint Hindu coparcenary, a son does not derive interest in the coparcenary property through his father but by birth and as he is not the representative in interest of the father, the judgment against the father in respect of Joint properties affecting his rights does not operate as rest judicata against him and the decree in the former suit is not binding on the son. He is entitled to challenge such a transfer to protect his own interest on the grounds pleaded. Reliance has been placed on Jagmohan Lakhmi Chand and Others v. Ramchhoddas and others AIR 1946 Nagpur, 84; Lala Maha Deo and others v. Ranbir Singh and others AIR 1944 Lahore, 224 (FB) and Municipality of Bhiwandi Vs . M/s. Kailash Sizing Works : [1975]2SCR123 .
9. Whereas learned counsel for contesting defendant No. 1 has contended that in the previous suit the defendants had contested the suit inter alias on the ground that the property in question was a joint family property, it has been allotted to Bhawani Shankar, the father of the present plaintiff and could not have been sold by Daya Shankar. The issue whether the property was a joint family property was directly and substantially in issue in that suit; the plaintiff's father was a party in that suit who had contested the suit, pursued the matter in appeals before the Division Bench of this Court and then in the Supreme Court, the decision in that suit binds the plaintiff son as being the manager of his Joint Hindu Family had represented his interest in common with the plaintiff, family and his minor son and had he succeeded in that suit; it would have enured for the benefit of his joint family including the plaintiff. The decree passed in that suit is binding on the plaintiff being a member of the joint family with his father. The same issue raised again in the present suit is barred by rule of rest judicata under Section 11 of the Code. The plaintiff also cannot question the validity of alienation made before he was born. Reliance has been placed inter alias on Lingangowda Vs . Basangowda ; Thakur Din and another Vs . Sita Ram and another : AIR1939All399 ; Vadlamanati V. Rao v. Gottumukukule Venkata Somaraju AIR 1937 Mad 610; Sheo Shankar Ram v. Mt. Jaddo Kunwar 36 All. 383 AIR 1914 PC 136; Hori Lal and another v. Munman Kunwar and others (1912) 34 All. 549; Thakur Ram Sahai Sinha v. Mst. Bimla Devi : AIR1980Pat204 , Amrit Sagar Gupta and another v. Sudesh Behari Lal and others : [1969]3SCR1002 Nagappa Gounder v. Kasi Gounder and others 1971 M L J R 371 and M.H. Ravindranath and another v. M.L. Hanumantha Rao and another 1987 (2) CCC 885.
10. In the case of Jagmohan Lakhmi Chand, the question was whether a statement made by the father of the plaintiffs in a criminal case instituted by him could be used against his sons to prove partition. In that context it was observed that 'in a joint Hindu Family a son does not derive interest in the coparcenary property through his father and the plaintiffs cannot be said to be the representatives in interest of their father.' The question in issue there was whether Lakhmi Chand was beaten and the accused had committed an offence under S. 323 IPC and the question of partition or details thereof was not in issue and any incidental statement which might have been made by Lakhmi Chand in that case would not be relevant under Section 33 of the Evidence Act and the admission made by him under Section 21 of that Act is also not binding on the plaintiffs as they are not representatives in interest of their father. The scope of Section 11 in the light of its Explanationn VI of the Code about the effect of a judgment or a decision on an issue directly and substantially in issue in a former suit in which father of the minor was a party was not in issue in that case. Hence this authority is of no relevance.
11. In the second case of Lala Mahadeo, the question that was referred to Full Bench was:-
'Whether a Hindu son, in a suit to avoid the liability of the Joint family property in his hands, in execution of a mortgage or a simple money decree obtained against his father, can go behind the decree so as to challenge the existence of the debt on which the decree is based.?'
By the majority view (per Din Mohammed and Sale,JJ.) this question was answered in the affirmative. In his minority view Teja Singh, J. has differed on this. For reaching the divergent views a large number of case law and various books on Hindu Law having aberrance were referred to. Inter alias Privy Council decision in Lingangowda Don- Basangowda Patil and others v. Basangowda Bistangowda Patil and others and Allahabad High Court decision in Thakur Din and another v. Sita Ram and another : AIR1939All399 were also referred to both by Din Mohammed, J. in his leading majority judgment as well as by Teja Singh, J. in his minority view. After noticing Kumaravalu Chettiar v. Ramaswami Ayyar 56 Mad 657 and Effuah Amisah v. Effuah Krabah, AIR 1936 PC 147, his own decision in Mehr Mohd. Khan v. Adalat Khan 18 Lah 629 as also Ram Narain v. Bushashan Prashad 10 Allahabad 411 and Sunder Lal v. Chitter Mal 29 Allahabad 1, Din Mohammed, J. after noticing the principles of Hindu Law governing the binding nature of debts incurred by the father on the son and his estate, it was held that the son could challenge the debt, on the grounds of immorality or illegality, and transfer of property for want of legal necessity, the very existence of the debt on which the decree is based. For reaching this decision, it is observed that in such case the interests of the son clash with those of his father and in such a case father cannot be said to have represented his sons and the judgment would not operate as rest judicata. The two decisions in Lingangowda v. Basangowda and Thakur Din and another v. Sita Ram and another : AIR1939All399 were distinguished as beyond the point involved.
12. To appreciate the controversy involved, brief reference is made to the scope of Section 11 of the Code. Main part of Section 11 of the Code and its Explanationn VI which is being relied in this case read as under :-
'11. rest judicata - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanationn VI.- 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.
13. This is a statutory embodiment of the doctrine of rest judicata, i.e. a matter adjudicated upon or a matter upon which judgment has been pronounced. This Section bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated in a previous suit. It prohibits the Court from entering into an enquiry at all on a matter already adjudicated upon. It is a principle necessitated as a matter of public policy.
14. The Supreme Court in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (dead) by L.Rs. : [1977]2SCR636 has observed that this principle is embodied in the statute as one of public policy, based on two maxims derived from the Roman Jurisprudence, firstly, interest reipublicae ut sit finis lithium - it concerns the State that there be an end to law suits; and, secondly, 'neme debet bids vexari pro una at eadem cause'- no man should be vexed twice over for the same cause. After referring to the observations made by Sir Lawrence Jenkins in Sheoparsan Singh V. Ramanandan Prasad Narayan Singh AIR 1916 PC 78 that the Rule of rest Judicata 'while founded on ancient precedent is dictated by a wisdom which is for all times', it is further observed that 'Litigation which has no end or finality defeats its very object.' This object is decision on disputes, or an end to such 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 the 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 Explanationns, a very salutary principle of public policy.
15. In Talluri Venkata Seshayya & Ors. v. Thadikonda K. Rao , it was held that the provisions of Section 11 of the Code are mandatory and the ordinary litigant, who claims under one of the parties to the former suit can only avoid its provision by taking advantage of Section 44 Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion.
16. In his minority view in Lal Maha Deo's case, Teja Singh, J. posed the question as to what effect a decree obtained against a Hindu father has on his sons, who form a joint family with him. He has summarised the legal position, as under :-
'It is an admitted proposition of Hindu Law that in a Joint Family consisting of father and sons, the former is ipso facto the Karta and as such he possesses vast powers to manage the family property and business, if any, on behalf of the family and to represent the joint family in all transactions. He is entitled inter alias to raise debts on behalf and for the family and to alienate joint family property for family necessity. He has also powers to alienate the family property including the shares of his sons for his personal debts, provided they are not immoral or llegal. It is also well settled that in execution of a decree obtained against a Hindu father the shares of his sons in the family property can be proceeded against even though they are not made parties to the suit in which the decree is passed or in the execution proceedings, subject of course to the usual condition that the debt for which the decree was obtained is not tainted with illegality or immorality. This principle is applicable not only to a money decree but also to a decree for the sale of joint family property obtained against the father on the basis of a mortgage executed by him alone and it is based upon two grounds. The first is that in view of the position that a Hindu father occupies vis a vis his joint sons the decree against him is binding upon the sons and operates as rest judicata against them.'
17. This position is well established from the case law noticed hereafter.
18. In Daulat Ram v. Mehar Chand 15, Cal. 70 (PC), it was held that although some of the members of a joint family had not been party to a suit upon a mortgage effected by the managing members, the entire estate was bound by the act of the latter. This was affirmed in Sheo Shankar Ram v. Mt. Jaddo Kunwar 36 All. 383 AIR 1914 PC 136 where also it was held that a decree passed against the manager of the joint family as representing the family for a debt contracted by him for family necessity or for the family business, or in respect of family property, operates as rest judicata under Explanationn VI to Section 11 Civil P.C. and is binding upon all members of the family including minors and it may be executed against the whole coparcenary property although other members were not parties to the suit. This legal position has also been followed in Channa Basaregowda v. Range Gowda AIR 1951 Mys 38; Jahangir v. Janardhan (1947) All. 218; Gurbasappa v. Vaukat, 1956 Hyd. 136; Ghassu Khan v. Najar Ali AIR 1957 Nag 91 and Kuwaji Sau Mal v. Kalwa AIR 1958 AP 261 and Hori Lal v. Munman Kunwar 34 All. 549. In the last mentioned case after referring to various cases, Banerji, J. had observed as under :
'The ordinary rule undoubtedly is that all persons interested in a suit should be made parties to it. But in the case of a joint Hindu family this rule is complied with if the manager of the family is sued or sues and thus represents the other members of the family. What is required is that all persons whose interests are to be affected by the suit are sufficiently and substantially represented. In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager.'
19. In that case it was further observed that it is not essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager or that the plaintiff in a suit against the family should describe the defendant as the manager of the family. In Lingangowda Dod Basangowda Patil and others v. Basangowda Bistangowda Patil and others the facts were that the father of the appellant brought the suit against the respondents, of his collateral branch to exclude them from a share of the family property, claiming that the land was in his ownership and under his management. The respondents claimed that they were in possession as members of the joint family and the property belonged to the joint Hindu family, and entitled to the land jointly with the appellants, father. The suit was dismissed and the appeal to the High Court was also dismissed. After that, the appellants brought another suit that they were not bound by the decision against their father in the previous suit because they were not parties to it and their father had not sued on behalf of the family with due care. In that case Lord Phillimore observed as under :-
'In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he comes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, thereforee, the Court looks to Explanationn 6 of S.11 of the Civil P.C., to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors'.
20. It was further observed that the plaintiff in the previous suit was acting on behalf of himself and his minor children to try to exclude his collateral branch from a share of the family property and if he had succeeded the judgment would have ensure for the benefit of the children, and as he has failed, they must take the consequences.
21. In Thakur Din v. Sita Ram : AIR1939All399 the facts are that a house belonging to the judgment-debtor was attached in execution of a decree. He raised an objection that he was an agriculturist and the house was not liable to be attached and sold under Section 60(1)(c) Civil P.C. The objection was dismissed for default and the house was sold. Thereafter, the minor sons of the judgment-debtor, who constituted a Joint Hindu Family with him, brought a suit that the house was their joint ancestral property and its sale was illegal and sought an injunction restraining the decree holders from interfering with their possession. The question that arose in that case was whether in such circumstances a sale can be challenged by the minor sons of the judgment-debtor. It was held that in resisting the execution proceedings against the joint family property, the judgment-debtor who was their father and Karta of the Joint Hindu Family, must be deemed to have represented not only his own interest but the interest of the members of the joint family consisting of himself and his sons and the dismissal of the objection raised by him was binding not only on him but also on his sons as being rest judicata in view of Explanationn VI of Section 11 Civil P.C. as they were represented in execution proceedings by their father. It was further held that the Karta or head of a Joint Hindu Family represents the interests of all the members of a family in a litigation in which an interest of the family is involved and that no epresentation order is necessary to make absent members of the Joint Hindu Family liable under the decree passed against the Head of the family. Contrary view taken by a Division Bench of that Court in Aidal Singh v. Khazan Singh, : AIR1930All727 was overruled and was followed. In Ramanathan Chettiar v. S.R.M.M.C.T.M. Firm 1937 Mad 376 AIR 1937 Mad 345, a decree had been obtained by a mortgagee against the mortgagor for the sale of the latter's property and his son was not joined with him. Later on, the son brought a suit for declaration that the decree was not binding upon him. The suit was dismissed by the trial court. The contention that the son was not bound by the decree as he was not made party to the mortgage suit and defendant No. 2 was not sued in a representative capacity was rejected. The appeal was dismissed holding that he was effectively represented in the suit, and it was observed as under :-
'Granting .... the defendant 2, alone was individually imp leaded, there can be no question on the authorities that he effectively represented in the suit the entire family, which has thereforee become bound by the decree.'
22. This has been followed by a Full Bench of that High Court in Venkata narayana Rao v. Gottumukkule Venkata Somaraju AIR 1937 Mad 610 where also it has been held that where the father is sued as a representative of a joint Hindu family in respect of a joint family liability, the other members of the family must be held to be substantially parties to the suit through him. The fact that they are not parties eo nomine will not render them any the less parties to the suit. A decree obtained against him in such suit will be binding upon the whole joint undivided family including the sons, even if the decree does not show on its face that it was passed against the coparcenary as he can effectively represent the entire family in such suit and he had acted in the litigation in their interest. It was also held that it is not necessary that it should be stated in the pleadings that he is suing or is being sued as such manager as such suit would be deemed to have been brought by or against him in his representative character as manager of the family the property involved being the family property. Same principle has been laid down in Hori Lal v. Munman Kunwar, (1912) 34 All. 549,Lal Chand v. Sheogobind : AIR1929Pat741 ; Ram Kishan v. Ganga Ram 12 Lah. 428 AIR 1931 Lah. 559; Prithipal Singh v. Rameshwar 2nd 2 Oudh 288 AIR 1927 Oud 27; Surendranath v. Sambhunath : AIR1927Cal870 ; Mulgund Cooperative Credit Society v. Shidlimgappa Ishwarappa (1941) Bom. 682 : AIR 1941 Bom. 385; Mani Sahoo v. Lokanath Mishra : AIR1950Ori140 and Hari Prasad v. Lal Behari 19 Pat. 681.
23. Most of these cases have been approvingly referred to by the Supreme Court in Amrit Sagar Gupta & Anr. v. Sudesh Behari Lal & Others : [1969]3SCR1002 , where also the same legal position has been reaffirmed as under :-
'It is not necessary, in order that a decree against the manager may operate as rest 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.'
The suit by or against the manager will be 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. 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.....'
24. Explanationn VI is not confined to cases covered by Order 1 Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves (Kumarsalu Cattiar v. Ramaswamy Ayya, .
25. The legal position is thus well established that if the manager of a joint Hindu family sues or is suit in respect of a transaction entered into by him as manager of the family or in respect of Joint Family property, a decree passed against him in such a suit would bind all other members of the family, including his minor children if he acted in the litigation in their interest which if he had succeeded would have enured for their benefit.
26. In Ventakesh Prabhu v. Krishna Prabhu : [1977]2SCR636 , at page 1274 again this same principle has been reaffirmed as under :-
'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 Explanationn VI, to represent all those the nature of whose claims and interests the 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 rest 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.'
27. The question whether the decision is correct or erroneous has no bearing on the question whether it operates or does not operate as rest judicata. Even if, erroneous an intra-party judgment of a court of competent jurisdiction binds the parties. (Mohan Lal v. Benoy Krishna : [1953]4SCR377 ; M.S.B. Sarma v. Sri Krishna Sinha 1960 SC 1186; Gorie Gouri Naidu and another v. Thandrothu Bodamma and others : AIR1997SC808 ) otherwise every decision could be impugned as erroneous and there would be no finality.
28. One of the conditions of Rule of rest judicata is that the matter should have been in issue directly and substantially in issue. A matter will be 'directly and substantially' in issue in a suit if it was alleged by one party and denied or admitted, either expressly or by necessary implication by the other (Lonankutty v. Thomman and another : AIR1976SC1645 ) and whether a matter was directly and substantially in issue in a former suit is to be determined by a reference to the pleadings in the former suit, issues and the judgment (Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati : [1964]7SCR267 ).
29. In the former suit No. 28/67, first Daya Shankar only was imp leaded as defendant. On the objection taken by him in the written statement, that the property in question was one of the assets of the Joint Hindu Family, which was owned in his name in a partition had fallen to the share of Shri Bhawani Shankar who was its owner and in possession. On this the plaintiff (present defendant NO. 1) had amended his plaint adding paras 8A and 8B as under :
'8A. Defendant No. 1 has alleged that the property in suit was one of the assets of the Joint Hindu Family which was owned in the name of defendant No. 1 which in a partition between defendant No. 1 and his brothers has fallen to the share of Shri Bhawani Shanker who is in possession of the same as owner. Plaintiff does not admit this averment of the defendant No. 1, but assuming, without admitting that the property belonged to the Joint Hindu Family and that there had been a partition and on that partition the property has fallen to the share of Bhawani Shanker, the agreement is binding on the members of the Joint Hindu Family and on Bhawani Shanker in as much as Dr. Daya Shanker was the Karta of the Joint Hindu Family and the agreement entered into by him is for the benefit of the Joint Hindu Family and the agreement entered into by him is for the benefit of the Joint Hindu Family and any subsequent partition will not effect the rights of the plaintiff under the agreement.
8B. That Shri Bhawani Shanker had full notice of the agreement in suit and is thereforee bound by the same.'
30. Daya Shanker defendant in reply in his written statement pleaded as under :
'8A. The plaintiff's denial of defendant's version and his own averments made in the para are repudiated and denied. It is false that Dr. Daya Shanker was the Karta or that the alleged agreement is for the benefit of the family.
8B. is denied.'
31. Shri Bhawani Shanker in his written statement pleaded as under :-
'8A. Para No. 8-A of the plaint is denied and the allegation set forth therein and the position adopted by the plaintiff is repudiated. It is denied that Dr. Daya Shankar was the Karta of the Joint Hindu Family or that the agreement was for the benefit of the family. The allegation of the joint Hindu Family is not admitted. The fact is that several properties though acquired in certain names were in fact all joint properties of the parties, acquired by the father or from funds of his assets, which were mutually partitioned so that each brother may get an equal share and this property fell to this defendant's share and is owned and possessed by him.
8B. Para 8-B of the plaint is emphatically denied.'
In that suit Issue No. 1 was as under :
(1) Whether the suit property is the Joint Hindu Family or Joint property of the defendants and others as alleged? O.P.Ds.
32. Prem Shankar (present Defendant No. 4) and Bhawani Shankar appeared as witnesses and both of them led evidence in support of this issue. Their evidence has been examined at length but was disbelieved and the issue was decided against the defendants. Before the Division Bench in appeal by Bhawani Shanker also this issue was pressed but the Division Bench observed as under :-
'That the defendant had failed to prove that there was in fact, the joint Hindu family property which could be a nucleus for the purchase and consideration of the suit house'.
The appeal taken to the Supreme Court was also dismissed.
33. Issue No. 1 of that suit was thus directly and substantially in issue in the former suit. Though Bhawani Shankar in his written statement had denied that it was the Hindu Undivided Family property with his brothers. However, an issue was framed, evidence was led by him in support of that issue. That issue was decided against the defendants. The decision in that issue will operate as rest judicata against him notwithstanding the fact that he had taken a specific plea in his written statement that it was not a Joint Hindu Family property. It was held by the Privy Council in Sri Krishna Chendra Gajapati Narayana Deo v. Challa Ramanna and others that where a point is not properly raised by the plaintiff in the plaint but both parties have without protest chosen to join issue upon that point the decision on the point would operate as rest judicata between the parties.
34. The present plaintiff was thus properly and effectively represented by his father Bhawani Shankar as Karta/Manager of his coparcenaries/Hindu undivided family in the previous suit. Had he succeeded in the earlier suit that decision would have enured for the benefit of his Joint Family including present plaintiff. Issue No. 1 was directly and substantially in issue in the former suit. The decision on that issue against Daya Shankar and Bhawani Shankar is thus binding on the plaintiff and operates as rest judicata in view of the legal position noticed earlier. This issue cannot be re-agitated by the plaintiff and has to be decided against the plaintiff.
35. Learned counsel for the plaintiff has contended that the plaintiff had filed an application No. is 2493/80 for the appointment of a local commissioner to examine Shri Hari Singh. This application was allowed on 12.8.80 and Shri Hari Shankar was examined on Commission and on another application is No. 8196/87 of the plaintiff this Court had allowed that application taking the report of the local commissioner on the record. The contention sought to be raised is that the statement of Hari Shankar should form part of the record of the present suit and be taken into consideration for deciding this issue now and earlier decision is not binding on the plaintiff because of gross negligence and carelessness on the part of Daya Shankar and Bhawani Shankar in contesting the earlier suit. This contention is strongly contested by the learned cousel for the defendant. He has contended that the application is No. 2493/80 was filed by the plaintiff to examine Hari Shankar on commission because it was alleged that he was in serious condition. And that application was allowed and he was examined on commission obviously subject to the preliminary issue framed in the suit and for its use in case this issue was decided in favor of the plaintiff so that the evidence of Shri Hari Shankar could be secured during his life time. His evidence remained incomplete as he was not cross-examined by defendant No. 1 before he died during the pendency of the present suit. Subsequently, is No. 8196/87 of the plaintiff for taking into consideration that statement of Hari Shankar was allowed on 17.1.1994 subject to its admissibility.
36. There is no specific order of the Court that his evidence will be read in evidence for deciding the question of rest judicata nor it could be done. Incomplete statement also cannot be read against defendant as the witness died before he could be cross-examined. The material to be taken into consideration for deciding the issue is the pleadings of the parties, issues and the decision in the former suit. Use of any fresh evidence is barred by Section 11 of the Code while deciding this issue. If statement of Hari Shanker is to be taken into consideration the very purpose of framing the issue will be defeated. It was not the intention of the parties when is No. 2493/80 was moved and allowed that the statement of Hari Shankar was to be read for deciding the preliminary issue nor it could be. The scope of that application was limited to the extent that the evidence of Hari Shankar be secured during his life time. That evidence was not recorded to be read in evidence for deciding the issue of rest judicata and as such, in my view, that evidence cannot be taken into consideration. Statement made by a junior Advocate on behalf of the defendant to bring on record this statement could not be construed to have been agreed to be read in evidence contrary to the scope of Section 11 of the Code.
37. Learned counsel for the defendant has also contended that the plaintiff was born in 1962 whereas the agreement to sell was executed on 27.2.1960. His right in the property if any was subject to the rights and obligations of that agreement and he cannot contest the validity of that agreement and consequent alienation adjudged by the Court.
38. It is a well established principle of Hindu Law that a member of a Joint Hindu Family who was born after the alienation of the family property by another member of that family cannot question the validity of that alienation [Chhutan Lal v. Kallu (1910) 33 All. 283. and Bhola Nath v. Kartick Kishen (1907) 34 Cal. 372. This legal proposition was not disputed. For this reason also the decree of specific performance could not be questioned by the plaintiff.
39. However, learned counsel for the plaintiff relying on Municipal of Bhiwadi v. M/s. Kailash Sizing Works : [1975]2SCR123 has contended that where an authority acts in reckless disregard of consequences, its that action is mala fide and is not protected by Section 167 of the Bombay District Municipal Act. This case has no relevance. Section 11 is mandatory and a litigant claiming under one of the parties to the former suit can only avoid its provisions by taking advantage of Section 44 of the Evidence Act on the grounds of fraud and collusion. Negligence or even gross negligence and carelessness are different from fraud and collusion. The decision is not challenged on the ground of fraud and the plea of collusion is vague and lacking in particulars. Even otherwise, in the facts and circumstances it will be preposterous to say that there was fraud or collusion on the part of the defendants in the earlier suit. This contention has no merit.
40. In view of my above discussion, the preliminary issue is decided in the affirmative in favor of the defendant No. 1 and against the plaintiff. The suit of the plaintiff is wholly misconceived and the same is hereby dismissed with costs.