GANGAPPA GURUPADAPPA GUGWAD GULBARGA versus RACHAWWA, WIDOW OF LOCHANAPPA GUGWAD & ORS.

.GANGAPPA GURUPAJJAPPA GUGWAD GULBARGA

RACHAWWA, WIDOW OF LOCHANAPPA GUGWAD & ORS.

October 23, 1970

[G. K. MITTER AND A. N. RAY, JJ.]

Res Judicata-/ssue l'e/ating to plaintiff's l'ight to "" fou11d agaim·t plaintiff-Other issues l'egarding merits· of .case also decided against him -Decision irrespect of such other issues whether operates as res judicata ·--Whether only obiter.

R wanted 10 adopt L as his son but did not actually do so. In accord-ance with R's will executed in 1919 L inherited R's property a'fter his death. 111 1935 the appellant herein instituted suit against L and the trustees appointed under R's will. It was the appellant's claim that the will was supplemented by codicil (this referred to lette~ written by R to L some time after the execution of the will). Under these documents, according to him, L inherited only life-estate. He alleged that L was mismanaging the property and prayed for an injunction directing the trustees to take over management of the properties. The Subordinate Judge framed four issues to the effect ( 1) whether the appellant was entitled to sue, (2) whether L inherited only life-interest, (3) whether L bad mis-managed the property and ( 4) whether an injunction as prayed should be issued to the trustees. The Subordinate Judge held that L had inherited. not life-estate but full ownership, and that the appellant had only contingent right in the property depending on L dying without male issue, so that it was not possible to grant to the appellant the declaraion be prayed for. L adopted son in 1951, and died in 1957. After bis. deilth the appellant filed another suit against L's widow, C. the· adopted son and the surviving trustee. This suit was also based on the claim that L bad inherited only life-estate under R's will and codicil, The contest-inf defendants raised the plea of res /udicaif; based on the decision in the suit of 1935. 1be plea of res judicata was rejected by the trial court but r accepted by the High Court. In appeal before this Court it was ur4ed on liehalf elf the appellant that the trial court in the suit ·Of 1935 havmg held the suit to be premature and thus decided the preliminary issue against the appellant, its decision on the other issues was only obiter and could not operate as res judicata.

HELD : The appeal must fail.

There was no questior. of the trial of any preliminary issue in the suit of, 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to finding thereon. The nature of the right acquired by L under the will of the testator was directly in question and the subordinate judge went elaborately into it to take the view that L had become absomtely entitled to the properties le'ft by the testator. The obseNation referred to in the concluding portion of the Judgment. of the Subordinate Judge is not to be taken as the decision on preliminary issue so as to render the finding on the other issues mere obiter lmd surplusage. [698 G-699 A]

If the final decision in any matter at issue between the parties ts based by court on its decisions on more than one point-<!acb of which by itself

would be sufficient . for the ultimate decision-the decision on each of these points would operate as resjudica between the pa~ties. The question as to the nature of the estate taken by L unde~ the will ~n~ the dooumcnt called codicil to the will df the testat0r havmg been in issue in the suit of 1935 and the Court having been decided that L had obtained an absolute estate to the property, this decision would bind the appellant in any suhscqucnt litigation such as the present, in which the claim was basc<l on the will and cod cil. !699 B-C)

Slu111kar/11/ v. Hi,.11/11/. A.l.R. 1950 P.C. 80. explained end distinguished.

Vitlud Yt•shwant Jathar v. Shikandark/t(,11 M11khr11111-kha11 [196J] 2 S.C.R. 285. 290, applied.

Sarde.~al,

CIVIL APPELLATE JURISDICTION : Civil Appeal No. l 732 of 1966. .

·Appeal from the Judgment and decree dated June 20, 1966 of tthe Mysore High Court in Regular Appeal No. 97 of 1959. .

M. C. Chag/a, P. N. Tiwari, J. B. Dadachanji, O.C. Mathur and Ravinder Narain for the appellant.

A. K. Sen, S.S. Javali and M. 'veerappa, for respondents Nos. 1 and 2.

The Judgmcrrt of the Court was delivered by

MIUcr, J, One Rudrappu Murigoppu Gugwud died Jcuving will dut~d Februury 2, l 919. It is claimed by lhc uppol!ant !hut he al~o left u codicil dated August 10. 1919. After re-citing in clause · 1 of the will that he had brought up Lochan-appa Gugwud. son of Trappu Sidlingappa Gugwud. and that though he had wished to take the said Lochanappa in adoption but hud not been able to do so up till then and even if the adop-tion ceremony did not take place in the future, Lochanappa alone would be the owner of his properties h'e proceeded to state in clause 2 of his will that : ·

"Even though I have hereby transferred the owner-ship of my immovable and movable properties to Lochnnappa Irappa Gugwad, Lochanappa should act under the supervision of the trustees, namely, Ling-appa Sanganabasappa Tyapi and Gurulingappa Gan-gappa Gugwad. If both the trustees find that my property will fall out of use on account of Lochan-appa's taking to bad ways. both the trustees should take possessioo of the property and safeguard it by appointing my extremely faithful clerks Veerabhadr-appa Mallappa Suligavi and Basappa Murangapp·a

Tuppadd. If Lochanappa gets male issue, the pro-perty should be in the possession of both the trustees till that son attains majority."

In clause 3 he laid down that :

"In case Lochanappa Irappa dies withoJt leaving male issue, I fully authorise the said trustees to trans-fer the ownership lJf the movable and immovable property of my family to the son of Gurupadappa Gangappa Gugwad, resident of Bijapur, and to deliver the entire property into his possession."

The original will was deposited with the Collector. After having executed the will the testator appeared to have proceeded to Benares and from there adressed letter to J,ochanappa lrappa Gugwad on 10th August, 1919. By that he directed some money to be advanced to Gurubasappa Bassappa Gugwad to start him on business and commended the welfare of the said Gurubasappa to the care of Lochanappa adding : "The main thing is that you shoutd pay full atten-tion to him. T have mentioned in the will that in case male children are not born to you, you should take in adoption iri your own name any of the sons of G.urupadappa Gangappa .Gugwad of Bijapur and that if you die without taking in adoption, they alone will be the owner of the movable and immovable properties. But two sons are born to him. As earlv as possible, that is to say, when one boy becomes five years old or .after my death you should execute thi~ work of adoption and you should mention that the property should go to him after your death."

The last statement appe~rs to be incorrect inasmuch as the testa-tor had not by his will directed Lochanappa to make such an adoption.

Probate of the will was duly taken and Lochanappa entered into possession of all the properties left by the testator. Accord-ing to the judgment of the High Court appealed from, the letter was not formal document as codicil should be, nor was it referred to in the probate proceedings. In the year 1935 Gangappa Gurupadappa Gugwad, the appellant herein, filed suit in the court of the First Class Subordinate Judge at Bija· pur against Lochanappa and the said two trustees for decla-ration that Lochanappa had only life interest in respect of the properties described in the schedule to the plaint as per the

will and codicil executed by the testator, that certain improvi· dent transactions put through by Lochanappa in contravention of the directions given in the will were not binding on the plain-tiff or the properties left by the deceased and that the said Lochanappa having acted contrary to the directions given in the will and codicil and having mismanaged the said properties an ;njunctio.n should be issued. against the trustees directing them to give Lochanappa only maintenance in terms of the will.

The Subordinate Judge who heard the s'uit framed several issues of which the important ones were as follows :

( 1) Whether the plaintiff is entitled to sue ?

(2) Whether Lochanappa, defendant No. 1 got only limited interest in the estate of the testator. Rudrappa Gugwad, under the will ?

( 3) Whether acts of mismanagement by Lochanappa contrary to the directions of the will had been proved?

( 4) Whether an injunction could be .validly given to the trustees to take over the management from Lochanappa · and give him only maintenance ?

Before the Subordinate Judge evidence both oral and document· ary were let in. He construed th!l will to arrive at the finding that Lochanappa had been made the malik or owner of the pro-perties covered by the will and that it was the will of the test· ator which recited that the estate given to Locbanappa was to be heritable. With regard to the further directions given in the will, he came to the conclus.ion that "Lochanappa having been made an owner under the will further expression of such inten-tion cannot be properly all.owed to control or qualify that owner-ship." As regards the direction in the letter styled codicil advising Lochanappa to take one of the sons of Gurupadappa Gangappa Gugwad in adoption, he held that ~

"In fact, there is no such d.irection in the original will. Even assuming that it is so, <111Iy means that Gurupaddappa's sons are to be the owners in case Lo-chanappa dies without male issue and without adopting one of the sons of Gurupadappa; Lochanappa ii. still alive and it is yet to be seen whether he adopts· plaintiff or not or whether son will be born to him or not. Plaintiff has at the most contingent right and >.o vested interest, and therefore it is question whether he is entitled to simple declaration."

The suit out of which this appeal arises was filed by Gangappa Gugwad after the death of Lochanappa in 1957 against the

widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his son in the year 1951 and Gurlingappa Gungappa Gugwad, the surviving trustee under the will of Rudrappa pleading inter alia that "Rudrappa did not confer an absolute estate on Lochanappa in respect of his property, that the bequest made in his favour conferred upon him only restricted life estate and that even assuming Lochanappa was an absolute owner he was entitled to it only duri111g his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and codicil." The plain-tiff appellant went on to add that it was incumbent on Locha111appa to adopt him alone and none else and any adoption in contra-c vention of the direction in the will of Rudrappa Murigappa Gugwad was invalid and even assuming that the said direction was not mandatory, defendant No. 2 could not acquire the status of son begoiten by Lochanappa so as to claim any interest in the property of the d.eceased testator. The suit was contested by tl;le widow and the adopted son, defendant No. 2 who plead-D ed the bar of res 1udicata on the strength of the judgment in the suit of 1935. The Subordinate Judge held against the defen-dent on that issue. He also found that the appellant was tb.e rightful heir to the properties of the deceased testator under the will and codicil of Rudrappa after the death of Lochanappa.The High Court examined the will and the letter described as codicil over again and came to the conclusion that the letter described as codicil was only an informal communication from one relation to another, that the testator had only vague re-collection of the contents of the will at the time of writing the letter fro!ll Benaras and that the order in the probate pro-¢eedings did not refer to the letter. On the basis of the will the High Court held that Lochanappa was an absolute owner of the property. The High Court further held that the decree in the suit of 1935 operated as res judicata in the sul>~equent suit. Referring to the first two issues framed in suit of 1935 the High Court held that there was clear finding in the judg-ment !n that suit that the appellant had obtained no interest uncrer the will of Rudrappa and therefore he was not entitled to sue. ·

Before us learned counsel for the appellant cGntended that in spite of the observations made by the learned Subordinate Judge in the judgment ln the suit of 1935 about Lochanapp'a ri~~ under the will. and the document styled as codicil, the dec1s1on on the first issue went to show that the appellant's suit wa~ premature and a~ such it was not necessary for the Sub-ord!nate Judge to go mto the other question and his findings on issues other than the first should be treated as obiter.

In support of the above conte?tion coun.se~ for the appellant relied on the decision of the Pnvy Council m Shankarlal v. Hira/a/(1). The head note in that case to which our attention was drawn reading.

"Court holding that suit is not maintainable by reason of failure to comply with s. 80-Findings given on merits are obiter a>nd do sot support plea of res judicata either in favour of or against party"

seems to be misleading inasmuch a~ the judgment of the Board does not bear out the above proposition of Jaw. At best the head note only records finding by an appellate Bench of the Calcutta High Court which the Board by its own judgment did not expressly reject or uphold.

The appeal to the Privy Council arose out of. suit filed by one Mangtulal Bagaria for royalties due under lease of collieries by one Popat v.~Jji Rajdeo of which the said Mangtulal was appointed manager by the court. The defendants were the lessees under the lease or their representatives and were respondents in the appeal to the Board There the defence of the lessees was that the lease had been surrendered in July 1933. The plain· tiffs challenged the surrender and also pleaded that the point was covered by res judicata. Ameer Ali, J., before whom the suit came on for hearing on the original side of the Calcutta High Court framed several issues in two groups. The first issue . in Group related to plea of res judicata. The second issue in that .2roup raised question whether there was any defence apart from surrender. Group raised questions as· to the fact ~nd validity of the alleged surrender. The plea of res judicata was b,sed on judgment of the Subordinate Judge of Dhanbad wherein the lessees had sued Mangtulal and some others for declaration that the lease had been validly surrendered in 1933. The Subordinate Judge held that the suit did not lie inasmuch as notice had not bee-n served on Mangtulal under s. 80 Civil Procedure Cod~. He however supported to decide other issues in the suit including one as to the sufficiency of the surrender. An apne.al from the decree of the Subordinate Judge was taken to the High Court at Patna but was ·withdrawn against Mangtulal and the brother of the lessor and consent decree was obtained ag~inst the two widows upholding the surreinder. Ameer Ali. J. went into the question of res judicata as preliminary issue and expressed the view :

)I) Al .R. 1950 P. C. 30.

"that the decision of the Dhanbad Court had decided the same issue which had to be decided in his · own court and between the same persons and parties."

In appeal from his judgment the learned Judges held that

Inasmuch as the Subordinate Judge in the Dhan-B bad suit had held that the suit did not lie by reason of the failure to comply with s. 30, Civil P .C., he was bQund to dismiss the suit under Or. 7 R. l 1 of the Code and the findings of the Court on the merits were obiter and could not support plea of res j11dicata."

They held further that Ameer Ali, J. had decided nothing but the issue of res 111dicata. Accordingly they allowed the appeal and remanded the case to the court of first instance for trial of issues other than issue l. The judgment of the Judicial Committee shows that before the Board it was conceded on behalf of the appellant that the appellate court was right in the view which it took as to the effect of the Dhanbad decree. Th~ Board proceeded to observe :

"Their Lordships have no doubt that the decision

in the Dhanbad suit could not support plea of 1·es judicata on the merits, either in favour of or against Mangtulal."

The Board rejected the contention of the appellant that Ameer

Ali, J. had decided not only the issue of res judicata but also that the alleged surrender of the lease was invalid. According to the Board the judgment of Ameer Ali, J. was to some extent obsecure and thtre ·>ere passages in it which suggested that he thought the surt'ellide1 invalid but "it was clear that .he did not purport to decide anything beyond the issue of res judicata" and he .expressly stated that h.~ was not deciding the issues iu the second group. Accordingly the Board saw no· rea!'"•n to differ from the view of the appellate Judges that the issues as to ~ur­render were not decided by the trial Judoe and did not feel inclined to interfere with the direct( on giv~n ·by the appellate court ri;garding the remand of the trial of the issues in the court of first mstance.

On the strength of the dictum of the appellate Bench of the Calcut.t~ Hi~h Court forming part of the headnote to the ab~ve dec1s10n ti wa~. contended before us that once the Sub-ord~nate Judge of B11.apur recorded finding on the first i~sue a~amst the appellant m ~he suit of 1935 his construction of the w!II ~nd the effect thereot were obiter and they .. would not be bmdmg o~ t~e appellant in the second suit. This was sought to be fort1fiea by the observations in the concluding portion of

the judgment in the suit of 1935 which we have quoted above that the plaintiff had at the most contingent right .and no ves!-ed interest. It was argued that the learned Subon;lmate Judge s view that the suit was premature was sufficient to dispose of the case before him without his going into th.e other questions and the issues raised.

No doubt it would be open to· :.court not to decide all the issues which may arise on the pleadin~s before it if it finds that the plaint on the face of it is barred by af).y law. If for instance the plaintiff's cause of action is against G<wemment and the ·plaint does not show that notice under section 80 of the Code of Civil Procedure claiming relief was served in terms of the said section, it would be the duty of the court to reject the plaint recording an order to that effect with reason for the order. In such case the court should not embark upon trial of all the issues involved and such rejection would not preclude the plain-. tiff from presenting fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by s. 80 of the Code is being .claimed, it would be the duty of the court to go into al! the issues· which may arise on the pleadings including the question as to whether nptice under s. 80 was .necessary. If th<\ court decides the various . issues raised on the pleadings, it is difficult to see why the ad-judication of the rights of the parties, apart from the question as to the applicability of s. 80 of the Code and absence of notke thereunder should not operate as res judicata in subsequent suit where the identical questions arise for determination between ~ame parties.

111 eur view the High Court was right in deciding the issue as to r:es judicata against the appellant. The High Court rightly point-ed out that the Subordinate Judge had in clear terms decided that the i.ppellant had obtained no interest under the. will of Rudrappa and therefore he was not entitled to sue. The Subordinate Judge had further' held that the estate obtained by Lochanappa under the will was an absolute estate.

With respec;t; we concur with the view expressed by the High Court. . There was no•question of the trial of any ·preliminary issue iri the Suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to finding thereon. Th~ nature of the right acquired by Lochan-apjJa under the will of the testator was directly in question and the Subordinate Judge went elaborately into it to take the view that Lochanappa had become absolutely entitled to the properties ·left by the testator. The observation referred to in the concluding portion of the judgment of the Subordinate Judge is not to be taken

as the decision on preliminary issue so as to render the finding . on the other issues mere obiter or surplusage.

In our view the High Court rightly relied on the observations-of this Court illl Vitha/ Yeshwant Jathar v. Shikandarkhan Makh-tum-khan Sardesai ('[1]) that if the final decision in any matter· at issue between the parties is based by court on its decisions on more than one point-each of which by it~elf would be sufficient for the ultimate d.ecision-the decision on each of these points. operates as res iudicata between the parties. The question as to the nature of the estate taken by Lochanappa under the will and the document called codicil to the will of the testator, Rudrappa hav-ing been in issue in the suit of 1935 and it having been decided that Lochanappa had obtained an absolute estate to the property, the decision would bind the appellant in 31Ily subsequent litigation to which the claim is based on the will and codicil. We accord-ingly dismiss the appeal on the ground that the decision in the suit of 1935 was bar to the trial of the second suit of 1957 The respondent will be entitled to costs throughout.

Appeal dismissed.