TMI Blog1952 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ill giving authority to his widow Mati Dassi to adopt a son and appointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties. Raj Ballav was one of those persons who believe 0in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them. How his wishes have been respected by his descendants is now a matter of history. Since the year 1890 this is the eighth or ninth litigation concerning the construction of the testament he made that fateful ay, and if by any means Raj Ballav could be informed of the result of these litigations and was told that it had been held that he had died intestate, he would surely rise out of the ashes and lodge an emphatic protest against what has happened. Raj Ballav died the 10th June, 1870, leaving him surviving his widow Mati Dassi and three grandsons, who were sons of a predeceased daughter by another wife and one of whom died in 1880 unmarried. The grandsons line will be referred to in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one-fourth share of the estate and claimed only a three-fourth share for herself as the widow of Jogendra. The Sens claimed the whole estate for themselves as the heirs of Raj Ballav. They pleaded that the will was not genuine and that even if it was genuine, the bequests in favour of the adopted son and for the worship of the deity were invalid and that even if they were valid, Jogendra having died before attaining the age of 20 years had taken nothing under the will. During the pendency of this suit, the 25th September, 1903, the Sens mortgaged the whole sixteen annas of the estate to one Shib Krishna Das in order to secure a loan of ₹ 7,000. The mortgagee and his representatives in interest will be described in this judgment as the Dasses. Amulya s appeal against the judgment of the trial court dated 5th January, 1903, was decided in 1905, during the pendency of Katyayani s suit No. 1 1 of 1903 instituted the 13th January, 1903, and after the Dasses as mortgagees had entered into possession. the 26th September, 1905, after the decision of the High Court in Amulya s suit, Katyayani applied for an amendment of the plaint so as to include a claim for the whole estate in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thshare of the estate both under the compromise decree and the will. (Bajlakshmi Dassee v. Katyayani Dassee((1911) I.L.R 38 Cal. 639). In the year 1919, two cross suits were commenced by the grandsons and by Katyayani and Rajlakshmi for recovery of the twelve annas share and the four annas share respectively in the possession of the respective parties. Katyayani brought suit No. 115 of 1919 for recovery of the four anna share against the Sens and the Dasses, while the Sens brought suit No. 112 of 1919 for recovery of the twelve annas share of the estate against Katyayani and Rajlakshmi. Both these suits were dismissed by the trial judge and his decision was affirmed appeal 21st July, 1925. Before the commencement of this suit, the Dasses had brought a suit the foot of their mortgage and had obtained a mortgage decree which was made final 23rd November, 1918. The property described as 2, Deb Lane, Calcutta, forming part of Raj Ballav s estate and which had been allotted under the compromise to the share of the Sens was notified by a declaration under the Land Acquisition Act for acquisition the 16th January, 1921. the 27th April, 1928, Ajit Nath Das, mortgagee, made an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 as receiver but that her title and possession were subject to the rights of the defendants-respondents 3 to 13 (Dasses) to proceed against the properties in execution of their mortgage decree the basis that these properties were in the possession of and dealt with by defendantsrespondents 1 and 2 as representing the four anna share of the estate to which they had title. An enquiry was also ordered as to the amount of the mesne profits. The appeal was dismissed as against respondents 3 to 13, the Dasses. The correctness of this decision has been impugned before us in these appeals by the respective parties to the extent that it goes against them. In order to appreciate the contentions raised in the two appeals it is necessary to determine the true scope and effect of the decision of the Privy Council in the land acquisition case of 1928 (Rajlakshmi v. Bholanath Sen) ((1938) 65 I.A. 365.). The premises acquired in those proceedings admittedly formed Part of the estate of Raj Ballav Seal, which under the compromise decree of 1907 had by partition fallen to the four anna share allotted to the Sens. There was a triangular contest about the award of the compensation and a joint awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and to leave the decree of the Subordinate Judge, dated December 21, 1905, which has been already quoted, as final and binding. This decree declaring Katyayani s title to the whole estate, was clearly a decree in Katyayani s favour as representing the whole interests in the estate, and it has rightly been so regarded by both the courts below in the present case; and it formed res judicata in any I question with the Sens. As regards possession of the estate, while the decree made an order for recovery of possession, the possession given under the partition of 1907 continued, the Sens being in possession of the four annas. It seems clear that possession under an agreement which was not binding the reversionary heirs could not avail the Sens in a question with a reversionary heir, whose right to possess could not arise until the succession opened to such heir. The above is a clear determination of the question of title between the Sens and Rajlakshmi in regard to the four anna share. It was argued behalf of the Sens before the Privy Council that in any case the decision in suit No. 115 of 1919instituted by Katyayani against the Sens and their mortgagees for recovery of the four ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard in Hook v. Administrator-General of Bengal((1921) 48 I.A. 187) that the principle which prevents the same matter being twice litigated is of general application, and is not limited by the specific words of the Code in this respect. In Bhagwati v. Bam Kali((1939) 66 I.A. 145.) an issue was decided in favour of B in a land acquisition proceeding that she was entitled to the whole of the compensation money. In a subsequent suit by another widow, who was also a claimant in the land acquisit ion proceedings, for a declaration that she was entitled to a half share in the estate inherited by herhusband and his brothers, it was held that her suit was barred by the rule of res judicata, the District Judge having in the previous proceeding decided that she had no title to the land. In that case part of the property in dispute was, acquired under the Land Acquisition Act and the Collector by his award apportioned the compensation between the widows in equal shares. Both the widows raised the question of title to the compensation. The objections were referred under the Act to the District Judge and the District Judge the issue as to whether Bhagwati was entitled to the entire compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he doctrine of res judicata which does not create or destroy title but is only a rule of estoppel, With great respect it seems to us that the, conclusion reached as regards the mortgagees is neither illuminating nor sound. The anomalous result arrived at is account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent -in the doctrine of res judicata. The learned Judges posed certain questions and then attempted to answer them in view of the limited provisions of section 11, Civil Procedure Code, which in terms apply only to suits, forgetting for the moment, if we may say so with respect, that the doctrine of res judicata is based general principles of jurisprudence. The questions were: (1) Did the judgment of the Privy Council in the 1928 land acquisition proceedings decide any question as to the right of the mortgagees to hold from the Sens a mortgage of the four anna share, or their right to prove the title of their mortgagors in a question between themselves and the reversioners to Jogendra s estate ? (2) Could the mortgagees have raised these questions in the land acquisition proceedings and even if they could have, are the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terested in the property acquired they asked for a reference and gotit. They were represented by counsel before the land acquisition court and got a decision the question of title as to the four anna share of the estate of the late Raj Ballav in favourofthemortgagorsandthemselves. They were impleaded as parties in the appeal preferred by Rajlakshmi to the High Court and before that court also they were represented by counsel and were successful in defending that appeal. They were again impleaded as parties by Rajlakshmi in the appeal preferred by her to the Privy Council. They took active part in the proceedings for leave to appeal and in having the papers prepared for the use of the Privy Council. As a matter of fact, they paid part of the printing cost. Their non-appearance before the Privy Council at the time of hearing cannot thus relieve them of the consequence of an adverse decision given against them by, the Privy Council. They had every, right in those proceedings to defend the title of their, mortgagors to the four anna share and they fully exercised their right except that at the last stage, possibly having won in the two courts below, they assumed that the decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave dismissed the mortgagees claim the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money. It would have been more accurate if it was said that the land acquisition court having held the title of the Sens proved to the premises acquired, presumed that the compensation money to which the Sons were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common cause against Rajlakshmi. The High Court further observed that the mortgagees were bound by the decision of the Privy Council so far as it goes against them. We are not able to see to which part of the decision this remark relates. The only decision that the Privy Council gave was the question of the title of the Sens. The award of compensation to Rajlakshmi was a mere consequence of it, and if the Sens had no title in the four anna share of Raj Ballav s estate, the mortgagees obviously can have no lien any part of the property included in that share. The strangest part of the judgment of the High Court is when it says that the right of the Dasses to prove the title of the Sens against the plaintiff was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta is founded general principles of law, that plea can only prevail provided the subject-matter in the two cases is identical. It was conceded that such contention could not be sustained under the provisions of section 11 of the Code. In our opinion this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati v. Bam Kali(1), cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. It was then argued by Mr. Ghose that the judge who decided the apportionment issue in the land acquisition proceedings of 1928 was a special judge appointed under the Land Acquisition Act and not being a District Judge, the two decisions of the Privy Council., i.e., Bamachandra Bao v. Bam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it was said that if a Writ is issued for a small claim, the defendant may well think it is better to let judgment ,go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendat precluded from contesting the later case. These observations have no apposite. application to the circumstances of the present case where the judgments of the first two courts were given after full contest and then a party defaulted in appearing before the Privy Council after having obtained judgment in his favour in the courts below. A now point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court. The point was that the present suit of Rajlakshmi was barred by section 47, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no cause of action against the Sens to eject them as they were not in possession. the other hand, the trustees were holding the property his behalf. The pleas of limitation and adverse possession were abandoned by the Sens a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possession of the Sens during the lifetime of Katyayani could not confer any title them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise the death of Katyayani. For the reasons given above we hold that the appeal (No. 111 of 1951) preferred behalf of the Sens has no merits and must fail. It is accordingly dismissed with costs. The appeal preferred by Rajlakshmi against the mortgagees (No. 110 of 1951) is allowed with costs in all the courts and her title to the property in suit and for possession of the f same is decreed and it is directed that the defendants do deliver Possession of the suit properties to the plaintiff. It is further declared that the plaintiff is entitled to mesne profits from the defendants. An enquiry will be made as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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