TMI Blog2005 (4) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. 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. Thus, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintenance 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. 3. 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. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 superseded by the later judgment in V. Tulasamma's case (supra). 8. 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 ? 9. Learned counsel appearing for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. 11. 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. From the above principles laid down by this Court, it is clear that if the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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