TMI Blog2000 (2) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17.12.73 did not accept the plea (before him, the plea was confined to the Rozas at Broach and Surat). He set aside the order and remanded the matter for inquiry. The said order of the Joint Commissioner was affirmed on 30.9.76 by the learned Assistant Judge in Misc. Civil Application No.32 of 1974 and by the Division Bench of the Gujarat High Court in First Appeal No.985 of 1976 on 27.7.85. As the preliminary objection was negatived, a direction was given to the Assistant Commissioner to dispose of the Inquiry No.142 of 1967 on merits. Aggrieved by the above-said orders, the appellant(who was respondent in the main Inquiry No.142/67) has filed this appeal and has raised the same plea of res judicata before us once again. In the present appeal, the plea of res judicata is confined to the Rozas at Broach and Surat. As the contention of res judicata raised by the appellant concerns three earlier proceedings, we shall have to refer to them. But we may also point out that in certain other proceedings relied upon by the respondents a view has already been taken that principle of res judicata does not apply. These other proceedings were those started in 1954 under section 19 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cousin of Prophet Muhamed. One of the descendants of the said Hazrat came down to India in 1542 A.D. and founded his Gadi at Ahmedabad, Broach and Surat. The members of the Edroos family were Sajjadanashins or Mutavallis of the wakf throughout. The three Rozas at the three places as well as the villages which were granted - not only for the maintenance of these Rozas but also for the benefit of the Waquif's family, - constituted the wakf. The holder was buried in the house and his Dargah is situated in this place. There is also a place for reciting prayers. In Sayed Abdul Edroos vs. Sayad Zain Sayad Hasan Edroos [ILR 13 Bom. 555], a Division Bench of the Bombay High Court, traced the history of the wakf and held that the custom of primogeniture did not apply to the office of Sajjadanishin or Mutavalli of this wakf. In the next litigation, in Saiyad Jaffar El Edroos vs. Jayad Mahomed El Edroos [ILR 39 Bom. 277], which is more important, another Division Bench held, after construing the royal grants relating to the villages Umrao and Orma that the grants were primarily for the Rozas and Dargas and they clearly constituted wakf but that the Sajjadanashin or Mutavalli had, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surplus. On this basis, the plaintiff's plea that the Sajjadanishin was misutilising the income was rejected by the District Judge and the judgment of the trial Judge dated 6.10.31 dismissing the suit filed under Section 92 of the Code of Civil Procedure was affirmed. This judgment of the learned District Judge is dated 21.11.38. The District Court in its judgment of 1931 had also framed Issue 9. The issue was as to whether the wakf was a private wakf or a public wakf and the learned Judge found that the wakf was a private wakf. He observed in para 15 of his judgment that from 1746 A.D. onwards, the Sajjadanishins were using the revenue of these villages for their own maintenance and that of the members of their families and other dependants and this was permissible according to the earlier judgment of the Bombay High Court in Saiyad Jaffar El Edroos Case (39 Bom.L.R.277). Always the Sajjadanishin was from the family and never a stranger or outsider. These facts, the learned District Judge held were sufficient to lead to the conclusion that the wakf was a `private' one. He observed that the documents in the case were also inconsistent with the wakf being a public one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceeding. There appears to be a common thread in the tests laid down in all these countries.* We shall therefore refer to these developments. See Holdsworth History of English Law 147-54 ( 1944); Millar - The Historical Relation of Estoppel by Record 35 Ill.L.Rev.41 ( 1940); Millar - res Judicata in Continental and Anglo American Law - 39 Mich. L.R.1(1940); Comparative Study ( 1940) Wisc L.R. 234; Development in Res Judicata 1952. 65 Harv. LR 818; Matters collaterally or incidentally in issue: It will be noticed that the words used in Section 11 CPC are directly and substantially in issue . If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only 'collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. As pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is answered satisfactorily, there is still another test to pass: viz. whether the determination is the 'immediate foundation' of the decision as opposed to merely a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion . It is well settled, say the above authors, that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision . American jurists and Courts have also found difficulty but they have tried to lay down some tests. It is conceded in Corpus Juris Secundum ( Vol.50, para 725) that it is sometimes difficult to determine when particular issue determined is of sufficient dignity to be covered by the rule of estoppel. It is said that estoppel by judgment does not extend to any matter which was only incidentally cognizable or which came collaterally in question, although it may have arisen in the case and have been judicially passed on (Per Taft,J. in North Carolina R Co.Vs. Story) (45 S.Ct.531 = 268 US 288). But this rule does not however prevent a judgment from constituting an estoppel with reference to incidenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision . The Privy Council and the Supreme Court had occasion to deal with these points. Three decisions,- two of the Privy Council and one decided by the Supreme Court -can be referred to in this context as illustrations of cases where in spite of an issue and a decision in an earlier case, the finding was treated as being only collaterally or incidentally in issue and not res judicata. In Run Bahadur Vs. Lucho Koer ( 1885) ILR 11 Cal 301 (PC) ( see Mulla p.107), A, a Hindu, died leaving a widow and a brother C.The widow sued B, the tenant for rent of certain property forming part of the estate of her husband. C, the husband's brother, claimed the rent on the ground that the property was joint family property and that he was entitled to the rent by survivorship. C was then joined as a defendant. Two issues were framed (1) whether the deceased alone received the whole rent of the property in his life time, or whether the rent was received by him jointly with his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwarlal Bhai ( AIR 1952 SC 143).There the question of res judicata arose at two stages of the same proceeding. The plaintiffs filed a suit under Section 92 CPC in 1928 for (i) a declaration that the properties under the management of the defendant were religious and charitable trust properties (ii) the defendant be removed from the Gadi from possession of the properties and a suitable successor be appointed, (iii) the defendant be called upon to account for his period of management and (iv) to frame a scheme for proper management of the institution. The defendant traversed the material allegations and pleaded that the suit was not maintainable inasmuch as no public trust existed and the properties were private properties of the defendant. On these pleadings, a number of issues were framed of which two were treated as preliminary issues (i) whether the temple and the properties in suit were public charitable properties? and (ii) if not, whether this Court has jurisdiction to try the suit? On the preliminary issues, the District Court gave a judgment on 18.7.1935 against the plaintiff and dismissed the suit. The High Court however held on 24.1.1938 that the charity was a public on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier case nor its foundation. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma Vs. Narayanan Nair ( 1994 (2) SCC 14), this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Uthiva Somasundareswarar Vs. Rajanga ( AIR 1965 Mad 355) held ( see para 8 therein) that the previous suit was only for injunction relating to the crops. May be, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it considered as 'pious' such as where provision was made for the benefit of the members of the settlor's family or of the Sajjadanashin and his family members, who were poor. Section 2(19) covered even a wakf such as the one described in Section 3 of the Mussalman Wakf Validating Act, 1913 under which any benefit was claimable by the founder, his family, children and descendants, - provided that the ultimate benefit in such cases expressly or impliedly was reserved for the poor or for any other purpose recognised by the Muslim Law as religious, pious or charitable purpose of a permanent character. Section 9 of the Bombay Act included charitable purposes also. The Gujarat High Court pointed out as follows: (p.296) It could never be argued after these provisions that the wakf is not a public trust on the ground that the entire surplus goes to the Sajjadanashin or Mutawalli or because the obligation was a pious obligation and not a legal obligation so that he could dispose of surplus in any manner he liked. This aspect cannot in any manner alter the public character of the public trust . We agree with the above observations of the Gujarat High Court. The 1931 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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