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CASE NO.: Appeal (civil)  1449 of 2007

PETITIONER: SUBHASH MAHADEVASA HABIB

RESPONDENT: NEMASA AMBASA DHARMADAS (D)BY LRS. & ORS

DATE OF JUDGMENT: 19/03/2007

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (Arising out of SLP(C) No. 4274-4275 of 2003) With C.A. No. 1450 /2007 [@ S.L.P. (C) No. 4352 of 2003]

P.K. BALASUBRAMANYAN, J.

               Leave granted. 1.              The first of the Civil Appeals challenges the decree  of the High Court of Karnakata in R.S.A. Nos. 472 and 435 of  1998, both arising out of O.S. No. 67 of 1975.  The second  challenges the decree in R.S.A. No. 865 of 2000, arising out of  O.S. No. 800 of 1992.  Both the suits were for redemption and  the decrees passed therein are questioned in these appeals by  the common plaintiff in them. 2.              Three items of properties situated in Hubli City in  the State of Karnataka are the subject matters of these two  suits.   Whereas in the first suit O.S. No. 67 of 1975, we are  concerned with C.T.S. No. 1015/A/20 having an extent of  29.38 square yards, in O.S. No. 800 of 1992 we are concerned  with C.T.S. No. 1015/A/19 having an extent of 14.7 square  yards and 1028/2A having an extent of 75 square yards.  As  seen recited in a deed of partition dated 14.2.1961 entered  into by three brothers belonging to a Hindu Mitakshara  Family, the said items along with other items belonged to their  joint family.  But there is considerable dispute about the  antecedents of the properties or the title to the properties.  In  that partition, the above items were allotted to Chandappa  Balappa Sangam, original defendant No. 2, in these suits.   He  along with his two minor sons who are defendant Nos. 3 and 4  executed a mortgage in respect of all the three items on  12.8.1963 in favour of Dharmadas, defendant No.1 in the suit.   This was followed by a deed of further charge dated 28.8.1963.   Subsequently, on 10.6.1964, defendant No. 2 acting for  himself and as the guardian of his minor sons, defendant Nos.  3 and 4, executed a simple mortgage in respect of the  properties to one Hemadi, a moneylender.  The document  recites that a sum of Rs. 2500/- was taken as a loan for his  trade.  It may be noted that the deed of partition recites that  the family was conducting a joint trade in firewood.  On  15.10.1970, defendant No. 2, on his own, sold the properties,  rather, the equity of redemption, to Habib, the plaintiff in  these suits for redemption.  The sale deed recites that the  properties were outstanding on three mortgages and the sale  was being effected for family necessity and to pay off debts and  to create capital for business. The best price had been offered  by the purchaser.  It purports to convey the entire rights in the  property.  It also contains an assertion that the seller,  defendant No. 2, was the absolute owner of the properties,  having a marketable title.  The mortgage to defendant No. 1

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and further charge are referred to as encumbrances on the  properties.   

3.              It is seen that the wife and sons of defendant No.2  filed O.S. No. 61 of 1971 arraying Habib, the assignee from  defendant No.2, and defendant No.2 as defendants, for a  declaration that the sale deed executed by defendant No.2 in  favour of Habib was bogus and not binding on the plaintiffs or  in the alternative, for a declaration that the sale did not affect  their shares in the properties and was not binding on their  shares and for a decree for permanent injunction restraining  Habib from taking possession of the suit properties.   4.              It was pleaded in the plaint that: "Defendant No. 2 was the manager of the joint  Hindu family consisting of himself and the  plaintiffs.  The joint family owned and  possessed and enjoyed the suit properties.  It  has now transpired that without the  knowledge of the plaintiffs, the second  defendant, on 15/10/1970 sold the suit  properties with the interest of the plaintiffs  therein to the first defendant purporting to be  for a sum of Rs. 10,000/-.  The plaintiffs and  defendant No.2 being coparceners each have  1/4th share in the suit properties, which have  been alienated by the second defendant  without legal necessity and without  considerations of family benefit.  Perusal of the  recitals of the sale deed showed it to be one  without consideration, ’bogus’ and having been  brought about by fraud, misrepresentation and  undue influence.  The sale consideration  shown in the document is also too inadequate.   The plaintiffs on becoming aware of the  impugned transaction, issued a legal notice to  the first defendant, and thereafter instituted  this suit, the cause of action for which arose  on 15/10/1970."

5.              In the written statement, Habib who was defendant  No.1 therein, spoke of the prior mortgages in favour of others  and of the mortgage in favour of Hemadi being executed by  defendant No.2 on his own behalf as well as on behalf of his  minor sons and the mortgage transactions being entered into  by defendant No.2 for family necessity and family benefit.   Defendant No.2 found himself in a position where he had no  alternative to selling the properties for clearing off his debts.   Hence he offered to sell the suit properties to Habib with the  object of paying off the earlier mortgages.  Habib agreed to  purchase.  Subsequent to the purchase Habib had paid off the  amounts due to Hemadi and had obtained a release from his  heirs.  The transaction he had entered into was a bona fide  one.  The suit had been under-valued.  There was no cause of  action as against him.  Defendant No. 2, who was defendant  No.2 in that suit as well, contended that the properties were  joint family properties.   He further pleaded that the earlier  mortgages were binding on the plaintiffs and there was  pressure on the estate justifying a further borrowing and he  had borrowed a sum of Rs. 10,000/-.  The document writer  had induced him to execute the sale deed impugned therein  making him believe that it was a deed of mortgage to secure a  borrowing and the repayment of Rs.10,000/-.  Thus, a fraud  had been played on him in getting a sale deed executed.  He  alone was not competent to enter into a transaction in respect  of the properties.

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6.              The trial court framed issues on whether the suit  deed was got executed by exercise of fraud, undue influence  and misrepresentation, whether the plaintiffs proved that the  sale deed was not binding on them, did defendant No.1 Habib  prove that the sale was for payment of antecedents debts and  legal necessity and was effected after due enquiry and binding  against the plaintiffs, whether the suit was valued properly for  the purpose of court fee and whether Habib proved that the  alleged sale transaction was for legal necessity or for benefit of  the estate and that it is binding on the plaintiffs.   7.              The court heard the issue of valuation as a  preliminary issue.  It held that the suit had been under- valued.  The plaintiffs were directed to pay additional court  fee.  The deficit court fees was made up by the plaintiffs.   Thereafter, after trial, it found that the plaintiffs had not  pleaded properly a case of fraud, misrepresentation and undue  influence and even otherwise there was no adequate or  acceptable evidence to find that the suit transaction was  vitiated by fraud, misrepresentation or undue influence.  The  evidence on record was elaborately considered.  The court then  found that the plaintiffs have not proved that the sale deed  executed by defendant No.2 was not binding on them.  While  arriving at that finding, the court held that it had to first  decide the nature of the property notwithstanding the dearth  of pleadings on the side of the Habib on that aspect. The court  held that the suit properties were admittedly in the ownership  of the mother of the second defendant and the same having  been inherited by defendant No.2 from a female ancestor, the  properties were his separate properties.  The law on the  subject was discussed by the court while arriving at that  finding.  The court also held that there was no material on the  basis of which it could hold that there was a blending of the  properties by defendant No.2 on the basis of which the joint  family character of the properties could be found.  The court  then proceeded to consider the question whether the  alienation was binding on the plaintiffs on the basis or on the  assumption that the suit properties were the joint family  properties of the plaintiffs and defendant No.2.  The court held  that even if the properties were treated to be joint family  properties, the alienation by defendant No.2 was within the  limits of the powers vested in him as the Karta of an Undivided  Hindu Family and consequently, the sale deed executed by  him was sustainable both in law and on facts. It was binding  on the joint family.  The plaintiffs could not successfully  challenge the same.  Thus, the trial court upheld the whole  title conveyed to Habib, defendant No.1 therein, by defendant  No.2, the father.  The suit was thus dismissed on 18.2.1974. 8.              An appeal, R.A. 191 of 1991 was filed from the said  judgment and decree by the plaintiffs in that suit.  Defendant  No. 2, his wife and his sons then purported to sell their rights  in the property to defendant No.6 by deed dated 9.1.1975.  It  recited the factum of the earlier sale to Habib and asserted  that it was only intended to be a mortgage.  The filing of O.S.  No. 61 of 1971 and its dismissal was recited and the filing of  an appeal against that decree was also recited.  The filing of  O.S. No. 4 of 1972 was also recited.  The purchaser, defendant  No.6 was asked to get himself impleaded in both and to  pursue the litigation and get cancelled that sale deed.   Defendant No. 6 did not choose to get himself impleaded in the  appeal or in the suit O.S. No. 4 of 1972.  The appeal R.A. 191  of 1991 was dismissed as not pressed on 9.7.1976.  Thus, the  decree in O.S. No. 61 of 1971 became final as against the wife  and sons of defendant No.2 and their assignee to the extent of  their alleged rights or shares in the properties.

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9.              The consequence was that the challenge of the wife  and sons of defendant No.2 on behalf of the family to the  alienation effected in favour of Habib by defendant No.2 failed.   The title of the family was thus held to have passed to Habib,  treating the property conveyed to be joint family property.   This decision was rendered in favour of Habib, the assignee, in  the presence of the father, defendant No.2 therein, as well. On  the day defendant No.2, his wife and sons sold their alleged  rights to defendant No.6 herein, the joint family or defendant  No.2, his wife and sons had nothing to convey since the decree  in O.S. No. 61 of 1971 stood confirmed, the appeal against it  having been dismissed, subject of course to any relief being  granted to defendant No.2 in the suit OS 4 of 1972, he had  himself filed, challenging the sale.   

10.             Even while O.S. No. 61 of 1971 was pending,  defendant No.2 who executed the sale deed, had himself filed  O.S. No. 4 of 1972 challenging the sale in favour of Habib.   Among other issues, two issues were raised therein as to  whether the court in which O.S. No. 61 of 1971 was filed by  the wife and sons of defendant No.2 (the plaintiff in O.S. No. 4  of 1972) had pecuniary jurisdiction to try O.S. No. 61 of 1971  and whether the suit O.S. No. 4 of 1972 was not maintainable  in view of the filing of O.S. No. 61 of 1971 in the Munsif court  by the wife and sons of the plaintiff in O.S. No. 4 of 1972.   Neither the wife of defendant No.2 nor his sons were parties to  the suit.  The court even though it dismissed the suit, held  that O.S. No. 61 of 1971 which had by that time been  dismissed by the Munsiff’s court, was filed in a court having  no pecuniary jurisdiction to entertain that suit and therefore  the decree in O.S. No. 61 of 1971 was one without jurisdiction.   Hence the decision therein would not operate as res judicata  and estoppel by record in the suit filed by the father (the  present defendant No.2).  On a finding that no vitiating  circumstance to invalidate the sale is established, the trial  court dismissed the suit.  An appeal R.A. No. 16 of 1981 filed  by the plaintiff in that suit (the present defendant No.2),  challenging the dismissal of his suit, was dismissed and a  second appeal taken as R.S.A. No. 92 of 1985 was also  dismissed.  What requires to be emphasised is that Habib was  a party both to O.S. No. 61 of 1971 and to O.S. No. 4 of 1972.   In fact, the suits were directed against him.  In the first suit  filed by the wife and children, the sale in his favour was  upheld both on the basis of the sale being supported by  necessity and benefit to the joint family of defendant No.2 and  his sons and as being one within the competence of defendant  No.2 as the Karta of the joint family and also on the basis that  the property was the separate property of defendant No.2 and  the sale was not vitiated.  In the latter suit, the sale was  upheld on the finding that defendant No.2, the plaintiff  therein, had failed to establish any element to vitiate or  invalidate the sale.  While doing so and dismissing the suit  filed by defendant No.2, the court held that the decree in O.S.  No. 61 of 1971 was passed by a court having no pecuniary  jurisdiction and hence the decree therein would not operate as  res judicata.  It was also cursorily held that the properties  belonged to the joint family of defendant No.2.  It has to be  noted that both Habib, the present plaintiff and the present  defendant No.2 were co-defendants, being defendants 1 and 2  in O.S. No. 61 of 1971 and they were respectively the plaintiff  and the defendant in O.S. No. 4 of 1972.   

11.             As noticed earlier, defendant No.2, his wife and  defendants 3 and 4, his sons, purported to sell their rights to

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defendant No.6 in O.S. No. 67 of 1975 (He is defendant No.11  in O.S. No. 800 of 1992).  Now Habib, on the basis of the  assignment from defendant No.2, filed the suit O.S. No. 67 of  1975 for redemption of the mortgage in favour of defendant  No.1 Dharmadas.  On the ground that the deed of mortgage  was not produced, the suit was confined to only one item, the  extent in  C.T.S. No. 1015/A/20, on the basis of an admission  of a subsisting mortgage in the written statement. Habib  therefore filed a second suit O.S. No. 800 of 1992 for  redemption of the other two items C.T.S.Nos. 1015/A/19 and  1028/2A-1.   In both the suits, the assignee from defendant  No.2, his wife and sons was impleaded as a defendant;  defendant No. 6 in O.S. No. 67 of 1975 and defendant No.11 in  O.S. No. 800 of 1992.

12.             In O.S. No. 67 of 1975, the parties joined issue on  whether the properties belonged to defendant No.2 or they  were the joint family properties of defendants 2, 3 and 4,  defendant Nos. 3 and 4 being sons of defendant No.2.  Issues  were also framed on the finality of the findings in O.S. No. 61  of 1971 and on the effect of the decision in O.S. No. 4 of 1972.   The plea of the res judicata loomed large.  The trial court held  that the finding on the nature of the property in O.S. No. 61 of  1971 and the decree therein cannot be ignored as a nullity  and that the finding in O.S. No. 4 of 1972 does not bar the  court from deciding the issue of the title to the properties.   No  evidence was adduced by defendants 2 to 4 to establish that  the properties were their joint family properties.  None of them  even went to the box to speak to such a case.  Only defendant  No.6 attempted to produce evidence in that regard. After  discussing the evidence, that court decreed O.S. No. 67 of  1975 for redemption of the item involved therein, finding that  the property was the separate property of defendant No.2.  It  therefore fully upheld the sale to plaintiff \026 Habib, of the equity  of redemption and held that Habib was entitled to redeem the  mortgage.  

13.             Defendant No. 1, the mortgagee, and defendant No.  6, the assignee from defendants 2, 3 and 4 of their purported  rights, filed R.A. No. 104 of 1992 challenging the decree of the  trial court.  The lower appellate court held that the judgment  and decree in O.S. No. 61 of 1971 was passed by a competent  court having pecuniary jurisdiction.  It also noticed that the  findings in O.S. No. 61 of 1971 were not set aside by any  court.  Proceeding to discuss the merits, the appellate court  held that the finding in O.S. No. 4 of 1972 being that the  properties were the properties of the joint family of defendant  No.2, the said finding having become final, it had to be held  that the properties were properties of the joint family.  On  discussing the evidence, that court ended up by holding that  defendant No.2 had only a 1/4th share in the properties and  hence his assignment to Habib, the plaintiff conferred on  Habib only a 1/4th interest in the equity of redemption.  It did  not specifically advert to or deal with the consequence of the  finality of the decree in OS 4 of 1972. It rejected the case of  defendants 1 and 6 that the mortgage already stood redeemed.   The appellate court modified the decree of the trial court and  passed a preliminary decree for redemption by permitting the  plaintiff to redeem the suit property only to the extent of 1/4th  share.  

14.             Challenging this decree of the lower appellate court,  both sides filed second appeals in the High Court.  The  plaintiff \026 Habib, filed R.S.A. No. 472 of 1998 and defendants 1  and 6 filed R.S.A. No. 435 of 1998. Habib questioned the

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finding that he was entitled to redeem only 1/4th share.   Defendants 1 and 6 questioned the rejection of their plea that  the mortgage already stood redeemed.  The High Court agreed  with the approach and conclusion of the lower appellate court  and confirming the decision of the lower appellate court,  dismissed both the second appeals.  The decision in these  second appeals is challenged in the Civil Appeal arising from  the Special Leave Petition (Civil) Nos. 4274-4275 of 2003.    Defendants 1 and 6 have not appealed against it.   

15.             O.S. No. 800 of 1992 was filed by Habib, also the  plaintiff in the earlier suit, for redemption of items 2 and 3  comprised in the mortgage and the sale in his favour.   Defendant No. 1 and defendant No. 11, the assignee  (defendants 1 and 6 in the earlier suit) were the main  contesting defendants.   In the said suit, issues were raised on  whether the suit was barred by res judicata and whether the  suit properties were self-acquired properties of defendant No.2,  the assignor of the equity of redemption to the plaintiff.  The  case of defendant No. 11 on res judicata was based on the  decision in O.S. No. 67 of 1975.  The plaintiff \026 Habib,  obviously relied on the findings in O.S. No. 61 of 1971.  The  trial court accepted the argument that successive suits for  redemption was maintainable so long as the right to redeem  subsisted.  It held that the suit was not barred by res judicata.   It may be noted that the plea of res judicata was emphasised,  based more on O.S. No. 67 of 1975 relating to item No. 1 and  the refusal of the court therein to give relief in respect of the  other two items that were also the subject matter of the  mortgage and were involved in O.S. No. 800 of 1992.    Whatever it be, the ultimate finding was that the suit was not  barred by res judicata.  Proceeding from there, the trial court,  on a consideration of the evidence, came to the conclusion  that the suit properties were the separate properties of  defendant No.2 and in the light of the repulsion of the  challenge to the alienation made by defendant No.2 both in  O.S. No. 61 of 1971 and in O.S. No. 4 of 1972, the plaintiff was  entitled to redeem the suit properties.  A preliminary decree for  redemption was therefore passed.  Defendants 1 and 11 went  up in appeal by way of R.A. No. 107 of 1998.  The appellate  court agreed with the findings of the trial court both on the  plea of res judicata and on the nature of the properties in the  hands of defendant No.2 and decreed that in the place of the  preliminary decree passed by the trial court, a final decree  itself be drawn up in the light of the findings entered.  This  decree was challenged in R.S.A. No. 685 of 2000.  A  memorandum of cross-objections was also filed.  The second  appellate court held that the decree in O.S. No. 61 of 1971  filed by the wife and sons of defendant No.2 and which was  dismissed, had no effect in view of the decision in O.S. No. 4 of  1972 and proceeded to reverse the decree of the first appellate  court on the basis that the decision in O.S. No. 4 of 1972 that  the properties belonged to the joint family and the wife and  sons of defendant No.2 had shares therein was final.  It hence  modified the decree by holding that the plaintiff was entitled to  redeem and recover only 1/4th share in the plaint scheduled  properties.  This decree is challenged by the plaintiff in the  Civil Appeal arising from S.L.P. (C) No. 4352 of 2003.

16.             Thus, the finding of the High Court in both the suits  for redemption ultimately is that the plaintiff, the assignee  from defendant No.2 of the equity of redemption is entitled to  redeem and recover only a 1/4th share in the three items of  properties that were subjected to mortgage based on its  understanding of the effect of the decrees in O.S. No. 61 of

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1971 and O.S. No. 4 of 1972 and proceeding on the basis that  only the share of defendant No.2 had been conveyed to the  plaintiff.  The common plaintiff in the two suits challenges  these decrees of the High Court in these appeals.  

17.             It is argued on behalf of Habib, the plaintiff \026 appellant, that the decree in O.S. No. 61 of 1971 repulsing the  challenge by the wife and sons of defendant No.2 to the sale  effected by defendant No.2 and upholding it, had become final  and would operate as res judicata as against defendants 2,  2(a), 3 and 4 and that neither they nor defendant No. 6 as  their assignee, could be heard to contend that the sale of the  equity of redemption in his favour is invalid or that it does not  convey to him the entire rights in the property.  Any challenge  to the sale in his favour was barred by res judicata.   Defendant No. 6 had derived no rights by the sale in his  favour.  On the other hand, it is contended on behalf of  defendants 1 and 6 that in the latter suit O.S. No. 4 of 1972 to  which both Habib and defendant No.2 were parties, it was  clearly held that the earlier decree in O.S. No. 61 of 1971 in  which both of them were co-defendants, was a decree passed  by a court having no pecuniary jurisdiction to entertain the  suit and that the decree therein would not operate as res  judicata or preclude them from setting up the title of the wife  and sons of defendant No.2 in the property.  Thus, whereas  Habib claimed that the entire equity of redemption had come  to him, defendants 1 and 6 pleaded that what Habib had was  only a 1/4th share in the equity of redemption as having been  conveyed to him by defendant No.2 and he could not therefore  lay claim to the shares of the wife and sons of defendant No.2  and the finding in O.S. No. 4 of 1972 that the properties were  joint family properties would operate as res judicata.  The  share of the wife and sons of defendant No.2 had come to  defendant No.6.  The alternate contention on behalf of Habib is  that even as the owner of a fraction of equity of redemption, he  could redeem the whole of the mortgage and the mortgagee  could not resist such a redemption.  The answer to this is that  even though that might be correct as far as the mortgage is  concerned, in view of the fact that defendant No. 6 had  acquired shares in the equity of redemption and he had also  been impleaded in the suit and the mortgage was being  redeemed, it was only possible to grant the plaintiff \026 Habib a  decree for redemption and recovery of possession of 1/4th  share in the properties, the other 3/4th share going to  defendant No.6.  The questions for our decision arise out of  what is thus posed by learned counsel.

18.             Now that we have set out the facts and the history  of the litigations in some detail, it is not necessary to reiterate  the facts all over again.  Essentially, the questions are, what is  the effect of the decree in O.S. No. 61 of 1971 and whether it  would bar defendant No.6 from questioning the right of the  plaintiff under the assignment, in his favour, what is the  effect, if any, of the decree in O.S. No. 4 of 1972 and if it is  open to defendant No.6 to raise a claim based on the  assignment in his favour, and on the materials, whether the  properties mortgaged are the separate properties of defendant  No.2 or that of his joint family in which at least his sons are  entitled to shares capable of being conveyed to defendant No.6.   How the wife was entitled to a share therein has not been  explained or clearly indicated in the judgments even if the  properties are held to be the joint family properties of  defendant No.2.  Even if the properties are held to be joint  family properties, whether the subsequent assignee, defendant  No.6 could claim any right against Habib, the prior assignee in

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the light of the dismissal of both O.S. No. 61 of 1971 and O.S.  No. 4 of 1972.   

19.             O.S. No. 61 of 1971 was filed by the wife and sons  of defendant No.2 challenging the alienation of the equity of  redemption made by defendant No.2 in favour of the present  plaintiff.  Though the father had sold the properties on his  own, the wife and sons of defendant No.2 challenged the sale  as conveying the entire rights of the joint family, obviously  because defendant No.2 was the Karta of the joint family and  he had purported to sell it for family necessity.  In that suit,  which was filed in the Munsiff’s court, the basis of the claim to  relief was that the properties obtained by defendant No.2 in  the partition with his brothers was coparcenary properties in  his hands in which his sons would have a share.  The whole  challenge to the alienation by the father was based on such a  claim.  It was therefore essential for the court trying that suit  to decide the nature of the property in the hands of defendant  No.2.  The court, on a consideration of the materials produced  therein, came to the conclusion that the properties were not  shown to be coparcenary properties in the hands of defendant  No.2.  The Court also considered the alternate case based on  the premise that the properties belonged to the joint family  and the question whether the sale by the Karta was binding on  the joint family.  On the basis of the facts established and the  findings, the court found the alienation valid and binding on  the wife and sons as it was supported by necessity and was  within the power of defendant No.2 as the Karta of the joint  family. The suit was thus dismissed upholding the alienation  to Habib.  In the normal course, such an adjudication would  be final and binding on the wife and sons of defendant No.2  and their assignee.  In addition, the assignee had also notice  of the sale to Habib and of the suit and the appeal therefrom.   It would also be binding on defendant No.2 to the extent he  supported the case of the plaintiffs in that suit.   The appeal  filed against the decree not having been pursued, that decree  became final.

20.             Then came O.S. No. 4 of 1972.  We must emphasize  that this suit was filed by defendant No.2 himself challenging  the alienation effected by him.  His wife and sons were not  parties to that suit.  The assignee did not get himself  impleaded and left it to defendant No.2 to protect his rights  also.  The plaintiff in the present suit was arrayed as the  defendant in that suit.  It may be noted that the plaintiff and  the defendant herein were co-defendants in O.S. No. 61 of  1971.  In the second suit, which was in the subordinate  Judge’s court, the court proceeded to enter a finding that O.S.  No. 61 of 1971 was tried and decided by a court which lacked  pecuniary jurisdiction.  It therefore proceeded to hold that the  decree in O.S. No. 61 of 1971 did not preclude it from deciding  the question whether the properties were the separate  properties of defendant No.2 (the plaintiff in that suit) or were  the properties of the joint family in his hands.  The court  proceeded to enter a finding that the properties were joint  family properties.   But even then, the suit was dismissed in  its entirety finding that the plaintiff therein, the father, had  not established any ground for setting aside the alienation  effected by him.    Though an Appeal and a Second Appeal  were filed, no relief could be obtained by defendant No.2.   Thus the alienation became unassailable at the instance of  defendant No.2 also, and consequently of his assignee as well.

21.             We find that what really emerges is the question  based on the finality of the decree in O.S. No. 61 of 1971 filed

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by the wife and sons of defendant No.2.  The consequence,  according to us, of that decree having become final, is that the  wife and sons of defendant No.2 lost whatever rights they had  to question the alienation effected by defendant No.2 or to  claim that their rights in the properties remained unaffected  by the alienation by the father.  In other words, they had  challenged the alienation effected by defendant No.2, the Karta  of the joint family on the basis that he had exceeded his  authority in effecting that sale and their suit has been  dismissed upholding the alienation both on the basis that it  could be supported as an alienation of his separate property  by defendant No.2 and also on the basis that the alienation  can be supported as one by the Karta of a joint family and  consequently binding on the joint family consisting of the  plaintiffs in that suit.   This meant that the court found that  the rights of the plaintiffs in that suit had also been conveyed  to Habib in terms of a valid assignment by the Karta of the  joint family.  By the sale, the family including the plaintiffs  had lost their rights.  The challenge to the decree was not  pursued and the decree attained finality.  They cannot get over  the effect of that decree by merely putting forward a claim in  the present suits that the property belonged to their joint  family and they have subsequently conveyed their rights to  defendant No.6.  It is worth re-stating that neither they, nor  their assignee were even parties to OS No.4 of 1972.

22.             Defendant No.2, the father and Habib, the plaintiff  therein were only co-defendants in O.S. No.61 of 1971.  Even  then, the decree therein could operate as res-judicata as  between them if the conditions therefor are satisfied.  The  conditions as laid down by this Court are: (i) there must be a  conflict of interest between the defendants concerned; (ii) it  must be necessary to decide the conflict in order to give the  plaintiff the relief he claims; (iii) the co-defendants must be  necessary or proper parties to the suit and; (iv) the question  between the defendants must have been finally decided inter  se between them  (see for instance Iftikhar Ahmed and  others vs.  Syed Meharban Ali and others [(1974) 3 SCR 464]  and Mahboob Sahab vs. Syed Ismail and ors. [(1995) 2 SCR  975]  There was a conflict of interest between Defendant No.2,  the father and Habib since the father was supporting the  plaintiff and was questioning the sale deed and Habib,  defendant No.1 therein, was resisting the claim and  supporting the sale transaction.   It was necessary to decide  the conflict in that suit since the claim of the plaintiff therein  and the defence put up by Habib made it obligatory for the  court to decide the issue for the purpose of finding out  whether the plaintiffs therein were entitled to relief.    Defendant No.2 and Habib were necessary parties to the suit,  since the suit challenged the alienation made by defendant  No.2 to Habib, defendant No.1 therein.  The question was  clearly finally decided in that suit resulting in dismissal of the  suit as a consequence of the decision on the question of  validity of the sale effected by defendant No.2 to defendant  No.1.  Thus, when that decision attained finality it also  precluded defendant No.2 from seeking to challenge his sale to  Habib on the basis that the alienation was beyond his  competence as Karta of the joint family or on the basis that  the sale was not binding on the joint family or on the basis  that the rights of the family had not been validly conveyed to  Habib.

23.              As we have seen, O.S. No. 4 of 1972 was filed by  defendant No.2 himself questioning the alienation on the  ground that it was vitiated by fraud, coercion and undue

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influence.  In a sense, it is seen that his plea was that he was  under the impression, when he executed the sale deed, that he  was executing a document to secure repayment of a loan of  Rs.10,000/- which he had taken from Habib.  He had not  intended to execute a sale deed.  The document writer had  played a  fraud on him.  He was in a sense pleading a case of  non-est factum [See Saunders vs. Anglia Building Society,  (1971) A.C. 1004 for instance].  The court negatived his claim  and dismissed that suit.  No doubt, the court also rendered  findings on other issues.  But the result was that the challenge  of defendant No.2 to that alienation also failed.  It is not  claimed before us that the right of defendant No.2 have come  to defendant No.6 by virtue of defendant No.2 joining the sale  by his wife and sons in favour of defendant No.6.  It is  conceded that the rights of defendant No.2 have gone to  Habib.  The decree for redemption granted to Habib based on  the assignment to him of the share of defendant No.2 was not  questioned by defendant No.2 even before the High Court.    Therefore, strictly nothing turns upon the so-called findings in  O.S. No. 4 of 1972 because there is no case for defendant No.6  that he had acquired the rights of defendant No.2 by virtue of  the subsequent sale in his favour.  Thus, we are reduced to a  situation where the rights, both of the wife and sons of  defendant No.2 and that of defendant No.2, to question the  sale in favour of Habib, the plaintiff, stood concluded against  them by the respective decrees.  Really, the question is not  whether the issue regarding the nature of the property  separate or joint family should be taken to be concluded by  the first decision or the second decision.  That is only a  secondary aspect.  

24.             What is relevant in this context is the legal effect of  the so-called finding in O.S. No. 4 of 1972 that the decree in  O.S. No. 61 of 1971 was passed by a court which had no  pecuniary jurisdiction to pass that decree.  The Code of Civil  Procedure has made a distinction between lack of inherent  jurisdiction and objection to territorial jurisdiction and  pecuniary jurisdiction.  Whereas, an inherent lack of  jurisdiction may make a decree passed by that court one  without jurisdiction or void in law, a decree passed by a court  lacking territorial jurisdiction or pecuniary jurisdiction does  not automatically become void. At best it is voidable in the  sense that it could be challenged in appeal therefrom provided  the conditions of Section 21 of the Code of Civil Procedure are  satisfied.   It may be noted that Section 21 provided that no  objection as to place the suing can be allowed by even an  appellate or revisional court unless such objection was taken  in the court of first instance at the earliest possible  opportunity and unless there has been a consequent failure of  justice.  In 1976, the existing Section was numbered as sub- Section (1) and sub-Section (2) was added relating to  pecuniary jurisdiction by providing that no objection as to  competence of a court with reference to the pecuniary limits of  its jurisdiction shall be allowed by any appellate or revisional  court unless such objection had been taken in the first  instance at the earliest possible opportunity and unless there  had been a consequent failure of justice.  Section 21A also was  introduced in 1976 with effect from 1.2.1977 creating a bar to  the institution of any suit challenging the validity of a decree  passed in a former suit between the same parties on any  ground based on an objection as to the place of suing.  The  amendment by Act 104 of 1976 came into force only on  1.2.1977 when O.S. No. 4 of 1972 was pending.  By virtue of  Section 97(1)(c) of the Amendment Act, 1976, the said suit had  to be tried and disposed of as if Section 21 of the Code had not

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been amended by adding sub-Section (2) thereof.  Of course,  by virtue of Section 97(3) if Section 21A had to be applied, if it  has application.  But then, Section 21A on its wording covers  only what it calls a defect as to place of suing.

25.             Though Section 21A of the Code speaks of a suit not  being maintainable for challenging the validity of a prior  decree between the same parties on a ground based on an  objection as to "the place of suing", there is no reason to  restrict its operation only to an objection based on territorial  jurisdiction and excluding from its purview a defect based on  pecuniary jurisdiction.  In the sense in which the expression  "place of suing" has been used in the Code it could be  understood as taking within it both territorial jurisdiction and  pecuniary jurisdiction.  Section 15 of the Code deals with  pecuniary jurisdiction and, Sections 15 to 20 of the Code deal  with ’place of suing’.  The heading ’place of suing’ covers  Section 15 also.  This Court in The Bahrein Petroleum Co.  Ltd. Vs. P.J. Pappu & Anr. [(1966) 1 S.C.R. 461] made no  distinction between Section 15 on the one hand and Sections  16 to 20 on the other, in the context of Section 21 of the Code.  Even otherwise, considering the interpretation placed by this  Court on Section 11 of the Suits Valuation Act and treating it  as equivalent in effect to Section 21 of the Code of Civil  Procedure, as it existed prior to the amendment in 1976, it is  possible to say, especially in the context of the amendment  brought about in Section 21 of the Code by Amendment Act  104 of 1976, that Section 21A was intended to cover a  challenge to a prior decree as regards lack of jurisdiction, both  territorial and pecuniary, with reference to the place of suing,  meaning thereby the court in which the suit was instituted.   As can be seen, the Amendment Act 104 of 1976 introduced  sub-Section (2) relating to pecuniary jurisdiction and put it on  a par with the objection to territorial jurisdiction and the  competence to raise an objection in that regard even in an  appeal from the very decree.   This was obviously done in the  light of the interpretation placed on Section 21 of the Code as  it existed and Section 11 of the Suits Valuation Act by this  Court in Kiran Singh & Ors. Vs. Chaman Paswan &  ors.[(1955) 1 S.C.R. 117] followed by Seth Hiralal Patni Vs.  Sri Kali Nath [(1962) 2 S.C.R. 747], and The Bahrein  Petroleum Co. Ltd. Vs. P.J. Pappu & Anr. (supra). Therefore,  there is no justification in understanding the expression  "objection as to place of suing’" occurring in Section 21A as  being confined to an objection only in the territorial sense and  not in the pecuniary sense.  Both could be understood,  especially in the context of the amendment to Section 21  brought about the Amendment Act, as objection to place of  suing.  It appears that when the Law Commission  recommended insertion of Section 21A into the Code, the  specific provision subsequently introduced in sub-Section (2)  of Section 21 relating to pecuniary jurisdiction was not there.   Therefore, when introducing sub-Section (2) of Section 21 by  the Amendment Act 104 of 1976, the wordings of Section 21A  as proposed by the Law Commission was not suitably altered  or made comprehensive.  Perhaps, it was not necessary in view  of the placing of Sections 15 to 20 in the Code and the  approach of this Court in Bahrein Petroleum Co. Ltd.  (supra).  But we see that an objection to territorial jurisdiction  and to pecuniary jurisdiction, is treated on a par by Section  21.  The placing of Sections 15 to 20 under the heading ’place  of suing’ also supports this position.  Taking note of the objec  of the amendment in the light of the law as expounded by this  Court, it would be in congruous to hold that Section 21A takes  in only an objection to territorial jurisdiction and not to

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pecuniary jurisdiction.  We are therefore inclined tohold that  in the suit O.S. No. 4 of 1972, the validity of the decree in O.S.  No. 61 of 1971 could not have been questioned based on  alleged lack of pecuniary jurisdiction.  Of course, the suit itself  was not for challenging the validity of the decree in O.S. No. 61  of 1971 and the question of the effect of the decree in O.S. No.  61 of 1971 only incidentally arose.  In a strict sense, therefore,  Section 21A of the Code may not ipso facto apply to the  situation.

26.             But the fact that Section 21(2) or Section 21A of the  Code may not apply would not make any difference in view of  the fact that the position was covered by the relevant provision  in the Suits Valuation Act.   Section 11 of the Suits Valuation  Act provided that notwithstanding anything contained in  Section 578 (Section 99 of the present Code covering errors or  irregularity) of the Code of Civil Procedure, an objection that a  court which had no jurisdiction over a suit had exercised it by  reason of under-valuation could not be entertained by an  appellate court unless the objection was taken in the court of  first instance at or before the hearing at which the issues were  first framed or the appellate court is satisfied for reasons to be  recorded in writing that the over-valuing or under-valuing of  the suit has prejudicially affected the disposal of the suit.   There was some confusion about the content of the Section.   The entire question was considered by this Court in Kiran  Singh (supra).  Since in the present case, the objection is  based on the valuation of the suit or the pecuniary  jurisdiction, we think it proper to refer to that part of the  judgment dealing with Section 11 of the Suits Valuation Act.   Their Lordships held: "It provides that objections to the  jurisdiction of a Court based on over- valuation or under-valuation shall not be  entertained by an appellate Court except in  the manner and to the extent mentioned in  the section. It is a self-contained provision  complete in itself, and no objection to  jurisdiction based on over-valuation or  under-valuation can be raised otherwise  than in accordance with it. With reference  to objections relating to territorial  jurisdiction, section 21 of the Civil  Procedure Code enacts that no objection to  the place of suing should be allowed by an  appellate or revisional Court, unless there  was a consequent failure of justice. It is the  same principle that has been adopted in  section 11 of the Suits Valuation Act with  reference to pecuniary jurisdiction. The  policy underlying sections 21 and 99 of the  Civil Procedure Code and section 11 of the  Suits Valuation Act is the same, namely,  that when a case had been tried by a Court  on the merits and judgment rendered, it  should not be liable to be reversed purely  on technical grounds, unless it had  resulted in failure of justice, and the policy  of the Legislature has been to treat  objections to jurisdiction both territorial  and pecuniary as technical and not open to  consideration by an appellate Court, unless  there has been a prejudice on the merits."

In Seth Hiralal Patni Vs. Sri Kali Nath (supra), it was held

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that: "It is well settled that the objection as to  local jurisdiction of a court does not stand  on the same footing as an objection to the  competence of a court to try a case.  Competence of a court to try a case goes to  the very root of the jurisdiction, and where it  is lacking, it is a case of inherent lack of  jurisdiction.  On the other hand, an objection  as to the local jurisdiction of a court can be  waived and this principle has been given a  statutory recognition by enactments like S. 21  of the Code of Civil Procedure."

In Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu & Anr.  (supra), it was held Section 21 is a statutory recognition of the  principle that the defect as to the place of suing under  Sections 15 to 20 of the Code may be waived and that even  independently of Section 21, a defendant may waive the  objection and may be subsequently precluded from taking it.

27.             In the light of the above, it is clear that no objection  to the pecuniary jurisdiction of the court which tried O.S. No.  61 of 1971 could be raised successfully even in an appeal  against that very decree unless it had been raised at the  earliest opportunity and a failure of justice or prejudice was  shown.  Obviously therefore, it could not be collaterally  challenged.  That too not by the plaintiffs therein, but by a  defendant whose alienation was unsuccessfully challenged by  the plaintiffs in that suit.  We may also notice that in O.S. No.  61 of 1971, an issue on the valuation and court fee paid was  raised and the court directed the plaintiffs therein to pay  additional court fee on adjudicating on that issue and the  plaintiffs complied with that direction.  In O.S. No. 4 of 1972,  in a suit to which the plaintiffs in O.S. No. 61 of 1971 or their  assignee was not a party, the court had no occasion to go into  the question of the decree in O.S. No. 61 of 1971 having been  passed by a court which lacked pecuniary jurisdiction.  Even  assuming that it had such a jurisdiction, it could not have  ignored the finality of that decree or the legal effect of it,  merely on a finding that the suit was under-valued in the light  of the ratio clearly laid down by this Court in the decision  referred to above.  Therefore, finding in O.S. No. 4 of 1972 that  the decree in O.S. No. 61 of 1971 could be ignored or the effect  of it swept under the carpet because the court which passed  that decree lacked pecuniary jurisdiction was clearly  unsustainable in law.  

28.             The question that really arose in O.S. No. 4 of 1972  was whether the sale deed executed by the plaintiff therein  (defendant No.2) to Habib was liable to be set aside as one  vitiated by fraud, coercion, misrepresentation or undue  influence.  On that question, the nature of the property \026  whether separate or joint family \026 had not that much  relevance.  The validity of the decree in O.S. No. 61 of 1971  was also not involved directly and substantially. So, a finding  that the decree in O.S. No. 61 of 1971 was passed by a court  not having pecuniary jurisdiction, could not be held to be  heard and finally decided.  Moreover, since O.S. No. 4 of 1972  was dismissed in its entirety in favour of Habib, the present  plaintiff, the finding on the question of the alleged lack of  pecuniary jurisdiction of the Court which passed the decree in  O.S. No. 61 of 1971 cannot be said to operate as res judicata  in any subsequent suit where the legal effect of the decree in  O.S. No. 61 of 1971 is in question.  In O.S. No. 4 of 1972, what

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was required to be decided was the question whether  defendant No.2 herein was entitled to get the sale deed  executed by him in favour of Habib declared invalid or  inoperative as a sale.  

29.             Actually, it was not relevant for that court to go into  that question in the sense that the plaintiff and the defendant  before it, were co-defendants in the earlier suit.  As co- defendants, no doubt, either of them would have been barred  by res judicata because of the finding on the issue whether the  alienation effect by defendant No.2 in favour of Habib, was  liable to be set aside or ignored at the instance of the members  of the joint family, since that was an issue that it was essential  to decide, for adjudicating on the rights put forward by the  plaintiffs in O.S. No. 61 of 1971.  As a consequence, the  finding would have been res judicata even between the co- defendants.  Moreover, defendant No.2 therein, the father was  obviously supporting the plaintiffs in O.S. No. 61 of 1971 in  their challenge to the alienation.  But the question then would  arise whether the court which passed the decree in O.S. No.  61 of 1971 was having jurisdiction to hear and decide finally  the second suit O.S. No. 4 of 1972 for lack of pecuniary  jurisdiction.   This is also an essential element in terms of  Section 11 of the Code of Civil Procedure.  Section 11, when it  is applied to two suits, has to be literally complied with and  one of the requirements of Section 11 of the Code is that the  court which passed the decree in the first suit, should have  jurisdiction to entertain the second suit in which the earlier  decree is put forward as res judicata.  For, Section11 provides  that no court shall try any suit between the same parties on  an issue which was directly and substantially in issue in a  former suit between the same parties in a court competent to  try such subsequent suit and the issue had been heard and  finally decided.  Therefore, in that sense, in O.S. No. 4 of 1972,  the decree in O.S. No. 61 of 1971 could not have operated as  res judicata.  

30.             But the question then is what is the effect of a  finding in O.S. No. 4 of 1972 that the properties belonged to  the joint family of defendant No.2.  Firstly, in spite of such a  finding that suit was wholly dismissed in favour of Habib.   Secondly, in view of the dismissal of in O.S. No. 61 of 1971,  and the rejecting of the challenge to the alienation by the  members of the joint family, such a finding made no difference  to the parties to the present litigation.  This is because the  court which decided O.S. No. 61 of 1971 had also held in one  of the issues that was framed that the sale of the properties by  defendant No.2 to Habib was binding on the joint family  consisting of the plaintiffs in O.S. No. 61 of 1971 and  defendant No.2 therein and the sale could not be set aside or  declared invalid even to the extent of the shares of the  plaintiffs in that suit on the materials available.  Therefore,  even if the finding in O.S. No. 4 of 1972 that the properties  belonged to the joint family is taken as having attained finality  that would not carry either the mortgagee or the subsequent  assignee, defendant No.6, far in this case, for the reason that  the alienation by defendant No.2 as Karta of the joint family  had also been upheld in O.S. No. 61 of 1971, it being clearly  held that the sale was supported by necessity and as being  one within the competence of the Karta of the joint family.  

31.             There is also another aspect.  O.S. No. 4 of 1972  was filed by defendant No.2 challenging the alienation made  by him.  Though a finding was entered that the properties  belonged to the joint family, the suit was dismissed wholly in

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favour of Habib, the defendant therein.  The finding was that  the alienation effected by defendant No.2 was perfectly valid.   That meant that the challenge of defendant No.2 to the  alienation had failed in its entirety.  In such circumstances, it  is highly doubtful whether a finding rendered against Habib,  the defendant, in a suit that was wholly dismissed in his  favour would operate as res judicata.  

32.             We think that on the facts of this case it is not  necessary to decide finally either whether the decree in O.S.  No. 4 of 1972 would operate as res judicata or about the  nature of the properties in the hands of defendant No.2.   Defendant No. 6 claims to be the assignee from defendant  No.2, his wife and his sons.  The assignment in his favour was  on 9.1.1975.  As far as the defendant No.2 was concerned, he  had sold whatever rights he had in the properties to the  plaintiff on 15.10.1970.  His challenge to the sale by him in  favour of the plaintiff had also been repelled.  Therefore, on  9.1.1975 when he is said to have conveyed the suit properties  in junction with his wife and sons to defendant No.6  (defendant No.11 in O.S. No. 800 of 1992), he had nothing to  convey to the assignee.  In other words, when he joined the  sale deed executed by his wife and sons in favour of defendant  No.6, defendant No.2 had no title to convey to defendant No.6,  he having already conveyed whatever rights he had to the  plaintiff.  The courts below in the present suits have also  upheld the sale by finding that the rights of defendant No.2  had gone to the plaintiff.   Defendant No. 6 has also  acquiesced in that decree.

33.             When defendant No.2 conveyed the properties to the  plaintiff, his wife and sons had filed O.S. No. 61 of 1971  challenging the alienation by defendant No.2.  They proceeded  on the basis that it was the sale of the properties of the joint  family.  Their challenge had been repelled by the decree in  O.S. No. 61 of 1971 passed on 18.2.1974.  They allowed that  decree to become final by not pursuing their appeal against  that decree.  They had asserted their title to the properties,  but relief was denied to them finding that they had no  subsisting right in the properties, their rights also having been  conveyed to Habib, the present plaintiff.  They had sued the  present plaintiff and defendant No.2, the executant of the  deed.  So, when on 9.1.1975 the wife and sons purported to  execute a sale deed in favour of defendant No. 6, on the basis  of the same, defendant No.6 could put forward no claim to the  properties at least as against Habib, the present plaintiff,  against whom O.S. No. 61 of 1971 had been filed by his  assignors.  The decree in O.S. No. 61 of 1971 would not only  bar the wife and sons of defendant No.2 from putting forward  any claim to the properties as against the present plaintiff, but  the said decree would also bar the subsequent assignee from  them from putting forward any claim over the properties.  In  other words, defendant No.6 cannot claim to have derived any  right over the properties by way of assignment either from  defendant No.2 or from the wife and sons of defendant No.2.   The decree in O.S. No. 4 of 1972 to which the wife and sons of  defendant No.2 were not parties could not alter this position.   The cause of action put in suit by the plaintiff in that suit  (defendant No.2 herein) was independent of any right of his  wife and sons.  A finding therein that the court while passing  the decree in O.S. No. 61 of 1971 had no pecuniary  jurisdiction to entertain that suit, cannot survive the dismissal  of O.S. No. 4 of 1972 itself.  On our part, we find no merit in  the plea that decree in O.S. No. 61 of 1971 is liable to be  ignored in the circumstances of the case.

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34.             When this is the position, there was no necessity for  the first appellate court or the High Court to go into the  question whether the property in the hands of defendant No.2  was held by him for and on behalf of the family consisting of  himself and his sons or it was held by him as his own.  There  is considerable doubt about the antecedents of the property  and the partition among defendant No.2 and his brothers  alone could not prove the character of the properties in the  hands of defendant No.2.  It depended on whether defendant  No.2 and his brothers inherited the properties through a  female ancestor or a male ancestor.  The suit for redemption  was filed by the plaintiff as against the mortgagee, defendant  No.1.  There is no valid defence put forward by the mortgagee  against the redemption of the mortgage.  In our view that  defendant No. 6 (defendant No.11 in the other suit) had not  derived any right in the properties either from defendant No.2  or from his wife and sons in view of the prior assignment by  defendant No.2 in favour of the plaintiff and by virtue of the  adjudication in O.S. No. 61 of 1971, it has to be held that  defendant No.6 as assignee, had no interest in the properties  sought to be redeemed and could not put forward any valid  defence to the suit for redemption filed by the plaintiff.  If so,  the decrees now passed by the High Court have to be found to  be unsustainable.  According to us, the High Court has asked  itself the wrong question.  It has not considered whether  defendant No.6 could claim to have derived any right over the  properties or in the equity of redemption on the basis of the  assignment in his favour.  Therefore, the decrees of the High  Court call for interference.   

35.             It is clear in the circumstances that the plaintiff is  entitled to a decree for redemption of the entire properties.   Defendant No. 6 (Defendant No. 11 in O.S. 800 of 1992) has  no right in the properties.  We see no reason to prolong this  proceeding by passing a preliminary decree to be followed by a  final decree.  The mortgage money in both the suits as payable  has been quantified.  Apparently, the amounts have been  deposited also.  We therefore grant the plaintiff decrees for  redemption in both the suits.  We pass a composite final  decree for redemption.  Defendant No.1, the mortgagee and  now his legal representatives shall execute a deed of  redemption or reconveyance as required under law in favour of  the plaintiff after receipt of the amounts due under the two  decrees as fixed by the trial court.  If the plaintiff has not  deposited the amounts, he will deposit the same within three  months from this date with notice to the mortgagee.  All  defendants in both the suits would jointly and severally vacate  the suit properties and shall hand over vacant possession of  the suit properties to the plaintiff within four months from the  date of this judgment.  If the defendants fail to do so, the  plaintiff would be entitled to recover the properties in  execution of this decree without any objection or obstruction  from them.  For the purposes of execution, the decree would  be treated as a composite decree.  We thus allow the appeals.   The parties would suffer their respective costs in the  circumstances of the case.