http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: AMRITSAGAR GUPTA & ORS.

       Vs.

RESPONDENT: SUDESH BEHARI LAL & ORS.

DATE OF JUDGMENT: 13/03/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1970 AIR    5            1969 SCR  (3)1002  1969 SCC  (1) 810

ACT: Code of Civil Procedure (Act 5 of 1908), s. 11-Res Judicata- Suit  against  manager of Joint Hindu  family-No  allegation that he was being so sued-Coparceners not parties-Decree  if operates as res judicata against coparceners.

HEADNOTE: A  suit between J the father of appellants and B the  father of  respondents,  each  claiming  possession  of  the   suit properties  on the strength of an alleged gift deed  in  his favour,  was  decreed  in favour of J  and  the  decree  was confirmed  by this Court.  After various attempts by  B  and after  his death by his sons, to defeat J’s rights,  one  of B’s  sons filed a suit for partition of the suit  properties on the allegation that they were gifted to the joint  family of which B was the karta. On  the  question  whether the decree in  the  earlier  suit operated as res judicata. HELD : It is not necessary in order that a decree against  a manager may operate as res judicata against coparceners  who were  not  parties to the earlier suit, that the  plaint  or written statement should state in express terms that he  was suing or was being sued as a manager,.  It is sufficient  if the  manager  was  in  fact suing  or  was  being  sued  as representing  the  whole family.  A suit by or  against  the manager  will be deemed to be one brought by or against  him as representing the family if the circumstances show that he was  the manager and the property involved in the  suit  was family property. [1004 H; 1005 A-B] In the present, case, B must be deemed to have been sued  in the previous suit as the karta of his family, because :  (a) the alleged gift in favour of the joint family was at a time when  all  the sons of B were minors and if  true  the  gift could  have been accepted by B only as the karta, (b)  there was no conflict of interest between B and his sons and there was  no  allegation that B did not  safeguard  the  family’s interest  while contesting the previous suit; and (c) B  did not  claim in the earlier suit that the gift was to  him  in his individual capacity. [1004 A-C; 1005 C] Lalchand v. Sheogovind, (1929) I.L.R. 8 Pat. 788, Ram Kishan

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

v.  Ganga  Ram,  (1931) I.L.R. 12  Lah.  428,  Prithipal  v. Rameshwar,  (1927)  I.L.R.  2  Luck.  288,  Surendranath  v. Sambhunath, (1928) I.L.R. 55 Cal. 210, Mulgaund Co-operative Credit  Society  v. Shidlingappa Ishwarappa,  I.L.R.  [1941] Bom. 682, Venkatanarayana v. Somaraju, A.I.R. 1937 Mad.  610 (F.B)  and  Mani  Sahoo v. Lokanath, A.I.R.  1950  Or.  140, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 349 of 1966. Appeal  by special leave from the judgment and  order  dated December 17, 1963 of the Punjab High Court,.  Circuit  Bench at Delhi in R.F.A. No. 164-C of 1963. 1003 S.   V.  Gupte and A. N.  Goyal, for the appellants. C.   B.  Agarwala,  H.  K.  Puri  and  B.  N.  Kirpal,   for respondent No.  1. The Judgment of the Court was delivered by Hegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which  this appeal  has arisen is barred by res judicata in view of  the decision  in  Civil Suit No. 15 of 1943.   The  trial  court answered that question in the affirmative but the High Court has taken a contrary view.  Hence this appeal. The  facts  of the case leading up to this  appeal,  briefly stated, are as follows : One  Krishen  Gopal had lease-hold rights in the  suit  pro- perties.   After  the death of the aforesaid  Krishen  Gopal dispute  arose  between Jawala Prashad, the  father  of  the appellants  and  Banwari  Lal  Verma,  the  father  of   the respondents  as to the title of the suit  properties.   Each one of them claimed that those properties had been gifted to him  by Krishen Gopal.  As a result of this  dispute  Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943  against Banwari Lal Verma claiming possession  of  the suit  properties on the strength of the alleged gift in  his favour.   In  defence Banwari Lal Verma pleaded  that  those properties  had  been gifted to him by Krishen  Gopal.   The principal  issue  that arose for decision in that  suit  was whether  the  suit  properties had  been  gifted  to  Jawala Prashad or Banwari Lal Verma.  The trial court dismissed the suit  but  in  appeal  the decree of  the  trial  court  was reversed  and  the  suit was decreed as  prayed  for.   That decision  was confirmed by the High Court and thereafter  by this  Court  in, Civil Appeal No. 164 of  1953.   After  the decision  of  this  Court Banwari  Lal  Verma  made  various applications to this Court asking for reliefs which if  they had  been  granted,  would have  practically  nullified  the effect of the decree but those applications were rejected by this Court.  Thereafter efforts appear to have been made  to obstruct the execution of the decree in diverse ways.   When everyone of those efforts failed Rangi Lal Verma the  eldest son  of  Banwari  Lal  Verma filed  a  suit  praying  for  a declaration that the suit properties belonged to his  joint. family  consisting of Banwari Lal Verma and his sons.   This suit   was  dismissed  for  non-prosecution.   It  is   only thereafter  the present suit has, been filed by one  of  the sons  of Banwari Lal , Verma claiming partition in the  suit properties  on the allegation that the same had been  gifted by, Krishen, Gopal to. his joint family. 1004 The  gift put forward by the plaintiff is said to have  been made  in  1928.   Admittedly at that time all  the  sons  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Banwari  Lal Verma were minors (see the affidavit  filed  in this  Court  by  Rangi Lal on behalf of  the  plaintiff,  on February  26,  1969 Therefore, naturally the gift,  if  true could  have been accepted only by Banwari Lal Verma who  was the  Karta  of the family at that time.  It.  was  not  even urged that Banwari Lal Verma did not safeguard the  interest of  his family while contesting the previous suit.   Further it  is  not the case of the respondents that there  was  any conflict of interest between Banwari Lal Verma and his sons. The  facts disclosed make it obvious that Banwari Lal  Verma and  after  his death his sons are  availing  themselves  of every possible loophole in our judicial system to delay,  if not  defeat the course of justice.  The effort is  one,  and continuous.  The suit from which this appeal has arisen is a clear abuse of judicial process.  It is in this setting that we have to see whether the decision in Civil Suit No. 15  of 1943 operates as res judicata in the present case. In the Civil Suit No. 15 of 1943, there was no room for con- troversy  as  to whether the alleged gift was in  favour  of Banwari  Lal  Verma  in his individual capacity  or  in  his favour as the Karta of his family.  Therein the  controversy was  whether the suit properties had been gifted  to  Jawala Prashad  or Banwari Lal Verma.  As seen earlier Banwari  La] Verma  pleaded that they had been gifted in his favour.   He did not make it clear nor was it necessary for him to do  so in  that suit as to whether they were gifted to him  as  the Karta  of  the family or in his  individual  capacity.   The properties  that were in dispute in the former suit as  well as in the present suit are identical properties.  It  cannot be  disputed  that Banwari Lal Verma by himself  could  have represented  his  family in that suit.  That  suit  must  be deemed to have been instituted against Banwari Lal Verma  in that capacity in which he claimed title to it.  If his claim in  that suit is understood to have been made on  behalf  of his family then he must be deemed to have been sued  therein as the Karta of his family.  It was for Banwari Lal Verma to make clear the capacity in which he was defending the  suit. That  being so we fail to appreciate the conclusion  of  the High  Court that the decision in the previous suit does  not operate as res judicata in the present suit. It  is  not necessary, in order that a  decree  against  the manager may operate as res-judicata against coparceners  who were  not  parties to the suit that the  plaint  or  written statement should state in express terms that he is suing  as manager or is being sued as a manager.  It is sufficient  if the manager was in fact suing or being sued as  representing the whole family, see Lalchand v. 1005 Sheogovind(1);  Ram  Kishan v. Ganga  Ram(2);  Prithipal  V. Rameshwar(3); Surendranath v. Sambhunath(4). The  suit  by or against the manager will deemed to  be  one brought by him or against him as representing the family  if the circumstances of the case show that he is the manager of the  family and the property involved in the suit is  family property,  see  Mulgaund  Co-operative  Credit  Society   v. Shidlingappa  Ishwarappa(5).   See also  Venkakanarayana  v. Somaraju(6).  It is not not necessary, where the manager  is the  plaintiff,  that the plaint should  state  in  distinct terms  that  he  is  suing as manager or  where  he  is  the defendant  that  he is being sued as manager.  A  Karta  can represent the family effectively in proceeding though he  is not named as such, see Mani Sahoo v. Lokanath(7). For  the reasons mentioned above this appeal is allowed  and the  judgment and decree of the High Court is set aside  and that of the trial court restored.  The respondent shall  pay

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

the costs of the appellants in all the courts. V.P.S.                                      Appeal allowed. (1)  (1929) I.L.R.8, Pat. 788. (2)  (1931) I.L.R. 12, Lab. 428. (3)  (1927) I.L.R. 2, Luck. 288. (4)  (1928) I.L.R. 55, Cal. 210. (5)  [1941] I.L.R. Bom. 682. (6)  A.I.R. 1937 Mad, 610 (F.B.), (7) A.I.R. 1950 Or. 140. 1006