23 October 1970
Supreme Court


Case number: Appeal (civil) 1732 of 1966






DATE OF JUDGMENT: 23/10/1970


CITATION:  1971 AIR  442            1971 SCR  (2) 691  1970 SCC  (3) 716

ACT: Res Judicata-Issue relating to plaintiffs right to sue found against plaintiff-Other issues regarding merits of case also decided against him Decision irrespect of such other issues whether operates as res judicata Whether only obiter.

HEADNOTE: R  wanted to adopt L as his son but did not actually do  so. In accordance with R’s will executed in 1919 L inherited R’s property  after  his death.  In 1935  the  appellant  herein instituted a suit against L and the trustees appointed under R’s  will.  It was the appellant’s claim that the  will  was supplemented by a codicil (this referred to a letter written by R to L some time after the execution of the will).  Under these documents, according to him, L inherited only a  life- estate.  He alleged that L was mismanaging the property  and prayed for an injunction directing the trustees to take over management of the properties.  The Subordinate Judge  framed four  issues  to the affect (1) whether  the  appellant  was entitled  to  sue,  (2) whether L  inherited  only  a  life- interest, (3) whether L had mismanaged the property and  (4) whether  an  injunction as prayed should be  issued  to  the trustees.   The Subordinate Judge held that L had  inherited not  a life-Mate but full ownership, and that the  appellant had  only a contingent right in the property depending on  L dying  without  male issue, so that it was not  possible  to grant  to  the appellant the declaration he prayed  for.   L adopted a son C in 1951, and died in 1957.  After his  death the  appellant filed another suit against L’s widow,  C  the adopted  son and the surviving trustee.  This suit was  also based  on the claim that L had inherited only a  life-estate under  R’s  will  and codicil.   The  contesting  defendants raised the plea of res judicata based on the decision in the suit of 1935.  The plea of res judicata was rejected by  the trial  court  but  accepted by the High  Court.   In  appeal before  this Court it was urged on behalf of  the  appellant that  the  trial court in the suit of 1935 having  held  the suit  to  be  premature and  thus  decided  the  preliminary issuability the appellant, its decision on the other  issues was only obiter and could not operate as res judicata. HELD: The appeal must fail.



There was no question of the trial of any preliminary  issue in the suit of 1935 the decision of which would obviate  the necessity of examining the other pleas raised and coming to a  finding thereon.  The nature of the right acquired  by  L under the will of the testator was directly in question and the  subordinate judge went elaborately into it to take  the view that L had become absolutely entitled to the properties left  by the ,testator.  The observation referred to in  the concluding portion of the Judgment of the Subordinate  Judge is not to be taken as the decision on a preliminary issue so as to render the finding on the other issues mere obiter and surplusage.  L698 G-699 Al If  the  final decision in any matter at issue  between  the parties  is based by a court on its decisions on  more  than one point-eacb of which by itself 6 92 would  be sufficient for the ultimate decision-the  decision one  these  points would operate as  resjudica  between  the parties. question as to the nature of the estate taken by  L under  the will and document called codicil to the will  of the  testator having been in is in the suit of 1935 and  the Court having been decided that L had obta an absolute estate to  the  property, this decision would bind the  up  in  any subsequent  litigation  such as the present,  in  which  the claim based on the will and cod cil. [699 B-C] Shankarlal  v. Hiralal, A.I.R. 1950 P.C. 80,  explained  and distinguished Vithal Yeshwant Jathar v. Shikandarkharn Mukhtum-khan (19631 2 S.C.R. 285, 290, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1732 1966. Appeal from the Judgment and decree dated June 20, 1966  the Mysore High Court in Regular Appeal No. 97 at 1959. M.   C.  Chagla, P. N. Tiwari, J. B.  Dadachanji, O.C-.  and Ravinder Narain for the appellant. A.    K. Sen, S. S. Javali and M. Veerappa, for  respondents 1 and 2. The Judgment of the Court was delivered by Mitter, J. One Rudrappa Murigoppa Gugwad died leaving a will dated February 2, 1919.  It is claimed by the appeal that he also left a codicil dated August 10, 1919.  After citing in clause  1  of  the will that he had  brought  UP  Lochanappa Gugwad, son of Irappa Sidlingappa Gugwad, and though he  had wished to take the said Lochanappa in but had not been  able to do so up till then ’and even if the adoption ceremony did not take place in the future, Lochanappa alone would be  the owner  of his properties he proceeded state in clause  2  of his will that :               "Even  though  I have hereby  transferred  the               ownership   of   my  immovable   and   movable               properties   to  Lochanappa   Irappa   Gugwad,               Lochanappa should act under the supervision of               ’the      trustees,     namely.       Lingappa               Sanganabassappa  Tyapi and  Gurulingappa  Gan-               gappa  Gugwad. it both the trustees find  that               my property will fall out of use on account of               Lochanappa’s  taking  to bad  ways,  both  the               trustees   should  take  possession   of   the               property  ’and safeguard it by  appointing  my               extremely   faithful   clerks   Veerabhadrappa               Mallappa Suligavi and Basappa Murangappa                                693



             Tuppadd.  If Lochanappa gets a male issue the,               property  should be in the possession of  both               the trustees till that son attains majority."               In clause 3 he laid down that               "In   case  Lochanappa  Irappa  dies   without               leaving male issue,  fully authorise, the said               trustees  to  transfer the  ownership  of  the               movable and immovable property of my family to               the   son  of  Gurupadappa  Gangappa   Gugwad,               resident of Bijapur, and to deliver the entire               property into his possession." The  original will was deposited with the Collector.   After having  executed  the  will the testator  appeared  to  have proceeded  to Benares and from there a dressed a  letter  to Lochanappa  Irappa Gugwad on 10th August, 1919.  By that  he directed  some money to be advanced to Gurubasappa  Bassappa Gugwad to start him on a business and commended the  welfare of the said Gurubasappa to the care of Lochanappa adding :               "The  main thing is that you should  pay  full               attention  to  him.  I have mentioned  in  the               will  that in case male children are not  born               to  you, you should take in adoption  in  your               own  name  any  of  the  sons  of  Gurupadappa               Gangappa Gugwad of Bijapur and that if you die               without taking in adoption, they alone will be               the   owner  of  the  movable  and   immovable               properties.  But two sons are born to him.  As               early as possible that is to say, when one boy               becomes  five years old or after my death  you               should  execute this work of adoption and  you               should mention that the property should go  to               him after your death." The  last statement appears to be incorrect inasmuch as  the testator  had  not by his will directed Lochanappa  to  make such an adoption. Probate  of the will was duly taken into possession  of  all the  properties  left  by the testator.   According  to  the judgment of the High Court appealed from, the letter was not a  formal  document  as  a codicil should  be,  nor  was  it referred  to in the probate proceedings.  In the  year  1935 Gangappa  Gurupadappa Gugwad, the appellant herein, filed  a suit  in the court of the First Class Subordinate  Judge  at Bijapur  against Lochanappa and the said two trustees for  a declaration  that  Lochanappa had only a  life  interest  in respect  of the properties described in the schedule to  the plaint as per the 694 will  and  codicil executed by the  testator,  that  certain improvident  transactions  put  through  by  Lochanappa   in contravention  of the directions given in the will were  not binding on the plaintiff or the properties left by the  der- eased and that the s Lochanappa having acted contrary to the directions  given in will and codicil and having  mismanaged the  said properties a injunction should be  issued  against the  trustees directing to give Lochanappa only  maintenance in terms of the will.- The  Subordinate  Judge who heard the  suit  framed  several issues of which the important ones were as follows               (1)   Whether the plaintiff is entitled to sue               ?               (2)   Whether Lochanappa, defendant No. 1  got               only  a limited interest in the estate of  the               testator, Rudrappa Gugwad, under the will?               (3)   Whether   acts   of   mismanagement   by               Lochanappa  contrary to the directions of  the



             will had been proved ?               (4)   Whether  an injunction could be  validly               given-to   the  trustees  to  take  over   the               management  from Lochanappa and give him  only               maintenance ?. Before   the  Subordinate  Judge  evidence  both  oral   and documentary were let in.  He construed the will to arrive at the finding that Lochanappa had been made the malik or owner of  the pro parties covered by the will and that it was  the will  of the tesator which recited that the estate given  to Lochanappa  was  be heritable.  With regard to  the  further directions  given  in will, he came to the  conclusion  that "Lochanappa having bee made an owner under the will  further expression  of such intention cannot be properly allowed  to control or qualify that ownership." As regards the direction in  the letter styled a codicil advising Lochanappa to  take one of the sons of Gurupadappa Gangappa Gugwad in  adoption, he held that:               "In  fact, there is no such direction  in  the               original  will.  Even assuming that it is  so,               only means that Gurupaddappa’s sons are to  be               the  owners  in case Lochanappa  dies  without               male  issue  and without adopting one  of  the               sons of Gurupadappa; Lochanappa is still alive               and  it  is yet to be seen whether  he  adopts               plaintiff or not or whether a son will be born               to  him or not.  Plaintiff has at the  most  a               contingent  right  and  vested  interest,  and               therefore’  it  is a question  whether  he  is               entitled, to a simple declaration." The suit out of which this appeal arises was ’filed by Gang Gugwad after the death of Lochanappa in 1957 against           695 widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his  son in  the  year  1951 and  Gurlingappa  Gungappa  Gugwad,  the surviving trustee under the will of Rudrappa pleading inter alia  that  "Rudrappa did not confer an absolute  estate  on Lochanappa in respect of his property, that the bequest made in  his  favour conferred upon him only  a  restricted  life estate  and  that even assuming Lochanappa was  an  absolute owner  he  was entitled to it only during his  lifetime  and after his demise it was to revert to the plaintiff by virtue of  the will and codicil." The plain,tiff appellant went  on to  add  that it was incumbent on Lochanappa  to  adopt  him alone and none else and any adoption in contravention of the direction  in  the will of, Rudrappa  Murigappa  Gugwad  was invalid  and even assuming that the said direction  was  not mandatory, defendant No. 2 could not acquire the status of a son  begotten by Lochanappa so as to claim any  interest  in the property of the deceased testato. The suit was contested by the widow and the adopted son, defendant No. 2 who plead- ed  the bar of res judicata on the strength of the  judgment in the suit of 1935.  The Subordinate Judge held against the dependent on that issue.  He also found that the  appellant. was  the  rightful heir to the properties  of  the  deceased testator  under the will and codicil of Rudrappa  after  the death of Lochanappa. The High Court examined the will and the letter described as codicil  over  again  and came to the  conclusion  that  the letter   described   as  codicil  was   only   an   informal communication  from  one  relation  to  another,  that   the testator  had only a vague recollection of the  contents  of the will at the time of writing the letter from Benaras  and that  the order in the probate proceedings did not refer  to



the  letter.  On the basis of the will the High  Court  held that Lochanappa was an absolute owner of the property.   The High Court further held that the decree in the suit of  1935 operated as res judicata in the subsequent suit.   Referring to  the  first two issues framed in suit of  1935  the  High Court held that there was a clear finding in the judgment in that suit that the appellant had obtained no interest  under the  will of Rudrappa and therefore he was not  entitled  to sue. Before  us learned counsel for the appellant contended  that in spite of the observations made by the learned Subordinate Judge in the judgment in the suit of 1935 about Lochanappa’s rights  under the will and the document styled  as  codicil, the.  decision  on  the first issue went to  show  that  the appellant’s  suit  was  premature and as  such  it  was  not necessary  for  the Subordinate Judge to go into  the  other question  and  his findings on issues other than  the  first should be treated as obiter. 696 In support of the above contention counsel for the appellant relied on the decision of the Privy Council in Shankarlal v. Hiralal(1).   The  head  note  in that  case  to  which  our attention was drawn reading,               "Court  holding that suit is not  maintainable               by  reason  of failure to comply with  S.  80-               Findings given on merits are obiter and do sot               support plea of res judicata either in  favour               of or against party". seems to be misleading inasmuch as the judgment of the Board does not bear out the above proposition of law.  At best the head  note only records a finding by an appellate  Bench  of the ,Calcutta High Court which the Board by its own judgment did not expressly reject or uphold. The appeal to the Privy Council arose out of a suit filed by ,one  Mangtulal Bagaria for royalties due under a  lease  of collieries  by  one  Popat Velji Rajdeo of  which  the  said Mangtulal   was  appointed  manager  by  the   court.    The defendants  were  the  lessees  under  the  lease  or  their representatives  and were respondents in the appeal  to  the Board.  There the defence of the lessees was that the  lease had   been  surrendered  in  July  1933.    The   plaintiffs challenged the surrender and also pleaded that-the point was covered  by  res judicata.  Ameer Ali, J., before  whom  the suit  came  on  for  hearing on the  original  side  of  the Calcutta  High Court framed several issues, in  two  groups. The  first  issue  in  Group A related  to  a  plea  of  res judicate.  The second issue in that group raised a  question whether there was any defence apart from surrender.  Group B raised questions as to the fact and validity of the  alleged surrender.  The plea of res judicata was based on a judgment of the Subordinate Judge of Dhanbad wherein the lessees  had sued  Mangtulal and some others for a declaration that  the lease had been validly surrendered in 1933.  The Subordinate Judge held that the suit did not lie inasmuch as notice  had not  been  served on Mangtulal under S. 80  Civil  Procedure Code.   He however supported to decide other issues  in  the suit  including one as to the sufficiency of the  surrender. An  appeal  from the decree of the  Subordinate  Judge  was taken  to the High Court at Patna but was withdrawn  against Mangtulal  and  the  brother of the  lessor  and  a  consent decree,  was obtained against the two widows  upholding  the surrender.   Ameer  Ali, J. went into the  question  of  res judicata as’ a preliminary issue and "pressed the view: (1) A.I.R. 1950 P. 30.                 697



.lm15 "that the decision of the Dhanbad Court had decided the same issue  which had to be decided in his own court and  between the same persons and parties." In appeal from his judgment the learned "’Judges held that Inasmuch  as the Subordinate Judge in the Dhanbad  suit  had held  that the suit did not lie by reason of the failure  to comply  with s. 30, Civil P.C., he was bound to dismiss  the suit under Or. 7 R. 1 1 of the Code and the findings of  the Court on the merits were obiter and could not support a plea of res judicata." They held further that Ameer Ali, J. had decided nothing but the  issue of res judicata.  Accordingly. they  allowed  the appeal and remanded the case to the court of first  instance for trial of issues other than issue 1. The judgment of the Judicial Committee shows that before the Board  it was conceded on behalf of the appellant  that  the appellate  court was right in the view which it took  as  to the  effect of the Dhanbad decree.  The Board  proceeded  to observe "Their  Lordships  have no doubt that the  decision  in  the Dhanbad suit could not support a plea of res judicata on the merits, either in favour of or against Mangtulal." The  Board  rejected the contention of  the  appellant  that Ameer Ali, J. had decided not only the issue of res judicata but  also  that  the  alleged surrender  of  the  lease  was invalid.  According to the Board the judgment of Ameer  Ali, J. was to some extent obscure and there were passages in  it which  suggested that he thought the surrender  invalid  but "it  was  clear that he did not purport to  decide  anything beyond  the issue of res judicata" and he  expressly  stated that  h.-, was not deciding the issues in the second  group. Accordingly the Board saw no reason to differ from the  view of the appellate Judges that the issues as to surrender were not decided by the trial Judge and did not feel inclined  to interfere  with the direction given by the ’appellate  court regarding the remand of the trial of the issues in the court of first instance. On the strength of the dictum of the appellate Bench of  the Calcutta  High Court forming a part of the headnote  to  the above  decision  it was contended before us, that  once  the Subordinate Judge of Bijapur recorded a finding on the first issue  against  the  appellant  in  the  suit  of  1935  his construction (if the will and the effect thereof were obiter and they would not be binding on the appellant in the second suit.   This was sought to be fortified by the  observations in the concluding portion of 698 the judgment in the suit of 1935 which we have quoted  above that the plaintiff had at the most a contingent right and no vested interest.  It was.argued that the learned Subordinate Judge’s  view that the suit was premature was sufficient  to dispose  of the case before him without his going  into  the other questions and the issues raised. No  doubt it would be open to a court not to decide all  the issues  which  may arise on the pleadings before  it  if  it finds  that  the plaint on the face of it is barred  by  any law.   If  for instance the plaintiff’s cause of  action  is against  a  Government  and the plaint does  not  show  that notice  under  section 80 of the Code  of  Civil-  Procedure claiming relief was served in terms of the said section,, it would  be  the  duty  of the  court  to  reject  the  plaint recording an order to that effect with reason for the order. In  such a case the court should not embark upon a trial  of all  the  issues  involved and  such  rejection.  would  not



preclude  the  plaintiff from presenting a fresh  plaint  in respect of the same cause of action.  But, where the  plaint on the face of it does not show that any relief envisaged by s. 80 of the Code is being claimed, it would be the duty  of the  court to go into all the issues which may arise on  the pleadings including the question as to whether notice  under S.  80  was  necessary.  If the court  decides  the  various issues  raised on the pleadings, it is difficult to see  why the  adjudication of the rights of the parties,  apart  from the  question as to the applicability of s. 80 of  the  Code and absence of notice thereunder should not operate. as, res judicate in a subsequent suit where the identical  questions arise for determination between same parties. In  our view the High Court was right in deciding the  issue as  to res indicate against the appellant.  The  High  Court rightly pointed out that the Subordinate Judge had in  clear terms  decided that the appellant had obtained  no  interest under the will of Rudrappa and therefore he was not entitled to  sue.   The Subordinate Judge had further held  that  the estate obtained by Lochanappa under the will was an absolute estate. With respect, we concur with the view expressed by the  High Court.    There  was  no  question  of  the  trial  of   any preliminary issue in the suit of 1935 the decision of  which would  obviate  the necessity of examining the  other  pleas raised  and coming to a finding thereon.  The nature of  the right acquired by Lochanappa under the will of the  testator was  directly  in question and the  Subordinate  Judge  went elaborately  into  it to take the view that  Lochanappa  had become  absolutely  entitled to the,properties left  by  the testator.   The  observation referred to in  the  concluding portion of the judgment of the Subordinate Judge is not  to be taken               699 as  the decision on a preliminary issue so as to render  the findingon the other issues mere obiter or surplusage. In   our  view  the  High  Court  rightly  relied   on   the observations  of  this Court in Vithal  Yeshwant  father  v. Shikandarkhan  Makhtum-khan  Sardesai(1) that if  the  final decision in any matter at issue between the parties is based by a court on its decisions on. more than one point-each  of which  by  itself  would  be  sufficient  for  the  ultimate decision-the  decision on each of these points  operates  as res  judicata between the parties.  The question as  to  the nature of the estate taken by Lochanappa under the will  and the  document  called codicil to the will of  the  testator, Rudrappa  having  been in issue in the suit of 1935  and  it having been decided that Lochanappa had obtained an absolute estate  to  the  property,,  the  decision  would  bind  the appellant  in any subsequent litigation to which  the  claim is,  based on the will and codicil.  We accordingly  dismiss the appeal on the ground that the decision in the t of  1935 was a bar to the trial of the second suit of 1957. The respondent will be entitled to costs throughout. G.C.                        Appeal dismissed. (1)  [1963] 2 S.C.R. 285 at 290. 700