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PETITIONER: MAHBOOB SAHAB

       Vs.

RESPONDENT: SYED ISMAIL & ORS.

DATE OF JUDGMENT23/03/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1205            1995 SCC  (3) 693  JT 1995 (3)   168        1995 SCALE  (2)395

ACT:

HEADNOTE:

JUDGMENT: K.   RAMASWAMY, J.: 1.   Syed  Ismail and Ibrahim, sons of  Maqdoom,  Panchamale filed  O.S. No.28 of 1965, impleading their parents and  ap- pellant/purchaser, for possession of the suit lands and  for mesne  profits  from the appellant.  The averments  made  in support  thereof are that their father had executed  a  gift deed  bequeathing  15 acres 38 gunthas out of  31  acres  36 gunthas in Survey No.781 of Aland village, jointly in  their favour  and their mother Smt.  Chandi, third defendant,  who in her turn, orally gifted over her share to Syed Ismail  in April,  1958  at the time of his  marriage.   Being  minors, their  father-second defendant, while cultivating the  lands on their behalf, had colluded with the Patwari and  executed sale  deed  Ex-D-1  in favour of the  appellant.   On  their becoming aware of the same, they filed the suit since  their father had no right, title and interest therein to  alienate the lands.  The sales, therefore, in favour of the appellant were  invalid,  inoperative  and  do  not  bind  them.   The appellant pleaded that Maqdoom had entered into an agreement of sale under Ex.D-22 on April 12, 1961 to sell 12 acres  of land  for valuable consideration and had executed  the  sale deed,Ex.D-1  dated  May  12,1961,  to  discharge  antecedent debts.   Similarly an agreement of sale of 4 acres  of  land for  2,500/-  was executed and the  appellant  had  obtained permission from the Assistant Commissioner on August 4, 1964 for sale thereof When he and Smt.  Chandi refused to execute the  sale  deed,  he filed OS No.4/1 of  1966  for  specific performance  which was decreed on contest and the sale  deed Ex.D-3  was  executed and registered by  the  court.   Their parents  had not given any gifts which were set up  only  to defraud the appellant.  It was brought out at the trial that in  OS  No.3/1/1951  filed by one Ismail on the  foot  of  a possessory  mortgage,  the executability of  another  decree obtained  by  another  creditor, was  impugned,  wherein  by judgment and decree dated September 24, 1951, the Court held

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that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed. 2.   The  aforesaid  finding was pleaded to operate  as  res judicata against the appellant.  As a preliminary issue, the trial court 171 held  that the decree in OS No.3/1/1951 does not operate  as res  judicata but decreed the suit on merit.  In R.A.  No.21 1/1970,  the Additional Civil Judge, Gulbarga  reversed  the decree  and  dismissed the suit holding that Maqdoom  as  an owner had alienated the property.  His name continued to  be the owner in revenue records till it was mutated in the name of the appellants after his purchase.  Neither the  original nor  certified  copy of the gift deed alleged to  have  been executed  by  Maqdoom  was  filed.  A  letter  of  the  Sub- Registrar  to  show its loss filed in the appeal  cannot  be used as evidence of execution of the gift over.  The  mother cannot act as a property guardian when the father is  alive. The oral gift by the mother to the respondents was false  as neither acceptance of the gift nor delivery of possession of the lands either by the father or the mother was proved.  It was  not  proved  that the father or any one  had  acted  as guardian when Smt.  Chandi gifted her undivided share to the first respondent nor any proof of taking possession from the wife   under  the  oral  gift  deed.   The  alleged   gifts, therefore, were not proved, nor valid in law.  Maqdoom,  was a  chronic  debtor and to defraud the creditors, he  set  up false  plea of gifts in favour of his children and  wife  or spurious  mortgages  in favour of third  party.  Before  the appellate  court,  the  decree in  OS  No.3/1/1951  was  not pressed  into service as res judicata to sustain the  decree of the trial court. 3.   The  High Court without disturbing any of the  findings of  facts  recorded  by the appellate  court,  reversed  the judgment  solely  on  the  finding that  the  decree  in  OS No.3/1/1951 operates as res judicata, as the parents and the respondents are co-defendants in that suit and, therefore it would operates as res judicata.  Having been divested of his title,  Maqdoom had no right to alienate the  properties  of the minors in favour of the appellant.  Accordingly reversed the decree of the appellate court and confirmed that of  the trial  court in Second Appeal No.161 of 1973, dated  January 2, 1979. 4.The question, therefore, is whether the High Court  was right  in its conclusion that the decree in  OS  No.3/1/1951 operates  as res judicata and whether reversal of  appellate decree without disturbing the findings of fact on merits  is legal.   Having  given  our  anxious  consideration  to  the respective contentions of both the counsel we think that the High  Court was wholly wrong in its approach.   Neither  the mother nor the father examined as witness to prove the gifts said to have been given in favour of their minor sons Ismail and Ibrahim respondents Nos.  1 & 2. Syed Ismail too was not examined as a witness.  Ibrahim in his evidence had admitted the execution of the sale deed by his father and he acted as an  attesting witness to the sale transaction under  Ex.D-1. He  also  admitted that his father mortgaged   the  property under Ex.P-3. In the objection petition the gift was not set up.  The appellate court, as a final court of fact found dim alleged registered gift deed said to have been jointly given by Maqdoom jointly to his minor sons and wife was not  filed either in this suit or in OS No. 3/1/1951. 5.Under  s.  147 of the Principles of  Mahomedan  Law  by Mulla,  19th Ed., Edited by Chief Justice  M.  Hidayatullah, visages  that writing is not essential to the validity of  a

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gift  either of movable or of immovable  property.   Section 148 requires that it is essential to the validity of a gift. 172 that  the  donor  should divest himself  completely  of  all ownership and dominion over the subject of the gift.   Under s. 149, three essentials to the validity of the gift  should be, (i) a declaration of gift by the donor, (ii)  acceptance of  the  gift, express or implied, by or on  behalf  of  the donee,  and (iii) delivery of possession of the  subject  of the gift by the donor to the donee as mentioned in s.150. If these  conditions are complied with, the gift  is  complete. Section  150  specifically mentions that for  a  valid  gift there should be delivery of possession of the subject of the gift  and  taking of possession of the gift  by  the  donee, actually  or  constructively.  Then only gift  is  complete. Section  152 envisages that where donor is in possession,  a gift  of immovable property of which the donor is in  actual possession  is  not  complete unless  the  donor  physically departs  from the premises with all his goods and  chattels, and  the donee formally enters into possession.   It  would, thus,  be  clear  that though gift by a  Mohammadan  is  not required  to  be  in writing and consequently  need  not  be registered  under  the  Registration  Act;  a  gift  to   be complete,  there should be a declaration of the gift by  the donor,  acceptance of the gift, expressed or implied, by  or on  behalf of the donee, and delivery of possession  of  the property, the subject-matter of the gift by the donor to the donee.  The donee should take delivery of the possession  of that  property either actually or constructively.  On  proof of these essential conditions, the gift becomes complete and valid.   In case of immovable property in the possession  of the donor, he should completely divest himself physically of the  subject of the gift.  No evidence has been  adduced  to establish declaration of the gift, acceptance of the gift by or  on  behalf  of the minor or delivery  of  possession  or taking  possession or who had accepted the gift actually  or constructively.    Admittedly  he  was  in  possession   and enjoyment of the property till it was sold to the appellant. Equally,  in  Mohammadan  Law  mother  cannot  act  nor   be appointed  as property guardian of the minor.   She  equally cannot act as legal guardian. 6.Section  348 defines "minor" to mean "  a  person  who has not  completed  the  age of eighteen  years".   Section  349 provides  that  "all application for the  appointment  of  a guardian of the person or property or both of a minor are to be  made under the Guardians and Wards Act, 1890".   Section 359 enumerates the persons entitled, in the order  mentioned therein, to be guardian of the property of a minor,  namely, (1)  the father; (2) the executor appointed by the  father’s will;  (3) the paternal grand father, and (4)  the  executor appointed by the will of the paternal grand father.  Section 362  limits  the  power of the legal  guardian  to  alienate immovable  property except in the  circumstances  enumerated therein.   Similarly,  the court guardian has  no  power  to mortgage  or  charge or transfer by sale, gift  exchange  or otherwise and part with possession of immovable property  of the  ward  or to lease that prop" except with  the  previous permission  of the court and subject to the conditions  men- tioned  in  s.363.  Admittedly,  no  property  guardian  was appointed to act on behalf of the minors.  No evidence, that the  father  acted as legal guardian.  So also there  is  no proof of acceptance of the oral gifts said to have been made by  the, mother to Ismail the eldest son, of  her  undivided share.   There  is  no proof as  well  that  possession  was delivered under the oral gift and accepted on behalf of  the

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minor and taken possession. 173 7.Her 1/3rd undivided share was not subject matter of OS No. 3/1/1951.  The Additional Civil Judge, therefore, was  right in  his findings that the gifts have not been proved.   They were  not complete.  Admittedly, the father continued to  be in  possession  and  enjoyment  of the  lands  as  owner  as evidenced by the revenue records until it was mutated in the name  of the appellants to the extent of 16 acres  purchased by him as per the aforesaid sale deeds Ex.  D-1 and  Ex.D-3. Ibrahim  has attested Ex.D- 1 when his father  conveyed  the lands  as  an  owner.   Though  the  sale  was  against  his interest, he had not objected to the sale.  He, thereby,  is estopped  by conduct and record to assail Ex.D-1 sale or  to claim any interest in the lands. 8.Under these circumstances the question emerges whether the High  Court was right in reversing the appellate  decree  on the  doctrine of res judicata.  At this juncture it  may  be relevant to mention that the trial court negatived the  plea of res judicata as a preliminary issue.  Though it was  open to  sustain  the  trial court decree on  the  basis  of  the doctrine  of  res  judicata, it was not  argued  before  the appellate  court on its basis.  Thereby the findings of  the trial  court  that  the decree in OS  No.3/1/1951  does  not operate as a res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in this case.  It is true that under s. 11 C.P.C. when the matter has been directly or substantially in issue in  a former  suit  between the same parties  or  between  parties under whom they or any of them claimed litigating under  the same  title,  the  decree in the former suit  would  be  res judicata  between  the  plaintiff and the  defendant  or  as between   the   co-plaintiff  or  co-defendant.    But   for application of this doctrine between co-defendants four con- ditions must be satisfied, namely, that (1) there must be  a conflict  of interest between the defendants concerned;  (2) it must be necessary to decide the conflict in order to give the  reliefs  which the plaintiff claims; (3)  the  question between  the defendants must have been finally decided;  and (4)  the co-defendants were necessary or proper  parties  in the  former  suit.  Ibis is the settled law as held  in  SM. Sadat  Ali  Khan  v.  Mirza Wiquar Ali,  AIR  1943  PC  115, Shashibushan  Prasad Mishra v. Babuji Rai & Ors.,  1969  (2) SCR  971;  and Iftikhar Ahmed & Ors. v. Syed  Meharban  Ali, 1974  (2) SCC 151.  Take for instance that if in a  suit  by ’A’   against   ’B  &  C’,  die  matter  is   directly   and substantially  in issue between B & C, and  an  adjudication upon  that  matter was necessary to determine  the  suit  to grant  relief to ’A’; the adjudication would operate as  res judicata in a subsequent suit between B & C in which  either of  them  is  plaintiff and the other  defendant.  in  other words, if a plaintiff cannot get at his right without trying and deciding a can between co-defendants, the court will try and decide the case, and the co-defendants will be, bound by the  decree.  But if the relief given to the plaintiff  does not  require or involve a decision of any case  between  co- defendants,  the codefendants will not be bound  as  between each other. 9.Where  the above four conditions did not exist the  decree does  not operate as res judicata.  It must, therefore.,  be that  all the persons who have right title and interest  are made parties to the suit and that they should have knowledge that  the right, tide and interest would be in  adjudication and the finding or the decree therein would operate as a res judicata to their right, title and interest in the  subject-

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matter of the 174 former suit.  Even in their absence a decree could be passed and  it may be used as an evidence of the  plaintiffs  title either  accepted or negatived therein.  The doctrine of  res judicata  would apply even though the party against whom  it is sought to be enforced, was not eo-nomine made a party nor entered  appearance  nor did he contest the  question.   The doctrine  of res judicata must, however, be applied  to  co- defendants with great care and caution.  The reason is  that fraud  is  an extrinsic collateral act, which  vitiates  the most  solemn proceedings of courts of justice.  If  a  party obtains  a  decree  from the court by  practicing  fraud  or collusion,  be cannot be allowed to say that the  matter  is res judicata and cannot be re-opened.  There can also be  no question  of res judicata in a case where signs of fraud  or collusion  are transparently pregnant or apparent  from  the facts on record. 10.  Therefore,  in applying the doctrine  of  res  judicata between   co-defendant  or  co-plaintiff,  care,  must,   of necessity, be taken by the courts to see that there must  in fact  be a conflict of interest between the codefendants  or co-plaintiffs  concerned and it is necessary to  decide  the conflict in order to give relief which the plaintiff in  the suit  claimed  and the question must have been directly  and substantially in issue and was finally decided therein.   As found by the appellate court, Maqdoom was playing fraud upon his  creditors  by  creating false oral  gifts  or  spurious claims of mortgages with a view to defraud them.  Section 44 of  the Evidence Act envisages that any party to a  suit  or proceeding    may show that any judgment,  order  or  decree which is relevant under s.40, 41 or 42 has been obtained  by fraud  or  collusion.   Under s.40,  the  existence  of  the judgment,  order or decree which by law prevents  any  Court from  taking cognizance of a suit or holding a trial,  is  a relevant fact when the question is whether such court  ought to take cognizance of such suit or to hold such trial. 11. When the evidence on record establishes that the suit in OS  No.3/1/1951 was collusive or fraudulent to  defraud  the creditors,  it is a relevant fact and the court  would  take cognizance  thereof  to  find whether  the  trial  court  is precluded to try the issue.  The High Court had not adverted to  nor  bestowed its attention, this aspect of  the  matter except mechanical application of the principles laid by this Court in Iftikhar Ahmed’s case (supra).  The pleadings in OS No.3/1/1951  were  not produced in the  courts  below.   The judgment,  Annexure  11 indicates that the  respondents  and their  another  brother and the parents  were  impleaded  as defendants 1 to 5. Sixth defendant was the decree holder  in another suit.  It was claimed therein that the defendants  1 to  4  were said to have executed  possessory   mortgage  in favour  of one Ismail the plaintiff therein a joint  written statement  was  filed  by them admitting the  claim  of  the plaintiff  who had pleaded the gift said to have been  given by  Maqdoom in favour of the three sons and his wife.   They have  admitted the same.  Thus it would be clear that  there was  no conflict of interest between the defendants in  that suit  On the other hand they had confessed to the claim  set up  by the alleged possessory mortgage therein.  Though  the appellant claimed title to the property through the  parents of the respondents, there was  neither conflict of  interest nor  was it necessary to decide about the  validity  of  the gift said to have 175 been  executed by Maqdoom.  The dispute therein was  whether

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the  possessory  mortgagee was bound by the decree  and  the creditor  could  proceed against the Maqdoom  and  the  said property  is  liable to sale for realisation of  his  decree debt?  In that context the relevancy or validity of the gift is  immaterial.   It  was admitted  therein  that  they  had executed possessory mortgage in favour of Ibrahim, plaintiff therein.   On that basis, the only question would have  been whether he would be entitled to resist the execution of  the decree  obtained  against  Maqdoom  by  the  6th   defendant therein?  The oral gift or sale of 4 acres under Ex.D-3  was not  the subject-matter of OS No. 3/1/1951. The High  Court, therefore, committed gross palpable error of law in applying the  doctrine of res judicata between  codefendants  relying upon the decree in OS No.3/1/1951 dated September 24,  1951, even  if  it  could be pressed into service  in  the  second appeal. 12.  The  appeal is accordingly allowed.  The  judgment  and decree  of  the  High Court are set aside and  that  of  the appellate court stands restored, in consequence the suit  of the   respondents  1  &  2  stands  dismissed   with   costs throughout. 176