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Judgment
Harries, C.J.—This is a first appeal from a decree of the learned subordinate Judge, Second Court, Monghyr, decreeing the plaintiffs'' claim for a declaration that a certain deed of sale was a valid document and possession of the properties in dispute.
The facts of the case can be shortly stated as follows: On 18th November 1919, the plaintiffs mortgaged their four annas share in villages Olapur, Chhakipar including Jalkar Nonia, Maisaha including Ghat Buzurgabad and two annas share in villages Simra and Kathaura to the defendants first party to secure an advance of Rs. 7000. On the same date the plaintiffs executed a sale deed in favour of the defendants first party by which they conveyed to the latter two annas share in village Simra exclusive of kamat lands and four annas share in village Etwa for a consideration of Rs. 14,500. On 17th November 1923, in consideration of a further advance of Rs. 1925 the plaintiffs executed a second mortgage of the villages which were the subject-matter of the first mortgage in favour of the defendants first party. On 2nd March 1933, there was an adjustment of accounts between the parties which showed a sum of Rs. 21,885 due from the plaintiffs to the defendants. It was alleged by the plaintiffs that the defendants first party eventually agreed to take a sum of RS. 16,000 in full satisfaction of the dues of the mortgagees. Further, it was agreed between the parties that the defendants would take a two annas share in the village of Simra including the kamat and khudkast lands in full satisfaction of this sum of Rs. 16,000.
It was further agreed that the plaintiffs would transfer to the defendants first party 12� bighas of jote land situate in village Gangour for an additional sum of Rs. 1000. This land had been purchased at a court sale by one Jiwan Ram Marwari in execution of a decree against the plaintiffs and the consideration money Rs. 1000 was to remain with defendants first party to pay off the dues under this decree and also certain other debts.
According to the plaintiffs, they were being pressed by creditors at this time, and it was arranged between the parties that the plaintiffs would, in the first place, convey to a farzidar of the defendants first party not only the two annas share in the village Simra including kamat and khudkast lands and the 12� bighas of jote land but also the shares in the other villages which had been the subject-matter of the two mortgages to which I have referred.
It was also arranged that the defendants would retransfer to a farzidar of the plaintiffs first party all the properties except the two annas of village Simra, including kamat and khudkast lands and 12� bighas of jote land which had been the subject-matter of the court-sale. In short, the arrangement was that all the mortgaged properties should be ostensibly transferred to a farzidar of the defendants first party and that the latter should retransfer everything except the properties already referred to to a farzidar of the plaintiffs and thus protect the properties retransferred from the plaintiffs'' other creditors. According to the plaintiffs, these negotiations were carried on at Sadanandpur between Ram Prakash Singh (P.W. 1) and defendants 1 and 3.
In pursuance of this agreement it is said that the plaintiffs executed a sale deed dated 2nd March 1933, in favour of Hitnarain Singh, who was admittedly a farzidar of the defendants first party, and on 26th March 1933, Hitnarain Singh executed a sale deed in favour of a farzidar of the plaintiffs of all the properties with the exception of two annas in the village of Simra together with kamat and khudkast and the 12� bighas of jote land in village Gangour. According to the plaintiffs, they remained in possession of these properties with the exception of their share in Simra and the jote lands but were eventually dispossessed by the defendants, and this led to proceedings u/s 145, Criminal P.C. Those proceedings ended unfavourably to the plaintiffs.
The defendants admit that they agreed to take Rs. 16,000 in full discharge of their claims under the two mortgages upon the properties in question. They also admit that there was an agreement between the parties whereby the plaintiffs were to transfer to a farzidar of the defendants certain properties in full discharge of their obligations. They also admit that they agreed to reconvey part of this property to a farzidar of the plaintiffs in order to protect the same from the plaintiffs'' creditors. The defendants however allege that all the properties in question with the exception of the four annas share in village Maisaha were to be retained by them in satisfaction of their dues under the mortgage and all that was to be retransferred to a farzidar of the plaintiffs was this share in village Maisaha. The defendants alleged that they had been tricked and defrauded by the plaintiffs and that the sale deed of 26th March 1933, executed by their farzidar Hitnarain Singh in favour of the plaintiffs'' farzidar was obtained by fraud.
According to them, Hitnarain Singh was to execute a sale deed of the four annas share in Maisaha only but owing to deceit practised on him by the plaintiffs and a servant of the defendants, he was made to sign a document retrans-ferring all the properties with the exception of the share in Simra and the jote lands in Gangour. It was alleged that the deed was written in Urdu which Hitnarain did not read and when it was read over to him the names of the properties transferred were not read out but four annas in Maisaha was mentioned as the subject-matter of the transfer. The defendants further allege that after the transfer by the plaintiffs to their farzidar they remained in possession of all the properties with the exception of Maisaha and they were so in possession when the order u/s 145, Criminal P.C., was made in their favour.
As an order u/s 145, Criminal P.C., had been made in favour of the defendants, the plaintiffs brought the present suit claiming a declaration that the sale deed of 26th March 1933, was a validly executed document and was binding on the defendants. They further claimed that by reason of this document they were the owners of all the properties mortgaged with the exception of the share in Simra and jote lands in Gangour and accordingly they sought possession of these properties. Harihar Singh and members of his family were made defendants first party and the farzidars of the defendants and the plaintiffs-defendants second and third party respectively.
It appears that on 12th March 1934, a suit for partition was instituted by one Hitlal Singh and others concerning the property belonging to the plaintiffs'' family including the property now in dispute. The plaintiffs in that suit had obtained certain shares of members of the plaintiffs'' family, and they asked for partition. In that suit they impleaded the present defendants first party as defendants 12 to 15 and the present plaintiffs as defendants 16 to 20. The present defendant second party was defendant 24 in the partition suit and the present defendant third party was defendant 25. The present defendants first party filed a written statement in that suit, and in that written statement they claimed to be the owners of the properties in dispute in this case except Maisaha. They put forward the sale deed of 2nd March 1933, executed by the present plaintiffs in favour of Hitnarain Singh and alleged that the present plaintiffs were only entitled to a four annas share in village Maisaha.
In their written statement they claimed that if a decree for partition was made they should be allotted lands in proportion to the shares in the villages which they held. The present plaintiffs (defendants 16 to 20) entered appearance in the suit but did not file a written statement and did not appear at the hearing. The partition suit was eventually heard by the additional subordinate Judge, Monghyr, and it is to be observed that one of the issues, which the learned subordinate Judge framed and decided, was whether defendants 16 to 20 (that is, the present plaintiffs) had any concern with the other villages except Badh Maisaha.
This issue was necessary because of the claim put forward by defendants 12 to 15 (the present defendants first party) that they held all the property in dispute in the present case with the exception of the four annas share in Maisaha. By his judgment dated 19th August 1935, the learned additional subordinate Judge of Monghyr held that defendants 16 to 20 (the present plaintiffs) held only a four annas share in Maisaha and that they had no concern with the other mauzas and badhs sought to be partitioned.
The learned additional subordinate Judge held that the present defendants first party were the owners of the properties in dispute in this case and that the present plaintiffs held only this share in Maisaha. The learned subordinate Judge ordered that a preliminary decree should be passed for partition giving the plaintiffs separate pattis proportionate to their share as found by him. He also directed that separate pattis should also be given to the other sets of defendants who had appeared proportionate to the shares as found by him in the judgment. He also directed that the defendants who had not appeared should be given separate pattis proportionate to their shares if they applied for the same. The defendants first party relied upon this judgment and preliminary decree in the partition suit and contended that the plaintiffs'' claim was barred by res judicata.
The learned subordinate Judge who tried this suit came to the conclusion that the plaintiffs'' version of the agreement was the true one. He held that the plaintiffs had established that the defendants were to re-transfer all the properties which were the subject-matter of the two mortgages with the exception of the share in Simra and the jote lands in Gangour. He was satisfied that no fraud or deceit was practised on Hitnarain, the farssidar of the defendant second party, and that the sale deed of the 26th of March 1933 was a genuine document which was executed in order to give effect to the agreement between the parties. He accordingly held that the sale deed gave the plaintiffs a title to the property in dispute, and as they had been dispossessed by the defendants they were entitled to possession of the same.
The learned subordinate Judge further held that the plaintiffs'' claim was not barred by the doctrine of res judicata. It appears that when this suit was heard in the Court of the learned subordinate Judge an appeal by the present defendants first party against the preliminary decree in the partition suit was pending in this Court. As the decree was under appeal, the learned subordinate Judge held that the decree could not possibly bar the plaintiffs'' present claim. It is to be observed that before the present appeal was heard, the appeal of defendants first party in the partition suit had been disposed of by a judgment of this Court dated 9th December 1938.
The appeal of the present defendants first party was allowed and they were given a somewhat greater share in certain lands than they had been given by the learned subordinate Judge. It is to be noted, however, that this Court affirmed the finding of the subordinate Judge as to the rights of the defendants first party in the properties in dispute in this case. The present plaintiffs were made parties to the appeal in this Court, but they do not seem to have appeared or contested the correctness of the decision of the Court below.
The appellants have urged two points in this appeal. In the first place, they contend that the plaintiffs'' claim is barred by res judicata. Secondly, they contend that the finding of the Court below on the question of fraud is erroneous. According to them, the learned subordinate Judge should have held that all that was to be retransferred was a four annas share in Maisaha and that the sale deed of 26th March 1933, retransferring the properties now in dispute was obtained by fraud practised on Hitnarain. It will be convenient, in the first place, to deal with the point of res judicata. The defendants first party raised this question in their written statement though their pleading is, in my view, grossly inadequate. All they plead is "that this suit is barred by the rule of estoppel and the principle of res judicata." At a late stage in the case the defendants first party however filed a copy of the judgment of the learned subordinate Judge in the partition suit which, as I have stated, was delivered on 19th August 1935. That judgment makes it clear that the present defendants first party claimed the properties now in dispute with the exception of Maisaha and that the learned Judge held that they were entitled to these properties and that the present plaintiffs were only entitled to a four annas share in Maisaha.
18 It is clear from the judgment of the learned subordinate Judge now under appeal that no point was taken before him that the plaintiffs had been taken by surprise by this plea of res judicata. The plaintiffs met the plea by stating that as the preliminary partition decree was under appeal it could not possibly operate to bar the suit. It is common ground that the appeal has now been disposed of and that this Court upheld the finding that the present defendants first party were the owners of the property in dispute in this case except four annas in Maisaha.
As the pleading of res judicata in this case was so inadequate, I should not have been prepared to allow the appellants to urge this point except for the fact that the plaintiff-respondents were not taken by surprise in any way. As I have stated, they met the point in the Court below, and Mr. Khurshaid Husnain who has appeared on behalf of the plaintiff-respondents in this appeal has admitted frankly that this plea does not take him by surprise in any way. The judgment of the learned subordinate Judge in the partition suit was on the record and that clearly shows that an issue was framed between the present defendants first party and the present plaintiffs as to the ownership of the properties now in dispute. The defendants first party did not however file the plaint in the partition suit or their written statement, and this Court has admitted these two documents in evidence. Counsel on both sides agreed that the copies of these documents printed in the record of the partition proceedings in First Appeal No. 36 of 1936 could be looked at for this purpose. The Court has admitted these documents not at the request of either of the parties to this appeal but under the powers which are given to the Court by Order 41, Rule 27, Civil P.C. In my view these documents are necessary to enable this Court to pronounce judgment upon this question of res judicata.
Mr. Khurshaid Husnain on behalf of the respondents has strenuously contended that the preliminary decree in the partition suit, though it has become final, cannot operate as res judicata. He points out that the present plaintiff''s and defendants first party were co-defendants in the partition suit and as it was not necessary, in order to give the plaintiffs in that suit the relief claimed, to decide the question of the ownership of the properties now in dispute, any decision upon such a question cannot bar the present claim.
Counsel for the respondents has relied on the cases in AIR 1931 114 (Privy Council) , AIR 1935 139 (Privy Council) and AIR 1931 231 (Privy Council) .
In these cases their Lordships of the Privy Council have laid down in what cases a decision can operate by way of res judicata between co-defendants in an earlier suit. In order that a decision should operate as res judicata, it must be shown that (1) there was a conflict of interest between such co-defendants; (2) it was necessary to decide that conflict in order to give the plaintiff the relief which he claimed; and (3) the question between the co-defendants was finally decided.
It has been urged that there was no conflict of interest between the present plaintiffs and the defendants first party and further that it was not necessary to decide any such conflict even if it existed in order to give the plaintiffs the relief which they claimed. As I have stated earlier, the plaintiffs in the partition suit claimed partition of their share, and it is urged that such relief could be granted without the learned subordinate Judge going into the question as to what shares were held by the present plaintiffs and the present defendants first party. The ascertainment of the shares of these latter parties was wholly unnecessary to grant the plaintiffs in the partition suit the relief which they claimed, namely a patti proportionate to their share in the property. There can be no question that the principles laid down in the three Privy Council cases to which I have referred, are binding on this Court. Mr. Manuk, who appeared on behalf of the appellants, however has argued that these principles cannot apply to a partition suit. It must be remembered that a partition suit may be one of two kinds, namely a suit for imperfect partition or a suit for perfect partition. Order 20, Rule 18, Civil P.C., expressly empowers a Court in a proper case to pass a decree for perfect partition of the property. That rule is in these terms:
Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54(2) if and in so far as such decree relates to any other immovable property or to moveable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
The rule undoubtedly gives the Court in a proper case power to separate not only the plaintiff''s share but also the shares of other defendants interested in the property. In practice defendants in a partition suit frequently ask that their share should be partitioned, and the present defendants first party in the partition suit made such a prayer. If the Court is asked by defendants as well as the plaintiff in a partition suit to separate their shares, the Court will do so; and in order to do so, it must ascertain the respective shares of the parties. In such a case each of the defendants stands in very much the same position as the plaintiff. He is a defendant vis-a-vis the plaintiff in the suit, but he is also a plaintiff vis-a-vis the plaintiff and his co-defendants in so far as he asks for the ascertainment of his share and the granting of a patti proportionate to it.
In this respect a partition suit differs very materially from an ordinary title or money suit. This distinction has been noticed by Courts in India in a number of cases.
In Sheikh Khoorshed Hossein v. Nubbe Fatima (78) 3 Cal. 551 Ainslie J., who delivered the judgment of the Court, made these observations concerning a partition suit:
With regard to the first point, we are of opinion that a decree for partition is not like a decree for money or for the delivery of specific property, which is only in favour of the plaintiff in the suit. It is a joint declaration of the rights of persons interested in the property of which partition is sought, and having been so made, it is unnecessary for those persons who are defendants in the suit to come forward and institute a new suit to have the same rights declared under a second order made. It must be taken that a decree in such suits is a decree, when properly drawn up, in favour of each shareholder or set of share-holders having a distinct are.
A similar view was expressed by a Bench of the Allahabad High Court in Ejaz Ahmad and Others Vs. Saghir Bano and Others the learned Judges observed:
The decree passed in a partition suit, in which for the purpose of giving relief to the plaintiff, if a question has to be decided as between the different parties whether they are arrayed as plaintiff or defendant, must in our opinion, be binding on all the parties. No doubt in an ordinary case a finding on an issue as between co-defendants is not binding unless it is necessary to give relief to the plaintiff and if there is a conflict between the defendants, but the decree in a partition suit stands on a different footing.
Where defendants in a partition suit pray for a partition of their share, then before such relief can be given to them their share must be ascertained. In such a case there is obviously a conflict of interest between the defendants and between that particular defendant and the plaintiff. A defendant who asks for partition of his share is entitled to such relief, and when a decree is drawn up he can take steps to enforce such a decree in much the same manner as if he was a plaintiff. In the present case the defendants first party in the partition suit asked for separation of their share. They pleaded what their share was, namely the properties which had been mortgaged to them by the present plaintiffs less four annas share in Maisaha.
It is clear that there was a conflict of interest between the present defendants first party and the present plaintiffs in the partition suit, and there was an express decision that the present defendants first party were the owners of all the properties mortgaged with the exception of four annas in village Maisaha. It appears to me that there was an express adjudication upon the question which this Court is now called upon to decide, and that being so the decision in the partition suit operates as res judicata.
Counsel for the respondents has further argued that the issue in the partition suit was not the same as the issue in the present suit. He points out that there was no adjudication in the partition suit upon the question whether the sale deed of 26th March 1933, was executed as the result of the plaintiffs'' fraud. In the partition suit the question of fraud was not raised because the present plaintiffs did not contest. The present defendants first party relied upon the sale deed dated 2nd March 1933, and it appears from the judgment in the partition suit that they admitted that they had reconveyed four annas share in Maisaha to the present plaintiff. Had the present plaintiffs appeared in the partition suit, they could have put forward the sale deed of 26th March 1933, executed by Hit Narain Singh in favour of their farzidar and claimed that such documents gave them title to the properties in dispute in this case. This was a defence which they could and should have taken in answer to the claim of the present defendants first party that they were the owners of all the mortgaged properties with the exception of four annas share in Maisaha.
The present plaintiffs did not put forward such a defence. The real issue in the partition suit was the ownership of the properties now in dispute, and it appears to me that that question was decided and decided finally in the partition suit. The real issue in the present case is the same. It is true that questions of fraud had not been raised, but a decision on these questions is only necessary in order to decide the title to the disputed properties. The preliminary decree in the partition suit has declared the present defendants first party to be the owners of all the properties mortgaged to them less four annas share is Maisaha, and if the present suit was decreed in favour of the plaintiffs there would be two contradictory decrees. Under the partition decree the defendants first party are entitled to a patti in proportion to their share including the disputed properties less Maisaha whereas a decree in favour of the plaintiffs in the present suit would give the latter possession of these very same properties. In my view two such contradictory decrees cannot be made.
Mr. Khurshaid Husnain strongly relied upon the case in Gopal Pattar v. Gopalakrishna Pattar AIR 1928 Mad. 630. In that case it was held that it was only when the determination of the question as between co-defendants was necessary for the-determination of the plaintiff''s claim that the decision as between co-defendants would operate as res judicata. If such determination as between co-defendants was not necessary for the decision of the plaintiff''s case, such decision would not operate as res judicata for the simple reason that it was on a question which, in the language employed in Section 11, Civil P.C., is, though substantially, not directly in issue. It would thus be clear that whenever the contest between co-defendants is not indicated and included in the plaintiff''s action itself, then, it would follow that for the purpose of a decision operating as res judicata as between co-defendants there must have been actually a conflict or issue raised as between them and that such conflict or issue must have been necessary for the determination of the plaintiff''s case.
The facts of that case were that A filed a suit against p, a tenant, for possession and rent and joined B and C as co-defendants. In the plaint A admitted that the property belonged to A, B and C. B eon-tested that G had no interest in the property. C did not appear and contest the suit. The suit was decreed and possession also decreed in favour of A and B in two equal shares. Later on, C sued A and B for partition, ascertainment and delivery of one-third share in the property. The defence was that the decision in the previous suit was res judicata. At p. 633, Jackson J., observed:
No mystery attaches to the principle of res judicata. If a matter has been directly and substantially in issue in a former suit between the same parties, and has been finally decided, that decision will be treated as final in a subsequent trial, with due regard to the competence of the Courts. If a plaintiff raises an issue in his plaint, and a defendant runs away from it by remaining ex parte, that defendant gives up his case and the Court will finally decide it against him. But if, apart from the plaint which has been served upon such defendant, new matter is brought in, either by way of amending the plaint or by way of written statements from other defendants, the defendant who has remained ex parte cannot be said to be running away from issues of which he has never heard. It would be odd to say that such matter had been directly and substantially in issue between the parties, when it is perfectly obvious as a matter of fact that between these parties it has never been in issue at all. The contrary position can only be established by assuming that a party once he is given notice of a suit must keep himself informed of every subsequent development, even though the plaint apprised him of nothing that he need contest. No case, and certainly no rule of procedure, has ever laid such a duty upon parties, and were this the law, it would follow as a natural corollary that every party must be served with every written statement and every amendment of the plaint.
It is to be observed that a decision on the claim of the co-defendant in this case was unnecessary to grant the plaintiff relief. The original suit was not one for partition, and it therefore differs very materially from the case now before the Court. As I have stated earlier, in a partition suit, each defendant interested in the property can himself claim partition, and if he does so the Court must first ascertain his share and then grant partition of that share.
In ascertaining the share of the defendant who claims partition, the Court must adjudicate on the rights of the various defendants. A defendant in a partition suit must be deemed to be aware of such a possibility whenever a partition suit is instituted. In such a case if the defendant does not appear, he cannot afterwards challenge the decision as to the shares of the various parties arrived at in that partition suit.
The present case is, in my view, clearly distinguishable from the Madras case Gopal Pattar v. Gopalakrishna Pattar AIR 1928 Mad. 630 here the original suit was not a suit in which each of the co-defendants could be regarded as plaintiffs.
For the reasons which I have given, I am satisfied that the plaintiffs'' present suit is barred by res judicata, though such a plea could not be successfully raised when the case was before the learned subordinate Judge. It is now necessary for me shortly to deal with the findings of fact in the case. As I have stated, the learned subordinate Judge who heard the suit, came to the conclusion that the defendants had failed to establish any fraud in connexion with the sale deed of 26-3-1933, retransferring to the plaintiffs'' farzidar the properties now in dispute. (After discussing evidence, his Lordship proceeded.) The learned subordinate Judge has, dealt fully with this aspect of the case, and it is impossible for me to say that his decision is erroneous. The evidence, to my mind, wholly fails to establish the fraud alleged, and consequently it must be held that this document was validly executed and transferred to the plaintiffs the properties in dispute. The defendants called a mass of evidence to show that the agreement as alleged by the plaintiffs could never have been arrived at, because such an agreement would be so favourable to the plaintiffs and so unfavourable to the defendants. According to the defendants, the value of two annas share in Simra including kamat and khudkast lands did not amount to anything like Rs. 16,000, and, therefore, they could not possibly have agreed to take this land in satisfaction of the amount due under the mortgages. It is urged that this valuation clearly shows that they must have deen defrauded. It may be that this was an unfortunate bargain for the defendants first party, but a Court cannot infer from that that fraud must have been practised.
In Mahabir Tewary v. Chhathu Tewary 19 AIR 1932 Pat 170, a Bench of this Court (Courtney-Terrell C. J., and Fazl Ali J.) dealt "with the importance of such evidence when fraud is alleged. The facts of that case were that in a partition suit a decree was passed based on a compromise between the parties which was however, subsequently challenged in the suit on the ground of fraud. It was held that the simple question in the suit related to the allegations as to fraud, and the Court below was wrong in first taking up the question as to whether the bargain was hard to the plaintiff in order to infer when there the compromise was genuine or fraudulent. It must be admitted that a Court is entitled to go into the question of fairness or otherwise of a bargain to ascertain whether that bargain was induced by fraud, and the evidence as to unfairness may assist the Court in coming to a conclusion upon the credibility of the witnesses dealing with the question of fraud.
If, however, direct evidence on the question of fraud is wholly unreliable, a Court cannot possibly base a finding of fraud purely on a finding that the transaction was unfair. (His Lordship then considered the documentary evidence on the question of fraud and proceeded.)
In my judgment the learned Judge was right in his conclusions of fact in this case. The defendants wholly failed to establish that the execution of the document of 26th March 1933, was induced by fraud, and that being so that deed transferred to the plaintiffs the properties now in dispute. However, as I have held that the plaintiffs'' claim is barred by res judicata, the plaintiffs'' suit unfortunately fails except with regard to Maisaha which the defendants first party admit belongs to the plaintiffs.
I would, therefore, allow this appeal, set aside the decree of the Court below and dismiss the plaintiffs'' claim except as to four annas share in Maisaha which the defendants first party have admitted throughout belongs to the plaintiffs. If the plaintiffs are not in possession of this village, possession of the same is given to them. As the plaintiffs have succeeded in both Courts on the issues of fact each party will bear its own costs in this Court and the Court below.
Manohar Lall, J.
I agree.