Jogeshwar vs Sunder and Others

O.P. Sharma, J.—This civil second appeal u/s 100 of the CPC arises out of concurrent finding of fact recorded by the lower appellate court

of Addl. District Judge, Ramban. Facts giving rise to the appeal are these. The appellant instituted a suit for declaration that his mother Mst. Buban

after the death of his father had re-married one Krishan, Out of her 2nd wedlock she gave birth to respondents Sunder and Faqir Chand. After the

death of Krishan, his estate developed upon Sunder, Faqir Chand and Mst. Buban in equal shares. Since the appellant is son of Mst. Buban from

her first husband, therefore, he was entitled to equal share in the estate of his mother alongwith Sunder and Faqir Chand. The suit was resisted by

the legal heirs of Mst. Durgi on the ground that Krishan was married only to Mst. Chuhi and out of this wedlock Mst. Durgi was born. During her

life time Mst. Durgi instituted against respondents Sunder and Faqir Chand besides others claiming to be daughters of Krishan out of the wedlock

from his wife Mst. Chuhi. This suit was decreed by the court of Sub-Judge, Ramban on 12.3.85 holding her to be the sole heir of Krishan. In this

earlier suit one of the issues was whether respondents Sunder and Faqir Chand were the sons of Krishan from his marriage with Mst. Buban. This

issue was decided holding that marriage of Mst. Buban with Krishan was not proved. Incidentally appellant had appeared as a witness in the

earlier suit on behalf of the respondents Sunder and Faqir Chand. The appeal filed against the judgment of Sub-Judge, Ramban dated 12.3.65 was

dismissed by the District Judge, Bhaderwah on 19.6.69. A civil second appeal was dismissed by this court on 3.3.75. Respondents Sunder and

Faqir Chand filed LPA No. 1 of 1975. Letters Patent Bench while summarising the facts from the pleadings and judgment returned observed as

under:-

Krishan and Rupa were two brothers who were sons of one Gursari. Likewise Mst. Chuhi and Mst. Buban were also two sisters. Mst. Chuhi

was married to Rupa whereas Mst. Buban was married to Mohar Singh. Rupa is alleged to have died some 40 years before the institution of the

suit out of which this appeal has arisen. The plaintiffs case is that on Rupa's death Mst. Chuhi married his brother Krishan and a daughter namely,

Mst. Durgi was born out of the said wedlock. Mohar Singh is also stated to have died sometime in the year 1966-67 Samvat. Mst. Buban after

the death of her husband, Mohar Singh, admittedly gave birth to two sons namely, Sunder and Faqir Chand, who are appellants before us. Mst.

Chuhi and her daughter Mst. Durgi brought a suit in the trial court for possession of some land belonging to Krishan on the allegation that Chuhi

was legally wedded wife of Krishan whereas Durgi was her daughter and that the defendants, namely, Sunder and Faqir Chand who were Just

strangers were in possession of the estate left by Krishan without any right or title. The case of Sunder and Faqir Chand on the other hand was that

their mother Mst. Buban, after Mohan Singh's death had remarried Krishan in Chader Andazi form according to the custom prevalent in the Illaqa

and accordingly mutation of the estate of Krishan was also attested in their favour and they were in possession of his estate as his sons....

It is admitted case of the parties that the finding of the trial court that Mst. Buban was never married to Krishan whereas Mst. Chuhi had

married his was upheld by the first appellate court in the first appeal as well as second appeal and finally it was also held that Mst. Durgi was born

to Mst. Chuhi out of her wedlock with Krishan. It was also found that Mst. Buban gave birth to respondents Sunder and Faqir Chand after the

death of her first husband, but their parentage could not be established.

It is on the basis of these judgments in the previous suit that the trial court as well as first appellate court dismissed the suit filed by the plaintiff-

appellant. This appeal was admitted to hearing for the determination of following substantial questions of law:-

Whether in the facts and circumstances of the present case, the decree passed against the appellant by the trial court and confirmed by the

appellate court is in accordance with law? 2. Whether the judgment in a previous suit to which the plaintiff was not a party nor he claims the

property through a party in litigation is binding on him within the meaning of Section 40 of the Evidence Act?

Whether in a suit for possession of land the determination of the question of paternity of a party to the same is a judgment in re., even when the

court is not exercising matrimonial jurisdiction?

The contention of Mr. Kotwal appearing for the appellant is that the finding of both the courts below that decree passed in the suit brought by

Mst. Durgi against Sunder and Faqir Chand operates as res judicata is erroneous because the appellant was not a party to the suit, merely because

he appeared as a witness for these two respondents who were defendants in the previous suit, he could not be deemed to be a party to the

proceedings. He further argued that paternity of the respondents Sunder and Faqir Chand could be established only by the District court exercising

powers under Hindu Marriage Act and not in a contemporaneous proceedings.

The question involved is whether the judgment in the previous suit to which the appellant was not a party is conclusive of the fact determined

therein and as such the same cannot be re-opened by the appellant. This question has been formulated with reference to Section 40 of the

Evidence Act which reads as under:-

Previous judgments relevant to bar to second suit or trial.-

The existence of any 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.

This section deals with the relevancy of judgments in a previous suit. High Court of Patna in (Babui) (Babui) Shamsunder Kuer Vs. Ramkhelawan

Sah and Others, held that a judgment not inter-parties is admissible in certain circumstances by observing as under:-

Sections 40 to 43, Evidence Act deal with the subject of relevancy of judgments. Judgments, qua judgments or adjudications are admissible as res

judicata u/s 40, or as in rem u/s 11 or as relating to matters of public nature u/s 42, Evidence Act. Judgments other than these mentioned in

Sections 40, 41 and 42 may be relevant u/s 43, if their existence is a fact in issue or is relevant under some other prevision of this Act. It is obvious

that a judgments, merely because it is not inter-partes is not shut out. The Full Bench case of Gurjja Lal v. Fatteh Lal (1880) 6 Cal. 171 has been

modified by the Privy Council in Ram Ranjan Chakerbati v. Ram Narain Singh 1895 22 Cal. 533 as held in the Full Bench case of Tepu Khan v.

Rajani Mohan Das 1898) 25 Cal 522. As was observed by Maclean, C.J., in Tepu Khan's case under certain circumstances and in certain cases,

the judgment in a previous suit, to which one of the parties, in the subsequent suit was not a party, may be admissible in evidence for certain

objects in the subsequent suit,...

The pith and substance of the judgment is that admissibility of a previous judgment depends upon the circumstances of each case. Since the

dispute in the earlier suit was the validity of the marriage of Mst. Buban with Krishan and appellant claims share in the property which according to

him developed upon Mst. Buban and respondents Sunder and Faqir Chand in equal share, this by itself is a circumstance which makes the

previous judgment admissible, yet another circumstance is that the appellant had appeared as witness in support of the plea that Mst. Buban his

mother was married to Krishan and had begotten Sunder and Faqir Chand respondents from Krishan. A similar preposition was laid down by the

AIR 1937 69 (Privy Council) holding that:-

The admissibility of the decree of 1916 is the next question. Whether based upon sound general principle or merely supported by reasons of

convenience, the rule that so far as regards the truth of the matter decided a judgment is not admissible evidence against one who is a stranger to

the suit has long been accepted as a general rule in English law. Exceptions there are, but the general rule is not in doubt. A well known statement

of its was given by Sir William de Gre (afterwards Lord Walsingham) in (1776) 2 Howell's State Trials, p 538 and a striking instance of its

application by the Board may be seen in (1868) 2 PC 121 . That the same rule applies in India though it is not expressly formulated in these terms

may be seen from a reference to Section 43, Evidence Act, 1872, and the illustrations given thereunder. On the other hand apart from all

discussion whether a judgment is or is not a 'transaction' within the meaning of Section 13 Evidence Act, the judgment of 1916 together with the

plaint which proceeded it and the steps in execution which followed, are evidence of assertion by the Raj of the right which it claims to have

acquired in 1903 and are thus admissible evidence of the right. There are undoubtedly cases in which a judgment is evidence of weight even against

third parties.

That as a general rule in so far as regards the truth of the matter decided, a judgment is not admissible in evidence against one who is a stranger

is the suit. But there are exceptions to this general rule and thereafter their lordships observed as under:

There are undoubtedly cases in which a judgment is evidence of weight even against third parties.

So the previous judgment in this case is admissible piece of evidence to decide the controversy with regard to the marriage of appellant's mother

with Krishan which stands adjudicated. This is also principle laid down in Gopi Sundari Dasi and Others Vs. Kherod Gobinda Chowdhury and

Others, , So the judgment in the previous suit, being relevant is admissible in evidence though not u/s 40 but u/s 43 of the Evidence Act. This takes

us to the question of paternity of the respondents Sunder and Faqir Chand. Argument advanced by Mr. Kotwal is that this question could be

determined only by the District Judge under Hindu Marriage Act. This contention is without any substance because the succession has to be

decided by the court which has jurisdiction. It is not a matrimonial dispute arising under the Hindu Marriage Act. The question before the Court

was whether the mother of the plaintiff had a share in the property of Krishan for which it was necessary to prove her marriage with him. This being

a suit for declaration and possession of immovable property had to be instituted only in the court of having pecuniary jurisdiction. So this argument

is without any substance.

The next question is whether the judgment and decree passed by the lower appellate court is in accordance with law. The answer is that while

the suit has been rightly dismissed but on different grounds as shall be noticed presently. Assuming that Mst. Buban had married Krishan, it is

admitted by the appellant that respondents Sunder and Faqir Chand were born to her besides a daughter form Krishan. Since Krishan died

intestate, the land being ancestral property, it will first be divided into three shares u/s 6 of the Hindu Succession Act. The share of Krishan will be

l/3rd in the entire estate. His share will be divided equally between sons daughter and widow. As he had also a daughter, so her share will be

divided into four shares. The total land being only about 18 Kanals, the share of Mst. Durgi would come to one and half kanal. This became her

absolute property. It has to devolve u/s 13 of the Hindu Succession Act which reads as:-

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 14-

(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b), (c), (d), and (e).

(2) Notwithstanding anything contained in Sub-section (1):-

(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased

(including the children of any pre-deceased son or daughter) not upon the other heirs of the father; and

(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of

the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order

specified therein, but upon the heirs of the husband.

So Section 13(2)(a) refers only to the property of the female Hindu dying intestate which she might have acquired from a source other than the

husband because husband also succeeds simultaneously with his children. The succession of the property which she has inherited from her husband

who pre-deceased her, is dealt u/s 13(2)(b). According to the appellant, suit property was inherited by her mother from Krishan. This will go only

to the sons of Krishan and not the heirs of mother. This is only to illustrate that the whole exercise of the appellant has been futile because he was

not entitled to inherit the property even if Mst. Buban is deemed to have married Krishan. This apart assuming that appellant could inherit though

under law he could not; one and half kanal being the assumed share, it has to be divided into four, two sons and a daughter besides the appellant.

It means about seven marlas each. What a long battle has been fought for these seven marlas can be best appreciated with reference to the facts

noticed above. It is only the ingenuity of the counsel appearing for the parties that the case has continued otherwise plaintiff if apprised of his share

would have hardly ventured to institute to the suit to take a chance.

In view of the above this appeal is dismissed, with costs.