Appeals Nos 110 and 111 of 1951
Appeals from the Judgment and Decree dated May 6 1946 of the High Court of Judicature at Calcutta Biswas and Chakravartti JJ in Original Decree No 43 of 1942 with Civil Rule 399 of 1945 arising out of Judgment and Decree dated June 30 1941 of the Second Court of Additional Subordinate Judge 24 Parganas in Title Suit No 63 of 1938
N C Chatterjee Saroj Kumar Chatterjee and A N Sinha with him for the appellants in Civil Appeal No 110
Panchanan Ghose section N Mukherjee and Benoyendra Prasad Bagehi with him for Respondents Nos
I a and 1 b in Civil Appeal No 110 and the appellants in Civil Appeal No I I I Ram Krishna Pal guardian ad litem for responded No 5 3 in Civil Appeal No 110 and No4 3 in Civil Appeal No 111 156 1952
October27
The Judgment of the court wag delivered by MAHAJAN J
These two connected apeals from the judgment and decree of the High Court of Judicature at Calcutta in appeal from Original Decree No 43 of 1942 dated the 6th May 1946 arise out of Title Suit No 63 of 1938 instituted the 21st September 1938 in the Court of the Second Additional Subordinate Judge of Alipore by Rajlakshmi against the Sens and the Dasses for possession of the properties which represent a four anna share of the estate once held by one Raj Ballav Seal
the 8th June 1870 two days before his death Raj Ballav Seal a Hindu inhabitant of the town of Calcutta governed by the Bengal School of Hindu law executed a will giving authority to his widow Mati Dassi to adopt a son and appointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties
Raj Ballav was one of those persons who believe 0in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them
How his wishes have been respected by his descendants is now a matter of history
Since the year 1890 this is the eighth or ninth litigation concerning the construction of the testament he made that fateful ay and if by any means Raj Ballav could be informed of the result of these litigations and was told that it had been held that he had died intestate he would surely rise out of the ashes and lodge an emphatic protest against what has happened
Raj Ballav died the 10th June 1870 leaving him surviving his widow Mati Dassi and three grandsons who were sons of a predeceased daughter by another wife and one of whom died in 1880 unmarried
The grandsons  line will be referred to in this judgment as the Sens
On Raj Ballav s death Mati Dassi entered 157 into possession of the estate and adopted one Jogendra Nath Seal in 1873 under  the authority conferred her
Jogendra married Katyayani and Rajlakshmi the plaintiff in the suit out of which these appeals arise is their only child
She was less than one year old when Jogendra died in 1886
Shortly after the death of Jogendra Mati Dassi adopted Amulya Charan a brother of Katyayani in further exercise of the authority conferred her
Mati Dassi died in 1899 and the Sens then appeared to have taken possesion of the estate
During the lifetime of Mati Dassi the two grandsons commenced a suit 22nd July 1890 against Mati Dassi and the other executors then living Amulya and Katyayani for a declaration of the rights of the parties under the will administration of the estate accounts and a declaration  as regardit their quarter share of the net income
Trevelyan J declared that the grandsons were entitled to an onefourth share of the estate absolutely and directed accounts to be taken
This declaration was granted against Mati Dassi alone the suit having been dismissed against the other defendants
The two grandsons having taken possession of the whole estate after the death of Mati Dassi Amulya brought a suit the 9th October 1901 against them and Katyayani for construction of the will and a declaration that he was the duly adopted son and heir of Raj Ballav and that as such he was entitled to a three fourth share of the estate and the Sens were entitled only to the remaining one fourth share
By a judgment dated 5th January 1903 the trial court dismissed the suit the view that under the will the first adopted son had acquired an absolute right Pitle and interestin the share of the estate left by the will of his adoptive father and he having left a widow and a daughter Mati Dassi had no authority to make a second adoption
This decision was affirmed appeal
Amitlya Charan Seal vs Kalidas Sen1
13th January 1903 eight days after the decision of the trial court dismissing Amulya s suit I Cal
361 158 Katyayani commenced suit No 11 of 1903 against the Sens Amulya and the receiver appointed in Amulya s suit for construction of the will declaration of title partition and accounts
In the plaint as originally filed Katyayani admitted the title of the Sens to an one fourth share of the estate and claimed only a three fourth share for herself as the widow of Jogendra
The Sens claimed the whole estate for themselves as the heirs of Raj Ballav
They pleaded that the will was not genuine and that even if it was genuine the bequests in favour of the adopted son and for the worship of the deity were invalid and that even if they were valid Jogendra having died before attaining the age of 20 years had taken nothing under the will
During the pendency of this suit the 25th September 1903 the Sens mortgaged the whole sixteen annas of the estate to one Shib Krishna Das in order to secure a loan of Rs 7000
The mortgagee and his representatives in interest will be described in this judgment as the Dasses
Amulya s appeal against the judgment of the trial court dated 5th January 1903 was decided in 1905 during the pendency of Katyayani s suit No 1 1 of 1903 instituted the 13th January 1903 and after the Dasses as mortgagees had entered into possession
the 26th September 1905 after the decision of the High Court in Amulya s suit Katyayani applied for an amendment of the plaint so as to include a claim for the whole estate in accordance with that decision
This application was allowed
To this amended plaint no further written statement was filed by the Sens
By a judgment dated 21st December 1905 the trial Judge decreed the claim of Katyayani forthe whole of Raj Ballav s estate and a decree for recovery of possession of the whole estate was passed in her favour
It was held that the whole of the corpus of the estate had vested in Jogendra and the provisions of the will whereby a fourth share had been bequeathed to the grandsons were void and ineffectual
The plea of adverse possession and limitation taken by the Sens was abandoned at the trial 159 Against this decision an appeal was taken to the District Judge
The mortgagee Shib Krishna Das was also added as a party in the appeal
The appeal was compromised and under the compromise Katyayani was to get a six anna share in absolute right in the estate Kanai her father was to get another six anna share for his supposed troubles and expenses in connection with the litigation and each of the Sons a two anna share their shares to be subject to the mortgage
charge
The compromise decree was passed 9th January 1907 and the suit was remanded to the trial court in order that a partition might be effected and a final decree passed
A partition was made in due course and final decree was passed 10th September 1907
On the 18th April 1907 after the consent decree had been made by the appellate court in Katyayani s suit Rajlakshmi daughter of Katyayani and the next reversioner to the estate of Jogendra commenced suit No 59 of 1907 against the parties to the compromise for a declaration that the compromise and the consent decree were void and inoperative and that they were not binding her
The trial court held that the compromise was binding Rajalakshmi but that she was entitled to a declaration that Katyayani had taken only a widow s estate in the six annas share given to her
appeal by Rajlakshmi the High Court 8th August 1910 reversed the trial court s decree and declared that the consent decree was void and inoperative as against Rajlakshmi and that she was in no way bound by the partition proceedings which had taken place in execution thereof
The appeal was not contested by the Sons but was contested by the representatives of their mortgagees the Dasses who asserted the title of their mortgagors to an one fourth share of the estate both under the compromise decree and the will
Bajlakshmi Dassee vs Katyayani Dassee1
In the year 1919 two cross suits were commenced by the grandsons and by Katyayani and Rajlakshmi I Cal
160 for recovery of the twelve annas share and the four annas share respectively in the possession of the respective parties
Katyayani brought suit No 115 of 1919 for recovery of the four anna share against the Sens and the Dasses while the Sens brought suit No 112 of 1919 for recovery of the twelve annas share of the estate against Katyayani and Rajlakshmi
Both these suits were dismissed by the trial judge and his decision was affirmed appeal 21st July 1925
Before the commencement of this suit the Dasses had brought a suit the foot of their mortgage and had obtained a mortgage decree which was made final 23rd November 1918
The property described as 2 Deb Lane Calcutta forming part of Raj Ballav s estate and which had  been allotted under the compromise to the share of the Sens was notified by a declaration under the Land Acquisition Act for acquisition the 16th January 1921
the 27th April 1928 Ajit Nath Das mortgagee made an application  claiming the entire amount of compensation money and contended that the mortgagee decree holders were entitled to the whole of it
Rajlakshmi claimed the entire amount as owner of the sixteen anna share of Raj Ballav s estate
the 7th July 1928 a joint award was made in favour of all the claimants
Rajalakshmi asked for a reference to the court the point of apportionment of compensation by a petition made by her the 18th July 1928
She asserted that the Sens and the Dasses were not entitled to any portion of the compensation money
Ajit Nath Das mortgagee also made an application for reference the 18th August 1928
A similar petition was made by Jogender Mohan Das
Bholanath Sen filed a statement of the claim 8th June 1929
A special judge was appointed under the Land Acquisition Act to try the matter
He disallowed Rajlakshmi s claim and held that the Sens were entitled to the entire compensation money
Both the Sens and the Dasses were represented by their respective counsel and made common cause against Rajlaksbmi
161 Rajlakshmi appealed to the High Court against the decision of the special judge but without any success
Her appeal was dismissed 8th March 1935
She preferred an appeal to the Privy Council
This was allowed and Rajlakshmi was declared entitled to the entire compensation money
Rajlakshmi vs Bholanath Sen 1
Within two months of the decision of the Privy Council the suit out of which these appeals rise was commenced as already stated by Rajlakshmi 21st September 1938 against the Sens and the Dsses for possession of the properties which represented the four anna share of the estate allotted to the Sens and possession of which was delivered to them in pursuance of the terms of the final decree in suit No 11 of 1903
A portion of these had since then been purchased by the Dasses in execution of the mortgage decree
This suit was dismissed by the trial judge
Rajlakshmi appealed to the High Court against the dismissal of her suit
The High Court allowed the appeal in part the judgment and decree of the trial court in so far as they dismissed the plaintiff s suit as against the Sens were set aside and the suit was decreed against them and the plaintiff s title to the properties in suit was declared as against them
It was ordered that she should recover possession from them as also from defendant 14 as receiver but that her title and possession were subject to the rights of the defendants respondents 3 to 13 Dasses to proceed against the properties in execution of their mortgage decree the basis that these properties were in the possession of and dealt with by defendantsrespondents 1 and 2 as representing the four anna share of the estate to which they had title
An enquiry was also ordered as to the amount of the mesne profits
The appeal was dismissed as against respondents 3 to 13 the Dasses
The correctness of this decision has been impugned before us in these appeals by the respective parties to the extent that it goes against them
I 1938 65 IA 365 162 In order to appreciate the contentions raised in the two appeals it is necessary to determine the true scope and effect of the decision of the Privy Council in the land acquisition case of 1928 Rajlakshmi vs Bholanath Sen 1
The premises acquired in those proceedings admittedly formed Part of the estate of Raj Ballav Seal which under the compromise decree of 1907 had by partition fallen to the four anna share allotted to the Sens
There was a triangular contest about the award of the compensation and a joint award was made in their favour after notice to all the parties interested in the property acquired including the mortgagees
That the mortgagees were within the definition of the phrase  person interested is plain from the language of section 10 of the Act and perhaps it would have been unnecessary to mention this elementary fact by reference to the provisions of the Act had not the High Court thought otherwise
As already stated the Sens the Dasses and Rajlakshmi required the question of apportionment of compensation to be referred to the determination of the court and they stated the grounds which their claims were based
The dispute that arose between the parties is apparent the face of those proceedings and in the words of Lord Thankerton who delivered the decision of the Board the matter in controversy was whether Rajlakshmi was entitled to the compensation money awarded in respect of the acquisition of part of the premises 2 Deb Lane in the town of Calcutta as successor to the estate of Raj Ballav Seal of which the said premises formed part
The claim to compensation made by the respective parties was founded the assertion of their respective titles in that part of Raj Ballav s estate which under the partition decree of 1607 had been allotted to the Sens subject to the charge of the Dasses and the decision the question of apportionment depended the determination of that title
The land acquisition court had thus jurisdiction to decide the question of title of the parties in the property I 1938 65 IA 365
163 acquired and that title could not be decided except by deciding the controversy between the parties about the ownership of the four anna share claimed by the Sens and Rajlakshmi
The Land Acquisition Court and the High Court appeal held the title of the four annas share proved in the Sens
But their Lordships of the Privy Council held otherwise and found that the Sens had no such title and that Rajlakshmi alone was entitled to the whole of the estate of Raj Ballav Seat including the four anna share that was in possession of the Sens and which their mortgagees had a charge
This is how their Lordships settled the matter in controversy It is important to get a clear view of the position of the estate after the decision of the High Court of 8th August 1910 the effect of which inter alia was to annul the consent decree of the District Court in No 11 of 1903 and to leave the decree of the Subordinate Judge dated December 21 1905 which has been already quoted as final and binding
This decree declaring Katyayani s title to the whole estate was clearly a decree in Katyayani s favour as representing the whole interests in the estate and it has rightly been so regarded by both the courts below in the present case and it formed res judicata in any I question with the Sens
As regards possession of the estate while the decree made an order for recovery of possession the possession given under the partition of 1907 continued the Sens being in possession of the four annas
It seems clear that possession under an agreement which was not binding the reversionary heirs could not avail the Sens in a question with a reversionary heir whose right to possess could not arise until the succession opened to such heir
 The above is a clear determination of the question of title between the Sens and Rajlakshmi in regard to the four anna share
It was argued behalf of the Sens before the Privy Council that in any case 164 the decision in suit No 115 of 1919instituted by Katyayani against the Sens and their mortgagees for recovery of the four anna share operated as res judicata the claim of Rajlakshmi
This plea was Inegatived and it was held that the decree in suit No 115 of 1919 could not and did not affect Rajlakshmi s right to possession
There can thus be no doubt that the determination of the question of title to this part of Raj Ballav s estate was within the scope of the land acquisition proceedings and the title was finally determined in those proceedings
In order successfully to establish a plea of res judicaia or estoppel by record it is necessary to show that in a previous case a court having jurisdiction to try the question came to a decision necessarily and substantially involving the determination of the matter in issue in the later case
It was at one time a matter of doubt whether the determination of a court to which a matter had been referred by the collector was such a decision and that doubt was resolved by the judgment of the Privy Council in Bamachandra Bao vs Ramachandra Rao1 which decided that where a dispute as to the title to receive the compensation had been referred to the court a decree thereon not Appealed from renders the question of title resjudicata in a suit between the parties to the dispute
In that case it was observed as follows The High Court appear only to have regarded the matter as concluded to the extent of the co mpensation money but that is not the true view of what occurred for as pointed in Badar Bee vs Habib Merican Noordin2 it is not competent for the court in the case of the same question arising between the same parties to review a previous decision no longer open to appeal given by another court having jurisdiction to try the second case
If the decision was wrong it ought to have been appealed from in due time
Nor in such circumstances can the interested parties be heard to say that the value of the subject matter 1 1922 49 IA 129
2 165 which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it
If such a plea were admissible there would be no finality in litigation
The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute
It has been suggested that the decision was not in a former suit but whether this were so or not makes no difference for it has been recently pointed out by this Board in Hook vs Administrator General of Bengal1 that the principle which prevents the same matter being twice litigated is of general application and is not limited by the specific words of the Code in this respect In Bhagwati vs Bam Kali1 an issue was decided in favour of B in a land acquisition proceeding that she was entitled to the whole of the compensation money
In a subsequent suit by another widow who was also a claimant in the land acquisit ion proceedings for a declaration that she was entitled to a half share in the estate inherited by her husband and his brothers it was held that her suit was barred by the rule of res judicata the District Judge having in the previous proceeding decided that she had no title to the land
In that case part of the property in dispute was acquired under the Land Acquisition Act and the Collector by his award apportioned the compensation between the widows in equal shares
Both the widows raised the question of title to the compensation
The objections were referred under the Act to the District Judge and the District Judge the issue as to whether Bhagwati was entitled to the entire compensation or whether Ram Kali was entitled to a half found in favour of Bhagwati
Ram Kali then brought a suit  against Bhagwati for a declaration of her right to a half share of the whole of the property inherited by the brothers and their mother
The Subordinate Judge held that the suit was barred by res judicala by the decision of the District Judge in the reference under the Land Acquisition Act
The High Court 1 1921 48 IA 187
2 1939 66 IA 145
166 reversed this decision holding that Ram Kali s title was not the subject matter of the reforence to the District Judge and he was not therefore competent to try it
The Privy Council reversed this decision and held that the District Judge did determine the question of the ownership and his decision was binding upon the parties and the matter was res judicata
These two decisions in our opinion are conclusive the point of resjudicata raised in the present case and in these circumstances it has to be hold that the question of title to the four anna share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a court having jurisdiction to try it and that decisionthus operates as res judicata and estops the Sens  and the mortgagees from re agitating that matter in this suit
We are not now concerned with the question whether the Privy Council was right or wrong
The High Court held that there can be no question that this decision is binding the Sens and concludes them the question of their title as against Rajlakshmi and that there could be no question also that it is binding the mortagees who were parties to the proceeding
In the concluding part of the judgment they observed as follows Our conclusion therefore is that there is nothing in the decision of the Privy Council which can operate as res judicata against the Dasses either directly or constructively the question of the title of the Sens to the mortgaged properties
They are bound by the decision so far as it goes just as the Sens can no longer say that the decision in suit No 11 is not res judicata against them in a question with the plaintiff both as regards title and the right to possessionso cannot the Dasses say that the decision is not res judicata against the Sens
But their own right to prove the title of the Sens against the plaint iff is in no way affected
This may look anomalous but such anomaly is inherent in the doctrine of res judicata which does not create or destroy title but is only a rule of estoppel 167 With great respect it seems to us that the conclusion reached as regards the mortgagees is neither illuminating nor sound
The anomalous result arrived at is account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent in the doctrine of res judicata
The learned Judges posed certain questions and then attempted to answer them in view of the limited provisions of section 11 Civil Procedure Code which in terms apply only to suits forgetting for the moment if we may say so with respect that the doctrine of res judicata is based general principles of jurisprudence
The questions were 1 Did the judgment of the Privy Council in the 1928 land acquisition proceedings decide any question as to the right of the mortgagees to hold from the Sens a mortgage of the four anna share or their right to prove the title of their mortgagors in a question between themselves and the reversioners to Jogendra s estate  2 Could the mortgagees have raised these questions in the land acquisi tion proceedings and even if they could have are the questions such that they ought to have been raised It is difficult to appreciate how both these questions were germane to the issue to be decided in the case
Here it is worthwhile repeating what was said by Sir Lawrence Jenkins in delivering the judgment of the Board in Sheoparsan Singh vs Ramnandan Singh1  In view of the arguments addressed to them their Lordships desire to emphasize that the rule of res judicata while founded ancient precedent is dictated by a wisdom which is for all time It hath been well said  declared Lord Coke interest reipublicaeut sit finis litium otherwise great oppression might be done under colour and pretence of law   Though the rule of the Code May be traced to an English source it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators
Vijnaneswara and Nilakantha include the plea of a former judgment among those allowed by law each citing for this purpose the text of i 1916 43 IA 91 at p 98 168 Katyayana who describes the plea thus If a person though defeated at law sue again he should be answered you were defeated formerly
This is called the ple a of former judgment
And so the application of the rule by the courts in India should  be influenced by no technical considerations of form but by matter of substance within the limits allowed by law
 The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not upon section 11 of the Act
If it were not binding there would be no end to litigation The mortgagees had been fighting about the title of the mortgagors from the year 1910
When Rajakshmi lost her suit instituted 18th April 1917 to contest the compromise decree in suit No 59 of 1907 and preferred an appeal to the High Court that appeal was not contested by the Sens at all but was contested by the representatives of their mortgagee who asserted the title of the mortgagors to one fourth share of the estate both under the compromise decree and under the will
In the year 1919 when the two cross suits above mentioned wore commenced the mortgagees were impleaded as parties and took an active interest in the cases
When the proceedings under the Land Acquisition Act were commenced in the year 1928 a joint award was made in their favour along with the Sens and Rajlaksmi
As parties interested in the property acquired they asked for a reference and gotit
They were represented by counsel before the land acquisition court and got a decision the question of title as to the four anna share of the estate of the late Raj Ballav in favourofthemortgagorsandthemselves
They were impleaded as parties in the appeal preferred by Rajlakshmi to the High Court and before that court also they were represented by counsel and were successful in defending that appeal
They were again impleaded as parties by Rajlakshmi in the appeal preferred by her to the Privy Council
They took active part in the proceedings for leave to appeal and in 169 having the papers prepared for the use of the Privy Council
As a matter of fact they paid part of the printing cost
Their non appearance before the Privy Council at the time of hearing cannot thus relieve them of the consequence of an adverse decision given against them by the Privy Council
They had every right in those proceedings to defend the title of their mortgagors to the four anna share and they fully exercised their right except that at the last stage possibly having won in the two courts below they assumed that the decision in the final court would also be favourable to them and did not appear before the Privy Council
It had been held in a number of cases prior to the amendment made in section 73 of the Transfer of Property Act by Act XX of 1929 that where the property acquired forms part of an estate which is mortgaged for an amount larger than the amount awarded as compensation the mortgagee is entitled to the whole of the compensation in liqcuidation of the mortgage debt
This view was accepted by the legislature when it added sub sections 2 and 3 to section 73
Sub section 2 is in these terms Where the mortgaged property or any part thereof or any interest therein is acquired under the Land  Acquisition Act 1894 or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property the mortgagee shall be entitled to claim payment of the mortgagemoney in whole or in part out of the amount due to the mortgagor as compensation
 In view of the provisions of sections 9 10 18 and 30 of the Land Acquisition Act it is evident that if the mortgagee actually intervenes in the land acquisition proceedings and makes a claim for the compensation and any question of title arises about the right of the mortgagor in respect to the land acquired which affects the claim for compensation he has every right to protect that title
In the proceedings commenced in 1928 for the acquisition of 2 Deb Lane Calcutta as already stated the mortgagees actually 170 intervened and defended the title of their martgagors but without success
In those circumstances the view taken by the High Court that they had no locus standi to make the claim as it was not based their own title cannot be sustained because a mortgagee has no other title than the title of his mortgagor
The judgment of the High Court when it says that the Dasses claimed it the footing that they being creditors of the Sens with a lien the property were entitled to receive the money towards the satisfaction of their debt and their claim therefore was not a claim of title but only a claim to receive the compensation money is clearly erroneous as the claim could be established only by proving the title of their mortgagors as against Rajlakshmi
We have further not been able to follow the judgment of the High Court when it says that the and acquisition court must be presumed to have dismissed the mortgagees  claim the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money
It would have been more accurate if it was said that the land acquisition court having held the title of the Sens proved to the premises acquired presumed that the compensation money to which the Sons were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common cause against Rajlakshmi
The High Court further observed that the mortgagees were bound by the decision of the Privy Council so far as it goes against them
We are not able to see to which part of the decision this remark relates
The only decision that the Privy Council gave was the question of the title of the Sens
The award of compensation to Rajlakshmi was a mere consequence of it and if the Sens had no title in the four anna share of Raj Ballav s estate the mortgagees obviously can have no lien any part of the property included in that share
The strangest part of the judgment of the High Court is when it says that the right of the Dasses to prove the title of the Sens against the plaintiff was in no way affected by the Privy Council decision
171 It seems to have lost sight of the fact that that right was advanced by the Dasses more than once
It was exercised by them in the litigation of the year 1907 which ended in the decision of the High Court in 1910
It was exercised by them in the 1919 litigation and was again exercised by them in the land acquisition proceedings of 1928
In these circumstances it appears to us that they had no further right left to establish the title of their mortgagors in the four anna share of Raj Ballav s estate claimed by them
It may be pointed out that the mortgagees having got a decision in their favour from the High Court absented themselves before us
One of the representatives of the original mortgagees Ram Krishen Das is a minor and was represented by a guardian ad litem appointed for the suit in the court below
He appeared and contested the appeal and urged that the mortgagees had no interest whatever in the property acquired and that they were interested only in realising their debt
This contention is directly opposed to the provisions of section 58 of the Transfer of Property Act and the clear provisions of section 73 which only states the law that prevailed even before then
The result is that we are of the opinion that the High Court was in error in holding that the decision of the Privy Council in the land acquisition case of 1928
was not binding the mortgagees the question of the title of the Sens to the four anna share of Raj Ballav section estate as against Rajlakshmi
Mr Panchanan Ghose for the
Sens made a valiant effort to escape from the effect of the Privy Council judgment in Rajalakshmi vs Bholanath Sen1 a number of grounds
None of his arguments however was convincing and might well have been summarily rejected but we think that it is due to Mr Ghose and his long standing at the Bar that the arguments are noticed and met
The first contention raised by him was that the judgment of the Privy Council could not operate as i 1938 65 IA 365
172 res judicata against the present contention of the Sens and the mortgageesabout the title to the four anna share of Raj Ballav s estate because the subject matter of those proceedings was the compensation money a sum of Rs 900 and not the property that is the subject matter of the present suit
He argued that when the plea of res judicata is founded general principles of law that plea can only prevail provided the subject matter in the two cases is identical
It was conceded that such contention could not be sustained under the provisions of section 11 of the Code
In our opinion this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati vs Bam Kali1 cited above in clear and emphatic terms
In that case in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable
The quotation already cited earlier from this decision brings out that point clearly
The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases
It was then argued by Mr Ghose that the judge who decided the apportionment issue in the land acquisition proceedings of 1928 was a special judge appointed under the Land Acquisition Act and not being a District Judge the two decisions of the Privy Council
 ie Bamachandra Bao vs Bamachandra Rao2 and Bhagwati vs Bam Kali1 had no application as the special judge had no jurisdiction to hear the present suit while the District Judge in those cases would have jurisdiction to hear the regular suits
It was urged that to substantiate the plea of resjudicata even general principles of law it was necessary that the court that heard and decided the former case should be a court competent to hear the subsequent case
This contention was based the language of I 1939 66 I A 145
2 1922 49 IA 129
173 section 11
The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted the general rule of res judicata by section 11 of the Code and has application to suits alone
When a plea of res judicata is founded general principles of law all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction
It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit
A plea of res judicata general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction like revenue courts land acquisition courts administration courts etc
It is obvious that these courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred them by the statute
We have not been able to appreciate the distinction sought to be made out by Mr Ghose that had this matter been decided by a District Judge then the decision of the Privy Council would have been res judicata but as it was decided by a special judge the effect was different
The District Judge when exercising powers of a court under the Land Acquisition Act in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises the regular civil side
Next it was urged that the decision given by the Privy Council was ex parte and it had not the force of res judicata unless the subject matter of the two proceedings was identical
Reliance for this proposition was placed certain observations contained in the decision of the House of Lords in NeW Brunswick Rly
Co vs British French Trust Corporation1
in that case a view was expressed that in the case of a judgment in default of appearance a defendant is only estopped from setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment and it I 1939 AC I 23 174 was said that if a Writ is issued for a small claim the defendant may well think it is better to let judgment go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendat precluded from contesting the later case
These observations have no apposite
application to the circumstances of the present case where the judgments of the first two courts were given after full contest and then a party defaulted in appearing before the Privy Council after having obtained judgment in his favour in the courts below
A now point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court
The point was that the present suit of Rajlakshmi was barred by section 47 Civil Procedure Code inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No II of 1903 and having obtained a decree for possession her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit
 The plea has no substance in it
The decree given in suit No 11 of 1903 became unexecutable by reason of the compromise arrived at in appeal in that case in 1907 which compromise was given full effect by actual partition of the property
When that decree was declared null and void at the instance of Rajlakshmi it still remained binding inter partes during the lifetime of Katyayani and that was the reason why Katyayani s suit brought in 1919 for recovery of possession of the four anna share was dismissed
That suit however was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogendra s estate
It was for this reason that the Privy Council in the 1928 land acquisition case held that it 175 had not the effect of res judicata Rajlakshmis suit claiming title in the four anna share of Raj Ballav s estate which under the partition decree had gone to the Sens Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed
She had a fresh cause of action  to bring a new suit for possession by setting aside the compromise
This she did but failed
As against Raj lakshmi the plea of section 47 in these circumstances can have no validity
Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit
For the reasons given above this contention of Mr Ghose also fails
Mr Ghose raised a question of limitation and urged that Rajlakshmi s suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to Jogendra and he having failed to file a suit both Katyayani and Rajlakshmi must be taken to have lost the title to the part of the property in the possession of the Sens
The premises which this contention is based is erroneous
Jogendra died long before the Sens took possession of the property and therefore Jogendra before his death had no cause of action against the Sens to eject them as they were not in possession
the other hand the trustees were holding the property his behalf
The pleas of limitation and adverse possession were abandoned by the Sens a former occasion as already stated in the earlier part of this judgment and they were negatived by the Privy Council in the land acquisition proceedings
It is evident that the possession of the Sens during the lifetime of Katyayani could not confer any title them as against Rajlakshmi the next reversioner whose title to the estate could only arise the death of Katyayani
For the reasons given above we hold that the appeal No 111 of 1951 preferred behalf of the 176 Sens has no merits and must fail
It is accordingly dismissed with costs
The appeal preferred by Rajlakshmi against the mortgagees No 110 of 1951 is allowed with costs in all the courts and her title to the property in suit and for possession of the f same is decreed and it is directed that the defendants do deliver Possession of the suit properties to the plaintiff
It is further declared that the plaintiff is entitled to mesne profits from the defendants
An enquiry will be made as to the amount of mesne profits due prior and subsequent to the institution of the suit and there will be a decree for the amount so determined
In conclusion we do express the hope that this judgment will finally conclude the ruinous litigations which have been going in courts since the last 62 years in respect of Raj Ballav s estate and ingenuity of counsel will no longer be pressed into service to again reopen questions which must now be taken as finally settled
Appeal No 110 allowed
Appeal No 111 dismissed
Agent for the appellants in C A No 110 and respondent No 1 in CA No Ill section C Bannerjee
Agent for respondents Nos 1 a and b in CA No 110 and appellants in C A No Ill Sukumar Ghose


Summary:
Order 32 r 72 of the Code of Civil Procedure which is intended to protect the interest of the minor really means that an agreement or compromise entered into on behalf of the minor in contravention of 0 32 r 71 is voidable only at the instance of the minor and not at the instance of any other party to it
Such contravention does not render the agreement or decree a nullity and the same has to be avoided in an appropriate proceeding
Manohar Lal vs jadu Nath Singh 1906 LR 33 IA 128 referred to
Chhabba Lal vs Kallu Lal 1946 LR 73 IA 52 jamna Bai vs Vasanta Rao 1916 LR 43 IA 99 and Khiarajmal vs Daim 1904 LR 32 IA 23 held inapplicable
Where a preliminary decree is passed in non compliance with the provision of 0 32 r 71 the remedy of the minor is by way of an appeal against that decree and not against the final decree since section 97 of the Code is a bar to the challenging of the preliminary decree in an appeal against the final decree
Consequently in a suit for the partition where preliminary decree by consent was passed against the minor in contravention of 0 32 r 7i and that decree having been sought to be set aside in an appeal from the final decree the High Court held that section 97 of the Code precluded the appellant from doing so
Held that the decision of the High Court was correct and must be ashamed 770 Held further that the object section 97 of the Code was intended to achieve would be wholly frustrated if it were to be held that the section merely prohibited a challenge to the factual correctness of the decree and not its legal validity