Appeal No 349 of 1966
Appeal by special leave from the judgment and order dated December 17 1963 of the Punjab High Court
Circuit Bench at Delhi in RFA No 164 C of 1963
1003 section V Gupte and A N Goyal for the appellants
C B Agarwala H K Puri and B N Kirpal for respondent No 1
The Judgment of the Court was delivered by Hegde J
The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No 15 of 1943
The trial court answered that question in the affirmative but the High Court has taken a contrary view
Hence this appeal
The facts of the case leading up to this appeal briefly stated are as follows  One Krishen Gopal had lease hold rights in the suit pro perties
After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad the father of the appellants and Banwari Lal Verma the father of the respondents as to the title of the suit properties
Each one of them claimed that those properties had been gifted to him by Krishen Gopal
As a result of this dispute Jawala Prashad instituted on January 20 1943 Civil Suit No 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour
In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal
The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma
The trial court dismissed the suit but in appeal the decree of the trial court was reversed and the suit was decreed as prayed for
That decision was confirmed by the High Court and thereafter by this Court in Civil Appeal No 164 of 1953
After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted would have practically nullified the effect of the decree but those applications were rejected by this Court
Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways
When everyone of those efforts failed Rangi Lal Verma the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint
family consisting of Banwari Lal Verma and his sons
This suit was dismissed for non prosecution
It is only thereafter the present suit has been filed by one of the sons of Banwari Lal  Verma claiming partition in the suit properties on the allegation that the same had been gifted by Krishen Gopal to
his joint family
1004 The gift put forward by the plaintiff is said to have been made in 1928
Admittedly at that time all the sons of Banwari Lal Verma were minors see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff on February 26 1969 Therefore naturally the gift if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time
was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit
Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons
The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay if not defeat the course of justice
The effort is one and continuous
The suit from which this appeal has arisen is a clear abuse of judicial process
It is in this setting that we have to see whether the decision in Civil Suit No 15 of 1943 operates as res judicata in the present case
In the Civil Suit No 15 of 1943 there was no room for con troversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family
Therein the controversy was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma
As seen earlier Banwari La Verma pleaded that they had been gifted in his favour
He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity
The properties that were in dispute in the former suit as well as in the present suit are identical properties
It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit
That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it
If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family
It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit
That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit
It is not necessary in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager
It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand vs 1005 Sheogovind1 Ram Kishan vs Ganga Ram2 Prithipal V Rameshwar3 Surendranath vs Sambhunath4
The suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property see Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa5
See also Venkakanarayana vs Somaraju6
It is not not necessary where the manager is the plaintiff that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager
A Karta can represent the family effectively in proceeding though he is not named as such see Mani Sahoo vs Lokanath7
For the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored
The respondent shall pay the costs of the appellants in all the courts
VPS Appeal allowed
1 1929 ILR8 Pat 788
2  Lab
3  Luck
4  Cal


Summary:
A suit between J the father of appellants and B the father of respondents each claiming possession of the suit properties on the strength of an alleged gift deed in his favour was decreed in favour of J and the decree was confirmed by this Court
After various attempts by B and after his death by his sons to defeat J s rights one of B s sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of which B was the karta
On the question whether the decree in the earlier suit operated as res judicata
HELD  It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit that the plaint or written statement should state in express terms that he was suing or was being sued as a manager
It is sufficient if the manager was in fact suing or was being sued as representing the whole family
A suit by or against the manager will be deemed to be one brought by or against him as representing the family if the circumstances show that he was the manager and the property involved in the suit was family property
1004 H 1005 A B In the present case B must be deemed to have been sued in the previous suit as the karta of his family because  a the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta b there was no conflict of interest between B and his sons and there was no allegation that B did not safeguard the family s interest while contesting the previous suit and c B did not claim in the earlier suit that the gift was to him in his individual capacity
1004 A C 1005 C Lalchand vs Sheogovind Pat 788 Ram Kishan vs Ganga Ram Lah
428 Prithipal vs Rameshwar Luck
288 Surendranath vs Sambhunath Cal 210 Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa ILR  Venkatanarayana vs Somaraju AIR 1937 Mad
610 FB and Mani Sahoo vs Lokanath AIR  referred to