*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + A.S.NOS.798 OF 2001 AND A.S.NO.275 OF 2006 % 19-04-2011 # Bezawada Radha Krishna Murthy ….Appellant Vs. $ Manne Praveen Kumar and others …. Respondents !Counsel for the Appellant : Sri M.Venkata Narayana Counsel for the Respondents: M.N.Narasimha Reddy <Gist : >Head Note: ? Cases referred: [1] (1977) 3 SCC 99 2 (1998) 6 SCC 314 3 (1999) 3 SCC 234 4 AIR 1968 S.C.933 5 AIR 1987 S.C. 353 6 AIR 1997 S.C. 3082 7. AIR 1994 S.C. 2145 8 AIR 1971 S.C. 664 9 AIR 1966 A.P. 210 10 (2005) 6 SCC 751 11 AIR 1953 S.C. 65 12 AIR 1956 S.C. 346 13 AIR 1997 S.C. 808 14 AIR 1989 S.C. 2240 15 2006(4) ALT 64 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NOS.798 OF 2001 AND A.S.NO.275 OF 2006 COMMON JUDGMENT: A.S.798 of 2001 arises out of the judgment dated.28-09-2000 in O.S.No.42 of 1995 on the file of the court of Additional Senior Civil Judge, Ongole; whereas A.S.No.275 of 2006 arises out of the judgment dated 11-09-2002 in O.S.No.142 of 1998 on the file of the court of Additional Senior Civil Judge, Ongole. Both the suits relate to the estate of one Raghavamma wife of Late Chenchaiah. One late Manne Chenchaiah and Audenna were brothers, and Raghavamma was the wife of Chenchaiah who died in 1930 pre-deceased Audenna. M.Venkata Subbaiah was the son of Audenna. After the death of Audenna, Venkata Su0bbaiah executed a registered settlement deed on 01-08-1947 in favour of Raghavamma towards her maintenance and separate residence with limited rights and with a condition that the same will be reverted to his family. Thereafter, M.Venkata Chalapathi who is the first defendant in O.S.No.42 of 1995 and who is the grand-son of Audenna filed the suit for partition and separate possession of his share in O.S.No.33 of 1955 against his father M.Venkata Subbaiah and others. The property given to Raghavamma-plaintiff in O.S.No.42 of 1995 was shown as “G” schedule. The suit was decreed and Raghavamma was shown as 38th defendant in the above suit. That suit was decreed holding that Raghavamma has got only life-estate and the partition of that property was postponed till after the death of Raghavamma. As against that judgment, the parties have carried the matter in appeal to High Court in A.S.Nos.256, 259, 260 and 271 of 1959 and 232 of 1962 and a learned Division Bench of this court in its judgment dated 13-10-1964 held that a direction should be given with regard to partition of those properties also and accordingly the Division Bench held that a direction is to be incorporated in the decree that the vested remainder in “G” schedule property (the property given to Raghavamma), first plaintiff and first defendant should have equal share. With such a direction the appeals were disposed off and in that appeals Raghavamma did not contest though she gave evidence in O.S.No.33 of 1955 as PW.4 confining her rights as a limited estate holder. The suit O.S.No.33 of 1955 was disposed off on 09-03-1959. While the matter stood thus, Raghavamma filed the suit O.S.No.42 of 1995 contending that she is an illiterate woman and not aware of her legal rights under Section 14(1) of the Hindu Succession Act,1956 (for brevity “the Act”) and she did not claim so by filing a separate written statement in the earlier suit and remained ex parte. The first defendant and his father fraudulently and collusively obtained the earlier preliminary decree in O.S.No.33 of 1955. Therefore, the said decree is not binding and she is the absolute owner of the property. She also claims to have executed a registered will on 31-03-1981 in favour of the second plaintiff who came on record after her death. It was also pleaded that M.Venkata Subbaiah executed a will in favour of the second defendant in O.S.No.42 of 1995 with regard to his share and there is no valid right created under the will. The plaintiff learnt that defendant Nos.2 and 3 surrendered an extent of Ac.0.64 cents towards excess hold to the fourth defendant which is also not valid. The defendants are also trying to take forcible possession of the property. Therefore, the suit was filed for declaration of title and grant of injunction in forma pauperis. The first defendant filed a written statement admitting that the second plaintiff was adopted by the first plaintiff and she executed a will. It was further pleaded that in case the rights of the plaintiffs are not enlarged, the first defendant will get a share. The defendant Nos.2 and 3 filed a separate written statement denying most of the allegations of the plaintiffs about the suit O.S.No.33 of 1955 and the appeal A.S.No.232 of 1962 and the alleged fraud and collusion vitiating the said decree. The plaintiffs would not have got absolute rights as she was not in possession of the property. The settlement deed dated 01-08-1947 only creates life interest. The judgment of the appellate court has become final and the plaintiff cannot challenge. She has got only a restricted estate. It was also further pleaded late M.Venkata Subbaiah executed a registered will dated 09-12-1964 with life interest to the second defendant and vested remainder to the third defendant with regard to his share. The first plaintiff could not have executed a will. Therefore, the suit filed by the G.P.A holder is not valid. The defendant Nos.2 and 3 in O.S.No.42 of 1995 filed the suit O.S.142 of 1998 for partition and separate possession of the half share in the suit schedule property claiming the share of M.Venkata Subbaiah under a will said to have been executed by M.Venkata Subbaiah on 09-12-1964 as Raghavamma died on 18-07-1995 and as per the decree in O.S.No.33 of 1955 and the settlement deed 01-08- 1947 properties reverted back to M.Venkata Subbaiah and his family and therefore the plaintiffs are entitled for half share. During the lifetime of Raghavamma O.S.No.42 of 1995 was filed for declaration of her title and also alleging that she executed a will in favour of the second defendant. The said will is not valid. Therefore the suit is filed for partition of the suit schedule properties into two (2) shares and allotment of one such share to the plaintiffs. The defendants contended that the suit is not maintainable and Raghavamma acquired absolute rights and infact the suit O.S.No.42 of 1995 was decreed declaring the rights of the Raghavamma as absolute owner and therefore the suit is barred under the principles of res judicata. Both the suits were tried separately after framing of necessary issues. In O.S.No.42 of 1995 PWs.1 to 6 are examined and marked Exs.A-1 to A-6 and C-1 and C-2 and on behalf of the defendants DWs.1 and 2 are examined and marked Exs.B-1 to B-3. The suit was decreed on 28-09-2000 and aggrieved by the said judgment, the defendant Nos.2 and 3 filed A.S.No.798 of 2001. In O.S.No.142 of 1998 PW.1 was examined and marked Ex.A-1 and on behalf of the defendants DW.1 was examined and marked Exs.B-1 and B-2. That suit was also decreed giving a conflict judgment with that O.S.No.42 of 1995 on 11-09-2002 and consequently the Appeal 275 of 2006 was filed by the second defendant who is the second plaintiff in O.S.No.42 of 1995. In view of the issues involved in both the cases, the points that arise for consideration are:- 1. Whether Raghavamma got only a limited estate under a settlement deed dated 01-08-1947? 2. Whether the judgment and decree in O.S.No.33 of 1955 which was confirmed in the appeal A.S.No.232 of 1962 will operate as res judicata or estoppel on Raghavamma and consequently she cannot agitate for enlargement of her estate under Section 14(1) of Hindu Succession Act,1956? 3. Whether the judgment and decree passed by the lower court in the suits is legal and sustainable? POINTS: The question involved in these appeals is mostly a question of law rather than a question of fact. But before appreciating the rival contentions, it is useful to know that the first plaintiff in O.S.No.42 of 1995 is the beneficiary of the maintenance deed and got the property evidently towards her maintenance and prior to that settlement, she has filed the suit for maintenance as can be seen from Ex.A-2 registered settlement deed dated 01-08-1947. It is further to be noted that the first defendant in O.S.No.42 of 1995 is no other than the plaintiff in O.S.No.33 of 1955 who filed the suit for partition against his father M.Venkata Subbaiah and obtained the decree for partition as can be seen from Ex.A-3 dated 09-03-1959. Another important aspect to be noted is the second plaintiff who came on record after the death of Raghavamma who is said to be the adopted son and beneficiary under the will is no other than the son of the first defendant who was the plaintiff in O.S.No.33 of 1955. In fact Ex.A-1 will dated 31-03-1981 shows that by virtue of the recent High Court’s Judgment, Raghavamma claims to have got absolute rights of possession and enjoyment with right to alienate, sell, gift or mortgage. Therefore, the basis of the assertion of the rights made by Raghavamma while executing the Ex.A-1 will is the change of the decision of the High Court. It does not refer to any of the accusations of the manner in which the decree in O.S.No.33 of 1955 was obtained or the appeals were proceeded with. It is not as though that the first plaintiff has no knowledge about that decree or judgment. The pleading in O.S.No.42 of 1995 shows as if the judgment and decree in O.S.No.33 of 1955 was obtained by the first defendant in the suit and his father M.Venkata Subbaiah fraudulently and collusively and therefore it is a void decree. This pleading has got an importance in considering the conduct of both the plaintiff and first defendant. Infact, the first defendant who filed the written statement only stated that his son was given in adoption and in case the court comes to the conclusion that the rights under Section 14(1) of the Act are not applicable, he will be entitled to a half share. In fact he gave evidence in the suit as DW.1. He was not cross examined about any fraud or collusion in obtaining the decree in O.S.No.33 of 1955. Therefore, it is pertinent to note that in O.S.No.42 of 1995 Raghavamma did not claim any declaration for setting aside the judgment in O.S.No.33 of 1955 or the judgment in A.S.No.232 of 1962. It is to be mentioned that fraudulent and collusive decree will stand unless it is set aside. The judgment itself cannot be called as void on the grounds pleaded by the plaintiff. Therefore, with this background, it is quite clear that the present round of litigation was only a consequence of some change of law with regard to enlargement of rights of a woman to whom the property was given towards maintenance under Section 14(1) of the Hindu Succession Act. Evidently, the plaintiff Raghavamma who was examined as PW.1 in the suit did not contest the suit O.S.No.33 of 1955 but she herself gave evidence in that suit as PW.4. Infact there was specific allegation in that suit that “G” schedule property corresponding to the present schedule property was given to the first plaintiff (38th defendant in that suit) under a compromise decree towards her maintenance for her life. The first plaintiff, who is presently the first defendant in the suit, would be entitled to a half share in “G” schedule property after the death of the first plaintiff. The judgment of the court under Ex.A-3 reflects above facts and in fact under issue No.1, the court held that “G” schedule consists of the property given to the 38th defendant for her maintenance during life. It was common case that partition of this property has to be postponed till after the death of the 38th defendant. Therefore, it is quite clear that PW.1 was having knowledge of the suit for partition and also the claim with regard to the suit schedule property which are “G” schedule properties in that suit and she herself gave evidence. It cannot be accepted that there was no issue for determination with regard to the partition of this property and that PW.1 is not aware of the earlier suit. Merely because she remained ex parte, it is no ground to infer that she has no knowledge of the proceedings. Further more, DW.1 who is the first defendant in the suit through his mother preferred A.S.232 of 1962 and pleaded that “G” schedule properties are also shall be directed to be partitioned and thereby a finding was invited and the High Court has considered the contention and allowed the appeal A.S.232 of 1962 wherein at page No.30 of the judgment under Ex.B-2, this court found that the properties were given to PW.1 in lieu of her maintenance with a life interest and that the property was to revert to the family after the death of PW.1 and these facts are not in dispute. It was the claim of DW.1 that a direction shall be given with regard to partition and the vested remainder in those properties also and accordingly as the learned Advocate General representing the other side has no objection, this court ordered that a direction should be incorporated in the decree that in the vested remainder in the “G” schedule properties first defendant and his father should have equal shares. Evidently, PW.1 in the suit has not chosen to contest the above appeals and the judgment has become final and the judgment of this court was delivered on 13-10-1964. From 1964 till 1981 when the will was said to have been executed and before filing the objections before the Land Reforms Tribunal (L.R.T) PW.1 has not challenged the above judgment. Even before the L.R.T order under Ex.A-4, what was held by the Tribunal only that the property was held by the life estate holder and it was not held that the property exclusively belong to Raghavamma. While decreeing the suit O.S.No.42 of 1995 the Senior Civil Judge took the view that the principles of res judicata are not applicable since there was no issue framed and decided and relying on the decision reported in Hope Plantation Ltd., Vs. Taluk Land Board, Peermade and another [1995(5) SCC 590] found that principles of res judicata are not applicable. He also found that cause of action in the present suit and the previous suit are quite different and taking into consideration the series of decisions holding that the property given to a female towards maintenance will enlarge into absolute estate, has decreed the suit; whereas in the other suit O.S.142 of 1998 the Senior Civil Judge has taken a different view and found that on the principles of waiver and estoppel the plaintiff cannot plead that the property rights were enlarged and she is bound by the judgment in O.S.No.33 of 1955 and consequently decreed the suit. The learned counsel for the plaintiff M.N.Narasimha Reddy relied on the following decisions to canvass his contentions that the property given to a Hindu female towards maintenance enlarges into absolute estate under Section 14(1) of Hindu Succession Act. 1. Y.Tulasamma and others Vs. Sesha Reddy([1]) 2. Raghubar Singh and others Vs. Gulab Singh and others ([2]) 3. Beni Bai Vs. Raghubir Prasad([3]) He also relied on a decision reported in Associated Hotels of India Ltd., Vs. S.B.Sardar Ranjit Singh([4]) wherein a plea of waiver was held not available unless there is an intentional relinquishment of a known right and the person had full knowledge of rights and the facts enabling the person to take effectual action for the enforcement of such rights. According to him, the plea of res judicata is also not applicable when the cause of action in both the suits is quite different and when there was no issue or a possession, particularly with regard to a particular question. The learned counsel for the appellant Sri M.Venkata Narayana on the other hand relied on some decisions to show that Section 14(1) of the Act is not applicable to all the cases. He relied upon the decision reported in Kothi Satyanarayana Vs. Galla Sithayya and others([5]) wherein when under a deed of settlement a widow got certain properties with life interest, Section 14(2) of the Act is held applicable. He also relied on a decision reported in Venkamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna Ranganayakamma([6]) wherein though a widow obtained properties towards her pre-existing right of maintenance from her husband, in subsequent document she has acknowledged that she was a limited owner, then Section 14(2) is applicable and not Section 14(1) of the Act. He also relied upon a decision reported in P.K.Vijayan Vs. Kamalakshmi Ammu and others([7]) whereunder the principles of application of res judicata and explanation IV of Section 11 CPC has been considered. There cannot be any dispute about the fact that what was given to the PW.1 under Ex.A-2 settlement deed was in recognition of her right to maintenance which was pre-existing consequent on the death of her husband. It is also to be noted that a settlement has been arrived at after PW.1 filed the suit for maintenance. The change of law which was made the basis of the execution of EX.A-1 will is the leading decision of Y.Tulasamma’s case( 1st supra) whereunder the entire case law with regard to the right of a woman getting a property towards maintenance towards her pre- existing right was considered and accepted and consequently it was held that a woman becomes a full owner. Prior to this change of law, the courts were of the view that when there were restrictions on the enjoyment of the property and if a property was given under a document with limited rights, it is only Section 14(2) of the Act that is applicable and not Section 14(1) of the Act. In fact by the date the judgment in O.S.No.33 of 1955 under Ex.A-3 and the judgment in appeal in Ex.B-2 were delivered, the view of the courts was that Section 14(2) of the Act was applicable and not Section 14(1) of the Act. Therefore, that was the basis for the decisions in the earlier suits and the judgments have become final. Now the question that arise for consideration is whether the said judgement even if PW.1 has not contested and remained ex parte operates as res judicata and as to whether subsequent change of law enures to the benefit of the plaintiff. In this connection, sofar as the principles of res judicata are concerned, it cannot be disputed that the plaintiff and first defendant are the parties to the earlier suit and the suit was for partition and a decree was passed with regard to partition of the suit schedule property, which is “G” schedule property in O.S.No.33 of 1955. Added to that the shares were also determined under Ex.B-2 by the appellate court. Therefore, it cannot be said that the earlier suit did not specifically deal with the rights of the parties or the liabilities of the parties for partition. The knowledge of PW.1 with the nature of the suit cannot be denied since she herself gave evidence. In order to apply the principles of res judicata it is not necessary that every issue should be framed with regard to rights and when a comprehensive right for partition and liabilities of the parties was considered, it is definitely a matter directly and substantially in issue between both the parties and the decision thereof is binding. In fact the lower court has taken a view that the cause of action in the suits is different which is totally erroneous. The cause of action in the earlier suit and the present suit is the settlement deed under Ex.A-2 which was the source of title for the plaintiff. Therefore, by virtue of the decree of the appellate court under Ex.B-2 the properties were ordered to be divided between the first defendant and his father and thereby recognizing PW.1 as only a limited owner of the property without any absolute rights. Even assuming to be that even before the judgment in Y.Tulasamma( 1st supra) the rights of PW.1 would have been held as absolute under Section 14(1), the question is as to whether PW.1 being a party to the earlier proceedings can ignore the judgment of inter-parties even if it is erroneous. The further question will be as to whether she will not be bound by the said decree, merely because she remained ex parte, ignoring the fact that she gave evidence in the suit. In this connection it is useful to refer to a decision reported in Ram Gobinda Vs. Bhakta Bala ([8]). It is also useful to refer to the decision reported in Gopalaswami Vs. Padmaraju([9]) wherein it was held that when the defendant remained ex parte and the decree was passed, the principles of res judicata will be applicable. It is also useful to refer to the decision reported in State of Maharashtra and another Vs. R.S.Bhonde and others ([10]) wherein it was held as under:- “Civil Procedure Code, 1908 – Sec.11 _ Res judicata – Scope – judgment/order attaining finality – Effect of change in law subsequent thereto (repeal of statutory provision on which said judgment/order based) – Held, the same does not take away the effect of the said judgment/order as between the parties thereto – Statute Law – Repeal – Effect of repeal of statutory provision on judgment/order based thereon.” It is also useful to refer to another decision reported in Mohanlal Goenka Vs. Benoy Kishna Mukherjee and others([11]) wherein it was held as under:- “Even an erroneous decision on a question of law operates as “res judicata” between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as “res judicata”. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.” It is also useful to refer to another decision reported in Sailendra Narayan Bhanja Deo Vs. The State of Orissa ([12]) whereunder it was held that even the judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. It is also further useful to refer to the decision reported in Gorie Gouri Naidu and another Vs. Thandrothu Bodemma and others ([13]) wherein it was held as under:- “Civil P.C.(5 of 1908), S.11 – Res Judicata – Inter party judgment given by competent court – Binds parties even if it is erroneous – Gifts made by coparcener held to be invalid under Hindu Law in earlier suit between coparceners – Such decision would bind parties to subsequent suit for partition – Question of applying rule of estoppel on ground that there was family arrangement between coparceners does not arise.” In another decision reported in Pandurang Vs. Shantabai ([14]) it was held in para.19 of the judgment as under:- “Admittedly the appellants’ application was decided ex parte. It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants’ failure to appear will not deprive the plaintiff of the benefit of his decree. But in the case of a suit in which a decree is passed ex parte, the only matter that can be “directly and substantially in issue” is the matter in respect of which relief has been claimed by the plaintiff in the plaint.” It is also useful to refer to a decision reported in Tummalapalli Anasuya Vs. Yenduri Parvathi and others ([15]) wherein it was held as under:- “Res Judicata – Civil Procedure Code,1908, Section.11 – Schedule property in declaratory suit filed by appellant was shown as one of the properties