IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 SA.No. 643 of 1999(B) --------------------- AS.48/1994 of ADDL. DISTRICT COURT, N.PARAVUR OS.235/1987 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT(S)/APPELLANTS 1, 3 & 4/LRS OF 2ND DEFENDANT: --------------------------------------------------------------------------------------- 1. EALY, W/O. PAILY, PUTHUSSERY, NEDUNGAPRA KARA, VENGOOR WEST VILLAGE. (DIED) 2. ELDOSE, S/O. PAILY, PUTHUSSERY, NEDUNGAPRA KARA, VENGOOR WEST VILLAGE. 3. VARGHESE, S/O. PAILY, PUTHUSSERY, NEGUNGAPRA KARA, VENGOOR WEST VILLAGE. IT IS RECORDED THAT APPELLANTS 2 AND 3 ARE THE ONLY SURVIVING LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 AS PER ORDER DTD. 26.7.2011 IN MEMO DTD.16.8.2005. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT RESPONDENT(S)/RESPONDENTS &2ND APPELLANT/PLAINTIFFS, L.RS OF 1ST DEFENDANT, L.RS OF 4TH DEFENDANT. L.RS OF 3RD DEFENDANT & L.RS. OF 2ND DEFENDANT: --------------------------------------------------------------------------------------------------- 1. ANNAMMA, D/O. MATHAI, MUKALATHUPUTHUSSERY, PUZHAKKADU KARA, VENGOOR WEST VILLAGE. (DIED) 2. MARIAMMA, D/O. MATHAI, OF DO. DO. 3. MATHAI, S/O. GEEVARGHESE, PUTHUSSERY VEETTIL, KEERAMPARA VILLAGE, KOTHAMANGALAM. 4. NOONJI, S/O. VARGHEESE, DO. DO. 5. JOHN, S/O. VARGHESE, DO. DO. 6. KUNJUMOL, D/O. VARGHESE, DO. DO. 7. EALAMMA, W/O. MATHU, PUTHUSSERY, PUZHAKKADU KARA, VENGOOR WEST VILLAGE. 8. MATHAI, S/O. MUTHU, PUTHUSSERY VEEDU, NEAR KOLENCHERRY HOSPITAL, KOLENCHERRY. 9. ANNAMMA, W/O. PAUL, PUTHUSSERY VEEDU, PUZHAKKADU KARA, VENGOOR WEST VILLAGE. 10. VARGHESE, S/O. MATHU, OF DO. DO. 11. SHERLY, D/O. MATHU, OF DO. DO. 12. ANNAMMA, W/O. CHACKO, PUTHUSSERY VEEDU, NEDUNGAPRA KARA, VENGOOR EAST VILLAGE. 13. SARAMMA, W/O.VARGHESE, MOLEKKUDY VEEDU, KUNNIKKURUDY KARA, IRAPURAM VILLAGE. 14. CHINNAMMA, W/O. VARGHESE, PALLIKKAL VEETTIL, THURAVOOR KARA, DO. VILLAGE. 15. MATHAI, W/O. CHACKO, PUTHUSSERY VEETTIL, NEDUNGAPRA KARA, VENGOOR EAST VILLAGE. 16. GEORGE, S/O. CHACKO, DO. DO. 17. EALAMMA, D/O. CHACKO, DO. DO. 18. MERCY, D/O. CHACKO, DO. DO. 19. JOMY, S/O. CHACKO, DO. DO. 20. RENI, D/O. CHACKO, OF DO. DO. 21. SARAMMA, D/O. PAILY, PUTHUSSERY, NEDUNGAPRA KARA, VENGOOR WEST VILLAGE. ADDL. R22 TO 26 IMPLEADED. 22. MARY, AGED ABOUT 55 YEARS, D/O. ANNAMMA AND W/O. VADAKKENTHURUTHIL VARKEY, KALLIDUKKU KARA, CHUVANNAMANNU P.O. THRISSUR DISTRICT. 23. VARGHESE, AGED ABOUT 52 YEARS, S/O. ANNAMMA, ALUKKA PUTHUSSERRY, NEDUVANNUR KARA, CHOWARA P.O. ALUVA. 24. SARAKUTTY, AGED ABOUT 50 YEARS, D/O. ANNAMMA AND WIFE OF VALLATHUKARAN VARKEY, MEKKAD P.O. NEDUMBASSERY, ALUVA. 25. MATHAI, AGED ABOUT 48 YEARS, S/O. ANNAMMA, ALUKKA, PUTHUSSERY, NEDUVANNUR KARA, CHOWARA P.O. ALUVA. 26. BABU, S/O. ANNAMMA, NEDUVANJUR KARA, CHOWARA P.O., ALUVA. ADDL.R22 TO 26 ARE IMPLEADED AS L.RS. OF 1ST RESONDENT AS PER ORDER DATED 26.7.2011 IN I.A. 1621 OF 2005. ADV. SRI.BIJU ABRAHAM FOR R1 & R2 SMT.ASHA B.MATHEW FOR R1 & R2 SMT.SOOZY CHACKO R3 TO R20 SMT.P.ELSAMMA JOSEPH R3 TO R20 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2011, ALONG WITH SA NO. 658 OF 1999 THE COURT ON 26/07/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 643 & 658 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of July, 2011. JUDGMENT Three out of the four legal heirs of the second defendant in O.S.235 of 1987 before the Munsiff's Court, Perumbavoor are the appellants in both the appeals. Two suits namely, O.S.235 of 1987 and O.S.302 of 1987 were disposed of by a common judgment. The trial court dismissed O.S.235 of 1987 reserving the liberty of the plaintiffs therein to file a fresh final decree in O.S.357 of 1974. O.S.302 of 1987 was also dismissed. Two appeals were preferred by the defeated defendants in O.S.235 of 1987 as A.S. 48 of 1994 against the judgment and decree in O.S.235 of 1987 and A.S.49 of 1994 against the judgment and decree in O.S.302 of 1987 before the District Court, North Parur. The appellate court allowed A.S.48 of 1994 and dismissed A.S.49 of 1994. S.A.643 of 1999 is directed against the judgment and decree in S.A.643 & 658/993. 2 A.S.48 of 1994 and S.A.658 of 1999 is directed against the judgment and decree in A.S.49 of 1994. Since O.S.235 of 1987 was treated as the leading case, parties and facts are hereinafter referred to as they are available in the said suit. 2. Late Varkey Mathai had two daughters and four sons. The daughters are the plaintiffs in O.S.235 of 1987, which is a suit for partition. The sons of late Varkey Mathai are the defendants. During the pendency of the suit the first defendant died and his legal heirs were brought on the party array as additional defendants. By passage of time other defendants also passed away. Legal heirs of the first defendant are respondents 3 to 6 before this court and the legal heirs of the second defendant are appellants 1 to 3 and second respondent before this court. During the pendency of the appeal before this court the first appellant died and his legal heirs are already on the party array. The legal heirs of the original third defendant are respondents 12 to 21. Legal heirs of the fourth defendant are respondents 7 to 11. S.A.643 & 658/993. 3 3. Partition was sought in respect of four items of property which are alleged to have been left behind by late Varkey Mathai. The first defendant remained ex-parte. The contention taken up by the second defendant was that item No.4 was not partible and it exclusively belonged to him. The third defendant filed a written statement stating that item No.2 is not partible and it belonged exclusively to him. 4. Varkey Mathai had executed Ext.A1 Will dated 24.3.1970. The probate of the same was obtained and Ext.B3 dated 7.7.1979 is the said probate. As per Ext.A1 Will defendants 1 to 4 were given properties. There were five schedules in the Will. E schedule was given to the mother of defendants 1 to 4 and other schedules were given to each of the sons. It also contained a recital that if properties are found which are not taken in by the Will, 2/7 shares in such properties will be given to the second defendant and the balance 1/7 each to the three sons and two daughters. The first defendant was to pay a sum of Rs.500/- to the first plaintiff and the third defendant was to pay Rs.500/- to the S.A.643 & 658/993. 4 second plaintiff within three years of the date of death of Varkey Mathai. If the amount was not paid, then the respective plaintiffs would take the properties as slated in the Will with regard to the shares set apart to those persons who are liable to pay the amount. 5. The allegation in the plaint was that four items shown in the plaint were not taken in by Ext.A1 Will. The second plaintiff alleged that since the third defendant had not discharged the obligation under the Will, she took possession of the B schedule. Therefore partition was in respect of four items of the property shown in the plaint claiming 1/7 share each and the second plaintiff sought a declaration in respect of B schedule. 6. The contentions of the respective defendants have already been referred to. 7. The second defendant before filing a written statement in O.S.235 of 1987 had instituted O.S.302 of 1987 for a declaration that the decree in O.S.357 of 1974 is not binding on him. O.S.357 of 1974 was a suit for partition S.A.643 & 658/993. 5 filed by the third defendant herein in respect of items 1, 3 and 4 in the present suit. The second defendant therein, who is also the second defendant in the present suit had filed a written statement disputing the partibility of item No.4 but he did not pursue the matter further. Plaintiffs in O.S.235 of 1987 were not parties to O.S.357 of 1974. O.S.357 of 1974 was decreed and as per the final decree proceedings, the third defendant took possession of his 1/7th share. The declaration sought for by the second defendant is that the earlier decree in O.S.357 of 1974 was vitiated by fraud and not binding on him and is void. 8. Defendants 1 to 6 filed a written statement disputing the allegations in O.S.302 of 1987 and pointed out that the plaintiffs in the present suit for partition had full knowledge about the proceedings in O.S.357 of 1974 and the decree is not vitiated. They prayed for a dismissal of O.S.302 of 1987. 9. Issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and S.A.643 & 658/993. 6 documents marked as Exts.A1 and A2. The defendants examined D.Ws.1 to 3 and had Exts.B1 to B19 marked. Exts.C1 and C1(a) are the commission report and plan. Ext.X1 is the third party exhibit. 10. On an evaluation of the evidence, the trial court came to the following conclusions: i) The four items scheduled in the plaint in O.S.235 of 1987 are all partible and the plaintiffs were entitled to 1/7 share each. ii) The properties have already been partitioned in O.S.354 of 1974 and no fresh partition is possible, though the plaintiffs in O.S.235 of 1987 were not parties to O.S.354 of 1974. iii) Item No.2 in the plaint schedule to O.S.235 of 1987 was not available for partition. iv) The plea of the second defendant that the decree in O.S.357 of 1974 is not binding on him is not acceptable since the said plea is barred by estoppel. S.A.643 & 658/993. 7 v) Since item Nos.1, 3 and 4 were already partitioned in O.S.357 of 1974, they are not available for partition again. vi) The second plaintiff had not taken possession of B schedule property and so the declaration sought for cannot be granted. vii) Both the suits were dismissed reserving the right of the plaintiffs in O.S.235 of 1987 to get the final decree in O.S.357 of 1974 re-opened and claim their shares. 11. The legal heirs of the second defendant took up the matter in appeal by filing two appeals. The main contention in the appeal was that item No.4 is not available for partition. The appellate court found that the plea of the second defendant that item No.4 is not available for partition is barred by res judicata and hence cannot be accepted. However, even though there was no appeal by the plaintiffs in O.S.235 of 1987, the lower appellate court, apparently invoking Order 41 Rule 33 of the Code of Civil Procedure, passed a preliminary decree, which reads as follows: S.A.643 & 658/993. 8 “In the result, A.S.48/94 is allowed and the decree dismissing O.S.235 of 1987 is set aside. The said suit is decreed in part and the plaintiffs therein are allowed to get their 2/7 share in item Nos.1, 3 and 4 described in A schedule appended to the plaint demarcated and delivered. Since the third defendant in O.S.235/87 had been given his 1/7 share in the aforesaid items the share of the plaintiffs shall be carved out of the remaining portion of the aforesaid properties in the hands of the other defendants. The contesting defendants in O.S.235/87 are restrained by a permanent prohibitory injunction from doing anything in the properties described as 1, 3 and 4 in schedule A appended to the plan against the interest of the plaintiffs. The quantum of mesne profits shall be decided in the final decree proceedings.” It is the said decree that is challenged in these second appeals. 12. Notice is seen issued on the following questions of law in these second appeals: “i) Does the decision in the suit O.S.357/74 -- a previously instituted suit for partition -- operate S.A.643 & 658/993. 9 as res judicata in so far as the suit O.S.302/87 or O.S.235/87 of the Munsiff's Court, Perumbavoor is concerned? ii) Does the decision in a suit for partition in which all the sharers are not arrayed as parties operate as res judicata or does it operate as estoppel against a sharer who was a party to the improperly constituted suit? iii) Title to the properties sought to be partitioned having been traced to Varkey Mathai who died on 21.8.1974, can item No.4 in the plaint A schedule in O.S.235/87 title to which is acquired is as per P.F.89/75 (1975) be roped in by invoking the principle that acquisition by one co-owner is acquisition on behalf of others also and without any evidence in that regard? iv) Is the decree in O.S.357/74 of Munsiff's Court, Perumbavoor which is improperly constituted binding on any of the sharers?” 13. Learned counsel appearing for the appellants in these appeals raised only one point for consideration. It is contended that the third defendant, who had knowledge of the terms of the Will, had instituted O.S.354 of 1974 for S.A.643 & 658/993. 10 partition without making the plaintiffs in O.S.235 of 1987 as parties to the said suit even though he was fully aware that they were entitled to 1/7 share each. Concealing the said fact, he obtained a decree. Admittedly that suit was in respect of the properties not covered by Ext.A1 Will and item No.4 scheduled in O.S.235 of 1987 was an item of property shown in O.S.357 of 1974 also. In the said suit the second defendant had filed a written statement disputing the partibility of item No.4. True, he did not participate in the further proceedings and a decree came to be passed in O.S.357 of 1974 holding that item No.4 in O.S.235 of 1987 is also partible. 14. According to learned counsel, the principle of estoppel and principle of res judicata cannot be applied to the facts of the case. In order to establish plea of estoppel, the most essential ingredient necessary is that the party who pleads estoppel must show that he was not aware of the true state of things. Defendant No.3 who had instituted O.S.357 of 1974 had full knowledge of the terms of Ext.A1 S.A.643 & 658/993. 11 Will and about the probate obtained as evidenced by Ext.B3. He knew that in respect of the properties not covered by Ext.A1 document each of the shares including the daughters had 1/7share in the property. Yet without making them parties to O.S.357 of 1974 he managed to obtain a decree. Since he had played fraud on court and since he was fully aware of the true nature of things, the plea of estoppel cannot be applied. For the above proposition, learned counsel relied on the decision reported in Sankaran v. Chathukutty (1983 K.L.T. 925). 15. Learned counsel for the appellants went on to point out that the lower appellate court had clearly erred in law in holding that the decree in O.S.357 of 1974 operates as res judicata. Admittedly the plaintiffs in O.S.235 of 1987 were not parties to O.S.357 of 1974. If that be so, the decree in O.S.357 of 1974 cannot act as res judicata. For the above proposition, learned counsel relied on the decision reported in A.K.Roy v. K.C.Sen Gupta (A.I.R. 1971 Calcutta 252). S.A.643 & 658/993. 12 16. Learned counsel appearing for the respondents pointed out that the respondents will be satisfied with the trial court decree which enabled them to get a final decree in O.S.357 of 1974 re-opened. It is doubtful how far this stand can be justified. 17. Coming to the merits of the appeals, item No.4 in O.S.235 of 1987 has an extent of 1.50 acres. The second defendant in the suit, whose legal heirs are the appellants herein, claimed that it was the exclusive property belonging to the second defendant. It is not in dispute that item No.4 in O.S.235 of 1987 was also an item of property in O.S.357 of 1974 filed by the third defendant for partition in respect of the properties left out by Ext.A1 Will. It is significant to notice that the second defendant in the present suit did appear in the earlier suit and filed a written statement claiming that item No.4 was not available for partition. For reasons best known to him he chose not to proceed with the contentions and left it there. The result was that a decree came to be passed with respect to plaint S.A.643 & 658/993. 13 item No.4 which was shown as an item in O.S.357 of 1974, and it was held to be partible. A preliminary decree was passed. In execution of the final decree the third defendant took possession of his share. 18. It is significant to notice that in O.S.357 of 1974 the second defendant who was the plaintiff therein had claimed only 1/7 share. That was precisely in terms of Ext.A1 Will. But one fails to understand why the plaintiffs were not impleaded as parties to the above suit. 19. The plea of the learned counsel for the appellants that the present claim in respect of item No.4 is barred by res judicata is not tenable does not appear to be sound. Though the trial court has held that the plea is barred by estoppel, infact the lower appellate court seems to be legally correct in its approach in holding that the plea is barred by res judicata. Merely because the plaintiffs in O.S.235 of 1987 were not parties to O.S.357 of 1974, it cannot be said that the finding in that suit is not binding on the second defendant herein who was a party to the said S.A.643 & 658/993. 14 suit. It is not always necessary that all interested persons having common interest should be made parties to all the proceedings or litigations. If any of them is a party to the proceedings, and he claims a right for himself which is common to others similarly situated, then by virtue of Explanation 6 to Section 11 a decision in the said suit will be binding on all such persons similarly situated. 20. Section 11 Explanation 6 reads as follows: “11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, S.A.643 & 658/993. 15 for the purposes of this section, be deemed to claim under the persons so litigating.” 21. In order to attract the above provision, it has to be shown that there was a bona fide litigation in respect of a right claimed which is common between persons who starts the litigation along with others similarly situated. If it is shown that the earlier litigation was a bonafide litigation and ended in a verdict, then merely because others similarly situated are not parties to the earlier litigation, they cannot be heard to say that the decree is not binding on them. 22. Normally it is said that Explanation 6 to Section 11 will have to be read with Order 1 Rule 8. But it is not as if that the principle laid down in Explanation 6 to Section 11 will apply only in cases where recourse is taken under Order 1 Rule 8. 23. In O.S.357 of 1974 the specific plea of the plaintiffs therein, who is the third defendant herein was that items 1, 3 and 4 in O.S.235 of 1987 was available for partition since it is not covered by Ext.A1 Will. He had S.A.643 & 658/993. 16 stated in the plaint the terms of Ext.A1 Will and claimed only 1/7 share in the said suit. As already noticed, the second defendant, though entered appearance and filed a written statement disputing the partibility of items No.4, but did not pursue the matter further. The result is that a preliminary decree came to be passed and a final decree which have already been referred to. 24. Though the second defendant in the present suit claimed that the decree in O.S.357 of 1974 is not binding on him, he was not able to establish the said claim. He was unable to establish that there was any fraud or collusion in obtaining the decree in O.S.357 of 1974. His only case is that the plaintiffs in O.S.235 of 1987 are not parties in O.S.357 of 1974 and therefore the decree cannot operate as res judicata in respect of his claim regarding item No.4 in the present suit. 25. On going through the decisions relied on by the learned counsel for the appellants in support of the plea that the decision in O.S.357 of 1974 cannot operate as res S.A.643 & 658/993. 17 judicata, they do not appear to have any application to the facts of the case. 26. It is difficult to accept the plea of the learned counsel for the appellants that the decree in O.S.357 of 1974 cannot act as res judicata in respect of the partibility of item No.4 in O.S.235 of 1987. A reading of the plaint in O.S.357 of 1974 namely Ext.B4 dated 16.10.1974 reveals that the rights set up by the third defendant were common to all the sharers in respect of the assets left behind by Varkey Mathew and not covered by Ext.A1 Will. It was after referring to the terms of the Will that he had claimed 1/7 share. He had asserted in the plaint that item No.4 in O.S.235 of 1987 included in the plaint in O.S.357 of 1974 was available for partition and decree was passed accordingly. 27. In O.S.235 of 1987 the second defendant raised the very same contention with regard to partibility of item No.4. It could not be said that the claim made by the plaintiff in O.S.357 of 1974 was something which was exclusive to him. On the other hand the right claimed in S.A.643 & 658/993. 18 respect of item No.4 in O.S.235 of 1987 was a right common to all the sharers who were similarly situated. 28. It will be useful here to refer to the decision reported in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (1977(2) SCC 187). The facts of the case indicate that there were two suits, one for partition and the other for money. In the partition suit all the sharers were not parties to the proceedings. In the money suit, there was only one sharer shown as defendant. Both the suits were tried together. From the trial court decree plaintiffs preferred two appeals. Two separate judgments were pronounced by the High Court, which were in favour of the plaintiffs. The defendants obtained leave to appeal against the decree in the suit for partition. Thus the decree in the money suit became final. The question arose is whether the decree in the money suit constitute as res judicata. In paragraph 20 of the decision it was held as follows: S.A.643 & 658/993. 19 “We think that the submission made by the learned counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right “in common for themselves and others”. Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests