Case: Pandurang Mahadeo Kavade &amp; Others Vs. Annaji Balwant Bokil &amp; Others

the effect:"Do defendants prove that the sale-deed, dated 9th January, 1926, is not binding upon them?" clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejected. 16. This leaves us with the consideration of the question whether the decision in Civil Suit No. 80 of 1941 operates as res judicata. The present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of the sub-mortgage of May 7, 1885. As the sub-mortgagee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem the sub-mortgage after the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court. 17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs. 5000/-. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs. 11,001/-.In order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/- or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees 5000/-. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High Court. 18. Mr. Sarjoo Prasad contended that the present suit should be really considered to be one for redemption, in which case the Civil Judge, Junior Division, would have jurisdiction to try the same. As we have already pointed out the present suit is for recovery of possession and cannot be considered to be one for redemption. This contention also cannot be accepted. 19. Mr. Sarjoo Prasad finally argued that there could not have been a merger of the rights in the equity of redemption and the mortgagees rights in Mahadev. His contention was that the equity of redemption was obtained by Mahadev in his individual right by inheriting his maternal-uncles estate. On the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possession. 20. Mr. Sarjoo Prasad again made a request that his clients may be given an opportunity to rise the contention that Ex. 78 is not binding on them as it is not supported by legal necessity. For this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Based upon this recital it is argued that under this document Mahadev sold to the plaintiffs father only those rights which he had inherited from hise as the heir. No doubt, if this recital stood by itself, the argument on the side of the appellants, appears to be attractive. We have already mentioned that Mahadev was the sisters son of Ganpati who owned the rights in the equity of redemption. On inheritance to hise Mahadev became the owner of the equity of redemption. But we have also referred to the fact that Mahadev, on the date of Ex. 78, had also obtained, through his father Ramji Krishnaji, the rights of the mortgagee in the suit property. Therefore, on January 9, 1926, when Mahadev executed Ex. 78 he was the owner of both the equity of redemption and the mortgagees rights in the property. No doubt by inheritance to his maternal uncle he had obtained the equity of redemption in his individual right; but so far as the mortgagees rights are concerned, there is no controversy that those rights belonged to the family of Mahadev and his sons13. We have gone through the various recitals in Ex. 78 and they clearly, in our opinion, establish that Mahadev conveyed to the plaintiffs father whatever rights he had in the suit property. He did not reserve to himself or his family any rights in respect of the suit property under this document. The total consideration of the sale deed is Rs.. Out of this amount a sum of Rs. 900/was allowed to be retained by the plaintiffs father to pay off thesubmortgageof May 7, 1885. There was the usual indemnity clause by which Mahadev undertook to indemnify the plaintiffs father, if any obstruction was caused to his rights. There is the further recital "now neither we, nor our bhaubands nor heirs etc retain any kind of right, title and interest in it". This recital clearly shows that Mahadev was conveying all his rights in the suit property. All these recitals clearly show that the entire rights owned by Mahadev in the suit property were conveyed to the plaintiffs father. Therefore, we are not inclined to accept the contention of the learned counsel for the appellants that only the equity of redemption was conveyed to the plaintiffs father under this document14. The second contention of the learned counsel for the appellants does not require any serious consideration. It is no doubt true that an allenee from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family. But in this case, both the trial court as well as the High Court have concurrently held that the appellants did not plead that Ex. 78 is not binding on them on the ground that it has not been executed by their father Mahadev for legal necessity. It has been found both by the trial court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspectWe are not inclined to accept this contention of the learned counsel. The recital is relied on by the appellants in the plaint have been made with reference to the plaintiffs plea that the decision in Civil Suit No. 80 of 1941 is not binding on him and that the appellants cannot rely on the same. In answer to this plea it is significant to note that the appellants did not raise any objection that Ex. 78 is not valid and binding them as it has not been executed for legal necessity. On the other hand their plea was that the decision in Civil Suit No. 80 of 1941 and the finding recorded therein operate as res judicata. Apart from these circumstances we also find that no specific issue has been framed on this point. On the other hand, issue No. 3 to the effect:"Do defendants prove that the, dated 9th January, 1926, is not binding upon them?"clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejectedThe present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of thesubmortgageof May 7, 1885. As thee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem thesubmortgageafter the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs.. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs.n order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High CourtOn the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possessionFor this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.