[2013] 5 S.C.R. 398

RAMJI GUPTA & ANR. v.

GOPI KRISHAN AGRAWAL (D) & ORS.

(Civil Appeal No. 629 of 2004 etc.)

APRIL 11, 2013

[DR. B.S. CHAUHAN AND FAKKIR MOHAMED

IBRAHIM KALIFULLA, JJ.]

Suit - Suit by landlord against tenants alleging default in C payment of rent - Tenants claiming to be owners of the property on the strength of sale deed executed by the vendor (mother of the landlord) - Small Causes Court decreed the suit, relying on a judgment passed in 1958 (whereby vendor (a Hindu female) was held to be life estate holder in the D property). and held that by virtue of the judgment, the son of the vendor (landlord) acquired the property - Judgment confirmed by District Judge and High Court - On appeal, held: Courts below rightly decreed the suit.

E Provincial Small Causes Courts Act, 1887 - s. 23 - Adjudication of issue of title - By Small Causes Court - Held:

Small Causes Court cannot adjudicate upon issue of title - Such question if decided incidentally by Small Causes Court, would not operate as res-judicata in a subsequent suit based on title - In the instant case, trial court rightly refused to go F into such issue.

'J' after the death of her husband, was given life interest in the property in question by her father-in-law through a 'Will'. Respondent No.1 who claimed to be the G adopted son of 'J', filed a suit against 'J', wherein the Court by judgment dated 23.4.1958 held that 'J' was only a life estate holder of the property in question therein (including the property in question in the present case).

The property in question was under tenancy of father of H 398

the appellants. 'J' sold the property to the mother of the A appellants in 1974. Appellants inherited the tenancy after death of their father and continued to pay the rent to the vendee i.e. their mother.

Respondent No.1 filed a suit alleging that the 8 appellants had defaulted in payment of rent. During pendency of the suit, respondent No.1 sold the property to respondent No.2. Appellants contested the suit claiming to be owner of the property. Small Causes Court decreed the suit holding that respondent No.1 acquired the property by virtue of judgment dated 23.4.1958 and C landlord-tenant relationship could be deemed to have been created between the parties. The order was further confirmed by District Judge as well as High Court.

In appeal to this Court, the appellants contended that D the courts erred in adjudicating upon the issue of title because such issue can be decided only by civil court and not small Causes Court; and that judgment dated 23.4.1958 could not be given effect to, in view of provisions of s.14(2) of Hindu Succession Act, 1956.

Dismissing the appeals, the Court

HELD: 1. A question regarding title in a small cause suit, may be regarded as incidental only to the substantial issue in the suit, and therefore, when a finding as regards F title to immovable property is rendered by a Small Causes Court, res judicata cannot be pleaded as a bar in the subsequent regular suit, for the determination or enforcement of any right or interest in the immovable property. A question of title could also be decided upon G incidentally, and that any finding recorded by a Judge, . Small Causes Court in this behalf, could not operate as res judicata in a suit based on title. (Para 7] [407-F-H; 408-A]

Dhulabai etc. v. State of M.P. and Anr. AIR 1969 SC 78: H

A 1968 SCR 662; Smt. Gangabai wlo Rambilas Gilda v. Smt.

Chhabubai wlo Pukharajji Gandhi (1982) 1 SCC 4: 1982 (1) SCR 1176; Life Insurance Corporation of India v. Mis. India Automobiles and Co. and Ors. AIR 1991 SC 884: 1990 (3) SCR 545; Rameshwar Dayal v. Banda (Dead) through His

8 L.Rs. and Anr. (1993) 1 sec 531: 1993 (1) SCR 198 - relied

on.

2. In view of Section 23 of the Provincial Small Cause Courts Act, 1887, it is evident that the Small Causes Court cannot adjudicate upon the issue of title. In the instant C case therefore, the trial court has rightly refused to go into such issue, and neither can any fault be found with the findings recorded by the courts below in this regard.

Furthermore, as it is an admitted fact that defendant Nos.1 and 2 were tenants of the original plaintiffs, the question D of title could not be adjudicated at the behest of the

appellants under any circumstance. [Para 8] [408-C, F-H]

Nirmal Jeet Singh Hoon v. lrtiza Hussain and Ors. (2010) 14 sec 564: 2010 (14) SCR 109 - relied on.

3. The Court of Small Causes, while determining the issues involved therein, has taken note of the result of the earlier Suit No.45 of 1956, decreed vide judgment and decree dated 23.4.1958, and also of the Execution Appeal No.64 of 1965, wherein it was held, that 'J', being a life F estate holder had no right to transfer the property. In

Execution Appeal No.64 of 1965, vendee, was made a party, however, so far as the issue of title by the courts below is concerned, the trial court held that the court could not determine the question relating to proprietary G right/ownership of the parties; and that this court has

limited jurisdiction to decide as to whether there existed the relationship of house-owner and tenants between the parties or not. The said finding has been upheld by all the _ courts. [Para 10] [409-D-G; 410-A] H

(D) & ORS.

4. Section 14(2) of Hindu Succession Act, 1956 A carves out an exception to rule provided in sub-section

(1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a "life interest", it would remain the same even after commencement of the Act 1956, and such a Hindu B female cannot acquire absolute title. [Para 6] [407-8-C]

Shivdev Kaur (DJ by L.Rs. and Ors. v. R.S. Grewal 2013

(4) SCC 636; Mst. Karmi v. Amru and Ors. AIR 1971 SC 745; Navneet Lal@ Rangi v. Gokul and Ors. AIR 1976 SC 794: c 1976 (2) SCR 924; Sadhu Singh v. Gurdwara Sahib Narike and Ors. AIR 2006 SC 3282: 2006 (5) Suppl. SCR 799; Jagan Singh (Dead) Through LRs. v. Dhanwanti and Anr.

(2012) 2 SCC 628: 2012 (2) SCR 303; Muniananjappa Ors.

v. R. Manual and Anr. AIR 2001 SC 1754: 2001 (2) SCR D 1113; Sharad Subramanyan v. Soumi Mazumdar and Ors.

AIR 2006 SC 1993; Gaddam Ramakrishnareddy and Ors. v.

Gaddam Ramireddy and Anr. (2010) 9 SCC 602: 2010 (11) SCR 656 - relied on.

Radha Rani Bhargava v. Hanuman Prasad Bhargava E

(deceased) thr. L.Rs. and Ors. AIR 1966 SC 216: 1966 SCR 1; Mis. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors. AIR 1975 SC 1810: 1976 (1) SCR 237 - referred to.

Case Law Reference:

2013 (4) sec 636 relied on Para 6

AIR 1971 SC 745 relied on Para 6

1976 (2) SCR 924 relied on Para 6

2012 (2) SCR 303 relied on Para 6

2001 (2) SCR 1113 relied on Para 6

AIR 2006 SC 1993 relied on Para 6

2010 (11) SCR 656 relied on Para 6

1968 SCR 662 relied on Para 7

1982 (1) SCR 1176 relied on Para 7

1990 (3) SCR 545 relied on Para 7

1993 (1) SCR 198 relied on Para 7

2010 (14) SCR 109 relied on Para 8

1988 (2) Suppl. SCR 238 relied on Para 9

1966 SCR 1 referred to Para 11

1976 (1) SCR 237 referred to Para 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 629 of 2004.

From the Judgment and Order dated 06.09.2002 of the High Court of Judicture at Allahabad in Civil Misc. Writ Petition No. 25785 of 2002.

WITH

C.A. Nos. 630 of 2004.

Rakesh Dwivedi, Dlnesh Kumar Garg, Abhishek Garg, Dhananjay Garg, B.S. Billowria, Dr. Krishan Singh Chauhan, F Tara Chandra Sharma, Neelam Sharma, Rupesh Kumar, Arvind Kumar, Laxmi Arvind, Poonam Prasad, Pradeep Kumar Mathur, T. Anamika for the appearing parties.

The Judgment of the Court was delivered by

DR. B.S. CHAUHAN, J.

C.A. No.629 of 2004

1. This appeal has been preferred against the judgment and order dated 6.9.2002, passed by the High Court of

(D) & ORS. [DR. B.S. CHAUHAN, J.]

Allahabad in CMWP No.25785 of 2002, by way of which, the A High Court has dismissed the writ petition of the appellants, affirming the judgment and decree of the Small Causes Court dated 20.4.2001, which stood affirmed by the Revisional Court, vide judgment and decree dated 13.5.2002. Civil Appeal

No.630 of 2004 has been filed against the judgment and order B dated 25.2.2003, in Review Application No.206905 of 2002 of the High Court of Judicature at Allahabad, dismissing the review petition. In the aforesaid judgments, the courts below have held, that the relationship of a landlord and tenant did not exist between respondent nos.1 and 2 and the appellants. c

2. Facts and circumstances giving rise to this appeal are that:

A. The dispute pertains to the ownership of shop no.53/ 11 (old number) corresponding to its new number, i.e. 53/8, D Nayayaganj, Kanpur Nagar. Janki Bibi (1st) daughter of Har Dayal, was married to one Durga Prasad, son of Dina Nath.

Radhey Shyam was the adopted son of Durga Prasad, whose son Shyam Sunder was married to Janki Bibi (2nd). Shyam Sunder died in the year 1914. Thus, Radhey Shyam created a E life interest in the property in favour of Janki Bibi (2nd), by way of an oral Will, which further provided that she would have the right to adopt a son only with the consent of Mohan Lal, the grand son of Har Dayal. Gopi Krishan, the great grand son of Mohan Lal, claims to have been adopted by Janki Bibi (2nd), F with the consent of Mohan Lal, and as regards the same, a registered document was also prepared.

B. Gopi Krishan filed a Regular Suit No.45 of 1956 against Smt. Janki Bibi (2nd) in the Court of the Civil Judge, Mohanlal Ganj in Lucknow, seeking the relief of declaration, stating that G Janki Bibi was only a life estate holder in respect of the properties shown in Schedule 'A', and that further, she was not entitled to receive any compensation or rehabilitation grant bonds with respect to the village Nawai Perg, Jhalotar Ajgain, H

A Tehsil Hasangunj, District Unnao. He stated all this, while claiming himself to be her adopted son.

C. Janki Bibi (2nd) contested the suit, denying the aforesaid adoption. However, the suit was decreed vide

8 judgment and decree dated 23.4.1958, holding that while Smt.

Janki Bibi (2nd) was in fact the life estate holder of Radhey Shyam's property, she was also entitled to receive the said compensation, in respect of the property in question herein.

D. The suit shop was under the tenancy of one Shri Badri C Vishal. However, Janki Bibi (2nd) transferred the same in favour of the appellant's mother Smt. Ram Kumari, wife of Shri Sadri Vishal, vide registered sale deed dated 7.5.1974. The said tenant, Shri Badri Vishal died on 23.1.1986, and the tenancy was hence inherited by the appellants. They thus, D continued to pay rent to the vendee Smt. Ram Kumari. Smt.

janki Bibi (2nd) died on 27.2.1996.

E. Respondent no.1 Gopi Krish=1n. filed SCC Suit No. 77 of 1989 on 21.2.1989, alleging that the c:ipp!:!llants had E defaulted in making the payment of rent, and that a sum cf Rs.2,768.62 was outstanding against them, as rent payable between the time period 17.2.1986 to 13.8.1988, and also damages for the period 14.8.1988 to 21.2.1989, amongst other amounts due. During the pendency of the suit, Shri Gopi F Krishan respondent no.1, sold the said suit property to Smt.

Vidyawati Rathaur respondent no.2, vide registered sale deed dated 3.8.1989. In view thereof, respondent no.2 got herself impleaded as plaintiff no.2 in Suit No.77 of 1989.

F. The appellants contested the suit on various grounds, G claiming themselves to be the owners of the property on the basis of a sale deed. Smt. Vidyawati Rathaur respondent no.2, also filed Suit No.792 of 1995 before the Civil Court, Kanpur, seeking permanent injunction, restraining the appellants from

A permissible in collateral proceedings; as the issue of title can be adjudicated upon, only by the Civil Court. Moreover, the judgment and order dated 23.4.1958 could not be given effect, in view of the provisions of Section 14(2)'of the Hindu succession Act, 1956 (hereinafter referred to as the 'Act, B 1956'). Therefore, the appeal deserves to be allowed.

4. Per contra, Shri Rakesh Dwivedi, l!larned senior counsel and Shri Arvind Kumar, learned counsel, appearing for the respondents; have opposed the appeals,· contending that c the courts below have not touched' upon or determined the issue of title. It was necessary for the courts below, to rely upon the said judgment and decree dated 23.4.1958, wherein it was categorically held that Smt. Janki Bibi (2nd) was a life estate holder, and that as she had not acquired absolute title over the

propeftY, the sale deed executed by her in favour of Smt. Ram Kumari, was null and void. The said judgment and decree dated 23.4.1958, was also relied upon in collateral proceedings, wherein-smt. Ram Kumari, mother of the appellants and

vendee in the sale deed dated 7.5.1974, had taken several

pleas, all of which were rejected, and such findings have been

fE affirmed by the High Court. Thus, the appeal has no merit, and is hence, liable to be dismissed.

 5. We have considered the rival submissions made by learned counsel for the parties, arid perused the record .

F •

6. In Shivdev Kaur (D) by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal Nos.5063-5065 of 2005, decided on 20.3.2013), this Court dealt with the issue of Section 14(2) of the Act 1956 and held:-

G '7hus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a "life interest~ through Will or gift or any other document referred.to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute

H ownership as interpreting the provisions to the effect that

A permissible in collateral proceedings, as the issue of title can be adjudicated upon, only by the Civil Court. Moreover, the judgment and order dated 23.4.1958 could not be given effect, in view of the provisions of Section 14(2) of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act, B 1956'). Therefore, the appeal deserves to be allowed.

4. Per contra, Shri Rakesh Dwivedi, learned senior counsel and Shri Arvind Kumar, learned counsel, appearing for the respondents, have opposed the appeals, contending that the courts below have not touched upon or determined the issue C of title. It was necessary for the courts below, to rely upon the said judgment and decree dated 23.4.1958, wherein it was categorically held that Smt. Janki Bibi (2nd) was a life estate holder, and that as she had not acquired absolute title over the property, the sale deed executed by her in favour of Smt. Ram D Kumari, was null and void. The said judgment and decree dated 23.4.1958, was also relied upon in collateral proceedings, wherein Smt. Ram Kumari, mother of the ::in"~::.:ints and yendee in the sale deP-':! ':'.:;:~~ 7 .5.197 4, had ... tken several

p:e:ii~; ii or which were rejected, and such findings have been E affirmed by the High Court. Thus, the appeal has nc merit, and is hence, liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties, and perused the record.

6. In Shivdev Kaur (DJ by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal Nos.5063-5065 of 2005, decided on 20.3.2013), this Court dealt with the issue of Section 14(2) of the Act 1956 and held:-

''Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a "life interest'~ through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that

RAMJI GUPTA & ANR. v. GOPI KRISHAN AGRAWAL 407

(D) & ORS. [DR. B.S. CHAUHAN, J.]

she would acquire absolute ownership/title into the A property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios.

Section 14(2) carves out an exception to rule provided 8 in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a "life interest", it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title."

While deciding the said issue, this Court has placed reliance upon various previous judgments of this Court, including Mst. Karmi v. Amru & Ors., AIR 1971 SC 745; Navneet Lal

@ Rangi v. Gokul & Ors., AIR 1976 SC 794; Sadhu Singh v.

Gurdwara Sahib Narike & Ors., AIR 2006 SC 3282; and Jagan D Singh (Dead) Through LRs. v. Dhanwanti & Anr., (2012) 2 sec 628.

(See also: Muniananjappa & Ors. v. R. Manual & Anr., AIR 2001 SC 1754; Sharad Subramanyan v. Soumi E Mazumdar & Ors., AIR 2006 SC 1993; and Gaddam Ramakrishnareddy & Ors. v. Gaddam Ramireddy & Anr., (201 O) 9 sec 602).

7. In order to operate as res judicata, the finding must be such, that it disposes of a matter that is directly and F substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata.

G A question regarding title in a small cause suit, may be regarded as incidental only to the substantial issue in the suit, and therefore, when a finding as regards title to immovable property is rendered by a Small Causes Court, res judicata cannot be pleaded as a bar in the subsequent regular suit, for H

A the determination or enforcement of any right or interest in the

immovable property. (Vide: Dhulabai etc. v. State of M.P. & Anr., AIR 1969 SC 78; Smt. Gangabai wlo Rambilas Gilda v.

Smt. Chhabubai wlo Pukharajji Gandhi, (1982) 1 SCC 4; Life Insurance Corporation of India v. Mis. India Automobiles & B Co. & Ors., AIR 1991 SC 884; and Rameshwar Dayal v. Banda (Dead) through His L.Rs. & Anr. (1993) 1 SCC 531).

8. In Nirmal Jeet Singh Hoon v. lrtiza Hussain & Ors.,

(2010) 14 SCC 564, this Court has held, that the Small Causes Court has no right to adjudicate upon the title of the property, C as Section 23 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act, 1887) reads:

"Return of plaints in suits involving questions of title-(1) NotWithstanding anything in the foregoing portion of this D Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Cause depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to E be presented to a Court having jurisdiction to determine the title.

(2) xx xx )()( xx"

(Emphasis added)

Thus, it is evident from the above, that the Small Causes Court cannot adjudicate upon the issue of title. In the instant case therefore, the trial court has rightly refused to go into such issue, and neither can any fault be found with the findings G recorded by the courts below in this regard. Furthermore, as it is an admitted fact that defendant nos.1 and 2 were tenants of the original plaintiffs, the question of title could not be adjudicated at the behest of the appellants under any circumstance.

(D) & ORS. [DR. B.S. CHAUHAN, J.]

9. While dealing with the provisions of Section 23 of the A Act, 1887, this Court in Budhu Mal v. Mahabir Prasad & Ors., AIR 1988 SC 1772 held, that a question of title could also be decided upon incidentally, and that any finding recorded by a Judge, Small Causes Court in this behalf, could not operate as res judicata in a suit based on title.

Furthermore, the procedure adopted in the trial of a case before the Small Causes Court is summary in nature. Clause

(35) of Schedule II to the Act 1887, has made the Small Causes Court a court of limited jurisdiction. Certain suits are such, in C which the dispute is incapable of being decided in a summarily.

10. We have further examined the record of the case, and the Court of Small Causes, while determining the issues involved therein, has taken note of the result of the earlier Suit

No.45 of 1956, decreed vide judgment and decree dated D 23.4.1958, and also of the Execution Appeal No.64 of 1965, in the matter of Smt. Bibi Devi v. Janki Bibi, wherein it was held, that Janki Devi (2nd), being a life estate holder had no right to transfer the property. In Execution Appeal No.64 of 1965, Smt.

Ram Kumari, mother of the appellants was made a party, E however, so far as the issue of title by the courts below is concerned, the trial court held as under:

"This court cannot determine the question relating to proprietary right/ownership of the parties. On this point, this court has limited jurisdiction to decide as to whether there exists the relationship of house-owner and tenants in between the parties or not. As per the judgment passed by the competent court, Smt. Janakibibi had the right in

the disputed property during her life time only. She had no right or authority to sale or transfer the disputed property.

G This court is bound to accept the aforesaid conclusion.

Therefore, if Smt. Janakibibi has transferred the disputed property, contrary to her rights, to the defendant no. 4 - Smt.

Ramkumari on 7th of May, 1974, then because of that, no rights are established to Smt. Ramkumari. Such document H

A is a nullity and no legal cognizance can be taken in account." (Emphasis added)

The said finding has been upheld by all the courts.

11. We are not inclined to enter into the controversy B regarding Section 34 of the Specific Relief Act, 1963, as it has been submitted that the remedy of declaration envisaged by the said provisions is not exhaustive, and that there can be a declaration even outside the scope of the said Section 34. In support of the said contention, submissions have been made C on the basis of the judgments of this Court in Radha Rani Bhargava v. Hanuman Prasad Bhargava (deceased) thr.

L.Rs. & Ors., AIR 1966 SC 216; and Mis. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath

Singhji Deo of Maihar & Ors., AIR 1975 SC 1810.

12. In view of the above, we do not see any cogent reason to interfere with the impugned judgments. The appeal lacks merit and is accordingly, dismissed.

C.A. No. 630 of 2004

In view of the judgment in C.A. No.629 of 2004, no specific_, order is required in this appeal. It is accordingly dismissed.

K.K.T.

Appeals dismissed.