Narayana Prabhu Venkateswara Prabhu Vs. Narayan Prabhu Krishna Prabhu and Ors
DATE OF ORDER:
19 January 1977
Justice Beg, M. Hameedullah
Petitioner: Narayana Prabhu Venkateswara Prabhu
Respondent: Narayan Prabhu Krishna Prabhu and Ors
Since the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133, the Kerala High Court granted the defendant's appeal by certificate pursuant to Article 133(1)(a) of the Constitution as a matter of course before its amendment.
The Code of Civil Procedure, 1908
- Section 11 - 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.
The Constitution of India
- Article 133 - An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
- The parties to the partition suit are Narayana Prabhu’s descendents. The third son of Narayana was the plaintiff, Krishna, who is now deceased. The eldest of Narayana's four sons was Venkateswara, the defendant and appellant.
- The 72 articles listed in schedule “A” of the plaint that the plaintiff claimed to be joint family property were the subject of the partition lawsuit. There doesn't seem to have been any disagreement about some objects, but the defendant-appellant claimed ownership of other items as his exclusive property on the grounds that they were acquired with his personal funds, due to his own enterprise and exertions and ability in carrying on business.
- The Trial Court had agreed with the defendant-appellant’s argument that all of the articles, with the exception of No. 35 and a portion of No. 52, which belonged to the third defendant, were self-acquired property.
- The eldest son, Venkateswara, the defendant-appellant, was running the tobacco business when it was started, and because Narayana was the family’s Karta at the time, the High Court rejected the defendant-appellant’s argument that this established a presumption that it was Venkateswara's separate or self-acquired business. According to the High Court, the company was a joint family enterprise.
- The preliminary decree was approved in the court of the Second Additional Sub Judge of Alleppey after the partition suit was transferred there from another court. The appeal was accepted by the High Court. It is on appeal that the defendant-appellant also brought a money lawsuit in the Court of the Munsif, but only against Defendant No. 3, one of the four brothers, even though all of them were named as defendants in the partition action.
- However, the money suit was moved to the Additional Sub Judge’s file and tried concurrently with the partition suit. The Additional Sub Judge of Alleppey also issued a ruling in this case. The plaintiff had filed an appeal with the High Court contesting both judgments. The High Court heard both appeals together.
- Separate decrees were prepared in each appeal relating to a separate case. On the grounds that the defendant’s appeal was preempted by res judicata, a preliminary objection was raised.
Whether the same issue, under the circumstances given in section 11, has been heard and finally decided?
ARGUMENTS ADVANCED BY THE APPELLANT
- The learned counsel for the appellant insisted that since the two lawsuits were distinct in nature and were first filed in different Courts, the Courts trying the partition dispute and the Court where the money suit was tried were not Courts of Coordinate Jurisdiction.
- Furthermore, it was argued that because the money suit was filed sixteen days after the partition suit, it could not be regarded as an earlier suit because it had not yet been decided.
- It was also mentioned that the judgement was common. Additionally, it was argued that while all four brothers were party to the partition suit, only two brothers were parties to the money suit.
- Also, it was submitted that although the appeal in the money suit is decided under a separate heading and the brief judgement in it appears to be practically consequential on the judgement in the partition suit, it is true that the appeals against both of the Trial Court’s decrees were heard concurrently in the High Court. Nevertheless, the judgments in the two appeals resolve a common issue and led to two decrees.
- Therefore, it was argued that the defendant-appellant could not be prevented from raising his objections to the decree in the partition matter, neither in law nor in equity.
- The Counsel submitted that the defendant-appellant could not come within the ambit of Explanation VI of section 11, Civil Procedure Code.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The learned counsel for the respondents correctly based his arguments on the judgement of Bhugwanbutti Chowdhrani v. A.H. Forbes, where it was held that “in order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way”.
- His submissions were also based on Lonan- kutty v. Thomman & Anr. which held that “Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial' Court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive”.
- It was further observed in the aforementioned case that “the decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a ‘former suit’ within the meaning of section 11.
- The Counsel further submitted that the case of the respondents fully covered by the explanation and relies on Kumaravelu Chettiar & Ors. T.P. Ramaswamy Ayyar & Ors.
- Based on the appellant’s admissions, the Court determined that the High Court’s decision did not contain any legal errors that warranted the granting of special permission to appeal.
- They felt that the appellant would face a very difficult task indeed in arguing his appeal, even in the partition suit, insofar as it was possible to express any opinion at all regarding the merits of the High Court's decision, which was based on documents containing admissions of the defendant-appellant.
- The partition suit was started in 1947, according to the court, and it wasn’t granted a new number until 1957. On the surface of the facts of the case, this is where the court could see that the rule that litigation should have a resolution should be applied.
Both the overdue special leave petition from 1976 and the civil miscellaneous petition, also from 1976, were dismissed by the court.
The result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the parties will bear their own costs.
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