# !C~hardso Chclmria v. Radha Kissen Ghamria and Others

- **Citation:** [1953] 1 S.C.R. 154
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Case number:** Civil Appeals Nos. 110 and 111 of 1951
- **Bench:** MEHR CHAND :r, J}Ji, 1.Jan; Chandrasekhar/I.' Aiyar, Bha~Wati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-hardso-chclmria-v-radha-kissen-ghamria-and-others-117
- **Pages:** 23

## Headnote

Res iudicata-Land acquisition proceeditius-Dispute .as t.o
title between rival claimants-Decision after contest-Whether
operates as res jud\ca.ta. in stibsequent su,it-Ejfec.t of decisio-n on
mortg/J/jees.
Where the right to
receive compensation for property
acquir6d in land aequisitioh proceedings as b8tween rival clainla.nts
depends on the title to the p~operty acquired an~ the dispute as to
title is raised· by the parties and is decided by the Land Acquisition Judge after ·contest, thiB decision as to ~itle operates as ,:es
juif.,icata in a·subsequent suit betweerl the same parties· on the question of title_. The binding force of a judgment delivered under the
Land Acquisition Act depends on general principles' of lq.w a.nd not
on s. 11 of the Civil Procedure Code, and the decision of a Iiand
Acquisition Judge wciuld operate as res judicata even though he
was not competent to try the subsequent suit.
,
If a mortgagee intervenes in ln.nd acquisipion. proceedings and
makes a claim for compensation,. and any question of title arises
about the title of the mortgagor in respect to .the land acquired
which affects the claim for compensation, ne- has every right to
prot.ect that title and if he defends that title and the issueis
decided against his mortgagor. the decision would operate as res
judic~ta even as against the mortgagee.
Certain premises wb.ich formed part of the" estate of a decieased person were acquired in ~nd a.cquiaition proceedinga.-
'fhere was a triangular contest about the right to the compen-
~ation moμey between A and B, two rival claimants to": four a.nn4s
8.0.R.
SUPREME COURT REPORTS
155
share in the estate of-the deceased, and d; ~.mortgagee from one
19~3
of the claimants.
Th6 three parties required the. question of
apportionment to be referred to the Conrt·and a·Special Judge Raj Lakshmi
who was appointed decided the question of title to,.the fout•annas
'Dasi
share upon which the right to
receive the comp~nsation de~
and Others
pended and made an ,award. The 'Land Acquisition Judge'. and
v.
High Court found the title in favour of .B after due coriteSt .Banamali Sen
between the parties but the Privy Council reversed the decision
and OthM·s.
and de9ided thequestioti' of-title in favour of A. In a subsequent suit
between ·the same parties the question of title was a.gain raised :
Held (i) that the decision of the frivy Couμcil on. the ques--
tion of title, in the land acquisition proceedings operated as res
judicata as against B as well as C, even though the Land Acquisition Judge >VaS a Speci.al ·Judge who would have had no: juris--
diction to try the subsequent suit;
(ii) that the rule of res judicata was applicable even though
the subject mattei: of dispute in the land acquisition proceedings ·
was the com.Pen~.atiOn money and not the property which was in
dispute in thSi su}Jsequent' suit~
.
(iii) the fact that the mortg~gee did not appear at' the 'hearing
before the Prhi:y Council was immaterial as the judgments in the
first two courts Were given after full contest.
Ramaohandra Rao v. Ramachandra Rao (19221 49 I.A. 129,
and Bhagwati v. Ram Kali [19391 66 I.A. 145, applied.

## Text

_Characters 0–39,910 of 49,626. This is a partial read: ask again with offset=39910 for what follows._

I
1953
-!C~hardso
Chclmria
v.
Radha Kissen
Ghamria
and Others.
1953 -·
Oct. 37.
ii>4
SUPRE1ME° COURT REPORTS
(1953j
iμcurred in the High Court. and those incurred in•
this court in these appeals.
Appeal No. 12 allowed.
•
Appeal No. 18 dismissed.
Agent for the appellant.in C. A. No. 12 'and respondent in C.A. No. 12: p; 'K. Chatterjee.
Agent for the respondebts. in ·q. A._No. ~2 and
appellan~~ in C. A. No. 13: Sulmniar Ghose.
-~
RAJ LAKSHMi DASI 'AND OTHERS
v.
BANAMALI SEN AND OTHERS
BHOLANA'l'H
0 SEN AND OTHERS
v.
RAJ Lf,.KSHMI DASI AND Q'fHERS.
(MEHR CHAND :r-&;J}JI,-1.JAN; CHANDRASEKHAR/I.' AIYAR
and BHA~WATI JJ.]
Res iudicata-Land acquisition proceeditius-Dispute .as t.o
title between rival claimants-Decision after contest-Whether
operates as res jud\ca.ta. in stibsequent su,it-Ejfec.t of decisio-n on
mortg/J/jees.
Where the right to
receive compensation for property
acquir6d in land aequisitioh proceedings as b8tween rival clainla.nts
depends on the title to the p~operty acquired an~ the dispute as to
title is raised· by the parties and is decided by the Land Acquisition Judge after ·contest, thiB decision as to ~itle operates as ,:es
juif.,icata in a·subsequent suit betweerl the same parties· on the question of title_. The binding force of a judgment delivered under the
Land Acquisition Act depends on general principles' of lq.w a.nd not
on s. 11 of the Civil Procedure Code, and the decision of a Iiand
Acquisition Judge wciuld operate as res judicata even though he
was not competent to try the subsequent suit.
,
If a mortgagee intervenes in ln.nd acquisipion. proceedings and
makes a claim for compensation,. and any question of title arises
about the title of the mortgagor in respect to .the land acquired
which affects the claim for compensation, ne- has every right to
prot.ect that title and if he defends that title and the issueis
decided against his mortgagor. the decision would operate as res
judic~ta even as against the mortgagee.
Certain premises wb.ich formed part of the" estate of a decieased person were acquired in ~nd a.cquiaition proceedinga.-
'fhere was a triangular contest about the right to the compen-
~ation moμey between A and B, two rival claimants to": four a.nn4s
8.0.R.
SUPREME COURT REPORTS
155
share in the estate of-the deceased, and d; ~.mortgagee from one
19~3
of the claimants.
Th6 three parties required the. question of
apportionment to be referred to the Conrt·and a·Special Judge Raj Lakshmi
who was appointed decided the question of title to,.the fout•annas
'Dasi
share upon which the right to
receive the comp~nsation de~
and Others
pended and made an ,award. The 'Land Acquisition Judge'. and
v.
High Court found the title in favour of .B after due coriteSt .Banamali Sen
between the parties but the Privy Council reversed the decision
and OthM·s.
and de9ided thequestioti' of-title in favour of A. In a subsequent suit
between ·the same parties the question of title was a.gain raised :
Held (i) that the decision of the frivy Couμcil on. the ques--
tion of title, in the land acquisition proceedings operated as res
judicata as against B as well as C, even though the Land Acquisition Judge >VaS a Speci.al ·Judge who would have had no: juris--
diction to try the subsequent suit;
(ii) that the rule of res judicata was applicable even though
the subject mattei: of dispute in the land acquisition proceedings ·
was the com.Pen~.atiOn money and not the property which was in
dispute in thSi su}Jsequent' suit~
.
(iii) the fact that the mortg~gee did not appear at' the 'hearing
before the Prhi:y Council was immaterial as the judgments in the
first two courts Were given after full contest.
Ramaohandra Rao v. Ramachandra Rao (19221 49 I.A. 129,
and Bhagwati v. Ram Kali [19391 66 I.A. 145, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 110 and 111 of 1951.
Appeals from the Jndgmenb and Decree dated May 6, 1946, of the High
Court of Judicature at Calcutta. (Biswa.s and Chakra.-
vartti JJ.) in Original Decree No. 43 of 1942 wLth
Civil Rule 399 of 1945, arising out of Judgment and
Decree dated June 3Q, 194)., of the Second Court of
Addi~ional. Subprdina.te Judge, 24 Pa.rg'a.nas, in Title
Suit No. 63 of 1938. ·
N. C. Chatterjee (fjaroj. Kumar Chatterjee and 21..
ty. Sinha, with him) for the appellants in Civil Appea.11
No, llO.
Panchanan Ghose (S. N. Mukherjee and Benoyendra
Prasad Bagchi,_with him) for Respondents Nos. L (a.)
·and 1 (b) in Civil Appeal No. 110 a.ncj. the appellants
in Ciyi\.Appea.l No. lll.
Ram Krishna Pal (guardian ad litem) for respondent
No. 5 (3) in Civil Appeal No. _110 e,nd No. 4 (3) iq
Civil Appeal No. lll,
'
1952
Raj Lakshnii
Dasi
156
SUPREME COURT REPORTS
[1953)
-
1952.
October 27.
was delivered by
•
The Judgment of the Court
MAHAJAN J.-These two connected appeals from
and Others
d
d d
f h H' h C
the ju gment an
ecree o t e
1g
our_t-of Judiv.
Banamali Sen cature at Calcqtta in appeal fl'om Original Decree
a1id Others. No. 43 of 1942 dated the 6th May, 1946, arise out of
Title Suit No. 63 of 1938, instituted on the 21st
Mahajan J. September, 1938, in the Court of the Second Addi·
tional Subordin,ate Judge of Ali pore, by RajlakshmL
against the Sens and the Dasses for possession of the
properties which represent a four anna share of the
estate once held by one Raj Ballav Seal.
On the 8th June, 1870, tW() days before his death,
Raj Ballav Seal, a Hindu inhabitant o! the town of
Calcutta governed by the Bengal School of Hindu
law, executed a will giving authority to his \Vidow Mati
Dassi to adopt a son and appointed her and three other
persons as executors and trustees of the estate and
gave them elaborate il.lrections for the administration
and distribution of his extensive propertie's. Raj Bit Ila v
was one of those persons who believe in leaving
detailed instructions about their property and the_
manner in which it is to be managed and taken after
their death and expect- their wishes to be dutifully
· carried out by those who survive them.
How his
wishes have been respected by his descendants is now
a matter of history.
Since the year 1890 this is t"he
eighth or ninth litigation concerning the construction
of the testament he made on that fateful day, a·nd if
by any means Raj Ballav could be informed of the
result of these litigations and was told that it had
been held that he had died intestate, he would surely
rise out of the ashes and lodge an emphatic protest
against what has happened.
Raj Ballav died on the 10th June, 1870, leaving him
surviving his widow Mati Da;ssi and three grandsons,
who were sons of a predeceased daughter by another
wife and one of whom died in -1880 unmarried. The
grandsons' line will ~e referred to in this judgment as
the Sens. On Raj Ballav's death, YJ:ati Passi entered
•
. '
S.C.R.
SUPREME COURT REPORTS
157
into possession of the estate· and adopted one J ogendra
Nath Seal in 1873 under the authority conferred on
her. · J ogendra married Katyayani, and Rajlakshmi,
the plaintiff in the suit out of which these app
0eals
arise, is their only child.
She was less than one year
old when J ogendra died in 1886.
Shortly after the
death of J ogendra, Mati Dassi
adopted Amulya
Charan, a brother of Katyayani in further exercise of
the authority conferred on her.
Mati Dassi died in
1899 and the Sens then appeared to have taken possession of the estate. During the lifetime of Mati Dassi,
the two grandsons commenced a suit on 22nd July,
1890, against Mati Dassi and the other executors then
living, Amulya and Katyayani, for a declaration of
the rights of the parties under the will, administration
of the estate, accounts and a declaration as regarda
their quarter share of the net income.
Trevelyan J.
declared that the grandsons were entitled to an onefourth share of the estate absolutely and directed
accounts to be taken. This declaration was granted
against Mati Dassi alone, the suit having been dismissed against the other defendants.
The two grandsons having taken possession of the whole estate after
the death of Mati Dassi, Amulya brought a suit on
the 9th October, 1901, against them and Kat'yayani
f~r construction of the will and a declaration that he
was the duly adopted son and heir of Raj Ballav and
that as such, he was entitled to a three-fourth share
of the estate and the Sens were entitled only to tha
remaining one-fourth share.
By a judgment dated
5th January, 1903, the trial court dismissed the suit
on the view that under the will the first adopted son
had acquired an absolute right, title and interest in
the share of the estate left by the will of his'adoptiva
father and he having left a widow and a daughter,
Mati Dassi had no authority to make a second adoption. This decision was affirmed on appeal. [Amitlya
Charan Seal v. Kalidas Sen(1)].
On 13th January, 1903, eight days after the decision of the trial court dismissing Amulya.'s suit,
(I) (1905) I.L.R. 3z Cal. 86J,
n
195!1
Raj Lakshmi
Dasi
and 0th•,..
v,
Banamali Sen
and Others,
Mahajan J,
1952
Ra.i LaksJvnii
Dasi
and Others
v.
Banamali Sen
and Others.
11lahajan J,
158
SUPREME COURT REPORTS
(1953]
Katyayani commenced suit No. 11of1903 against the
Sens, Amulya and the receiver appointed in Amulya's
suit, for construction of the will, declaration of title,
part'ition and accounts. In the plaint as originally
filed, Katyayani admitted the title of the Sens to an
one-fourth share of the estate and claimed only a
three-fourth share for herself as the widow of
J ogendra.
'rhe Sens claimed the whole estate for
themselves as the heirs of Raj Ballav. They pleaded
that the will was not genuine and that even if it was
genuine, the bequests in favour of the adopted son
and for the worship of the deity were invalid and
that even if they were valid, J ogendra. having died
before attaining the age of 20 years had taken
nothing under the will.
During the pendency of this suit, on the 25th
September, 1908, the Sens mortgaged the whole
sixteen anuas of the estate to one Shih Krishna Das
in order to secure a loan of Rs. 7 ,000. The mortgagee
and his representatives in interest will be described in
this judgment as the Dasses. Amulya's appeal against
the judgment of the trial court dated 5th January,
1908, was decided in 1905, during the pendency of
Katyayani's suit No. 11of1908 instituted on the I.3th
January, 1903, and after the Dasses as mortgagees
had entered into possession.
On the 26th SeptembE\l',
1905, after the decision of the High Court in Amulya's
suit, Katyayani applied for an amendment of the
plaint so as to include a claim for the whole estate in
accordance with that decision.
This application was
allowed. To this amended plaint no further written
statement was filed by the Sens.
By a judgment
dated Ill.st December, 1905, the trial Judge decreed
the claim of Katyayani for the whole of Raj Ballav's
estate and a decree for recovery of possession of the
whole estate was passed in her favour. It was held
that the whole of the corpus of the estate had vested
in J ogendra and the provisions of the will whereby a
fourth-share had been bequeathed to the grandsons
were void and ineffectual. The plea of adverse possession and limitation taken by the SeI\S was abaI\(\oned
ii t thl! trial,
·
..
>
•
S.C.R.
SUPREME COURT REPORTS
159
Against this decision an appeal was taken to the District Judge. The mortgagee Shib Krishna Das was also
added as a party in the appeal.
'rhe appeal was cpmpromised and under the compromise Katyayani was to
get a six anna share in absolute right in the estate,
Kanai, her father, was to get another six anna share
for his supposed troubles and expenses in connection
with the litigation and each of the Sens a two anna
share, their shares to be subject to the mortgage
charge.
The compromise decree was passed on 9th
.January, 1907, and the suit was remanded to the trial
court in order that a partition might be effected and
a final decree passed.
A partition was made in due
course and final decree was passed on 10th September, 1907.
On the 18th April, 1907, after the consent decree
had been made by the appellate court in Katyayani's
suit, Rajlakshmi, daughter of Katyayani and the next
reversioner to the estata of J ogendra, commenced
suit No. 59 of 1907 against the parties to the compromise for a declaration that the compromise and
the consent decree were void and inoperative and that
they were not binding on her. The trial court held
that the compromise was binding on Rajbkshmi but
that she was entitled to a declaration that Katyayani
had taken only a widow's estate in the six annas share
given to her. On appeal by Rajlakshmi, the High
Court on 8th August, 1910, reversed the trial court's
decree and declared that the consent decree was void
and inoperative as against Rajlakshmi and that she
was in no way bound by the partition proceedings
which had taken place in execution thereof. The
appeal was not contested by the Sens but was contested by the representatives of their mortgagees (the
Dasses) who asserted the title of their mortgagors to
an one fourth-share of the estate both under the com-·
promise decree and the will. (Rajlakshmi Dassee v.
Katyayani Das.~ee(1).
In the year 1919, two cross suits were commenced
by the grandsons and by Katyayani and Rajlakshmi
(!) (1911) I.L.R. 38 Cal. 639,
1952
Raj Lakshnii
Dasi
and Othars
v.
Banamali Sen
and Others.
Mahajan J.
19[)2
Raj Lakshmi
Dasi
and Others
v.
Baiia1nati Sen
and Others.
Mahajan J.
i60
SUPREME COURT REPORTS
[1953)
for recovery of the twelve annas share and the four
annas share respectively in the possession of the respective parties. Katyayani brought suit No. 1 l5 of
191g for recovery of the four anna share against the
Sens and the Dasses, while the Sens brought suit
No. 112 of 1919 for recovery of the twelve annas
share of the estate against Katyayani and Rajlakshmi.
Both these suits were dismissed by the trial judge and
his decision was affirmed on appeal on 21st July,
1925.
Before the commencement of this suit, the
Dasses had brought a suit on the foot of their mortgage and haa obtained a mortgage decree which was
made final on 23rd November, 1918.
The property described as 2, Deb Lane, Calcutta,
forming part of Raj Ballav's estate and which had
been allotted under the compromise to the share of
the Sens was notified by a declaration under the Land
Acquisition Act for acquisition on the 16th January,
1921. On the 27th April, 1928, Ajit Nath Das, mortgagee, made an application claiming the entire
amount of compensation money and contended that
the mortgagee decree-holders were entitled to the
whole of it.
Rajlakshmi claimed the entire amount
as owner of the sixteen anna share of Raj Ballav's
estate.
On the 7th July, 1928, a joint award was
made in favour. of all the claimants.
Rajlakshmi
asked for. a reference to the court on the point of
apportionment of compensation by a petition made
by. her on the 18th July, 1928.
She asserted that
the Sens and the Dasses were not entitled to any
portion of the compensation money.
Ajit Nath Das,
mortgagee, also made an application for reference on
the 18th August, 1928.
A similar petition was
made by J ogender Mohan Das.
Bholanath Sen filed
a statement of the claim on 8th June, 1929. A
special judge was appointed under the Land Acquisition Act to try the matter. He disallowed Rajlakshmi's
claim and held that the Sens were entitled to the
entire compensation money. Both the Sens and the
Dasses were represented by their respective counsel
and
made common
cause
against
Rajlakshmi.
>
•
s.c.:R.
SUPREME COURT REPORTS
16i
Rajlakshmi appealed to the High Court against the
decision of the special judge but without any success.
Her appeal was dismissed on 8th March, 1935.
She
preferred an appeal to the Privy Council.
Thi~ was
allowed and Rajlakshmi was declared entitled to the
entire compensation money.
(Rajlakshmi v. BholafULth Sen) (1 ).
Within two months of the decision of the Privy
Council, the suit out of which these appeals arise was
commenced, as already stated, by Rajlakshmi on 21st
September, 1938, against the Sens and t.he Dasses for
possession of the properties which represented the
four anna share of the estate allotted to the Sens,
and possession of which was delivered to them in
pursuance of the terms of the final decree in suit
No. 11 of 1903. A portion of these had since then
been purchased by the Dasses in execution of the
mortgage decree.
This suit was dismissed by the
trial judge. Rajlakshmi appealed to the High Court
against the dismissal of her suit~ The High Court
allowed the appeal in part, the judgment and decree of
the trial court in so far as they dismissed the plaint-
. iff's suit as against the Sens were set aside and the
suit was decreed against them and the plaintiff's title
to the properties in suit was declared as against them.
It was ordered that she should recover possession
from them, as also from defendant 14 as receiver but
that her title and possession were subject to the rights
of the defendants-respondents 3 to 13 (Dasses) to
proceed against the properties in execution of their
mortgage decree on the basis that these properties
were in the possession of and dealt with by defendantsrespondents 1 and 2 as representing the four anna
share of the estate to which they had title.
An enquiry was also ordered as to the amount of the mesne
profits.
The appeal was dismissed as against respondents 3 to 13, the Dasses. The correctness of this
decision has been impugned before us in these appeals
by the respeotive parties to the extent that it goes
against them.
(r) (1938) 65 I.A. 365,
1952
Raj Lakshini
Dasi
and Others
v.
BanJinali Sen
and Others.
Mahajan J.
•
18:2
SUPREME COURT REPORTS
[1953]
In order to appreciate the conMntions raised in the
Baj Lakshmi two appeals it is necessary to determine the true scope
Dasi
and qffect of the decision of the Privy Council in the
1952
and Others
land acquisition case of 1928 (Rajlaks1uni v. Bholav. 1
nath Sen) (1 ).
The premises acquired in those proBanamali Sen ceedings admittedly formed part of the estate of Raj
and Oth'""
Ballav Seal, which under the compromise decree of
.ilfa.hajan J.
•
1907 had by partition fallen to the four anna share
allotted to the Sens.
rrhere was a triangular contest
about the award of the compensation and a joint
award was made in their favour after notice to all the
parties interested in the property acquired including
the mortgagees.
rrhat the mortgagees were within
the definition of the phrase "person interested" is
plain from the language of section 10 of the Act and
perhaps it would have been unnecessary to mention
this elementary fact by reference to the provisions of
the Act had not the High Court thought otherwise.
As already stated, the Sens, the Dasses and Rajlakshmi required the question of apportionment of
compensation to be referred to the determination of
the court and they stated the grounds on which their
claims were based.
The dispute that arose between
the parties is apparent on the face of those proceedings and in the words of Lord 'l'hankerton who delivered the decision of the· Board,. the matter in controversy was whether Rajlakshmi was entitled to the
compensation money awarded in respect of the
acquisition of part of the premises, 2 Deb Lane, in
the town of Calcutta as siwcessor to the estate of Raj
Ballav Seal of which the snid premises formed part.
The claim to compensation made by the respective
parties was founded on the assertion of their respective titles in that part of Raj Ballav's estate which
under the partition decree of 1907 had been allotted
to the Sens subject to the charge of the Dasses, and
the decision on the question of apportionment depended on the determination of _that title.
The land
acquisition court had thus jurisdiction to decide the
question of title of the parties in the pr_operty
{1) (1938) 65 I.A. 365.
•
•
..
)
--=
S.C.R.
SUPREME COURT REPORTS
163
acquired and. that title could not be decided except
by deciding the controversy between the parties about
the ownership of the four anna share claimed by the
Sens and Rajlakshmi.
1952
Raj Lakshmi
Dasi
and Others
The Land Acquisition Court and the High Court B
v. l' s
on appeal held the title of the four annas share
:n;"::i~; •. en
proved in the Sens. But their J_Jordships of the
"
"·
Privy Council held otherwise and found that the Sens
Mahajan J.
had ·no such title, and that Rajlakshmi alone was
entitled to the whole of the estate of Raj Ballav Seal
including the four anna share that was in possession
of the Sens and on which their mortgagees had a
charge.
This is how their Lordships settled the
matter in controversy:-
"It is important to get a clear view of the position of the estate after the decision of the High
Court of 8th August, 1910, the effect
of which
(inter alia) was to annul the consent decree of
the District Court in No. 11 of 1903, and to
leave the decree of the Subordin.ate Judge, dated
December 21, 1905,
which
has
been
already
quoted, as final and binding.
'rhis decree declaring
Katyayani's title to the whole estate, was clearly
a decree in
Katyayani's
favour as representing
the whole interests in the estate, and it has rightly
been so regarded by both the courts below in the
present case ; and it formed res judicata in any question with the Sens. · As regards possession of the
estate, while the decree made an order for recovery of
possession, the possession given under the partition
of 1907 continued, the Sens being in possession of the
four annas. It seems clear 'that possession under an
agreement which was not binding on the reversionary
heirs could not avail the Sens in a question with a
reversionary heir, whose right to possess could not
arise until the succession opened to such heir."
The above is a clear determination of the question
of title between the Sens and Rajlakshmi in regard
to the four anna share. It was argued on behalf of
~he Se~s before the Pri vr Council tha.t in any
C!!tS~
'"
1952
Raj Laksh?ni
Dasi
and Others
v,
164
SUPREME COURT REPORTS
[1953)
the decision in suit No. 115 of 1919 instituted by
Katyayani against the Sens and their mortgagees for
recovery of the four anna share operated as res judicata 'on the claim of Rajlakshmi.
This plea was
negatived and it was held that the decree in suit
Ba .. amali Sen No. 115 of 1919 could not aud did not affect Rajand Oth•"· lakshmi's right to possession.
There can thus he no
doubt that the determination of the question of title
Mahajan J.
..
to this part of Raj Ballav'sestate was within the scope
of the land acquisition proceedings and the title was
finally determined in those proceediI).gs.
In order successfully to establish a. plea of res
judicata or estoppel by record it is necessary to show
that in a previous case a court, having jurisdiction to
try the question, came to a decision necessarily and
substantially involving the determination of the
matter in issue in the later case. It was at one time a
matter of doubt whether the determination of a court
to which a matter had been referred by the collector
was such a decision and that doubt was resolved by
the judgment of tlie Privy Council in Ramachandra
Rao v. Ramachandra Rao(I), which decided that where
· a dispute as to the title to receive the compensation
had been referred to the court, a decree thereon not
appealed from renders the question of titleresiudicata
in a suit between the parties to the dispute.
In that
case it was observed as follows:-
"The High Court appear only to have regarded the
matter as concluded'to the extent of the compensa-
'tion money, but that is not the true view of what
occurred, for, as pointed in Badar Bee v. Habib Merican Noordin(') it is not competent for the court, in the
case of the same question arising between the same
parties, to review a previous decision no longer open
to appeal, given by another court having jurisdiction
to try the second case. If the decision was wrong, it
ought to have been appealed from in due time.
Nor
in such circumstances can the interested parties be
heard to say that the value of the subject-matter on
(1) (1922) 49 LA. 129.
(2) ~1909J A,C. 62~.
)
J
•
S.C.R.
SUPREME COURT REPORTS
1.65
which the former decision was pronounced was com1952
paratively so trifling that it was not worth their while Raj Lakshmi
to appeal from it. If such a plea were admisilible,
Dasi
there would be no finality in litigation.
The importand Others.
ance of· a judicial decision is not to be measured by
v.
the pecuniary value of the particular item in dispute. Ba,.a,mali Sen
It h
b
t d th t th d · ·
t ·
and Others.
as
een sugges e
a
e ems10n was no m a
former suit, but whether this were so or not makes no
Mahajan J.
difference, for it has been recently pointed out by this
Board in Hook v. Administrator-General of Bengal(1)
that the principle which prevents the same matter
being twice litigated is of general application, and is
not limited by the specific words of the Code in this
respect."
In Bhagwati v. Ram Kali(2) an issue was decided in
favour of B in a land acquisition proceeding that she
was entitled to the whole of the compensation money.
In a subsequent suit by another widow, who was also
a claimant in the land acquisition proceedings, for a
declaration that she was entitled to a half share in the
estate inherited by her husband and his brothers, it
was held that her suit was barred by the rule of res
judicata, the District Judge having in the previous
proceeding decided that she had .no title to the land.
In that case part of the property in dispute was
acquired under the Land Acquisition Act and the
Collector by his award apportioned the compensation·
between the widows in equal shares. Both the widows
raised the question of title to the compensation. The
objections were referred under the Act to the District
Judge and the District Judge on the issue as to whether Bhagwati was entitled to the entire compensation
or whether Ram Kali was entitled to a half, found in
favour of Bhagwati.
Ram Kali then brought a suit
against Bhagwati for a declaration of her right to a
half share of the whole of the property inherited by
the brothers and their mother.
The Subordinate
Judge held that the suit was barred by res judicata by
the deoision of the District Judge in the reference
under the Land '\cquisition Act.
The High Court
(2) (1939) 66 I,A. l'f~·
1962
·Raj Laksh11ii
Dasi
and Others
v.
Banamali Sen
and Others.
3lahajan J.
•
•
166
SUPREME COURT REPORTS
[1953]
reversed this decision holding that Ram Kali's title
was not the subject-matter of the refe1'ence to the
District Judge and he was not therefore competent to
try it. The Privy Council reversed this decision and
held that the District Judge did determine trhe q ues·
tion of the ownership and his decision was binding
upon the parties and the matter was res judicata. ·
These two decisions, in our opinion, are conclusive
on the point of res judicata raised in the present case
and in these circumstances it has to be held that the
question of title to the four anna share was necessarily and substantially involved in the land acquisition p1·oceedings and was finally decided by a court
having jurisdiction to try it and that decision thus
operates as res judicata and estops the Sens and the
mortgagees from re-agitating that matter in this suit.
·we are not now concerned with the question whether
the Privy Council was right or wrong.
The High Court held that there can be no question
that this decision is binding on the Sens and concludes
them on the question of their title as against Rajlakshmi and that there could be no question also that
it is binding on the mortagees who were parties to the
proceeding. In the concluding part of the judgment
they observed as follows:-
- "Our conclusion, theref6re, is that there is
nothing in the decision of the Privy Council which
can operate as res judicata against the Dasses, either
directly or constructively, on the question of the title
of the Sens to the mortgaged properties.
They are
bound by the decision so far as it goes: just as the
Sens can no longer say that the decision in suit No. 11
is not r.es fudicata against them in a question with
the plaintiff, both as regards title and the right to
possession, so'cannot the Dasses say that the decision
is not res fudicata against the Sens.
But their own
right to prove the title of the Sens against the plaintiff is in no way affected.
This may look anomalous,
but s_uch anomaly is inherent in the doctrine of res
judicata which does not create or destroy title but is
0nly a rule of estoppeL"
·
•
S.C.R.
SUPREME COURT REPORTS
167
With great respect it seems to us that the conclusion reached as regards the mortgagees is neither' illuminating nor sound.
The anomalous result arrived
at is on account of a wrong approach to the soltition
of the problem and is not the result of any anomaly
inherent in the doctrine of res judicata.
The learned
Judges posed certain questions and then attempted to
answer them in view of the limited provisions of section 11, Civil Procedure Code, which in terms apply
- only to suits, forgetting for the moment, if we may
say so with respect, that the doctrine of res judicata
is based on general principles of jurisprudence. The
questions were: (1) Did the judgment of the Privy
Council in the 1928 land acquisition proceedings
decide any question as to the right of the mortgagees
to hold from the Seo.s a mortgage of the four anna
share, or their right to prove the title of their mortgagors in a question between themse Ives and the reversioners to J ogendra's estate?
(2) Could the mortgagees have raised these questions in the land acquisition proceedings and even if they· could have, are the.
questions such that they ought to have been raised?
It is difficult to appreciate how both these questions
were germane to the issue to be decided in the case.
Here it is worthwhile repeating what was t>aid by Sir
Lawrence Jenkins in delivering the judgment of the
Board in Sheoparsan Singh v. Ramnandan &ingh(1):-
" In view of the arguments addressed to thein,
their Lordships desire to emphasize that the rule of
res Judicata while founded on ancient precedent, is
dictated by a wisdom which is for all time. 'It hath
been well said' declarnd Lord Coke, 'interest reipublicae
ut sit finis litium-otherwise, great oppression might
be done under colour and pretence of law' (6 Coke,
9a).
Though the rule of the Code may be traced to
a.n English source, it embodies a doctrine in no way
opposed to the spirit of the law as expounded by the
Hindu commentators. Vijnaneswara and Nilakantha
include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
(1) (1916) 43 I.A. 91 at p. 98
1953
Ra,i Lakshmi
Dasi
and Othdrs
v.
Banamali San
and Others.
Mahajan J.
1952
Raj Laksh1ni
Da.si
and Others
v.
Bana1nali Sen
and Others.
Mahajan J,
..
168
SUPREME COURT REPORTS
[1953 J
Katyayana, who describes the plea thus: 'If a person,
thou"gh
defeated af law, sue again, he should
be answered, "you were defeated formerly". This
is called the plea of former judgment.' And so the
applic~tion of the rule by the courts iu India should
be influenced by no technical considerations of form,
but by matter of substance within the limits allowed by
l
"
.
aw.
The binding force of a judgment delivered under
the Land Acquisition Act dep~nds on general principles of law and not upon section 11 of the Act. If it
were not binding, there would be no end to litigation.
The mortgagees had been fighting about the title
of
the mortgagors from the year 1910. When
Rajlakshmi lost her suit institntedon 18th April, 1917,
to contest the compromise decree in suit No. 59 of
1907 and preferred an appeal to the High Court, that
appeal was not contested by the S_ens at all, but was
contested by the representatives of their mortgagee
who asserted the title of the mortgagors to one-fourth
·share of the estate both under the compromise decree·
and under 'the will. In the year 1919 when the two
cross suits above mentioned were commenced, the
mortgagees were impleaded as parties and took an
active interest in the cases. When the proceedings
under the Land Acquisition Act were commenced in
the year 1928 a joint award was made in their favour
along with the Sens and Rajlaksmi. As parties interested in the property acquired they asked for a
reference and got it.
They were represented by counsel before the land acquisition court and got a decision on the question of title as to the four anua
share of the estate of the late Raj Ballav in
favour of the mortgagors and themselves.
They were
impleaded as parties in the appeal preferred by
Rajlakshmi to the High Court and before that court
also they were represented by counsel and were successful in defending that appeal.
They were again
imp leaded as parties by Rajlakshmi in the appeal preferred by her to the Privy Council.
They took active
part in the proceedings for leave to appeal and in
f
)
S.C.R.
SUPREME COURT REPORTS
having the papers prepared for the use of the Privy
1952
Council.
As a matter of fact, they paid part of the
Th ·
b f
h p ·
Raj Laksh11ti
printing cost.
e1r non-appearance e ore t e nvy
Dasi
Council at the time of hearing cannot thus relieve
and Others
them of the consequence of an adverse decision given
v.
against them by the Privy Council. They had every Banamali Sen
right in those proceedings to defend the title of their
and Oth•rs.
mortgagors to the four anna share and they fully
Jfahajan J.
exercised their right except that at the last stage,
possibly having won in the two courts below, they
assumed that the decision in the final court would also
be favourable to them and did not appear before the
Privy Council. It had been held in a number of case~
prior to the amendment made in section 73 of the
Transfer of Property Act by Act XX of 1929 that
where the property acquired forms Pl!>rt of an estate
which is mortgaged for an amount larger than the
amount awarded as compensation, the mortgagee is
entitled to the whole of the compensation in liquidation of the mortgage debt.' This view was accepted
by the legislature when it added sub-sections (2) and
(3) to section 73.
Sub-section (2) is in these
terms:-
"Where the ·mortgaged property or any part thereof or any interest therein is acquired under the Land
Acquisition Act, 1894, or any other enactment for the
time being in force providing for the compulsory
acquisition of immoveable property, the mortgagee
shall be entitled to claim payment of the mortgagemoney, in whole or in part, out of the amount due to
the mortgagor as compensation."
In view of the provisions of sections 9, 10, 18 and
30 of the Land Acquisition Act, it is evident that if
the mortgagee actually interv:enes in the land acquisition proceedings and makes a claim for the compensation, and any question of title arises about the right
of the mortgagor in respect to the land acquired
which affects the claim for compensation, he has every
right to protect that trtle. In the proceedings commenced in 1928 for the acquisition of 2, Deb Lane,
Calcutta, as already stated, the mortgagees actually
1952
Raj Lakshmi
Dasi
and Others
v,
Baiiatnali Sen
and Others.
Jfahajan J.
170
SUPREME COURT REPORTS
[1953)
intervened and defended the title of their mortgagor~
but without success. In those circumstances the view
taken by the High Court that they had no lociis standi
to make the claim, as it was not based on their own
title cannot be sustained because a mortgagee has no
other title than the title of his mortgagor.
Thejudgmeut of the High Court when it says that the Dasses
claimed it on the footing that they being creditor,; of
the Sens, with a lien on the property, were entitled to
receive the money towards the satisfaction of their
debt and their claim therefore was not a claim of title,
but only a claim to receive the compensation money,
is clearly erroneous as the claim could be established
only by proving the title of their mortgagors as against
Rajlakshmi. vVe have further not been able to follow
the ·judgment of the High Court when it says that the
land acquisition court must be presumed to have dismissed the mortgagees' claim on the proper and legal
ground that the mortgagees being mere mortgagees
had no lociis standi to lay c1aim for the compensation
money. It would have been more accurate if it was
said that the land acquisition court having held the
title of the Sens proved to the premises acquired,
presumed that the compensation money to which the
Sens were entitled would be paid in due course to
their mortgagees as both of them were sailing together
and had a common cause against Rajlakshmi.
'fhe
High Court further observed that the mortgagees
were bound by the d·ecision of the Privy Council so
far as it goes against them.
We are not able to see
to which part of the decision this remark relates.
The only decision that the Privy Council gave was on
the question of the title of the Sens.
The award of
compensation to Rajlakshmi was a mere consequence
of it, and ii the Sens had no title in the four anna
share of Raj Ballav's estate, the mortgagees obviously
can have no lien on any part of the property included
in that share.
'1
1he strangest part of the judgment of
the High Court is when it says that the right of the
Dasses to prove the title of the Sen.~ against the plaintiff
was in no way affected by the Privy Council decision·.
•
8.C.R.
SUPREME COURT REPORTS
171
It seems to have lost sight of the fact that that right
1952
was advanced by the Dasses more than once. It was
Raj Lakshmi
exercised by them in the litigation of the year J 907
Dasi
which ended in the de-cision of the High Court in
and Others
1910. It was exercised by them in the 1919 litigav
tion and was again exercised by them in the laud Banamali Sen
·acquisition proceedings of 1928. In these circuma1id Others.
stances it appears to us that they h_,ad no further right
Mahajan J.
left to establish the title of their mortgagors in the
four anna share of Raj Ballav's estate claimed by
them.
It may be pointed out that the mortgagees having
got a decision in their favour from the High Court,
absented themselves before us. One of the representatives of the original mortgagees, Ram Krishen Das,
is a minor and was represented by a guardian ad litem
appointed for the suit in the court below.
He appeared ~nd contested the appeal and urged that the
mortgagees had no interest whatever in the property
acquired and that they were interested only in realising their debt. 'rhis contention is directly opposed
to the provisions of section 58 of the Transfer of
Property Act and the clear provisions of section 73
which only states the law that prevailed even before
then. The result is that we are of the opinion that
the High Court was in error in holding that the decision of the Privy Council in the land acquisition case
of 1928 was not binding on the mortgagees on the
question of the title of the Sens to the four anua
share of Raj Ballav's estate as against Rajlakshmi .
. Mr. Pauchanan Ghose for the Sens made a valiant
effort to escape from the effect of the Privy Council
judgment in Rajlakshmi v. Bholanath SenC) on a number of grounds.
None of his arguments, however,
was convincing and might well have been summarily
rejected but we think that it is due to Mr. Ghose and
his long standing at the Bar that the arguments are
noticed and met.
ThB first contention raised by him was that the
judgment of the Privy Council could not operate ais
(t) (1938] 65 I.A\ 365,
1962
.Baj Lakshmi
Dasi
and Others
v.
172
SUPREME COURT REPORTS
[1953)
res judicata against the present contention of the
Sens and the mortgagees, about the title to the four
ann:i. share of Raj Ballav's estate, because the subject!
matter of those proceedings was the compensation
money, a sum of Rs. 900, and not the property that is
Bana.nali Sen the subject-matter of the present suit.