# " Chand other unsecured creditors of her husband. In our v. K".d"' u""'"' opinion, the above mentioned two Allahabad decisions

- **Citation:** [1950] 1 S.C.R. 754
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Bench:** Mehr Chand Mahajan, R. S. Naik, Khaliluzzaman Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chand-other-unsecured-creditors-of-her-husband-in-our-v-k-d-u-opinion-the-above-148
- **Pages:** 5

## Headnote

Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal
disposed of by same judgment-Separate decrees drawn "p-Appeal
from, orie decree only-Maintainability-Res judicata-Limitation
Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of
decisions .
..4. instituted a. suit for possession of two-thirrls share in an
estate against B and 0 who cloimed a one-third share each in it.
The suit was decreed by the trial court. B ant! 0 preferred
(I) I.L.R. 25 Mad. 658.
•'
• "
S.C.R.
SUPREME COURT REPORTS
755
separate appeals.
These appeals were heard togethe.r and
1900
disposed of by the same judgment but sepa.rate decrees were
prepared;
A preferred an appeal from one of these decrees in
Narhari a.nd
time paying the full court fee anl later on, after the period of
Othm
limitation had expired, preferred an appeal from the other decree
v.
also. paying a court fee of Re. 1 only.
The High Conrt held that
Shankar and
A shoula have filed Repante appeals within the period of limitaOthers.
1.i on and that, inasn_1uch as one of the appeals was time-barred,
che first appeal was barred by res judicata.
Held, that, as there was only one suit and the appeals hon
been disposed of by the same judgment, it was not necessary to
file two separate appeals and the fact that one of the appeals waH
time-barred did not affect the maintainability of the other appeal
and the question of res judica.ta did not a.t all arise in the case.
Held further, that in the circumstances the High Court,, .. ,
wrong in not giving to the appellant the benefit of s. 5 of the
Limitation Act as there was a conflict of rulings on the subject.
Mst. Lachmi v. Mst. Bhuli (A.I.R. 1927 Lob. 289) appliedAppa v. Kach"i B<ryyan Kutty (A.J.R. 1932 lliad. 689) referred to.
APPEAL from a judgment of the High Court of
Hyderabad
under article 374 (4) of Constitution:
Appeals Nos. 22 and 23 of 1950.
Ghulam Ahmad Khan, for the appellants.
The respondents were not represented.
1950. October 13.
The judgment of the Court was
delivered by
NAIK J.-The suit out of which these appeals arise
Na.;k J.
was one for possession of two-thirds of the land covered
by survey No. 214 and formesne profits. The plaintiffs
claim possession on the ground that survey No. 214
was an inam land and according to the family custom,
belonged to them exclusively as members of the senior
line as against the defendants who were of the junior
lines. There are two sets of defendants: Nos. I to 4 belong
to one branch of the family and Nos. 5 to 8 to another.
Each set claim that they are in possession of orie-third
of the land and maintain that they are entitled to it
as their share of the family property. They deny the
custom of exclusive possession by the senior branch,
alleged by the plaintiffs. The trial court decreed the
suit. From this decree, two separate appeals were·
taken by the two sets of the defendants to the Sadar -
&.\\a\at, G\l\barga, each daimin~ one-third portion of
1960
Narhari tuid
Others
S h€lnkar a11d
OthtffS
Naik J.
756
SUPREME COURT REPORTS
[1950]
the land and each paid the court fee to the extent of
their share. The first appellate court, i.e., the Sadar
Adalat, allowed both the appeals and dismissed the
plaintiffs' suit by one judgment dated 30th Bahman
1338 F. and ordered a copy of the judgment to be placed
on the file of the other connected appeal. On the basis
of this judgment, two decrees were prepared by the
first appellate court. The plaintiffs preferred two
appeals to the High Court. The first was filed on 23rd
Aban 1345 F. and with it was attached the decree
passed in the appeal of defendants Nos. 1 to 4. Later,
on 17th Azur 1346 F. another appeal was filed and
with it the decree passed in the appeal of defendants
Nos. 5 to 8 was attached.
This latter appeal was
twenty-nine days beyond the period of limitation for
appeals. It was filed on one-rupee stamp paper and a
note was made therein that the full court fee had been
paid in the appeal filed earlier, which has been
registered as

## Text

754
SUPREME COURT REPORTS
[ 1950]
\950
of authority is against the proposition that a widow
as an unsecured creditor has any priority over the
K•P
0
" Chand other unsecured creditors of her husband. In our
v.
K".d"' u""'"' opinion, the above mentioned two Allahabad decisions
B•~um .t Oth"'· do not lay down the law correctly on this point and
the rule has been correctly laid down in
Ameer
Kha.l•lus.oman "· Ammal v. Sankaranarayanan Chetty ( 1).
There is
nothing repugnant or inequitable according to the
principles of Muhammadan Law in the estate of a
deceased Muslim being rateably distributed between
the unsecured creditors.
For the reasons given above we hold that the
objection raised by the widow had no substance in it
and the executing court should have directed the property to be sold and the sale proceeds distributed
rateably amongst the decreeholders and the widow.
In the result we allow this appeal, set aside the judgments of the two courts below and direct the executing court to proceed with the execution in accordance
with the observations made herein.
In the circumstances we will make no order as to costs of these
proceedings.
Appeal allowed.
1 9~0
f!N THE SUPREME COURT OF INDIA (HYDERABAD).]
Oct. JR.
NARHARI AND OTHERS
v.
SHANKAR AND OTHERS.
[MEHR CHAND MAHAJAN, R. S. NAIK and
KHALILUZZAMAN JJ.J
Res iudicata-Severai a.ppeals arising out of sam' suit-Appeal
disposed of by same judgment-Separate decrees drawn "p-Appeal
from, orie decree only-Maintainability-Res judicata-Limitation
Act, 1908, s. 5-Extension of time-Sufficient cause-Conflict of
decisions .
..4. instituted a. suit for possession of two-thirrls share in an
estate against B and 0 who cloimed a one-third share each in it.
The suit was decreed by the trial court. B ant! 0 preferred
(I) I.L.R. 25 Mad. 658.
•'
• "
S.C.R.
SUPREME COURT REPORTS
755
separate appeals.
These appeals were heard togethe.r and
1900
disposed of by the same judgment but sepa.rate decrees were
prepared;
A preferred an appeal from one of these decrees in
Narhari a.nd
time paying the full court fee anl later on, after the period of
Othm
limitation had expired, preferred an appeal from the other decree
v.
also. paying a court fee of Re. 1 only.
The High Conrt held that
Shankar and
A shoula have filed Repante appeals within the period of limitaOthers.
1.i on and that, inasn_1uch as one of the appeals was time-barred,
che first appeal was barred by res judicata.
Held, that, as there was only one suit and the appeals hon
been disposed of by the same judgment, it was not necessary to
file two separate appeals and the fact that one of the appeals waH
time-barred did not affect the maintainability of the other appeal
and the question of res judica.ta did not a.t all arise in the case.
Held further, that in the circumstances the High Court,, .. ,
wrong in not giving to the appellant the benefit of s. 5 of the
Limitation Act as there was a conflict of rulings on the subject.
Mst. Lachmi v. Mst. Bhuli (A.I.R. 1927 Lob. 289) appliedAppa v. Kach"i B<ryyan Kutty (A.J.R. 1932 lliad. 689) referred to.
APPEAL from a judgment of the High Court of
Hyderabad
under article 374 (4) of Constitution:
Appeals Nos. 22 and 23 of 1950.
Ghulam Ahmad Khan, for the appellants.
The respondents were not represented.
1950. October 13.
The judgment of the Court was
delivered by
NAIK J.-The suit out of which these appeals arise
Na.;k J.
was one for possession of two-thirds of the land covered
by survey No. 214 and formesne profits. The plaintiffs
claim possession on the ground that survey No. 214
was an inam land and according to the family custom,
belonged to them exclusively as members of the senior
line as against the defendants who were of the junior
lines. There are two sets of defendants: Nos. I to 4 belong
to one branch of the family and Nos. 5 to 8 to another.
Each set claim that they are in possession of orie-third
of the land and maintain that they are entitled to it
as their share of the family property. They deny the
custom of exclusive possession by the senior branch,
alleged by the plaintiffs. The trial court decreed the
suit. From this decree, two separate appeals were·
taken by the two sets of the defendants to the Sadar -
&.\\a\at, G\l\barga, each daimin~ one-third portion of
1960
Narhari tuid
Others
S h€lnkar a11d
OthtffS
Naik J.
756
SUPREME COURT REPORTS
[1950]
the land and each paid the court fee to the extent of
their share. The first appellate court, i.e., the Sadar
Adalat, allowed both the appeals and dismissed the
plaintiffs' suit by one judgment dated 30th Bahman
1338 F. and ordered a copy of the judgment to be placed
on the file of the other connected appeal. On the basis
of this judgment, two decrees were prepared by the
first appellate court. The plaintiffs preferred two
appeals to the High Court. The first was filed on 23rd
Aban 1345 F. and with it was attached the decree
passed in the appeal of defendants Nos. 1 to 4. Later,
on 17th Azur 1346 F. another appeal was filed and
with it the decree passed in the appeal of defendants
Nos. 5 to 8 was attached.
This latter appeal was
twenty-nine days beyond the period of limitation for
appeals. It was filed on one-rupee stamp paper and a
note was made therein that the full court fee had been
paid in the appeal filed earlier, which has been
registered as Appeal No. 331 of 1346 F. At the hearing
of the appeals, a preliminary objection was raised by
the defendants that as the other appeal. i.e., No. 332
of 1346 F. was filed beyond the period of limitation, it
cannot be maintained and that when the other appeal
is thus dismis,sed, the principle of res judicata would
apply to the first appeal, i.e., No. 331 of 1346 and it
should also fail. The High Court held that the plaintiffs should have filed two separate appeals within the
period of limitation and as the other appeal was
admittedly time-barred, the first appeal also failed by
the application of the principle of res judicata. The
High Court dismissed both the appeals. Against this
judgment of the High Court two appeals were preferred
to the Judicial Committee of the State and they are
now before us under article 374(4) of the Constitution.
The High Court in its judgment relied on the
decision given in jethmal v. Ranglal(1). That was a
case of a money suit where the plaintiff's claim was
partially decreed and from this judgment both the
parties had appealed, the plaintiff to the extent of the
suit dismissed and the defendant to the extent of the
ll} ~~. D. L. R. 322.
•
,,
1
S.C.R.
SUPREME COURT REPORTS
757
suit decreed.
The first appellate court dismissed the
plaintiff's suit in toto, thus allowing the defendant's
appeal and dismissing the plaintiff's appeal, and two
separate decrees were made. The plaintiff appealed
from one decree only, which was passed against him
and it was held that the principle of res judicata
applied.
Notwithstanding, this ruling of the Judicial Committee of the State, the High Court, in several cases,
i.e., Nandlal v. Mohiuddin Ali Khan('), Nizamuddin
v. Chatur Bhuj('), Gayajee Pant v. Habibuddin('), and
Jagannath v. Sonajee(') has held that when the suit is
one and two appeals arise out of the same suit, it is not
necessary to file two separate appeals.
In the judgment of the High Court, though reference
is given to some of these decisions, it is merely mentioned that the appellant relies on these decisions.
The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision
in ]ethmal v. Ranglal(') they need not comment on
these decisions at all.
There is also a later decision of
the Judicial Committee of the State in Bansilal v.
Mohanlal('), where the well known and exhaustive
authority of the Lahore High Court in Mst. Lachmi v.
M st. Bhuli (') was followed. In the Lahore case, there
were two cross suits about the same subject-matter,
filed simultaneously between the same parties, whereas
in the present case, there was only one suit and one
judgment was given by the trial court and even in the
first appeal to the Sadar Adalat, there was only one
judgment, in spite of there being two appeals by the
two sets of defendants.
The plaintiffs in their appeal to the High Court have
impleaded all the defendants as respondents and their
prayer covers both the appeals and they have paid
consolidated court-fee for the whole suit. It is now
well settled that where there has been one trial, one
finding, and one decision, there need not be two appeals
even though two decrees may have been drawn up.
(1) 22 D.L.R, 400.
(31 28 D.L.R. 1094.
15) 17 D.L.R. S22.
(2) 23 D.L.R. 457.
14) 29 D.L R 108.
(61 33 D.L.R. 601.
(7) A.I.R, 1927 L•h. '89,
97
1950
Narhari and
Others
v.
Shankar and
Oth~rs.
NaikJ.
1900
Narhari and
Of hers
v.
Shankar and
Oth!ra.
Nafk J.
758
SUPREME COURT REPORTS
[1950]
As has been observed by Tek Chand J. in his learned
judgment in Mst. Lachmi v. Mst. Bhuli(') mentioned
above, the determining factor is not the decree but the
matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it
can only be created by the judgment. The question of
res judicata arises only when there are two suits. Even
when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the
former suit. When there is only one suit, the question
of res judicata does not arise at all and in the present
case, both the decrees are in the same case and based
on the same judgment, and the matter decided concerns
the entire suit.
As such, there is no question of the
application of the principle of res judicata.
The same
judgment cannot remain effective just because it was
appealed against with a different number or a copy of
it was attached to a different appeal. The two decrees
in substance are one. Besides, the High Court was
wrong in not giving to the appellants the benefit of
section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the
High Court of the State but also among the different
High Courts in India.
The learned counsel for the appellants cited in support of his arguments the decision given in Appa v.
Kachai Bayyan Kutti(2), which is on all fours with the
present case.
We are, therefore, of the opinion that these appeals
should be allowed and the case remanded to the High
Court for decision on the merits of the case.
Costs of
these appeals will abide the result of the case.
Appeals allowed.
(ll A.I.I\. 19'7 Loh. 289.
(21 A.l.R. l 932 (\fad. 689.