# GANGAPPA GURUPAJJAPPA GUGWAD GULBARGA v. RACHAWWA, WIDOW OF LOCHANAPPA GUGWAD & ORS - **Citation:** [1971] 2 S.C.R. 691 - **Court:** Supreme Court of India - **Decided:** 1970-10-23 - **Bench:** G. K. Mitter, A. N. Ray - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gangappa-gurupajjappa-gugwad-gulbarga-v-rachawwa-widow-of-lochanappa-gugwad-ors-5226 - **Pages:** 9 ## Headnote Res Judicata-/ssue l'e/ating to plaintiff's l'ight to "" fou11d agaim·t plaintiff-Other issues l'egarding merits· of .case also decided against him -Decision irrespect of such other issues whether operates as res judicata ·--Whether only obiter. R wanted 10 adopt L as his son but did not actually do so. In accordance with R's will executed in 1919 L inherited R's property a'fter his death. 111 1935 the appellant herein instituted a suit against L and the trustees appointed under R's will. It was the appellant's claim that the will was supplemented by a codicil (this referred to a lette~ written by R to L some time after the execution of the will). Under these documents, according to him, L inherited only a life-estate. He alleged that L was D mismanaging the property and prayed for an injunction directing the trustees to take over management of the properties. The Subordinate Judge framed four issues to the effect ( 1) whether the appellant was entitled to sue, (2) whether L inherited only a life-interest, (3) whether L bad mismanaged the property and ( 4) whether an injunction as prayed should be issued to the trustees. The Subordinate Judge held that L had inherited. not a life-estate but full ownership, and that the appellant had only a contingent right in the property depending on L dying without male issue, E so that it was not possible to grant to the appellant the declaraion be prayed for. L adopted a son C in 1951, and died in 1957. After bis. deilth the appellant filed another suit against L's widow, C. the· adopted son and the surviving trustee. This suit was also based on the claim that L bad inherited only a life-estate under R's will and codicil, The contestinf defendants raised the plea of res /udicaif; based on the decision in the suit of 1935. 1be plea of res judicata was rejected by the trial court but r accepted by the High Court. In appeal before this Court it was ur4ed on liehalf elf the appellant that the trial court in the suit ·Of 1935 havmg held the suit to be premature and thus decided the preliminary issue against the appellant, its decision on the other issues was only obiter and could not operate as res judicata. G B HELD : The appeal must fail. There was no questior. of the trial of any preliminary issue in the suit of, 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to a finding thereon. The nature of the right acquired by L under the will of the testator was directly in question and the subordinate judge went elaborately into it to take the view that L had become absomtely entitled to the properties le'ft by the testator. The obseNation referred to in the concluding portion of the Judgment. of the Subordinate Judge is not to be taken as the decision on a preliminary issue so as to render the finding on the other issues mere obiter lmd surplusage. [698 G-699 A] If the final decision in any matter at issue between the parties ts based by a court on its decisions on more than one point-.o vested interest, and therefore it is a question whether he is entitled to a simple declaration." The suit out of which this appeal arises was filed by Gangappa Gugwad after the death of Lochanappa in 1957 against the 8 c D F G H A B c D E F G H GANGAPPA v. RACHAWWA (Mitter, J.) 695 widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his son in the year 1951 and Gurlingappa Gungappa Gugwad, the surviving trustee under the will of Rudrappa pleading inter alia that "Rudrappa did not confer an absolute estate on Lochanappa in respect of his property, that the bequest made in his favour conferred upon him only a restricted life estate and that even assuming Lochanappa was an absolute owner he was entitled to it only duri111g his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and codicil." The plaintiff appellant went on to add that it was incumbent on Locha111appa to adopt him alone and none else and any adoption in contravention of the direction in the will of Rudrappa Murigappa Gugwad was invalid and even assuming that the said direction was not mandatory, defendant No. 2 could not acquire the status of a son begoiten by Lochanappa so as to claim any interest in the property of the d.eceased testator. The suit was contested by tl;le widow and the adopted son, defendant No. 2 who pleaded the bar of res 1udicata on the strength of the judgment in the suit of 1935. The Subordinate Judge held against the defendent on that issue. He also found that the appellant was tb.e rightful heir to the properties of the deceased testator under the will and codicil of Rudrappa after the death of Lochanappa. The High Court examined the will and the letter described as codicil over again and came to the conclusion that the letter described as codicil was only an informal communication from one relation to another, that the testator had only a vague recollection of the contents of the will at the time of writing the letter fro!ll Benaras and that the order in the probate pro- ¢eedings did not refer to the letter. On the basis of the will the High Court held that Lochanappa was an absolute owner of the property. The High Court further held that the decree in the suit of 1935 operated as res judicata in the sul>~equent suit. Referring to the first two issues framed in suit of 1935 the High Court held that there was a clear finding in the judgment !n that suit that the appellant had obtained no interest uncrer the will of Rudrappa and therefore he was not entitled to sue. · Before us learned counsel for the appellant cGntended that in spite of the observations made by the learned Subordinate Judge in the judgment ln the suit of 1935 about Lochanapp'a ri~~ under the will. and the document styled as codicil, the dec1s1on on the first issue went to show that the appellant's suit wa~ premature and a~ such it was not necessary for the Subord!nate Judge to go mto the other question and his findings on issues other than the first should be treated as obiter. 696 SUPREME COURT REPORTS [1971] 2 S.C.R. In support of the above conte?tion coun.se~ for the appellant relied on the decision of the Pnvy Council m Shankarlal v. Hira/a/(1). The head note in that case to which our attention was drawn reading. "Court holding that suit is not maintainable by reason of failure to comply with s. 80-Findings given on merits are obiter a>nd do sot support plea of res judicata either in favour of or against party" seems to be misleading inasmuch a~ the judgment of the Board does not bear out the above proposition of Jaw. At best the head note only records a finding by an appellate Bench of the Calcutta High Court which the Board by its own judgment did not expressly reject or uphold. The appeal to the Privy Council arose out of. a suit filed by one Mangtulal Bagaria for royalties due under a lease of collieries by one Popat v.~Jji Rajdeo of which the said Mangtulal was appointed manager by the court. The defendants were the lessees under the lease or their representatives and were respondents in the appeal to the Board There the defence of the lessees was that the lease had been surrendered in July 1933. The plain· tiffs challenged the surrender and also pleaded that the point was covered by res judicata. Ameer Ali, J., before whom the suit came on for hearing on the original side of the Calcutta High Court framed several issues in two groups. The first issue . in Group A related to a plea of res judicata. The second issue in that .2roup raised a question whether there was any defence apart from surrender. Group B raised questions as· to the fact ~nd validity of the alleged surrender. The plea of res judicata was b,sed on a judgment of the Subordinate Judge of Dhanbad wherein the lessees had sued Mangtulal and some others for a declaration that the lease had been validly surrendered in 1933. The Subordinate Judge held that the suit did not lie inasmuch as notice had not bee-n served on Mangtulal under s. 80 Civil Procedure Cod~. He however supported to decide other issues in the suit including one as to the sufficiency of the surrender. An apne.al from the decree of the Subordinate Judge was taken to the High Court at Patna but was ·withdrawn against Mangtulal and the brother of the lessor and a consent decree was obtained ag~inst the two widows upholding the surreinder. Ameer Ali. J. went into the question of res judicata as a preliminary issue and expressed the view : )I) Al .R. 1950 P. C. 30. A B c D E F G H . ' I B c D E F G H GANGAPPA v. RACHAWWA (Mitter, !.) 69'1 "that the decision of the Dhanbad Court had decided the same issue which had to be decided in his · own court and between the same persons and parties." In appeal from his judgment the learned Judges held that Inasmuch as the Subordinate Judge in the Dhanbad suit had held that the suit did not lie by reason of the failure to comply with s. 30, Civil P .C., he was bQund to dismiss the suit under Or. 7 R. l 1 of the Code and the findings of the Court on the merits were obiter and could not support a plea of res j11dicata." They held further that Ameer Ali, J. had decided nothing but the issue of res 111dicata. Accordingly they allowed the appeal and remanded the case to the court of first instance for trial of issues other than issue l. The judgment of the Judicial Committee shows that before the Board it was conceded on behalf of the appellant that the appellate court was right in the view which it took as to the effect of the Dhanbad decree. Th~ Board proceeded to observe : "Their Lordships have no doubt that the decision in the Dhanbad suit could not support a plea of 1·es judicata on the merits, either in favour of or against Mangtulal." The Board rejected the contention of the appellant that Ameer Ali, J. had decided not only the issue of res judicata but also that the alleged surrender of the lease was invalid. According to the Board the judgment of Ameer Ali, J. was to some extent obsecure and thtre ·>ere passages in it which suggested that he thought the surt'ellide1 invalid but "it was clear that .he did not purport to decide anything beyond the issue of res judicata" and he .expressly stated that h.~ was not deciding the issues iu the second group. Accordingly the Board saw no· rea!'"•n to differ from the view of the appellate Judges that the issues as to ~ur render were not decided by the trial Judoe and did not feel inclined to interfere with the direct( on giv~n ·by the appellate court ri;garding the remand of the trial of the issues in the court of first mstance. On the strength of the dictum of the appellate Bench of the Calcut.t~ Hi~h Court forming a part of the headnote to the ab~ve dec1s10n ti wa~. contended before us that once the Subord~nate Judge of B11.apur recorded a finding on the first i~sue a~amst the appellant m ~he suit of 1935 his construction of the w!II ~nd the effect thereot were obiter and they .. would not be bmdmg o~ t~e appellant in the second suit. This was sought to be fort1fiea by the observations in the concluding portion of 698 SUPREME COURT REPORTS [1971 J 2 S.C.R. the judgment in the suit of 1935 which we have quoted above that the plaintiff had at the most a contingent right .and no ves!- ed interest. It was argued that the learned Subon;lmate Judge s view that the suit was premature was sufficient to dispose of the case before him without his going into th.e other questions and the issues raised. No doubt it would be open to· a :.court not to decide all the issues which may arise on the pleadin~s before it if it finds that the plaint on the face of it is barred by af).y law. If for instance the plaintiff's cause of action is against a G