JUDGMENT
1. One Subba Diksitar, father of the plaintiffs and another Yagna Ramien, the husband of one Krishnammal and of the 1st defendant, were divided brothers. Yagna Ramien, in conjunction with his wife Krishnammal and the exclusion of the 1st defendant, his junior wife, adopted, on the 27th October 1879, his brother’s son, one Venkatramanien, a brother of the plaintiffs, and on the same day made a settlement of some of his properties upon the 1st defendant for life with remainder to one Kuppammal, his daughter by the 1st defendant. Yagna Ramien died in 1885 and shortly afterwards Krishnammal died and after her the adopted son Venkatramanien died unmarried in 1886. Plaintiff’s father brought O.S. No. 512 of 1890 against the 1st defendant herein, her daughter Kuppammal, and the present 2nd defendant, to obtain a declaration that he was entitled to succeed to the properties left by Yagna Ramien–including the properties comprised in the deed of settlement made by him in favour of the 1st defendant and her daughter–as the reversionary heir of the deceased Venkataramanien, his brother’s adopted son, after the lifetime of the 1st defendant and that the hypothecation deed, dated 15th October 1890, executed by the 1st defendant in favour of the 3rd defendant in that suit, charging a portion 6f the property comprised in the deed of settlement cannot affect his reversionary right and bind him after the 1st defendant’s lifetime.
2. It will be seen that the cause of action on which the said suit was based was that the 1st defendant succeeded to the estate of Venkataramanien, as his mother by adoption, having the limited estate of a widow under the Hindu law, that the plaintiff in the said suit was the contingent reversionary heir entitled to succeed to his properties on the death of his limited heir, the 1st defendant, and that the settlement made by Yagna Ramien in favour of the 1st defendant and her daughter was not binding on his adopted son, the deceased Venkataramanien. The defendants in that suit did not deny the right of Subba Dikshitar, the plaintiff therein, as the reversionary heir of the adopted so entitled to succeed to his properties, after the death ofthe 1st defendant but contended that the deed of settlement subject to which the adoption was made was binding upon the adopted son and that therefore his suit was not maintainable in respect of the properties comprised in that settlement, viz: items 1, 2, 3, 7 and 8 and a moiety of items 9 and 10 in the schedule annexed to the plaint therein. The deed of hypothecation under which the 3rd defendant in that suit claimed related apparently to the whole of items 9 and 10 and not simply to the moiety thereof, which was comprised in the deed of settlement.
3. Among other issues–which it is here unnecessary to refer to–the following were framed and numbered as 3 and 5 therein–” Whether Yagna Ramien gave away items I to 3, 7 and 8 and ½ of 9 and 10 to the 1st defendant in 1879? Is it valid in law?” “Whether the mortgage in question was granted by the 1st defendant to the 3rd defendant for legal necessity binding on the plaintiff.” The finding on the 3rd issue was against the plaintiff, viz: that the adopted son was bound by the disposition of property made by the adoptive father prior to, or at the time of, the adoption in favour of the 1st defendant and her daughter. On the 5th issue, the finding was that the hypothecation deed was executed without any legal necessity but that such finding became immaterial by reason of the finding on the 3rd issue so far as a moiety of items 9 and 10 was concerned. The material portion of the decree passed in that suit was as follows: “It is decreed that the plaintiff’s suit, so far as regards plaint items 1, 2, 3, 7 and 8 of the property and half the share in items 9 and 10, be dismissed ; that it is declared that the plaintiff be entitled to the other items of properties mentioned in the plaint as the reversioner after the lifetime of the 1st defendant.” There was no appeal against the said decree and the same has become final.
4. Subba Dikshitar, the plaintiff therein died in December 1891 and the plaintiffs claiming under him as his only sons and legal representatives have brought this suit in 1897 against the 1st defendant and defendants 2 3, and 4 forming members of an undivided family claiming under the 1st defendant under Exhibit IV, a sale deed, dated 6th March 1891. The plaintiffs pray that a decree may be passed declaring “that the plaintiffs alone are entitled to inherit the immoveable properties described in the schedule and directing that the same be put in possession of these plaintiffs.”
5. A reference to para. 9 of the plaint clearly shows that the present suit does not relate to the properties comprised in the deed of settlement in respect of which the claim of plaintiff’s father was absolutely dismissed as unsustainable in O.S. No. 512 of 1890, but only to the remaining properties in respect of which the plaintiffs’ father was expressely declared by the decree therein to be entitled to them as the reversioner after the lifetime of the 1st defendant. The plaintiffs’ cause of action as set forth in the plaint is that on the death of Venkataramanien in 1886, the properties claimed in the suit legally devolved by inheritance on his divided uncle, the plaintiffs’ father–the 1st defendant being only in the position of adoptive step-mother and not adoptive mother of the deceased–and that on the death of their father, the same devolved on them by descent, as his heirs. The decree in O.S. No. 512 of 1890, which declared that plaintiffs’ father was entitled to these properties as reversioner only on the death of the 1st defendant, is not impugned as obtained by fraud or collusion or delivered by a Court not competent to deliver it (Section 44 of the Indian Evidence Act). The plaintiffs seek to avoid the effect of that decree on the ground that though their father and the 1st defendant were both equally aware of all the facts which would enable one to know who the heir of Venkatarmanien was, yet they were under a mutual mistake of law and assumed that the 1st defendant was entitled to succeed as adoptive mother and that the plaintiffs’ father was only presumptive reversionary heir on her death and that therefore O.S. 512 of 1890, which was brought by the plaintiffs’ father in ignorance of his legal right as the immediate heir of Venkataramanien–a mistake of law which was shared in also by the Court–and the decree passed therein can be no bar to the present suit. It is also contended that in a declaratory suit which was brought by a presumptive reversioner during the lifetime of a Hindu widow no decree could be passed declaring his right to succeed to certain properties after the lifetime of the widow, but that the only decree which could be passed in his favour in such a suit is a declaration that an alienation made by the widow was made without legal necessity and therefore void beyond her lifetime [Illustration (e) to Section 42 of the Specific Relief Act],
6. It is contended on behalf of the defendants (appellants) that the present suit is barred, 1stly by Section 43 and 2ndly by Section 13, Civil Procedure Code. The former contention is clearly untenable and must be overruled, Section 43 only requires that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action on which the suit is founded and not that every suit should include every claim or every cause of action which the plaintiff may have against the defendant in respect of the object matter of the suit (Pittapur Raja v. Suriya Row I.L.R. 8 M. 520 at 524 Ittappan v. Manavikrama I.L.R. 21 M. 153 at 157. 161). If the present suit had been for a declaration of the reversionary right of the plaintiff’s father to succeed on the death of the 1st defendant to certain items of properties other than those comprised in the former suit, such a claim would be a part of the claim arising from the cause of action on which the former suit was founded and the suit would be barred by Section 43. Civil Procedure Code. But the claim made in the present suit is one arising from a cause of action quite different from, and inconsistent with, the cause of action on which the former suit was brought and it could not possibly have been included in that suit as a part of the claim arising from the cause of action on which that suit was in fact brought.
7. But the other contention viz.–that the suit is barred as res judicata, is fatal to the plaintiffs’ suit. It has been admitted all along–and the respondents’ Vakil properly admits–that if the present suit could not have been maintained by the plaintiffs’ father if he were now alive, the plaintiffs could not stand on. a different footing, The respondent’s Vakil however argues that the plaintiffs’ father could have himself maintained this suit, notwithstanding the decree in O.S. No. 512 of 1890. It is impossible to accede to this contention in the face of the express adjudication in the former decree that the plaintiffs’ father was entitled to succeed to the properties now sued for only on the death of the 1st defendant. This necessarily implies that the 1st defendant and those claiming under her .were entitled to the possession and enjoyment of the property during her lifetime. When such declaration is embodied in the decree itself, it is immaterial that no question or issue was actually raised and decided as to whether or not the plaintiffs’ father was entitled to succeed to the properties on the death of Venkataramanien as his immediate heir–which is the claim on which the present suit is founded. This claim cannot be allowed and declared in the present suit and plaintiffs put into possession by ejecting the defendants, without virtually setting at naught the decree in O.S. 512 of 1890. The declaration which is sought for in this suit viz: that the plaintiffs’ father was entitled to the possession of the properties on the death of Venkatramanien is diametrically opposed to the declaration made in the former decree viz: that he was entitled to possession only after the death of the 1st defendant; and the present suit is therefore clearly barred as resjudicata, quite independently of explanation I or explanation II to Section 13, Civil Procedure Code.
8. The operation of a decree as resjudicata, so far at any rate as the object-matter of a direct adjudication contained in the decree is concerned, can in no way be affected, in the absence of fraud or collusion, by the fact that the suit was the result of a mistake of law or that the decree proceeded on such mistake. The remedy, if any, in such a case, can only be by way of review and certainly not by a separate suit for relief on the ground of mistake. Article 96 of Act XV of 1877 cannot be relied upon as sanctioning such a suit and it is therefore unnecessary to consider the plea of limitation which was raised by the defendants with reference to that article. It may here be mentioned that the mistake of law committed in O.S. 512 of 1890 by all the parties therein concerned–including the judge–which is supposed to have been discovered only in 1897, subsequent to the decision of this Court and of the Privy Council in the Oothoomalai case I.L.R. 23 M. 1 might well have been discovered in 1890 at the time of the institution of the former suit itself on reference to the decision of the Privy Council in the Ramnad adoption case 12 M.I.A. 424, 446, 447 in which the point of Hindu Law in question was laid down just as it has since been decided in the Oothoomalai case I.L.R. 23 M. 1–to say nothing of Kasheshuree v. Girish Chunder (1864) W.R. 71.
9. As for the contention principally relied upon by the learned pleader for the respondents, that the decree in the former suit, in so far as it declared that the plaintiff’s father was entitled to the items of properties now sued for–being a portion of the properties comprised in the former suit–as reversioner, after the lifetime of the 1st defendant, should be treated as null and void, by reason that no such declaration could legally have been made inasmuch as the plaintiffs’ father was only a presumptive reversionary heir during the lifetime of the 1st defendant, it is admitted and cannot be denied that the Court which passed that decree was a Court of competent jurisdiction to pass such declaratory decree if the plaintiff was entitled to such declaration. The plaintiffs’ father prayed for such declaratory decree and apparently no objection was raised to it by the 1st defendant and the Court did make such declaration by its decree, though the suit was dismissed as regards the items of property comprised in the deed of settlement. The correct view, no doubt, is that the declaratory decree ought not to have been passed and that the decree in O.S. 612 of 1890 should have been simply limited to the dismissal of the suit. But it is now too late to seek to set aside the remaining portion of the decree as if the present suit was an appeal from that decree. Whatever may be the correct view, such decrees have sometimes been passed and as between the parties thereto, they must be held to be binding and to operate as res judicata, just like any other declaratory decree passed under Section 42 of the Specific Relief Act (vide Section 43 of the Specific Relief Act),notwithstanding that it is now conclusively shown that such declaratory decree ought not to have been passed with reference to the proviso to Section 42, by reason that the then plaintiff was, at the date of the suit, able to seek further relief than a mere declaration of title, but omitted to do so. The binding effect of judicial decrees and adjudications cannot be allowed to be questioned between the parties thereto and their representatives merely because they have proceeded upon an erroneous view of law or on a view of law which though rightly or wrongly then believed to be sound has now been exploded.
10. No doubt if this contention of the respondents were acceded to, the decree in O.S. 512 of 1890, in so far as it dismissed the claim of the plaintiffs’ father to certain items of property therein comprised–which do not form a portion of the subject-matter herein–would not operate as res judicata to the present suit, for the ground of dismissal was that the settlement made by Yagna Ramien, comprising the said items, was binding upon the adopted son and in that view it was immaterial whether plaintiff’s father was or was not either the immediate or the reversionary heir of the adopted son and neither Explanation I nor Explanation II to Section 13, Civil Procedure Code, will apply to a matter which was not necessary for the decree passed in the suit, any more than a finding on an express issue in the suit would operate as res judicata when such finding became immaterial for the final decree passed therein.
11. On the ground therefore that the declaratory portion of the decree in O.S. 512 of 1890 is a bar to the present suit, this Letters Patent Appeal must be allowed and the order of this Court in A.A.O. No. 72 of 1900 as well as the order of the Lower Appellate Court are reversed and the decree of the District Munsif restored with costs throughout.
