K. ARUMUGA VELAIAH vs P.R. RAMASAMY

K. ARUMUGA VELAIAH vs P.R. RAMASAMY - Supreme Court Case 2022 - 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2564 OF 2012
K. ARUMUGA VELAIAH                           APPELLANT(S)
VERSUS
P.R. RAMASAMY AND ANR.                           RESPONDENT(S)
J U D G M E N T
NAGARATHNA J. 
The plaintiff in Original Suit No. 101 of 2004 has assailed the
judgment and decree passed in Second Appeal No. 92 of 2007 by
the Madurai Bench of the High Court of Judicature of Madras
dated   6th   August,   2007   by   which,   the   judgment   and   decree
passed in Appeal Suit No. 38 of 2005 by the First Appellate Court
i.e. Court of the Subordinate Judge, Devakottai, affirming the
dismissal   of   the   aforesaid   suit   by   the   District   Munsiff   Court,
Devakottai has been sustained.
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2. For   the   sake   of   convenience   the   parties   herein   shall   be
referred to in terms of their rank and status before the Trial
Court.
3. The case of the Plaintiff in a nutshell is stated as under : 
(i)  Periyaiya   Servai   and   Muthu   Servai,   were   the   sons   of
Marimuthu Servai. Periyaiya Servai had three sons, being the
first and second defendants and Marimuthu, who is no longer
alive and whose wife Poomayil has also died. The plaintiff,
first and second defendants and late Marimuthu have onefourth   share   each   in   the   joint   family   properties.   That
Periyaiya Servai through his first wife, Veeramakali Ammal
(since deceased) had four daughters and a son, being the first
defendant, namely, P.R. Ramasamy. Through his second wife,
Kaliammal,   Periyaiya   Servai   had   two   sons,   being   second
defendant, namely, P.R. Kasilingam and Marimuthu. Second
defendant’s son, K. Arumuga Velaiya is the plaintiff.
(ii)  According to the plaintiff, Periyaiya Servai had executed a
registered will dated 26th January, 1994, in favour of the
plaintiff in relation to his share of the properties of the joint
family. Thus, the joint family properties had to be divided into
four shares of which the plaintiff was entitled to one share,
bequeathed in his favour by his grandfather, Periyaiya Servai
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under   the   will.   Further,   Poomayil,   on   the   death   of   her
husband   Marimuthu   had   bequeathed   his   share   in   the
property to the first defendant. Hence the first defendant has
become entitled to half share in the joint family property and
the remaining half has to be equally divided between the
second defendant and the plaintiff. That the first defendant
sent a legal notice objecting to plaintiff’s share in the suit
schedule   properties,   which   are   joint   family   properties.
Therefore, the plaintiff has been constrained to file a suit for
partition and separate possession.
(iii)  Plaintiff has averred that he has a right to one­fourth share of
Periyaiya Servai under the will dated 26th January, 1994,
which   came   into   operation   on   25th   March,   2003,   on   the
demise of Periyaiya Servai. With the aforesaid averments the
plaintiff has sought partition and separate possession of his
one­fourth share in the suit schedule properties.
4. In response to the plaint, first defendant filed his written
statement which is encapsulated as under:­ 
(i)  First   defendant   has   admitted   that   the   suit   schedule
properties were joint family properties but they had since
been divided. The fact that Periyaiya Servai had executed a
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will dated 26th January, 1994 (the written statement filed by
the first defendant before the Trial Court mentions the date of
the will as 24th January, 1994) in a good state of mind and
health has been denied. It is averred that late Periyaiya Servai
had a share in the suit properties but the fact that they were
bequeathed to the plaintiff by a will, is false. It is averred that
Periyaiya Servai and his brother Muthu Servai were living as
a   joint   family   and   Periyaiya   Servai   was   the   Karta   of   the
family.   That   from   the   income   of   the   undivided   ancestral
properties, several properties were purchased in the name of
Periyaiya Servai as he was the Karta of the family. There was
a partition between the brothers under a registered partition
deed. The coparcerners then became divided. That in 1964
Periyaiya Servai in turn partitioned his share of the joint
family properties in three parts, i.e. between the first and
second defendants and late Marimuthu and they have been
enjoying the properties since then. In that partition, no share
was   allotted   to   Periyaiya   Servai.   An   agreement   for
maintenance   of   Periyaiya   Servai   during   his   life   was   also
made.   Marimuthu   died   suddenly   and   his   share   in   the
properties was being enjoyed by his wife Poomayil. 
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(ii)  Periyaiya Servai was 93 years old in 1991 and was not in a
position to take decisions on his own due to his old age. He
was acting according to the will of the second defendant and
Kaliammal   who   was   Periyaiya   Servai’s   second   wife.   The
second defendant, taking advantage of the age and ill health
of his father tried to acquire properties of late Poomayil. O.S.
No. 347 of 1991 was filed in the name of Periyaiya Servai, on
the file of the District Munsiff Court, Devakottai, on false and
frivolous grounds. In that suit he had shown joint family
properties as independent properties of late Periyaiya Servai
and stated that the said properties were purchased out of the
personal   income   of   Periyaiya   Servai.   In   that   suit,   the
possession and enjoyment of the joint Hindu family ancestral
properties by late Periyaiya Servai and his brother, as also
the partition between them was suppressed. It was further
suppressed in the said suit that in the year 1964 a partition
took   place   before   the   panchayatdars   and   the   partitioned
properties were enjoyed by late Periyaiya Servai, the first and
second defendants and Marimuthu. In the aforementioned
suit, the widow of Marimuthu, Poomayil also contested but
the District Munsiff Court, without taking into consideration
the said partition held that the properties were undivided
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ancestral joint family properties. Aggrieved by the same the
second defendant preferred an appeal in A.S. No. 37 of 1993.
Late Poomayil had also filed a cross appeal in A.S. No. 37 of
1993. The said suit was remanded to the lower court in the
year 1995.
(iii)  Against the order of remand a second appeal was filed before
the High Court of Madras which remanded the matter to the
Sub­court, Devakottai, by restoring A.S. No. 37 of 1993. The
said appeal was disposed on 23rd March, 1999 by giving a
finding   that   the   suit   properties   were   ancestral   properties
which   were   partitioned   between   the   first   and   second
defendants   herein   and   late   Marimuthu   and   they   were
enjoying   the   same   separately.   That   after   the   death   of
Marimuthu, Poomayil was in possession of the properties.
The said judgment has attained finality.
(iv) It was also contended that since the suit properties had been
partitioned equally between the first and second defendants
and   late   Marimuthu   in   1964,   they   also   had   the   right   of
prescription   against   each   other   and   were   in   adverse
possession.   That   Poomayil   had   died   bequeathing   her
husband’s properties to the first defendant under a will and
he was enjoying the properties after her death. 
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(v)  That on 26th December,  1988  Periyaiya Servai  wrote  two
Inam settlement deeds in respect of properties in Sr. No.
181/1 and 181/3 in Sathyamangalam Village. That O.S. No.
376   of   1991   was   filed   by  the   plaintiff   herein   against   the
settlement deed, on the file of the District Munsiff Court,
Devakottai. The said suit was dismissed and the judgment
and decree in the said suit was confirmed in A.S. No. 38 of
1994. 
(vi)  That since the plaintiff herein had not benefited under the
said suit, he prepared the disputed will with the help of the
second defendant as if it was the will of Periyaiya Servai. That
during the period when the will is said to have been executed,
Periyaiya Servai was bed ridden and was not sane and was a
prisoner. That Periyaiya Servai was disqualified by virtue of
the doctrine of ouster, from making the will in respect of
ancestral properties, particularly after the judgment in O.S.
No. 347/1991. That the suit had been filed vexatiously when
the first defendant raised objection for the transfer of the
Patta on the basis of a concocted will. 
(vii) As late Periyaiya Servai was not sane and healthy and he was
treated as a prisoner by the family of the plaintiff and the
second defendant a habeas corpus petition in HCP No. 457 of
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2003 was filed by the first defendant before the Madras High
Court. Before the petition was heard, Periyaiya Servai died
and   the   same   was   dismissed   as   not  pressed   by  the   first
defendant. 
(viii) That the plaint in the instant suit was filed with a view to
extort monies from the first defendant. The first defendant
prayed before the Trial Court that the suit for partition and
separate possession filed by the plaintiff be dismissed.
5. The District Munsiff Court, Devakottai by its judgment and
decree dated 7th April, 2005 dismissed the suit being O.S. No.
101 of 2004. The salient findings of the Trial Court are as under:
(i) The Trial Court noted that the defendant had filed O.P. No. 7
of 1992 on the file of the District Munsiff Court, Devakottai
praying for a declaration that the partition deed stated to be
executed   in   the   year   1964   between   Periyaiya   Servai,   the
defendants and Marimuthu was invalid. The said suit was
decreed as prayed for, with a declaration to the effect that the
partition deed stated to be executed in the year 1964 was an
unregistered document and therefore, invalid.
(ii)  The Trial Court also noted that in O.S. No. 347 of 1991 filed
by Periyaiya Servai, the District Munsiff Court, Devakottai
decreed   that   out   of   the   properties   belonging   to   Periyaiya
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Servai, his three sons, being the defendants therein and late
Marimuthu, would each be entitled to one­third share. In an
appeal from the judgment and decree in O.S. No. 347 of
1991, the first appellate court in A.S. No. 37 of 1993 held
that a valid partition had been carried out in the year 1964
whereby it was decided that no share was to be retained by
Periyaiya Servai and each of his sons was entitled to onethird share in the suit properties.
Given the contradictory decrees passed in O.P. No. 7 of
1992 and in A.S. No. 37 of 1993, the Trial Court held that the
latter decree would alone be enforceable.
(iii)  That the partition deed executed in the year 1964 was valid
in the eye of law and such validity was confirmed by the SubCourt, Devakottai in A.S. No. 37 of 1993. Since questions
surrounding the validity of the partition deed were finally
settled, the suit was barred by the principle of res judicata.
(iv) According to the decision in A.S. No. 37 of 1993, Periyaiya
Servai had not been allotted any share in the property and
the same was divided in three equal parts in favour of the two
defendants and Marimuthu. That Periyaiya Servai, following
the partition in the year 1964 had no right over the said
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property and consequently had no right to execute a will in
respect of the suit properties, in favour of the Plaintiff.
(v)  That the plaintiff is not entitled to one­fourth share in the
suit properties as prayed by him. That the defendants were
entitled to enjoy their share of the suit properties without any
restraint by virtue of the partition effected in 1964.
6. Being aggrieved, the plaintiff preferred A.S. No. 38 of 2005
before   the   first   appellate   court.   By   Judgment   dated   17th
February, 2006, the appeal and cross appeal were dismissed and
the   judgment   of   the   Trial   Court   referred   to   above   was
affirmed. The   relevant   findings   of   the   first   appellate   court   are
encapsulated as under:
i) The first appellate court considered the evidence of the first
defendant   as   DW­1.   In   his   cross­examination   DW­1   had
stated that a partition had been effected in the year 1964,
wherein the suit properties were divided among the three
sons of Periyaiya Servai i.e., the first and second defendants
and Marimuthu. That the patta was not obtained individually
by the sons of Periyaiya Servai following the execution of the
partition   deed,   however   they   had   been   paying kist in
connection   with   their   respective   properties.   In   the
circumstance, the first appellate court held that the fact that
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the defendants had not obtained pattas individually for their
respective shares in the suit properties, could not result in a
conclusion that Periyaiya Servai had not partitioned the suit
properties in favour of his sons.
ii) That the kist receipts paid by the first defendant from the
year 1964, in relation to his share of the suit properties led to
the   conclusion   that   the   first   defendant   was   enjoying   the
properties allotted to him by way of the partition effected in
the year 1964.
iii) Since partition was effected between Periyaiya Servai and his
sons in the year 1964, whereby the suit schedule properties
were divided among the first and second defendants and late
Marimuthu, and no property was apportioned in favour of
Periyaiya   Servai,   he   had   no   right   to   execute   a   will
subsequently, in relation to the suit properties. Therefore the
will dated 26th January, 1994 is not a valid document.
iv) That the plaintiff could not claim title over one­fourth share
of the suit properties on the basis of the will dated 26th
January, 1994 and therefore the Trial Court rightly dismissed
the suit filed by the plaintiff.
7. Being aggrieved, the plaintiff preferred second appeal No. 92
of 2007 before the Madurai bench of the Madras High Court. By
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judgment   dated   6th   August,   2007,   the   second   appeal   was
dismissed by holding that the following substantial questions of
law sought to be raised by the Plaintiff could not be considered: 
i) Whether the Courts below are justified in holding that
the suit is barred in view of the decision in Appeal Suit
No. 37 of 1993 dated 23.03.1999 in as much as there
was a specific direction by the High Court, Madras in
the order of remand to the subordinate judge to consider
only whether the properties are joint family properties or
self acquisitions of Periyaiah Servai?
ii) Whether the courts below are justified in holding that
the suit is barred in view of the decision in Appeal Suit
No.  37  of  1993  on  the  file  of  Sub­Court,  Devakottai
without considering whether the principles laid down in
section 11 of the Code of Civil procedure are applicable?
iii) Whether   the   courts   below   are   justified   in   not
considering the decision in Original Petition No. 7 of
1972 on the file of the Sub­Court, Devakottai where
under original of exhibit B­10 was held to be invalid and
unenforceable?
iv) Whether   the   courts   below   are   justified   in   not
considering   the   admissions   of   DW­1   that   Periyaiah
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Servai   was   entitled   to   a   share   in   the   joint   family
properties?
v) Whether the findings of courts below which are perverse
and   not   supported   by   any   materials   and   against
available materials on record can be sustained?
The following findings were recorded by the High Court in the
impugned judgment:
(i)  That it had already been held in Appeal Suit No. 37 of 1993
that all the joint family properties had been divided into three
shares in favour of the sons of Periyaiya Servai. Against the said
decision, no appeal had been preferred and hence the finding
regarding the partition had attained finality. Therefore, the instant
suit was barred by the principle of res judicata.
(ii)  The second appeal was dismissed at the stage of admission
on the ground that the substantial questions of law raised by the
plaintiff were not legally tenable.
The   unsuccessful   plaintiff   has   approached   this   Court
challenging the three judgments referred to above.
8.  We have heard Sri. V. Prabhakar, learned advocate for the
appellant and Sri. K.K. Mani, learned advocate for respondents
and perused the material on record.
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9.  Learned counsel for the appellant­plaintiff at the outset
contended that the High Court as well as the courts below were
not right in dismissing the suit filed by the appellant­plaintiff by
holding that there was a prior partition between the parties in the
year 1964 and hence the instant suit for partition and separate
possession was not maintainable. Elaborating the said contention
it was submitted that the so called partition of the suit schedule
properties in the year 1964 was as per an award. The said award
was not registered as per section 17 (1) (e) of the Registration Act,
1908 (hereinafter referred to as “the Act” for the sake of brevity).
Section 49 of the Act was also pressed into service to contend that
in the absence of registration of the arbitration award effecting the
partition between members of the family, the award does not have
any validity in the eye of law and hence it is not binding on the
parties. Since the said award had no effect in law, the family
continued to remain joint and the suit schedule properties were
joint ancestral properties. Hence, the suit for partition filed by the
appellant was maintainable.
10. In this context it was brought to our notice that O.S. No.
347 of 1991 was filed by Periyaiya Servai, the grandfather of the
plaintiff seeking declaration of title and consequential relief and
the said suit was dismissed against which A.S. No. 37 of 93 was
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filed. In the said appeal there was an order of remand to the Trial
Court. The remand order was challenged before the High Court.
The High Court remanded the matter to the first appellate court to
decide the appeal and to give a finding only on the nature of the
properties. Reliance was placed on the finding given by the first
appellate court on remand from the High Court to the effect that
the   suit   schedule   properties   are   joint   ancestral   properties.
However, the first appellate court even in the absence of any
mandate of the High Court being given in the remand order went
ahead to hold that there was a partition between the members of
the family in the year 1964 and hence the suit for partition was
not maintainable. Learned counsel for the appellant contended
that   such   a   finding   could   not   have   been   given   by   the   first
appellate court transgressing the contours of the order of remand
made by the High Court which was to determine only the nature
of   the   suit   schedule   properties   and   not   whether   there   was   a
partition of the same between the members of the family. That the
decision of the first appellate court in A.S. No. 37 of 1993 was
erroneous in so far as it travelled beyond the scope of the remand
made to it by the High Court and hence the said finding is not
binding on the parties. 
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11. It   was   contended   that   the   High   Court   in   passing   the
impugned judgment, could not have dismissed the second appeal
on the basis of an erroneous finding given by the first appellate
Court as the said finding was also not binding on the High Court.
It was contended that the principle of res judicata does not apply
in the instant case. Hence, the judgments of the High Court and
the Courts below may be set aside and the suit may be decreed.
12. Learned counsel for the appellant relied upon the following
judgments in support of his submissions:
a) Shiromani  and  Ors.   v.  Hem  Kumar  and   Ors.,   [1968]  3
SCR 639. 
b) Satish   Kumar   and   Ors.   v.   Surinder   Kumar   and   Ors.,
[1969] 2 SCR 244. 
c) Lachhman Dass v. Ram Lal, [1989] 3 SCC 99. 
d) Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947 PC
1. 
13.  Per contra, learned counsel for the respondents supported
the   impugned   judgment   of   the   High   Court   to   contend   that
registration of the arbitral award making a partition between the
parties was not compulsory. It was urged that partition of joint
family properties is not a transfer inter vivos. A partition only
crystallises the share of the coparceners in the joint family or
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ancestral properties. That so long as the parties are not allotted
shares pertaining to specific assets under a partition deed such a
document   does   not   create   any   right,   title   or   interest   in   any
specific property as such. Therefore, registration of the arbitral
award   in   the   instant   case   as   such   is   not   a   mandatory
requirement.
14.  Alternatively, it was contended that the finding of the first
appellate court in A.S. No. 37 of 1993, regarding the partition and
division of the ancestral joint family properties in the year 1964
has attained finality. The said finding is binding on the parties.
Hence a fresh suit seeking partition and separate possession of
the properties was not at all maintainable. This is because the
aforesaid finding shall be presumed to be accepted by the parties
as there has been no challenge to the same and hence principle of
res judicata would apply.
15.  It was further contended that even if it is assumed for the
sake of argument that, on remand, the first appellate court had
passed an erroneous judgment by giving a finding on a point
beyond the scope of remand, i.e., on the aspect of the arbitral
award having partitioned the suit schedule properties, such a
finding is binding on the parties as it has not been interfered with
by the High Court. That nothing prevented the appellant from
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assailing the said finding before the High Court by filing a second
appeal. Instead the appellant filed a fresh suit for partition which
is an instance of abuse of process of law as it is hit by the
principle of res judicata.
16.  In  the  above  backdrop  it was  contended  that  the  High
Court was right in dismissing the second appeal as well as the
suit filed by the appellant plaintiff and there is no merit in this
appeal. Hence the same may be dismissed.
Learned counsel for respondents relied upon the following
three decisions to buttress his submissions:
a) Kale   and   Ors.   v.   Deputy   Director   of   Consolidation,
[1976] 3 SCC 119. 
b) Bhoop   Singh   v. Ram   Singh  Major  and  Ors.,   [1995]  5
SCC 709. 
c) Ravinder  Kaur   Grewal  and   Ors.   v.  Manjit  Kaur  and
Ors., [2020] 9 SCC 706. 
d) Ripudaman Singh v. Tikka Maheshwar Chand, [2021]
7 SCC 446.
17.  Having heard  learned  counsel for respective  parties  the
only point which arises for our consideration is, whether, the suit
filed by the plaintiff is barred in view of the judgment and decree
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passed in A.S. No. 37 of 1993 dated 23rd March, 1999, wherein it
was held that a partition had been affected in relation to the joint
family properties between the first and second defendants and
late Marimuthu in the year 1964.
18.  The following undisputed facts may be noted:­ 
(a)  The   relationship   between   the   parties   is   not   in   dispute.
Periyaiya Servai through his first wife had begotten the first
defendant, P.R. Ramaswamy and through  his second wife
had two sons, namely, P.R. Kasilingam ­ second defendant
and late Marimuthu. The appellant­plaintiff is the son of P.R.
Kasilingam.
(b)  Appellant   has   also   claimed   that   his   grandfather   Periyaiya
Servai had executed a will in his favour and therefore he had
one­fourth share in the suit property. 
(c)   It is also not in dispute that O.S. No. 347 of 1991 was filed on
the file of the District Munsiff Court, Devakottai by Periyaiya
Servai   for   declaration   of   title   and   permanent   injunction,
wherein all the suit properties had been shown as joint family
properties.   Against   the   dismissal   of   the   said   suit   a
preliminary decree was passed granting one­fourth share to
the plaintiff therein in A.S. No. 37 of 1993 preferred against
the dismissal of the suit. 
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(d)  In A.S. No. 37 of 1993 it was held that the suit properties
were joint family properties and in the year 1964 there was a
partition between the members of the joint family. The said
judgment was not assailed by any of the parties. 
(e)  However, the appellant herein instituted a fresh suit being
O.S. No. 101 of 2004 on the file of the District Munsiff Court,
Devakottai   which   was   dismissed,   against   which   A.S.   No.
38/2005 was filed before the Subordinate Judge, Devakottai
wherein it was observed that the finding given in A.S. No. 37
of 1993 to the effect that there was a partition in the family in
the year 1964, had attained finality. 
(f)  Aggrieved by the dismissal of the appeal, second appeal being
S.A. No. 92 of 2007 was filed before the Madurai Bench of the
Madras High Court, which has also dismissed the same by
the impugned judgment.
19. The main plank of argument of the appellant is that the
suit filed by the plaintiff­appellant herein could not have been
dismissed on the principle of res judicata by holding that in A.S.
No. 37 of 1993 there was already a clear finding to the effect that
there was a partition of the suit properties between the members
of   the   joint   family   and   hence   a   fresh   suit   for   partition   and
separate possession vis­a­vis the same properties could not have
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been filed by the plaintiff as it is not maintainable. In this regard
the   contention   of   the   appellant­plaintiff   is   that   the   aforesaid
finding was contrary to the mandate of remand and hence was
not   binding   on   the   parties.   Contrarily,   respondents   have
contended that the finding that the suit properties were joint
family properties which had been partitioned by the parties in the
year 1964, not having been challenged at all by the plaintiff, had
attained finality and hence the plaintiff was estopped from filing a
fresh suit claiming partition and separate possession.
20.  In the aforesaid context another contention raised by the
learned counsel for the appellant was that the so­called partition
which took place in the year 1964 was by virtue of an award
passed   by   the   panchayatdars   (arbitrators)   and   the   same,   not
having been registered, was not made a rule of the court and
hence   had   no   validity   in   the   eye   of   law.   The   counter   to   the
aforesaid argument by learned counsel for the respondent is that
the said award did not require registration at all. 
21. We shall at the outset consider the following judgments
relied upon by the learned counsel for the appellant:
a)  In Shiromani and Ors. v. Hem Kumar and Ors., [1968] 3
SCR 639, one of the questions raised was whether the validity
22
of a partition deed could be challenged as being inadmissible
in evidence on the ground that it had not been registered as
mandated under Section 17 (1) (b) of the Act. In that case it
was held that under the recitals of exhibit D­4 considered
therein, there was allotment of specific properties to individual
coparceners   and   the   document   therefore   fell   within   the
mischief   of   Section   17   (1)   (b)   of   the   Act   as   it   required
registration. Hence, the said document was not admissible in
evidence to prove the title of the coparceners to any particular
property or to prove that any particular property had ceased to
be joint property. However, document exhibit D­4 considered
therein was held to be admissible to prove an intention on the
part of the coparceners to become divided in status; in other
words, to prove that the parties ceased to be joint from the
date of the instrument vide Nanni Bai v Gita Bai, [1959] 1
SCR 479. The said judgment is not applicable to the facts of
this case.
b) In  Satish  Kumar  and  Ors.   v.  Surinder  Kumar  and  Ors.,
[1969]  2  SCR  244, a similar question on registration of an
award for partition of joint family property being compulsory
under Section 17 (1) (b) read with section 49 of the Act was
emphasised. In that case an award for partition was made
23
under the Arbitration Act, 1940 and the question was whether
such an award on a private reference required registration if
the award effected partition of immovable property exceeding
the value of Rs. 100. The majority (2:1) held that an award
made by an arbitrator which affected right, title or interest of
the value of more than Rs. 100 in immovable property would
require registration. However, it was held that the filing of an
unregistered   award   under   Section   49   of   the   Act   is   not
prohibited; what is prohibited is that it cannot be taken into
evidence so as to affect right, title or interest in immovable
property as per Section 17 of the Act. For this proposition
reliance   was   place  on  Champalal   vs.   Mst.   Samarth   Bai,
[1960] 2 SCR 810. 
Also   reliance   was   placed   on  Kashinathsa   Yamosa
Kabadi v. Narsinga Bhaskarsa Kabadi,  [1961] 3 SCR 792
wherein this court had observed as under: 
"The records made by the Panchas about the
division of the properties, it is true, were not
stamped nor were they registered. It is however
clear that if the record made by the Panchas in
so far as it deals with immovable properties is
regarded   as   a   non­testamentary   instrument
purporting   or   operating   to   create,   declare,
assign,   limit   or  extinguish   any  right,   title   or
interest   in   immovable   property,   it   was
compulsorily registrable under Section 17 of the
24
Registration Act, and would not in the absence
of registration be admissible in evidence." 
The minority opinion voiced through K.S. Hegde J. in the
aforesaid   case   was   that   an   arbitrator’s   award   does   create
rights in property but those rights cannot be enforced without
further steps. For the purpose of Section 17(1) (b) of the Act,
all   that   is   to   be   seen   is   whether   the   award   in   question
purports   or   operates   to   create   or   declare,   assign,   limit   or
extinguish, whether in present or future any right, title or
interest,   whether   vested   or   contingent   of   the   value   of   one
hundred rupees and upwards to or in immovable property. If it
does, it is compulsorily registerable. 
c) In Lachhman Dass v. Ram Lal, [1989] 3 SCC 99, the issue
was that the arbitrator’s award had not been properly stamped
and as such could not be made the rule of the Court. It was
also contended that the award was unregistered and as such it
could   not   be   made   the   rule   of   the   Court   as   it   affected
immovable property of more than Rs. 100. The said contention
was accepted by the Trial Court but in second appeal the High
Court observed that the award was stamped properly and it
did not require any registration as the award did not create
any right as such in the immovable property; it only admitted
25
the   already   existing   rights   between   the   parties   and   hence
registration was not required. Hence the question considered
was whether the Court could have looked into the award for
the purpose of pronouncing judgment upon the award. On a
construction of the award questioned therein the decision of
the High Court was reversed. In doing so, this Court took into
consideration section 17 (1) (e) of the Act as well as sections
23, 25 and 49 of the Act. Further, reliance was placed on a
decision of the Division Bench of the Madras High Court in
Ramaswamy Ayyar and Anr. v. Tirpathi Naik, ILR 27 Mad
43, wherein it was observed that it is necessary to read a
document   in   order   to   ascertain,   not   what   the   document
intends to convey really but what it purports to convey.  In
other words, it is necessary to examine not so much what it
intends   to   do,   but   what   it   purports   to   do.  It   was   further
observed in paragraph 14 as under: 
“14. The real purpose of registration is to secure
that   every   person   dealing   with   the   property,
where such document requires registration may
rely with confidence upon statements contained
in the register as a full and complete account of
all transactions by which title may be affected.
Section  17 of  the said Act  being  a disabling
section, must be construed strictly. Therefore,
unless a document is clearly brought within the
provisions   of   the   section,   its   non­registration
would   be   no   bar   to   its   being   admitted   in
evidence.” 
26
Reliance   was   also   placed   on  Ratan   Lal   Sharma   v.
Purushottam   Harit,   [1974]   3   SCR   109  to   hold   that   the
arbitration award in the said case did not just seek to assign a
share of the respondent to the appellant therein, but made an
exclusive  allotment  of  the  partnership  assets  including the
factory and liabilities to the appellant therein. Therefore, the
award   in   express   words   purported   to   create   rights   in
immovable property worth a sum above Rs. 100/­ in favour of
the appellant therein. It was accordingly held that it would
mandatorily require registration under section 17 of the Act. 
22.  We shall now consider the citations relied upon by the
respondents:
a) Kale and Ors. v. Deputy Director of consolidation, [1976]
3 SCC 119, is a case which had a checkered history in which
a discussion on the effect and value of family arrangements
entered   into   between   the   parties   with   a   view   to   resolve
disputes once and for all, came up for consideration. It was
observed that in the case of a family settlement, usually there
would be an agreement which is implied from a long course of
dealing,   but   such   an   agreement   would   be   embodied   or
effectuated in a deed to which the term “family arrangement”
is applied. Such a family arrangement is not applicable to
27
dealings   between   strangers   but   is   in   the   context   of
maintaining the  interest and peace  of  the members  of  the
family. In paragraph 10 of the said judgment, this Court has
adumbrated on the essentials of a family settlement which
could be usefully extracted as under:
“10. In other words to put the binding effect
and the essentials of a family settlement in a
concretized form, the matter may be reduced
into the form of the following propositions:
(1) The family settlement must be a bona fide
one so as to resolve family disputes and rival
claims   by   a   fair   and   equitable   division   or
allotment   of   properties   between   the   various
members of the family;
(2) The said settlement must be voluntary and
should not  be induced by  fraud,  coercion or
undue influence;
(3) The family arrangements may be even oral
in which case no registration is necessary;
(4) It is well settled that registration would be
necessary   only   if   the   terms   of   the   family
arrangement   are   reduced   into   writing.   Here
also, a distinction should be made between a
document containing the terms and recitals of a
family arrangement made under the document
and a mere memorandum prepared after the
family   arrangement   had   already   been   made
either   for   the   purpose   of   the   record   or   for
information of the Court for making necessary
mutation.   In   such   a   case   the   memorandum
itself does not create or extinguish any rights in
immoveable properties and therefore does not
fall  within   the   mischief   of   Section   17(2)   (sic)
(Section 17(1)(b)?) of the Registration Act and is,
therefore, not compulsorily registrable;
(5) The members who may be parties to the
family arrangement must have some antecedent
28
title, claim or interest even a possible claim in
the   property   which   is   acknowledged   by   the
parties to  the  settlement. Even  if  one  of  the
parties to the settlement has no title but under
the arrangement the other party relinquishes all
its claims or titles in favour of such a person
and acknowledges him to be the sole owner,
then the antecedent title must be assumed and
the family arrangement will be upheld, and the
Courts will find no difficulty in giving assent to
the same;
(6) Even   if   bona   fide   disputes,   present   or
possible, which may not involve legal claims are
settled by a bona fide family arrangement which
is fair and equitable the family arrangement is
final   and   binding   on   the   parties   to   the
settlement.”
After reviewing several judgments of this Court, the Privy
Council and other High Courts, this Court in paragraph 20
indicated the following propositions:
“We would, therefore return the reference with a statement
of the following general propositions: 
(1) A family arrangement can be made orally. 
(2)  If made orally, there being no document, no question of
registration arises. 
(3) If though it could have been made orally, it was in fact
reduced to the form of a "document" registration (when the
value is Rs. 100 and upwards) is necessary. 
(4) Whether the terms have been "reduced to the form of a
document"   is   a   question   of   fact   in   each   case   to   be
determined   upon   a   consideration   of   the   nature   and
phraseology of the writing and the circumstances in which
and the purpose with which it was written. 
(5)   If   the   terms   were   not   "reduced   to   the   form   of   a
document", registration was not necessary (even though the
value is Rs. 100 or upwards); and, while the writing cannot
29
be used as a piece of evidence for what it may be worth, e.g.
as corroborative of other evidence or as an admission of the
transaction or as showing or explaining conduct. 
(6) If the terms were "reduced to the form of a document"
and, though the value was Rs. 100 or upwards, it was not
registered, the absence of registration makes the document
inadmissible   in   evidence   and   is   fatal   to   proof   of   the
arrangement embodied in the document.”
Ultimately, this Court held that the family arrangement in
the nature of a compromise which was considered in that case
did not require registration. It was further held that since the
existence of the family arrangement was admitted in that case,
the same was binding on the principle of estoppel. Also, even if
the family arrangement could not be registered it could be
used   for   collateral   purpose,   i.e.   to   show   the   nature   and
character of possession of the parties in pursuance of the
family settlement and also for the purpose of applying the rule
of estoppel which flowed from the conduct of the parties, who,
having taken benefit under the settlement for seven years,
later tried to resile from the settlement. 
b) In  Bhoop   Singh   v. Ram   Singh  Major  and   Ors.,   [1995]   5
SCC 709, this Court stated the legal position in the context of
registration of documents under section 17 (2) (vi) of the Act in
the following words, so as to distinguish the same from section
17 (2) (v):
30
“18. The legal position qua Clause (vi) can, on
the   basis   of   the   aforesaid   discussion,   be
summarised as below:
(1) Compromise   decree   if   bona   fide,   in   the
sense that the compromise is not a device to
obviate payment of stamp duty and frustrate
the   law   relating   to   registration,   would   not
require registration. In a converse situation, it
would require registration.
(2) If the compromise decree were to create for
the   first   time   right,   title   or   interest   in
immovable property of the value of Rs. 100 or
upwards in favour of any party to the suit the
decree or order would require registration.
(3) If the decree were not to attract any of the
clauses of Sub­ section (1) of Section 17, as was
the position in the aforesaid Privy Council and
this Court's cases, it is apparent that the decree
would not require registration.
(4) If the decree were not to embody the terms
of compromise, as was the position in Lahore
case,   benefit   from   the   terms   of   compromise
cannot be derived, even if a suit were to be
disposed   of   because   of   the   compromise   in
question.
(5) If the property dealt with by the decree be
not   the   "subject­   matter   of   the   suit   or
proceeding", Clause (vi) of Sub­section (2) would
not operate, because of the amendment of this
Clause by Act 21 of 1929, which has its origin
in the aforesaid decision of the Privy Council,
according to which the original Clause would
have   been   attracted,   even   if   it   were   to
encompass property not litigated.”
c) In  Ravinder   Kaur   Grewal   and   Ors.   v.  Manjit   Kaur   and
Ors.,   [2020]   9   SCC   706  considering   both   the   aforesaid
judgments, this Court opined that when a family settlement
arrived at between the parties has been acted upon then it is
31
not open to resile from the same and the parties are estopped
from contending to the contrary.
d)   The   facts   in  Ripudaman   Singh   v.   Tikka   Maheshwar
Chand,   [2021]   7   SCC   446  were   that,   the   parties   being
brothers, had entered into a compromise in respect of a land
dispute. Plaintiff, therein, on the basis of the compromise
decree applied for mutation of land in his favour, which was
allowed. In appeal there was a direction to Naib Tehsildar to
decide   the   mutation   afresh.   Subsequently,   the   Divisional
Commissioner  dismissed   the  appeal   filed   against  the   said
order. A suit was filed which was dismissed but the appeal
preferred by the appellant was allowed. However, the High
Court in the second appeal, set aside the judgment of the first
appellate court and dismissed the suit on the ground that the
land, even though was a subject matter of compromise, was
not   the   subject   matter   of   the   suit   and   therefore,   the
compromise decree required registration under the provisions
of the Act. This Court while allowing the appeal and setting
aside the decree of the High Court held that when a preexisting right in the property is being recognised by way of a
settlement in a Court proceeding and no new right is created
for the first time when the parties entered into a compromise
32
in   the   civil   court,   there   is   no   requirement   of   compulsory
registration. In other words, a compromise recognising a preexisting right in a property amongst heirs does not require
registration   under   the   Act.   In   this   case   the   distinction
between   section   17   (2)   (v)   and   (vi)   was   brought   out   by
referring to the aforementioned judgments.
23. In order to answer the aforesaid twin questions, at the
outset we have to consider the award dated 13th June, 1964
passed   by   the   panchayatdars   which   has   been   produced   as
Annexure P­10 by learned counsel for the appellant. The award is
in the form of a resolution on the strength of the statement given
by   Periyaiya   Servai   and   the   consent   statement   given   by   P.R.
Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya
Servai. There are details as to how the properties had to be dealt
with. The parties had also stated that they had read the above
resolution and had agreed wholeheartedly to obey the provisions
thereof.   For   a   better   appreciation   of   the   nature   of   the   award
passed   by   the   panchayatdars, it   would   be   useful   to   extract
Annexure P­10 as under:
“RESOLUTION   PASSED   BY   THE
PANCHAYATDARS ON 20TH DAY OF THE MONTH
OF  PANGUNI  OF  TAMIL  SOBAKRITHU  YEAR   IN
REGARD  TO PARTITION  BETWEEN  THE THREE
SONS   OF   M.   PERIYAYYA   SERVAI   VIZ.   (1)
RAMASAMY,   (2)   KASILINGAM   AND   (3)
MARIMUTHAN.
33
DETAILS
The said M. Periyayya Servai had two wives
1) Veerayakli – First Wife
2) Kaliyamma – Second Wife
The Son born through first wife is Ramasamy. The
Sons born through second wife are Kasilingam and
Marimuthan.
We have passed the following Resolutions on the
strength   of   the   statement   given   by   the   said   M.
Periyayya   Servai   in   front   of   us   and   the   consent
statement given by Ramasamy and Kasilingam, after
perusal of the above statement.
DETAILS OF RESOLUTIONS
1. The   nanjai,   punjai   and   accessories   viz
Thitthuthidal,  cattle,   chickens,   vessels   and  all
other household articles are to be divided into
three equal shares.
2. As the Panchayatdars unanimously decide that
the three acres of land out of the total common
Nanjai   lands   are   to   be   left   to   the   care   of
Ramasamy, the eldest Son, the said three acres
of Nanjai Lands are to be accordingly given away
to Ramasamy.
3. We, the Panchayatdars RESOLVE to cancel the
expenses incurred in connection with the actions
revolving   round   partition   as   per   the   amount
contained in the statements given by both the
parties,   besides   cancelling   the   difference   in
expenses   of   the   marriages   of   Ramasamy   and
Kasilingam,   and   the   marriage   of   one   Ms.
Patharammal is to be performed from out of the
amounts from the share of both Kasilingam and
Marimuthan,   on   the   statement   made   by
Kaslingam that a Minor Chain weighing about 3
his marriage and the same could not be traced
out, in spite of search, Kasilingam shall give the
expenses amounting to Rs.300/­ in common.
4. It was  RESOLVED   that   Marimuthan   shall
conduct his marriage on his own from his share
and   Marimuthan   shall   have   no   responsibility
towards   either  amounts   receivable,   payable   or
loans concerning the common family.
34
5. It was  RESOLVED that the PANCHAYATDARS  
having   decided   that   on   the   approval   of
Kasilingam,   Bangalore   M.   Sethuraman,   for
having taken limestone valued at Rs.20,000/­ in
regard   to   kiln   for   bricks,   since   Kasilingam
permitted   the   above   person   to   take   Rs.340/­
(Rupees three hundred forty only) on his own
volition without the approval of his father, it was
RESOLVED that Kasilingam shall bear the said
sum of Rs.340/­ from out of his pocket.
6. The school at Bangalore shall be valued for sale,
taking   into   account   all   the   goods/things   and
accessories available in the said school and the
said   school   shall   be   taken   over   either   by
Ramasamy or Kasilingam depending upon the
one coming out successful in the paper token to
be tossed over and both of them agree to the
above proposal. The value of the said school has
been unanimously arrived at Rs.3,000/­ (Rupees
three thousand only) by the Panchatdars. The
person who takes up the responsibility of the
said   school   shall   pay   the   above   sum   of
Rs.3000/­   to   their   father   M.   Periyayya   with
liberty to be spent by him as he wishes, for his
personal   use.   It   is   RESOLVED     by   the
Panchayatdars,   the   three   sons   shall   not   have
any right over the aforesaid sum of Rs.3,000/­.
7. It is further  RESOLVED   that   the   Savukkai
house along with the fenced compound shall be
given to Periyayya and to leave the two properties
viz one comprised in S.No.181/1 measuring 1.40
cent and another house comprised in giving him
the right to deal with the properties as he may
desire. It is also RESOLVED to give him a cart
and two bullocks for his use besides a cow for
meeting his requirement for milk.
8. In   his   statement   Periyayya   had   stated   that   a
sum  of   Rs.1,000/­   or  land   equal   to   its   value
shall   be  given   to  his  sister  Lakshmi.  We,   the
Panchayatdars, have today RESOLVED  that   a
sum  of   Rs.1,000/­   or  land   equal   to   its   value
ought to be given to the said Lakshmi.
9. As is found in the statement that in order to give
a house to Karuvarividan of Sathamangalam, it
is RESOLVED that the lower layer of the first
farm shall be given to the above person. There is
no time for performing charitable activities for
the three partners. It has been decided that the
35
three shares in the same can hereafter be done
together under the supervision of Ramasamy.
10.As   found   in   the   statement   of   Sri   Periyayya
Servai,   wherein   it   has   been   written   that
considering   the   value   of   all   the   Kalluppatti
properties   at   Rs.800/­   shall   be   sold   to   his
daughter Segappi, it has been decided that the
said properties shall be sold for the above said
value   itself   and   the   said   decision   has   been
endorsed by us, the Panchayatdars.
11.The   house   may  be   divided   into   two   by  using
coconut matai and shall be taken by Kasilingam
and   Marimuthan.   For   the   share   going   to
Marimuthan the vacant site also is to be added.
The Nattavali house shall be held and used in
common. It has been decided as above.
12.It has been RESOLVED as regards the common
family honour of Lance, that in line with the age
old   customs,   after   the   life   time   of   Periyayya
Servai, his eldest Son, Ramasamy is considered
to be due for the said honour.
13.All   the   above   have   been   unanimously
RESOLVED by us, the Panchayatdars.
PANCHAYATDARS
1. S. Appasamy Servai, Unchanai
2. Bhootha Thiru Muthaiyyan Servai,
Ethappadivayal
3. M. Muthiah Servai of Umbiyur
Iruppukkudi
4. Ana. Anamugappan
5. S.V. Durai Servai, Sathamangalam.
We have read the above RESOLUTIONS. We agree
with the above. We shall wholeheartedly obey the
above.
Sd/­ M. Periyayya Servai
Sd/­ Ramasamy
Sd/­ Kasilingam
Resolution   written   by   and   I   am   also   one   of   the
Panchayathars.
Sd/­
(illegible)”
36
On   a   perusal   of   the   award   which   is   in   the   form   of   a
resolution,   it   is   clear   that   there   was   no   right   created   in   any
specific item or asset of the joint family properties in any person
but the parties resolved to take certain actions in pursuance of a
family arrangement. Therefore under Annexure P­10 (Ex. B­13)
there was no right created in favour of any party in any specific
item of joint family property. The said document which has been
styled   as   an   award   is,   in   our   view,   only   a   memorandum   of
understanding/family arrangement to be acted upon in future.
Hence, in our considered view, the said document did not create
rights in specific properties or assets of the family, in favour of
specific persons. Therefore, the same did not require registration
under section 17 (1) (e) of the Act. The said document was in the
nature of a document envisaged under section 17 (2) (v) of the
Act. For a better understanding of the same it would be useful to
refer to section 17 (1) (e) and 17 (2) (v) as under:
“17.   Documents   of   which   registration   is
compulsory.—(l) The following documents shall
be   registered,   if   the   property   to   which   they
relate is situate in a district in which, and if
they have been executed on or after the date on
which,   Act   No.   XVI   of   1864,   or   the   Indian
Registration   Act,   1866,   or   the   Indian
Registration   Act,   1871,   or   the   Indian
Registration   Act,   1877,   or   this   Act   came   or
comes into force, namely:—
xxx  xxx xxx
(b) other non­testamentary instruments which
purport or operate to create, declare, assign,
37
limit  or extinguish,  whether  in  present  or in
future,   any   right,   title   or   interest,   whether
vested   or   contingent,   of   the   value   of   one
hundred   rupees   and   upwards,   to   or   in
immovable property;
xxx  xxx xxx
(2) Nothing in clauses (b) and (c) of sub­section
(l) applies to:—
xxx  xxx xxx
(v) any   document   other   than   the   documents
specified in sub­section (1A) not itself creating,
declaring,  assigning,  limiting or  extinguishing
any right, title or interest of the value of one
hundred   rupees   and   upwards   to   or   in
immovable property, but merely creating a right
to obtain another document which will, when
executed,   create,   declare,   assign,   limit   or
extinguish any such right, title or interest.”
24.  Having regard to the aforesaid provisions of law it can be
safely concluded that the said award was a mere arrangement to
divide   the   properties   in   future   by   metes   and   bounds   as
distinguished from an actual deed of partition under which there
is not only a severance of status but also division of joint family
properties by metes and bounds in specific properties. Hence it
was exempted from registration under Section 17 (2) (v) of the Act.
A document of partition which provides for effectuating a division
of properties in future would be exempt from registration under
section 17 (2) (v). The test in such a case is whether the document
itself   creates   an   interest   in   a   specific   immovable   property   or
merely creates a right to obtain another document of title. If a
document   does   not   by   itself   create   a   right   or   interest   in
immovable property, but merely creates a right to obtain another
38
document, which will, when executed create a right in the person
claiming relief, the former document does not require registration
and is accordingly admissible in evidence vide Ranjangam  Iyer
v. Ranjangam Iyer, AIR 1922 PC 266. 
25.  In   the   instant   case   exhibit  B­13   award   is   more   in   the
nature of a memorandum of understanding, a mere agreement of
the steps to be taken in future for the division of the properties.
Hence,   the   said   document   did   not   require   registration   under
Section 17 (1) (b) of the Act as under the said document no
creation   of   rights   in   any   specific   joint   family   property   was
effected.  Hence the second limb of the contention of the appellant
is accordingly answered. 
26.  Thus, in our view the judgment in O.P. No. 7 of 1972 which
was a petition filed under Section 17 of the Arbitration Act, 1940
praying to receive the award passed by the arbitrators and to pass
a judgment thereon, wherein it was held that the award was not
registered as mandated under Section 17 (1) (b) of the Act and
hence could not be made a rule of the Court, is wholly incorrect.
In our view, the award was not a document of title to the property
hence   it   did   not   require   registration.   Therefore,   the   Order
dated 22nd August, 1975 passed in O.P. No. 7 of 1972 holding that
39
the award was inadmissible in evidence as it was not registered
and hence a decree could not be passed, is incorrect. 
27.  In our view, exhibit B­13 did not require registration.
28. The   next   question   that   arises   for   our   consideration   is
whether, the finding of the first appellate court in A.S. No. 37 of
1993 that the suit properties were partitioned in the year 1964 is
binding on the parties and hence a fresh suit filed by the Plaintiff
seeking the very same relief was not maintainable. In A.S. No.37,
on considering the oral and documentary evidence on record it
was opined as under: 
“From his evidence it is clear that there is a
partition in the year 1964 and the list of the
apportionment   and   they   have   also   written   a
Muchallikka   before   the   panchayat.   It   is
undoubtfully known that since there was a joint
possession,   the   partition   was   effected   to   the
plaintiff’s   3   sons   in   1964   by   plaintiff   by
accepting   that   the   suit   properties   were   joint
properties,  it  is  not  right  on  the part  of  the
plaintiff   to   claim   that   the   properties   are   his
individual,   self­acquired   properties   and   it   is
also unbelievable.”  
This finding is sought to be questioned before us by placing
reliance on a judgment of the Apex Court in  Asrar   Ahmed   v.
Durgah Committee, Ajmer, AIR 1947 PC 1  to contend that the
plea of  res judicata  does not arise in the instant case. We have
perused the same. Learned Counsel for the appellant placed heavy
reliance on this judgment contend that when a finding has been
40
given by a lower court based on sufficient evidence, if erroneous,
is not binding between the parties to the said proceeding on the
principle of res judicata.  The said judgment is not applicable to
the present case.
29.  Having regard to the fact that in the instant case there has
been no challenge to the finding of partition between the parties
till date and the same has attained finality we do not think that
the appellant can seek to rely on the judgment in Asrar Ahmed
(Supra).   Hence,   the   partition   of   the   ancestral/joint   family
properties having found to have taken place in the 1964 and the
same   having   been   acted   upon,   a   fresh   suit   for   partition   and
separate   possession   of   the   suit   properties   was   not   at   all
maintainable. The principle of res judicata squarely applies in the
present case.
30. In this context,  following judgments could be cited with
regard to the operation of the principles of res judicata in respect
to the previous proceeding and judgment: ­
a) In  Mathura   Prasad   Sarjoo   Jaiswal   v.   Dossibai   N.B.
Jeejeebhoy (AIR 1971 SC 2355), it was observed as under: 
“10. It is true that in determining the application of
the rule of res judicata the Court is not concerned
with   the   correctness   or   otherwise   of   the   earlier
judgment. The matter in issue, if it is one purely of
fact, decided in the earlier proceeding by a competent
Court must in a subsequent litigation between the
41
same   parties   be   regarded   as   finally   decided   and
cannot be reopened. A mixed question of law and fact
determined   in   the   earlier   proceeding   between   the
same   parties   may   not,   for   the   same   reason,   be
questioned in a subsequent proceeding between the
same   parties.   But,   where   the   decision   is   on   a
question of law i.e. the interpretation of a statute, it
will   be   res   judicata   in   a   subsequent   proceeding
between the same parties where the cause of action is
the same, for the expression “the matter in issue” in
Section 11 of the Code of Civil Procedure means the
right litigated between the parties i.e. the facts on
which the right  is claimed or denied and the law
applicable to the determination of that issue. Where,
however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision of
the Court sanctioning something which is illegal, by
resort to the rule of res judicata a party affected by
the decision will not be precluded from challenging
the   validity   of   that   order   under   the   rule   of   res
judicata, for a rule of procedure cannot supersede the
law of the land.”
b) In  Mohanlal   Goenka   v.   Benoy   Kishna   Mukherjee   (AIR
1953 SC 65), the second round of litigation was admittedly
in respect of same property and between the same parties,
after the earlier litigation had attained finality even up to the
stage of execution.   It was held that later on the judgment
debtor was precluded from raising the plea of jurisdiction in
view of principles of constructive  res judicata. In Paragraph
23 it was as under :­
““23. There is ample authority for the proposition that
even   an   erroneous   decision   on   a   question   of   law
operates as ‘res judicata’ between the parties to it.
The correctness or otherwise of a judicial decision
has no bearing upon the question whether or not it
operates as ‘res judicata.”
42
c) In State of West Bengal v. Hemant Kumar Bhattacharjee
(AIR 1966 SC 1061), the main issue related to the Special
Court to try a Criminal offence, in asmuch as an incorrect
decision cannot be equated with a decision rendered without
jurisdiction. Even a wrong decision can be superseded only
through appeals to higher tribunals or Courts or through
review, if provided by law.  
31. We accordingly hold that the High Court was justified in
affirming the judgments of the First Appellate Court as well as the
Trial Court dismissing the suit filed by the appellant herein. We
have no reason to interfere with the impugned judgment.
The appeal is accordingly dismissed.
Having regard to the relationship between the parties, they
shall bear their own costs.
……………………………..J.
[L. NAGESWARA RAO]
…………………………….J.
[B.R. GAVAI]
……………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
27TH JANUARY, 2022. 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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