016-NLR-NLR-V-13-DINGIRI-MENIKA-v.-PUNCHI-MAHATMAYA-et-al.pdf
( «> )Preamt: The Hon. Mr. J. P. Middleton, Acting Chief Justice,and Mr. Justice Wood Benton.
DINGIRI MENIKA t>. PUNCHI MAHATMAYA at at,
C., Kegalla, 2,437.
Bes judicata—Dismissal of action in Court of Bequests for a small ‘portionof an inheritance—Subsequent action in DistrictCourt for the
remainder—Decisory oath—Civil Procedure Code, ss. 94, 207, and406—Cause of action—Interlocutory appeals.
Plaintiff's claim, in C. B., Kegalla, 7,627, to one land by right ofpaternal inheritancewasdismissedpn the strengthof adecisory
oath. In the present case the plaintiff claimed by the same, rightin the District Court as against the same defendants other landsbelonging to the same inheritance.
Held, the decision in the first case was res judicata of the presentaction.
For the purpose of determining . whether or not two causes ofaction are the ' same, we have to look not to the mere form inwhich the action is brought, but to the grounds of the plaint, andto the media on .which the plaintiff asks for judgment.
Sections 34, 207,and406 of the Civil ProcedureCodeare not
exhaustive of the law of res judicata in the Colony.
A
PPEAL from a judgment of the District Judge of Kegalla(E. B. Sueter, Esq.).
In C. R., Kegalla, 7,627, to which the present defendants wereparties, the plaintiff claimed one land by right of paternal inheri-tance; the defendants alleged that plaintiff was married in diga,and had thereby forfeited her right to inherit any portion of theinheritance. The action was dismissed on the strength of a decisoryoath. The plaintiff instituted the present action in the DistrictCourt to vindicate other lands belonging to idle same inheritance.The District Judge held that the decision in C. R., Kegalla, 7,627,barred the plaintifffromclaimingany portion ofherfather’s
estate by inheritance. The plaintiffappealed beforethe issue as
to prescription was decided.
E: W. Jwyewardene, for the plaintiff, appellant.—Under section 13of the old Indian Civil Procedure Code an issue once tried cannot betried again; but under section 207 of our Code it is the same causeof action that cannot be tried a second time. The doctrine ofres judicata in Ceylon applies to the decree, and not to the decisionon every issue raised* in the case. Counsel cited Bastian Silvao. Mariam, Silva-,1 Bastian Appu v. Goonawwrdana*
1 {1909) 12 N. L. R. 181.* (190S) 10 N. L. R. 167.
Jan. 24,1910
( 60 )
Jan. 24,1910
DingiriMeniha v.
Punchi
Mahatmaya
A. St. V. Jayewardene, for the defendants, respondents.—Thesections of the Civil Procedure Code do not exhaust the law as tores judicata. Counsel cited Krishna Behari Roy v. Lall Roy,1 GhandKour v. Partab Singh * Outram v. Morewood,3 Endris v. AdrianAppu,* Ramasamy Ayar v. Vythianath Ayar.s
W. Jayewardene, in reply.
Cur. adv. vult.
January 24, 1910. Middleton A.C.J.—
This was an appeal taken in interlocutory form before all thequestions in the action had been decided by the District Court,which, in my opinion, ought not to have been heard until the casehad been finally disposed by the District Court.
A decision on the point before us will not finally dispose of thematters in dispute between the parties, and there will of necessitybe a further trial, and such an appeal as this delays the hearing ofthe action and puts the respondent to the expense of meeting twoappeals where one would suffice.
I was strongly inclined to send the case back without decidingthe point before us, but our action in hearing and giving judgmenton the point before us as it stands must not be taken as aprecedent.
The only point now raised is whether a decision in C. R., Kegalla,No. 7,627, between the same parties in an action to recover a landforming part of .the same inheritance in dispute here, holding thatthe plaintiff is not entitled to inherit from her father’s estate onthe ground that she was married in diga, is res adjudicata in thepresent action, which is to vindicate the greater part of the sameinheritance.
In the petition of appeal the point was taken that the formerdecision having been given upon deeisory oath could not be takento be res judicata of the present case. That point was, however,abandoned in appeal, and the only point practically insisted uponwas that the cause of action in the Court of Requests case was notthe same as in the present case, and 12 N. L. R. 181 with certainIndian cases was relied on.
Some attempt was made to put forward the point that the subject-matter of the first action was beyond the jurisdiction of the Courtof Requests, but I do not think the appellant ought to be allowedto support this proposition, in view of the fact that she was theplaintiff in the Court of Requests case, and chose her forum on theground that the Court of Requests .had jurisdiction.
1 (1875) 1. L. R. 1 Cal. 144. ■* (1803) 3 East's Reports 346.
*11898) 16 Cal. 98.* (1905) 11 N. L. R. 62.
* (1903) 26 Mad. 760.
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Now, in my opinion, the Gause of action here and in the Court of Jam, 24f 1910Bequests was the denial of the plaintiff's right to inherit a share of Mnwrawraher father’s estate, in fact and effect the same in both actions. A.cJf.That point was decided on the issue whether there was a digamarriage raised in C. R., Regalia, No. 7,627. Flitters v. AUfrey1 Memkav.shows that the English Law, which I think we must follow, as thatobserved by this Court up to the present (see 12 N. L. B. 186) onthis point, deems the decision of a County Court to be res judicatain the High Court. Outram v. :Morewood2 seems to me also inpoint against the appellant though cited by him. Endiris v: AdrianAppu9 holds that a decision as to title to a portion of land is iesjudicata as to the rest of the land.
I think therefore that, unless the Indian doctrine as laid down insection 13 of the Indian Civil Procedure Code that the former Courtmust have had jurisdiction to try the subsequent suit in which theplea is raised. prevails, we are bound to hold in this case that thedecision in C. R., Regalia, No. 7,627, is res adjudicata of the presentaction. In other words, I would hold it is not necessary in Ceylon,in order to constitute a valid estoppel by res adjudicata, that .theCourt giving the former decision should have had concurrentjurisdiction with the Court called upon to deliver the latter. I doso with considerable reluctance, as I have a strong opinion that thedecision of the question of the diga marriage in the Court of Requestscase was not good according to Randyan Law. This decision was,however, never appealed against, and stands good and binding asbetween the parties to it (Oavin v. Hadden4).
This leads me to the conclusion that in Ceylon, where the inferiorCourts are not always presided over by competent lawyers, as inthe case of the County Courts in England, there should be someprovision as regards concurrent jurisdiction on the question ofres judicata as in section 13 of the Indian Code. This was theground of the decision in Edun v. Bechun,5 which is said to be stillthe leading case on this point in India, and has been consistentlyfollowed by the Privy Council.
I would support the judgment, and' dismiss the appeal withcosts.
Wood Renton J.—
In this case the appellant sues the respondents for a declarationof title to one-twelfth share of twenty lands, which she claims byright- of paternal*, inheritance and also by prescription. The re-spondents pleaded (1) that the appellant was married in diga, andthereby forfeited her share, in her father's estate; (2) that an issue
1 (1874) L. R. 10 C. P. 29.3 (1908) 11 N. L. R. 62.
? (1803) 3 East's Reports 346.4 (1871) 8 Moore P. C. (N. S. ) 90.
(1867) 8 W. R. 175.
t W* )
Jan. 24,1910
WoodBenton J.
ifenifeov.
Punchi
Mahatmaya
as to the Appellant's diga marriage was raised between the sameparties in C. R., Kegalla, No. 7,627, and decided against theappellant; (3) that the appellant’s present claim is, therefore, barredby the dodtrine of res judicata; (4) that they themselves haveacquired a prescriptive- title to the share in suit. Issues were raised,when the case came on for hearing, involving pleas of res judicataand prescriptive title. The learned District Judge held that thequestion of the apellant's diga marriage was res judicata. He didnot . go, meanwhile, into the question of prescriptive title. Againstthis decision the present appeal has been brought. Although thepoint which formed the mainstay of the appellant’s argument beforeus, namely, that there is no room for a plea of res judicata in thepresent case, inasmuch as the cause of action on which it is basedis not the same as the cause of action in C. R.t Kegalla, No. 7,627,was touched upon in the argument in the District Court, and mayperhaps be taken to be alluded to in the first part of paragraph 6 ofthe petition of appeal, the main ground on which the applicabilityof the plea of res judicata was denied, both in the District Courtand in the petition of appeal, was that the decision in C. R., Kegalla,No. 7,627, had been pronounced on the strength of a derisory oathtaken by the respondents who were added defendants in thatcase, and one of their witnesses. The appellant’s counsel did notpress jthis point upon us at the hearing of the appeal, and in myopinion, it is clearly bad. I see no reason why a judgment found ■on a derisory oath, which has been regularly administered andtaken, should not operate ,as res judicata. Moreover, it appearsfrom the record of the proceedings in C. R. Kegalla. No. 7,627,that the derisory oath, to which I have just referred,- related onlyto the question as to whether the plaintiff in that action, who isthe present appellant, had taken a share of the produce of the fieldthere in dispute. The Commissioner of Requests had before himindependent evidence showing that the plaintiff had been marriedout in diga. The plaintiff called no evidence in rebuttal. Underthese circumstances, the Commissioner of Requests was entitledto hold, as he did hold, on the evidence before him, that the digamarriage had been established.
Before dealing with the main problem that has to be solved inthe present case, I should perhaps note in passing another objectionwhich, although not taken, so far as I can see, either in the DistrictCourt or in the petition of appeal, was urged upon us by theappeUant’s counsel. He pointed out that at the hearing of the caseC. R., Kegalla, No. 7,627, the present respondents had suggestedan issue as to the value of the appellant’s share of the land indispute, with a view to showing that the case fell beyond thejurisdiction, of the Court of Requests, and that the Commissionerhad refused to accept this issue on the ground that it had not beenraised in the pleadings.. The present appellant, however, in her
( 68 )
Renton J.
Dingiri
Menikav.
Punchi
plaint in C. R., Kegalla, No. 7,627, had valued the share claimed Jon. 24*1910
in the land in question at Bs. 100. 1 do not think that she ought Wood
now to be allowed to go back on that valuation.
I proceed to consider the argument that a plea oi res judicatacannot be supported in the present case, on the ground that its
subjedt-matter is different from that which was in litigation in Mahatmaya
C. B., Kegalla, No. 7,627. The parties to the two cases are thesame. The present appellant is plaintiff in both, and the presentdefendants, respondents, are added defendants in G. R., Kegalla,
No. 7,627. The Court of Bequests, assuming that the share indispute was properly valued at Bs. 100, had undoubted jurisdictionto try the case. The fact that it would not have had jurisdictionto try an action brought for- declaration of title to the lands nowin suit is irrelevant, so long as it was competent to adjudicateupon the issue actually submitted to it. The weight of Englishauthority supports the view that, when a question of title has tobe, and is, decided by a Court of competent jurisdiction withreference to the subject-matter in dispute, such decision or theultimate decision on appeal from it is final, and the question oftitle becomes a res judicata as between the parties to the suit,although it may have the effect of determining the title to an estateor estates the value of which exceeds the jurisdiction of the Court inwhich the suit was instituted (see Flitters v. Allfrey1 and Priestmanv.Thomas2).
The Indian authorities, in which a contrary view has been takenof the meaning of the words “ Court of competent jurisdiction ” insection 13 of the old Code of Civil Procedure (see Misir Baghobardialv. Sheo Baksh Singh3 and Bun Bahadur Singh v. Lucho Boer4).seem to me to turfi on the provisions of that section, and to haveno application in Ceylon, where no corresponding enactment exists.It results both from English and from Indian authorities (see. Outramo. Morewoodf Krishna Behari Boy v. Bunw'ari LaU Boy* and ChandKour v. Pariah Singh1) that for the purpose of determining whether ornot two causes of. action are the same, we have to look not to themere form in which the action is brought, but to the grounds of theplaint, and to the media on which the plaintiff asks for judgment.I do not think that, even if sections 34, 207* and 406 of the CivilProcedure Code were exhaustive of the law of res judicata of Ceylon,there is anything in them necessarily to exclude the application ofthe principle laid down in the English and Indian decisions justreferred to, and see Endris v. Adrian Appu,* .C. R., Kegalla,No. 3,657,® per Lawrie J.; C. R. Kandy, 3,044.10 But apart from
1 (1874) L. R. 10 C. P. 29.
(1884) 9 P. D. 70, 210.
8 (1882) 1. L. R. 9 Cal, 439.
8 (1884) J. L. R. 11 Cal. 301.
(1803) 3 East's Reports 346, 362.
(1875) I. L. R. real. 144.
(J***) I. L .R. 16 Cal. 102.
(19(15) 11 N. L. R. 62, 63 ; S. C. 172.
(S. G. Min., Dec. 13,1900.
“ S. C. Min., March 12, 1906,
( 64 )
Jem. 24,2910 that, I do not think that the sections in question should be held toWooi> be exhaustive of the law of res judicata in this Colony (see Mohamed• Renton J. Gassim v. Sinne Lebbe Maricar1). In C. R., Kegalla, No. 7,627?Dingiri the appellant claimed one land by paternal inheritance. In theMenika y. present case the lands claimed are different, but they belong toMahatmaya the same inheritance, and are clailned by the appellant in the sameright. The right in which both claims are put forward has alreadyformed the subject of adjudication in C. R., Kegalla, No. 7,627,and, in my opinion it cannot again be asserted in the presentaction. There is nothing in the definition of “ cause of action Min the Civil Procedure Code which can exclude the application insuch cases as the present of the salutary maxim nemo debet' bisvexari pro una et eadem causa.
I would dismiss the appeal with costs. The case will go back forthe trial of the issue of prescriptive title. I desire to add that 1do not see any reason why in this case an appeal should have beentaken on the issue as to the diga marriage alone. The appellantshould have completed her case, and then, if so advised, appealedagainst the final judgment, in whole or in part, according as it wasor was not adverse to her.
Appeal dismissed.
1 (1909) 12 N. L. R. 184.