EKNELLIGODA KUMARIHAMY ,Appellant, and MEDANKARA THERO, Respondent

139-NLR-NLR-V-44-EKNELLIGODA-KUMARIHAMY-Appellant-and-MEDANKARA-THERO-Respondent.pdf


1943
Ekneligada Kumarihamy and Medankara Thero.Present: Howard C.J. and Keunernan J.
529
EKNELLIGODA KUMARIHAMY, Appellant, and MEDANKARATHERO, Respondent.
335—D. C. Ratnapura, 6,828
Interpleader action—Plaintiff retained till conclusion of case—Decision binding
on all parties—Res judicata—Claim for annuity—Prescription.
Where, in an interpleader action, till parties have been retained untilthe final disposal of the action under section 631' (b) of the Civil ProcedureCode, the finding is binding not only on the defendants but also on theplaintiff and operates as res judicata in a subsequent action betweena defendant and the plaintiff.
All the admitted facts which formed the basis of the interpleade-■ action and the decision on the question as to the person entitled toreceive the money are binding upon the parties.
A claim to recover an annuity due under a will is prescribed in threeyears.
PPEAL from a judgment of the District Judgeof Ratnapura.The facts appear from the argument.
H. V. Perera, K.C. (with him- A. R. H. Canekeratne, K.C., U. A.Jayasundere and P. Malalgoda), for the defendant, appellants—,
The plaintiff and defendant in the present case were the third defendantand plaintiff respectively in the interpleader action No. 5,09ft In thelatter action it was held by Court that the present plaintiff was entitledto the sum brought into Court by the present defendant as stakeholder.The learned District Judge has misdirected himself on the law in holding.that the decree in the interpleader action operates as res judicata againstdefendant in respect of issues that arise in the present case. In theinterpleader action the defendant was not a party to any dispute but was;merely a stakeholder and looker-on. She was only incidentally orcollaterally interested. She was formally a party on the record but nota party in the adjudication. It cannot even be said that there was anyadmission by the stakeholder such as will operate as res judicata, actualor constructive, within the meaning of section 207 of the Civil ProcedureCode. Nothing is res judicata except between persons who were at issueon the occasion when the thing was adjudged—Mariammai v. Pethru-pillai1; Hukm. Chand on- Law of Res Judicata pp. 56,170; section 628of the Civil Procedure Code. A test as to whether a person is a party toa case is to see whether he can appeal to the Supreme Court—MalhiKunwar v. Imam-ud-din’; Roweena Umma v. Rahumma Umma Astakeholder is not an aggrieved party and cannot appeal. .
No plea of estoppel by representation can be raised on behalf of theplaintiff. Such a plea can arise only in respect of a particular thingregarding, which a representation was made. The sum of money in thiscase is not the sum which was the subject-matter of the interpleader
action.
1 {1913) 21 N. L. R. 200.11. L. R. 27 All. 59 at 61.
(1940) 41 N. L. R. 522.
A
530 KEUNEMAN J.—Ekneligoda Kumarihamy and Medankara Thera.
The will in question in this case makes an absolute bequest to thedefendant and does not impose a binding-obligation on her to pay anymoney to the plaintiff. Even if it creates any such obligation thebeneficiary is not the plaintiff but the priest who was officiating at thetime of the execution of the will, namely, Sumanatissa.
Plaintiff cannot, at any rate, claim any sums which fell due three yearsbefore the date of action. The will does not create any charitable trust.Section 10 of the Prescription Ordinance (Cap. 55) is applicable.
N. Nadarajah, K.C. (with him E. B. Wikremanayake and H. Waniga-tunge) for the plaintiff, respondent.—
The plaintiff in an interpleader action is a party and has a vital interestin the case. He seeks to be discharged from any obligation to the wrongparty. The rule of res judicata extends to all matters in issue in a case,whether they are formally put in issue or not; the points agreed to andadmitted are also caught up. The decree in case No. 5,098 is bindingon the defendant in the present case, and he cannot deny liability to payannuities to the plaintiff in accordance with the will. See Hoystead v.Commissioner of TaxationThevagnanasskeram v. KuppammalSpencer Bower on Res Judicata, p. 115; Hendrick et al. v. Silva"; SinneLebbe Hadjiar v. Ahamadu Lebbe Natchia'; Pinhamy v. MaddumaBanda"; Samichi Pieris°; Banda v. Banda". The right to appeal is nota necessary element in the doctrine of res judicata ; a judgment entered ofconsent, for example, creates an effective estoppel by res judicata, althoughthere is no right of appeal from it—Menik Etana v. Punchi Appuhamy";Sinniah v. Eliakutty
The conditions imposed in the will are sufficient to create a charitabletrust. See VoZ. 4, Laws of England (Hailsham) pp. 161, 163; Lewin onTrusts (1928), p. 57. Assuming that there was no charitable trust,section 6 of the Prescription Ordinance would be applicable and the periodof prescription would be six years.
H. V. Perera, K.C., in reply.—The true scope of the interpleader actionis seen in Order, 57 of the English Annual Practice. The plaintiff isstyled as applicant in English practice.
Cur. adv. vult.
October 21, 1943. Keuneman J.-—
This is a claim by the plaintiff for the sum of Rs. 9,525, namely, fromthe month of August, 1929, up to February, 1940, which it was allegedthat the defendant was enjoined to pay to the. plaintiff by the will of
J.W. Ekneligoda, who died in. 1919. Under this will (PI) of May 23,1919, executed a few days before his death, the deceased bequeathed and•devised to his Wife, the present defendant, the whole of his residuaryestate, movable and immovable, but “ ordained ” that the defendantshould pay a sum of Rs. 75 per month to “ the incumbent priest ofKandangoda Temple ”, the payment to commence from June, 1921.The defendant in obedience to the injunction in the will appears to have
1 L. R. (1926) A. C. 155 at 165.'5 (1924) 2 Timer of Cevlon 179.
(1934) 36 N. L. R. 337 at 343.• (1913) 16 N. L. R. 257.
(1917) 4 C. W. R. 399.I(1941) 42 N. L. R. 475.
&913) 2 Mat. G. 128.'* (1941) 21 C. L. W. 14.
8 (1932) 34 N. L. R. 37.
KEUNEMAN J.—Ekneligoda Kumarihamy and Medankara Thero. 531
paid the monthly sum of Rs. 75 to Sumanatissa, who was at the time thechief resident priest in the Kandangoda Temple, but as dispute aroseas to the person entitled to be the incumbent of Kandangoda Temple,the present defendant instituted an interpleader action, makingSumanatissa the first defendant, Sobita the second defendant, and thepresent plaintiff the third defendant. Action was filed on July 1, 1929,and the sum of Rs. 4,410, being the amount payable from April 1, 1924,to July 1, 1929, was brought into Court. The action was D. C. Ratna-pura, No. 5,098 (P 2 and P 2A to P 2D).
In the plaint in that action, the present defendant set out the terms ofthe will P 1, and stated that the will was duly proved. She also referredto an agreement, No. 3,724, dated January 10, 1920, whereby she allegedthat out of the sum of Rs. 75 a month, Rs. 70 a month was payable byher. She further alleged that each of the defendants claimed to be theincumbent of the said temple adversely to each other, and that her onlyinterest was that of a stakeholder. In her prayer she claimed, inter alia: —
that the defendants be required to interplead against each other
concerning their claims,
that some defendant be authorised to receive payment of the
money brought into Court and future moneys becoming payable,
and
that upon paying the same to such defendant the plaintiff be
discharged from all liability to any of the defendants.Sumanatissa, who was the first defendant, filed no answer and tookno interest in the proceedings. The second and the third defendants(the present plaintiff) filed answer and were represented at the trial,and the present defendant was also represented at the trial. The decreein the case was as follows : —
“ It is ordered and decreed that the 3rd defendant ” (i.e., the presentplaintiff) “be and he is hereby declared the rightful incumbent ofKandangoda Temple, and as such, it is directed that the money in depositbe paid to him. ”
It may be noted that there is no order as to the future moneys becomingpayable, but it is significant that the present plaintiff was held entitledto receive the money brought into Court as the incumbent^of KandangodaTemple. In substance, therefore, the prayer of the present defendantwas granted, and the proper person to whom payment was to be madewas determined.
In the present action the plaintiff pleaded that the decree in D. C. 5,098was res judicata between himself and the defendant. The District Judgeupheld that plea, and the main question argued before us was whetherthat finding was correct.
Mr. Perera for the appellant argued that in the case of an interpleaderaction -the plaintiff is not at issue with the defendants, and that issueonly arises between the defendants. No doubt, under section 628 of theCivil Procedure Code, such action can be brought by a person “ whoseonly interest therein is that of a mere stakeholder,- and who is ready torender it to the right owner”, but the action is instituted “for thepurpose of obtaining a decision as to the party to whom the payment
532KEUNEMAN J.—Ekneligoda Kumarihamy and Medankara Thero.
should be made or the property delivered, and of obtaining indemnityfor himself No doubt the actual contest is restricted to the defendants,and the plaintiff impliedly agrees to accept the decision of the Court asto the proper person to whom the money should be paid or the propertybe delivered. But I do not agree that there is no matter in issue betweenthe plaintiff and each of the defendants, for the plaintiff does raise aquestion as to the title of each of the defendants, although he admitsthat one of them is the person entitled. In the vast majority of suchactions no further controversy is likely to arise between the plaintiffand any of the defendants, and accordingly under section 631 (a) theCourt is given the power, at the hearing, td discharge the plaintiff, whohas brought the money or the thing to Court, from all liability to thedefendants, award him his costs, and dismiss him from the action. Butunder section 631 (b), where justice or convenience so require, the Courtmay retain all parties until the final disposal of the action. It is clear undersection 631 (c) that the Court has to “adjudicate upon the title to thething claimed ” ; and where all parties have been retained in the case,
I am of opinion that the finding is binding not only on the defedantsbut also on the plaintiff.
To turn to the facts of this particular case, it is clear that the presentdefendant, submitted to the court in case No. 5,098 the very questionfor determination which arises in this case, and that she had a stronginterest in the determination of the case which would govern her ownfuture attitude to the various defendants. She was not only a partyto the case, but herself participated in the trial. In the, circumstances,it would be, I think, contrary to all legal principle that she should beallowed to reagitate this matter, or that any of the unsuccessful defendantsshould be allowed to reagitate the matter against her. In this connectionI may refer to the judgment of Lord Shaw in Hoystead v. Commissionerof Taxation':—',,
“In the opinion, of their Lordships it is settled, first, that theadmission of a fact fundamental to the decision arrived at cannot bewithdrawn and a fresh litigation started, with a view of obtaininganother judgment upon a different assumption of fact; secondly, thesame principle applies not only to an erroneous admission of a funda-mental fact, but to an erroneous assumption as. to the legal qualityof that fact …. If this were permitted litigation would
have no end, except when legal ingenuity is exhausted
Thirdly, the same principle—namely, that of setting to rest, rights oflitigants, applies to the case where a point, fundamental to the decision,taken or assumed by the plaintiff and traversable by the defendant,has not been traversed.”'
I regard this as authority in the present case for the proposition thatall the facts admitted in the plaint in D. C. Ratnapura, No. 5,098, whichformed the basis of the interpleader action, must be held to be bindingupon the plaintiff and the defendants in that case. The question referred'was as to the person entitled to receive payment, and the decision onthat point also is binding upon the parties, and eaeh of the parties isestopped from denying the correctness of that decision.
1 L. R. (1926) A. G. 155 (Privy Counrif) p. 165.
Wijesekara v. Assistant Government Agent, Matara.533
One other question remains for determination, and that is the questionof prescription- The District Judge held that the claim of the plaintiffwas in the interests of a charitable trust, and that it could not be heldbarred by prescription—see section 111 of the Trusts Ordinance (Cap. 72).I do not agree with this finding. There is nothing in the will P 1 thatimposes a charitable trust upon the incumbent of the temple, thoughpossibly the testator may have expected such incumbent to apply themoney not for himself but for the temple. TheTe is also no evidencewhatever that the defendant is a trustee of a charitable trust. Section 10of the Prescription Ordinance (Cap. 55), will accordingly apply, and theplaintiff can only claim as regards the annuity for three years beforeaction brought. The amount decreed will accordingly be varied, anddecree entered for the plaintiff for the sum of Rs. 2,520 up to the date ofthe plaint, and for Rs. 70 a month thereafter up to the date of this decree,and at the same rate thereafter during the lifetime of the defendant.
The appellant is entitled to half the costs of this appeal, but therespondent is entitled to retain the order for costs in the District Court.Subject to these variations, the appeal is dismissed.
Howard C.J.—I agree.v
Judgment varied.