004-NLR-NLR-V-63-SATHUK-Appellant-and-LAYAUDEEN-and-others-Respondents.pdf
BASNAYAKE, C.J.—SalhuJc v. Layaudeen
95
Present : Basnayake, C.J., H. N. G. Fernando, J.,
and T. S. Fernando, J.
SATHUK, Appellant, and LAYAUDEEN and others, Respondents
8. C. 452—D. C. Colombo, 7521jL
Res judicata—Estoppel by judgment—“ Same parties ”—Privity between father andson—Civil Procedure Code, s. 207—Evidence Ordinance, s. 190.
On an issue of res judicata, a decree against the father in respect of the sameproperty binds the son when the latter bases his claim on the same deed onwhich his father based his claim.
i^^-PPEAL from a judgment of the District Court, Colombo.
On 27th May 1927 Saffra Umma gifted certain property to thedefendants, who were her grandchildren. On 4th February 1928 sherevoked the gift and gifted the property to her son Sathuk. On 27thSeptember 1943 the defendants sued their paternal uncle, Sathuk, incase No. 2997 for a declaration that they were entitled to the land, andjudgment was entered in their favour. After Sathuk died, the plaintiff,who was Sathuk’s son, sued the defendants for a declaration of title inrespect of the same property. He based his claim on the very deed onwhich his father relied incase No. 2997. The defendants pleaded thatthe decision in Case No. 2997 was res judicata.
E. B. Wikramanayake, Q.C., with Nimal Senanayake, for Plaintiff-Appellant.
Ranganathari, with S. Sharvananda, for Defendants-Respondents.
Cur. adv. vult.
July 22, 1960. Basnayake, C.J.—
This appeal was first heard by my brethren de Silva and H. N. G.Fernando. As they were unable to agree it has been re heard before abench of three Judges.
The relevant facts are not in dispute and are as follows : The plaintiff-appellant Mohamed Sathuk Mohamed Huzahir also known as MohamedHuzahir Sathuk (hereinafter referred to as the plaintiff), son of IdroosLebbe Marikar Mohamed Sathuk (hereinafter referred to as Sathuksenior) who died on 11th January 1946, sought by this action againstthe defendants a declaration that he is the owner of the land and buildingsbearing assessment No. 67 Messenger Street, Colombo, described in the
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BASNAYAKJ2, C.J.—Sathvk v. Layattdeen
schedule to the plaint and asked for an order of ejectment therefromagainst them. Saffra Umma the paternal grandmother of the plaintiffby deed No. 1428 attested by Noor Hadjiar Mohamed Abdul Cader,Notary Public, on 27th May 1927 gifted to the five defendants, who areher grand-children, the premises in question subject to a fideicommissumin favour of their children, reserving her life interest. At the time of thegift she was their curatrix and guardian and administratrix of theirfather’s estate. The gift was accepted by their mother. Sathuk seniorjoined in the deed as their paternal uncle and expressly renounced allhis rights to the premises, in these words:
“ And the said Idroos Lebbe Marikar Mohamed Sathuk who is thepaternal uncle of the said donees doth hereby renounce all and everyright interest or claim whatsoever which he may or shall have inrespect of the said premises hereby gifted adverse to them and in theevent of any question arising as to the validity of these presents byreason of the said donees not being put into possession of the saidpremises according to law the said Idroos Lebbe Marikar MohamedSathuk hereby agrees not to take any objection whatsoever to hisadvantage or take any other steps whatsoever detrimental to theinterests of the said donees in respect of the premises hereby conveyed.”
At the time of the gift the donees were 13, 12, 10, 7, and 5 years of agerespectively. By deed No. 1483 attested by the same Notary on 4thFebruary 1928 Saffra Umma revoked the earlier gift to her grand-childrenand gifted the premises to her son Sathuk senior on the following terms :—
“ do hereby grant convey set over and assure by way of gift absoluteand irrevocable (subject nevertheless to the terms conditions andrestrictions hereinafter contained) unto my said son Idroos LebbeMarikar Mohamed Sathuk his heirs executors and administrators allthat and those the aforesaid premises in the Schedule hereto fullydescribed together with all rights privileges easements servitudesadvantages and appurtenances thereto belonging or appertainingor in anywise held used or enjoyed therewith or reputed or knownas part, parcel or member of the same or any part thereof and all theestate right title interests property claim and demand whatsoever ofme the said donor into upon or out of the same.
“ To have and hold the said premises hereby conveyed or intendedor expressed so to be with the appurtenances thereof which are ofthe value of rupees five thousand (Rs. 5000/-) unto him the said IdroosLebbe Marikar Mohamed Sathuk his heirs executors and administratorssubject nevertheless to the terms conditions and restrictions followingthat is to say that the said premises shall not be sold mortgaged orotherwise alienated by the said Idroos Lebbe Marikar MohamedSathuk nor shall the rents profits and income thereof become in anyway liable to be seized attached or sold for any of his debts or liabilitieswhatsoever nor shall the same be leased out for any term or period of
BASNAYARE, C.J.—Sathuk v. Layaudeen
27
more than three years at a time but he shall be at liberty to recoverreceive and enjoy and after his death the said premises shall go to anddevolve upon his son Mohamed Sathuk Mohamed Huzair subject to thesame conditions as hereinbefore set out. Provided nevertheless thatin the event of the said Mohamed Sathuk Mohamed Huzair attainingthe age of thirty years the said premises shall vest in him absolutely.’*
Saffra Umma died on 6th December 1929. On 27th September 1943the present defendants (hereinafter referred to as the defendants) suedSathuk senior in D. C. Colombo case No. 2997 {hereinafter referred toas case No. 2997) for a declaration that they are entitled to the premisesin dispute. They pleaded the deed in their favour and claimed thatthey were entitled to the land by virtue of it and alleged that he was inunlawful possession of the premises. Sathuk senior claimed that he wasin lawful possession by virtue of the deed in his favour. The court gavejudgment against him holding that the earlier deed was valid and thatthe defendants were entitled to possession, and passed a decree in thefollowing terms :
“ It is ordered and decreed
that the plaintiffs be and they are hereby declared entitled to
the premises in the schedule hereto described,
that the defendant be ejected from the said premises, and
that the plaintiffs be restored to possession of the said premises.”
Sathuk senior appealed against that decree but died while theappeal was pending. On 23rd August 1948 his widow who had obtainedletters of administration of her deceased husband’s property moved thatshe be substituted as defendant as legal representative of the deceasedand was substituted accordingly. The appeal was thereafter prosecutedby her. This court affirmed the decision of the District Court and shefurther appealed to the Privy Council which also on 12th January 1953affirmed the decree of the original court. In February 1955 in executionof the decree in their favour the Fiscal delivered possession of thepremises to the defendants in the manner prescribed in section 324 of theCivil Procedure Code. On 9th June 1955 the plaintiff instituted thisaction, basing his claim on the very deed on which his father unsuccessfullysought to repel the action by the defendants. He claimed that his fatherwas in possession till his death and that thereafter he possessed till 28thFebruary 1955. That was the date on which the defendants had himevicted by process of law after the successful conclusion of their long-drawn-out litigation against his father. The defendants pleaded that thedecision in case No. 2997 is res judicata and that the questions decidedtherein cannot be reagitated between the present plaintiff and thedefendants. That issue was decided as a preliminary issue of law by thelearned District Judge who held that the decree in case No. 2997 is
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"BASNAYAKE, C.J.—StUhuh v. Layaudeen
res judicata and binds the parties to this action. This appeal is from thatdecision. It is well settled that a decree in an action binds not onlythe parties who are named in the action but also their privies. As thedefendants are parties whose names appear on the record in both actions,but as the plaintiff was not a party to case No. 2997, the only questionthat arises for decision is whether the plaintiff is a privy of his father thedefendant to that action. The plaintiff's claim is based on deed No. 1483of 4th February 1928 on which his father unsuccessfully claimed thepremises in case No. 2997.
As pointed out in my judgment in S. C. 60/D. C. Kurunegala 12263—S. O. Minutes of 22nd June 1960*—our Jaw of res judicata is to be foundnot only in our statutes such as the Civil Procedure Code and EvidenceOrdinance but also in our common law, and where questions of estoppelby judgment arise for decision recourse may be had in appropriate casesto the English law by reason of section 100 of the Evidence Ordinance.Here we are concerned w ith the question whether the decree against thefather in respect of the same property binds the son wTho bases his claimon the same deed on which his father based his claim. Turning toour common law first we find that the subject of res judicata is discussedby Voet under two heads—Res Judicata (Bk XLII Tit. 1) and the Excep-tion of Res Judicata (Bk XLIV Tit 2). In the instant case we are con-cerned with the latter aspect of the subject oi res judicata. Voet statesthat the three requisites for res judicata are “ same persons, thing andcause.” He states ; “ There is nevertheless no room for this exceptionunless a suit which had been brought to an end is set in motoin afreshbetween the same persons, about the same matter and on the samecause for claiming, so that the exception falls away if one of these threethings is lacking.” In discussing the meaning of “ same person ” (ins. 5 Gane Vol. 6 p. 558) Voet says : “ A deceased and his heir, a principaland his agent, a free town and its manager, an insane person or a soldierand his curator, a wrard and his guardian, and a father and the son of hishousehold are in civil law the same person Huber (Gane’s translationof Jurisprudence of My Time, Vol. II p. 338 s. 4) also deals with this topicof “ same persons ” thus But to justify this exception, it is necessarythat the persons should be the same, the things the same and the causesof action the same. If one of these things is different, then it is fairthat a new action should be allowed, since it cannot be said that thesame question has been previously disposed of. Testator and heir,principal and agent, purchaser and seller, owner and successor in owner-ship, debtor and surety, and also the first members of a family and theirsuccessors, entitled to one and the same fideicortimissum, though notheirs of each other, are considered as the same persons ”. The examplesof “ same persons ” given by both Voet and Huber are meant to be illus-trative and not exhaustive.
* ( 762 X. L. B. 193.
BASNAYAKF., CJ.—Sathuk v. Layaudeen
29
Voet makes his view dear in his discussion of the topic of Compromisea passage from which is cited by Jayewardene A.J. in Charles v. Nono~hamy l. As the Latin text is cited in that report I shall quote the Englishfrom Gane’s translation (Vol. I p. 460)—
“ Finally we may add that a judgment pronounced against a fiduciarywill also damage a fideicommissary, unless the adverse judgment hasoccurred through the fault of the fiduciary; whether the suit wasraised against the fiduciary before restoration in regard to a particularitem or to the whole inheritance. The object is to prevent the ov ner-ship of property from being otherwise in uncertainty, and the weightof res judicatae from being uncertain; as is fully explained by theauthor cited below. If then fiduciary can damage fideicommissaryby payment, by expenses bona fide incurred, by suit bona fide pursuedand by notice given to himself, there is no reason why he should notbe able to prejudice him also by bona fide compromise free from favouror corruption ; especially when we remember that compromise just asmuch as res judicata is furnished for the disposal of law suits, andthat its weight is not less than that of res judicata**
From the foregoing it would appear that there was no doubt in theminds of the Roman-Dutch Law Commentators that a decision againstthe fiduciary in respect of the same fideicomtnissum was res judicata asagainst the fideicommissary. The view taken in Yusoof v. Rahimath 2finds no support in Voet or any other writer on Roman-Dutch Law.The view of Voet and Huber has been followed in Scotland also, for infootnote (e) to Erskine’s Institutes of the Law of Scotland (1871 Ed.)Vol. II p. 1137 it is stated on the authority of certain decided Scottishcases cited therein “ A judgment in an action bona fide litigated by anheir of entail is res judicata in questions with succeeding heirs ”. It seemsto me that the view which both Bertram A.C.J. and Shaw J. took inYusoof v. Rahimath (supra) stems from the use of such expressions asfc claiming under ”, “ claiming through ”, or “ derived from ” in discuss-ing the question of what classes of persons are bound by a decree. Inthat case Bertram A.C.J. as he then was says “ These children are notclaiming through Abdul Cader, but on the deed.”, and Shaw J. adds“ They do not take by inheritance from him, but under a separate titleunder the deed of July 22, 1871 ”. A fideicommissary does not claimunder the fiduciary nor does he claim through him or derive title fromhim. By virtue of the terms of the instrument creating the fideiccm-missum he succeeds to the property when his turn comes. But thecircumstance that he does not claim “ under ” or' “ through ” his pre-decessor or “ derive title from ” him does not enable him to reagitate.questions decided in actions against his predecessor under the samefideicommissum in respect of the fideicommissary property. In our law
1 (1923) 25 N. L. R. 233 at 236 and 237.* (1918) 20 N. L. R. 225 at 240.
!•J. N. B 17830 (6/61)
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BASWAYAKR, C.J.—Sathuk v. Layaudeen
he is the “ same person ” or the “ same party ”, in the language of section207 of the Civil Procedure Code, as the actual person or party to thelitigation and is in privity with him. This view is not only in keepingwith that of the Roman-Dutch Law Commentators but it gives effect toprinciples expressed in the maxims res judicata pro veritate accipitur andreipublicae interest ut sit finis litium. It has been adopted in Charles v.Nonohamy1 and Cader v. Marikkar2. In my opinion the conflict betweenTusoof v. Rahimath (supra) and Cader v. Marikkar (supra) must beresolved in favour of the latter.
As pointed out above and also in my judgment in S. C. 60/D. C. Kuru-negala 12263—S. C. Minutes of 22nd June 1960 (supra)—if privity isconfined to persons claiming “ through ”, “ from ” or “ under” the actualparty against whom judgment has been given the operation of res judicatawould be unduly hampered and the principles contained in the maximswhich are the fons et origo of this doctrine would be set at nought. Inthe Kurunegala case above referred to my brother Sansoni and I heldthat the successor of the viharadhipati of a temple was bound by ajudgment against his predecessor on the ground of privity. The Romanand Roman-Dutch Law concept of “ same persons ” or “ same parties ”is not different from the present day concept of privity in res judicata.Privity is a mutual or successive relationship to the same rights. Thenomenclature of “ privy ” is useful in expressing in one word the relation-ship which makes a decree binding on persons other than those who, arenamed as parties to an action. Halsbury (Vol. 15 pp. 196-197)elaborates Coke’s classification of privies thus : “(1) privies in blood, asancestor and heir, (2) privies in law, as (formerly) tenant by the courtesyor in dower and others that come in by act in law, as testator and executor,intestate and administra tor ; bankrupt and trustee in bankruptcy ; (3)privies in estate, as testator and devisee ; vendor and purchaser ; lessorand lessee ; a husband and his wife claiming under his title and e converso ;successive incumbents of the same benefice ; assignor and assignee of abond ; the servant of a corporation defending an action of trespass at thecost of his employers and justifying under their title, and the corporationitself.” This concept of “privy” appears to have found its way intothe law of South Africa as well, for Hofmeyer A.J. says in the case ofScharf N. O. v. Dempers d: Co. 3: “ The rule is that a judgment inter partesraises the estoppel of res judicata against the parties and their privies ”.
The learned District Judge is in my view right. The appeal is dismissedwith costs.
H. N. G. Fernando, J.—I agree.
T.S. Fernando, J.—I agree with the judgment of my Lord, the ChiefJustice.
Appeal dismissed.
i (1923) 25 AT. L. R. 2332 (1942) 43 N. L. R. 387.
9 (1955) 3 S. A. L. R. 316 at 31S.