Sockalingam Chetty and Kalimuttu Chatty.
1943Present: Soertsz S.P.J. and Keuneman J.
SOCKALINGAM CHETTY, Appellant, and KALIMUTTUCHETTY, Respondent.
350, 351 and 352-—D. C. Colombo, 1,839 and 1,871.
Res judicata—Action dismissed, parties having settled dispute—Statutory baragainst fresh action—Decree of dismissal—Not a registrable instrument—Registration of Documents Ordinance (.Cap. 101) s. 8(b)—Civil
Procedure Code, s. 406.
Where an action for declaration of title to land is dismissed, the partieshaving settled their dispute, the dismissal would operate as a statutorybar against the institution of a fresh action upon the same cause ofaction.
Such a statutory bar is binding on parties as well as their privies.
Held, further, that a decree entered in such circumstances is notregistrable instrument within the meaning of section 8 (b) of the 'Registra-tion of Documents Ordinance.
HESE were appeals in two actions, which were .consolidated for thepurpose of argument. Case No. 350 was a partition action
instituted by one Thiagarajah for the partition of two lands. The othercase No. 351-352 was instituted by one Kalimuttu for a declaration thatThiagarajah held the two lands in the partition case and two other landsfor his benefit and for an order directing Thiagarajah and his vendors toexecute a valid deed conveying title to him in respect of these four lands/The learned District Judge entered decree in favour of the .plaintiff incase No. 351-352 in terms of the prayer and dismissed the partition actionNo. 350.
H. V. Perera, K.C: (with him N. E. Weerasooriya, K.C., D. W. Fernandoand F. W. Obeyesekere), for the plaintiff, appellant in S, C. No. 350, the3rd defendant, appellant in S. C. No. 352 and the 3rd defendant, res-pondent in S. C. No. 351—In regard to case No. 351-352, the action fordeclaration of trust must fail because section 93 of the Trusts Ordinance(Cap’ 72) is inapplicable to the facts of the present case. The transferdeed of June 13, 1935, in favour of Kalimuttu was void being obnoxious toSection 17 of the Partition Ordinance. Nor can the plaintiff (Kalimuttu)rely bn the agreement in deed No. 841. That agreement too was voidunder section 17 of the Partition Ordinance. Even, if it was valid,according to its very terms, that agreement expired in one month.Thiagarajah bought the properties in question from Sockalingam andAsupathy long afterwards. It cannot therefore be said that at the time
Sockalingam Chetty and Kalimuttu Chetty.
of thart sale there was an “ existing ” contract of which specific per-formance could be enforced. A similar question arose in Paiva v.Marikar et. al The convenants in the deed for further and betterassurance of the title conveyed do not help the plaintiff. This case canbe easily distinguished from that of Hewawasan v. Gunasekere
To come now to case No. 350, the District Judge was wrong in holdingthat the decree in the old case No. 49,758 operated as res judicata in thepresent case. The order “ action dismissed ” in case No. 49,758 had theeffect of no more than a termination of the proceedings. It had not thesame consequences as a termination of trial after adjudication of rightseither by trial or of consent. Nothing is res judicata which has not beenin issue between the parties. Further, the statutory bar imposed bysection 406 of the Civil Procedure Code is a personal bar and cannotbind the plaintiff in this case. That bar cannot be elevated to the rank ofres judicata. There are three kinds of bars conceivable in law, imposed
by the general doctrine of res judicata, (2) by the extension of thatdoctrine in section 207 of the Civil Procedure Code which is constructiveres judicata and which is confined to the same cause of action, and (3)by a statutory bar such as is enacted in section 406 of the Civil ProcedureCode. None of these bars stands in the way of the plaintiff in thepresent case.
The failure to register the decree entered in case No. 49)758 removesthe obstacle to our title. That decree was a registrable instrument.Under section 8 of the Registration Ordinance (Cap. 101) not only adecree creating a right affecting land but also one purely declaring such aright is registrable.
A. Rajapakse for the first and second defendants, appellants inS. C. No. 351 and the first and second defendants, respondents in S. C.No. 352.
N.Nadarajah, K.C. (with him W. S. de Sararn and Kingsley Herat) forfirst to eighth and tenth defendants, respondents in S. C. No. 350 and theplaintiff, respondent in S. C. Nos. 351 and 352—On the question ofres judicata, a statutory bar is created by the combined effect of sections33, 34, 207 and 408 of the Civil Procedure Code. All these sections arediscussed in Annamaly Chetty v. Thornhillz. The decree of dismissal incase No. 49,758 must operate as res judicata—Hukm Chand on ResJudicata p. 128; Nicholas v. Aspharet.al‘;Perera v.Perera et. al“;
Menik Etana v. Punchi Appuhamyet.al°;Fernandov. Perera ’. It
binds not only the parties but also their privies—Banda v. Naccire et..al‘;Chinniah v. Suppramaniam et. al “.
The decree in case No. 49,758 isnot aregistrableinstrument. A
decree dismissing an action cannotbesaidto createor declare title.
Kven assuming that it is registrable, our claim is not based on the decree,and no question of adverseness arises. See Mohamad Ali v. Weerasuriya'".
1 (1936) 39 N. L. R. 255.'6 (1941) 21 C. L. W. 14.
(1926) 28 N. L. R. 33.’ (1923) 25 N. L. R. 197.
3 (1932) 34 N. L. R. 381.8 (1923) 24 N. L. R. 425.
1. L. R. (1896) 24 Cal. 216.8 (1929) 7 Tints 68.
(1931) 32 N. L. R. 197.10 (1914) 17 N. L. R. 417.
SOERTSZ J.—Sockalingam Chetty and Kalimuttu Chetty.
As regards case No. 351-352, if the transfer deed of June 13, 1935, isvoid, we can fall back on the agreement embodied in deed No. 841.That agreement is not prohibited by section 17 of the Partition Ordinance.See Subaseris v. Prolis An agreement to transfer is not an alienation.The rights under the agreement revive when a conveyance executed toimplement that agreement becomes invalid owing to illegality—Silva v.Silva et. al’; John Appuhamy v. William Appuhamy *. The covenantfor further assurance in the deed of transfer is a continuing contract andcan be enforced—Norton on Deeds (2nd ed,) pp. 621, 623-4. Specificperformance can be ordered. The cause of action for specific performancearises only after the lapse of the month mentioned. The agreementfalls within the first two categories mentioned in Fry on SpecificPerformance (6th ed.) pp. 65-6; the case of Paiva v. Marikar ‘dealt with an agreement of the third category mentioned in Fry. Seealso Aiyar and Aiyar on Indian Trysts Act p. 591; Ismail v. Ismail ‘;Perera v. Pedrick Appuhamy V Section 93 of the Trusts Ordinance isapplicable to the facts of the present .case. The “ existing contract ”contemplated in that section is a contract capable of enforcement atlaw as opposed to a contract which has been executed and discharged.
H. V. Perera, K.C., in reply.—The agreement in deed No. 841 must bedeemed to have been discharged in one of three ways, namely, by per-formance or by breach or by impossibility of performance. The case ofPaiva v. Marikar (supra) is directly applicable. If a conveyance isvoid all the covenants attached to, and dependent on, it are also bad.Specific performance is refused where the original conveyance itself isbad—Norton on Deeds (2nd ed.) p. 621.
The rule of res judicata will apply only where there is a judicial deter-mination in respect of some contested issue or matter—Hukm Chand onRes Judicata, p. Ill ; Spencer Bower on Res Judicata, p. 28 ; Vol. I ofChitaley and' Rao’s Commentary on the Indian Civil Procedure Code(1935) p. 211.
. The decree in case No. 49,758 was registrable. The ruling in MohamadAli v. Weerasuriya1 is now superseded by, and should be read in thelight of, section 8 (b) of the present Registration Ordinance. Our titlemust prevail over that of the defendants—Saravanamuttu v. Solamuttu *;Madar Lebbe v. Nagamma".>.
Cur. adv. vult.
April 9, 1943. Soertsz J.—
By agreement of Counsel the appeals in these two cases were consoli-dated, and so submitted for our consideration. Case No. 350 was anaction for partition instituted by one Thiagarajah on June 20, 1940, forthe partition of the two lands described in the schedule of the plaint in
The other Case No. 351-352 was instituted on July 24, 1940, by oneKalimuttu who sought a declaration that Thiagarajah already referredto held the' two lands in the partition case, and the two other lands
1 (1913) 16 N. L. It. 393.3 (1909) 13 N. L. R. 33.
(1937) 7- C. L. W. 56.
(1936) 39 N. L. R. 255.
5 (1921) 3 C. L. Rec. 156.• (1920) 7 C. W. R. 161.
7 (1914) 17 N. L. R. 417.3 (1924) 26 N. L. R. 385.
(1902) 6 N. L. R. 21.
SOERTSZ J.—Sockalingam Chetty and Kalimtcttu Che tty.
described in the schedule of the plaint, for his (Kalimuttu’s) benefit, andhe asked for an order directing Thiagarajah, and his vendors to execute avalid deed conveying title, to him in respect of these four lands.
The learned trial Judge entered decree dated August 16, 1941, infavour of the plaintiff in case Nos. 351-352 in terms of the prayer in theplaint, and on August 23, i941, he entered decree dismissing the partitionaction. Hence these appeals.
For the purpose of these cases, it is sufficient to go back, in the history ofthe four lands involved, to the year 1932 when, on July 29, in that year,Sockalingam and Asupathy the vendors to Thiagarajah sued Kalimuttuand some others for declaration of title to a one-third share of these fourlands. In that case the parties reached a settlement and notified itto the court by a motion dated May 23, 1935. In the motion, deedNo. 841 was mentioned as the deed which embodied the terms of theiragreement. In virtue of this motion, they obtained a postponement ofthe trial, and then on June 13, 1935, they submitted another motion tothe court stating that: —
“ Deed of transfer having been executed this day according to .agreement No. 841 dated May 21, 1935, I (i.e., the plaintiffs’ proctor)move that the plaintiffs’ action against all the defendants be dismissedwithout costs. ”
All the parties indicated their consent to this by attesting the motion.Thereupon, decree bearing the same date as the motion was entereddismissing the plaintiffs’ action without costs.
But, at the date of the deed of transfer, there was pending a partition. action involving the lands transferred. The transfer was therefore,obnoxious to section 17 of the Partition Ordinance and void, andSockalingam, Asupathy and Theagarajah seized the opportunity, andthe two former conveyed these interests to the last named after thetermination of the partition case.
From this statement of facts it is clear that, although 38 issues wereframed in the Court below, the main questions arising for considerationare (1) whether Theagarajah holds the lands in question for the benefitof Kalimuttu and whether Theagarajah, Sockalingam and Asupathy areliable to execute a deed in favour of Kalimuttu. (2) Whether in viewof the manner in which the old case No. 49,758 terminated, Theagarajahis barred from setting up the title he derived on the- deed from Socka-lingam and Asupathy as against Kalimuttu.
In regard to the first question, the learned trial Judge rightly foundthat the deed given by Sockalingam and Asupathy to Kalimuttu wasvoid, and that if all that Kalimuttu could rely on was that deed, thecovenants in that deed for assuring the title conveyed, were themselves,avoided and of no avail. But he took the view that inasmuch as thatdeed was preceded by an agreement to sell, although the deed of salewas void, the covenants in that deed for further and better assuranceof the title conveyed, stood. This view is qui*e unintelligible to me.The deed of agreement purported, on the part of the proposed vendors,to “transfer and assign …. all the right, title, and interestif any ” that they had to or in the land in question within a period of onemonth from the date of the agreement. That is precisely what those
* 334SOERTSZ J.—Sochalingam Chetty and Kalimuttu Chetty.^
parties did, and, ordinarily, on that being done the agreement would ha vebeen discharged by performance. But it is contended that as the da idgiven in compliance with the agreement was void, the agreement remainad .undischarged and the promissors must now implement it. The answersto that are, in my opinion, many. Firstly, the promissors did not agree toconvey a good title but such title, if any, as they had or might acquireduring the period fixed for the performance of the agreement. Secondly,assuming that the agreement cannot be regarded as discharged by suchperformance as there was, because there was not even a valid conveyance,then it must necessarily be regarded as having been discharged bybreach inasmuch as the period of one month agreed upon by the partieshad elapsed without a valid deed being given. Thirdly, during the wholeperiod fixed for the performance of the contract a valid deed could nothave been given, and the agreement was discharged by reason of im-possibility of performance. To say that because it was impossible fora valid deed to be given within the stipulated period, an obligation aroseto give such a deed when it became possible in law to do so would in myopinion be nothing less than to make a new contract for the parties. Iam, therefore, of opinion that at the date of the sale by Sockalingam andAsupathy to Theagarajah there was no existing contract or agreement,and the really essential condition for the operation of section 93 of theTrusts Ordinance, in virtue of which the trial Judge held in favour ofKalimuttu, is absent.
The judgment the trial Judge entered in the case Nos. 351, 352 mustbe set aside and the plaintiff’s action dismissed.
The second question arises for consideration in case No. 350. Thetrial Judge dismissed the action of the plaintiff, there, firstly because, inview of his finding that the plaintiff was.under a legal obligation to transferhis title, it was not competent for him to maintain an action for partition,and secondly, because he held that the decree entered in the old caseNo. 49,758 “ is res judicata and it is not open to the plaintiff to reagitatehis title ”..-.
The first reason no longer applies. The second is attacked by Mr. H. V.Perera, on behalf' of the plaintiff, on two grounds : —
that the order dismissing that action was not made upon an
adjudication on the matter in issue between the parties, butin order to terminate the case because there was no longer anyquestion left for adjudication ;
alternatively, that if the decree of dismissal gave rise to a plea of
res judicata, or a cognate plea, that plea failed in this case,because the decree of dismissal was in effect, a registrableinstrument and not having been registered it had to yield to theplaintiff’s deed which was a subsequent instrument for valuableconsideration, duly registered.
I am inclined to agree with the proposition that the dismissal of theaction 49,758 in the circumstances in which it occurred does not amountto a res judicata in the strict sense of that phrase. As stated by SpencerBower at page 17 of his book on Res Judicata “ a judicium for purposes ofestoppel means a decision or determination or adjudication of some
SOERTSZ J.—Sockalingam Chetty and Kalimutfu Chetty.
question of law or fact, whether such decision takes the form of an express•Judicial declaration or is, necessarily, involved in the command orprohibition which constitutes the judgment or judicial act in its coerpiveor operative aspect. Everything which answers to this description…. is deemed a judicial decision ; and nothing which falls shortof it …. is so deemed”. In the case in question, nothing wassubmitted for the decision of the court and nothing was, in fact adjudi-cated upon and decided or determined.
But, that is not an end of the matter for, apart from res judicataproperly so termed, there are certain statutory bars which preclude thebringing of an action when an earlier action relating to the same matterhas been dismissed without a decision, determination, or adjudicationof any question of law or fact. The dismissal of the plaintiffs’ case, inthis instance, was such a dismissal. It put a stop to the proceedingsbecause in effect, the plaintiffs, the Domini Litis, withdrew it, and byoperation of section 406 of the Civil Procedure Code, they would, in myopinion, have been rightly rejected if they had instituted case No. 350for the partition of these lands. But Mr. Perera argues that thesestatutory bars differ from the bar of res judicata in that their operationis confined to the parties themselves, and do not affect privies andsuccessors-in-title. I cannot see my way to accede to this argument.If it were sound, these statutory bars could be easily defeated and wouldbe nugatory if transfers, &c., were executed by the parties bound by them.
Counsel’s next line of attack was that the decree entered in the oldcase dismissing the plaintiffs’ action, although it was entered in thecircumstances already indicated, was a registrable instrument.
The question then is whether that decree was such an instrument.
According to section 6 of the Ordinance “ instrument ” means an“ instrument affecting land ”. It will be observed that this actionreproduces the phrase of section 16 of the old Ordinance No. 14 of 1891,namely “ affecting land ”, but, probably in view of the ruling inMohamed Ali v. Weerasuriya’, section 8 (b) of the new Ordinance goeson to enumerate the instruments which shall in future be deemed to“ affect land as …. all instruments including wills, decrees andorders of any court or authority and awards, which purport or operate tocreate, confer, declare, limit, assign, transfer, charge, incumber, release,or extinguish, any right, title or interest, whether vested or contingent,past, present, or future, to, in or over land, or which create or record orare evidence of any contract for effecting any such object, and also anotice or seizure under section 237 of the Civil Procedure Code.”
The resulting position is that, today, “ decrees and orders of any courtor authority ” are registrable instruments if they purport or operate tocreate, confer, &c., any right, title or interest . . . . to, in, orover land.
In the case of Mohamed Ali v. Weerasuriya, two of the three Judgesheld that a decree declaring parties entitled to land in an action reivindicatio is not a judgment or order affecting land, and, therefore, notunder the requirement of registration for the purpose of anticipating anypriority that may be claimed for a subsequent instrument for a valuable44/26.1 (1014) 17 N. L. n. 417.
SOERTSZ J .—Sockalingam Chetty and Kalimuttu Che tty. _
consideration. That was a ruling given as far back as in the year 1913,and it has been consistently followed without question. But, it is-argjied that its authority has been impaired by section 8 (b) of the newOrdinance inasmuch as in virtue of it a decree or order which purportseven if it does not operate to declare any right, title or interest to, in,or over land, is a registrable instrument and that the ruling given in thecase I have mentioned cannot be given on the law as it stands now. Iagree. But can it be maintained that the decree of dismissal entered in caseNo. 49,758 purports to declare any right, title or interest in the plaintiffsor in the defendants in that case to, in or over land ? It certainly, doesnothing of the kind so far as the plaintiffs are concerned, nor can it besaid to operate to that end. If it does not purport or operate to do anysuch positive thing, nevertheless is it a registrable instrument in that,although it does not purport to, still it operates to extinguish any right,title or interest of the plaintiffs to,- in or over land ? I do not think so.Despite the decree of dismissal, the plaintiffs’ title such as it was, remains.Upon that title, he may sue, and may conceivably, succeed againstparties other than the. defendants. He may not, however, sue thedefendants because his cause of action against them has been extinguished.A similar examination of the matter vis a■ vis the defendants shows thatthe decree of dismissal in question does not purport to declare, &c., anyright, title or interest in them, in, to, or over land. Nor does it operate todo that, It simply leaves them as they were) It, obviously, does not'extinguish any right,. &c., of theirs in, to, or over land.
For these reasons, I am of opinion that such a decree of dismissal aswas entered in ease No. 49,758 differs entirely from a decree that purportsor operates to declare in, &c., a'party plaintiff of in'a party defendant, orin both a right, title, or interest in, to or over land and is not a registrableinstrument. The Operation of such a decree as this is by way of the ruleof law of;res judicata or of similar bars created by statute.
In view of this conclusion to which I have come, it is unnecessary toconsider the other interesting question raised whether, assuming thedecree to have been registrable, there was “ adverseness ” between itapd the subsequent deed. I dismiss this appeal. The result appears tobe that in regard' to the two lands in the partition case, Theagarajah’ssuccess in case No. 351—352 is in the nature of a Pyrrhic Victory. For thepresent, the other two lands ih that case are not affected. In regard tocosts, I think a fair order would be to divide Costs in the Court below andin appeal in case No. 351-352 and to order Theagarajah to pay half taxedcosts here and below in case No. 350.
, •' <
Kf.oneman J.—I agree.