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TMI Blog2007 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... with C.T.S. No. 1015/A/19 having an extent of 14.7 square yards and 1028/2A having an extent of 75 square yards. As seen recited in a deed of partition dated 14.2.1961 entered into by three brothers belonging to a Hindu Mitakshara Family, the said items along with other items belonged to their joint family. But there is considerable dispute about the antecedents of the properties or the title to the properties. In that partition, the above items were allotted to Chandappa Balappa Sangam, original defendant No. 2, in these suits. He along with his two minor sons who are defendant Nos. 3 and 4 executed a mortgage in respect of all the three items on 12.8.1963 in favour of Dharmadas, defendant No.1 in the suit. This was followed by a deed of further charge dated 28.8.1963. Subsequently, on 10.6.1964, defendant No. 2 acting for himself and as the guardian of his minor sons, defendant Nos. 3 and 4, executed a simple mortgage in respect of the properties to one Hemadi, a moneylender. The document recites that a sum of ₹ 2500/- was taken as a loan for his trade. It may be noted that the deed of partition recites that the family was conducting a joint trade in firewood. On 15.10.1970 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , spoke of the prior mortgages in favour of others and of the mortgage in favour of Hemadi being executed by defendant No.2 on his own behalf as well as on behalf of his minor sons and the mortgage transactions being entered into by defendant No.2 for family necessity and family benefit. Defendant No.2 found himself in a position where he had no alternative to selling the properties for clearing off his debts. Hence he offered to sell the suit properties to Habib with the object of paying off the earlier mortgages. Habib agreed to purchase. Subsequent to the purchase Habib had paid off the amounts due to Hemadi and had obtained a release from his heirs. The transaction he had entered into was a bona fide one. The suit had been under-valued. There was no cause of action as against him. Defendant No. 2, who was defendant No.2 in that suit as well, contended that the properties were joint family properties. He further pleaded that the earlier mortgages were binding on the plaintiffs and there was pressure on the estate justifying a further borrowing and he had borrowed a sum of ₹ 10,000/-. The document writer had induced him to execute the sale deed impugned therein making him b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on the assumption that the suit properties were the joint family properties of the plaintiffs and defendant No.2. The court held that even if the properties were treated to be joint family properties, the alienation by defendant No.2 was within the limits of the powers vested in him as the Karta of an Undivided Hindu Family and consequently, the sale deed executed by him was sustainable both in law and on facts. It was binding on the joint family. The plaintiffs could not successfully challenge the same. Thus, the trial court upheld the whole title conveyed to Habib, defendant No.1 therein, by defendant No.2, the father. The suit was thus dismissed on 18.2.1974. 8. An appeal, R.A. 191 of 1991 was filed from the said judgment and decree by the plaintiffs in that suit. Defendant No. 2, his wife and his sons then purported to sell their rights in the property to defendant No.6 by deed dated 9.1.1975. It recited the factum of the earlier sale to Habib and asserted that it was only intended to be a mortgage. The filing of O.S. No. 61 of 1971 and its dismissal was recited and the filing of an appeal against that decree was also recited. The filing of O.S. No. 4 of 1972 was also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the suit filed by the father (the present defendant No.2). On a finding that no vitiating circumstance to invalidate the sale is established, the trial court dismissed the suit. An appeal R.A. No. 16 of 1981 filed by the plaintiff in that suit (the present defendant No.2), challenging the dismissal of his suit, was dismissed and a second appeal taken as R.S.A. No. 92 of 1985 was also dismissed. What requires to be emphasised is that Habib was a party both to O.S. No. 61 of 1971 and to O.S. No. 4 of 1972. In fact, the suits were directed against him. In the first suit filed by the wife and children, the sale in his favour was upheld both on the basis of the sale being supported by necessity and benefit to the joint family of defendant No.2 and his sons and as being one within the competence of defendant No.2 as the Karta of the joint family and also on the basis that the property was the separate property of defendant No.2 and the sale was not vitiated. In the latter suit, the sale was upheld on the finding that defendant No.2, the plaintiff therein, had failed to establish any element to vitiate or invalidate the sale. While doing so and dismissing the suit filed by defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or redemption of the item involved therein, finding that the property was the separate property of defendant No.2. It therefore fully upheld the sale to plaintiff Habib, of the equity of redemption and held that Habib was entitled to redeem the mortgage. 13. Defendant No. 1, the mortgagee, and defendant No. 6, the assignee from defendants 2, 3 and 4 of their purported rights, filed R.A. No. 104 of 1992 challenging the decree of the trial court. The lower appellate court held that the judgment and decree in O.S. No. 61 of 1971 was passed by a competent court having pecuniary jurisdiction. It also noticed that the findings in O.S. No. 61 of 1971 were not set aside by any court. Proceeding to discuss the merits, the appellate court held that the finding in O.S. No. 4 of 1972 being that the properties were the properties of the joint family of defendant No.2, the said finding having become final, it had to be held that the properties were properties of the joint family. On discussing the evidence, that court ended up by holding that defendant No.2 had only a 1/4th share in the properties and hence his assignment to Habib, the plaintiff conferred on Habib only a 1/4th interest in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g was that the suit was not barred by res judicata. Proceeding from there, the trial court, on a consideration of the evidence, came to the conclusion that the suit properties were the separate properties of defendant No.2 and in the light of the repulsion of the challenge to the alienation made by defendant No.2 both in O.S. No. 61 of 1971 and in O.S. No. 4 of 1972, the plaintiff was entitled to redeem the suit properties. A preliminary decree for redemption was therefore passed. Defendants 1 and 11 went up in appeal by way of R.A. No. 107 of 1998. The appellate court agreed with the findings of the trial court both on the plea of res judicata and on the nature of the properties in the hands of defendant No.2 and decreed that in the place of the preliminary decree passed by the trial court, a final decree itself be drawn up in the light of the findings entered. This decree was challenged in R.S.A. No. 685 of 2000. A memorandum of cross-objections was also filed. The second appellate court held that the decree in O.S. No. 61 of 1971 filed by the wife and sons of defendant No.2 and which was dismissed, had no effect in view of the decision in O.S. No. 4 of 1972 and proceeded to reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the equity of redemption as having been conveyed to him by defendant No.2 and he could not therefore lay claim to the shares of the wife and sons of defendant No.2 and the finding in O.S. No. 4 of 1972 that the properties were joint family properties would operate as res judicata. The share of the wife and sons of defendant No.2 had come to defendant No.6. The alternate contention on behalf of Habib is that even as the owner of a fraction of equity of redemption, he could redeem the whole of the mortgage and the mortgagee could not resist such a redemption. The answer to this is that even though that might be correct as far as the mortgage is concerned, in view of the fact that defendant No. 6 had acquired shares in the equity of redemption and he had also been impleaded in the suit and the mortgage was being redeemed, it was only possible to grant the plaintiff Habib a decree for redemption and recovery of possession of 1/4th share in the properties, the other 3/4th share going to defendant No.6. The questions for our decision arise out of what is thus posed by learned counsel. 18. Now that we have set out the facts and the history of the litigations in some detail, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the facts established and the findings, the court found the alienation valid and binding on the wife and sons as it was supported by necessity and was within the power of defendant No.2 as the Karta of the joint family. The suit was thus dismissed upholding the alienation to Habib. In the normal course, such an adjudication would be final and binding on the wife and sons of defendant No.2 and their assignee. In addition, the assignee had also notice of the sale to Habib and of the suit and the appeal therefrom. It would also be binding on defendant No.2 to the extent he supported the case of the plaintiffs in that suit. The appeal filed against the decree not having been pursued, that decree became final. 20. Then came O.S. No. 4 of 1972. We must emphasize that this suit was filed by defendant No.2 himself challenging the alienation effected by him. His wife and sons were not parties to that suit. The assignee did not get himself impleaded and left it to defendant No.2 to protect his rights also. The plaintiff in the present suit was arrayed as the defendant in that suit. It may be noted that the plaintiff and the defendant herein were co-defendants in O.S. No. 61 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty belonged to their joint family and they have subsequently conveyed their rights to defendant No.6. It is worth re-stating that neither they, nor their assignee were even parties to OS No.4 of 1972. 22. Defendant No.2, the father and Habib, the plaintiff therein were only co-defendants in O.S. No.61 of 1971. Even then, the decree therein could operate as res-judicata as between them if the conditions therefor are satisfied. The conditions as laid down by this Court are: (i) there must be a conflict of interest between the defendants concerned; (ii) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims; (iii) the co-defendants must be necessary or proper parties to the suit and; (iv) the question between the defendants must have been finally decided inter se between them (see for instance Iftikhar Ahmed and others vs. Syed Meharban Ali and others [(1974) 3 SCR 464] and Mahboob Sahab vs. Syed Ismail and ors. [(1995) 2 SCR 975] There was a conflict of interest between Defendant No.2, the father and Habib since the father was supporting the plaintiff and was questioning the sale deed and Habib, defendant No.1 therein, was resisting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant No.6 that he had acquired the rights of defendant No.2 by virtue of the subsequent sale in his favour. Thus, we are reduced to a situation where the rights, both of the wife and sons of defendant No.2 and that of defendant No.2, to question the sale in favour of Habib, the plaintiff, stood concluded against them by the respective decrees. Really, the question is not whether the issue regarding the nature of the property separate or joint family should be taken to be concluded by the first decision or the second decision. That is only a secondary aspect. 24. What is relevant in this context is the legal effect of the so-called finding in O.S. No. 4 of 1972 that the decree in O.S. No. 61 of 1971 was passed by a court which had no pecuniary jurisdiction to pass that decree. The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 also. This Court in The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu Anr. [(1966) 1 S.C.R. 461] made no distinction between Section 15 on the one hand and Sections 16 to 20 on the other, in the context of Section 21 of the Code. Even otherwise, considering the interpretation placed by this Court on Section 11 of the Suits Valuation Act and treating it as equivalent in effect to Section 21 of the Code of Civil Procedure, as it existed prior to the amendment in 1976, it is possible to say, especially in the context of the amendment brought about in Section 21 of the Code by Amendment Act 104 of 1976, that Section 21A was intended to cover a challenge to a prior decree as regards lack of jurisdiction, both territorial and pecuniary, with reference to the place of suing, meaning thereby the court in which the suit was instituted. As can be seen, the Amendment Act 104 of 1976 introduced sub-Section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Section 11 of the Suits Valuation Act provided that notwithstanding anything contained in Section 578 (Section 99 of the present Code covering errors or irregularity) of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit had exercised it by reason of under-valuation could not be entertained by an appellate court unless the objection was taken in the court of first instance at or before the hearing at which the issues were first framed or the appellate court is satisfied for reasons to be recorded in writing that the over-valuing or under-valuing of the suit has prejudicially affected the disposal of the suit. There was some confusion about the content of the Section. The entire question was considered by this Court in Kiran Singh (supra). Since in the present case, the objection is based on the valuation of the suit or the pecuniary jurisdiction, we think it proper to refer to that part of the judgment dealing with Section 11 of the Suits Valuation Act. Their Lordships held: It provides that objections to the jurisdiction of a Court based on over- valuation or under-valuation shall not be entertained by an appellate Court except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure of justice or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit. We may also notice that in O.S. No. 61 of 1971, an issue on the valuation and court fee paid was raised and the court directed the plaintiffs therein to pay additional court fee on adjudicating on that issue and the plaintiffs complied with that direction. In O.S. No. 4 of 1972, in a suit to which the plaintiffs in O.S. No. 61 of 1971 or their assignee was not a party, the court had no occasion to go into the question of the decree in O.S. No. 61 of 1971 having been passed by a court which lacked pecuniary jurisdiction. Even assuming that it had such a jurisdiction, it could not have ignored the finality of that decree or the legal effect of it, merely on a finding that the suit was under-valued in the light of the ratio clearly laid down by this Court in the decision referred to above. Therefore, finding in O.S. No. 4 of 1972 that the decree in O.S. No. 61 of 1971 could be ignored or the effect of it swept under the carpet because the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 11 of the Code of Civil Procedure. Section 11, when it is applied to two suits, has to be literally complied with and one of the requirements of Section 11 of the Code is that the court which passed the decree in the first suit, should have jurisdiction to entertain the second suit in which the earlier decree is put forward as res judicata. For, Section11 provides that no court shall try any suit between the same parties on an issue which was directly and substantially in issue in a former suit between the same parties in a court competent to try such subsequent suit and the issue had been heard and finally decided. Therefore, in that sense, in O.S. No. 4 of 1972, the decree in O.S. No. 61 of 1971 could not have operated as res judicata. 30. But the question then is what is the effect of a finding in O.S. No. 4 of 1972 that the properties belonged to the joint family of defendant No.2. Firstly, in spite of such a finding that suit was wholly dismissed in favour of Habib. Secondly, in view of the dismissal of in O.S. No. 61 of 1971, and the rejecting of the challenge to the alienation by the members of the joint family, such a finding made no difference to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words, when he joined the sale deed executed by his wife and sons in favour of defendant No.6, defendant No.2 had no title to convey to defendant No.6, he having already conveyed whatever rights he had to the plaintiff. The courts below in the present suits have also upheld the sale by finding that the rights of defendant No.2 had gone to the plaintiff. Defendant No. 6 has also acquiesced in that decree. 33. When defendant No.2 conveyed the properties to the plaintiff, his wife and sons had filed O.S. No. 61 of 1971 challenging the alienation by defendant No.2. They proceeded on the basis that it was the sale of the properties of the joint family. Their challenge had been repelled by the decree in O.S. No. 61 of 1971 passed on 18.2.1974. They allowed that decree to become final by not pursuing their appeal against that decree. They had asserted their title to the properties, but relief was denied to them finding that they had no subsisting right in the properties, their rights also having been conveyed to Habib, the present plaintiff. They had sued the present plaintiff and defendant No.2, the executant of the deed. So, when on 9.1.1975 the wife and sons purported to execute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in O.S. No. 61 of 1971, it has to be held that defendant No.6 as assignee, had no interest in the properties sought to be redeemed and could not put forward any valid defence to the suit for redemption filed by the plaintiff. If so, the decrees now passed by the High Court have to be found to be unsustainable. According to us, the High Court has asked itself the wrong question. It has not considered whether defendant No.6 could claim to have derived any right over the properties or in the equity of redemption on the basis of the assignment in his favour. Therefore, the decrees of the High Court call for interference. 35. It is clear in the circumstances that the plaintiff is entitled to a decree for redemption of the entire properties. Defendant No. 6 (Defendant No. 11 in O.S. 800 of 1992) has no right in the properties. We see no reason to prolong this proceeding by passing a preliminary decree to be followed by a final decree. The mortgage money in both the suits as payable has been quantified. Apparently, the amounts have been deposited also. We therefore grant the plaintiff decrees for redemption in both the suits. We pass a composite final decree for redemption. Def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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