Full Judgment Text
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CASE NO.:
Appeal (civil) 1544 of 1990
PETITIONER:
MADHVI AMMA BHAWANI AMMA AND ORS.
RESPONDENT:
KUNJIKUTTY PILLAI MEENAKSHI PILLAI AND ORS.
DATE OF JUDGMENT: 27/04/2000
BENCH:
A.P. MISRA & M.B. SHAH
JUDGMENT:
JUDGMENT
2000 (3) SCR 752
The Judgment of the Court was delivered by
MISRA, J. This appeal is directed against the High Court order dated 26th
September, 1989 in second appeal. The short question raised in this appeal
is, whether an order granting Succession Certificate under Section 373 of
the Indian Succession Act 1925 would operate as res judicata to the suit
for partition filed in a civil court between the same parties.
The short facts are : the appellants are the defendants in suit No. 20 of
1974 which is filed by respondent No. l Velu Pillai since deceased claiming
to be the only legal heir as brother to the estates of one Kizhangumvilayil
died intestate. The suit was for declaration, partition and recovery of
possession of the plaint schedule properties. The said respondent also
filed O.P. No. 33 of 1974 in the same court for obtaining Succession
Certificate for receiving money from Life Insurance Corporation. The plain-
tiff case in the suit is that he along with Ramakrishna Pillai and the said
deceased Thankappan Pillai were the children of one Parameshwaran Pillai
and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other
legal heir to succeed his estates, he is entitled to be declared as a legal
heir to the estates of the said deceased.
Defendants-appellants contested the said case. They pleaded that plain-tiff
was only their uterine brother and thus was not entitled to succeed as
legal heir. In fact, they are in possession of the suit property which
could not be disturbed except by any legal heir. Both, the suits and the
said proceeding under the Indian Succession Act were tried together and
decided by a cornmon judgment by the trial court. The trial court held,
there was no evidence to show that the marriage between Karthiyayani Amma
and Parameshwaran Pillai had been dissolved. The presumption is that
Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai.
The plaintiff being the real brother of the deceased Thankappan Pillai is
entitled to inherit his property. Thus the trial court decreed the suit
declaring the plaintiff as a sole heir and also allowed the said
application O.P. No. 33 of 74 by granting the Succession Certificate to the
plaintiff. The appellate court set aside both the judgments of the trial
court in suit and grant of the Succession Certificate, holding that there
was no valid marriage between Karthiyayani Amma and Parameswaran Pillai.
The High Court in second appeal set aside this appellate court judgment as
findings were not supported by pleadings in the case hence remanded the
case back for reconsideration. After remand, the appellate court dismissed
the appeal of the appellant by confirming the trial court judgment.
Thereafter the appellant filed the second appeal.
Submission for the respondent-plaintiff before the High Court was that
since appeal was not preferred against the order of the appellate court
arising out of the proceeding for the grant of the Succession Certificate,
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it became final, thus it operates as res judicata. The High Court by its
impugned order, upheld this contention. Thus High Court dismissed the
second appeal on this limited ground which is impugned before us. The
leamed counsel for the appellants submits that proceeding for the grant of
Succession Certificate is a summary proceeding and the same can not operate
as res judicata to a proceedings in a regular suit suit filed in the civil
court even if, it is between the same parties or issues are the same. The
grant of Succession Certificate under Section 573 bas only the effect that
it is conclusive as against the person owing such debts or liability on
such securities (as in the present case LIC) and it affords full indemnity
to such debtor against all such future claimant, when it tenders the amount
to such person holding Succession Certificate. The submission is, this is
merely a summary proceeding in which adjudication is made prima facie as to
whom such payment is to be tendered by such debtor. In other words leaves
the battle if any inter se between claimants to be adjudicated in a regular
proceeding. Thus any decision under it has this limited effect, but it in
no way puts any legal embargo on the parties to prove to the contrary in
any subsequent suit or proceedings. On the other hand leamed counsel for
the plaintiffs-respondents submits, as both, the suit and the application
for the grant of Succession Certificate were heard and decided by the same
court, both at the trial stage and the first appellate stage and when the
appellant did not prefer any appeal against the order passed by the first
appellate court in the connected proceeding arising out of the proceedings
for the grant of Succession Certificate, the said decision becomes final
and it would operate as res judicata to the pendmg proceedings in the
second appeal arising out of the suit. The leamed counsel for the
respondents also placed strong reliance on Explanation VII to Section 11 of
C.P.C. which is quoted hereunder :
"Explanation VIII - An issue heard and finally decided by a Court of
limited jurisdiction, competent to decide such issue, shall operate as nes
judicata in a subsequent suit, notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in
which such issue has been subsequently raised."
Submission thus is even the court deciding the question of grant of
Successing Certificate, may have limited jurisdiction and also may not have
jurisdiction to decide the regular suit for partition, yet issues decided
therein would fall within the ambit of res judicata in view of the
Explanation VIII.
Within the said parameter now we proceed to examine the question raised in
this appeal. The principie of res judicata as enshrined in Section 11, is
evolved from the maxim "nemo debet bis vexari pro una et eadem causa". This
principie enunciates that no man should be vexed twice over for the same
cau’e. This principie gradually developed further by bringing within its
compass more such litigations. Thus with the passage of time this principle
gradually expanded. This shows that sphere of res judicata as enshrined in
Section 11 C.P.C. is not exhaustive, it is ever growing. One such example
of its growth is exhibited by the incorporation of Explanation VIII in
Section 11 by means of Amending Act in 1976. The submissions made are
broadly under two heads. Firstly under the broad and general principle of
res judicata in view of Explanation VIII and Secondly, whether in a
proceeding for the grant of Succession Certificate, any adjudication or
issue decided therein would operate as res judicata to a suit proceeding.
In order to apply the general principie of res judicata court must first
find, whether an issue in a subsequent suit, was directly and substantially
in issue in the earlier suit or proceeding, was it between the same
parties, and was it decided by such court. Thus there should be an issue
raised and decided, not merely any finding on any incidental question for
reaching such a decision. So if no such issue is raised and if on any other
issue, u incidentally any finding is recorded it would not come within the
periphery of the principie of res judicata.
In Pawan Kumar Gupta v. Rochiram Nagdeo, [1999] 4 SCC 243 this Court
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observed that the rule of res judicata incorporated in Section 11 of the
Code of Civil Procedure (CPC) prohibits the court from trying an issue
which has been directly and substantially in issue in a former suit between
the same parties, and has been heard and finally decided by that court. It
holds, it is the decision on an issue, and not a mere finding on any
incidental question to reach such decision, which operates as res judicata.
For the respondent, reliance was placed in Kalipada De and Ors. v.
Dwijapada Das and Ors., AIR (1930) PC 22. The reliance is that this
decision holds, where a question of relationship between the parties has
been decided in a court of limited jurisdiction also operates as res
judicata to a subsequent suit between the same parties involving the same
question of relationship. Though we shall be referring later, the effect of
various provisions of the Indian Succession Act on this question, but
suffice it to say that this decision renders no help to the respondent, as
in our case there was no issue, in the earlier proceeding, whether uterine
brother would be entitled to inherit the estate of the deceased in the
proceeding under Section 372 of the Indian Succession Act, which is the
foundations of challenge by the appellant to the claim of the plaintiff as
the legal heir of the deceased. Even for applying this decision it bas to
be shown that the claim of the plaintiff to inherit the question property
in the suit was raised through such an issue in earlier proceeding i.e. in
Succession Certificate proceedings. No such issue could be pointed by the
leamed counsel for the respondent.
As this Court bas held in the case of Pawan Kumar Gupta (supra), it is only
the decision on an issue and not mere finding on any incidental question to
reach such decision, which operates as nes judicata. So, even if there be
any finding regarding any relationship for grant of such certificate in the
absence of any issue it would be of no help to the plaintiff
Next we proceed to examine the other head of submission viz. whether
decision on any issue in a proceeding to grant Succession Certificate would
operate as res judicata to the issue raise in the subsequent suit. First we
proceed to examine the various provisions under the Indian Succession Act.
Section 372(1) refers to the application to be made for the grant of
Succession Certificate. Sub-section (1) gives the detail and the manner of
making such an application. Sub-section (3) gives the sphere of such
application viz. it to be in respect of any debt or debts due to the
deceased creditor or in respect of portions thereof. Sub-section (3) is
quoted hereunder :
"Sub-section (3) : Application for such a certificate may be made in
respect of any debt or debts due to the deceased creditor or in respect of
portions thereof."
Under sub-section (1) of Section 373 if the court is satisfied that there
is ground for entertaining the application, he fixes a date of hearing
after notice. Sub-section (2) decides the right of the applicant, whether
entitled for a grant of the certificate. Under sub-section (3), if such
Judge can not decide such right, as the question raised both on fact or law
are intricate and difficult then in a summarily proceeding it can still
grant such certificate, if it appears to the court, that the person making
such application has a prima fade title thereto. Sub-section (3) of Section
373 is quoted hereunder :
"Sub-section (3) : If the Judge cannot decide the right to the certificate
without determining questions of law or fact which seems to be too
intricate and difficult for determination in a summary proceeding, he may
nevertheless grant a certificate to the applicant if he appears to be the
person having prima facie the best title thereto." This sub-section reveals
two things, first adjudication is in a summarily proceedings and secondly
if the question of law and fact are intricate or difficult, it could sili
grant the said certificate based on his prima fade title. In other words
the grant of certificate under it is only a determination of prima fade
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title. This as a necessary corollary confirms that it is not a final
decision between the parties. So, it cannot be construed that mere grant of
such certificate or a decision in such proceeding would constitute to be a
decision on an issue finally decision between the parties. If that be so
how could principie of res judicata be made applicable to a case in a
subsequent suit? The effect of such certificate is also laid down in
Section 381 which is quoted hereunder :
"Section 381 :
Effect of certificate : Subject to the provisions of this Part, the
certificate of the District Judge shall, with respect to the debts and
securities specified therein, be conclusive as against the persons owing
such debts or liable on such securities, and shall, notwithstand-ing any
contravention of Section 370, or other defect, afford full indemnity to all
such persons as regards all payments made, or dealings had, in good faith
in respect of such debts or securities to or with the person to whom the
certificate was granted."
(Emphasis supplied)
So, this certificate merely affords full indemnity to the debtor for the
payments he makes to the person holding such certificate. Thus when the
debtor pays the debts or the securities as specified in the certificate, to
the holder of such certificate, then on such payment, he is absolved from
his obligation to pay to any one else as it conclusively concludes his part
of his obligation and such payment is construed to be in good faith. This
safeguards such debtor or person liable to pay that he may not be later
dragged into any litigation which may arise subseqently inter se between
the claimants. The use of words "good faith" in Section 381 reinforces that
decision in these proceedings are not final. When statute recognises such
payment to be in good faith gives clear under current message that there
may in future better claimant but that would not affect the indemnification
of the debtor. Thus we find accumulatively because of the grant of
Succession Certificate being for a limited purpose, limited in its sphere,
the declaration of title being prima facie, payment tendered is declared to
have been made in good faith, leads to only one conclusion that any
decision made therein cannot be treated to be final adjudication of the
rights of the parties, except such declaration being final for the purpose
of these proceedings. If that be so, the amount received by the holder of
such certificate can yet be questioned, and in subsequent proceeding it
rnay bold it to belong to other claimant, including the contesting party.
This can be examined from another angle. The grant of Succession
Certificate falls under Part X of the aforesaid Act. Its range is between
Sections 370 to 390. It is significiant to refer here Section 387. This
declares the effect of decisions made under this Act and the liability of
holder of such certificate. it lays down that any decision made under this
Part, (Part X) upon any question of right between the parties shall not bar
the trail of the same question in any suit or other proceedings between the
same parties. It further records that nothing in this Part shall be or any
part of any debts or scanty to account therefor to the person lawfully
entitled thereto. Section 387 is quoted hereunder :
"Section 387 :
Effect of decisions under this Act, and liability of holder of certificate
thereunder : No decision under this Part upon any question of right between
any parties shall be held to bar the trial of the same question in any suit
or in any other proceeding between the same parties, and nothing in this
Part shall be construed to affect the liability of any person who may
receive the whole or any part of any debts or secunty or any interest or
dividenti on any security, to account therefor to the person lawfully
entitled thereto."
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(Emphasis supplied)
This leaves no room for doubt. Thus any adjudication made under Part X of
this Act which includes Section 373 does not bar the same question being
raised between the same parties in any subsequent suit or proceeding. This
provision takes the decisions under Part X of the Act outside the perview
of Explanation VIII to Section 11. This gives proiective umbrei l a to ward
off from the rays of res judicata to the same issue being raised in a
subsequent suit or proceedinggs. No doubt Explanation VIII to Section 11
enlarges the filed of res judicata, by including in its field the decisions
on the issue, between the same parties even by a court of limit
jurisdiction even though such court may not have the competence of deciding
such an issue in a suit. But as we have held above this grant of
certificate would not fall within the field of Explanation VIII of Section
U.
As far back as in 1937, this principle was upheld and recognised. In Mt.
Charjo and Anr. v. Dina Nath and Ors., AIR (1937) Lahore 196(2).
"The enquiry in proceedings for grant of succession certificate is to be
summary, and the Court, without determining questions of law or fact, which
seem to it to be too intricate and difficult for determination, should
grant the certificate to the person who appears to have prima facle the
best title thereto. In such cases the Court has not to determine definitely
and finally as to who has the best right to the estate. All that it is
required to do is to hold a summary enquiry into the right to the
certificate, with a view, on the one hand, to facilitate the collection of
debts due to the deceased and prevent their being time-barred, owing (for
instance) to dispute between the heirs inter se as to their preferential
right to succession, and, on the other hand, to afford protection to the
debtors by appointing a representative of the deceased and authorising him
to give a valid discharge for the debt. The grant of a certificate to a
person does not give him an absolute right to the debt nor does it bar a
regular suit for adjustments of the claims of the heirs inter se.
So we have no doubt to hold that any decision made in proceeding under
Section 372, for the grant of Succession Certificate under the Indian
Succession Act, would not bar any party to the said proceeding to raise the
same issue in a subsequent suit. Hence, the High Court fell into error in
applying the principie of res judicata to the second appeal of the
appellant arising out of the aforesaid suit. Thus even if no appeal is
preferred by the appellant against the decision of the trial court arising
out of proceedings for the grant of Succession Certificate, the principie
of res judicata would still not apply. But we further record, and accept
the contention of the leamed counsel for the appellant that the memorandum
of second appeal itself reveals that he has preferred appeal against both
the appellate orders where it records both appeals, case No. 237 of 1977
and 93 of 1978. Hence High Court was not right in holding that no appeal
was preferred. Leamed counsel for the respondent could not dispute this but
submits that no second appeal lies against the appellate order in the
proceedings for the grant of Succession Certificate, only a revision lies.
However, it is not necessary for us to go into this question as this is for
the appellants to make such submission as permissible under the law and it
is for the respondent to raise such objection, as he deemed fit and proper
in this regard.
In view of the aforesaid findings we set aside the High Court order dated
26th September, 1989 and remand the case to it for deciding afresh on
merits, the second appeal, in accordance with law. The present appeal is
allowed. Costs on the parties.