LexAMRITSAGAR GUPTA & ORS. versus SUDESH BEHARI LAL & ORS.
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AMRfl'SAGAR GUPTA & ORS. A v. SUDESH BEHAR! LAL & ORS. March 13, 1969 [S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B Code of Civil Procedure (Act 5 of 1908), s. 11-Res Judicata-Suit agrnnst mana11er of Joint Hindu family-No •flegation that he was being 10 sued--Coparceners not. parties-Decree if operates as res judicata "Qzainst coparceners. A suit between J the father of appellants and B the father of respon· dents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favo•1r of J and the decree was confirmed by"" this Court. After various attempts by B and aftet his death by his sons, to defeat J's rights, one of B's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of whjclt B was the karta. On the queition whether the decree in the earlier suit operated as res iudicatc. HELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager. It is sufficient if the manager was in fact suing or was being sued as representing the whole family. A suit by or against the manager will be deemed to be one brought by or against him a~ representing the family if the circumM stances show that be was the manager and the property involved in the suit was family property. (1004 H; 1005 A·B] In the present case, B must be deemed to have been sued in the pre· vious suit as the karta of his famil}, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta; (b) there was no conflict of interest between B and hls sons and there was no allegation that B did not safeguard the family's interest while cimtesting the previous suit; and ( c) B did not claim in the earlier suit that the gift was to him in his individual capacity. [1004 A.C; 1005 CJ Lalchand v. Sheogovind, (1929) I.L.R. 8 Pat. 788, Ram Kishan v. Ganga Ram, (1931) I.L.R. 12 Lah. 428, Prithipal v. Ramesh war, ( 1927) I.L.R. 2 Luck. 288, Surendranath v. Sambhunath, (1928) I.L.R. 55 Cal. 210, Mulgaurrd Co-operative Credit Sociny v. Shidlingappa Ishwarappa, I.L.R. (1941) Born. 682, Venkatanaraycna v. Somaraju, A.I.R. 1937 Mad. 610 (F.B) and Mani Sahoo v. Lokanath, A.I.R. 1950 Or. 140, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No 349 of 1966. Appeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court, Circuit Bench at Delhi in R.F.A. No. 164-C of 1963. c D E F G H A B c 0 E F G H AMRITSAGAR v. SUDESH BEHAR! (Hegde, J.) 1003 S. Y. Gupte and A. N. Goyal. for the appellants. C. B . .Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1. - The Judgment of the Court was delivered by Hegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943. The trial court answered that ques- tion in the affirmative but the High Court has taken a contrary view. Hence this appeal. The facts of the case leading up to this appeal, briefly stated, are as follows : Qne Krishen Gopal had lease-hold rights in the suit pro- perties. After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties. Each one of them claimed that those properties had been gifted to him by Krishen Gopal. As a re· suit of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour. In defence Banwari Lal Verma plead- ed that those properties had been gifted to him by Krishen Gopal. The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma. The trial court dismissed the suit but in appeal the decree of the trial court was reversed and ' the suit was decreed as prayed for. That decision was
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