LexMAHBOOB SAHAB versus SYED ISMAIL AND ORS.
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MAHBOOBSAHAB
v.
SYED ISMAIL AND ORS.
MARCH 23, 1995
(K. RAMASWAMY AND B.L. HANSARIA, JJ .)
Cqde of Civil Procedure, 1908-Section 11-:Res judicata-Conditions
for applying the doctrine in the case of co-defendants-Fraud or collusion-Ef-
fect of.
Mahomedan Law-Gift-Essential conditions for validity of
Mahomedan Law-Guardianship-Mother cannot act as guardian of a
minor.
The respondents filed a suit for possession against their father M
A
B
c
and the appellant claiming that their father had illegally sold the suit land D
in favour of the appellant in collusion with the Patwari, while they were
minors. The respondents claimed that their father had gifted the suit land
jointly in their favour and in the favour of their mother by executing a
registered gift deed and their mother in tum had orally gifted her share
to one of the respondents and therefore their father had no authority to E
alienate the suit land. The appellants resisted the suit pleading that the
suit lands were sold to him for consideration and in discharge of debts.
In another suit filed by another person claiming to be possessory
mortgagee of the suit land and impugning a decree in favour of another
creditor of the father of the present respondents, it was held that the father F
of the respondents had gifted the land jointly to the respondents and their
mother. The respondent and their father, who were co-defendants in the
said suit, had filed a joint written statement admitting the claim of the
plaintiff in the said suit. The respondents urged that this would act as a
res judicata against the appellant as he was claiming title to the suit G
property through their father.
The trial court rejected the plea of res judicata but decreed the suit
on merit.
The point of res judicata was not urged before the first appellate H
975
/
97Ci
SUPREME COURT REPORTS
(1995] 2 S.C.R.
A court, It held that - (i) the name of the father of the respondents continued
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to appear as owner in the revenue records. till it was mutated in favour of
the appellant; (ii) the gift deed executed by the father was not proved (iii)
the oral gift made by the mother was false as neither the acceptance of the
gift nor delivery of possession was proved (iv) the mother cannot act as a
.B guardian of the property when father was alive. The first appellate court
allowed the appeal holding that the alleged gifts were only a ·device to
defraud 'creditors.
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In second appeal, the High Court reversed the order of the first
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appellate court only on the ground of res judicata without disturbing the
c finding of facts. Hence, the present appeal.
Allowing the appeal, this court
HELD : 1. The trial court negatived the plea of res judicata as a
D preliminary issue. Though it was open to sustain the trial court decree on
the basis of doc~ine of res judicata, it was not argued before the.appellate
court on this basis. Thereby the findings of the trial court on res judicata
became final. [981-GJ
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2.1 The doctrine of res judicata must be applied to co- defendants
'
E with great care and caution. The reason is that fraud is an extrinsic
collateral act which vitiates most solemn proceedings of courts of justice.
If a party obtains a decree from the court by practicing fraud or collusion,
he cannot ·be aliowed to say that the -.iatter is res judicata and cannot be
re· opened. There can also be no question of res judicata in a case where
F signs of fraud or collusion are transparently pregnant or apparent from
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the facts on record. As found by the appellate court, M was playing fraud
upoR his creditors by creating false oral gifts or spurious claim of
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mortgages with a view to defraud them. (982-G-H, 983-B]
G
2.2 For application of the doctrine of res judicata between co-defen-
dants, four conditions must be satisfied, namely (i) there must be a conflict
of interest between the defendants concerned: (2) it must be necessary to
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decide the conflict in order to give the reliefs which the plaintiff claims;
(3) the question between the defendants must have been finally decided,
and (4) the co-defendants were necessary or proper parties in the former
H suit. [982-A)
I
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M. SAHAB v. S. ISMAIL [K. RAMASWAMY, J.]
977
S.M. Sadat Ali Khan v. Mirza Wiquar Ali, AIR (1943) PC 115; A
Shashibusha11 Prasad Mishra v. Babuji Rai & Ors., [1969] 2 SCR 971 and
lftiklzar Ahmed & 01:1". v. Syed Mel1arba11 Ali, [1974] 2 SCC 151, relExcerpt shown. Read the full judgment & AI analysis in Lexace.