Principle Of Res Judicata Applies To Children Claiming Property Through Parent Earlier Involved In Property Suit: Bombay High Court

Justice S. M. Modak dismissed the second appeal stating that there was no need to interfere in the judgments of the lower courts as there was no perversity in those findings and no substantial question of law is made out in the appeal.

"There is no perversity so far as the findings on the point of the identity of said Bhagirthi. There is no perversity so far as the findings on the principle of res judicata is concerned. So this Court feels that no substantial question of law is made which requires admission of the appeal", the court held.

The appellant is plaintiff in a suit for partition of certain properties. He claimed share in those properties through his mother. He said that his maternal grandfather, Hari Kumbhar had acquired the properties. Hari Kumbhar had two sons and two daughters one of whom was his mother, the plaintiff claimed.

The respondents were defendants in the suit. They contended that in January 2009, the civil court in another suit filed by the plaintiff's mother had held that the properties are not ancestral properties. The defendants pleaded that the present suit is barred as per principle of res judicata.

The trial court held that the properties were not ancestral properties and since the issue was already decided in plaintiff's mother's suit, the principle of res judicata was applicable. The first appellate court confirmed these findings. The plaintiff approached the High Court in a second appeal.

The plaintiffs had contended before the trial court that res judicata is not applicable as the parties in the earlier suit and present suit are not the same. The trial court rejected the contention stating that the present case is filed by the plaintiff and the previous suit was filed by his mother. The trial court observed that except one property, all of the properties involved in both the suits were the same.

The trial court further stated that the identity of plaintiff's mother was not proved. The trial court referred to two extracts of the heirship registry in which the names of Hari Kumbhar's daughter differ. It noted that no evidence has been attached in the plaint to show these different names refer to the same person who is Hari Kumbhar's daughter.

Nature of the properties as ancestral joint family properties between the deceased mother and the defendants was not proved, the trial court concluded.

The first appellate court confirmed the judgement of the trial court considering Section 11 of the Civil Procedure Code, and decided not to interfere the judgement.

The High Court perused the judgments of the trial court and the first appellate court and found that there is no perversity on the point of identity of plaintiff's mother. Further, there was no perversity in the findings regarding res judicata. The court upheld the lower court judgments stating that no substantial question of law is made out in the appeal.

Case no. – Second Appeal No. 549 of 2018

Case title – Chandrakant Narayan Salvi v. Chandrakant Krushna Kumbhar and Ors.

Citation: 2022 LiveLaw (Bom) 395