063-NLR-NLR-V-25-VELUPILLAI-v.-MUTHUPILLAI-et-al.pdf
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Present: Garvin and Jayewardene A.JJ.1908.
VELXJPILLAI v. MTJTHXJPILLAI et al.
140—D. C. Jaffna, 16,043.
Application for letters of administration—Issue whether applicant waslegitimat son of intestate—Decision of Court that applicant wasnot legitimate son—Mortgage by applicant pending inquiry into hisclaim for letters—Action on mortgage bond—Sale in execution—
Action by purchaser against adminsitrator—Res judicata—Estoppel—Registration of lie pendens—Privy.
K died intestate, and P, claiming to be a son of K by his mother S,applied for letters of administration; the second defendant claimedto be the son of K by bis mother, the first defendant. An issuewas raised as to whether K was married to S or first defendant, andthe Court held in favour of first defendant, and granted letters tosecond defendant pending these proceedings.
P mortgaged the land in question. The bond was put in suit, andat the sale in execution plaintiff purchased it.' In an action byplaintiff for declaration of title,—
Held, that the judgment in the administration suit declaringthat K was legally married to first defendant, and that the second
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Idas.
VelupiUai v,MuthupiUai
defendant is his legitimate son and sole heir, was res judicatabetween fiyst defendant and F and their privies, and that plaintiffwas estopped by res judicata from questioning those findings.
The foot that the lia pendens was not registered in the adminis-tration suit did not enable the plaintiff to re-litigate the matter,as the administration suit did not “ affect or relate to land ” withinthe meaning of section 27 a of the Registration Ordinance*
Under the Common law a Us pendens arises as soon as the oppo-site party has been served with summons or has received notice ofthe action, and a judgment is conclusive against a person as privyin estate to a party litigant if he derives title under the latter byan act subsequent to the action.
The judgment in question is one in p&rsonam, and not in rein,although given by a Court in the exercise of its probate jurisdiction ;but its binding effect cannot be restricted to the very property ofolaim in question in those proceedings.
Generally speaking, estoppel by res judicata may arise eitherwhere there is “ identity of cause of action ” or where there, is“ identity of point in issue.”
A purchaser in execution of a mortgage decree is a privy of themortgagor for the purpose of the law of res judicata.
^jpHE facts are set out in the judgment.
Eayley (with him 8. Rajaratnam), for plaintiff, appellant.
Arulanadam (with him Nadarajah), for the respondents.
. Cur, adv, wit.
October 2, 1923. Jayewasdene A.J.—
In this case a question of estopped by res judicata arises fordecision. One Kanapathipillai was admittedly the owner of the landin dispute in the case. He died intestate in the year 1919. K. Pon-nampaiam, claiming to be his son by Sinnatankam, who he allegedwas married to his father, made an application for letters of adminis-tration to his estate on February 24, 1919. Hia application wasopposed by the second defendant, CheUiah, who claimed to be thelegitimate son of Kanapathipillai, who had married his mother, thefirst defendant, about the year 1875. Kanapathipillai’s marriagewith the first defendant was not registered, while his marriage withSinnatankam was registered in 1883. In these proceedings anissue was raised as to whether Kanapathipillai was married to thefirst defendant or to Sinnatankam, and, consequently, whetherPonnampalam or the second defendant was his legitimate son.The Court held that Kanapathipillai was married to the first defend-ant, and that consequently Ponnampalam was not his legitimateson, and letters of administration were ordered to be issued to thesecond defendant on August 28, 1919. While these proceedingswere pending, Ponnampalam mortgaged the land in question to one
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Parupathy by mortgage bond of April 30, 1919. This bond wasassigned to the plaintiff on December 8, 1919. The plaintiff putthe bond in suit, and, in execution of the decree, purchased theproperty on Fiscal’s transfer dated August 19, 1920. Basing histitle on the mortgage bond and the Fiscal’s transfer, the plaintiffsues the defendants for a declaration of title in his favour. Thedefendants contend that they are the wife and heir, respectively, ofKanapathipillai, and also plead the judgment in the administrationsuit as res judicata. The learned District Judge has decided bothquestions in defendant’s favour. The plaintiff appeals, and conteststhe finding of the District Judge on both the questions. On theevidence recorded in this case, there is, 1 think, a great deal to besaid in support of his claim that the mortgagor is the legitimate sonof Kanapathipillai. But, in my opinion, he is concluded by thejudgment in the administration suit. It appears that the seconddefendant filed his objections to the grant of administration toPonnampalam, on the ground of his illegitimacy, on March 26,1919,and the matter was fixed for inquiry on the 27th of the same month.The mortgaged bond was executed on April 30 following. So thatit was executed pendente lite. It is contended that as the Us pendens^was not registered the deoision in the administration suit does notbind the mortgagee. Under section 27a of the Registration Ordi-nance, No. 14 of 1891, as amended by Ordinances No. 29 of 1917and No. 21 of 1918, no Us pendens affecting, or relating to land orother immovable property shall bind a purchaser, mortgagee, &c.,unless it is duly registered ; but, in my opinion, the administrationsuit did not affect or relate to land and section 27a has no applica-tion here. . In re the Estate of Bawiker,1 this Court, in refusing anapplication for leave to appeal to the Privy Council by an applicantwhose application for letters of administration had been dismissed,remarked that title to property was not involved in the slightestdegree in the action. Therefore, the general principle applies tothis case, that a person who purchases property pending an actionbuys its subject to the result of the action. Under the Common lawa Us pendens arises as soon as the opposite party has been servedwith summons or has received notice of the action (Perera v.Silva,2 Muheeth v. NadarajapiUa3), and a judgment is conclusiveagainst a person as privy in estate to a party litigant, if he derivestilde under the latter by an act subsequent to the action (Arumugamv. Thampu*). The plaintiff having taken the mortgage after thesecond defendant had filed his objections and after the issues hadbeen fixed for trial, he is bound by the result of the proceedings inthe administration suit. Has the judgment of the Court in theadministration suit that Kanapathipillai was married to the firstdefendant and that Ponnampalam is not his legitimate son the
1928.
Jayewar*pSnb A.J»
VelupiUai v.MuthupiUai
1 (1903) 3 Sal. Bep. 25.8 (1917) 19 N. L. B. 461.
* (1910) 13 N. L. B. 81.4 L1912) 15 N. L. B. 253.
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1988.
Jayewab-DBNE A. j.
MiU^^Uai
effect of a res judicata ? It is contended that in the oase of judg-ments in' personam, the decision is only binding in respect of theproperty or the claim in litigation in that suit; it does not affectother property or claims held or made under the right which wasin question in the previous case. No doubt the judgment inquestion is one in personam and not in remt although given by aCourt in the exercise of its probate jurisdiction. But I do notthink that its binding effect can be restricted to the very propertyor claim in question in those proceedings. It has been held bya Full Bench (Lascelles C.J., Wood Benton J., Pereira J. dissentients)of this Court that sections 34, 207, and 406 of the Civil ProcedureCode do not contain the whole of the law of res judicata prevailingin Ceylon, and that the . general principles of res judicata obtainingin England and India are applicable here (Samichi v. Pieris1).
Generally speaking, estoppel by res judicata may arise either wherethere is identity of “ cause of action ” or where there is identityof “ point in issue.” Where there is identity of causes of action,the judgment in the case is a bar to all further litigation upon thesame property, claim, or right. In such cases it must be shown thatthere is identity between the present and former causes of action.If they are identical, the plea of estoppel is good. This is the classof estoppel by res judicata dealt with in the explanation to section207. In the other class of cases identity of causes of action isimmaterial, and the only question to be considered is whether the“ point in issue ” is identical in the two cases. In such cases thejudgment on the issue creates an estoppel with regard to all mattersin dispute upon the decision of which the finding was based. Thisrule was laid down by De Grey C.J. when delivering the unanimousopinion of the Judges in the case known as The Duchess of King-ston’s Case.2 He said :—
“ From the variety of cases relative to judgments being given inevidence in civil suits, these two deductions seems to followas generally true : first, that the judgment of a Court ofconcurrent jurisdiction, directly upon the point, is as aplea, a bar, or as evidence, conclusive, between the sameparties, upon the same matter, directly in question inanother Court; secondly, that the judgment of a Courtof exclusive jurisdiction, directly upon the point, is, inlike manner, conclusive upon the same matter, betweenthe same parties, coming identically in question in anotherCourt for a different purpose.”
Also see Outram v. Morewood.3 It is upon the basis of the principlelaid down in these English authorities that the Full Bench, inSamichi v. Pieris (supra) held that it was not always essential that
1 (1913) 16 N. L. R. 257.> (1776) 2 Smith's L. C. 731.
« (1803) 3 East. 346.
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the subject-matter of the litigation in the two suits should be 1923.identical, and that, very often, the true test is the identity of the j^^waa*matter in controversy. See also Dingiri Menika v. Punchi Mahal- dene A.J.maya,1 Kantaiyar v. Bantu,2 and Loku Banda v. Piyadasa Unanse? Velupittai v.It may be that if the question had been looked at in the way I have MuthvpiUaiindicated, the necessity for expanding the meaning of the termcause of action ” so as to include a “ point in issue ” might havebeen obviated. Tested in the light of these principles, the judg-ment in the administration suit on the issues of marriage andlegitimacy is res judicata here. – An English case which is veryapposite to the present case is Barra v. Jackson,4 often referred toand followed in our Courts. I extract a passage from the judgmentof Wood Benton J. in 201—D. C. Kalviara, No. 4,836,6 which statesthe facts and the effect of the judgment:—
“ A suit was instituted in the Prerogative Court for adminis-tration to the estate of Miss Smith. The defendant,
Jackson, claimed a grant of administration as her next ofkin. A rival claim was put forward by Mrs. Barrs. TheEcclesiastical Court held that Mr. Jackson was the next ofkin, and granted letters of administration to him on thatbasis. Mrs. Barrs afterwards instituted in the Court ofChancery a suit claiming, as next of kin, the residuaryestate of the intestate. Jackson pleaded that the sentenceof the Ecclesiastical Court was res judicata as regards herclaim in the Chancery action. Vice-Chancellor KnightPruce held that it was not. But Lord Lyndhurst on appeal(1845,1 Ph. 582) held that it was, on the ground that thejudgment of the Ecclesiastical Court had turned upon thequestion which of the parties was next of kin to theintestate, and that that judgment was.decisive of thesame question in a subsequent suit in the Court of Chancerybetween the same parties for administration. The scopeof the case Barrs v. Jackson (supra) is explained by LordPenzance in Spencer v. William* If two parties haveonce, before a Court of competent jurisdiction, litigatedany question of fact, and that question has been finallydecided, it is not reasonable that either of them, in anyother Court, should re-open it.”
Barrs v. Jackson (supra) thus is on all fours with the presentcase, and its ratio decidendi is applicable. Therefore, the judgmentin the administration suit declaring that Kanapathipillai waslegally married to the first defendant, and that the second defendantis his legitimate son and sole heir, isres judicata between the first
1 {1910) 13 N. L. R. 58.*(1845) lY.deC. 585 ; 1 Ph. 582.
{1909) 13 N. L. R. 161.*{1913) 16 N. L. R. 267.
{1917) 4 C. W. R. 155.•{1891) L. R.2P.& D. 235-236.
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1628.
Jays war*drafts A.J.
VelupiUai v.Mtuhupillai
defendant and Ponnampalam and their privies, and it is not opento the. plaintiff, if he is a privy of Ponnampalam, to raise the sameissue in the present litigation.
But it is contended that the plaintiff is not a privy of Ponnam-palam, as he is a purchaser in execution,and is not bound by estoppels,whether by res judicata or otherwise, that bind his judgment-debtor.In support of this contention Mr. Hayley relied on several local cases(Kalu Banda v. Dingiri Banda,1 TiUianvpalam v. CMnnapillai,2Sandrasagram v. Goomarasamy3 and Poochy v. Waloopillai4) andon the judgment of the Privy Council in Dinendronath v. RamhumarGhose,5 but the soundness of the local authorities have been doubtedby Ennis J. in PedrupiUai v. Dionisa 6 and in Rajapaksev. Fernando?In. the former case he said :—
“ It appears that estoppels .may arise by the voluntary conductof a party or by the operation of law, and it seems to methat the principle that a judgment-creditor is not concludedby estoppels against his debtor applies only to estoppelswhich arise from conduct, and does not apply to an estoppelnot brought about by the voluntary conduct of the debtor,but by an adverse judgment against him.”
And in the latter case :—
“ A distinction appears at one time to have been drawn betweenthe position of a purchaser on a sale in execution and thepurchaser at a private sale, on the ground that the formerobtained his title by operation of law freed from all incum-brances effected by the judgment-debtor subsequentlyto the attachment of the property sold in execution(Dinendronath v. Rankwmar Ghose (supra)); but in the latercase of Mohamad Hasseem v. Kishori Mohun Roy8 it washeld by the Privy Council that an auction purchaser wasbound by an estoppel which bound the person whose right,title, and interest he purchased (Caspersz : Estoppel, 4th ed.,p. 214)."
But it is not necessary to consider the soundness of the author-ities relied on by Mr. Hayley, as all these cases refer to purchasersin execution of ordinary money decrees. But the plaintiff here is apurchaser in execution of a mortgage decree, and I do not thinkthe same considerations apply to him. It has always been heldthat a mortgagee is not bound by judgments obtained against hismortgagor after the execution of the mortgage bond: The NatalLand Colonization Co. v. Good9 and Armugam v. Thampu {supra)
1 (1911) 14 N. L. R. 145. ’8(1881)7 Cal. 107 ;8 I. A.65.
8 (1917) 4 C. W. R. 311.•(1917)20 N. L. R.143.
8 (1917) 4 C. W. R. 378.7(1918)20 N. L. R.300 (303).
8 (1919) 21 N. L. R. 335.8(1896)22 Cal. 909.
• (1888) L. R. 2 P. C. 121.
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where it was held that a judgment obtained against a mortgagorof land after the mortgage is res inter alia acta as to the mortgageewho was not a party to the action. The law is the same inLidia (Bonomake Nag v. Boylash Chundar4 and Soshi BashunQvha v. Gogan Chundar Shahaa). These judgments raise theclear implication that a judgment obtained against themortgagor before the mortgage would bind the mortgagee. Therelation of mortgagor and mortgagee is created by contract, and itis by virtue of that contract that the property is sold when themortgagor commits a breach of his agreement. A purchaser inexecution of a mortgage decree stands in an entirely differentposition from that of a purchaser under an ordinary money decree,and it cannot be said that he does not derive title through or acquirestitle adversely to the mortgagor. Such a purchaser is, in myopinion, a privy of the mortgagor, for the purpose of the law ofres judicata. The plaintiff is accordingly a privy of his mortgagor,Ponnampalam, and is bound by the judgment given against him.
The learned District Judge was, therefore, right in upholding theplea of res judicata. In these circumstances it becomes impossibleto adjudicate on the facts afresh, and the appeal must be dismissed,with costs.
GABvxtr A.J.—I agree.
Appeal dismissed.
1928.
Jatewab*DBMS A.J.
VelupiUai «MutnupiUai