CPC Case Brief – Mahboob Sahab v. Syed Ismail (co-def rule and s. 11)

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FACTS:  Syed Ismail and Ibrahim, sons of Maqdoom, filed a suit impleading their parents and appellant/purchaser (Mahboob Sahab), for possession of the suit lands and for mesne profits from the appellant (Mahboob Sahab). The averments made in support thereof are that their father had executed a gift deed giving 15 acres 38 gunthas, jointly in their favour and their mother Smt. Chandi, the third defendant, who in her turn, orally gifted over her share to Syed Ismail in April 1958 at the time of his marriage. Being minors, their father -second defendant, while cultivating the lands on their behalf, had colluded with the Patwari and executed sale deed in favour of the appellant (Mahboob Sahab) On their becoming aware of the same, they filed the suit since their father had no right, title and interest therein to alienate the lands. The sales, therefore, in favour of the appellant were invalid, inoperative and do not bind them. The appellant (Mahboob Sahab) pleaded that Maqdoom had entered into an agreement of sale. When Maqdoom and Smt. Chandi refused to execute the sale deed, he filed a suit for specific performance which was decreed on a contest and the sale deed of the abovesaid property was executed and registered by the court. Ibrahim son of Maqdoom acted as an attesting witness of the said sale. Their parents had not given any gifts which were set up only to defraud the appellant and none of the elements of a valid gift was fulfilled.

It was brought out at the trial that in another suit filed by Syed Ismail on the foot of a possessory mortgage, the executability of another decree obtained by another creditor, was impugned, wherein by judgment and decree, the Court held that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed.

The aforesaid finding was pleaded to operate as res judicata against the appellant (Mahboob Sahab) in the present suit.

Issue: Whether the finding in another suit operates as res judicata against co-defendants in present suit?

Holding: The court held that for the application of the doctrine of res judicata between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to 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 suit.

Where the above four conditions did not exist the decree does not operate as res judicata.

The doctrine of res judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practising fraud or collusion, be cannot be allowed to say that the matter is res judicata and cannot be re-opened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record. As found by the appellate court, Maqdoom was plying fraud upon his creditors by creating false oral gifts or spurious claims of mortgagees with a view to defraud them.

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