JUDGMENT : SA 518/1999 & SA.598/1999 These appeals arise from a suit for partition. The appellant in S.A. No.598 of 1999 is the first defendant in the suit and the appellant in S.A. No.518 of 1999 is the third defendant in the suit. 2. The suit properties belonged to one Sankaran Nair. The plaintiff and defendants 2 and 3 are the daughters and the first defendant is the son of Sankaran Nair. The fourth defendant is the wife of Sankaran Nair. The case of the plaintiff is that the suit properties devolved on the parties equally on the death of Sankaran Nair and she is, therefore, entitled to 1/5th share in the suit properties. Defendants 2, 3 and 4 supported the case of the plaintiff. The first defendant, however, contested the suit setting up a Will claimed to have been executed by Sankaran Nair bequeathing the suit properties to him. Alternatively, it was also contended by the first defendant that defendants 2 and 3 have released their rights over the properties in his favour and that, therefore, they are, at any rate, not entitled to any share in the suit properties. 3. The plaintiff, in fact, instituted a suit earlier as O.S. No.59 of 1981 on the same lines against the defendants for partition of the very same properties. In O.S. No.59 of 1981 also, the first defendant had set up the very same Will set up by him in the present suit and contended that the suit properties are not partible. Though the trial court found in the said case that the Will set up by the first defendant is not a genuine one and that the suit properties devolved on the parties on the death of Sankaran Nair as claimed by the plaintiff, it dismissed the suit holding that as the parties have orally partitioned the properties, the plaintiff cannot seek partition again and that she can only sue for recovery of possession of her share in terms of the oral partition. Though the plaintiff filed a suit thereafter as O.S. No.17 of 1986 for recovery of possession of a portion of the suit properties from the first defendant in the light of the decision in O.S. No.59 of 1981, the same was dismissed. Though the plaintiff filed a suit thereafter as O.S. No.17 of 1986 for recovery of possession of a portion of the suit properties from the first defendant in the light of the decision in O.S. No.59 of 1981, the same was dismissed. Though the plaintiff challenged the decision in O.S. No.17 of 1986 in appeal, the appellate court dismissed the appeal observing that the plaintiff is free to file a fresh suit for partition. The present suit is instituted thereafter on that basis. 4. The trial court found in the present suit also that the Will set up by the first defendant is not genuine and that the suit properties devolved on the parties on the death of Sankaran Nair. The trial court, however, accepted the contention of the first defendant that defendants 2 and 3 are not entitled to any share in the suit properties. Consequently, a preliminary decree was 5th passed in the suit in favour of the plaintiff for partition of her 1/share in the suit properties. The first defendant has challenged the decision of the trial court in appeal and the third defendant has challenged the decision of the trial court by way of a cross objection in the appeal filed by the first defendant. The appellate court found that in the absence of any appeal by the first defendant against the decision in O.S. No.59 of 1981, the finding therein on the issue relating to the genuineness of the Will would operate as res judicata against him. The appellate court also found that even otherwise, the finding of the trial court that the Will set up by the first defendant is not genuine, is in order. The appellate court also confirmed the finding of the trial court that defendants 2 and 3 are not entitled to a share in the suit properties. Consequently, the appeal and the cross objection were dismissed. Defendants 1 and 3 are aggrieved by the decisions of the courts below. 5. Heard learned Senior Counsel for the appellant in S.A. No.518 of 1999 and learned counsel for the appellant in S.A. No.598 of 1999. 6. The learned counsel for the appellant in S.A. No.598 of 1999 contended that the finding rendered by the courts below that the Will set up by the first defendant is not a genuine one, is incorrect and perverse. 6. The learned counsel for the appellant in S.A. No.598 of 1999 contended that the finding rendered by the courts below that the Will set up by the first defendant is not a genuine one, is incorrect and perverse. According to the learned counsel, the reasons stated by the trial court as also the appellate court for holding so are not sufficient to arrive at such a conclusion. The learned counsel also contended that the finding rendered by the trial court in O.S. No. 59 of 1981 that the Will set up by the first defendant is not a genuine one will not operate as res judicata against him in the present suit and the contrary view taken by the appellate court is unsustainable. It was also contended by the learned counsel that, at any rate, the third defendant is not entitled to a share in the suit properties. According to the learned counsel, Ext.B2 letter sent by the third defendant to the fourth defendant precludes her from claiming a share in the suit properties. 7. Per contra, the learned Senior Counsel for the appellant in S.A. No.518 of 1999 contended that in so far as the decision in O.S. No.59 of 1981 has become final, the finding therein that the Will set up by the first defendant is not genuine would certainly operate as res judicata against him in the present suit and he is, therefore, not entitled to contend in the present suit that the Will is a genuine one. It was also contended by the learned Senior Counsel that the finding rendered by the courts below that Ext.B2 letter precludes the third defendant from claiming a share in the suit properties is per se unsustainable. According to the learned Senior Counsel, a letter in the nature of Ext.B2 would never operate as estoppel against the third defendant in the matter of claiming her due share in the suit properties. 8. After hearing the learned counsel on either side, the substantial questions of law arising for consideration in the appeals have been re-framed thus: (a) Does Ext.B2 letter preclude the third defendant from claiming a share in the suit properties on the principle of estoppel? (b) Does the finding in O.S. No.59 of 1981 on the issue as to the genuineness of Ext.B3 Will operate as res judicata against the first defendant in the present suit? (b) Does the finding in O.S. No.59 of 1981 on the issue as to the genuineness of Ext.B3 Will operate as res judicata against the first defendant in the present suit? (c) Are the findings of the courts below that Ext.B3 Will is not a genuine one, unsustainable in law?” 9. Question (a) -As noted, the findings in the impugned judgments are to the effect that the third defendant is estopped from claiming her share in the suit properties in the light of Ext.B2 letter sent by her to her mother, the fourth defendant. Before examining the sustainability of the said finding, it is necessary to understand the concept of the rule of estoppel. Section 115 of the Indian Evidence Act, 1872 defines the rule thus:- “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” The said definition is founded on the principle that where one by his word or conduct willfully causes another to believe the existence of a state of things and induces him to act on that belief so as to alter his position, the former would be precluded from averring against the latter a state of things different from what was represented to the former at the first instance. The object of the rule is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights also as against the persons estopped. In Pratima Chowdhury v. Kalpana Mukherjee and another [ AIR 2014 SC 1304 ], referring to Section 115 of the Evidence Act, the Apex Court has explained the scope of the rule thus:- “It needs to be understood, that the rule of estoppel is a doctrine based on fairness. It postulates, the exclusion of, the truth of the matter. All, for the sake of fairness. A perusal of the above provision reveals four salient pre-conditions before invoking the rule of estoppel. Firstly, one party should make a factual representation to the other party. It postulates, the exclusion of, the truth of the matter. All, for the sake of fairness. A perusal of the above provision reveals four salient pre-conditions before invoking the rule of estoppel. Firstly, one party should make a factual representation to the other party. Secondly, the other party should accept and rely upon the aforesaid factual representation. Thirdly, having relied on the aforesaid factual representation, the second party should alter his position. Fourthly, the instant altering of position, should be such, that it would be iniquitous to require him to revert back to the original position. Therefore, the doctrine of estoppel would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position.” With the aforesaid principles in mind, the contents of Ext.B2 letter have to be examined. The relevant recital of Ext.B2 reads thus Xxx xxx xxx 10. What is stated by the third defendant in the letter is that she is aware of the fact that her father had informed his daughters during his life time that they will not have any rights in his properties and that she is, therefore, not a daughter who bothers about the undeserved assets and that let the same be enjoyed by those who are destined to enjoy the same. True, in terms of the said letter, the third defendant has acknowledged the fact that her father had informed all his daughters that they will not have any rights in his properties. Such an acknowledgment, according to me, is of no consequence, if the father dies intestate as the properties held by the father would then automatically devolve on his daughters as well by operation of law. It is also stated by the third defendant in the letter that she does not deserve the properties of her father in the light of the desire expressed by her father during his lifetime. The said statement also, according to me, would not preclude the third defendant from claiming her share in the properties of her father, if it devolves on her by operation of law on the death of her father. Further, as noted, the letter is one addressed by the third defendant to the fourth defendant, her mother. The said statement also, according to me, would not preclude the third defendant from claiming her share in the properties of her father, if it devolves on her by operation of law on the death of her father. Further, as noted, the letter is one addressed by the third defendant to the fourth defendant, her mother. Neither the fourth defendant nor others have anything to do with the share of the third defendant in the suit properties and there was no reason or occasion for anybody else to act upon such a letter and alter their position irretrievably to their detriment. Ext.B2 letter, in the circumstances, would never preclude the third defendant from claiming her share in the suit properties. The findings rendered by the courts below on this question are, therefore, not only unsustainable in law, but also perverse. The question is thus answered in favour of the third defendant. 11. Question (b) -As noted, one of the issues formulated for decision in O.S. No.59 of 1981 was whether the testamentary disposition set up by the first defendant is true and the said issue was answered by the court against the first defendant. There is no dispute to the fact that the finding rendered by the court in this connection has become final. According to the first defendant, in so far as the said suit was dismissed, there was no occasion for him to challenge the said finding in appeal and that, therefore, the same would not operate as res judicata against him in the present suit. Though under the Code of Civil Procedure, no appeal is provided for against a mere finding, the courts in India have held consistently on grounds of justice that a party to a suit adversely affected by a finding in a judgment is entitled to file an appeal challenging the same, provided it precludes him from agitating the question covered by the finding in a subsequent proceedings. (See Harchandra Das v. Bholanath Das [ILR (1935) 62 Cal 701]. In Pawan Kumar Gupta v. Rochiram Nagdeo [ (1999) 4 SCC 243 ], in an identical case, the Apex Court held that a finding rendered on an issue of this nature would operate as res judicata against the person concerned in a subsequent judicial proceedings. (See Harchandra Das v. Bholanath Das [ILR (1935) 62 Cal 701]. In Pawan Kumar Gupta v. Rochiram Nagdeo [ (1999) 4 SCC 243 ], in an identical case, the Apex Court held that a finding rendered on an issue of this nature would operate as res judicata against the person concerned in a subsequent judicial proceedings. That was a matter arising from a suit for eviction of a tenant from a building instituted under the Madhya Pradesh Accommodation Control Act, 1961. The ground was bona fide need. The tenant contended that the landlord of the building is the father of the plaintiff and the plaintiff is only his name lender. In fact, there was an earlier suit for the same relief between the same parties on the ground of arrears of rent and the tenant had raised the very same contention in the said suit as well and the said issue was found against the tenant in that suit. As the earlier suit was one for eviction on the ground of arrears of rent, the tenant averted the decree by depositing the areas of rent found due within the time stipulated and consequently the suit was ultimately dismissed. The landlord in the present suit, in the circumstances, contended that the finding in the earlier suit relating to the contention raised by the tenant as regards his title to the tenant premises would operate as res judicata in the present suit. The tenant contended that as the suit was dismissed consequent on deposit of arrears of rent, there was no occasion for him to challenge the findings in the said suit and, therefore, the findings in the earlier suit would not operate as res judicata. The Apex Court held that there was no hurdle at all for the defendant to file an appeal against the judgment and decree in the earlier suit and that, therefore, in so far as no appeal has been preferred against the decision in the earlier suit, the finding rendered therein would operate as res judicata as against him. It was also held in the said case that if the dismissal of the earlier suit was on account of extinguishment of the cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It was also held in the said case that if the dismissal of the earlier suit was on account of extinguishment of the cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. Paragraphs 15, 16 and 19 read thus: “15. Though the word “dismissed” has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The Court found against the plea of the defendant that the plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiff’s claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant had been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully. 16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which “has been directly and substantially in issue in a former suit between the same parties”, and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. xxx xxx xxx 19. Thus the sound legal position is this: if dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. xxx xxx xxx 19. Thus the sound legal position is this: if dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.” 12. The view taken by the Apex Court in Pawan Kumar (Supra) has been approved by a three-judge Bench of the Apex Court in Ramadhar Shrivas v. Bhagwandas [ (2005) 13 SCC 1 ]. Further, the object behind the principle of res judicata being that there shall not be repeated adjudication of the same issue between the same parties and that the litigation shall come to an end when the adjudication once made by the court has become final, is a principle founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions of the courts of competent jurisdictions and it is also in the public interest that individuals should not be vexed thrice over with the same kind of litigation. In the light of the aforesaid discussion, I am of the view that the finding rendered by the court in O.S. No.59 of 1981 that Ext.B3 is not a genuine document would operate as res judicata against the first defendant in the present suit and the first defendant is not entitled to agitate the same issue again in the present suit. The question is thus answered against the first defendant. 13. Question (c) -In so far as question (b) was answered against the first defendant, it is unnecessary to consider this question. In the result, S.A. No.598 of 1999 is dismissed and S.A. No.518 of 1999 is allowed and a preliminary decree for partition of the 1/5th share of the third defendant over the suit properties is passed.