A brought a suit for certain properties in possession of B on the allegation that he was the nearest heir of C, the last owner of the properties in suit. B contested the suit on the grounds that he was an adopted son of C. Is the subsequent suit by B maintainable?

Question: A brought a suit for certain properties in possession of B on the allegation that he was the nearest heir of C, the last owner of the properties in suit. B contested the suit on the grounds that he was an adopted son of C.

A’s suit was decreed and it was held by the court hearing the suit that B had failed to prove adoption set up by him. Subsequent to this decision, B instituted a suit against A alleging that even if there was no adoption he was the nearest heir to C and as such he was entitled to the properties left by C. Is the subsequent suit by B maintainable? Give reasons for your answer.

Find the answer to the mains question only on Legal Bites. [A brought a suit for certain properties in possession of B on the allegation that he was the nearest heir of C, the last owner of the properties in suit. B contested the suit on the grounds that he was an adopted son of C. Is the subsequent suit by B maintainable?]

Answer

The subsequent suit by B is barred by res judicata. In the former suit, B ought to have claimed the property in the alternative as C is his nearest heir than A. This ground was well within the knowledge of B at the time of the former suit and could have been raised by him at that time. B ought to have brought forward his whole case and taken all grounds of attack in the alternative.

Explanation IV of section 11 provides that if a plea which might and ought to have been made a ground of defence or attack in the former suit, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter.

In the case of Workmen v. Board of Trustees, Cochin Port Trust (1978) 3 SCC 119, the Hon’ble Supreme Court of India explained the principle of constructive res judicata and held that “if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties”.

Hence, the subsequent suit by B is not maintainable.

Important Mains Questions Series for Judiciary, APO & University Exams

1. CPC Mains Questions Series: Important Questions Part – I of X
2. CPC Mains Questions Series: Important Questions Part – II of X
3. CPC Mains Questions Series: Important Questions Part – III of X
4. CPC Mains Questions Series: Important Questions Part – IV of X
5. CPC Mains Questions Series: Important Questions Part – V of X
6. CPC Mains Questions Series: Important Questions Part – VI of X
7. CPC Mains Questions Series: Important Questions Part – VII of
8. CPC Mains Questions Series: Important Questions Part – VIII of X
9. CPC Mains Questions Series: Important Questions Part – IX of X
10. CPC Mains Questions Series: Important Questions Part – X of X