MANU/SC/0122/2000

Equivalent Citation: AIR2000SC1238, 2000(2)ALLMR(SC)444, 2000(102(3))BOMLR516,

(2000)3GLR33, JT2000(2)SC352, (2000)IIMLJ172(SC), 2000(2)SCALE52, (2000)3SCC350,
[2000]1SCR1095, 2000(2)UJ960

IN THE SUPREME COURT OF INDIA

Civil Appeal NO. 5290 of 1985

Decided On: 23.02.2000

Appellants:Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs.

Vs.
Respondent:Musa Dadabhai Ummer & Others

Hon'ble Judges/Coram:
M. Jagannadha Rao and R.C. Lahoti, JJ.

Counsels:
For Appearing Parties: Y.S. Chitale, R.P. Bhatt, Sr. Advs., S.A. Shroff, S.S. Shroff, Harish N.
Salve, R. Sasiprabhu, S. K. Mehta, Aman Vachher, Atul Nanda, M.N. Shroff, Anip Sachthey, P.S.
Shroff, Monica Sharma, S. Bhowmick, H. Wahi, Neetu Singh Nandini Mukherjee, Anu Sawheny,
Shobha, E.C. Vidyasagar, Sayali Pathak, S. Hazarika, Advs

Subject: Trusts and Societies

Acts/Rules/Orders:
Bombay Public Trusts Act, 1950 - Section 2(19), Bombay Public Trusts Act, 1950 - Section 9,
Bombay Public Trusts Act, 1950 - Section 19; Religious Endowments Act, 1863 - Section 18;
Mussalman Wakf Validating Act, 1913 - Section 3; Code of Civil Procedure (CPC) - Section 11,
Code of Civil Procedure (CPC) - Section 92

Cases Referred:
Pragdasji v. Ishwarlal Bhai MANU/SC/0072/1952; Mohd. S. Labbai v. Mohd. Hanifa
MANU/SC/0510/1976 ; Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994; Ali Miya v.
Sayed Mohammed MANU/GJ/0095/1968 ; Sayed Mohammed v. Ali Miya 1972(13) GLR. 285;
Sayed Abdul Edroos v. Sayed Zain Sayad Hasan Edroos MANU/MH/0082/1888 : ILR (1889) 13
Bom. 555; Saiyad Jaffar El Edroos case (1937) 39 BLR 277 : MANU/MH/0142/1936 : AIR 1937
Bom 217; R. v. Knaptoft Inhabitants (1824) B & C 883; Heptulla Bros. v. Thakore 1956(1) WLR
289; Sanders (otherwise Saunders) v. Sanders (otherwise Saunders) 1952(2) All ERR 767; Blair
v. Currari 1939(62) CLR 464; North Carolina R. Co. v. Story (1924) 45 S.Ct. 531; Hoaq v. New
Jersey (1958) 356, US 464 : 78 S ct 829; Run Bahadur v. Lucho Koer ILR (1885) Cal 301;
Asrar Ahmed v. Durgah Committee, Ajmner AIR 1947 PC 1; Isher Singh v. Sarwan Singh
MANU/SC/0345/1964; Uthiva Somasundareswarar Temple v. Rajanga MANU/TN/0271/1965

Citing Reference:

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Discussed
Mentioned 8

Authorities Referred:
Halsbury Vol. 16 4th Ed.; Spencer Bower and Turner on 'The Doctrine of Res Judicata' 2nd Ed,
1969; Mulla, 15th Ed; Corpus Juris Secundum Vol. 50

Background :

Trusts and Societies - Appeal filed by the Appellant against the order passed rejecting
preliminary objections of resjudicata raised by him

Issues :

Whether the matter is directly and substantial in issue or collateral and incidental in
issue to grant resjudicata.

Holding :

The Court concluded that the words used In Section 11, CPC are "directly and
substantially in issue". If the matter was in issue directly and substantially in a prior
litigation and decided against a party then the decision would be res judicata in a
subsequent proceeding. It stated that if a matter was only 'collaterally or incidentally'
in issue and decided in an earlier proceeding, the finding therein would not ordinarily
be res judicata in a latter proceeding where the matter is directly and substantially in
issue. It added that if the issue was 'necessary' to be decided for adjudicating on the
principal issue and was decided, it would have to be treated as "directly and
substantially' in issue and if it is clear that the judgment was in fact based upon that
decision, then it would be res judicata in a latter case. Hence, appeal dismissed.

JUDGMENT

M. Jagannadha Rao, J.

1. This appeal arises out of orders passed rejecting the preliminary objection raised by the
appellant. The preliminary objection was that the present proceedings initiated by the deceased
first respondent on 21-8-1967 before the Assistant Charity Commissioner, Surat Region under
Section 19 of the Bombay Public Trusts Act, 1950 to declare three Rozas (situated at three
places Ahmedabad, Broach and Surat were public trusts, were barred by res judicata in view of
three decisions arrived at earlier-one in 1931, another dated 19-1-1967 and a third one
initiated in 1965.

2. In the present proceedings, which relate to the Rozas at all the three places, the Assistant
Commissioner in his orders in Inquiry No. 142/67 dated 26-7-68 accepted the preliminary
objection of res judicata but the joint Charity Commissioner, Gujarat in his order in Appeal No.
85/68 dated 17-12-73 did not accept the plea (before him, the plea was confined to the Rozas
at Broach and Surat). He set aside the order and remanded the matter for inquiry. The said
order of the joint Commissioner was affirmed on 30-9-76 by the learned Assistant Judge in
Misc. Civil Application No. 32 of 1974 and by the Division Bench of the Gujarat High Court in
First Appeal No. 985 of 1976 on 27-7-85. As the preliminary objection was negatived, a
direction was given to the Assistant Commissioner to dispose of the Inquiry No. 142 of 1967 on
merits. Aggrieved by the above said orders, the appellant (who was respondent in the main
Inquiry No. 142/67) has filed this appeal and has raised the same plea of res judicata before us
once again. In the present appeal, the plea of res judicata is confined to the Rozas at Broach
and Surat.

3. As the contention of res judicata raised by the appellant concerns three earlier proceedings,
we shall have to refer to them. But we may also point out that in certain other proceedings
relied upon by the respondents a view has already been taken that principle of res judicata does

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not apply. These other proceedings were those started in 1954 under Section 19 of the Bombay
Act (Appl. 289/54) by one Ali Miya Manmadiya and others, in connection with the Ahmedabad
Roza. There a similar plea of res judicata was raised by the appellant Sayed Mohumed Baquir
El-Edroos and the said plea was rejected by the Deputy Commissioner on 23-4-56 and that
decision was confirmed by the Charity Commissioner in Appeal 125/56 on 29-5-57, reversed by
the District Judge in 149/57 on 29-12-1959 - but the plea of res judicata was once again
rejected by a learned single Judge of the Gujarat High Court on 24-4-67 in the case reported in
Ali Miya v. Sayed Mohammed MANU/GJ/0095/1968 : AIR1968Guj257 and that decision of the
learned single Judge was affirmed on 14-9-70 by a Division Bench in Sayed Mohammed v. Ali
Miya (1972) 13 GLR 285. In fact, In the present proceedings, the Joint Commissioner, the
Assistant Judge and the High Court have all applied the ratio of those two decisions relating to
Ahmedabad Roza - on the question of res judicata - in relation to the Broach and Surat Rozas
as well. It was held that on the same ratio, that the earlier orders relied upon by the appellant
declaring the Broach and Surat Rozas to be private trusts and not public trusts, were not res
judicata.

4. We may also point out that special Leave petitions Nos. 2574, 2575/71 against the Division
Bench judgment of the High Court dated 14-9-70 were got dismissed by the appellant as
withdrawn on 16-11-1971. No doubt, this Court observed that the plea of res Judicata would be
available to the appellant in the regular inquiry in that case. Later on, the District. Judge
renumbered the Petition 149/57 as CMA 352/67 and on merits held that the Ahmedabad Roza
was a public trust, RFA 488/72 filed by the appellant was dismissed by the High Court or 4-5-73
and SLP (CA No. ' 1974/75) was dismissed for non-prosecution by this Court. Thus the rejection
of the plea of res judicata and the finding on merits so far as the Ahmedabad Roza was
concerned, became final. That was why in the present proceedings at. the stage of joint Charity
Commissioner, the plea of res judicata was confined to the Rozas at Broach and Surat.

5. The earlier history of these wakfs is set out in the reported judgments of the Gujarat High
Court, referred to above. These judgments refer to two other judgments of the Bombay High
Court.

6. Edroos family in Gujarat claimed to be descendants of Hazarat Imam Ali, the son-in-law and
cousin of Prophet Mohamed. One of the descendants of the said Hazrat came down to India in
1542 A.D. and founded his Gadi at Ahmedabad, Broach and Surat. The members of the Edroos
family were Sajjadanashins or Mutavallis of the wakf throughout. The three Rozas at the three
places as well as the villages which were granted-not only for the maintenance of these Rozas
but also for the benefit of the Waqif's family, - constituted the wakf. The holder was buried in
the house and his Dargah is situated in this place. There is also a place for reciting prayers. In
Sayed Abdul Edroos v. Sayad Zain Sayad Hasan Edroos MANU/MH/0082/1888 : ILR (1889) 13
Bom 555, a Division Bench of the Bombay High Court, traced the history of the wakf and held
that the custom of primogeniture did not apply to the office of Sajjadanishin or Mutavalli of this
wakf. In the next litigation, in Saiyad Jaffaar El Edroos v. Jayad Mahomed El Edroos
MANU/MH/0142/1936 : AIR1937Bom217 , which is more important, another Division Bench
held, after construing the royal grants relating to the villages Umrao and Orma that the grants
were primarily for the Rozas and Dargas and they clearly constituted "wakf but that the
Sajjadanashin or Mutavalli had, however, a right to the surplus income left over after discharge
of the legal obligations regarding the wakf. In exercise of that power over the surplus income,
the Sajjadanishin, It was held, could provide for the needs of the indigent members of the
family and this was a pious obligation which was only a moral obligation and not a legal
obligation and hence the indigent members of the Edroos family could not, as of right, claim
maintenance out of the surplus income.

7. We shall now come to the 1928 suit filed under Section 92 of the CPC which is the first of the
cases giving rise to the plea of res judicata. This was a Regular Suit No. 201 of 1928 filed under
Section 92, CPC by three plaintiffs impleading the father of Sayed Mohamed Baquir-El-Edroos,
the appellant in this appeal, as defendant. (The appellant before us was also the appellant
before the Division Bench which decided Sayed Mohamed v. Ali Miya (1972) 13 GLR 285. in
relation to the Ahmedabad Roza), The plaintiffs contended that the appellant's father was not
legally appointed to the shrines at the three places and that he was mismanaging the properties

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and prayed that an injunction should be granted. They also asked for the framing of a scheme
and for appointing a board of trustees. The Collector granted permission on 22-2-28 for filing
the suit under Section 92, CPC. The first Sub-Judge, Surat dismissed the suit on 6-10-1931.
Appeal No. 80/31 filed by the plaintiffs was also dismissed and cross-objections were allowed on
21-11-1938. The Second appeal to the High Court was withdrawn. In the judgment of the
District Court, we find that there were 8 points. Points 1 to 7 related to the validity of
appointment of the defendant and the nature of the office and the right to the surplus etc. On
those points, it was held that the appointment of the defendant as Sajjadanishin was valid and
that the grant of the property was both for the Rozas and for the maintenance, presumably of
Sajjadanishin and his family members. It was held that the Sajjadanishin had complete power
of disposal over the surplus as he was not in the position of an ordinary trustee. While the
upkeep of the Dargas, the holding of fairs and proper attention to the visitors to the Rozas was
a primary legal obligation and a charge on the income of these villages, the Sajjadanishin, it
was held, had full power over the surplus. On this basis, the plaintiff's plea that the
Sajjadanishin was misutilising the income was rejected by the District Judge and the Judgment
of the trial Judge dated 6-10-31 dismissing the suit filed under Section 92 of the CPC was
affirmed. This judgment of the learned District judge is dated 21-11-38.

8. The District Court in its judgment of 1931 had also framed Issue 9. The issue was as to
whether the wakf was a private wakf or a public wakf and the learned Judge found that the
wakf was a private wakf. He observed in para 15 of his judgment that from 1746 A.D. onwards,
the "Sajjadanishins were using the revenue of these villages for their own maintenance and that
of the members of their families and other dependants" and this was permissible according to
the earlier judgment of the Bombay High Court in Saiyad Jaffar El Edroos Case (1937) 39 BLR
277 : MANU/MH/0142/1936 : AIR 1937 Bom 217. Always the Sajjadanishin was from the family
and never a stranger or outsider. These facts, the learned District Judge held were sufficient to
lead to the conclusion that the wakf was a 'private' one. He observed that the documents in the
case were also inconsistent with the wakf being a public one. It is this finding that is pleaded by
the appellant as res judicata in the present proceedings.

9. We have already stated that in relation to the Roza at Ahmedabad, an identical plea raised
by the appellant was rejected by the learned single Judge of the Bombay High Court in Ali Miya
v. Sayed Mohamed MANU/GJ/0095/1968 : AIR1968Guj257 and 6n appeal by the Division Bench
in Sayed Mohamed v. Ali Miya (1972) 13 GLR 285. It is true that the above-said reported
judgments of the High Court related to the Ahmedabad Roza and were rendered at the
preliminary stage on a plea of res judicata but we find that the learned Judges in the said
judgments have gone into the matter in detail as to why the decision rendered by the District
Judge on 21-11-1938 would not be res judicata in the 1954 proceedings initiated under Section
19 of the Maharashtra Public Trusts Act, 1950. Our task in this behalf has therefore been
lightened and we will be adverting to the reasons given by the Division Bench of the High Court
in Sayed Mahomed v. Ali Miya (1972) 13 GLR 285, on the question of res judicata under Point
2. Under point 3, we shall refer to two other proceedings of 1967 and 1966 as these two
decisions of the authorities also relied upon the 1931 judgment.

10. The points that arise for consideration are:

(i) What is meant in Section 11, CPC by an issue being collaterally or incidentally in
Issue as distinct from being directly and substantially in issue?

(ii) Whether the decision of the District Judge, Surat in Appeal No. 80/31 operates
as res judicata in the present proceedings?

(iii) Whether the decision of the Assistant Charity Commissioner dated 19-1-1967 in
Inquiry No. 14/54 filed by Peer Mohammed Fruitwala and Inquiry No. 3/65 filed by
Sayed Hasan Sayed Mohammed El-Edroos holding the properties in respect of
Darghas at Ahmedabad, Broach and Surat not to be public trust are res judicata in
the present proceedings?

Point No. 1:

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11. The words 'collaterally or incidentally' in Issue have come up for interpretation in several
common law jurisdictions in the context of the principle of res judicata. While the principle has
been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it
has however been accepted that there are exceptions to this rule. The English, American,
Australian and Indian Courts and jurists have therefore proceeded to lay down certain tests to
find out if even an earlier finding on such an issue can be res judicata in a later proceeding.
There appears to be a common thread in the tests laid down in all these countries.1 We shall
therefore refer to these developments.

Matters collaterally or incidentally in issue:

12. It will be noticed that the words used In Section 11, CPC are "directly and substantially in
issue". If the matter was in issue directly and substantially in a prior litigation and decided
against a party then the decision would be res judicata in a subsequent proceeding. Judicial
decisions have however held that if a matter was only 'collaterally or incidentally' in issue and
decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a
latter proceeding where the matter is directly and substantially in issue.

13. As pointed out in Halsbury's Laws of England (Vol. 16, para 1538) (4th Ed), the
fundamental rule is that a judgment is not conclusive if any matter came collaterally in question
(R. v. Knaptoft Inhabitants (1824) 2 B & C 883; Heptulla Bros v. Thakore 1956 (1) WLR 289; or
if any matter was incidentally cognizable (Sanders (otherwise Saunders) v. Sanders (otherwise
Saunders) (1952) 2 All ER 767.

14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the
former is an auxiliary issue and the latter the principal Issue. The expression 'collaterally or
incidentally' in issue implies that there is another matter which is 'directly and substantially' in
issue (Mulla, CPC 15th Ed., p. 104).

Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in

issue and tests laid down in various Courts:

15. Difficulty in this area of law has been felt in various jurisdictions and therefore some tests
have been evolved. Halsbury says (Vol. 16, para 1538) (4th Ed.) that while the general
principle is clear, "difficulty arises in the application of the rule in determining in each case what
was the point decided and what was the matter incidentally cognizable, and the opinion of
judges seems to have undergone some fluctuations".

16. Spencer Bower and Turner on 'The Doctrine of Res Judicata' (2nd Ed, 1969) (p. 181) refer
to the English and Australian experience and quote Dixon, J. of the Australian High Court in
Blair v. Currari (1939) 62 CLR 464 to say ; "The difficulty in the actual application of these
conceptions is to distinguish the matters fundamental or cardinal to the prior decision on
judgment, or necessarily involved in it as its legal justification or foundation, from matters
which, even though actually raised and decided as being in the circumstances of the case the
determining considerations, yet are not in point of law the essential foundation of a groundwork
of the judgment". The authors say that in order to understand this essential distinction, one has
always to inquire with unrelenting severity - is the determination upon which it is sought to find
an estoppel so fundamental to the substantive decision that the latter cannot stand without the
former. Nothing less than this will do. It is suggested by Dixon J. that even, where this inquiry
is answered satisfactorily, there is still another test to pass; viz. whether the determination is
the 'immediate foundation' of the decision as opposed to merely a proposition collateral or
subsidiary only, i.e. not more than part of the reasoning supporting the conclusion". It is well
settled, say the above authors, "that a mere step in reasoning is insufficient. What is required is
no less than the determination of law, or fact or both, fundamental to the substantive decision".

17. American jurists and Courts have also found difficulty but they have tried to lay down some
tests. It is conceded In Corpus juris Secundum (Vol. 50, para 725) that "it is sometimes difficult
to determine when particular issue determined is of sufficient dignity to be covered by the rule

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of estoppel. It is said that estoppel by judgment does not extend to any matter which was only
incidentally cognizable or which came collaterally in question, although it may have arisen in
the case and have been judicially passed on (Per Taft, J, in North Carolina R. Co. v. Story)
(1924) 45 S Ct 531 : 268 US 288. But this rule does not however prevent a judgment from
constituting an estoppel with reference to incidental matters necessarily adjudicated in
determining the ultimate vital point. American Jurisprudence (Vol. 46 judgments para 422) too
says : "Under this rule, if the record of the former trial shows that the judgment could not have
been rendered without deciding the particular matter, it will be considered as having settled
that matter as to all future actions between the parties". (Per Harlan, J. in Hoag v. New Jersey)
(1958) 356, US 464 : 78 S Ct 829, quoting Restatement, judgments (para 68(1)) and
'Developments in the Law - Res Judicata' (1952) 65 HLR 818. (See also collateral estoppel by
judgment - by Prof, Scott. (1942) HR 1.

18. In India, Mulla has referred to similar tests (Mulla, 15th Ed, p. 104). The learned author
says : A matter in respect of which relief is claimed in an earlier suit can be said to be generally
a matter 'directly and substantially' in issue but it does not mean that if the matter is one in
respect of which no relief is sought it is not directly or substantially in issue. It may or may not
be. It is possible that it was 'directly and substantially' in issue and it may also be possible that
it was only collaterally or incidentally in issue, depending upon the facts of the case. The
question arises as to what is the test for deciding into which category a case falls? One test is
that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was
decided, it would have to be treated as "directly and substantially' in issue and if it is clear that
the judgment was in fact based upon that decision, then it would be res judicata in a latter
case, (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the
judgment to find out if the matter was directly and substantially in issue (Isher Singh v. Sarwan
Singh MANU/SC/0345/1964 : AIR1965SC948 Mohd. S. Labbai v. Mohd. Hanifa
MANU/SC/0510/1976 : [1976]3SCR721 . We are of the view that the above summary in Mulla
is a correct statement of the law.

19. We have here to advert to another principle of caution referred to by Mulla (p. 105). "It is
not to be assumed that matters in respect of which issues have been framed are all of them
directly and substantially in issue. Nor is there any special significance to be attached to the
fact that a particular issue is the first in the list of issues. Which of the matters are directly in
issue and which collaterally or incidentally, must be determined on the facts of each case. A
material test to be applied is whether the Court considers the adjudication of the issue material
and essential for its decision".

20. The Privy Council and the Supreme Court had occasion to deal with these points. Three
decisions, - two of the Privy Council and one decided by the Supreme Court can be referred to
in this context as illustrations of cases where in spite of an issue and a decision in an earlier
case, the finding was treated as being only collaterally or incidentally in issue and not res
judicata. In Run Bahadur v. Lucho Koer ILR (1885) Cal 301 (see Mulla p. 107), A, a Hindu, died
leaving a widow and a brother C. The widow sued B, the tenant for rent of certain property
forming part of the estate of her husband. C, the husband's brother, claimed the rent on the
ground that the property was joint family property and that he was entitled to the rent by
survivorship. C was then joined as a defendant. Two issues were" framed (1) whether the
deceased alone received the whole rent of the property in his life time, or whether the rent was
received by him jointly with his brother C? (2) whether any rent was due and if so, how much
was due from B? The finding on the first issue was that the deceased alone received the whole
rent in his life time. Subsequently, C sued the widow for declaration that he and his brother
were joint, and he claimed the property by right of survivorship. The question arose whether
the deceased and C were joint or separate and the earlier finding was held not res judicata
inasmuch as the matter was not 'directly and substantially' in issue in the earlier suit. It was in
issue in the earlier suit only 'collaterally or incidentally', as it did not cover the entire question
of C's title but related merely to the joint or separate receipt of rent.

21. The next decision, again of the Privy Council is the one in Asrar Ahmed v. Durgah
Committee, Ajmer AIR 1947 PC 1, relating to the famous Dargah of Moinuddin Chisti, Ajmer. In
a former suit of 1880 under Section 18 of the Religious Endowments Act, 1853 filed by the

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President and one Member of the Durgah Committee for removal of one Ameer Ali, the
Mutavalli on ground of maladministration, the question as to the hereditary nature of the office
was the subject-matter of a specific issue and it was held that the office was hereditary,
accepting the plea of the defendant. While decreeing the suit for removal of the Mutavalli, the
Court however held that if the Mutavalli behaved properly, he could be reinstated as the office
was hereditary. In 1918, the Dargah Committee filed a suit against Nisar Ahmed, brother of the
deceased Mutawalli, whom the Commissioner proposed to recognise as legal heir and Mutawalli,
thus treating the office as hereditary. But in that case the Committee claimed that the office
was not hereditary. Nisar Ahmed, the defendant claimed the office as hereditary and relied
upon the earlier finding. This suit however abated. Nisar Ahmed died in 1940. Then Ameer Ali's
son filed a suit claiming the office to be hereditary. The suit was decreed by the District Judge
but dismissed on appeal. In the plaintiffs appeal to the Privy Council, their Lordships rejected
the plea of res judicata and held that the issue as to the hereditary nature of the office was
irrelevant in the earlier suit and the decision was incidental to and not the substance of the
earlier suit.

22. The Supreme Court decided a similar case in Pragdasji v. Ishwarlal Bhai
MANU/SC/0072/1952 : [1952]1SCR513 . There the question of res judicata arose at two stages
of the same proceeding. The plaintiffs filed a suit under Section 92, CPC in 1928 for (i) a
declaration that the properties under the management of the defendant were religious and
charitable trust properties (ii) the defendant be removed from the Gadi from possession of the
properties and a suitable successor be appointed, (iii) the defendant be called upon to account
for his period of management and (iv) to frame a scheme for proper management of the
institution. The defendant traversed the material allegations and pleaded that the suit was not
maintainable inasmuch as no public trust existed and the proper ties were private properties of
the defendant. On these pleadings, a number of issues were framed of which two were treated
as preliminary issues (i) whether the temple and the properties in suit were public charitable
properties? and (ii) if not, whether this Court has jurisdiction to try the suit? On the preliminary
issues, the District Court gave a judgment on 18-7-1935 against the plaintiff and dismissed the
suit. The High Court however held on 24-1-1938 that the charity was a public one covered by
Section 92 of the CPC. In the application for special leave, the Privy Council refused the
application inasmuch as the case was at a preliminary stage but said that the order was without
prejudice to the presentation of a fresh petition (for special leave) after all the issues were
determined. Later, the District Court took up the suit for decision on merits. The Court held that
allegations of breach of trust and misconduct were not proved and the suit was dismissed but
"subject to the declaration already given by the High Court that the temple and the properties
in possession of the defendant were public, religious and charitable properties". The High Court
affirmed the same on appeal by the plaintiff. The defendant came up In appeal to the Supreme
Court objecting to the 'declaration' as to the public nature of the properties, virtually attacking
the earlier finding dated 24-1 38. The Supreme Court vacated the 'declaration' made as to the
public character of the charity and its properties on the ground that the said question was
beyond the scope of Section 92, CPC in the earlier suit. This Court also held that in a suit, under
Section 92, CPC the only reliefs that could be claimed were those specified in Section 92, CPC
and "a relief praying for a declaration that the properties in the suit are trust properties, does
not come under any of these clauses". This Court observed:

When the defendant denies the existence of the trust, a declaration that the trust
does exist might be made as auxiliary to the main reliefs under the section if the
plaintiff is held entitled to it.

23. It was then stated by this Court that when the suit failed for want of cause of action, there
was no warrant for giving the plaintiff a declaratory relief as to the public nature of the trust
under Section 92, CPC. The finding as to the existence of a public trust in such circumstances
was not more than an obiter dictum according to this Court. The appeal of the defendants was
allowed and the declaration as to the trust being a public trust was set aside.

24. These three cases are therefore instances where in spite of a specific issue arid an adverse
finding in an earlier suit, the finding was treated as not res judicata as it was purely incidental
or auxiliary or collateral to the main issue in each of these cases, land not necessary for the

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earlier case nor (its foundation.

25. Before parting with this point, we would like to refer to two more rulings. In Sulochana
Amma v. Narayanan Nair MANU/SC/0047/1994 : 1994ECR195(SC) , this Court held that a
finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on
title. On the other hand, the Madras High Court, in Selliamman Ayyanar Uthiva
Somasundareswarar Temple v. Rajanga MANU/TN/0271/1965 : AIR1965Mad355 , held (see
para 8 therein) that the previous suit was only for injunction relating to the crops. May be, the
question of title was decided, though not raised in the plaint. In the latter suit on title, the
finding in the earlier suit on title would not be res judicata as the earlier suit was concerned
only with a possessory right. These two decisions, in our opinion, cannot be treated as being
contrary to each other but should be understood in the context of the tests referred to above.
Each of them can perhaps be treated as correct if they are understood in the light of the tests
stated above. In the first case decided by this Court, it is to be assumed that the tests above
referred to were satisfied for holding that the finding as to possession was substantially rested
on title upon which a finding was felt necessary and in the latter case decided by the Madras
High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all
depends on the facts of each case and whether the finding as to title was treated as necessary
for grant of an injunction in the earlier suit and was also the substantive basis for grant of
injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, page
229) where a similar aspect in respect to findings on possession and incidental findings on title
were dealt with. It is stated:

Where title to property is the basis of the right of possession, a decision on the
question of possession is res judicata on the question of title to the extent that
adjudication of title was essential to the judgment; but where the question of the
right to possession was the only issue actually or necessarily involved, the
judgment is not conclusive on the question of ownership or title.

26. We have gone into the above aspects in some detail so that when a question arises before
the Courts as to whether an issue was earlier decided only incidentally or collaterally, the
Courts could deal with the question as a matter of legal principle rather than on vague grounds.
Point 1 is decided accordingly.

Point 2:

27. This point concerns the difference in the meaning of wakf in 1928 when the suit under
Section 92 of the CPC was filed and the wider meaning given in 1950 in the definition of wakf
under the Bombay Act of 1950. While the law of public wakfs as, it stood in 1928 did not take
within its meaning a wakf where the Sajjadanashin could spend the income for the maintenance
of himself and his family members after expending for the purposes of wakf, the 1960 Act
widened the definition of public wakf even to situations where under the grant the
Sajjadanashin could expend the income for the maintenance of himself and his family
members. This aspect was considered in great detail by the Division Bench of the Gujarat High
Court in Sayed Mohammed v. All Miya (1972) 13 GLR 285. It was pointed out in that case that
the definition of wakf in Section 2(18) of the Bombay Public Trusts Act, 1950 covered a
permanent dedication by a person professing Islam not only for the purposes which Islamic Law
considered as 'religious' and 'charitable' but also which it considered as 'pious' such as where
provision was made for the benefit of the members of the settlor's family or of the
Sajjadanashin and his family members, who were poor. Section 2(19) covered even a wakf
such as the one described in Section 3 of the Mussalman Wakf Validating Act, 1913 under which
any benefit was claimable by the founder, his family, children and descendants, - provided that
the ultimate benefit in such cases expressly or impliedly was reserved for the poor or for any
other purpose recognised by the Muslim Law as religious, pious or charitable purpose of a
permanent character. Section 9 of the Bombay Act included charitable purposes also. The
Gujarat High Court pointed out as follows : (p. 296)

It could never be argued after these provisions that the wakf is not a public trust on
the ground that the entire surplus goes to the Sajjadanashin or Mutawalli or

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 because the obligation was a pious obligation and not a legal obligation so that he
could dispose of surplus in any manner he liked. This aspect cannot in any manner
alter the public character of the public trust.

28. We agree with the above observations of the Gujarat High Court. The 1931 judgment
arising out of the 1928 suit treated the wakf as 'private' on the ground that part from other
obligations and charitable purposes, the Sajjadanashin could spend the income for the pious
purposes also, namely for maintenance of members of his family. But now the definition in
Section 2(19) brings in such a wakf also into its fold. Thus, for this reason also, the 1931
judgment does not operate as res judicata. Point 2 is decided against the appellant.

Point 3:

29. The decision of the Assistant Charity Commissioner on 19-1-1961 in Inquiry 14/64 filed by
Peer Mohammed Fruitwala was no doubt in a case arising under the Bombay Act 1950. It is true
that this very wakf was held to be private but the point is that that decision dated 19.1.67 gets
superseded by the latter judgment of the Gujarat High Court in Sayed Mohammed v. All Miya
(1972) 13 GLR 285, dated 14-9-1970. The latter judgment governs. It is well settled that an
earlier decision which is binding between the parties loses its binding force if between the
parties a second decision decides to the contrary. Then, in the third litigation, the decision in
the second one will prevail and not the decision in the first. We may also state that the 19-1-67
decision merely relied upon the 1931 decision without noticing the change in the definition.
Hence, the 19-1-67 decision cannot become res judicata.

30. So far as the proceeding initiated in 1965, no plea of res judicata based on it was raised in
the lower Courts in the present proceedings.

31. Therefore, we hold on point 3 against the appellant. The rejection of the preliminary
objection is confirmed. It will now be for the Assistant Charity Commissioner to go into the
merits in Inquiry No. 142/67 as directed by the Joint Commissioner in his orders dated 17-12-
73 insofar as the Rozas at Broach and Surat are concerned, in the light of this judgment and
the judgment of the Gujarat High Court in Sayed Mohammed v. Ali Miya (1972) 13 GLR 285.

32. The appeal is dismissed. There will be no order as to costs.

1. See Holdsworth History of English Law 147 - 54 (1944); Millar - The Historical Relation of
Estoppel by Record 35 L. Rev. 41 (1940); Millar - res judicata in Continental and Anglo
American Law - 39 MLR 1 (1940); Comparative Study (1940) WLR 234; Development in Res
Judicata 1952 HLR 818.

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