JUDGMENT
Mullick, J.
1. This appeal arises out of a litigation connected with the estate of a gentleman named Lala Siromani Rai, who had three wives named Sadaymani, Khirodemani and Pareshmani. Sadaymani predeceased him, leaving two daughters named Hula Rai and Swarna Rai.
2. It appears that on the 20th February 1820 Khirodemani and Pareshmani, purporting to settle a dispute as to maintenance between themselves and Swarna Rai, executed a pattah in favour of Swarna granting a permanent raiyati interest in 18 bighas of agricultural land and 12 1/2 kottahs of homestead and garden lands. Pareshmani and Khirodemani are now dead and the present suit is brought by the plaintiff for declaration of title and recovery of joint; possession in respect of the lands covered by the pattah, on the allegation that the pattah was fraudulent, illegal and inoperative as against him. It is contended that the alienation made by Khirodemani and Pareshmani was not binding upon the reversioners and the plaintiff being a reversioner of a half share, he is entitled to possession of all the properties of the original proprietor jointly with defendant Mritunjoy Bose.
3. The Subordinate Judge framed in this suit no less than 10 issues, but it appears that the parties agreed that before any evidence was recorded argument; should be heard on issues Nos. 4, 6, 7 and 8, which were as follows:
4. is the suit barred by the principle of res judicata?
6. Was there any custom in defendant’s mother’s father’s family to keep gharjamais and to allow his daughters and their descendants properties for their maintenance as alleged by the defendant?
7. Has the pattah, dated 20th February 1890, been obtained by fraud, force and coercion? Is it valid and binding against him?
8. ‘Has the defendant acquired an absolute title to the lands as claimed by him?
4. The learned Subordinate Judge found all these issues in favour of the defendant. It appears that he also determined issues Nos. 1, 9 and 10.
5. Issue No. 1 deals with the maintainability of the suit, issue No. 9 about the question whether the plaintiff was entitled to certain moveable properties and issue No. 10 whether he was entitled to any damages, He considered it unnecessary to determine the other issues and in the result he dismissed the whole suit.
6. There was then an appeal to the District Judge who came to the same conclusion, and the present second appeal before us is consequently preferred by the plaintiff.
7. Now the first objection taken by the learned Vakil for the appellant is that the learned Subordinate Judge heard the argument on the preliminary issues on the 19th February 1916, but on the 21st February 1916 he, without giving the plaintiff’s Pleader an opportunity of being heard, accepted from the defendant a copy of the plaint filed in a previous suit to which reference will be presently made. That paper was marked Exhibit E and the order sheet contains an entry that Pleaders were heard and judgment was reserved.
8. It is contended that no Pleader representing the plaintiff was heard and that the learned Subordinate Judge’s entry in the order sheet is erroneous. On the 8th March 1916 judgment was finally delivered in the suit.
9. Now if this alleged error of procedure on the part of the Subordinate Judge had affected any decision on the facts, we should have been compelled to remand the case, but we find that the document, Exhibit E, was a document which was only required for the purpose of ascertaining what was the nature of the previous suit and what were the questions directly and substantially in issue therein. It did not require any evidence to explain the contents of the document and the learned Subordinate Judge was in a position, merely from the document itself and the judgment and the written statement, to ascertain whether or not any issue was determined in the suit which constituted res judicata between the parties. The plaintiff’s Pleader, although he may net have been heard with regard to the admissibility of the document on the 21st February 1916, had ample opportunity of being heard before the learned Subordinate Judge and if the written statement was before the Court, what objection could there be to the filing of the plaint also? The learned District Judge states in his appellate judgment that he heard the Pleaders in full on both sides and he came to the conclusion that there was an issue in the previous suit which constitutes res judicata in the present suit.
10. Now what was that suit? That suit was brought by Swarna Rai against Khirodemani and Pareshmani on the allegation that they had declined to deliver the pattah executed on the 20th February 1890, and also dispossessed her from a part of the property covered by that document. The plaint further alleged that the pattah was executed in accordance with a custom prevalent in the family by which married daughters, who resided in the family dwelling house, were entitled to receive a certain amount by way of maintenance for themselves, their husbands and their children, to be enjoyed by them and after their death by their descendants. The defendants, the widows of Lala Siromani Rai, denied the custom. The suit was contested and indeed very hotly contested, and it was finally decreed that the plaintiff should get possession of the properties mentioned in a schedule and that her possession in the remaining properties should be confirmed. Upon the pleadings of the parties issue No. 1 was framed as follows:
Whether the custom alleged in paragraph 2 of the plaint is prevalent in the family of the defendants? If so, whether according to such custom, the plaintiff is entitled to any maintenance and to what amount?
11. Issue No. 2 runs as follows:
Whether such a custom is not unreasonable and can be enforced?
12. Issue No. 3 runs as follows:
Whether the defendants gave effect to Such custom by promising to pay to the plaintiff maintenance of Rs. 200 in cash and 24 arts of paddy per year and whether they actually paid the plaintiff at that rate?
13. The Court found issues Nos. 1, 2 and 3 in favour of the plaintiff and held that the evidence showed that the defendants had given effect to the custom by assigning to the plaintiff by the pattah of 1890 the land covered by that document in lieu of money payment of Rs. 200 and 24 aris of paddy.
14. The learned Vakil for the appellant contends before us that the finding of the Court in regard to the above issues cannot operate in this suit as res judicata. His first ground is that the finding in the suit was against two widows in their personal capacity and that the alienation was made not by them as representing the inheritance but as representing themselves, and, therefore, although they themselves were bound during their lifetime, the plaintiff who is a reversioner and claims from the last full owner, can in no way be affected by their act. The short answer to this contention is that a Hindu widow represents for some purposes the full estate. She is not merely a life-tenant. The whole estate is vested in her absolutely for some purposes and as was observed by their Lordships in Katama Natchiar v. Rajah of Shivagunga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, it is obvious there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.
15. In our opinion Swarna’s suit against the widows was laid not in their personal capacity, but in their capacity as full owners. Her object in instituting the suit was to assert the claim that by reason of a family custom she, her husband and her children were permanently entitled to a share in the family estate on account of maintenance. A suit of this nature, in my opinion, cannot for a moment be called a suit against the widows to enforce an alienation made in their personal capacity and if that is the correct view, then any decree obtained in the suit against the widows will clearly bind the reversioners. So also would any finding in that suit on an issue directly and substantially in issue bind not only the parties in that suit, but also the persons claiming under them as their representatives. If, therefore, the present plaintiff is the representative of the widows as full owners and claims under them as such, then he also would be bound by the finding on issues Nos. 1, 2 and 3 in that suit. But then it is urged that the plaintiff does not claim through the widows, but from the last full owner. In my opinion as the widows represented the inheritance in that suit, the plaintiff must be bound by any finding that was arrived at against the widows in that suit. Therefore, upon the principle of Shivagunga’s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, we must hold that the custom alleged was a valid custom and that the pattah which the widows were ordered to deliver to Swarna is binding upon the present plaintiff.
16. Now the learned Vakil for the appellant contends that although the pattah may have been binding, it does not convey any permanent interest in the property. The document shows that the grant was made to Swarna, her children and her husband for maintenance out of her father’s estate from generation to generation. It is contended that these words generation to generation” cannot, having regard to the circumstances of the family, be construed to import permanency, and that having regard to the fact that the son of Swarna, the present defendant, was in existence at the time when the pattah was executed, it could not have been intended that a permanent grant could have been made for the purpose of maintaining a person, who some day would become a proprietor himself. In my opinion we must construe the document as it stands, and as the parties agreed to argue the case before the learned Subordinate Judge without any evidence, we must hold that no facts have been shown which are necessarily inconsistent with the view that the words “generation to generation” were intended to make a permanent grant in respect of the lands alienated.
17. Then it is urged that although the defendant may have acquired a valid tenancy in respect of the land transferred, there has been a merger since by the death of the two widows he became a reversioner to the estate. The reply to this is that in respect of the pattah lands, the defendant appears to be an occupancy raiyat and as he has acquired a proprietary right to only a share in the estate, the law of merger does not apply to him by reason of Section 22 of the Bengal Tenancy Act.
18. Finally, it is urged that the plaintiff should have been given an opportunity of showing that the decree in Swarna’s suit was not fairly and properly obtained against the widows. Now that is a question of fact, which ought to have been determined on evidence, but as the parties declined to adduce any evidence and agreed to argue the question of res judicata upon the materials before the learned Subordinate Judge, it is too late now to ask that we should remand the case for the purpose of investigating this question of fact.
19. The learned Vakil for the appellant urges that the learned Pleader who appeared for the plaintiff in the Court of the Subordinate Judge acted in ignorance of the law and that if he had been alive to the importance of the ruling of their Lordships in Shivagunga’s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, he would certainly have not consented to the decision of the case merely upon the documents. However that may be, the learned Pleader who conducted the case must take the responsibility for any prejudice or injury that may have been caused to his client. We cannot at this stage reopen the whole proceeding and order an investigation into facts simply because he omitted to do his duty.
20. Finally, the learned Vakil for the appellant has endeavoured to show that in respect of the 2 kottahs 7 1/2 gandas, the decision in Swarna’s suit could not be a bar inasmuch as that land was not covered by the pattah of 1890. Whether they are covered by the pattah or not, it is sufficient to say that as the plaintiff and the defendant are co sharers in an estate, the plaintiff is not of necessity entitled to a decree for joint possession and recovery of possession in respect of his eight anna share in this small portion of land. Cases between co-owners are to be decided according to the principles of justice, equity and good conscience and ordinarily one co-sharer is entitled to keep possession of a portion of the joint property and to enjoy it in exclusive possession so long as he does not deny the title of his co-owner or oust him in the eye of law. The remedy of the co-owners in these circumstances is to apply for partition or compensation and, therefore, the learned District Judge, although he does not refer to this as one of his reasons, was right in holding that the suit was not maintainable. This disposes of all the points argued before us and the result is that the appeal is dismissed with costs.
Atkinson, J.
21. I agree.