JUDGMENT
Tudball, J.
1. This appeal arises out 6i a suit brought by the respondent plaintiff to recover possession of immovable property together with mesne profits under the following circumstances, to understand which it is necessary to set forth the following pedigree
Arti Singh (d).
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Guman Singh (d) GharibSingh (d)
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Suchet Singh (d) Kulwant Singh (d)
m. Mt. Sukhmani |
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Ramhit Singh (d) Sheobalak Singh (d)
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Pragdin Singh (d) Ajudhia. Singh
| Plaintiff.
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Gokul (defendant). Ummed (defendant).
2. Suchit Singh died some time prior to the year 1866 leaving a widow Musammat Sukh-mani who, on 11th January of that year, executed a sale-deed of the property now in suit, in favour of Gopaldat Kandu, the prede-dessor of the defendants-appellants. At that time, Ramhit Singh, the grandfather of the defendants Gokul and Ummed, was the nearest male relative of Suchit Singh; the present plaintiff-respondent, Ajudhia Singh, being one degree further removed as shown by the above pedigree. The sale-deed purported to be for consideration, and to have been effected for the purpose” of liquidating the debts of Suchit Singh. It was signed by Ramhit Singh as a witness.
3. Ramhit Singh and Ajudhia Singh, however, as plaintiffs, jointly instituted against the widow and her transferee, a suit on the 12th November 1868 in the Court of the Chief Munsif of Azamgarh. They sued (1) to have the sale-deed set aside on the ground that it had been made contrary to Hindu Law and was without consideration, and (2) for possession of the property. The record, or rather so much of it, as is before the Court;, shows that the Munsif held that the deed had not been made for lawful cause, or consideration, the issue being Is the deed of sale liable to reversal as having been executed contrary to Hindu Law or was the sale rendered lawful by being a bona fide transaction in unavoidable liquidation of her husband’s debts?” Pending the decision of the case, i.e., on 21st January,’ 1869, Ramhit compromised with the defendants, and Ajudhia Singh alone continued the suit, and the decree set aside the? sale-deed as being-invalid as against his interests and awarded him possession. It was passed on 29th January 1869. Gopaldat appealed to the District Judge, who upheld the Munsifs decree. A second appeal was then preferred to the High Court on the following grounds:
(1) that Ramhit Singh having, under the compromise of 21st January 1869, consented to the sale and withdrawn his claim, the whole claim should not have been decreed.
(2) that as the share of Suchit had been separate, under the rulings of the Court, a decree for possession should not have been granted.
(3) that Ramhit being the nearest heir to Suchit Singh, Ajudhia Singh, being more remote, could not inherit, The High Court modified the decree of the lower appellate Court only in so far as the latter had awarded possession to Ajudhia Singh, and maintained the declaration that the sale was invalid. The judgment concludes as follows ;-
in the face of the Court’s finding as to the nature of the sale the purchaser may not have a complete and indefeasible title but a remote reversioner cannot, we think, in such a case, sue for and obtain immediate possession. Conceding his right to sue, the only decree should be, not a decree for possession, but a decree declaring the invalidity of the sale as respects himself and other rovorsioners who have not assented thereto. We shall amend the decree accordingly.” The above decision clearly proceeded on the basis of Suchit Singh’s separation from the other members of the family and held (1) that Ajudhia Singh, though a remote reversioner, had a right to sue for a declaration, (2) that the transfer was invalid as against his interest but that ho was not entitled to obtain possession. The grounds of appeal show that Gopaldat’s case was that Suchit was separate and that, therefore,. possession could net be awarded to the plaintiff (the widow being alive) and also that Ajudhia Singh being a remote reversioner had no right to sue.
4. I note this here because in a preceding paragraph of its judgment the Court made some remarks which would seem to show that it was of opinion that the property sold was part of a joint ancestral estate which, the widow of a co-sharer, being only entitled to maintenance had no power to alienate and whose attempt to alienate would justify the interference of the surviving co-sharers and the dispossession of the widow and her alienee. It is hard to reconcile these remarks with the final decision of the case, but it is clear that the Court maintained the decree declaring that the alienation by the widow was invalid as regards Ajudhia Singh and that it held that he was not entitled to possession at that time. Sukhmani, the widow, finally died on 27th September 1903. The representatives in title of Gopaldat were then in possession and remained in possession whereupon the plaintiff brought this present suit in the Court of the Subordinate Judge against them, and also made the other members of his own family, pro forma defendants, i.e., the grandsons of his deceased uncle Ramhit. He seeks to recover possession and mesne profits for the period of his dispossession from the date of Sukhmani’s death, that being the date on which he became entitled to possession, his uncle Ramhit having predeceased the widow. In his plaint he stated that Suchit Singh, at the time of his death, was a member of a joint Hindu family consisting of himself and Ramhit and Sheobalale (plaintiff’s father); that on his death Sukhmani was entitled to maintenance so her name was entered in the Revenue records as holder of the share but only in lieu of maintenance and as having only a life-interest; that she remained in possession till she alienated it when Gopaldat took possession though the sale-deed was without consideration and was not executed for any legal necessity. Ho then related the circumstances of the former litigation, including the decision therein, that the sale-deed was invalid as against him but that ho was not entitled to possession during: her life-time. He alleged the deaths of Ramhit and Sukhmani and claimed to be entitled to possession by reason of the later occurrence. He further pleaded in the alternative that even if Suchit was found to have been separate he, as the nearest reversionor alive at the death of the widow, was entitled to possession, the sale having been made without necessity or consideration. The defendants-appellants resisted the claim on the following; grounds:
(1) that the plaintiff’s claim for possession having been disallowed in the previous litigation, his present claim for it was barred as res judicata under Section 13 of the O.P.O. (of 1882).
(2) that the plaintiff not having been in possession within 12 years his suit was barred by limitation.
(3) that Suchit Singh died as a separate Hindu and that his widow alienated for legal necessity and consideration.
(4) that Ramhit was joint with the plaintiff and was head and manager of his family; that as such he ratified the sale made by the widow and as no fraud or collusion had occurred and it had been found in the former litigation that ho had consented to the sale, the plaintiff was, therefore, bound by the ratification made by the head and manager of his family.
(5) that the defendant’s possession being lawful he was not liable for the mesne profits.
(6) that plaintiff was not the next rever-sioner as Suchit Singh’s daughter Ram Dei was alive.
5. The Subordinate Judge held
(1) that the plaintiff’s claim for possession was not barred by the rule of res judicata.
(2) that as the widow had died within 12 years of the suit, the claim was not barred by 12 years’ limitation.
(3) that Suchit Singh was not separate but a member of the joint family when he died.
(4) that the decision as to the want of legal necessity and consideration in the former litigation was binding on the parties and that he was bound by that decision,
(5) that as in the former litigation it had been finally held that the consent of Ramhit was no bar to the plaintiff’s suit, he could not go behind that finding and the parties’ were bound by it.
(6) that Suchit Singh left no daughter.
(7) that the plaintiff was entitled to recover Rs. 153-5-0 mesne profits from the appellants.
6. The claim for possession and mesne profits was decreed.
7. Appeal was preferred to the District Judge where it was contended .
(1) that having regard to the ruling of the Privy Council in Bajrangi Singh v. Manokamika Bahhsh Singh 5 A.L.J. 1 : 3 M.L.T. 1 : 12 C.W.N. 74 : 9 Bom. L. 1348 : 6 C.L.J. 766 : 30 A.1. Ramhit’s consent to the sale by the widow made that sale a good and valid one.
(2) that as, on the plaintiff’s own showing, the family was joint when Suchit died, he,. the plaintiff was entitled to recover possession in 1866 when the sale took place and his suit was, there fore, barred by adverse possession for over 12 years.
(3) that the existence of Suchit’s daughter had been established.
8. On the first point the lower Court held that the point was res judicata between the parties by reason of the decision in the former litigation and that he could not go behind that finding by reason of the ruling quoted.. On the second point he held that in the former litigation it had been found that Suchit was separate and that plaintiff was a remote reversioner and, therefore, he was entitled to sue on the death of the widow, and moreover, even if the family had been joint at Suchit’s death and the property had been made over to the widow in lieu of maintenance) (as alleged by the plaintiff) still the property would on her death revert to him. In either case as suit had been brought within. 12 years of the widow’s death it was not barred by time. On the last plea he held with the Subordinate Judge that Suchit had no daughter. The defendants have now come here on second appeal and urge the following points:
1. That if, as found by the Courts below, Suchit died, while he was a member, of the joint family, then the attempt to alienate by the widow gave the surviving members of the family a cause of action to sue for the dispossession of the transferee, and the family not having done so, the present suit was not maintainable.
2. That a widow in such a joint family having no power to alienate the defendants have been in adverse possession for over 42 years.
3. That the judgment of this Court in the former litigation is not conclusive as to the plaintiff’s right to sue now for possession.
4. That the former suit having been heard by a Munsif, that, decision cannot operate as res judicata because that Court would not have been competent to entertain the present suit.
5. That the next reversioner having consented to the sale, it was a good and valid one and binding on the plaintiff.
9. The sixth ground of appeal has no force and was not pressed. As being the most important issue, I take the fourth ground first. Does the decision in the former litigation operate as res judicata, between the parties? The former suit was between the same plaintiff and the predecessor-in-title of the present appellants.
10. The property in suit is the same in both cases and in both suits the plaintiff claimed possession thereof.
11. It is urged that the present suit being one within the jurisdiction of a Subordinate Judge, it would not have been competent for the Munsif to have entertained it, the value of the subject-matter being over Rs 1,000, and, therefore, the decision in the former case cannot operate as res jndicnta. When the former suit was instituted Act XVI of 1868 was in force and under Section 13. there of, Munsifs were empowered to try suits of which the subject-matter did not exceed in amount or value Rs. 1,000. It is urged that the widow sold the property for over Rs. 1,000, and, therefore, the Munsif, apparently in 1868, had no jurisdiction even to entertain the former suit and equally so would have had none to entertain the present suit if it had been instituted on the same date as the former one. At first sight this argument would appear sound. But no Suits Valuation Act was then in force. The present Act was placed upon the Statute Book in 1870. An examination of the record of the former suit shows that it was valued then at Rs. 237-9 being eight times the Government Revenue. Act X of 1862 (an Act to consolidate and amend the law relating to stamp duties) was amended by Act XXVI of 1867 which. substituted a fresh schedule B for that of the Act of 1862. Article 11 of that schedule : fixed the stamp duty on plaints and petitions of appeal according to the amount or value of the property claimed.
12. Note (a) thereto laid down that the stamp duty payable was to be computed according to the market-value of the property in suit and that when the property was one paying revenue to Government and the settlement was temporary, eight times the Revenue so payable was to be taken to be the market-value unless and until the contrary was proved.” An examination of the record shows as I have already noted, that in the former suit, the market-value was put at eight times the revenue payable. One and the same rule apparently governed the valuation for the purposes of stamp duty and jurisdiction. The Court was bound to take the market-value as being eight times the revenue unless and until the contrary was proved. No objection was taken apparently to the valuation.
13. To see whether the Munsif would have had jurisdiction to try the present suit we must look to the state of affairs in 1868. The present valuation cannot be looked at ‘for tin’s purpose. The question is whether that Court would have had jurisdiction in 1868, to entertain the present suit, if it had been then brought; and it is clear that it would have been able to do so. As a matter of fact the former suit was one for possession of this very same property and it was within his jurisdiction, eight times the revenue being only Rs. 237-9. The present revenue is only Rs. 52-14-0, so that under the law and the then practice of the Courts the present suit would have been well within his jurisdiction, unless a higher market-value than Rs. 1,000 had been proved.
14. Further there is nothing to show that the market-value, in 1868, was over Rs. 1,000. The sale-deed by the widow is not in itself sufficient evidence to prove that it was over Rs. 1,000. I, therefore, hold that the decision of the Munsif was that of a competent Court and that his findings which were upheld on appeal are binding on the parties and they are not entitled to go behind them. Those findings are that the sale by the widow was contrary to Hindu Law, without legal necessity and also without consideration and invalid as against the interests of the present plaintiff in his capacity as a re versioner. It was finally held by the High Court that he had a right to see for the declaration but that as a remote reversioner he was not then entitled to possession; I take next the first and second points together It is urged that -if, as the lower Courts have held, the family was joint at the death of Suchit, his widow had no power to alienate and if her vendee took possession, the joint family ought to have sued for and was entitled to possession and that, therefore, the present suit was not maintainable and the appelllants have been in adverse possession for over 42 years.
15. The contention fails for several reasons. In the first place the lower appellate Court has not held that the family was joint at Suchit’s death. It has found that in the former suit the respondent was held to be a reversioner to Suchit as being separate and that the parties cannot go behind that finding. It has added, however, that even if the plaintiff’s case be correct that the family was joint and that the property was made over to the widow in lieu of maintenance; then on her death it would revert to the family and the plaintiff would be entitled to recover. I cannot lose sight of the fact that the plaintiff sued in the alternative; that it was not the appellants’ case in the Court of first instance that they had held adverse possession. They claimed that Such it was separate and sought to establish legal necessity and the consent of the then near reversioner.
16. The finding of the lower Court is to the effect that Suchit was separate and is based on the construction placed by it on.; the former decision of this Court; behind which. it has held that the parties cannot go The remark that even if the family was joint and the property had been made over to the widow in lieu of maintenance, the plaintiff, would equally be entitled to recover, does not constitute a finding that the family was joint and not separate. The appellants have not as a matter of fact challenged the lower Court’s finding. They have misunderstood the judgement.
17. On the facts as found, the plaintiff as the next reversioner, is entitled to sue for possession on the death of the widow. No question of adverse possession arises on the pleadings of the parties. The plaintiffs’ case was twofold viz., the family was joint ! and the property made over to the widow in lieu of maintenance, or the family was separate and she was only entitled to a widow’s estate, in either case the alienation was invalid. The appellants’ allegation was that the family was separate. In either case the property would revert on the widow’s death,
18. This brings me to the third point which was barely pressed at all, viz., that the former decision of this Court is not conclusive of the plaintiff’s right to sue now. The plea is vague. The plaintiff’s right to obtain possession arose on the widow’s death he being the next “reversioner and the former decision is conclusive between the parties that the alienation by the widow was invalid (being without necessity or consideration) as against the plaintiff’s interest,
19. There remains one point. It is urged that Ramhit was the next reversioner at the time of the sale and as he consented to it’ and there were no other reversioners on an equality with him, the sale is a good one and binding on the plaintiff. Reliance is placed on the ruling of their Lordships of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 5 A.L.J. 1 : 3 M.L.T. 1 : 12 C.W.N. 74 : 9 Bom. L. 1348 : 6 C.L.J. 766 : 30 A.1. As a matter of fact, Ramhit’s consent was pleaded as a bar in the former litigation vide the first, ground in the petition of appeal to the High.. Court and the plea was overruled. Even if it was not specifically and clearly raised as now it is, a defence, which could and ought to have been raised, and not having been raised, cannot now be raised. The question was whether the alienation was valid and binding on the plaintiff or not. The finding, good or bad, was that it was invalid and not binding upon him. The appellants cannot go “behind that finding and the plea is one which this Court cannot now entertain at the present stage of the litigation.
20. The present suit is merely a continuation of the former one in which the rights of parties were finally settled rightly or wrongly as has been pointed out. The remote reversioner then took steps to protect the rights of those reversioners who had not assented to the sale. The one entitled to possession on the death of the widow happens to be the same plaintiff and as between him and the appellants the matter was settled for good and all at the former trial. In this view of the law the appeal must fail and is dismissed with costs including in this Court fees on the higher scale
