JUDGMENT
1. This appeal is by the plaintiff in a suit instituted by him for a declaration that the defendant No. 2, was not entitled to sell certain properties in execution of a mortgage decree obtained by him against a Hindu widow defendant No. 1. He also sought a prepetual injunction against defendant No. 2 restraining him from selling the properties in question. The trial Court gave the plaintiff a decree, but the Court of appeal below has dismissed the suit.
2. The plaintiffs’ case is this. One Komal Tewary was the uncle of Balgobind Tewari and they were members of a joint Mitakshara family. Komal died first and all the properties were taken by Balgobind as a surviving member of the family and, therefore, Rambilas Kuer, who is the widow of Komal, did not succeed to any property of Komal. Balgobind died leaving three widows, and on the death of the last surviving widow, the plaintiff as the nearest reve(sic)sioner of Balgobind succeeded to his estate. In 1907 the plaintiff instituted before the Subordinate Judge of Arrah a suit against defendant No. 1 and her alienees for recovery of possession of properties in their possession on the allegation that they were the joint family -properties of Komal and Balgobind and that defendant No. 1 of the present suit had no right in them and that the alienations by her were, illegal and ineffective. The two properties now in suit were also the subject-matter of that litigation. The suit was decreed. Three appeals were preferred to the Calcutta High Court against this decree. Two, of them were on behalf of two alienees of defendant No. 1, and one on behalf of the defendent No. 1, herself. The appeals of one set of alienees, namely, Bhawani Singh and others and the appeal of defendant No. 1 were dismissed for default. The appeal of the other set of alienees (No. 282 of 1909), namely, that of Bhajjan Singh and others who were defendants Nos. 12 to 14 in that suit was heard and allowed, and the decree of the lower Court so far as it related to the properties of the aforesaid defendants was set aside. I shall have to deal with the judgment of the High Court in this appeal later on. After this appeal was allowed defendant No. 1 Rambilaso Kuer successfully secured the restoration of her appeal on February 20, 1913. The appeal was, however, compromised on March 29, 1915. By this compromise defendant No 1 secured 28 bighas of land by way of maintenance and allowed her appeal to be dismissed, and admitted that her husband was joint with Balgobind. In between these two dates, namely, the restoration of appeal on February 20, 1913, and its dismissal on compromise on March 20, 1915, defendant No. 1 executed two mortgages in respect of the properties in suit in favour of the father of the defendant No. 2. One was on September 24, 1913, and another on December 9, 1913. The defendant No. 2 brought a suit to enforce these mortgages. The plaintiff attempted to be impleaded in that suit but was unsuccessful. A decree for sale was passed in due course, and the defendant No. 2 proceeded to sell the mortgaged properties which are the subject-matter of this litigation and were the subject-matter of the previous suit and the compromise decree passed on March ’29, 1915. The plaintiff thereupon instituted the present suit for declaration that Rambilaso Kuer had no right to mortgage these properties and to restrain the defendant No. 2 from proceeding to sell them. The trial Court, as I have said, decreed the suit. He held that Komal and Balgobind were joint and Rambilaso succeeded to no property on the death of Komal and that the compromise decree passed by the High Court on March 29, 1915, was binding upon the defendant No. 2 and their mortgages were governed by the principle of lis pendens.
3. On appeal the learned Subordinate Judge has held that the compromise decree was fraudulent and was not binding upon defendant No. 2 and has also held as a matter of fact that Komal was separate from Balgobind and that Rambilaso Kuer inherited the properties of Kohal and had full power to mortgage the properties in suit to defendant No. 2. The plaintiff has appealed.
4. The questions for determination in the present second appeal are: 90 Ind. Cas. 251 : 4 Pat. 619 : (1925) Pat. 143 : AIR 1925 Pat 462 : 6 P L T 483. whether the compromise decree is binding upon defendant No. 2 and whether the two mortgages executed by Rambilaso Kuer are governed by the principle of lis pendens and 53 Ind. Cas. 831 : 4 P L J 580 at p. 597., if not, whether the mortgaged properties were the separate properties of Komal Tewari, and as such, were they inherited by Rambilaso Kuer and are the mortgages executed by her valid.
5. Now it is not disputed that the doctrine of lis pendens applies even if the pending suit ends in a consent decree on compromise; Ramdulari Kuer v. Upendra Nath Basu 90 Ind. Cas. 251 : 4 Pat. 619 : (1925) Pat. 143 : AIR 1925 Pat 462 : 6 P L T 483. and Hukam Chand v. Raja Ram Bahadur Singh 53 Ind. Cas. 831 : 4 P L J 580 at p. 597. There are number of other decisions on the point and I need not refer to them. But the compromise must be honest and not collusive. In this case the Court of Appeal below has held that the compromise effected between the defendant No. 1 and the plaintiff in the High Court was fraudulent intended to defeat the mortgages executed by the defendant No. 1 in favour of defendant No. 2. It has been contended on behalf of the appellants that there was no evidence to show that there was any fraud committed by the plaintiffs. He relied upon the decision in Ramdulari Kuer already referred to, where it was held that fraud must be proved. It is contended that there was nothing in this case to show that the compromise was arrived at in order to defeat the claim of defendant No. 2. In my opinion there is a good deal of force in this contention. There is nothing to show that the compromise was with a view to defeat the mortgages of defendant No. 2. The learned Subordinate Judge has not referred to any evidence on which his conclusions were based. Then it is clear that since the compromise the parties have been acting on it. Defendant No. 1 is in possession of the land which she got in lieu of her maintenance and other properties are in possession of the plaintiffs. The fact that the effect of the compromise was prejudicial to the interest of defendant No. 2 will be no ground for holding that the compromise decree was fraudulent. I am, however, however, constrained to hold that the compromise decree was under the circumstances of the case such as not to make it binding upon the defendant No. 2 on the principle of lis pendent. As I have said, in order to make a compromise decree or any decree binding upon a transferee pendente lite, the decree must be fairly and honestly obtained. In my opinion this was not so in the present case.
6. This leads me to consideration of the effect of the judgment of the High Court in Appeal No. 282 of 1909 passed in the same suit on appeal preferred by one of the defendants. In that decision the Calcutta High Court definitely held that Komal Tewari and Balgobind Tewari at least in respect of the properties in suit, were separate and that the properties were the self-acquisition of Komal. It is better to quote a few passages from the judgment of that case delivered by Jenkins, C. J.
A number of contentious issues were raised but we in this appeal are concerned only with one and that issue is whether Komal and Balgobind were entitled to the property of which this was a part (jointly], as part of the joint family property or whether, as the defendant-appellants contend, the property in suit was the separate property of Komal…. I have already indicated that the only question that we have to determine here is whether or not Komal Tewari and Balgobind Tewari were joint or separate in respect of the properties in suit, for if separate then admittedly that property devolved on Rambilaso Kuer and she would have a widow’s interest in it.
7. Then their Lordships took up the 11th. issue raised by the Subordinate Judge of Arrah which ran.
was Komal Tewari separate from Balgobind Tewari and did he die as such.
8. The issue was answered in the affirmative.
9. Now there is no doubt that the decision of this issue is res judicata between the appellants of that case, namely, Bhajjan Singh and other and the present plaintiffs. The question is it as res judicata between the plaintiffs and Rambilaso Kuer defendant No. 1 in the present suit?
10. In my opinion, it is. The issue was definitely raised in the suit in which the present plaintiffs were plaintiffs and Rambilaso Kuer was the defendant. No doubt in the particular appeal in which the issue was decided by the High Court, Rambilaso Kuer and the plaintiffs were arrayed on the same side as respondents. But nevertheless the decision of the High Court was a decision in the suit and, in my opinion, it is immaterial that at that stage the plaintiffs and the defendant No. 1 were appearing on the same side as respondents. Their interest was conflicting. In fact the suit of the plaintiffs was mainly against Rambilaso Kuer. Even if we take the appellate stage to be a suit the decision is res judicata as between the co-defendants if in order to give the plaintiff the relief the determination of any question between the co-defendants was necessary. There cannot be any doubt that in order to determine the appeal of the appellant Bhajjan Singh, it was essential for the High Court to decide the issue of jointness and separation of Komal Tewari and Balgobind Tewari. If Rambilaso’s appeal which had been dismissed for default and which was later on restored and then compromised ‘namely, appeal No. 224 of 1910, had come up for hearing, I have no doubt that the decision in appeal No. 282 of 1909 would have operated as res judicata so far as the issue of jointness and separation was concerned, and it would not have been open to the High Court to re-try that issue between the plaintiffs and Rambilaso Kuer. The decision was in respect of all the properties involved in that suit and included the properties which are the subject-matter of the present suit. The case of Ramlal v. Chhabi Nath 12 A 578 : A.W.N. 1890, 183 is in my opinion, to the point. There both the plaintiff and the defendant preferred separate appeals and against the same decree. The defendants appeal came first for hearing and the issue whether the plaintiff or the defendant had title to the land in dispute, was decided on the facts by the Appellate Court adversely to the defendant. Subsequently the plaintiff’s appeal involving the same issue came up for hearing before the same Court. It was held that though Section 13 of the Civil Procedure Code, old, did not apply, still the principle of res judicata applied and the finding in the former appeal barred the trial of the same issue in the latter. Section 11 of the Civil Procedure Code is in-exhaustive as has been held in many cases. The principle is much wider and is based upon the maxim “interest reinpublicae ut sit finis litium.” It is to be applied always when an issue between the same parties has been determined by a Court competent to determine it in a subsequent proceeding. In this case two defendant?, namely, Bhajjan Singh and Rambilaso Kuer appealed against the same decree obtained by the plaintiff. The appeal of one of the defendants was heard first and the issue decided against the plaintiff, and I feel no doubt that this operated as res judicata and barred the determination of the same issue in another appeal preferred by Rambilaso Kuer against the plaintiffs. This being my view, I think the compromise was not honest. The plaintiffs, in my opinion compromised the suit in order to avoid losing the appeal as the main issue had already been decided against him. In Hukum Chand v. Raja Ram Bahadur Singh (2) the case noticed by the learned Subordinate Judge, this Court refused to record a compromise as it would affect a third party who was added as a respondent. A person who takes transfer of a property which is the subject-matter of a suit during its pendency takes the risk of losing it if the suit ends unfavourably to the party from whom he takes the transfer, but he takes the risk of result obtained in a fair and legal manner. In this case when the defendant No. 2 took the mortgages from defendant No. 1, though the defendant No. 1’s appeal had been restored by the High Court and was pending, the analog jus appeal of Bhajjan Singh had been decided and it was held that Komal Tewari was separate and that the widow inherited his properties. In fact the main issue in the suit regarding the jointness and separation of family was no longer pending when the mortgages were created. Any compromise afterwards arrived at between the plaintiffs and Rambilaso Kuer against the terms of the decision of the High Court will in my opinion, not bind the defendant No. 2. In my judgment, therefore, the doctrine of lis pendens does not apply to the facts of the present case.
11. The next question for determination is whether the mortgaged properties, which are the subject-matter of the suit, were the joint or separate properties of Komal Tewari and were they inherited by Rambilaso Kuer and are the mortgages valid. In my opinion this point is concluded by what I have held above and is res judicata on the basis of the decision of the Calcutta High Court already referred to in the appeal of Bhajjan Singh against the present plaintiffs in which Rambilaso Kuer was also a respondent. Apart from this, it is res judicata on another ground also. There was a previous litigation on the same question. It appears that a Suit No. 101 of 1906 was brought by Rambilaso Kuer defendant No. 1 against Musammat Gharbharan Kuer the surviving widow of Balgobind Tewari. The purpose of the suit was to recover of possession of 3 kathas of land, part of the large unit of 6 kathas. The plaintiff in that case alleged a title in herself which only could have been on the assumption that Komal had separate title which devolved on her as heiress and it was the case of the defendant No. 2 that there had been separation. The Court came to the conclusion that Komal and Balgobind were separate. In the appellate stage of the suit the plaintiffs were substituted in place of Balgobind’s widow and unsuccessfully fought the appeal. Therefore, there was decision between the parties that Komal and Balgobind were separate and not joint (Ex. B-2). The Calcutta High Court did not treat this judgment as res judicata in the fomer suit on the ground that it was tried by a Munsif who had not jurisdiction to try the latter suit. But so far as the present suit is concerned, it has been instituted before the Munsif and I see no reason why that judgment should not not operate as res judicata against the plaintiffs. The fact that the plaintiffs were no parties to the suit itself and were added as parties at the appellate stage does not, in my opinion, make any difference. I have not been able to understand the reasonings of the learned Munsif in the present sui as to why this judgment is not res judicata between the plaintiffs and Rambilaso Kuer and consequently res judicata between the plaintiffs and the defendant No. 2 who obtained their mortgage right from Rambilaso Kuer.
12. Coming to the fact of separation itself, the learned Subordinate Judge reversing the finding of the learned Mansif has come to the conclusion that the family was separate and, in my opinion, that decision is conclusive in the present appeal. This finding of fact is not vitiated by an error of law. Even if the question would have been open for decision in the present suit, it has been decided against the plaintiffs, but as I have said, in my opinion, the decision of this question is barred on the ground of res judicata both, on the basis of the judgment of the High Court and the judgment of the Munsif already referred to. I may note here that the learned Munsif was not justified in criticising the finding of fact of the Calcutta High Court on the fact of jointness and separation. If he was of opinion that the decision of the Calcutta High Court did not operate as res judicata in the present suit, he was perfectly entitled to come to his own conclusions on the materials before him, but he had absolutely no business to say that the High Court’s judgment was arrived at by ignoring the evidence on the record of that case. This being the case, the porperties in dispute were the separate properties of Komal Tewari and were inherited by defendant No. 1 and the alienations made by her are good at least till her life-time.
13. The question of legal necessity for the mortgages has not been gone into and is left open as was done by the Calcutta High Court. A suit for declaration is obviously barred and till Rambilaso Kuer is alive the plaintiffs have no right to the properties. It will be for the reversioners on her death to seek their remedy in a proper suit.
14. The appeal fails and is dismissed with costs.