JUDGMENT
1. Two points were raised on appeal (1) that the Subordinate Judge was wrong in holding that the claim in the present suit was not res judicata; (2) that he was wrong in holding that the entire estate in the Zamindary and not only the life interest of the Zamindar was sold in execution and purchased by the 1st defendant.
2. We think the Subordinate Judge was right in holding that the whole estate was sold. This being so it is not necessary for us to discuss the question of res judicata.
3. As regards the 2nd point the question is what did the Court intend to sell and what did the purchaser understand that he bought. This is a question of mixed law and fact and must be determined by the evidence in the particular case.
4. It is true that when the sale in execution took place it was the accepted law in Madras that the holder of an impartible Zamindary could not encumber the corpus of the estate, so as to bind his coparceners (see Abdul Azizkhan v. Appayasami Naickeri (1902) I.L.R. 27 M. 131 at p.142). Mr. Srini-vasa Aiyangar relied strongly on the statement in the Judgment of the Privy Council in this case that the parties must be taken to be bound by the law as it was understood when the sale took place. If by this statement is meant that the state of the law as it was understood at the time is conclusive on the question, the observation is inconsistent with other decisions of the Privy Council to which reference is made in the Judgment and with earlier passages in the judgment. The cases are alluded to in the judgment in Veerabadra Aiyar v. Marudaga Nachiar (1910) I.L.R. 34 Mad. P. 188. We think all that their Lordships meant by this passage was that the state of the law as understood at the time was evidence to be considered with the other evidence in. the particular case in determining what the Court intended to sell and what the purchaser understood that he bought.
5. We do not think that the Judges in stating in their Judgment in Veera Soorappa Nayani v. Errappa Naidu (1906) I.L.R. 29 M. 484 on p. 490, where it was held that the full proprietary interest passed by the sale, that the sale in that case took place after the decision of the Privy Council in Muthayan v. Zemindar of Sivugiri (1882) I.L.R. 6 M.I., intended to imply that, if the sale under consideration had taken place before the decision of the Privy Council in that case, they would necessarily have held that something less than the full proprietary interest passed by the sale.
6. We think the Subordinate Judge applied the right test in determining whether the whole estate, or only a life estate, was sold, and we £.re certainly not prepared to say he was wrong in holding that the whole estate passed.
7. In determining the question of what the Court intended to sell and the purchaser understood he bought, evidence as to how the parties affected by the transaction themselves viewed, it at the time is of much greater value than evidence which may be procurable some twenty years after the transaction took place.
8. In an application made in November 1880 (Ex IX) the plaintiff’s elder brother asked that his interest in the estate should not be sold on the ground amongst others that the debt sued for was incurred for immoral purposes. It was not suggested that the whole of the Zamindary was not liable to be sold. In fact the application was made upon the footing that the whole estate was liable to be sold. The other evidence is fully dealt with by the learned Judge, and we need not discuss it.
9. Then we have the judgment of the Privy Council in the suit brought by the plaintiff’s elder brother in 1882. Their Lordships observe that on the document before them ” they must come to the conclusion that the thing professed and intended to be sold and actually sold was not the father’s share but the whole interest in the Zamindary itself.” Except certain oral evidence which the subordinate judge did not believe the materials for determining the question are the same as were before the Privy Council in 1880. We express no opinion as to whether this judgment of the Privy Council operates as res judicata, but the fact that, on this mixed question of law and fact the Privy Council came to the conclusion at which they arrived at necessarily carries great weight. Mr. Srinivasa Aiyangar has urged that the Privy Council had no occasion to consider, and did not consider how the law was then understood with regard to the power of the holder of an impartible Zamindary to encumber the cdrpus of the estate. We are not called upon to assume that the Privy Council did not take this into consideration. Assuming they did not, we are certainly not prepared to say that, if they had, their decision would have been that only a life estate was sold.
10. We think the Subordinate Judge was right and we dismiss the appeal with costs.
