JUDGMENT
1. The rule as to res judicata between co-defendants is laid down thus in Ramachandra Narayan v. Narayan Mahadev 11 B. 216 at p. 220:
Where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such t adjudication, Bottingham v. Earl of Sir bury and in such a case the a cation will be res judicata be the defendants as well as between plaintiff and defendants. But, for tin effect to arise, there must be a conflict of interest amongst the defendants and a judgment defining the real rights and obligations of the defendants inter so. Without necessity, the judgment will not be res judicata amongst the defendants. This rule was declared to be the correct rule in Ahamad Ali v. Najabat Khan 18 A. 165, and there is nothing in the Madras cases cited, Venkayya v. Narasumma 11 M. 204, Muhamad Kanni Rowthen v. Viswanatha Iyer 26 M 337: Somasundra Mudali v. Kolandaivelu Pillai 28 M. 457 (F.B.), Kandiyil Cheriya Chandu v. The Zamorin of Calicut 29 M. 515, Yusuf Sahib v. Durgi 30 M. 447 : 17 M.L.J. 260 : 2 M.L.T. 468, which conflicts with this rule. The necessity for an active controversy between the co-defendants is uniformly recognised. In the present case this rule is not satisfied. In the former suit Original Suit No. 501 of 1898 the present plaintiff, who was joined as 2nd defendant because he had a prior mortgage, is not shown to have done more than to put in a written statement to the effect that he had such prior mortgage and that a certain amount was due to him. No question as to the validity of the mortgage was raised or decided, nor was it necessary to decide any such question. We, therefore, hold that the first issue framed in the suit is not res judicata. We, therefore, reverse the decree of the District Judge and remand the appeal for disposal according to law. Costs will abide the result.
2. We may observe that the District Judge was in error in placing the burden of proof upon the plaintiff. Their Lordships of the Privy Council observe, in Deioan Ram Bijai Bahadur Singh v. Inderpal Singh 26 I.A. 226 at p. 288 : 26 C. 871: “They alleged that when a widow is found in possession of property of the acquisition of which, no account is given and it is shown that her husband died, possessed of considerable property, then there is a presumption of law that the property found in the widow’s possession was originally that of her husband. No authority was cited at the bar which supports this proposition and their Lordships are not prepared to adopt it or to lay down anything inconsistent with the general rule that he who claims property through some other person must show the property to have been vested in that person.”
