JUDGMENT
Venkatasubba Rao, J.
1. The question to be decided in. this appeal is, whether a decree obtained against the daughter of the last male holder operates as a bar to the present suit filed by the plaintiffs after the death of the surviving daughter, as reversioners to the estate. The following pedigree will elucidate the facts:
Dathappa
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Sambbanna Veukatasubbanna
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Rajagopalan Puliamma
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Venkayya |
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defendant No. 1. defendant No. 2 |
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defendant No. 3 |
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Venkatasubbamma Venkatanarasamma
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| plaintiff No. 5
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plaintiff No. 1 Subbayya
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plaintiff No. 2. plaintiff No. 3. plaintiff No. 4.
2. After Venkatasubbanna’s death Pullamma was in possession of the property. She died about the year 1866 and there were disputes in regard to the right to the estate of Veukatasubbanna between Rajagopalan on tin one hand and Venkatasubbamma and Venkatanarasama on the other. The disputes were settled by the intervention of mediators in 1872 and Exhibit A called Farrikkat bearing the date 5th June 1875 was executed embodying the terms of the settlement. According to Exhibit A each of the daughters was to take 14 acres of land and Rajagopalan 38 acres and odd. Notwithstanding this arrangment, Pullamn as’ daughters obtained an entry in their names in the Revenue Register. Rajah Gopalan institued Original Suit No. 87 of 1883 on the file of the District Munsif’s Court of Ellore for possession of the 38 acres and odd. Venkatasubbamma was impleaded as the first defendant and Venkatanarasamma having died, her son, the present fifth plaintiff, was made the second defendant. As he was a minor his father was appointed his guardian ad litem. Vonkatasubhamma contested the suit. The District Munsif dismissed it. Rajagopalan appealed. The Appellate Court allowed the appeal and passed a decree in his favour. Venkatasubbamtna preferred a second appeal and the High Court confirmed the decree of the first Appellate Court.
3. In 1890 the father of plaintiffs Nos. 2 to 4 instituted Original Suit No. 107 of 1890 on the file of the District Munsif’s Court of Ellore aginst Rajagopalan’s son Venkayya against Venkatasubbamma and the present plaintiff Nos. 1 and 5 for a declaration that the alienation of the aforsaid 38 acres and odd by the daughters of Venkatasubbamma in favour of Rajagopalan was invalid after the death of the daughters. The District Munsif found that the Farrikkat was supported, by consideration, that it was a fair compromise, but dismissed the suit on the ground that the suit was barred by limitation. The Appellate Court upheld the dismissal on the ground of limitation but gave no finding on the question whether the Farrikkat was binding upon the plaintiff in that suit and the other reversioners. A second appeal was preferred and the High Court also dismissed the suit on the ground of limitation.
4. The present suit was filed by the plaintiffs for the establishment of their right to the same property for a declaration that it belonged absolutely to Venkatasubbanna and that the alienation of the same in favour of Rajagopalan on 5th June 1875 by the daughters of Venkatasubbanna is illegal and not binding on the plaintiffs and for other reliefs. The defendants contended inter alia that the transaction evidenced by Exhibit A was a bona fide settlement of family disputes and that the suit was barred by res judicata by reason of the decisions in the previous suits. Several isnies were framed, but the Subordinate Judge heard the case only with reference to the preliminary issue of res judicata and, holding that the previous suits operated as a bar, dismissed the action. The District Judge reversed the Sub-Judge’s decsion and remanded the suit for disposal the other issues.
5. I may state at the outset that the whole of the argument before us was directed only in regard to the effect of the decision in the earlier of the two suits, namely, Original Suit No. 87 of 1885. It was argued for the appellant that the plaintiffs are bound by the result of that suit whereas for the latter (respondents) it was contended that the decision is not binding on them. I may also state that it has not been argued before us that the decree in that suit is binding in any event on the fifth plaintiff who was impleaded as the second defendant in Original Suit No. 87 of 1885. The only question that has, therefore, to be considered is whether all the plaintiffs as a body are bound by the result of Original Suit No. 87 of 1885.
6. To decide this question it will be necessary to examine with some care the contentions of the parties in that suit and the judgments of the Court of the first instance and the other Courts.
7. As already observed, the plaintiff in Original Suit No. 87 of 1885 sued Venkatasubbamma and the present fifth plaintiff for possession of the 38 acres and odd referred to above. The defence of the first defendant was that the Farrikkat was obtained by misrepresentation and fraud, and that it was unenforcible for want of consideration. The District Munsif in a long judgment found that no fraud was proved but that the document was not supported by consideration. In arriving at the latter conclusion he discussed the question as to whether Sambanna and Venkatasubbanna had or had not been divided. He apparently was of the opinion that in fact the brothers had been divided and there was no justification for the compromise and a large portion of his judgment was devoted to the consideration of the probabalities in favour of or against partition. There was no oral, evidence on this point and his consclusion was based on the recitals in the Farrikkat and the inference drawn from them. He observed in him judgment that there was no distinct issue raised as to division but that the determination of the point was necessary for deciding whether the document was supported by consideration. I may observe, however, that the issue whether the partition was, valid and binding on the parties was wide enough to cover the point whether the deed was supported or not by consideration an.dk this in turn involved the consideration of the question whether the two branches of the family were or were not divided. The Munsif in the result dismissed the plaintiff’s action.
8. Rajagopal filed an appeal. The Sub-Judge concurred, with the District Munsif that the deed was not obtained by fraud and he further held that there was consideration for the Farrikhat. On the question of division, he observed that the presumption was that the parties were undivided, and that the circumstances relied on by the District Munsif did not establish that there was a partition and that though he was inclined to the view that the two branches were joint, he considered it sufficient to hold that the claim put forward by Rajagopal was prima facie valid and the compromise entered amounted to a settlement of a doubtful claim. On this footing he reversed the District Munsif’s judgment and passed a decree in favour of Rajagopal.
9. Venkatasubbamma filed a second appeal and the High Court confirmed the judgment of the Sub-Judge on the ground that Venkatasubbamma failed to show that, the compromise was invalid by reason of misrepresentation and fraud. From the judgment of the Munsif it is clear that the only misrepresentation in regard to which parties went to trial had reference to the state of the family, whether it was divided or undivided. If Rajagopal for the purpose of inducing consent to the arrangement had stated to the daughters that the family was undivided, while, in fact, it was divided, the statement would amount to a misrepresentation. The judgment of the High Court was very short and the effect of it is that the findings of the Sub-Judge were accepted.
10. I must add that the father of the second defendant (the present fifth plaintiff) supported the plaintiff’s claim throughout.
11. On perusing the judgments to which I have referred, I have come to the conclusion that the defences raised by the daughter, while to a certain extent personal to her, were in a large measure inseparable from the estate which she represented. The claim that was put forward was a claim against the estate and if the claimant succeeded in making out that the family was undivided, the daughters. would; get nothing. It has been repeatedly, held I that female heirs can validly compromise claims of this nature. I need only refer to Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 474 : 38 I.A. 87 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 512 : 13 Bom. L.R. 427 : 13 C.L.J. 575 : 10 M.L.T. 25 : 21 M.L.J. 645 : (1911) 1 M.W.N. 432 (P.C.) and Ramsumran Prasad v. Shyam Kumari 69 Ind. Cas. 71 : 49 I.A. 342 : 3 M.L.T. 200 : 3 P.L.T. 749 : (1922) A.I.R. (P.C.) 356 : 1 Pat. 741 : 16 L.W. 956 : 21 A.L.J. 18 : 9 O. & A.L.R. (P.C.) 175 : 27 C.W.N. 269 : 37 C.L.J. 356 : 44 M.L.J. 751 (P.C.). In the litigation which followed the compromise the widow was quite competent to represent the estate and from the nature of the defence put forward and the question tried, it is abundantly clear that not only she represented the estate but the trial was fairly and honestly conducted.
12. I am of the opinion that the District Judge was wrong in holding1 that the result of this litigation was not binding on the present plaintiffs.
13. The decision of the Privy Council in Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.) is directly applicable. After adopting a son to her deceased husband a Hindu widow in a suit by an alleged reversioner against her to set aside the adoption on the ground that she had no authority from her husband to make the adoption, alleged in her written statement and stated in Court through her Pleader, that she had authority to make this adoption and that it was valid. The suit was dismissed because the plaintiff was found not to be a reversioner. The widow then brought a suit against the adopted son to set the adoption aside pleading that she was not vested with authority from her husband to adopt and denied having made the adoption. The adopted son contested the suit and the Courts in India dismissed it, the ground of decision being that the widow was estopped from maintaining, the suit. On appeal, however, the Privy Council raised an issue as to her authority to adopt and held on the evidence on the issue that the adoption was valid. In a suit, on the death of the widow, by an alleged reversioner to estate of her husband, against the adopted son for a declaration that the adoption was invalid and for possession of the Estate, it was held by the Privy Council that, notwithstanding the personal estoppel which bound her, the widow represented the estate on the question of fact as to whether the defendant (respondent) had or had not been validly adopted, and that she represented within the meaning of the Rule laid down in Katama Natchier v. Rajah of Sivagunga 9 M.I.A. 539 : 2 W.R. P.C. 31 : 1 Suth P.C.J. 520 : 2 Sar. P.C.J. 305 : 19 E.R. 843 (P.C.) and under the circumstances the decree against her would bind the reversioners. It seems to me that I may casually refer to one very important circumstance in connection with the case. It was contended before the Privy Council that the decision of the Board in the previous litigation did not operate as a bar to the maintenance of the later suit on the ground that the evidence to show that the widow had no authority to adopt had been excluded in her suit and that there were no materials before the Board which justified a finding that the adoption had been validly made.
14. Their Lordships of the Judicial Committee dealt with the contention thus: “It is true that Rani Dharam Kunwar applied to the Subordinate Judge that evidnce should be taken, but it does not appear that she ever applied to have witnesses summoned or tendered any evidence which was rejected. It is difficult to conceive what oral evidence Rani Dharam Kunwar could have produced, except her own personal evidence to prove that she had received from Rajja Raghu Bir Singh no authority to adopt, and if she had given evidence that the had no authority to make the adoption such evidence, having regard to her own acts and documentary evidence on record, could not have been accepted as true”.
15. Then their Lordships continue: “the Board in 1912 were satisfied, and rightly satisfied, that no further evidence as to the authority or absence1 of (authority to adopt could be expected to be produced by anybody beyond the evidence then already taken.”
16. I refer to the above, because it follows from this, that if the-Court is satisfied that the former trial was fair and honest, the mere fact that the reversioner considers that the evidence adduced by the widow in the previous action is insufficient or that he would have in similar circumstances produced more or better evidence, does net in the least affect the question.
17. It was further contended before their Lordships that the widow laboured under a personal estoppel and, therefore, she could not have represented the estate on the question of fact as to whether the adoption was or was not valid. This argument is dealt with in the following passage,: “In the absence of all authority their Lordships cannot decide that a Hindu lady otherwise qualified to represent an estate in litigation ceases to be so qualified merely owing to personal, disability or disadvantage as a litigant, although the merits are tried and the trial is fair and honest.”
18. The learned District Judge has relied upon Subbi Ganpatibhatta. v. Ramkrishnabhatta 43 Ind. Cas. 233 : 42 B. 69 at p. 76 : 19 Bom. L.R. 919 in support of his view. The facts are entirely dissimilar and the case does not seem to have much bearing. A widow consented to a gift, and 24 years later filed a suit to recover the property gifted alleging that she had consented to and approved of the, gift upon certain conditions which were not complied with by the donees. The defendants resisted the suit on the ground that they held the property adversely to any estate which she represented. The suit was dismissed as barred by limitation.
19. It was held that on her death a suit by her daughter as heir and reversioner of her lather was not barred by the previous action. The learned Judges held that a special Article like 141 of the limitation Act must be taken to override the more general Articles such as Articles 142 and 144 and that the limitation could not begin to run against the reversioners dining the widow’s life.
20. The act of gift was an act personal in its nature and had no relation to the inherit ante which the widow represented. The claim in the suit by the widow was based on the ground that certain conditions had not been complied with by the dories. It is difficult to imagine how the widow can be said to have represented the estate either in making the alienation or in instituting the suit. The ground alleged the suit was one personal to the female heir. Having regard to the facts stated, the decision cannot be said to be an authority for the wider proposition that the widow in the enjoyment of a life-estate can never fully represent the estate in any litigation arising out of act of her own. There are no doubt some passages in this judgment which state the principle in wide and general terms. At page 79 Page of 42 B.–[Ed] the learned Judges say: “nor will litigation by the widow in the enjoyment of such a life-estate, whether she be plaintiff or defendant, represent the estate fully so as to give rise to a bar of res judicata against the reversioners if such litigation is qualified and personal to the widow or has arisen out of acts of her own affecting the estate during her own life-estate therein.” The latter part of the proposition that the widow cannot represent’ the estate in any case when the litigation has arisen out of her own acts seems to be directly opposed to the principle laid down in Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.) already referred to. In this case the act of adoption was the act of the widow and she had challenged the adoption in the previous litigation. The reversioners were bound by the result of the suit to which the widow was a party.
21. I may also refer to another decision of the Judicial Committee Prosunno Kumari Debya v. Golab Chand Baboo 2 I.A. 145 : 14 B.L.R. 450 : 3 Sar. P.C.J. 449 : 23 W.R. 253 : 3 Suth. P.C.J. 102 (P.C.) which relates to a case of a shebaitoi an idol. The principle laid down, however, is equally applicable to the case of a Hindu widow. The appellants as shebaits sued to set aside decrees obtained by the respondent against their immediate predecessor the shebad Rajah Baboo. The latter had borrowed monies from the respondent to defray the expenses of the idol and of repairing the temple. Suits were brought by the respondent and issues were raised and evidence gone into upon the question of fact whether the monies were bona fide borrowed and expended for the service bf the idol, he issues were found in favor of the respondents from the profits of davattar (sic). Were these decrees binding upon the succeeding shebaits, the appellants? It will be noticed that the litigation (sic) out of the acts of the Raja Baboo himself and that he as shebait had defended by him in favour of the respondent. Nevertheless, their Lordships held that the decrees were binding upon Raja Baboo’s successors and they observe: “Judgments obtained against the former shebaits in respect of debts so succeeding shebaits who in fact form a continuing representation of the idol’s property.”
22. They lay down that, before applying the principle of res judicata to judgments of this character, the Court should take care to be satisfied that the decrees relied on art untainted by fraud or collusion and that necessary and proper issues were raised, tried, and decided in the suits which led to them.
23. The learned Judges of the Bombay High Court place reliance upon Runchchords Vandravandas v. Parvatibai 26 I.A. 7I : 23. (sic). 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. (sic) C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.) and Braja Lal Sen v. Jiban Krishna Roy 26 C. 285 : 13 Ind. Dec. (N.S.) 787. In Runchordas Vandravandas v. Parvatibai 26 I.A. 7I : 23. (sic). 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. (sic) C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.) a testator died in 1869 leaving two widows one of whom died in 1871 and the other in 1888 and devised the whole residue of his estate to trustees for a charity and, shortly after the death of the surviving widow, the heir-at-law sued to declare the devise to charity void and for administration. It was held that Article 141 applied, that the suit was not barred, and that Article 144 did not apply. There is no reference in the judgment to the principle in support of which this case was cited as an authority in the decision of the learned Judges of the Bombay High Courts
24. In Braja Lal Sen v. Jiban Krishna Roy 26 C. 285 : 13 (sic) Dec. (N.S.) 787 it was held that the dismissal of a pre (sic) suit filed by a female heir which was for recovery only of her limited estate would not be a bar to a subseqwuent suit by the reversioner which was for the recovery of the absolute estate which vested in (sic). In the course of the judgment at page 29, it was observed: “But if a suit, though concerning the absolute estate, is female heir, for instance, if a suit brought by a Hindu widow to recover possession of immoveable property appeartaining to her husband’s estate is dismissed on the ground of is having been alienated by her in favour of the defendant in the reversioner.” This passage, (sic) from being an authority the very wide Rule enunciated in Subbi Ganpatibhai v. Ramkrishnobhatta (5), expressly states the states the qualification “in the absence of legal necessity being shown.” The inference is that if the legal necessity had been shown the decree might be binding upon the reversioner.
25. I am, therefore, dearly of opinion that Subbi Ganpatibhai v. Ramkrishnabhatta 43 Ind. Cas. 233 : 42 B. 69 at p. 76 : 19 Bom. L.R. 919 is distinguishable on the facts and that the present case falls within the principle, given effect to in Risal Singh v. Bulwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.). The learned Vakil for the respondent has relied upon Nalla Tirupatiraju v. Nandikolla Venkayya 67 Ind. Cas. 479 : 45 (sic) 504 : 15 L.W. 395 : 30 M.L.T. 181 42 M.L.J. (sic) : (1922) M.W.N. 207 : (1022) A.I.R. A.I.R. (M) (sic) in support of the proposition that where the transaction arises out of the act of the widow she can in no circumstances be said to represent the estate in any litigation connected with that act. In the first place, I must observe that the learned Judges were dealing with merely a question of onus and not with the binding character of the transaction. Secondly, the case arose with references reference to a compromise of a suit and not to a decree passed after contest. A Hindu widow first mortgaged her husband’s estate for a debt contracted, by her, then she was sued by the mortgagee and she compromised the suit by selling to him the mortgaged properties. The question to be decided was, on whom was the hurdler, of proof that the compromise, in other words, the sale, was valid and binding upon the reversioners? It was held, that the onus was upon the mortgagee purchaser. It was conceded that the burden of proof would be upon the mortgagee if he sought to enforce his mortgage. Did the circumstance that, subsequent to the mortgage, she entered into a compromise and made an out and out alienation of the property, dispense with the necessity on the part of the alienee to prove in the first instance that the alienation was binding on the estate? The learned Judges held that it did not. I am unable to regard the decision as containing any pronouncement on the question at issue.
26. Whether the widow represented the inheritance may be gathered from the nature of the defence put forward and the issues raised, tried, and decided in the former suit. The mere allegation that she did or did not, woulel be of little value. Was the suit based upon a mere personal cause of action by or against the widow? Was it a ground personal to1 the female heir that was taken in a previous suit? Was it a claim by or against the widow personally or the inheritance which she represented? To decide these questions you must examine the averments, the issues and the findings in the previous suit. If the contentions raised are those connected with the inheritance and the trial was with reference to them, the widow must be held to be representing the estate, if not the litigation, must be deemed personal to her and not binding upon the reversioners, I conceive this to be the effect of Katama Natchier 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. 305 : 19 E.R. 843 (P.C.), Risal Singh v. Baiwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.). I pointed out already that in Original Suit No. 87 of 1885 the defence put forward by the daughter, that the Farrikkat was not supported by consideration, necessitated the determination of the question whether there had been a partition or not between the two branches of the family. I further pointed out that there was a fair and honest trial of this question. The contention referred to was not personal to the widow but was intimately connected with the estate which she represented.
27. Applying the principles of law which I have set forth above to the facts of the present case, I have no hesitation in holding that the decision in Original Suit No. 87 of 1885 does operate as a bar to the suit and I would, therefore, allow the appeal with costs.
Spencer, J.
28. I entirely agree that the decision in Original Suit No. 87 of 1985 binds the reversioners as there was a bona fide contest and a final decision by a competent Court. The appeal is allowed with costs and the decree of the Sub-Judge is restored.
