Dinanath Jha vs Sabuj Lal Chaudhuri and Others

Mohamad Noor, J.—The suit out of which this second appeal arises was instituted by the appellant for recovery of possession of certain properties left by his maternal grandfather Jairam Chaudhuri which according to the plaintiff devolved upon him on the death of Mt. Buchi, widow of Jairam. The plaintiff is the son of Mt. Bharabati, who was the daughter of Jairam from another wife Mt. Rambati. The defendants are heirs of one Suratlal who claimed to be a kritrima adopted son of Jairam, a fact which is disputed by the plaintiff in the present suit. The trial Court gave the plaintiff a decree, but the Court of appeal below dismissed the suit holding it to be barred by res judicata by virtue of a decision in a previous suit between Mt. Buchi and Surat Lal wherein Surat Lal was held to be the kritrima son of Jairam.

In order to appreciate the point taken by the learned lower appellate Court, it will be necessary to state briefly the litigations which followed the death of Jairam. Jairam left surviving him his widow Mt. Buchi and a daughter, Mt. Bharatbati. One Surat Chaudhuri claiming himself to be a kritrima adopted son of Jairam applied for a succession certificate under Act 7 of 1889 to collect debts due to the estate of the deceased Jairam. The widow and the daughter of Jairam at first denied the adoption, but later on admitted it. One Bhinak Lal Chaudhuri claiming himself to be an agnate of Jairam had also filed an objection in that succession certificate case.

Therefore the case could not be decided on the admission of adoption by the widow and the daughter. The learned District Judge Ultimately decided against the adoption. Surat Lal thereupon instituted a suit to establish his title to the properties of Jairam as his kritrima adopted son. The suit was No. 95 of 1890. It was decreed on 23rd September 1890. Bhinak Lal Chaudhuri who had succeeded to defeat Surat''s claim to a succession certificate before the District Judge wanted to be impleaded in that suit, but his prayer to be added as party defendant was rejected. He thereupon brought his own suit against Surat Lal. This was No. 133 of 1890.

It ended in a compromise whereby Surat Lal gave Certain properties to Bhinak Lal. This was on 23rd June 1891. The result of these two litigations was that Surat was established as a kritrima (adopted) son of Jairam on the admission of his widow and daughter and by a compromise with the agnate Bhinak Lal. There were two ekrarnamas between Mt. Buchi, the widow of Jairam, and Surat Lal. Surat Lal gave a considerable portion of the property to Buchi for her maintenance, and Buchi in her turn stipulated that the property which was given for maintenance would return to Surat on her death.

Things continued in this way for some time till Buchi instituted a fresh suit to set aside all what she had done. This was Suit No. 99 of 1899. In order to carry on this litigation she had taken a champerter who was plaintiff 2 in that suit. Bharatbati, daughter of Jairam, was also impleaded as defendant. The suit was tried and dismissed both by the first Court as well as by the appellate Court, the District Judge of Tirhoot. It is this decision in Buchi''s suit against Surat which has been held by the learned, District Judge in the present suit to be res judicata and binding upon the plaintiff.

The question for our determination is whether the suit of 1899, brought, by Buchi against Surat was a suit brought by her in her capacity as holding the estate of her husband, that is, was it a suit of a nature which can come within the purview of the decision of their Lordships of the Judicial Committee in Katama Natehiar v. Rajah of Shivaganga (1861-63) 9 MIA 539 (PC) commonly known as the Shivaganga case. It is needless to refer to a large number of authorities which have been cited at the Bar to the effect that a decree obtained against the widow in her capacity as the holder of the estate of her husband in a suit fairly obtained is binding upon the succeeding heir. This proposition of law is not disputed. But Mr. Mitter, who appears on behalf of the appellant, has contended that the suit of 1899 was not a suit in which Buchi represented the estate of her husband. The suit was to set aside her own improvident acts and was mainly decided on the basis of her own admissions and acts and the decree obtained in such a suit would not be binding upon the present plaintiff.

He relied upon the case of Sishi Kumar v. Chandra Kumar 1923 Cal 204, where it was held that a suit by a reversioner to recover possession of a property was not barred by res judicata by reason of a previous suit by a Hindu widow for recovery of possession in her own right which she enjoyed for many years and from which she was dispossessed. But a somewhat contrary view seems to have been taken by the Privy Council in two cases to which I shall presently refer. He also relied upon a decision of the Bombay High Court in Bayava Shiddappa v. Parvatevo Basavaneppa 1933 Bom 126, where a decree obtained against the alleged widow on the ground that her marriage with the deceased was not proved was held not to be res judicata in a subsequent suit brought by the daughter of that widow to recover possession of the property on the basis of her claim as a daughter of the deceased by that widow. In my opinion, this case has no application as the previous suit was of a purely personal

nature, the status of the widow herself being in dispute.

That the suit of Buchi was fairly and honestly fought has been held to be a fact by the learned District Judge. His findings are in these words:

I must therefore hold that T.S. No. 1899 was not a fraudulent suit and was contested and fought out bona fide by Mt. Buchi in which she was supported by the other and father of the plaintiff and by a champerter.

This is binding upon us in second appeal. Now, the question therefore is--Was the suit of a nature referred to as I have said in Katama Natehiar v. Rajah of Shivaganga (1861) 9 MIA 539 (PC) and subsequent decisions to that effect? In my opinion, the decision of the Judicial Committee of the Privy Council in Risal Singh v. Balwant Singh 1918 PC 87, settles the matter so far as the present appeal is concerned. The facts of that case were very much similar to the facts of the present case. One Rani Dharam Kunwar purported to adopt one Balwant Singh as her adopted son by virtue of an authority said to have been given to her by her husband.

The reversioners in the lifetime of the widow brought a suit to declare that adoption to be invalid. They lost the suit. Thereafter Rani Dharam Kunwar herself brought a suit to set aside the adoption. She lost the suit up to the Privy Council and the Judicial Committee held in that suit as a matter of fact that there was an authority to the Rani entitling her to adopt. On the death of the Rani the then reversioners brought a fresh suit for setting aside the adoption. The decision in the Rani''s suit was put forward as res judicata in the third suit. Their Lordships of the Judicial Committee held that notwithstanding the personal estoppel under which the widow laboured she represented the estate on the question of fact as to whether Balwant Singh had or had not been validly adopted, and that she represented it within the meaning of the rule in Katama Natehiar v. Rajah of Shivaganga (1861) 9 MIA 539 (PC). Their Lordships further held that though the rule of res judicata, as enacted in Section 11, Civil P. C, 1908, was not strictly applicable, as the plaintiffs were not parties to the suit of the widow against the adopted son and did not claim under a party to that suit, but the principle of res judicata has been applied rightly by the Courts in India so as to bind reversioners by decisions in litigation, fairly and honestly conducted, given for or against Hindu females who represented estates.

Now in this case, as I have said, the finding of fact is that the suit was fairly and honestly fought. So far as the question of adoption was concerned, the widow was representing the estate, otherwise she had no capacity whatsoever to challenge that adoption. Though a declaration in respect of adoption was not specifically sought, yet the learned Subordinate Judge who tried that suit had to decide that issue on the facts of that case and held that Surat Lal Chaudhuri was in fact adopted by Jairam and that finding of fact was upheld in appeal by the District Judge. The finding of fact may not have been necessary for the decision of that case in view of the admissions and acts of Mt. Buchi; but nevertheless an issue was raised and was tried. The plaintiff in that suit, Mt. Buchi, based her claim on her right as widow of Jairam and wanted a declaration that the defendant, namely Surat, had absolutely no concern with that property and sought a positive and negative declaration and that necessarily required a decision of the issue of adoption by Jairam of Surat. The Courts were called upon to try the issue and tried it and found it against her.

The position will become clearer if we refer to the observations of the Privy Council in 1929 PC 166(5). Their Lordships referring to previous decisions of the Board observed that a decree against a Hindu widow was binding upon the reversioners although it was founded upon limitation, and a decree obtained against the widow on the basis of adverse possession was no exception to Katama Natchiar v. Rajah of Shivaganga (1861) 9 MIA 539 (PC). In my opinion this appeal fails. I would dismiss it with costs.

Luby, J.

I agree.