Trilokinath Singh vs Pertabnarain Singh

Montague E. Smith, J. 1. This appeal arises in a suit brought by the respondent, in which he sought a declaration that he was entitled to succeed to the large taluq of Mahdona in Oudh and other property which belonged to the late taluqdar, Maharaja Sir Man Singh. The District Judge of Faizabad dismissed the suit, but, on appeal, the Officiating Judicial Commissioner reversed his decree, sustained the respondent''s suit, and made the declaration-he prayed. This declaration is directly opposed to the declaration made by the Queen in Council on the report of this Board in a former suit brought by the present appellant, in which substantially the same issues relating to the succession to the taluq as those arising in the present suit were raised and decided. 2. The first question to be considered, therefore, in the present appeal is whether the respondent is bound by the judgment in the former suit; for, if so bound, the question on the merits need not be discussed. 3. It has scarcely been denied that the cardinal issues which were decided in the former suit are identical with those raised in the present; and the principal dispute arising on the defence of res judicata has been, whether the respondent is bound either as party or privy to that former suit. 4. The facts relating to the succession are fully stated in the judgment of this Board in the former appeal L.R. 4 I.A. 228 : I.L.R. 3 Cal. 626. But it will be convenient for the elucidation of the question of res judicata, to which their Lordships'' observations will be confined, to re-state some of these facts. 5. The late Maharaja was one of the great landholders of Oudh, whose status and rights are the subject of Act I of 1869. He died on the 11th October 1870, leaving a widow, the Maharani Subhao Kunwar, a daughter by a deceased wife, and a grandson (the appellant), son of that daughter. He also left two brothers surviving him, both having sons; one of these brothers, Raghubar Singh, being the father of Lachminath, and of Trilokinath (the respondent), the latter being the younger. 6. Some years before the passing of Act I of 1869, viz., on the 22nd April 1864, the Maharaja executed a will, and deposited it with the Commissioner of the district. This will (using the translation given in the judgment of the Officiating Judicial Commissioner, which was adopted at the Bar) is in these terms:

In the name of the Mighty Lord Ganesh. I am Maharaja Man Singh, Badadur, Kaim Jang, taluqdar of Raj Shahganj, Raj Genda, and other places. Whereas my intention as regards making any boy representative has not yet become fixed, I, therefore, for the present declare my aforesaid Maharani representative and proprietor of my estate and property, moveable and immoveable; until she make some one representative, let her remain representative like myself, without power to alienate; and as regards my property, moveable and immoveable, no sharer or partner has any claim. Therefore, having written these few words of the nature of a Will, I have deposited with the Government, that it may remain a record, and be of use in time of need. 7. About two years after the Maharaja''s death, and on the 16th August 1872, the Maharani executed a document, of which the following (also taken from the above-mentioned judgment) is a translation: I am Maharani Subhao Kunwar, widow of Sir Maharaja Man Singh, Sahib Bahadur, Kaim Jang, K.C.S.I., Taluqdar of the Raj of Mahdona, Gonda, &c. Whereas the late Maharaja Sahib Bahadur, my hnsband, departed this life on the 11th October 1870, corresponding with Katik Badi 2nd, Sambat 1927; and from that time up to date I am, under the Will executed by my husband on the 22nd April 1864, in proprietary possession of the entire Raj and estates, and of the property, moveable and immoveable, of the Maharaja, my husband; and whereas life is uncertain, and after my death disputes may arise with regard to the succession to the Raj and dignity of the late Maharaja, my husband, it is therefore right that I should make a Will regarding the appointment of an heir and representative, after myself, in place of the Maharaja, now in heaven, my husband. I, therefore, being in good health, and of sound mind, have, of my own entire free will, and under no pressure or compulsion, appointed the youth Trilokinath, son of Rajah Raghubar Singh, Sahib, deceased, nephew of my husband, heir and representative, in place of my husband, of all the rights and dignities conferred on the Maharaja Sahib Bahadur, now in heaven, by the British Government, and of the entire estate, and all property, moveable and immoveable. The said youth shall, after my death, remain from generation to generation, in the enjoyment of all the rights anddignities, in place of the Maharaja Sahib Bahadur, now in heaven; and the said youth will also own, and enjoy, the property belonging to me, moveable and immoveable. I will fix such maintenance as I may think fit for the youth Partab Narain Singh, and for Darogah Sham Dhar. These allowances shall continue to be paid by the said youth, and by his successors, for ever, after my death; and the said youth, and his successors, shall, also discharge any money debts, or verbal contracts, binding on me, or on the estate. I have, therefore, written these few words of the nature of a Will, that after my death they may be of use when required. 8. At the time the former suit was commenced, viz., on the 7th November 1872, the respondent''s title, if any, rested entirely on these documents, for, as the younger son of a living brother of the late Maharaja, he was not entitled to succeed to the taluq as heir. 9. The claim of the appellant, the son of a daughter of the Maharaja, rested on a clause inserted, at the instance of the Maharaja himself, in Act I of 1869, providing that, in default of a son or son''s descendants, taluqs should descend to such son, if any, of a daughter of the taluqdar, "as has been treated by him in all respects as his own son." (Section 22, Clause 4.) 10. The former suit was brought by the appellant, against (1) the Maharani, (2) the respondent, alleged to be represented by Lachminath, his brother and guardian, (3) Darogha Sham Dhar, brother of the Maharani, (4) Lachminath. The appellant, in his plaint, asserted his title to succeed to the taluq as heir, by virtue of Act I of 1869, being, as he alleged, a daughter''s son, who had been treated by the Maharaja as a son, and prayed that the above-mentioned documents of the 22nd April 1864 and the 16th August 1872 be cancelled. 11. This plaint is very general and informal, but it appears from the judgment of the Deputy Commissioner of Faizabad that (in his own words) "the pleadings gave rise to the following issues, which, as amended at the suit of the parties, ultimately stood thus." The 1st, 2nd, and 4th are as follows: (1) Did the Maharaja leave a Will, and if so what was the effect of it? (2) Did he ever direct the destruction of the Will? (4) Was plaintiff ever adopted as a son by the Maharaja or treated by him as his own son? 12. Evidence having been given on these issues, both the Courts in Oudh decided that the Maharaja had left a Will, and had not revoked it, and thereupon dismissed the suit of the appellant. 13. The appellant appealed from these decisions to Her Majesty in Council, and obtained their reversal. 14. In the judgment of their Lordships, the questions for decision are thus stated: It is now admitted, if it were ever seriously doubted, that the appellant can only succeed in his suit by establishing both the following propositions: 1. That the testamentary disposition, which the Maharaja had undoubtedly power to make, and did make in 1864, was revoked or became inoperative in his lifetime. 2. That the appellant is entitled to succeed to the taluq as the son of a daughter of the Maharaja, who had been treated by him in all respects as his own son, within the meaning of the 4th Clause of Section 22 of Act I of 1869. 15. After careful consideration of the evidence bearing on these propositions, this Board came to the conclusion that the appellant had established both; the result being that the affirmance of the first destroyed the foundation of the respondent''s title, which rested on the Maharaja''s Will, whilst the affirmance of the second established the right of the appellant to succeed to the taluq as heir. This Board, therefore, advised Her Majesty to reverse the decree appealed from, and to declare that the Will of the Maharaja was duly revoked by him in his lifetime, and that the appellant was entitled, under Act I of 1869, to succeed, as ab intestato, to the taluqdari estate of the late Maharaja. A declaration to this effect was accordingly made by Her Majesty in Council. 16. On the 3rd January 1879 the present suit was brought by the respondent, raising the same issue upon the revocation of the Will as that stated in the judgment of this Board, and decided against him, the fourth prayer in the present plaint being that it may be declared that the Will of the Maharaja was not revoked, but was a good and valid Will at his death. 17. The respondent contends that he is not bound by this judgment, because he was a minor when the former suit was commenced, and Lachminath, who is represented on the record to be his guardian, was not duly appointed. 18. It appears that the respondent was of the age of 16 years and 10 months when the former suit was commenced, and did not attain his legal majority, which in Oudh is the age of 18, until the 7th February 1874, after both the judgments in Oudh had been given. This is not disputed by the appellant, nor is it contended that Lachminath was properly appointed as guardian ad litem. But it is insisted that the respondent is bound by the judgment in the former suit in two ways: 1st.--By having, with knowledge that he was nominally a party to the suit, taken upon himself the prosecution of the appeal to the Queen in Council, not only after he had become of full age, but after the taluq had been actually transferred to him by the Maharani by an instrument to be presently adverted to, and so had waived the defect of a due appointment of guardian, or was estopped from setting it up. 2nd.--That, if he be not bound as a party to the suit, the Maharani fully represented the estate in the previous litigation, and consequently that the judgment in the former suit against her binds the respondent. 19. With reference to the first of these points, which was that first argued at the Bar, their Lordships at once intimate that they do not propose to discuss it at length, as their decision will not turn upon it. But to complete the history of the former suit, and to show the position of the parties when the present was commenced, it will be necessary to refer shortly to some further acts and proceedings. Evidence was given in the present suit that the respondent was personally served with the original summons in the former one, and that from time to time he was present with the legal advisers for the defence when the case was discussed; but as all these things took place whilst he was still a minor, they are only material to show his knowledge of the earlier proceedings when he prosecuted the appeal to Her Majesty in Council. 20. After the appellant had obtained leave in the former suit to appeal here in that suit, and during the pendency of that appeal, the Maharani, on the 20th May 1875, transferred by deed the full ownership and immediate possession of the taluq to the respondent, who", at the same time, executed a counter-deed pledging himself to obey her as a son, and to carry on the business of the estate according to her advice. The respondent having thus become the owner of the taluq, as far as the Maharani could make him so, appears upon the evidence to have corresponded with Mr. Wilson, the solicitor engaged in the appeal, upon the conduct of it, and to have supplied funds for its prosecution. Although it seems that no formal appearance was entered for him, his name appears in some of the proceedings as a party to the suit. Whether in thus carrying on the appeal he should be deemed a party to it, and bound as a party by the final order of the Queen in Council, their Lordships, as already intimated, do not think it necessary to decide. It may here, however, be observed that, although after the transfer of ownership of the taluq had been made to him, pendente lite, by the Maharani, he carried on the appeal in the manner just mentioned, he did not think fit to bring that transfer to the notice of this Board until the order in Council had been issued, and upon his application for a rehearing. 21. Their Lordships now proceed to consider the second question, viz., whether the Maharani fully represented the estate in the former suit, which mainly depends on the construction and effect to be given to the will of the Maharaja, and to the first instrument executed by the Maharani. 22. There can be no doubt that the will of the Maharaja is a testamentary instrument. According to the translation of it before set out, he states as a reason for making it, that his intention as regards making any boy representative had not become fixed. " Therefore, for the present," obviously pointing by this expression to the possibility of his making another disposition before his death, he declared the Maharani " representative and proprietor of my estate; until she make some one representative, let her remain representative, like myself, without power to alienate." This language in its natural meaning plainly discloses an intention to vest the whole estate in the Maharani, until she should devest herself of it "by making some one else representative," and the words are sufficient and apt words to accomplish this intention. 23. As if to leave no doubt of his wish to make his widow proprietor of the taluq, until by her own act she appointed another, the Maharaja adds that, until she does so, she is to remain representative "like myself," the plain meaning of these words being that, until such appointment, she was to own and represent the estate as fully as he himself owned and represented it. 24. It is not necessary to consider whether the prohibition against alienation was or was not an effectual restraint; for, however that may be, it is clear that this provision would not prevent the vesting of the whole estate in the Maharani. 25. In what manner the succession would have gone, under this peculiar will, if the Maharani had died without appointing a representative to the estate, is a question which does not now arise. It is sufficient for the present purpose to hold that, until she had appointed another to be owner and representative, the Maharani''s estate in the taluq was sufficient to constitute her the full representative of it in the former suit. Her estate was at least as large as that of a Hindu widow in her husband''s property. What was said by this Board of the widow''s estate in the Shivagunga case Katama Natchiar v. The Raja of Shivagunga 9 Moo. I.A. 539 is applicable to hers. "The whole estate would, for the time, be vested in her absolutely for some purposes, though, in some respects, for a qualified interest, and until her death, it could not be ascertained who would be entitled to succeed;...it is obvious there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow." See 9 Moore I.A. p. 604. 26. The Officiating Judicial Commissioner did not disaffirm the proposition that, assuming no appointment had been made by the Maharani, she would have fully represented the estate. He rests his judgment on the ground, " that, with reference to the conditions of the Maharaja''s will, the Maharani devested her estate by the execution of the document of 1872, and the Maharaja''s estate became, so far as it could then become, in bonis of the nominated successor." This is the principal ground on which his decree was sought to be supported in the arguments at the Bar. It was contended for the respondent that the document of 1872 was a present irrevocable appointment; whilst the contention for the appellant was that it was a will taking effect only on the death of the Maharani, and ambulatory and revocable in her lifetime. 27. Their Lordships are of opinion that the latter is the true nature of the document. It commences with a recital of the will of the Maharaja styling it "a will." The Maharani then says that life is uncertain, and that after her death disputes might arise as to the succession to the Raj, and proceeds: "It is, therefore, right that I should make a will regarding the appointment of an heir and representative, after myself, in place of the Maharaja; I, therefore, being of good health and sound mind, have appointed the youth, Trilokinath, nephew of my husband, heir and representative." She proceeds to say that the youth will enjoy the property after her death. She also bequeaths to him her own property. She says she will fix allowances for maintenance to relatives, which are to be paid after her death by Trilokinath, who is also to pay her debts. She concludes by saying she has written these few words "in the nature of will," that after her death they may be of use. 28. The document, both in its beginning and its end, is expressly styled a will. In the beginning, it is so styled after reference to the Maharaja''s "will," and an instrument of the same nature as his was evidently contemplated. It is also plainly declared by the Maharani that Trilokinath was to become representative only after her death, and there is no indication whatever that she intended to divest herself of her husband''s property during her lifetime, any more than of her own, which she also bequeaths. 29. It is to be observed that, when the Maharani sent a copy of the document to the Superintendent of the Court of Wards to inform him that she proposed the respondent to be successor of the Maharaja after her death, she calls it "a will." 30. It was argued that the document was evidence that she had made an immediate apppointment, because the words "I have appointed" are used. There is no pretence for saying that she had appointed the respondent otherwise than by the instrument itself. These words, therefore, can only have operation according to the nature of the instrument. They are not in themselves inconsistent with a disposition by will, and are altogether insufficient to countervail the express description of the document as a will, and its general tenor. 31. It was but faintly contended that the Maharani had no power to make the appointment of a successor to the taluq by will, and, therefore, to give effect to the instrument of 1872, it must be construed as a present appointment. But it would be impossible to give effect to the instrument contrary to the intention of its author. Treating it then as a will, which their Lordships hold it to be, the respondent took no estate by virtue of it; and, of course, if the Maharani had no power to appoint by will, he never could have taken any. The estate, therefore, assuming the Maharaja''s will had been unrevoked, would have remained in the Maharani until the execution of the deed of 22nd May 1875, which, being made pendente lite, cannot affect the present question. 32. An objection to the efficacy of the judgment in the former suit was made during the argument, on the ground that the manager of the estate, appointed under "The Oudh Taluqdars'' Relief Act" (XXIV of 1870) had not been made a party to it. 33. On the 4th December 1870 the Maharani presented a petition under the above-mentioned Act, which after stating that she had succeeded to the estate of her husband, prayed that, the estate might be placed under the management of the Government; and, on the 3rd June 1871, an order was made by the Officiating Chief Commissioner, appointing the Deputy Commissioner of Faizabad to be manager. 34. The objection was rested on the 25th Section of the above-mentioned Act, which is as follows: "Nothing in this Act precludes the Courts of the Province of Oudh having jurisdiction in suits relating to the succession to, or the rights of, persons claiming maintenance from, any immoveable property brought under the operation of this Act, from entertaining and disposing of such suits; but to all such suits the manager of such property shall be made a party." 35. It appears that in settling the issues in the present suit, the District Judge was asked to frame an issue raising this point. The Judge declined to do so, and the point apparently dropped out of the suit. However that may be, their Lordships think the omission to join the manager as a party does not affect the validity of the decree as between the appellant and the respondent. The appointment of the manager did not vest the estate in him. It remained in the Maharani as before. Nothing in the previous part of the Act takes away the jurisdiction of the Courts in suits relating to succession, and the 25th Section expressly declares that it is not taken away. The defendants to the suit might have objected to the nonjoinder of the manager, or the manager might have intervened under the provision at the end of this section, but the section does not enact or purport to enact that judgments given in such suits shall be void as between the parties contesting the right to the succession. 36. In the result, their Lordships will humbly advise Her Majesty to reverse the judgment appealed from, and to order that the suit of the respondent be dismissed, and that he do pay the costs in the Courts below. The respondent must also pay the costs of this appeal.