Charles Sargent, C.J.
1. This is an appeal from a decision of Scott, J. dismissing the appellant's suit by which, as widow of one Haji Adam Ismail, she claimed to recover from Aishabai, also a widow of Haji Adam, the share of her husband's estate, on the ground that the latter had forfeited it by remarriage.
2. The defendant by her written statement denied that appellant was a widow of Haji Adam, and pleaded that the proceedings in a previous suit No. 227 of 1882, and the award and decree therein were a bar to the appellant maintaining the suit or obtaining the relief prayed therein.
3. The above suit had been instituted by the appellant Fatmabai alleging herself to be the widow of Haji Adam, to recover her share of the estate of her husband. The suit and all matters in difference between them were referred to arbitration, and a decree passed in terms of the award made by the arbitrators by which, without recording any finding or even expressing any opinion as to whether or no Fatmabai was the legal widow of Haji Adam, they directed Aishabai to pay to her the sum of Rs. 55,000 'in full settlement of all and singular the claims and claim of he said Fatmabai and her daughter Mariambai or either of them against or upon the estate of the said Haji Adam whatsoever and wheresoever.'
4. We entirely agree with the Division Court that it was not precluded by Section 13 of the Civil Procedure Code (XIV of 1882 from trying the present suit by reason of the above suit. Although Fatmabai litigated m the former suit as widow of Hail Adam. As she does in the present suit, the matters 'substantially in issue,' In the former she e aimed her share in the estate of Haji Adam as one of his lawful heirs entitled to succeed to him on his death. In the present suit her claim is based on a subsequent event, by reason of which she contends that Aishabai's share is by law and custom forfeited, and reverts to the estate of Haji Adam.
5. Again as to the issue whether Fatmabai was the lawful wife of Haji Adam that was also, no doubt, an issue between the parties in the former suit and a question which the arbitrator had to decide; but the award, the terms of which are embodied in the decree, is silent on the subject; and it certainly could not be inferred from the award--assigning, as it does, to Fatmahai a considerable share of Haji Adam's estate--that the arbitrators had 'decided' against her claim to be the widow of Haji Adam.
6. It was argued, however, that as the plaint in Suit No. 227 of 1682 asked for a declaration that Fatmabai was the widow of Haji Adam, if no declaration was made to that effect, it must be taken to have been refused, having regard to explanation 3 of Section 13 of the Civil Procedure Code, which provides that 'any relief claimed in the plaint, which is not expressly granted by the decree shall, for the purpose of this section, be deemed to have been refused.' But the above declaration was not sought for by way of specific relief, but simply as the ground for the real and substantial relief, to obtain which the suit was instituted, viz, the payment by Aishabai of Fatmabai's share of Haji Adam's estate of and we do not think the explanation under consideration was intended to apply to such a case. We, therefore, entirely agree with the Division Court that the proceedings and decree in suit No. 227 of 1882 did not operate as res judicata under Section 13 of the Civil Procedure Code (Act XIV of 1882) with respect to the subject-matter in issue in the present suit.
7. But it was further contended for the defendant that the award and decree constituted a valid and binding release or final settlement of all claims whatsoever, whether present or future, which Fatmabai might have on the estate of Haji Adam.
8. The award was in the following terms:
That the said Aishabai do pay, for the said Fatmabai, to her attorneys Messrs. Tyabji and Dayabai, within seven days after the date of this decree, the sum of rupees fifty five thousand in full settlement of all and singular the claims and claim of the paid Fatmabai and Mariambai, or either of them, against or upon the estate of the said Haji Adam Haji Ismail whatsoever and wheresoever, and doth further decree that the said Fatmabai do maintain her infant daughter Mariambai so long as the said Mariambai shall remain unmarried, and shall also provide for the marriage expenses of the said Mariambai, and doth declara ii that upon the payment of the said sum of rupees fifty-five thousand by the said Aishabai to the said Fatmabai as aforesaid, all claims whatsoever of the said Fatmabai and Mariambai, or either of them, upon the estate of the said Haji Adam Haji Ismail in the hands of any person whatsoever or upon the said Aishabai as the heir of the said Haji Adam Haji Ismail personally or otherwise howsoever shall be considered to have been fully satisfied by the said Aishabai and absolutely waived for ever by the said Fatmabai and Mariambai, and doth further declare that the said Aishabai is entitled absolutely to all the rest of the estate and effects of the said Haji Adam Haji Ismail as her sole property as against the said Fatmabai and Mariambai.
9. The important question is as to the proper construction to be placed on the general language of the concluding clauses. It was conceded that by the well-established rule of the construction of the general words of a release, for which it is sufficient to refer to the statement of it by Lord Westbury in The Directors &c;, of London and South-Western Railway Co. v. Blackmore L.R. 4 E& l. A. 623 the general words of the award must be confined to such claims as were presumably in the contemplation of the arbitrators which prima facie would be the claims of Fatmabai and Mariambai as widow and daughter of Haji Adam to share by inheritance in his estate as being the subject of reference to arbitration. The Judge of the Division Court, however, considered that there were special Circumstances which justified the general words being read in the largest sense of which they were susceptible, and, therefore, as including all possible claims whether present or future and contingent, and held that all parties must have so understood them. The circumstances relied on by him were (1) that no issues were raised; (2) there were no direct findings on the precise points in dispute; (3) the sum awarded to Fatmabai was less than the one-half which she would have taken as widow; (4) the arbitrators never, in terms, decided the main question at all; (5) though the award was defective from want of findings on all the matters in difference, there was no objection taken by either side to its validity; (6) that, in short, the arbitrators deviated from the submission, and the parties consented to ~ the divergence. The learned Judge says: 'All these facts make me think that there was a distinct intention amongst all the parties that the decision arrived at by the arbitrators should be treated by all the parties as a sort of final compromise and settlement, not only of the disputes submitted, but of all the disputes that could arise between the two ladies as regards the estate of the deceased husband.
10. Now it is doubtless true that neither of the parties took any objection to the award, on the ground that it was defective from want of a finding on the main question in dispute whether Fatmabai and Mariambai were the 'widow and daughter of Haji Adam, and this circumstance may be ground for supposing that the award was intended to be a compromise by the arbitrators and regarded as such by the parties themselves; but as no other claims than those which Fatmabai and Mariambai had then preferred to share in the estate with Aishabai would be presumably present to the minds of the parties, the compromise could not, in our opinion, be properly read as covering more than those claims. Moreover, as there was no decision come to whether Fatmabai was the widow of Haji Adam, the general language of the release may well be explained by the natural anxiety of the arbitrators to prevent the possibility of the plaintiff, notwithstanding the award of Rs. 55,000, still preferring a claim to share in the estate on the basis of their being the widow and daughter of Haji Adam.
11. Much stress was laid, in argument, on the final direction in the award that Aisbabai is entitled absolutely to all the rest of the estate and effects of the said Haji Adam as her sole property as against the said Fatmabai and Mariambai; but these words under the circumstances must be read with reference to the character in which the parties wore litigating as widows of the, deceased Haji Adam claiming to suoceed to his property on his decease. The case of Sreemuty Rabutty v. Sibchunder Mullick 6 MI.A. P. 1 shows that such general language may be controlled by the circumstances of the case.
12. Upon the whole we are unable to come to the conclusion--and it is necessary, we apprehend, to do so in order to decide in favour of the -defendants--that upon the proper construction of the award there is such a clear intention shown to include in the settlement effected by them a future contingent claim of the special nature now under consideration as to preclude the plaintiff from setting it up in the present suit; and it is worthy of remark that though Mr. Bhaishankar, solioitor for the defendant in that suit and one of the arbitrators, is the solicitor for the defendant in this case, he has net taken the objection in the correspondence which preceded the filing of the plaintiff's suit.
13. We must, therefore, reverse the decree, and send back the case for disposal on the merits. Costs to abide the result.