1. This second appeal raises a point of some interest. The facts are : there were four brothers-Tukaram, Totaram and two others. The latter are not concerned in this litigation. Before the suit, out of which this appeal arises, Tukaram brought a suit against Totaram for possession of some property. Totaram contended in that suit that as the result of a partition between the brothers that property had been allotted to his share. When the suit was ripe for hearing and the parties were ready with their witnesses, Tukaram stated that if Totaram took a special oath and stated that the property had come to the latter as the result of a partition, he would be bound by it and would agree to the suit being dismissed. Totaram having agreed, a special oath was administered by the Court to Totaram, and he then stated that the property in the suit was his exclusive property and that it had come to him as the result of a partition between the brothers. Upon that the suit was dismissed. At the time of this litigation Tukaram had four sons. Of them, Tulshiram was a major at the time, the other three being then minors. This happened in 1932.
2. In 1933 Tulshiram for himself and as the guardian of his minor brothers brought a suit to recover the same property against Totaram and his sons. Totaram, amongst others, set up a plea that the suit was barred by the principle of res judicata. The trial Court on the evidence held that Tukaram, the deceased father of the plaintiffs, was acting in a representative capacity for the benefit of himself and his sons and fully represented the sons in the earlier litigation, and the suit was barred under Section 11 of the Civil Procedure Code read with explanation VI to that section. There was an appeal from this decision.
3. In appeal it was argued that the special oath in the earlier litigation only bound Tukaram himself and, therefore, although the decree in that suit would operate as res judicata against Tukaram, it could not bind the present plaintiffs and bar their suit under Section 11 of the Code. Other questions of fact were also raised. The learned Judge in appeal accepted the contention that under the provisions of the Indian Oaths Act the oath would ordinarily bind a person who offered to be bound by a special oath, and he would be debarred from instituting a fresh suit relating to the same subject-matter between the same parties, but not his sons whether they be minors or majors. He then considered the position under the general principles of Hindu law governing such cases. He held on the evidence that the earlier litigation was for the benefit of all his sons, that Tukaram was acting in their interests and for their benefit, and that the suit was brought by Tukaram in a representative capacity for the benefit of himself and his sons, and, therefore, the sons would be bound by the dismissal of that suit. Although the learned Judge does not specifically say in his judgment that the sons, i.e. the present plaintiffs, would be bound by the doctrine of res judicata, reading his judgment as a whole it seems to me that that is exactly what he meant to decide and has decided, and that is clear from the fact that in considering the principles of Hindu law he refers to the well-known decision of the Privy Council in Lin-gangowda v. Basangowda (1927) L.R. 54 IndAp 122 : 29 Bom. L.R. 848.
4. The appeal then being dismissed, the present second appeal is brought from that decree. After hearing Mr. Limaye I am clearly of opinion that the decision of the lower Courts is perfectly sound.
5. It is quite true that under the provisions of Sections 8, 9, 10 and 11 of the Indian Oaths Act the evidence given by a person to whom the special oath has been administered at the instance of a party to a suit is, as against the party who offered to be bound by the special oath, conclusive proof of the matter stated, and prima facie that person would clearly be bound, and the decree following the taking of the special oath would clearly operate as res judicata between the party offering to be bound by the special oath and the party agreeing to and taking the special oath. But a party to a suit may be suing in a personal capacity or in a representative capacity. Whether he is suing in a personal capacity or in a representative capacity is a question of fact. But if he is suing in a representative capacity, I do not see that there is anything in the provisions of the Indian Oaths Act which would not conclude not only the party offering to be bound by the special oath but also the persons whom he was properly representing in that litigation, unless it is alleged and proved that the party acting in a representative capacity was guilty of fraud or collusion or unless similar circumstances are proved to have existed vitiating the binding character assigned to such an oath by the Act. That being so, it seems to me that the finding of the learned Judge that Tukaram was properly representing his sons and was acting not only in his own interest but also in the interest of all his sons and for their benefit, must operate as a bar to the present suit even under the provisions of the Oaths Act read with Section 11 of the Civil Procedure Code and explanation VI to that section. But it is argued that whatever the position of the minor plaintiffs in the present suit may be, and that admitting that a Hindu father can properly represent his minor sons in a litigation, the father is not legally entitled to represent the major son. But this contention also seems to me to be untenable in the light of the authorities which have been referred to in the course of the arguments before me. It has now been held by their Lordships of the Privy Council in Lingangowda v. Basangowda (1927) L.R. 54 IndAp 122 : 29 Bom. L.R. 848 that (p. 125):-
In the ease of an Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before ; and in each of these cases, therefore, the Court looks to the explanation VI of Section 11 of the Code of Civil Procedure, 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.
6. The position of a manager of a Hindu family and his power to bind the other members of the family has been also considered in Umakant v. Martand (1932) 35 Bom. L.R. 388, and in Madhgouda Babaji v. Halappa Balappa I.L.R. (1933) Bom. 348 : 36 Bom. L.R. 327 and clearly a Hindu father has a larger power in this respect than a mere manager of a Hindu family.
7. But then the question arises, whether the assent of the major son must necessarily be express so as to clothe the Hindu father with the necessary authority. It seems to me on principle difficult to hold that the assent of the major son must necessarily be express. Whether there was assent, either express or implied, is a question of fact. The objection that when a coparcener is suing to recover family property, all the other coparceners are necessary parties to such a suit, is really for the benefit of the defendant to the suit, and it is the defendant's right to object to the suit on that ground and to insist upon all the coparceners being joined. In this case, having regard to the finding of both the Courts, there cannot be the least doubt that the major son was fully aware of the litigation and that he had not come forward to join in the suit, nor had the defendant in the suit insisted upon his being joined, and the parties went on with the litigation on the footing that the father was representing the whole family. That the consent in such cases of the major son need not be express, but may be implied, is clear from the decision in Guruvayya v. Dattatraya I.L.R. (1903) 28 Bom. 11 : 5 Bom. L.R. 618. The case really turned upon the construction of Section 22 of the Indian Limitation Act; but in dealing with the point of limitation, it was necessary to consider the position of a managing member of the family, and in doing so, Jacob J. followed Hari Gopal v. Gokaldas Kusabashet I.L.R. (1887) 12 Bom. 158 where Sargent C.J. indicated that the question of the right of a manager to sue in that capacity is rather one of authority, if the other co-sharers are adults, and that the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early stage. I see no objection, therefore, to holding that the assent in such cases of the major son need not be express but may be implied from the circumstances of the case. At any rate, in this case, I have no difficulty in holding, having regard to the findings of the lower Courts, that the major son had consented to the father's carrying on the earlier litigation. If so, the result must: be that all the sons must be held to be bound by the decision in the earlier litigation, and the decree in that litigation would be binding on them not only on principles of Hindu law but also under Section 11 of the Civil Procedure Code read with explanation VI to that section.
8. The result is that the appeal fails and must be dismissed with costs.