1. In the action which has given rise to this appeal the plaintiff sued for a declaration that a deed of mortgage executed in 1921 by a widow Bai Muli in favour of defendant No. 1 is not binding upon him as reversioner, and for possession of the suit property after the eviction of the person who is in possession of the property as tenant of the mortgagee of 1921. The property in suit is a shop. This property and several others belonged to one Balgovind, who died many years ago leaving a widow Kashi, and three sons, Chimanlal, Himatlal, and Maganlal. After a suit for partition between the sons in the year 1894 certain of the properties were divided but certain other properties (including the suit property) were left undivided. The eldest son Chimanlal died two years later (in 1896) and left no heirs. The second son Himatlal died in 1905 leaving a widow Muli and a daughter Shivlakshmi. The third Maganlal died in 1917 leaving a widow Divali. A month after Maganlal's death Kashi also died. Muli's daughter Shivlakshmi was married in 1910 and died in 1920.
2. In 1918 Muli brought a suit against Diwali for partition of such of the family property as remained undivided except the property in the present suit. That suit was compromised as the result of a settlement, exhibit 23. The main term of this settlement was that each widow should have absolute power to dispose of her own share in the suit property subject to her giving the other widow the right of making the first offer for it. A decree followed in the terms of the compromise ; but, as the property in this suit was not concerned in that suit, naturally no reference to the suit shop was made in the decree. On July 21, 1919, Divali adopted the present plaintiff. In October, 1921, Muli mortgaged the suit property for 999 years to the present defendant No. 1 ; but on the day after the mortgage both Muli and Divali are said to have taken registered rent note from one Kalidas for three years. This appears to have been in continuation of a previous rent-note for three years admittedly executed by Kalidas in favour of both the widows in 1918. In 1922 Divali on behalf of the present plaintiff sued both the tenant Kalidas and Muli, claiming that the plaintiff was owner of the whole shop and not only of half, and also stating that the tenant was holding over under the previous rent note of 1918. The second rent-note purporting to have been executed jointly in favour of the mortgagee and Divali was repudiated in that suit by Divali, The suit was, however, dismissed for multifariousness and for misjoinder or non-joinder of parties, and the Court did not go into the merits. In 1928 Muli died, and towards the end of 1929 plaintiff has brought this suit to set aside Muli's mortgage of her half share and to evict the tenant.
3. Defendant No. 1 contended that the plaintiff's adoption was not proved, or, if proved, was not valid, and that by the arrangement of 1918 between the two widows Muli had absolute authority to dispose of her property as she liked. He further contended that the suit of 1922 was conclusive against plaintiff as regards his title to the property and that it was not open to him to raise that question again in this suit. Lastly, he contended that the alienation of 1921 by Muli to defendant No. 1 was justified by legal necessity and was, therefore, binding upon the plaintiff.
4. The question of adoption was decided in the plaintiff's favour, and so were the other three defences raised. In the present appeal by defendant No. 1 the question of adoption is not pressed, and we are concerned only with the last three contentions. On all three points we uphold the findings of the lower Court.
5. The first question is as to the validity of the agreement of 1918 and whether the plaintiff is bound by it. Admittedly, if it was a settlement of a bona fide dispute, or if it was a compromise by the widows for the benefit of the estate in a matter where the widows were representing the estate, then it would be binding upon the reversioner. But that does not seem to be the case here, because the property in suit was definitely not in dispute in that case; and, although this by itself would not necessarily preclude an arrangement regarding the suit shop from being a bona fide settlement, still in the present case it cannot be taken to be a bona fide settlement because that part of the agreement which deals with the suit shop finds no place in the decree which purports to have been based upon the agreement. The decree in fact was confined to the other properties, and the present suit property was excluded, Again, the arrangement, in so far as it purported to give each widow the powers of a full owner over her share of the property, went beyond the capacity of either of them, since under the law they were only limited owners. Lastly, the effect of the compromise was not in any way to enlarge the estate or to benefit the estate ; its only effect was to increase the powers of the widows themselves adversely to the reversioner. It cannot, therefore, be recognised as binding upon the reversioner.
6. The next point is the question of res judicata. The suit of 1922 brought by Divali on behalf of the plaintiff was regarded by the Judge who tried the suit as primarily a suit between landlord and tenant. The plaint in that suit says that Muli has been impleaded because she is obstructing the. plaintiff in recovering possession from the tenant. It has been contended before us that it was open to the plaintiff in that suit to raise the question of his title to the property as against Muli's title to the property and to raise the further question of the validity of the alienation of 1921. But it appears from the judgment in the suit that this suit was dismissed for misjoinder of causes of action and for misjoinder of parties. The learned Subordinate Judge who tried it held that it was not open to Divali or the present plaintiff to claim reliefs both against the tenant, in a suit of landlord and tenant, and against Muli, in a suit which would really involve 'the determination of the plaintiff's right as between himself and Muli. The Court, therefore, advised that Muli's name should be omitted as a defendant and that the suit should be confined to the question of landlord and tenant alone. But the plaintiff refused to omit Muli, and the result was the dismissal of the suit without going into the merits at all.
7. There is authority to show that Section 11 of the Civil Procedure Code is not -exhaustive, and a matter constructively in issue can be as much res judicata as a matter directly and substantially in issue. It has, therefore, been argued that plaintiff's title as against Muli or her successor-in-title was a matter which ought to be regarded as having been directly and substantially in issue in that case, inasmuch as it was open to the plaintiff as heir presumptive to sue at that time for a declaration that the alienation was void beyond the lifetime of Muli. It was held in the case of Fateh Singh v. Jagannath Bakhsh Singh (1924) L.R. 52 IndAp 100 : 27 Bom. L.R. 725 that where a matter which might and ought to have been set up in a former suit was not set up, that matter could not be taken in another suit because it was res judicata. But on reading the judgment in that case it can be seen that the former suit was really decided upon the merits. The plaintiffs had come to Court claiming certain property on the ground of their relationship. It was contended that the defendants were nearer relatives ; and the plaintiffs then wanted to set up a family custom which would make the plaintiffs the nearer relatives. It was. held that this made out a new case and that the plaintiffs were not entitled to proceed. The suit was accordingly dismissed. The plaintiffs then brought a further suit alleging the new custom. When the matter went to the Privy Council, it was held that they ought to have based their former suit upon the family custom and that was not open to them to do so now. But here the facts are very different. Here we have a Court refusing to-consider the merits of the case at all; it dismissed the suit upon the threshold. Moreover, we do not see how in the circumstances it was possible for the plaintiff, in a suit which was primarily a suit between landlord and tenant, to raise the question of his rights as against the rights of Muli or the mortgagee. To do so would have made the suit bad for multifariousness, and again it would have been dismissed without being considered on the merits. This question was, therefore, not constructively in issue in the suit of 1922, and on that ground we hold that there is no substance in the contention as regards res judicata.
8. The last question is the question of legal necessity. Much has been said to us of a widow's right to alienate property for her husband's spiritual benefit; and it has been argued on the other side that there is nothing on the record to show that the various expenses in which the widow is said to have indulged for her husband's spiritual benefit were really for her husband's benefit at all. But it is not necessary to go into the question of spiritual benefit; that is a question that would arise only if the alienation took place in order that, spiritual benefit might be conferred in the future, and here the spiritual benefit (if it occurred at all) was complete before the alienation took place. The justification for the alienation must, therefore, be based upon actual debts contracted for purposes of spiritual benefit. On this point the mortgage deed itself exhibit 19 merely mentions as a necessity for the alienation, 'caste dinner, etc.' But in the examination of defendant No, 1 we find that the items which are said to justify the sale are debts incurred in consequence of the death of Muli's husband in 1905, of the marriage of her daughter in 1910, of the death of that daughter in 192Q at a time when she was already married, of Muli's own jivatkriya or funeral ceremony performed in her own lifetime, and lastly of a minor matter, the distribution of brass pots among Brahmins. Whether these acts were indeed for spiritual benefit or not, the fact remains that there is no reliable evidence upon the record to show that they gave rise to any debts; and if no debts were incurred for these purposes, then it is difficult to see how they could justify the mortgage. On the question of debts the evidence of defendant No. 1 himself is vague in the extreme, and his three witnesses take us very little further. The first witness (exhibit 66) is a nephew of Muli herself, and he professes to give details of some of the expenses to which Muli was put. But he was dismissed from Government service as a Talati, and a criminal case was brought against him at the same time. He is clearly an unreliable witness in so far as he is testifying in favour of the defendant; but he admits that Muli's late husband was possessed of ornaments worth Rs. 3,000 or Rs. 4,000, and there is nothing on the record to show that those ornaments were not still in Muli's possession. He also admits that he has no personal knowledge of the expenses to which Muli was put. His evidence proves nothing. Another witness (exhibit 68) gives evidence as to the existence of debts, but he admits that he knew nothing of those debts until, he says, defendant No. 1 came to ask him about them about a week before the execution of the mortgage deed. He further admits that he never knew how much those debts amounted to. The last witness (exhibit 72) admits that he does not know of any debts incurred on account of a caste dinner for Himatlal, and he knows nothing about the marriage expenses of Himatlal's daughter. Clearly this evidence is not enough to establish the existence of debts.
9. It might be possible nevertheless for defendant to resist the suit if he could show that he had made all proper inquiries before concluding the alienation. But he does not seem to have done so. He admits that he did not inquire as to whether Muli herself had any land or ornaments. It is true that Muli would not have been required to spend her own money for her husband's spiritual benefit; but if she had land or ornaments, then it is all the more unlikely that she incurred debts for these purposes, and defendant No. 1 would have been on his guard. Nor did he ask when she gave a caste dinner to her husband's memory, or how much that dinner cost; and he says that he does not remember how much she told him that she still owed upon it. His evidence was vague as to his inquiries regarding the marriage and funeral expenses of the daughter ; and it also appears that he asked for no details as to the date or the amount of the expenses incurred by Muli on her own jivatkriya, except that he was told that Rs. 3,000 was owing on that account to some one whose name he does not remember. He does admit, however, that he was never told by Muli that the creditors were pressing. If his inquiries had been really thorough, it is probable that he would have made a note of them or seen that they were incorporated in the deed of mortgage itself. The defence fails on all points. The order of the lower Court must, therefore, be upheld, and this appeal be dismissed with costs.