1. The suit was brought by the plaintiff, who is the appellant, to recover possession of the property in dispute on the allegation that it belonged to him and his uncle Vithal as members of a joint Hindu family, and that on the ''death of Vithal he, i. e. the plaintiff, as the surviving coparcener, became exclusively entitled to it.
2. The respondent Bai Javer against whom the suit was brought is the daughter of Vithal, and she contested the claim of the plaintiff upon the ground that the property was the separate property of her father, and that she was on his death heir according to Hindu law. The plaintiff challenged the defendant's right to the property as Vithal's heir upon several the principal of which tried in both the Courts be was the ground of res judicata.
3. That question of res judicata arose under the circumstances : On the death of Vithal his widow, i.e., the present respondent's mother, brought a suit to recover possession of the property on the allegation that it was the separate property of her husband. That suit was brought against the present appellant, plaintiff in the suit, which has led to the present second appeal. The principal issue in that suit was whether the property was the joint property of Vithal and his brother, the present plaintiff's father, or whether it was his separate property. The Court held upon the evidence that it was the joint property of the two brothers, but that the widow of Vithal was entitled to remain in possession during her lifetime in virtue of her right to maintenance as the widow of a deceased coparcener.
4. From that decree the widow appealed. But instead of prosecuting the appeal she withdrew it. The result of that, was that the decree of the Subordinate Judge's Court was left untouched. It was contended in the Court below, however, that that decree could not operate as res judicata in the present suit which was brought by the appellant, who was the defendant in the previous suit against Vithal's daughter ; that the daughter does not claim from her mother, the plaintiff in the previous suit, but claims as the heir of her father. The decree would operate as res judicata if it was a decree against Vithal's widow as representing the estate of Vithal. There can be no doubt that the widow did represent the estate in the previous suit. The only question is whether having regard to the decision of the Privy Council in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 539, the question in the previous suit was prosecuted by her, and the litigation was carried to its end after a fair trial of the question which had led to the previous suit.-,. It is not denied that, so far as the previous suit itself was concerned, the questions raised in it were fairly tried. The only question is whether the withdrawal of the appeal had such an effect upon the decree as to deprive it of its operative power for the purposes of res judicata. The withdrawal was by the widow. We are not aware of the circumstances under which she withdrew the appeal. But it is clear that, so far as he was concerned, the case was fairly contested and withdrawal of the appeal by the widow is not sufficient to deprive the decree of its operative character in law.
5. Mr. Thakor has contended before us that in Shivagunga's case too there was an appeal, but that the widow having died, their Lordships to the Privy Council said that the decree could not operate as res judicata in a subsequent suit. That was because the death of the widow showed that the person who represented the estate having died the contest was not carried on. In the present case it is different. The widow having the power to continue the contest withdrew from it, which shows that there is an essential difference between the facts of the present case and the facts in Shivagunga's case. We must, therefore, hold that the decree in the previous suit does operate as res judicata.
6. But Mr. Thakore has relied upon another ground in support of the decree of the lower appellate Court, and that ground is this : In the previous suit the Court in its judgment, no doubt, found that the present appellant's father and his brother had 'been members of a joint family and that the property in dispute was joint But in spite of that finding the Court held that the plaintiff in that suit, i. e., the widow of Vithal, was entitled to possession, as the widow of a deceased coparcener. Mr. Thakore's argument is that from such a decree, no doubt, the plaintiff could have appealed but only in respect of a finding which was essential for its existence as a decree. The widow could not have appealed against a mere finding when the decree was in her favour. In support of this argument Mr. Thakore has cited Anusuyabai v. Sakharam Pandurang ILR (1883) 7 Bom. 464 and Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer . It is true as a matter of law that where there are two issues and the Court finds on both those issues and a decree is made on the ground of one of those findings, the party in whose favour the decree is made cannot appeal merely because the other finding is adverse to him. Now in the present case the decree in the previous suit was in favour of the widow, and, therefore, argues Mr. Thakore, the finding on the question of separation or union was unnecessary for the purposes of that decree and did not enter into the case as its essential basis. This argument, however, overlooks the salient feature of the previous litigation. The Court in the previous suit found that Vithal and the present appellant's father were coparceners and that Vithal's widow was entitled to maintenance, and, the therefore, to the possession of the property in dispute as therefore, to the parcener's widow. Therefore the two issues deceased co-previous litigation really formed part of one case. The right to maintenance could not have accrued to the widow unless she was the widow of a deceased coparcener, which meant that the family was joint. Therefore the question of separation or union was the question upon which both the points in the previous litigation depended, and therefore entered into the essential basis of the decree which virtually and finally declared that Vithal's widow was entitled to the property only for maintenance, but not as heir of her deceased husband.
7. On this ground, therefore, we must hold that both the Courts below took a correct view of the previous litigation so far as the representative character of the widow therein was concerned, but differing from the lower appellate Court on the other point relating to res judicata, namely, as to the effect of the withdrawal of the appeal, we must reverse the order under appeal and restore that of the Subordinate Judge with costs throughout upon the respondent.