1. On the 3rd of February 1893 a possessory mortgage of certain Bhagdari land was executed by Govind Khodabhai and his brother in favour of the plaintiff. On the same day Govind passed a tenancy agreement to the plaintiff whereby he took the land as lessee for five years. Further agreements of a similar nature were subsequently executed by Govind in the plaintiff's favour, the last being of the 18th September 1902 for one year. After the expiry of that year Govind continued in possession of the land until his death in June 1905. On his death his widow the second defendant cultivated the land on behalf of herself and the first defendant her minor son. This suit has been brought by the plaintiff to recover the rent of the land for two years namely 1904-5 and 1905-6. Now objection has been taken that rent accruing due in the lifetime of Govind is not claimable against the defendants personally in this suit. The plaintiffs come here in special appeal having failed in both the lower Courts.
2. The land, the subject of the mortgage and of the tenancy agreements, is Bhagdari land, part of a Narwa, but not a recognised sub-division of a share or Bhagdari, the mortgage is, therefore, unlawful and void under Section 3 of the Bhagdari Act (Bombay Act V of 1862). It is argued on behalf of the defendants that the tenancy agreements whether express or implied under which the mortgagor, Govind and his heirs, have remained in possession are void as being alienations tainted with the same vice as the principal transaction and that rent is, therefore, not recoverable. For the plaintiffs it is contended that not only are these agreements sound but also that they are no longer open to the defendants because the plaintiff's right to recover rent has been established by an em parte decree against Govind obtained by the plaintiff for rent in respect of the years 1902-3 and 1903-4. It is' argued that the questions now raised by the defendants might and ought to have been raised in the suit in which the decree was obtained and must be taken to have been decided against the plaintiff since they claim title merely by virtue of their heirship to Govind. It cannot be disputed that if the points now raised by the defendants are good they would have been equally good for the purposes of defence in the previous suit; they ought, therefore, to have been raised. It was, however, suggested by the pleader for the defendants that a plea of estoppel by res judicata cannot prevail where the result of giving effect to it will be to sanction what is illegal. This, however, is not the law. No such limitation is contained in Section 13 of the Code of 1962. If the legality of an act is a point substantially in dispute it may be a fair subject of compromise in Court like any other disputed matter and thus become res judicata [see Great North-West Central Railway v. Charlebois (1899) A.C. 121; similarly it is abandoned or not put forward by a defendant it mast, having regard to the provisions of Section 13, be deemed to have been decided against him. The defences raised are, therefore, not now open to the defendants and the plaintiff is entitled to the rent claimed.
3. We reverse the decree of the lower Courts and pass a decree for the plaintiff for the amount claimed with costs throughout.