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Chhiddu Singh and ors. Vs. Durga Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All382
AppellantChhiddu Singh and ors.
RespondentDurga Dei and ors.
Excerpt:
civil procedure code, sections 372, 588 - assignment pending suit--application by assignees to be allowed to appeal against the decree--order rejecting application--appeal. - - as to the alienations now the subject of this suit, be found that they were good, and this decision was upheld in appeal. 150, their lordships expressed a strong opinion that such a decision would not be binding as res judicata in the case of a new reversioner.henderson and burkitt, jj.1. in this case the plaintiffs, who were the nephews of one balu singh, sued the defendants to recover possession of certain property which had been transferred to them or their predecessors in title by rukmin kunwar, the widow of balu singh. balu singh died in 1856, and rukmin kunwar died in 1890. it appears that in 1865, some of the brothers and nephews of balu singh brought a suit claiming as reversioners to set aside certain alienations, including the alienations now the subject of the present suit, on the ground that they were not made for legal necessity. this suit was heard by the munsif of gorakhpur. he deoided as to a portion of the claim that the alienations were invalid. as to the alienations now the subject of this suit, be found that they were good,.....
Judgment:

Henderson and Burkitt, JJ.

1. In this case the plaintiffs, who were the nephews of one Balu Singh, sued the defendants to recover possession of certain property which had been transferred to them or their predecessors in title by Rukmin Kunwar, the widow of Balu Singh. Balu Singh died in 1856, and Rukmin Kunwar died in 1890. It appears that in 1865, some of the brothers and nephews of Balu Singh brought a suit claiming as reversioners to set aside certain alienations, including the alienations now the subject of the present suit, on the ground that they were not made for legal necessity. This suit was heard by the Munsif of Gorakhpur. He deoided as to a portion of the claim that the alienations were invalid. As to the alienations now the subject of this suit, be found that they were good, and this decision was upheld in appeal. In the present case the decision of the Munsif in the suit to which we have referred was relied on as being res judicata on the question whether the alienations were good or bad. It has been held by a Full Bench of this Court in Bhagwanta v. Sukhi (1899) I.L.R. 22 All. 33, that where there are several reversioners entitled successively under the Hindu law to an estate held by a Hindu widow, no one of such reversioners can be held to claim through or derive his title from another, even if that other happens to be his father, but he derives his title from the last full owner. Now in the present case the plaintiffs are the now reversioners of Balu Singh being nephews of Balu Singh, other than the nephews who joined in the previous suit, and in our opinion they are not bound by the decision in the previous suit. In Jumoona Dassya Chowdhrani v. Bamasoonderai Dassya Chowdhrani (1876) L.R. 3 I.A. 72, their Lordships of the Privy Council doubted whether a decree in favour of an adoption passer in a suit by a reversioner to set aside the adoption is binding on any reversioner except the plaintiff, and whether a decision in such a suit adverse to the adoption would bind the adoptive son as between himself and any other than the plaintiff. In a later case Isri Dut Koer v. Musammat Hansbutti Koerain (1883) L.R. 10 I.A. 150, their Lordships expressed a strong opinion that such a decision would not be binding as res judicata in the case of a new reversioner. Having regard to these expressions of opinion by their Lordships of the Privy Council and to the decision of the Full Bench of this Court, we are of opinion that the Judge was wrong in dismissing the suit on the plea of res judicata. We therefore reverse his finding on that point, and setting aside his decree, remand the case under Section 562 of the Code of Civil Procedure to the Lower Appellate Court to be restored to the file of pending appeals and disposed of according to law. Costs of this appeal will follow the event.


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