1. The question in this appeal is whether a former decision given against Sheo Mangal, a brother of the plaintiff, operates as res judicata or not.
2. The Courts below have held that it does operate as res judicata as regards a portion of the property in suit.
3. Briefly the facts are these:
4. Ganesh Din was the owner of the property in suit. On his death, a part of the property was recorded as held by his widow although his son, Ram Partab, survived him. After the death of Ram Partab, the property which was recorded in his name, being a portion of his father's property, was recorded in the names of his mother and a predeceased brother's widow. The mother of Ram Partab executed a deed of gift in favour of her daughter-in-law and this gave rise to the suit which was brought by Sheo Mangal.
4. Sheo Mangal sued as a possible reversioner to the estate and his case was that Mt. Dulhatia, the wife of GaneshDin, was in possession of the property as a Hindu widow and had no right to execute a gift.
5. The defence, inter alia, was that the widow held adversely to the estate of Ganesh Din and had matured in herself an absolute title and was, therefore, competent to execute the deed of gift. This defence succeeded in respect of that portion of the property which had bean recorded in Mt. Dulhatia's name on the death of Ganesh Din. The suit succeeded in respect of that portion of the property which came to be recorded in the name of Mt. Dulhatia on the death of her son.
6. After the failure of Sheo Mangal, his brother, Bansidhar, started a fresh campaign of litigation on practically the same allegations as had been made by Sheo Mangal.
7. As stated above, the question is whether the decree in Sheo Mangal's suit should or should not be treated as concluding Bansidhar's suit.
8. It has been conceded that this High Court, in the ease of Kesho Prasad v. Sheo Pragash Ojha A.I.R. 1922 All. 301 held that the justification of allowing a reversioner to sue in the lifetime of the widow was this that he was suing not on his own behalf but on behalf of the entire body of raversioners or the person who would be the actual reversioner on the death of the widow. In other words, it was held that a suit by a reversioner came within th8 explanation6 of Section 11 of the Civil Procedure Code. This judgment which was of a Full Bench, was upheld by the Privy Council The judgment is reported in Volume 46 of the Allahabad Series of the Indian Law Reports at page 831. On the face of it, the principle of these two rulings should apply.
9. The learned Counsel for the appellant has sought to distinguish the case on two grounds:
First he said that there are observations in the judgment of the Privy Council which show that where the reversioner's suit fails, a second suit by a different reversioner would not be barred as res judicata, As to this argument we are of opinion that there is nothing in the judgment of the Privy Council which can support it. Their Lordships make the following remarks:
Their Lordships, of course, recognise that the principle is less obviously just where it operates to bind the ultimate reversioners by the result of a suit in which the plaintiff had failed whose interest, then merely presumptive, never-ulti-mately matured. The danger of a feigned issue in such a suit is not to be overlooked.
10. In our opinion their Lordships gave the reason for holding why in the case of a failure of a reversioner's suit, the question whether or not the decree would bind the ultimate reversioner was not always capable of the same answer. To our mind their Lordships had, in their view, the case of a reversioner colluding with a transferee, for the simple reason that he was not certain whether the property was going to vest in him or not ultimately. Their Lordships expressly mention cases of fraud and collusion in continuation of the remarks already quoted. Looking to the principle of the decision, we are of opinion that the case before us is entirely governed by the observations of the Privy Council and the decision of this Court. No question of collusion or fraud on the part of Sheo Mangal has been raised before us.
11. Sheo Mangal's suit was either a representative suit or it was not. If it is not a representative suit, Bansidar's suit is not equally a representative one because there is no difference between the two suits in any respect at all. If Bansidhar's suit is not a representative suit, there is no reason why he should be allowed to maintain one on his own account. If the suit of Bansidhar is not a representative suit, the result of the suit will not bind the ultimate reversioner. If that be the case, there is no ground for allowing Bansidhar to maintain this suit.
12. Again, if Bansidhar's suit be a representative suit the suit of Sheo Mangal must be treated as having been a representative suit. If Sheo Mangal's suit was a representative one, the decree must bind Bansidhar also.
13. There is another aspect of the case. Supposing that Bansidhar's suit succeeds on the merits, the result would be that, say ten years hence, when the actual reversion opens out, there will be two conflicting judgments for the actual reversioner and the transferee to meet. The question would arise which of the two judgments should operate as res judicata. The learned Counsel for the appellant argued that the later judgment should operate as res judicata; but it is always necessary to avoid conflicting judgments: and this Court cannot allow two contradictory judgments to come into existence.
14. In our opinion, therefore, the judgment previously obtained against Sheo Mangal should operate as res judicata.
15. The second ground urged by the learned Counsel for the appellant was that the transferee and the transferor both urged that Mt. Dulhatia was not holding as representative of Ganesh Din but was holding in her own right. This consideration, argued by the learned Counsel, took the base entirely out of the purview of the cases quoted above. In our opinion, the nature of the defence cannot alter the nature of the suit.
16. The appeal fails and it is hereby dismissed with costs.