1. The appellant was the plaintiff in the suit which has been dismissed by beth the Courts below on the ground that it is barred by the rule of res judicata. The Huit was in respect of a house and the allegation of the plaintiff briefly was that the house had beon mortgaged with possession to one Had ha Govind in the year 1846 and that the rights of the mortgagee now vested in the plaintiff and defendants 4 to 7. Defendant 4 is the father of the plaintiff appellant and defendants 5 to 7 are his cousins and are members of the joint Hindu family to which the plaintiff and his father belonged, it was further alleged on behalf of the plaintiff that in the year 1921 a suit, being Suit No. 115 of 1921, had been brought by defendant 1, Goswami Bisheshar Lal, against a number of persons among whom was Madhusudan Lal, grandfather of the plaintiff, claiming, among other reliefs, possession over the house in question on the ground that the defendants of that suit wore not entitled to its possession and that the plaintiff of that suit, Goswami liisheshar Lal, alone was entitled to that house as the sole reversioner to the estate of the husband of one Mt. Hulsa Manji. In that suit, the plaintiff alleged, Madhusudan Lalji did not set up his title to the house under the mortgage deed of 1846 either through ignorance or through gross negligence and that Madhusudan Lal having failed to protect the rights of the plaintiff and the other members of the family in that litigation, the decree which was eventually passed in favour of Goswami Bisheshar Lal in that suit for possession over this house was not binding on the plaintiff. It was further alleged on behalf of the plaintiff that the right to redeem the mortgage' of 1846 had now been extinguished by lapse of time. On these allegations the' plaintiff filed the suit for a declaration that the decree in Suit No. 115 of 1921 was not binding on him and that therefore defendants 1 to 3 (defendants 2 and 3 being. transferees from defendant 1 were not entitled to obtain possession over the house in execution of the decree in Suit No. 115 of 1921. A relief for possession was subsequently added as defendants 1 to 3 obtained possession over the house after the plaint, had been filed.
2. The only defence with which we are concerned is the one based on Section 11, Civil P.C. It was pleaded on behalf of defendants 1 to 3 that the right which vested in Madhusudan Lal and the other members of his family under the mortgage deed of 1846 was a matter which might and ought to have been made a ground of defence in, the former suit, namely Suit No. 115 of. 1921 and should be deemed to have been a matter directly and substantially in issue in that suit within the meaning of Expl. 4 to Section 11 of the Code. It is this defence which has found favour with the Courts below. The trial Court relied on Expl. 6 as well for reasons to be presently stated. The judgment of the lower Appellate Court is not a very satisfactory one and we have had to go through the entire record in, order to ascertain the correct facts for ourselves. It appears that the house in question formed part of the estate of Sadhu Lal who was the husband of Mt. Hulsa Manji. Apart from this house, Sadhu Lal was also entitled to certain rights to perform the seva and puja (service and worship) in a certain temple and to appropriate the offerings for certain periods in the year. On Sadhu Lal's death, Mt. Hulsa Manji came into possession of his estate which included the rights of sewa and puja and the house in dispute as mentioned above. The Suit No. 115 of 1921 was brought by defendant 1, Goswami Bisheshar Lal, in respect of the estate of Sadhu Lal. He impleaded 35 Goswamis as defendants and the trial Court in its judgment in the case? before us observes that it was common ground that.
the Suit No. 115 of 1921 had been instituted against 35 persons as representing the 38 families and only the managers of the families were impleaded as defendants, and each manager represented the, family to which he belonged.
3. The case of Bisheshar Lal in that suit was that the parties to that suit were the descendants of one Goswami Damodar Dasji and that among the descendants of Goswami Damodar Dasji there was a custom of exclusion of daughters, daughter's sons and bandhus. The defence put forward by Madhusudan Lalji, the grandfather of the appellant, along with other defendants in that suit, was that the plaintiff was not entitled to the exclusive rights which he claimed because there was a custom by which the parties were beund to the effect that whenever any person died without leaving male issue or a widow, the rights of seva and puja that he enjoyed, and his other estate devolved 'upon his male relations directly descended from the common ancestor like the members of a joint Hindu family.' It was further pleaded that no regard was paid to nearness or remoteness in degree. It was held in that case that the custom sot up by the defendants had been established so far as the right to seva and puja at the temple was concerned and Bisheshar Lal's suit was dismissed so far as it related to the rights of sewa and puja claimed by him. It was however held that the defendant's case was not established in respect of the succession to the house in question and Bisheshar Lal's suit for exclusive possession over it was decreed.
4. On the facts stated above, it was held by the trial Court in the present suit that Madhusudan Lalji, the grandfather of the appellant, had been impleaded in the former suit of 1921 as the manager of the joint family to which the plaintiffs, the pro forma defendants 4 to 7, belonged. It may also be pointed out that Radha Govind, the mortgaged of 1846, was a brother of the grandfather of Madhusudan Lal. The mortgagee rights under that mortgage in the hands of Madhusudan Lal were therefore ancestral property. Thus the position in the suit of 1921 was that Madhusudan Lal was in possession over certain ancestral property in respect of which he was sued as the head and manager of his family and he failed to put forward the title which belonged to him and to the joint family of which he was the manager and by virtue of which he, along with the other members of his family, was in possession of the property in question. In these circumstances, it was held by the trial Court that Expl. 4 to Section 11 applied. It was further held by that Court that Madhusudan Lal must be taken to have been litigating in the former litigation bena fide in respect of the title to this house which vested in him along with the other members of the family and that therefore all the other members of the family interested in that right along with him must, for the purposes of Section 11, be deemed to claim under Madhusudan Lal. In our judgment this decision of the trial Court was correct and the decree of the lower Appellate Court affirming the decree of the trial Court must be upheld.
5. It has been urged before us by the learned Counsel for the plaintiff-appellant that the title under which the appellant is now litigating is not the same as the title under which Madhusudan Lal was litigating when he was defending Bisheshar Lal's Suit No. 115 of 1921. This argument is based on the unsatisfactory account that the lower Appellate Court has given in its judgment of the nature of the defence raised by Madhusudan Lal in the suit of 1921. As we have shown above, Madhusudan Lal had been impleaded in that suit as the manager of his joint family and in that capacity represented the appellant before us and the other members of the family. The mortgagee rights by virtue of which Madhusudan Lal and the other members of the family were in possession constituted ancestral property. It is these very mortgagee rights which form the basis of the present claim of the appellant. There is therefore no force in the contention that the title under which the appellant is now litigating is different from the title under which Madhusudan Lal was litigating in defending the suit of 1921. For the reasons given above, we dismiss this appeal with costs.