Pramada Charan Banerji and Gokul Prasad, JJ.
1. The suit out of which this appeal has arisen was brought by the plaintiff respondent for possession of a seven-storied house No. 7/27 called Chhoti Haveli situated near the golden temple in Benares. This house had been purchased by Musammat Lakhpat Kunwar, the widow of one of the pandas of the temple, in 1898. She died on the 7th of January, 1904. On the 30th of December, 1903, she had made a will in favour of the plaintiff and letters of administration were, after death, obtained by the guardian of the plaintiff. The plaintiff claimed the property both as adopted Ron of the lady and also by virtue of the will. The claim on the basis of adoption was repelled by the court below, but the claim has been decreed by the learned subordinate judge on the ground that the property belonged to Musammat Lakhpat Kunwar at her death and that the plaintiff, by virtue of her will, has acquired it. On the 2nd of August, 1903, Musammat Lakhpat Kunwar executed a sale-deed in favour of the defendant Kashi Nath in respect of the house in question and certain movable property such as chandeliers, mirrors, etc., which were in the house, for a consideration of Rs. 3,000. The defendant, Kashi Nath, contended that under this sale-deed he had acquired the house, and it was alleged that under a partition between him and Kedar Nath, the appellant, the house had fallen to the share of Kedar Nath. After the death of Musammat Lakhpat Kunwar, when the application for letters of administration was pending, certain movable property alleged to have belonged to the lady was attached by an order of the court. The present defendant Kashi Nath applied to the District Judge for release of the movable property so attached. That application having been refused, he instituted a suit for establishment of his right to certain movables, including the movable property mentioned in the sale-deed of the 2nd of August, 1903. He alleged that under that sale-deed he had purchased the movable property mentioned in the sale-deed. On behalf of the present plaintiff, who was a defendant to that suit, it was contended that the sale-deed was nominal and fictitious and had been obtained from the lady, who was an old and pardanashin lady, by the defendant Kashi Nath who was her agent and whose father also was her mukhtar-am. The learned subordinate judge framed an issue as to the validity or otherwise of the sale-deed and he came to the conclusion that the sale-deed was a fictitious and nominal document and was invalid, and he dismissed the suit of the present defendant. Since then no further litigation took place in respect of the house in question. On the basis of the sale-deed the name of Kashi Nath was entered in the register of the Municipality of 'Benares in respect of this house in the place of Musammat Lakhpat Kunwar. Subsequently a person of the name of Ram Bharos was living in this house as tenant. The plaintiff instituted a suit against him for recovery of arrears of rent in the Court of Small Causes. Bam Bliaros denied being the tenant of the plaintiff and stated that the house belonged to Kashi Nath and that he was Kashi Nath's tenant. Thereupon the plaint was returned to the plaintiff under Section 23 of the Provincial Small Cause Court's Act, and the plaintiff then instituted the present suit for recovery of possession of the house against Kashi Nath, Kedar Nath and Ram Bharos. Ram Bharos died during the pendency of the suit. The defendants based their title upon the sale-deed of the 2nd of August, 1903, to which we have referred above. They also asserted that they were in adverse proprietary possession for more than 12 years and even if the plaintiff had any title, that title had become extinct. The court below held that the decision in the previous suit, dated the 25th of June, 1907, operated as res judicata, that, in its opinion, the sale-deed was fictitious and nominal and that the plaintiff had proved not only his title but also his possession within 12 years. It accordingly decreed the suit. The defendant Kedar Nath preferred this appeal. No doubt Kashi Nath who had supported the claim of Kedar Nath, produced the sale-deed of the 2nd of August, 1903. He also produced the title deeds of Musammat Lakhpat Kunwar. As Kashi Nath and his father were the agents and servants of Musammat Lakhpat Kunwar, the possession of the title deeds by these persons is not a circumstance which can carry any weight. Had the purchaser been a stranger to Musammat Lakhpat Kunwar, the fact of his possession of the original title deeds would have been a strong argument in favour of the sale-deed held by Kashi Nath not being a nominal document; but, having regard to the fact that 'Kashi Nath and his father were the servants of the lady and were looking after her cases, they had access to the documents belonging to her, and the fact of the title deeds being in their possession would not be a circumstance which would be prejudicial to the plaintiff's case. As regards the matter being res judicata, it seems to us that the question as to the validity or otherwise of the sale-deed of the 2nd of August, 1903, was a matter directly and substantially in issue in the previous suit. A portion of the property claimed in that suit was claimed on the basis of the sale-deed. Unless the validity of the sale-deed could be established, that part of the claim could not prevail. Therefore the question whether the sale-deed was a valid document was a question which arose directly and substantially in the previous suit, without a determination of which that suit could not be determined. It is true that the property now claimed was not claimed in the previous suit, but the title to this property and to the property then claimed was derived from the same source and the court decided that source, namely, the sale-deed, to be invalid and that it conferred no title on Kashi Nath. Most of the arguments which were used by the Bombay High Court in the case of Atlanta Balacharya v. Damodhar Makund (1888) I.L.R. 13 Bom. 25 apply with equal force to the present case. Our attention was drawn to the ruling of this Court in Khalik Yar Khan v. Mobarik Begam (1910) 7 Indian Cases 388. No doubt there are observations in that judgment which favour the appellant's case, but we think that, as in the present case the claim is based entirely on the sale-deed, and the question of the validity of the sale-deed arose directly in the previous suit and that suit could not be determined without a decision as to the validity of the sale-deed, the decision in the previous suit must be held to be binding as between the parties. Furthermore that decision is a very strong piece of evidence against the present defendants.
[Their Lordships then proceeded to discuss the evidence as to the genuineness of the sale-deed, and the alleged adverse possession of the appellant, and held that the sale was a fictitious transaction and that adverse possession was hot proved, and, in the result, dismissed the appeal.]