1. This is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff is entitled to a nine annas share out of certain property and that defendants 1 to 4 are entitled to a one anna share and defendant 5 to 4 annas.
2. The relationship between the parties ap pears from ttig following pedigree:
Pir Baksh Pir Bakhsh
| | | | |
Mt. Maqsudannissa Abdul Nabi Khairatun Nabi=Mt. Wajibunnissa Niaz Hussain
| defendant 5 | |
Fazal Ahmad Mt. Kaniz Fatima, Plaintiff |
| | | |
Yad Husain, Wahid Husain Zahur Hussain Manzur Hussain
defendant 1. defendant 2. defendant 3. defendant 4.
3. The plaintiff, Mt. Kaniz Patima, claims that the property in suit belonged to her father Khairatun Nabi and that she is entitled to an eight annas share as his heir. Out of the two annas share which passed by inheritance to her mother Mt. Wajibunnissa, she is entitled to a further one anna share as heir of her mother. She alleged that it had finally been decided between the parties, in Suit No. 514 of 1924, that the property belonged to her father. The principal defence set up by defendants 1 to 4 who are sons of Niaz llusain, the brother of Mt. Wajibunnissa, was that it had been decided in a previous Suit No. 4 of 1924, in which they were the plaintiffs, as against Kaniz Patima and her transferees as defendants, that the property belonged to Mt. Wajibunnissa and that they are entitled to a half-share and that Mt. Kaniz Patima is precluded by the rule of res judicata from impeaching the correctness of that decision.
4. It is admitted that the decision in Suit No. 4 of 1924 operates as res judicata, but it is contended for the plaintiff that the later decision in Suit No. 514 of 1924 also operates as res judicata between the parties. These two previous decisions are conflicting. In Suit No. 4 the sons of Niaz Husain alleged that the property belonged to Mt. Wajibunnissa and they claimed as her heirs. It must be explained that the property in suit was bought by Khairatun Nabi in the name of his wife. In Suit No. 514 a dispute arose as to whether Khairatun Nabi was the real owner and his wife was a mere benamidar, or whether his wife was the real owner. In Suit No. 4 that question was not in dispute, since Mt. Kaniz Patima as defendant did not dispute the allegation that the property belonged to her mother but she claimed title to the whole property by virtue of a gift from her mother. The defence failed and the sons of Niaz Husain succeeded in establishing their claim to a half-share in the property as heirs of Mt. Wajibunnissa. Wb.9n Suit No. 4 was pending, Abdul Nabi, the brother of Khairatun Nabi, applied to be made a party, but his application was not granted and he was excluded from the suit.
5. On 22nd October 1924, Abdul Nabi instituted Suit No. 514 against Kaniz Patima and the four sons of Niaz Husain alleging that the property belonged to Khairatun Nabi and that he was entitled to a 4 annas share as heir of Khairatun Nabi, Kaniz Patima never put in any appearance as defendant, but her co-defendants defended the suit on the ground that the property belonged to Wajibunnissa.
6. It was finally decided between the parties that the property belonged to Khairatun Nabi. It is apparent therefore that the decisions in Suits No. 4 and 514 are conflicting. The former was decided upon the understanding that the property belonged to Wajibunnissa, and the latter decided that the property belonged to Khairatun Nabi. The proposition of law is admitted that, when there are two previous conflicting decisions, both of which operate as res judicata, then the decision of the latter date must prevail. It is conceded that the decision in Suit No. 4 operates as res judicata; so the point for determination is narrowed down to the question whether the decision in Suit No. 514 operates as res judicata. Both the Courts below have held that the later decision did not operate as res judicata. There were certain other points at issue between the parties, but we are not concerned with them in second appeal.
7. The plaintiff argues that the Courts below are wrong in holding that the decision in Suit No. 514 has not got the effect of res judicata. In that suit, the present plaintiff, Mt. Kaniz Fatima, and the sons of Niaz Husain (who are defendants 1 to 4 in the present suit) were arrayed upon the same sides as co-defendants. There are many rulings which lay down the conditions requisite for applying the rule of res judicata as between co-defendants, but we need only refer to the very recent decision of their Lordships of the Privy Council in Munni Bibi v. Tirloki Nath . Their Lordships laid down that when there is a question of applying the rule of res judicata between co-defendants, three conditions are requisite:
(1) There must be conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided.
8. We have to see then whether these conditions are fulfilled in the case of the co-defendants in Suit No. 514. In one sense it may be held that there was no conflict of interest between Kaniz Fatima and the sons of Niaz Husain in that suit. Kaniz Fatima never defended the suit. So there was no express and open conflict of interest between co-defendants as disclosed by conflicting pleadings. In another sense however there undoubtedly was a conflict of interest. The principal issue in the suit was 'Whether the property in suit belonged to Khairatun Nabi and he had purchased it benami in the name of his wife.' If this issue were decided in the affirmative (as it was), then the decision would be rather in favour of Mt. Kaniz Fatima than against her. The case which she set up about a gift from her mother had failed in Suit No. 4 which was decided on 24th October 1924, two days after Suit No. 514 had been instituted. If Kaniz Fatima was unable to rely upon the alleged gift and had to rely only upon her right of inheritance, then it was to her interest that the property should be held to have belonged to her father and not to her mother. If the property belonged to her father, she is entitled by inheritance to a 9 annas share. If the property belonged to her mother, she is entitled to 8 annas only. Probably for this reason she was not interested in denying that the property belonged to her father and did not trouble to contest the suit. Her co-defendants, the sons of Niaz Husain, on the other hand, were vitally interested in denying that the property belonged to Khairatun Nabi. If that point were established, they would be entitled only to a 1 anna share, whereas if the property were proved to belong to Wajibunnissa, then they would be entitled to an 8 annas share, as held in Suit No. 4. In our opinion therefore there was a conflict of interest between Kaniz Fatima and her co-defendants in Suit No. 514, although the conflict between them was not open and express, as Kaniz Fatima never defended the suit. The conflict of interest was, so to speak, latent and not apparent from conflicting pleadings.
9. Now the question arises whether a conflict of such a nature between co-defendants will satisfy the requirements of the rule of res judicata. In view of the-Privy Council decision in Munni Bibi v. Tirloki Nath , we think the question must be answered in the affirmative. The main issue for determination in the previous suit which was under consideration in that case was whether B. Amar Nath was the owner of the disputed house. The plaintiff who held a money decree against Amar Nath sued for a declaration, that the property in suit belonged to Amar Nath and was saleable in execution of his decree. He impleaded Kashi Dei and Mt. Kanno who were interested in denying that the house belonged to Amar Nath. Mt. Munni Bibi, the co-defendant, being the daughter of Amar Nath, was obviously interested in maintaining that the house belonged to Amar Nath. Munni Bibi however did not enter an appearance in the suit. So the issue was fought between the plaintiff and the other defendants Kashi Dei and Mt. Kanno. Nevertheless their Lordships held that the decision operated as res judicata between the co-defendants. Their Lordships remarked:
It is true that the appellant (Munni Bibi); did not enter an appearance in the suit and it is also said that she was not a necessary party to it; but their Lordships do not regard either of these factors as really material. The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose to stand by and let the plaintiff fight her battle, it could not affect her legal position.
10. These remarks are directly applicable to the facts of Suit No. 514. Kaniz Fatima did not enter an appearance in the suit, but chose to stand by and let the plaintiff Abdul Nabi fight her battle. But this could not affect her legal position. The issue regarding the ownership of the house was fought out between Abdul Nabi and her co-defendants and it was necessary to decide that issue in order to give relief to the plaintiff. The question was certainly finally determined; so, in our opinion the decision of that issue is res judicata between the co-defendants of Suit No. 514. The trial Court held that the decision in Suit No. 514 did not operate as res judicata because it was not in respect of the same subject-matter which is in dispute in the present suit. We do not think the reasoning is sound. It is true that in Suit No, 514 Abdul Nabi claimed a declaration only in respect of a four annas share in the property, but the share was an undivided one. The sons of Niaz Huain and Kaniz Fatima were all impleaded. and we think it cannot be held that the same property was not in dispute merely because the plaintiff only claimed a declaration in respect of a four annas undivided share in that property.
11. The lower appellate Court does not hold that the decision in Suit No. 514 does not operate as res judicata on the ground that it is not in respect of the same subject-matter but only on the ground that there was no conflict of interest between the co-defendants. It has been argued that Kaniz Fatima cannot be held to have had a conflict of interest with the sons of Niaz Husain in Suit No. 514, because in the previous suit she never disputed the contention that the property belonged to her mother and Suit No. 4 was decided on the assumption that the property did belong to her mother. We do not think that Kaniz Fatima's pleadings in Suit No. 4 constitute a valid reason for holding that there was no conflict of interest between her and the sons of Niaz Husain in Suit No. 514. In Suit No. 4, the parties did not raise the question whether the property belonged to Khairatun Nabi or to his wife, as they were both interested in asserting that it belonged to his wife.
12. When Kaniz Fatima found that her defence regarding the alleged gift had failed she may have been advised that it was to her interest not to contest the Suit No. 514 since she would stand to gain if it were proved that the property belonged to her father. In any case, we hold that there was in fact a conflict of interest between Kaniz Fatima and her co-defendants and the decision regarding the ownership of the house must, in the light of the Privy Council ruling, be held to constitute res jndicata between the co-defendants.
13. The appellant has also placed reliance upon Mahip Narain Pandey v. Munnu Singh : AIR1925All546 . In that case, the sons of Mahip Narain sued to set aside a sale of joint family property on the ground that the sale was without consideration. They impleaded their father Mahip Narain and the purchasers. Mahip Narain supported his sons, the plaintiff's, and asserted that no consideration had passed. The purchasers did not appear on the date fixed for hearing and the suit was decided against them ex parte. The purchasers then brought a suit against Mahip Narain for recovery of the sale consideration. It was held that the previous decision, namely, that no consideration passed, was res judicata as between the parties who were co-defendants in the previous suit. It is not clear from the report whether the purchasers had filed any written statement or had not entered any appearance from the outset. This ruling does no doubt support the plaintiff's contention, but not so clearly as the Privy Council decision. On the other hand, we have been referred to Kamta Prasad v. Bhulai Misir : AIR1927All365 . This ruling however is distinguishable upon the facts, as there was no conflict of interest between the donor and the donee who were co-defendants in the previous suit. It is expressly stated that both the donor and the donee successfully contested the suit. The ruling in Kallu v. Fiaz Ali Khan  30 All. 394 has also been cited, but this ruling is also distinguishable upon the ground that the issue raised in the second suit had not been necessary for determination in the previous suit for the purpose of giving relief to the plaintiff.
14. The case of Muhammad Ahmad v. Zahur Ahmad A.I.R. 1922 All. 19 has also been referred to on behalf of the respondents, but the facts of that case are not sufficiently clearly reported to justify us in relying upon it as supporting the respondents' contention. In the ruling cited, it is not clear who were the defendants other than Muhammad Ahmad in the suit of 1912. It is also not clear in what form the issue had been decided. Also it does not appear what interests Zahur Ahmad had in the property which was the subject-matter of Muhammad Ahmad's suit and it does not appear who were the other defendants. We cannot take this ruling as clearly supporting the respondents' contention. The case of Bukmini v. Dhondo  36 Bom. 207 relates to a question of res judicata between co-plaintiffs. It is moreover distinguishable on the ground that the question raised in the subsequent suit had not been necessary for decision in the previous suit for the purpose of giving relief against the defendants. In our opinion, the Privy Council decision is applicable to the facts of this case and we are clearly bound by its authority. The defendants-respondents are precluded from impeaching the correctness of the decision in Suit No. 514 that the property belonged to Khaiiatun Nabi and the plaintiff was therefore bound to succeed. We accordingly allow the appeal, set aside the decree of the Court below and decree the plaintiff's suit with costs throughout.