1. This suit was brought on a bond, dated the 28th October 1878, executed by Amir Begam, widow of one Ghulam Rasul Khan, in consideration of an advance of Rs. 3,000. The plaintiff sought a decree for principal, with interest, and sale of the 5 biswas share in a village which the bond purported to hypothecate. The suit has been decreed in the Court below against the widow, Amir Begam, and against the son, Ali Sher Khan; but so far as it sought to make the shares of the five daughters of Ghulam Rasul Khan liable, and so far as it sought to interfere with a prior bond in respect of a 2 1/2 biswas share of the property, and the right of the respondents Alam Singh and others (auction purchasers), the plaintiff's suit was dismissed. The appeal is preferred by the plaintiff against that portion of the decision of the lower Court which was given against him.
2. The hypothecation-bond sued on purports to be made in the name of Amir Begam herself, in respect of her own property, acting on her own behalf and in her own right; and the suit also was brought on the allegation that the property hypothecated was owned and possessed by the executant of the bond; and it has not been brought on the footing that she held the property in any way for the other heirs of Ghulam Rasul Khan. The whole of the property hypothecated clearly was not held by her in her own right. The five daughters of Ghulam Rasul Khan had a right to shares in the same as heirs of their father, and for this right they brought suits and obtained decrees, as they were fully entitled to do. I do not see that there was any fraud or collusion, and, in my opinion, the lower Court was right in exempting this set of defendants from all liability to the plaintiff.
3. The next point urged, namely, that the appellant is entitled to bring to sale the property bought by the auction-purchasers Alam Singh and others also fails. The hypothecation-bond, upon which the decree and sale proceeded, was a prior one dated the 17th October 1876, and the property was purchased by Alam Singh and others on the 31st January 1884. The appellant's hypothecation-bond being the later one, the transaction could only be questioned on the ground of fraud, of which there appears to be none whatever. For the above reasons the decision of the lower Court must be affirmed and this appeal dismissed with costs. The two sets of respondents will be entitled to costs in proportion separately.
3. I am of the same opinion. The facts of the case are simple enough, namely, that the deceased Ghulam Rasul Khan died sometime in the year 1872, leaving as his heirs, according to Muhammadan law, a widow named Amir Begam, a son named Ali Sher Khan, and five daughters named Jafri Begam, Wilayati Begam, Nawab Begam, Nihali Begam, and Sakina Begam. It is clear that immediately on the death of Ghulam Rasul Khan, according to the rigid system of inheritance which is to be found in the sacred texts of the Kuran, his property devolved in specific portions on these seven persons, who were his heirs. What happened afterwards was, that in respect of such of his property as consisted of land paying Government revenue, instead of the names of all the heirs being entered in the Government records, the name of the old lady alone was entered. This is often done among Muhammadans out of respect to the mother of a family; but on the part of the appellant there has, in the present instance, been a very faint attempt to make out that the Begam was put in possession of the whole property in this manner in lieu of dower. This might be made out, of course, where there were adequate grounds, and when such grounds were supported by adequate evidence-But in the present case there are no grounds for such a contention. It was further urged that her position as head of the family entitled her to deal with the property, so as to bind all the members of the family, though using her name only. But that is not so; and the argument of the learned pleader for the appellant upon this point seemed to me to proceed upon a confusion between the position of a Hindu widow and the legal status of a Muhammadan widow, as in this case. The surviving widow among Muhammadans, though looked on with respect by her own children or younger members of the family, holds a position very different to that of the widow among other nations, where the law of inheritance and succession proceeds upon other principles. The mother, being looked upon with respect and sympathy, would probably have the consent of her children to the entry of her name in lieu of her deceased husband's name as a mark of respect. An illustration of this is furnished by the unreported case of Maulvi Inayat Basul v. Khairunnism decided by this Court on the 15th July 1875. From all I have learnt of the present case, the entry of Amir Begam's name was entirely due to the notions and feelings which I have just described; for if it had been to show a possession adverse to the five daughters, these people would not have been on such affectionate terms as it is shown they were. Amir Begam, I understand, was not the step-mother of these young ladies, but their own mother, and therefore no such argument as to adverse possession could be easily sustained. What happened after this record of the old lady's name was, that on the 17th October 1876, she and her son, Ali Sher Khan, executed a hypothecation-bond in favour of the respondents Alam Singh and others, defendants No. 3. The bond was sued upon, and the 2 1/2 biswas share was purported to be sold in enforcement of lien on the 31st January 1884. I mention this to show the connection of Alam Singh and others, who purchased the property at that sale.
2. On the 27th February 1884, four of these young ladies having sued their mother and their brother, obtained a decree for their shares of the property,--a circumstance which suggests the inference that they had heard of the alienations which their mother and brother had been making, and became anxious to secure their rights. The fifth lady, Wilayati Begam, similarly obtained a decree for her share on the 24th November 1884. Both decrees were ex parte, and this circumstance has been referred to as supporting the plaintiff's allegation of fraud and collusion, but I cannot admit that it does. The plaintiff's rights arose from the bond of the 28th October 1878, which in no way could affect the share of these young ladies, unless, indeed, circumstances existed which would furnish grounds for applying against them the rule of estoppel contained in Section 115 of the Evidence Act (I of 1872), or the doctrine of equity formulated in Section 41 of the Transfer of Property Act (IV of 1882). But here no such circumstances exist, for it is not shown or pretended that the young ladies, who are 'pardah-nashins,' by any declaration, act, or omission, intentionally caused or permitted the plaintiff to believe that their mother and brother were the exclusive owners of the property when the mortgage was made in the plaintiff's favour. Nor is it made out that the plaintiff is a bond fide transferee for value, in the sense of his having taken reasonable care to ascertain the title of his transferors. On the contrary, he knew that the property had been inherited from Ghulam Rasul, and he might easily have found out that there were other heirs besides the widow and the son.
3. Then, as to the decrees of 27th February 1884, and 24th November 1884, there is absolutely no evidence that these decrees, though ex parte, were passed in collusion. I should say that it was impossible to contest those decrees, and the mother and son acted rightly in not defending the suits. On the other hand, the argument suggested on behalf of the respondents, that the decrees are conclusive against the plaintiff, seems to me to be unsound, though it raises an important question of law, which I shall decide in this case. In the case of Dooma Sahoo v. Joonarain Lall 12 W.R. 362 the general principle was laid down by Dwarka Nath Mitter, J., that a mortgagee cannot be bound by a decision relating to the mortgaged property in a suit instituted alter his mortgage, and to which he was not a party. The principle of the rule was subsequently adopted in Bonomalee Nag v. Koylash Chunder Dry I.L.R. 4 Cal. 692 by Markby and Prinsep, JJ., who however, complained of the paucity of case-law upon the subject, and adopted the rule, after expressing considerable hesitation and doubt, because Mitter, J., had not stated any reasons for the rule he laid down. With due respect to those learned judges, I cannot help feeling that there is no substantial ground for entertaining doubts upon the question, and I will take this opportunity of stating my reasons for this proposition.
4. The plea of res judicata as a bar to an action belongs to the province of adjective law, ad litis ordinationem, hut difference of opinion prevails among jurists as to whether the rule belongs to the domain of procedure or constitutes a rule of the law of evidence as furnishing a ground of estoppel. In England, and I may say also in America, the rule is usually dealt with as belonging to the law of evidence, for there judgments in personam, which operate as res judicata, areas often treated as falling under the category of estoppels by record. Sir Fitz James Stephen, the distinguished jurist who framed our Indian Evidence Act (I of 1872), and whose views have been accepted by our Indian Legislature in framing Section 40 of that Act, adopted what seems to me the only logical and juristic classification by treating the rule of res judicata as falling beyond the proper region of the law of evidence, and as appertaining to procedure properly so called. That the effect of the plea of res judicata may, in the result, operate like an estoppel, by preventing a party to a litigation from denying the accuracy of the former adjudication, cannot be doubted. But here the similarity between the two rules virtually ends; and it is equally clear that the ratio upon which the doctrine of estoppel, properly so called, rests, is distinguishable from that upon which the plea of res judicata is founded. The essential features of estoppel are those which have found formulation in Section 115 of the Evidence Act, the provisions of which proceed upon the doctrine of equity (upon which Section 41 of the Transfer of Property Act is also based) that he who by his declaration, act, or omission has induced another to alter his position, shall not be allowed to turn round and take advantage of such alteration of that other's position. All the other rules to be found in Chapter VIII of the Evidence Act, relating to the estoppel of tenant, or of acceptors of bills of exchange, bailees or licensees, proceed upon the same fundamental principles. On the other hand, the rule of res judicata does not owe its origin to any such principle, but is founded upon the maxim nemo debet bis vexari pro una et eddem cauaa--a maxim which is itself an outcome of the wider maxim interest reipublicae ut sit finis litium. The principle of estoppel, as I have already said, proceeds upon different grounds, and I think the framers of the Indian Codes of procedure acted upon correct juristic classification in dealing with the subject of res judicata as appertaining to the province of procedure properly so called. Perhaps the shortest way to describe the difference between the plea of res judicata and an estoppel, is to say that whilst the former prohibits the Court from entering into an inquiry at all as to a matter already adjudicated upon, the latter prohibits a party, after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party, who, relying upon those declarations or acts, altered his position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence. Further, the theory of res judicata is to presume by a conclusive presumption that the former adjudication declared the truth, whilst 'an estoppel,' to use the words of Lord Coke, 'is where a man is concluded by his own act or acceptance to say the truth,' which means, he is not allowed, in contradiction of his former self, to prove what he now choses to call the truth. Thus the plea of res judicata proceeds upon grounds of public policy properly so called, whilst an estoppel is simply the application of equitable principles between man and man--two individual parties to a litigation. I have given expression to these views because they explain and form necessary steps of the reasons upon which my ruling, as to the exact point before us, will proceed.
5. The question then resolves itself into this, whether the decrees of the 27th February 1884, and the 24th November 1884, which were obtained by the respondents in a litigation commenced subsequent to the plaintiff's mortgage of 1878, and to which litigation he was not a party, can be held to operate as res judicata against him. And in this light the question seems to me to rest upon the interpretation of Section 13 of the Civil Procedure Code--a section which has, before now, given rise to much judicial exposition. The main part of that section is as follows: 'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit, or the suit in which such issue has bean subsequently raised, and has been heard and finally decided by such Court.'
8. Here it is clear that the plaintiff was not a party to the former suit, and all that can be said in support of the argument, that he is bound by the former decrees, must proceed upon the hypothesis that, as mortgagee from Amir Begam and Sher Ali, he claims under a title derived from them. The merits of the argument depend upon the interpretation of the words emphasized By me in reading Section 13 of the Code; for the issue in this litigation as to the title of the plaintiff-respondent is the same as in the former suits, and the effect of the former decrees would be conclusive against the plaintiff, if he could in this litigation be treated as a party claiming under his mortgagors, within the meaning of the section. The section has been no doubt carefully framed, and has given legislative expression to one of those rules of law which are most difficult to formulate for purposes of codification. The difficulty of formulating such a rule is best illustrated by the fact that the language adopted by the Legislature in Section 13 of the Code of 1877 had to undergo considerable alteration when the present Code (Act XIV of 1882) was enacted. Further, as illustrating the difficulty, I may refer to what I said in Sheoraj Rai v. Kashi Nath I.L.R. 7 All. 247 as to the interpretation of the word 'suit' in the section, with reference to the Privy Council ruling in Misir Raghobardial v. Sheo Baksh Singh I.L.R. 9 Cal. 439 : L.R. 9 Ind. Ap. 197. But I have no doubt that in interpreting the language of that section, we cannot ignore the fundamental principles of the rule to which that section gives expression, unless, indeed, the express words of the statute clearly contradict those principles. Now, what is the meaning of claiming under as used in the section? There can be no doubt that the plaintiff in this case derives his right under the title which his mortgagors, Amir Begam and Sher Ali, possessed in the mortgaged property, and in this sense his title had been derived in privity to them; but is that privity subject to the adjudication of the 27th February 1884, and of the 24th November, 1884? This really is the question upon which the determination of the point now before us depends; and I may add that the decision of the question must practically rest upon similar principles, whether we regard the matter is appertaining to the class of estoppels by recorder to the rules of procedure properly so called. Further, in the decision of this point, the question whether the former decrees were passed in contested or uncontested suits would play no important part; for if the plaintiff can be properly regarded as privy to his mortgagors, for the purposes of this question, he would, in the absence of fraud, be concluded by ex-parte decrees as much as by decrees in contested suits, on the ground that a title hampered by either an estoppel or an adjudication cannot pass free of the consequences of such estoppel or such conclusive adjudication, in conformity with the principle which is the foundation of the maxim that he gives nothing who has nothing,--nihil dat qui non habet. But the maxim itself affords indications of another rule of law, that he who takes under another, is not bound by any acts which that other does subsequent to the grant. It is upon this principle that the law of mortgage recognizes the rule that no act of the mortgagor done subsequently to the mortgage can operate in derogation of the mortgagee's right. And I will presently show that it is upon the same principle that no estoppel incurred after the mortgage, and no conclusive adjudication as the result of a subsequent litigation by which the mortgagor is bound, can affect the rights of the mortgagee, The reasons of the rule are nowhere stated better than by the eminent American writer Mr. Bigelow, in his celebrated treatise on the law of estoppel (at page 94), and I will quote him here as adopting his language at the risk of prolixity:
Having ascertained the effect of judgment estoppels upon the actual parties to the record, let us now inquire into the effect and operation of personal judgments against those who were not strictly or nominally parties to the former suit, but whose interests were in some way affected by it. And first of privity, which, by Lord Coke, is divided into privity in law--i.e., by operation of law, as tenant by the courtesy; privity-in blood, as in the case of ancestor and heir; and privity in estate--i.e., by the action of the parties, as in the case of feoffor and feoffee. These divisions are only important in defining the extent of the doctrine of privity; and as the rules of law are not different in questions of estoppel in these divisions, it will not be necessary to present them separately. But it should be noticed that the ground of privity is property and not personal relation. Thus an assignee is not estopped by judgment against his assignor in a suit by or against the assignor alone, instituted after the assignment was made, though if the judgment has preceded the assignment the case would have been different; hence privity in estoppel arises by virtue of succession. Nor is a grantee of land affected by judgment concerning the property against his grantor in the suit of a third person began after the grant. Judgment bars those only whose interest is acquired after the suit, excepting of course the parties.
9. The principles stated in this passage are supported by many cases, chiefly American, which the learned author cites in the pages that follow. Speaking for myself, I am perfectly prepared to accept this enunciation of the law as applicable to Indian mortgagees, because, whilst there is nothing in Section 13 of the present Civil Procedure Code to contradict my view, my notions of jurisprudence are consistent with what I have said. Looking to the definition of mortgage as contained in the first paragraph of Section 58 of the Transfer of Property Act (IV of 1882) and to Clause (b) of the same section, which defines simple mortgages, I am of opinion that hypothecation or simple mortgage, as understood in this country, is, in the eye of jurisprudence, a species of what are known as jura in re aliena, that is, estates carved out of full ownership, and that when such an estate has once been created, the mortgagor cannot represent it in any subsequent litigation. And, to use the words of Mr. Bigeloiv, 'it should he noticed that the ground of privity is property and not personal relation.' And if this is so, the estate which has already vested in a mortgagee cannot be represented in, or adjudicated upon, in a subsequent litigation to which he is not a party; for the simple reason that a decree of Court in such oases can neither create new rights, nor take away existing ones, but can only enforce the rights as they stand between the parties, and in enforcing such rights, cannot go beyond the rights of the parties to the litigation.
10. The effect of this view no doubt is to go somewhat beyond the letter of the statute, though not to contradict a single expression employed in Section 13 of the Civil Procedure Code. To put the matter concretely, I interpret that section as if after the words 'under whom they or any of them claim,' the words 'by a title arising subsequently to the commencement of the former suit,' existed in the section; and I think I am within the recognised rules of interpretation when I read the section in this manner.--(Vide Chap. IX, Maxwell on the Interpretation of Statutes, p. 274, &c;). Indeed, as a pure question of analogy, I may refer to the words in Clause (b), Section 27 of the Specific Relief Act (I of 1877), which are similar to those which I have interpreted in Section 13 of the Civil Procedure Code, as fortifying my view, because the ultimate principle upon which a specific performance of contracts may be enforced against those who were not actual parties to the contract itself, proceeds upon principles analogous to those upon which a judgment in personam against a party operates as res judicata against those who claim under him,--the question of notice needing proof in the one case, and in the other being presumed under a doctrine similar to the one upon which constructive notice by lis pendens is founded.
10. I will now deal with the oases which were cited before Markby and Prinsep, JJ., in Bonomalee Nag v. Koylash Chunder Dey I.L.R. 4 Cal. 692 as opposed to the view which I have expressed. The case of Outram v. Morewood 3 East 346 does not touch the question, because all that Lord ELLENBOROUGH held in that case was, that the matter which had been adjudicated upon in a previous litigation as against Ellen Morewood (she being then sole), before her husband had any right to the subject-matter of the litigation, could not be re-opened in a subsequent litigation between the same parties, though such litigation may have had a different form or object. This clearly is not the case here. Again, the next case--Boykuntnath Chatterjee v. Ameeroonissa Khatoon 2 W.R. 191 does not apply either, because a purchaser at a sale for arrears of Government revenue takes a title which is regulated by special legislation, which cannot govern cases such as the present. The case of Katama Natchiar v. Srimut Raja Moottoo Vijaya Ragunadha 9 Moo. I.A. 539 would at first sight seem more to the point, but it really is not applicable, because the equity of redemption possessed by a mortgagor is vastly different to the estate of a Hindu widow, who, as the Lords of the Privy Council (at page 608) point out, is an absolute owner for some purposes; and the question whether a conclusive adjudication against her, quoad the estate, would bind the reversioners, would naturally depend upon the nature and bond fides of the litigation. The position of a mortgagee is in no sense similar to that of a Hindu reversioner, and it follows that the same rule would not be applicable to both. Nor has the case of Ram Coomar Sein v. Prosunno Koomar Sein W.R. Jan. July 1864 p. 375 any bearing upon the present question, simply because a person who acquires a prescriptive title by adverse possession under the law of limitation, is not bound to respect any contracts entered into between the mortgagor and the mortgagee, to both of whom his possession is adverse--a state of things which is not applicable to the present case, even by analogy. There is thus no authority against the view which I have enunciated at such length, and I hold that after a mortgage has been duly created, the mortgagor, in whom the equity of redemption is vested, no longer possesses any such estate as would entitle him to represent the rights and interests of the mortgagee in a subsequent litigation, so as to render the result of such litigation binding upon, and conclusive as against, such mortgagee. Applying this conclusion to the present case, I hold that the decrees of 27th February 1884, and 24th November 1884, do not operate as res judicata against the plaintiff-appellant.
8. But whilst the decrees are not conclusive against the plaintiff, it should be noticed that the present suit was brought to enforce his lien, not only against the shares of his mortgagors, Amir Begam and Ali Sher Khan, but also against the shares of the five daughters; and further, also against the property purchased by Alam Singh and others, covered by the hypothecation of the 17th October 1876. The simple issue therefore in the case is, as my brother Oldfield has put it--Has the plaintiff acquired, under the hypothecation-bond of the 28th October 1878, any lien over more than Amir Begam and Ali Sher Khan possessed in their own right at the time they executed the bond? I have already said that the position of a Muhammadan widow in respect of her deceased husband's estate, is ordinarily nothing more or less than that of any other heir, and I will here add, with reference to what has been urged on behalf of the appellant, that even in case of minority of her children, she cannot exercise any power of disposition with reference to their property, because she cannot act as their guardian in respect of such matters. Under certain limitations, she may act as guardian of the person of her children till they reach the age of discretion, but the control of their property never vests in her without special appointment by the ruling authority, in default of other relations who are, entitled to such guardianship. The facility of divorce on the one hand, and of remarriage of widows on the other, account for this doctrine of the Muhammadan law. So that, even if some of the daughters were minors, as is suggested here, at the time of the plaintiff's mortgage, their shares could not be affected by the transfer. Then, of course, there is also the important fact that the widow in executing the mortgage now sued upon, did not profess to act on behalf of her daughters. And therefore on neither hypothesis can their shares be subjected to the lien which the plaintiff seeks to enforce in this litigation.
10. Now as to the remaining defendants Alam Singh and others, it is urged on behalf of the plaintiff-appellant that, inasmuch as he was not made a party to the suit for enforcement of lien on the bond of the 17th October 1876, therefore he is not bound by any proceedings which took place upon that bond, including the sale of the 31st January 1884. This argument has only partial force, but cannot prevail. The law, as it stood before the Transfer of Property Act, as to the necessity in a suit by a first mortgagee of making a subsequent mortgagee a party, was explained by me in Ali Hasan v. Dhirja I.L.R. 4 All. 518 following the ruling of Turner, J., in Khub Chand v. Kalian Das I.L.R. 1 All. 240. It was there held that it was not absolutely necessary to make puisne incumbrancers parties to a suit by a first mortgagee, and that a sale in enforcement of the prior mortgage would defeat the rights of the puisne incumbrancer, who is conclusively presumed in jurisprudence to take with knowledge of the prior mortgage, or at least cannot take more than his mortgagor had to give. The puisne incumbrancer could of course escape the decree by proving fraud or collusion, or he might prevent the sale in enforcement of the prior incumbrance by redeeming it. But if neither conditions are satisfied, sale in enforcement of the prior incumbrance would defeat the puisne incumbrance. Since the passing of the Transfer of Property Act (IV of 1882), it seems, under certain conditions, necessary, according to Section 85 of the Act, to make puisne incumbrancers parties, with the result that if they do not redeem, their lien will be defeated in the absence of fraud, which might, disturb the rule of priority under conditions such as those contemplated by Section 78 of the Transfer of Property Act (IV of 1882). But no such case is set up here, and I therefore concur with my brother Oldfield in the order which he has made.