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Ejaz Ahmad and ors. Vs. Saghir Bano and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1930All287; 118Ind.Cas.175
AppellantEjaz Ahmad and ors.
RespondentSaghir Bano and ors.
Excerpt:
- - 469 it was distinctly pointed out that there was no conflict in interest between the two defendants who had in the previous suit resisted the claim of the plaintiffs.banerji, j.1. the four appellants were defendants in a suit for partition. the property in which the plaintiffs claim a share belonged to one hafiz niaz ahmad. he left behind several heirs and the plaintiffs claim specified shares against the other heirs of niaz ahmad. the defence of the appellants and the other defendants was that the house in question was given to mt. wilaiti begam by hafiz niaz ahmad in lieu of her dower debt and the plaintiffs have no right to the house, and in no case can they have their share apportioned without payment of the proportionate share of the debt. the defendants averred that mt. wilaiti begam's dower was rs. 40,000 but the plaintiffs say that it was rs. 1,000.2. in the year 1910 one of the heirs of niaz ahmad transferred his share and the transferee.....
Judgment:

Banerji, J.

1. The four appellants were defendants in a suit for partition. The property in which the plaintiffs claim a share belonged to one Hafiz Niaz Ahmad. He left behind several heirs and the plaintiffs claim specified shares against the other heirs of Niaz Ahmad. The defence of the appellants and the other defendants was that the house in question was given to Mt. Wilaiti Begam by Hafiz Niaz Ahmad in lieu of her dower debt and the plaintiffs have no right to the house, and in no case can they have their share apportioned without payment of the proportionate share of the debt. The defendants averred that Mt. Wilaiti Begam's dower was Rs. 40,000 but the plaintiffs say that it was Rs. 1,000.

2. In the year 1910 one of the heirs of Niaz Ahmad transferred his share and the transferee instituted a suit for partition of that share. In that case some heirs supported the claim of the transferee but the present plaintiff and the appellants pleaded that Mt. Wilaiti Begam's dower was Rs. 40,000 and that she was in sole possession of her husband's assets in lieu of dower debt. The issue than raised was whether Wilaiti Begam's dower was settled at Rs. 40,000, whether the share was still due to her, and whether she was in sole possession of her husband's assets in lieu of the dower debt.

3. In the present case the same issue arises and the question that we have to decide in this appeal is whether judgment and the decree that followed the 1910 suit binds the parties with regard to the issue just set out by us.

4. The Courts below have held that the finding in the previous litigation was binding, although the plaintiffs and the appellants were co-defendants in the case.

5. It is unnecessary to go into the reasons given by the learned District Judge in appeal, but in our opinion the question is concluded by what was held in the case of Parsotam Rao Tantia, v. Radha Bai [1910] 32 All. 469. The decree passed in a partition suit in which for the purpose of giving relief to the plaintiff if a question has to be decided as between the different parties whether they are arrayed as plaintiff or defendant, must in our opinion, be binding on all the parties. No doubt in an ordinary case a finding on an issue as between co-defendants is not binding unless it is necessary to give relief to the plaintiff and if there is a conflict between the defendants, but the decree in a partition suit stands on a different footing. In the case of Parsotam Rao Tantia v. Radha Bai [1910] 32 All. 469 it was distinctly pointed out that there was no conflict in interest between the two defendants who had in the previous suit resisted the claim of the plaintiffs. In the present case no doubt there was no conflict between the appellants and the plaintiffs, but for the purpose of giving relief to the plaintiffs it was absolutely necessary to decide the issue regarding the dower of Wilaiti Begam and regarding the question of the possession of the assets of her husband. The principle of that case has been recognized in various other cases and reference may be made to the judgment of their Lordships of the Privy Council in the case of Nalini Kanta Lahiri v. Sarnamoyi Debya A.I.R. 1914 P.C. 31 where it was held that in a partition suit where the interest of different parties had to be ascertained the decree passed in the case cannot be ignored by a party afterwards in a suit that he may institute in spite of the previous ascertainment of shares.

6. The learned advocate for the appellant has strenuously contended before us that the case of Mohammad Ahmad, v. Zahur Ahmad A.I.R. 1922 All. 19 and the case of Gangaram Balkrishna v. Vasudeo Dattatraya A.I.R. 1923 Bom. 203 lay down that there can be no res judicata where there was no conflict between the defendants inter se. On an examination of the two cases it is clear that there the issue in the second case was not identical with the issue that had to be decided in the previous case to give relief to the plaintiff. We are therefore of opinion that there is no force in this appeal and we dismiss it with costs.


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