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Abdul Aziz and ors. Vs. Musammat Aziman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.294
AppellantAbdul Aziz and ors.
RespondentMusammat Aziman
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--previous suit for a share as heir--subsequent suit for maintenance--plea of res judicata whether can be taken in second appeal--pleading--practice. - - ) is, in my opinion, only remotely applicable, while the other is the well-known case of guddappa v. 155. i am satisfied that the rule of res judicata does not operate as a bar to the present suit......of her father under the mohammadan law, and repudiated the will under which she claims in the present suit. the only point which has been pressed before me in this appeal is that the present suit is barred by the principle of res judicata. this plea was not taken in the first appellate court, but i have allowed the claim to be argued before me, on the authority of the cases reported in muhammad ismail v. chatter singh 4 a. 69 and kanhaiya lal v. suraj kuart 21 a. 446.2. on the question itself, i was referred to two cases, one of which, srimut rajah moottoo vijaya raganadha bodha gooroo sawmy periya odaya v. katama natchiar 11 m.i.a. 50 : 10 w.r. 1 (p.c.) is, in my opinion, only remotely applicable, while the other is the well-known case of guddappa v. trikappa 25 b. 189, which.....
Judgment:

Piggott, J.

1. In this suit, Musammat Aziman, daughter of Fazal Hussain, claimed from the defendants who were the heirs of Fazal Hussain, under a Will, arrears of maintenance due to her under the provisions of the said Will. She had previously brought a suit in which she claimed a share in the inheritance of her father under the Mohammadan Law, and repudiated the Will under which she claims in the present suit. The only point which has been pressed before me in this appeal is that the present suit is barred by the principle of res judicata. This plea was not taken in the first appellate Court, but I have allowed the claim to be argued before me, on the authority of the cases reported in Muhammad Ismail v. Chatter Singh 4 A. 69 and Kanhaiya Lal v. Suraj Kuart 21 A. 446.

2. On the question itself, I was referred to two cases, one of which, Srimut Rajah Moottoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya v. Katama Natchiar 11 M.I.A. 50 : 10 W.R. 1 (P.C.) is, in my opinion, only remotely applicable, while the other is the well-known case of Guddappa v. Trikappa 25 B. 189, which represents what is perhaps the strongest view taken by any Indian High Court regarding the question of a plaintiff's right to claim in a second suit a relief previously claimed by him in another suit, though on a totally different ground. Even that case is in my opinion distinguishable from the one now before me, on the ground that the maintenance allowance, now the subject-matter of the present suit, is really quite a distinct thing from Musammat Aziman's share in the parental estate under the Mohammadan Law of inheritance. A case more nearly applicable is, in my opinion, the Privy Council case of Mahomed Riasat Ali v. Husain Bano 21 C. 157, 20 I.A. 155. I am satisfied that the rule of res judicata does not operate as a bar to the present suit. The appeal, therefore, fails and is hereby dismissed with costs including fees on the higher scale.


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