1. This is a defendant's appeal arising out of a suit for recovery of possession by means of redemption of a mortgage, dated the 10th of January, 1912, executed by one Mt. Bhagwanti. The plaintiff claimed to be the nearest reversioner of Mt. Bhagwanti's son Ram Nandan. The property in dispute is a fixed rate tenancy which would devolve as land. Both the Courts below have decreed the claim. I am not now concerned in appeal with the question as to how much of the mortgage money was for legal necessity.
2. The main point which has been urged In the course of argument by the learned Vakil for the appellants is that the lower Appellate Court has conceded that Mt. Bhagwanti was the step-mother of Ram Nandan. His argument, therefore, is that she was not the legal heir under the Hindu Law of the estate of Ram Nandan and the estate in her hands was not a Hindu widow's estate. It is, therefore, urged that the mortgage made by her was made by a trespasser and the plaintiff cannot succeed as an heir to the estate after her death, nor can he succeed unless he comes within 12 years of the date of the death of Ram Nandan himself.
3. The abstract point of law which has bean urged before me oertainly has great force. According to the ruling reported In Ramanand v. Surgiani (1894) 16 All. 221 under the Mitakshara School of Hindu Law a stepmother not being one of the females expressly named in the Mitakshara and not being included under the term 'mother' in Chapter II, Section 3, cannot inherit from her deceased step-son. This ease has so far not been dissented from in this Court. On the other hand its principle has been accepted in the case of Nanhi v. Gauri Shanhar(1905) 28 All. 187. The Madras High Court where the Mitakshara law prevails has also held in the case of Seethai v. Nachiar (1914) 37 Mad. 286 that a step-mother cannot inherit an estate of her step son.
4. This legal aspect of the case would have caused some difficulty in the way of the t plaintiff, but for the circumstances which I am going to mention now.
5. In the year 1912 Babu Lal the present plaintiff brought a suit for possession of the property in question against the present defendants by avoidance of the b mortgage deed on the ground that, Mt. Bhagwanti was only a mistress of the father of Ram Nandan and not his wife and that she was not an heir of Ram Nandan at all. The District Judge in that case in his judgment dated the 2nd of June, 1913, although he wrongly conceded that even if she were the step-mother of Ram Nandan she would succeed to a life-interest in the property, found that on the evidence on the record it was satisfactorily proved that Ram Nandan was a son of Mt. Bhagwanti and that she was the married wife of his father, that is to say, that he was not her step-son but her true son. On that finding the suit was obviously premature and was accordingly dismissed.
5. In the face of that finding and the dismissal of that suit on that ground, it is not open to the defendants to say that Ram Nandan was a step-son and that Mt. Bhagwanti was not the heir to his estate. That finding and the dismissal operate as res judicata between the parties, and it is not open to any party to go behind it, If such a thing were allowed the result would be that the previous suit was dismissed on the ground that it was premature and the second suit would have to be dismissed on the ground that it is barred by limitation. It must, however, be conceded that all this trouble has been caused by the fact that in paragraph 4 of the plaint the plaintiff in spite of the contrary position which he had taken up in the previous litigation admitted that Mt. Bhagwanti was the step-mother of Ram Nandan. The lower Appellate Court naturally, therefore, took it for granted that she was the step-mother. For this error it is the plaintiff himself who is to blame.
6. On the other hand it is also to be borne in mind that the question that as stepmother Mt. Bhagwanti could not succeed to the estate of Ram Nandan, was never raised by the defendants anywhere in the course of these proceedings, nor was a plea taken that the claim was barred by time. There was no such plea taken before either of the Courts below, nor in fact is any such ground taken in the memorandum of appeal which is filed in this Court.
7. The defendant Earn Prasad being a mortgagee cannot deny the title of the mortgagor or plead adverse possession the other defendants are members of his joint family. Under the circumstances, no question of the suit being barred by six months rule of limitation under Section 79 of the Tenancy Act, can arise.
8. I accordingly dismiss this appeal but order that the parties do bear their own costs of this appeal.