Walsh and Ryves, JJ.
1. This is a matter which is perfectly simple and straightforward, but which by a combination of circumstances has got into a slight tangle. The whole question turns upon the interpretation of a will, about which unfortunately there has been a difference of opinion. But that question was finally and conclusively determined against the parties to this suit by a judgment of the Chief Justice and Mr. Justice Banreji, on the 5th of December, 1919. In order to simplify this judgment, we propose to call the parties merely appellant and respondents. The appellant and respondents to this appeal were entitled by a will of an ancestor, dated the 10th of April, 1882, to a half share of a business. A controversy has arisen over the meaning of the will as to the house. The respondent brought a suit against the appellant to determine that question. It reached the High Court in second appeal and every court was against the appellant, and it was decided by a single Judge of this Court, in May, 1916, that the house belonged to the parties in equal shares, half and half. That decision was final and binding upon the parties for the time being. But when the respondent, who had been successful in that suit, started to enforce his rights in the execution court, the usual tertium quid appeared upon the scene in the character of a separated member of the joint family to which the appellant had belonged, and he claimed unsuccessfully in the execution court his half share in this property which had been joint and had been partitioned to him. That was a sort of jus tertii independently of any decision in the previous litigation. If he was right, the decree in. the previous litigation could only operate upon the balance which was left after his rights had been separated and given to him. Thereupon he brought a suit claiming his share, of which he had been deprived in the execution court, and he made both the appellant and the respondent parties to that suit. In that suit the interpretation of the will undoubtedly came substantially into question. The suit could not be decided without interpreting the will, and as you cannot interpret half a document, it necessarily followed that the interpretation adopted in that suit would not only affect the rights of Sheo Prasad but also the rights inter se of the appellant and respondent who were then co-defendants. So that, as regards the interpretation of the will, the following principle of law, which nobody is concerned to dispute, came into play. As regards co-defendants, adjudication which is necessary to give the proper relief to the plaintiff, is res judicata as between the co-defendants as well, provided there is a conflict of interest. In the end that suit also reached the High Court, and Mr. Justice BYVBS, before whom the appeal in second appeal came, was of opinion that the interpretation of the will in the previous suit on appeal was erroneous. He referred it to two Judges. It ultimately came before the Chief Justice and Mr. Justice Banerji, who, in the decree we have already referred to, dated the 5th of December, 1919, held that the previous interpretation of the will was erroneous and that the house had been bequeathed to the appellant solely, the result of which was that the plaintiff in that suit was entitled to his share and the appellant to what was left. It was not necessary on that occasion to go into the consequences of the decree which was passed. It was a matter which might be left, if the court thought fit, to be dealt with by arrangement between the parties themselves, or by any other court which might have to interpret the effect of that decree. The High Court might on that occasion have given a declaration as between the two co-defendants as to their rights. It had in fact expressed those rights in so many words. It was not asked to do more. The parties were left to their existing rights. Those rights are not difficult to state. From the 5th of December the appellant had his half share. Sheo Prasad had his half share. The respondent was out in the cold. But inasmuch as the decree of the High Court of 1916 was not affected by the decree of the High Court of 1919, it remained pro tanto good and anything done under it was pro tanto valid. Something had been done under it. The respondent had not slept upon his rights. He had done his best to enforce them as the result of his triumphant but temporary success in 1916, and he brought one suit for rent in 1917 which ended in a compromise, and even after December, 1919, he applied to the execution court, namely, in March, 1921, to execute his decree, which, although he never ought to have obtained it in the light of what the High Court had subsequently held, he still enjoyed as the result of the 1916 decision. The Subordinate Judge who dealt with that execution proceeding took a perfectly right course. It was pointed out to him by the appellant before us that there was a subsequent decision which showed that the respondent ought not to have recovered that decree. He declined to fall into the trap which was laid for him. His business was to execute the decree and to decide any legal grounds which might be raised in objection to its execution, although in giving his reasons? he indulged in certain dicta, (which is the way of Judges, who are unfortunately expected, even if not compelled, to give reasons for what they do), dicta which we are bound to say we should probably have expressed ourselves as one of our reasons for the order, with reference to the state of things created by the decision of the High Court. In substance he said that the prior decision of the High Court was res judicata and binding upon the parties; and Mr. Jang Bahadur Lal, on behalf of the present respondents, relies upon these dicta as amounting in themselves to res judicata binding upon the appellant before us. He might have appealed from the order of the execution court. He did not. Therefore, says Mr. Jang Bahadur Lal, everything which the Judge said in his judgment is binding upon the appellant for ever. But of course that is not so. The question whether the previous proceedings were res judicata between the parties was not either directly or substantially in issue in the execution court. The later decision of the High Court differing from the prior decision, as we have already pointed out, left the existing decrees untouched. The execution court had to execute such decrees in accordance with the law without regard to what any Judge might have said or done in some other suit which was not before it. But in the light of this somewhat incongruous state of things, namely, that a party who had been declared by the High Courts to have no interest whatever in the property was still successfully executing decrees which gave him the profits thereof, it is not surprising that the appellant looked round to see how he could right the wrong, which it undoubtedly was, and he brought the present suit. For the moment we will pass by the criticisms which the respondents' counsel Mr. Jang Bahadur Lal has based upon the form of the relief claimed. The substance of the matter is a suit to declare, in his favour as against the respondents, with reference to this much debated point, the rights which had been established in his favour by the subsequent decision of the High Court, and he started upon that suit undoubtedly with the object of enforcing in his favour that, decision and of doing so by means of the principle of res judicata which, in his view, under Section 11 of the Code made the decision of the 5th of December, 1919, binding upon the respondents. In the decision of that question, which was really the only question in suit, the lower courts have gone off the line. The question substantially and directly in issue in the prior litigation which ended in the decree of December, 1919, was, what were the rights of the parties in respect of the house under the will? The absence of Sheo Prasad from the first suit, and the fact that the second suit only related to half the house, are both irrelevant. The greater includes the less, and a decision as to the whole house of course includes a decision as to the half, and it was impossible to decide the issue in Sheo Prasad's suit which ended in the decree of December, 1919, without deciding the rights over the whole house. We come without hesitation to the conclusion that the decision with regard to the interpretation of the will, and, therefore, the devolution of the whole house, was substantially and directly in issue between the appellant and respondents as co-defendants in Sheo Prasad's suit within the meaning of Section 11, and that, therefore, both the lower courts have come to a wrong decision, and that the plaintiff is entitled to succeed in tjhis appeal and substantially in the suit. We now come to the question as to the form of the relief. Mr. Jang Bahadur Lal with regard to this has taken a good point. The plaintiff claims that the decree in No. 455 of 1914, which has been wrongly passed, may he cancelled. Putting this into plain English, it is asking the Munsif to cancel a decree of a single Judge of the High Court, which, as we have already said, is dangerously near to contempt of court, and it is clear that the Munsif was not disposed to do it. Mr. Jang Bahadur Lal for the respondents now contends that he has not decided the issue at all. But in asking for this relief the plaintiff either by good luck or judgment happens to have put in the necessary words which entitle us to do justice in the case. He says that under the will dated the 10th of April, 1882, the defendants have-got no right in the house known as Arhatwala. That is really what he was trying to do, namely, to establish that the decree of the 5th of December, 1919, was binding upon the respondents, that the respondents had no right to the house, and that therefore he, the plaintiff, was entitled to a declaration that he was, and the fact that he put in an ancillary claim which it was impossible for the court to grant, does not in our view disentitle him to what is obviously just and right in the circumstances as they now exist. Though it may be useless, we think it right to indicate to the parties our view of how matters should for good and all, rest between them. The respondents are clearly entitled, in our opinion, to the fruits of what they have been able to recover as the result of the decision in their favour in 1916 without qualification. That is to say, as regards any decision in execution proceedings taken even after the 5th of December, 1919, the status quo is to continue. On the other hand, as the result of this decision, the plaintiff is not entitled in law to restitution of anything which he may have paid in the meantime. But as from today the decree of 1916 and any proceedings in the lower or execution courts based thereon must be regarded as at an end. Mr. Jang Bahadur Lal has very naturally pressed upon us on behalf of his clients that we ought to remit the case for the determination of other issues. Technically he possesses this right, but we have gone into the matter very thoroughly and we are convinced that no further issue remains to be determined. Furthermore, there was an agreement between the gentlemen conducting the case on either side in the Munsif's court that no oral evidence should be produced. This creates an estoppel. The appeal must be allowed and the plaintiff's suit decreed in the terms of this judgment with costs here and below.