1. Reference may be made to my order dated 14th September 1937 by which I remitted one issue to the lower Appellate Court, because a definite finding was necessary and originally the lower Appellate Court had not recorded such a definite finding. There was yet another matter on which the lower Appellate Court in the first instance had not said anything and I made it clear that it would be necessary for the Court to decide that matter as well. After remand, definite findings have been reached by the lower Appellate Court, and on those findings the rival contentions of the parties are that the appeal ought to be decided in their favour.
2. Although the facts are stated in the judgments of the Courts below and in my previous order also, yet it might be necessary to recapitulate them shortly and state the findings of fact which are now binding. A pedigree is given in the judgment of the lower Appellate Court after remand and that pedigree is admitted. The property in dispute belonged to Ram Charittar who appears on the left hand side of the pedigree. The plaintiffs, according to the pedigree, are the uncles of Ram Charittar and their case was that Ram Charittar died in a state of jointness with them, that they were therefore entitled to the property even in the presence of Mt. Kaulpati, the widow of Ram Charittar, but defendant 1 alleging herself to be the daughter of Ram Charittar and defendant 2 alleging himself to be the daughter's son of Ram Charittar interfered with the possession of the plaintiffs and that interference went to this extent, that they obtained an order in their favour from the mutation department and therefore the plaintiffs sought either a declaration that they were in possession or a decree for possession. The plaintiffs impleaded Mt. Kaulpati as defendant 3 and alleged that she was not entitled to possession, because Ram Charittar was joint with the plaintiffs, but when the plaintiffs sought a decree for possession they did not in any way in the prayer for relief exempt Mt. Kaulpati from the operation of the decree sought. There was of course a prayer in the alternative that in the event Ram Charittar be held to have died in a state of separation from the plaintiffs, the plaintiffs should be given a declaration that defendants 1 and 2 are not the daughter and daughter's son of Ram Charittar.
3. Defendants 1 and 2 pleaded that they were the daughter and daughter's son of Ram Charittar, that the plaintiffs were not joint with Ram Charittar, that they were in possession of the property left by Ram Charittar and that the real Mt. Kaulpati was traceless and a pretender had been set up by the plaintiffs. The trial Court came to a definite finding that defendants 1 and 2 were not the daughter and daughter's son of Ram Charittar, that the plaintiffs were joint with Bam Charittar and that the plaintiffs were entitled to a decree for possession. The decree that was framed by the trial Court was a decree against all the defendants giving the plaintiff possession. All the defendants were made liable to pay the costs of the plaintiffs. There can be no manner of doubt that the decree as given by the trial Court was against all the defendants including defendant 3, Mt. Kaulpati. There was an appeal by defendants 1 and 2 against the decree of the trial Court. The plaintiffs alone were impleaded as respondents to the appeal. Mt. Kaulpati was not a party to the appeal at all. The lower Appellate Court also agreed with the trial Court that the defendants were not the daughter and daughter's son of Ram Charittar. It recorded, if at all, a very unsatisfactory finding on the question of the jointness of the plaintiffs with Ram Charittar, and in the result it dismissed the defendants' appeal.
4. When the matter came before me on the first occasion, I accepted the finding of the lower Appellate Court that the defendants were not the daughter and daughter's son of Ram Charittar. I recorded my disapproval of the perfunctory finding of the lower Appellate Court on the question of jointness and I therefore remitted an issue on that point. There was no clear decision by either of the Courts below as to whether the lady, who appeared in the mutation department as Mt. Kaulpati, was the widow of Ram Charittar or not, and I indicated the advisability of a finding on that point as well. The lower Appellate Court after remand has found definitely that the plaintiffs were not joint with Ram Charittar and that the identity of Mt. Kaulpati had been proved by the evidence on the record.
5. In this state of findings learned Counsel for the defendants has argued that the plaintiffs suit ought to be dismissed inasmuch as in the presence of Mt. Kaulpati the plaintiffs are not entitled to a decree for possession or to a decree for a mere declaration that they are the reversioners of Ram Charittar and would be entitled to possession after the death of Mt, Kaulpati or even to a negative declaration that defendants 1 and 2 are not the daughter and daughter's son of Ram Charittar. I have no doubt, and it is not necessary to cite any authorities that a decree for a mere declaration that the plaintiffs are the reversioners of a male Hindu while the widow of that person is alive should not be granted, and I may also refuse, as was done in Samarendra Chandra Deb v. Birendra Kishore Deb (1908) 35 Cal. 777, in my discretion to give a declaration that the defendants have no right of succession, because the plaintiffs have no existing right, but a mere contingent right which may never ripen into an actual right, but what is contended by learned Counsel for the plaintiffs is that he is not seeking for a mere declaration but for a decree for possession. The reply of the defendants is that they are entitled to set up a jus tertii, namely the jus of Mt. Kaulpati who, on the finding after remand, is entitled to possession of the property. It is said that Ram Charittar died as a separated Hindu and after his death Mt. Kaulpati is entitled to possession of the property and the defendants can say that they are entitled to resist the claim of the plaintiffs against everybody except Mt. Kaulpati. I have no doubt that this contention has been suggested to learned Counsel for the defendants, because of a loose passage in my judgment at the time of remand. I said therein:
If Ram Charittar was separate from the plaintiffs, then, after the death of Ram Charittar, Mt. Kaulpati would come into the possession of the property as a Hindu widow and the defendants might well set up a jus tertii.
6. In the circumstances of the present case, I am satisfied that the defendants are not entitled to set up the jus of Mt. Kaulpati. The defendants have no right in themselves, and in order to set up the right of Mt. Kaulpati they must prove that Mt. Kaulpati has an existing right and that her right has not been determined by any Court of law finally. In the trial Court Mt. Kaulpati entered into the witness-box and stated that the plaintiffs and Ram Charittar were joint and that when Ram Charittar died the plaintiffs entered into possession of Ram Charittar's property. As Ramesam J. observed in Gangayya v. Satyanarayana : AIR1925Mad1021 :
The principle that the possession is good against all but the true owner cannot avail the defendants when the true owner is impleaded as a party and admits the plaintiff's title to the property.
7. This is not all. There was a decision of a competent Court giving the plaintiffs a decree for possession against Mt. Kaulpati and thus negativing any title in Mt. Kaulpati. Mt. Kaulpati did not file any appeal against the decree of the trial Court and Mt. Kaulpati was not impleaded even as a respondent by the defendants before the lower Appellate Court. There has thus been an adjudication by a competent Court between the plaintiffs and Mt. Kaulpati, and before the defendants can be allowed to set up a jus tertii they must prove that the person whose right they set up in defence has a subsisting right. This was the view taken in Krishnan Nair v. Kambi : AIR1937Mad544 .
8. The position therefore is that on the admitted pedigree, the plaintiffs are the uncles of Ram Charittar, defendants 1 and 2 are rank trespassers, and the plaintiffs have obtained a decree for possession against Mt. Kaulpati who in the finding of the lower Appellate Court after remand - a finding given in the absence of Mt. Kaulpati - might otherwise have been entitled to possession, and the plaintiffs are entitled to succeed against defendants 1 and 2 and the latter are not entitled to set up the right of anybody else, because nobody else has under the present circumstances any better right than the plaintiffs. In this view of the matter this appeal is liable to be dismissed, and I dismiss it with costs.
9. There is just one other matter which requires an order. As I said before, the appeal in the lower Appellate Court was by the defendants. The appeal was filed on a memorandum of appeal said to be insufficiently stamped. This was not discovered by the lower Appellate Court till the learned Judge proceeded to write his judgment, and after having dismissed the appeal of the defendants he directed them to pay Rs. 101-4-0 as deficiency in court-fee within a fortnight from the date of his judgment and if they failed to do so it was to be realized from them in due course. I have looked at the report of the munsa. rim in the lower Appellate Court and I find that, although he was of the opinion that ad valorem court-fee ought to be paid, the learned Judge decided that the court-fee paid was sufficient, and it was thus that the appeal was heard and disposed of by the lower Appellate Court. Learned Counsel for the parties have not been able to show any other order of the lower Appellate Court vacating its former order, dated 22nd November 1933 admitting the appeal as properly stamped. In any event, it was not proper for the lower Appellate Court to pass the order which it did, directing the defendants who had lost their appeal to pay any deficiency and to direct that the same should be realized from them in due course at the time of writing its final judgment. In this case I am of the opinion that the court-fee paid by the defendants in the lower Appellate Court was sufficient and the order of the lower Appellate Court directing the defendants to pay any court-fees is set aside. Leave to file an appeal by way of Letters Patent is allowed.