Skip to content


Jagdeo Misir and ors. Vs. Mahabir Tewari - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad
Decided On
Reported inAIR1927All803
AppellantJagdeo Misir and ors.
RespondentMahabir Tewari
Excerpt:
- - 10,000. the point that the proposed respondents desire to raise is that a certain judicial decision of the year 1888 is not a bar to the success of the defendants in this suit. 3. on the 13th march 1888, the district judge of gorakhpur dismissed the appeal of mahabir prasad as well as that of mt......had been born to him and mt. rekha by name jamna prasad. the finding as regards the son did not suit mt. rekha, because a finding of that character would prevent the estate of her husband from passing into the hands of her daughter's sons. the finding that bhagwan dat had died a separated hindu also did not meet with the approval of mahabir prasad. the result was that both parties appealed, mahabir against the finding of separation, and mt. rekha against the finding that she had given birth to jamna prasad. those matters were fought out in appeal.3. on the 13th march 1888, the district judge of gorakhpur dismissed the appeal of mahabir prasad as well as that of mt. rekha. the finding that bhagwan dat left a son jamna prasad has stood very much in the way of the defendants, and it has.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. The suit was commenced in the Court of the Subordinate Judge of Gorakhpur, the value of the subject-matter of the suit being said to be Rs. 4,000. The suit was one for a declaration that a certain deed of gift in favour of the defendants was not binding on the plaintiff after the death of a lady by name Mt. Rekha. The defendants succeeded in the trial Court and in the lower appellate Court that decision was reversed, and the suit decreed. In second appeal this Court confirmed the decree of the lower appellate Court. From that decision leave is sought by the defendants to appeal to His Majesty in Council. Affidavits have been filed with regard to the value of the property, and although the defendants have to admit that when the suit was originally instituted the value of the property was put by the plaintiff at Rs. 4000, and that they themselves in their appeal to this Court put the value at Rs. 4,000 nevertheless they contend that, on a true valuation, the property was of a value greater than Rs. 10,000. On the other hand, the proposed respondents do not agree to that valuation; and we are of opinion that though the property is worth substantially more than Rs. 4,000, it is not of a value exceeding Rs. 10,000. The point that the proposed respondents desire to raise is that a certain judicial decision of the year 1888 is not a bar to the success of the defendants in this suit.

2. In the year 1886 it appears that Mahabir Tewari, the plaintiff in this suit, had instituted a civil suit against Mt. Rekha in the Court of the Subordinate Judge of Gorakhpur and he asked for a declaration that Bhagwan Dat, the husband of Mt. Rekha, died as a member of a joint Hindu family, and that Mt. Rekha was not in possession of any of his property. He also pleaded that Bhagwan Dat died leaving a son by name Jamna Prasad who died shortly after the death of his father Bhagwan Dat. To that case Mt. Rekha answered that her husband had died a separated Hindu, and that she was in possession of his estate as a Hindu widow. She denied that she had any son. At this stage it may be remarked that the lady had a daughter who had two sons Jagdeo and Nand Kishore. That circumstance is of importance as will be seen later. On the 9th April 1887, the Subordinate Judge found that Bhagwan Dat died a separated Hindu. He also found that a son had been born to him and Mt. Rekha by name Jamna Prasad. The finding as regards the son did not suit Mt. Rekha, because a finding of that character would prevent the estate of her husband from passing into the hands of her daughter's sons. The finding that Bhagwan Dat had died a separated Hindu also did not meet with the approval of Mahabir Prasad. The result was that both parties appealed, Mahabir against the finding of separation, and Mt. Rekha against the finding that she had given birth to Jamna Prasad. Those matters were fought out in appeal.

3. On the 13th March 1888, the District Judge of Gorakhpur dismissed the appeal of Mahabir Prasad as well as that of Mt. Rekha. The finding that Bhagwan Dat left a son Jamna Prasad has stood very much in the way of the defendants, and it has been urged before us that there was no need whatever for Mt. Rekha to appeal from the decision of the Subordinate Judge, and that the District Judge was incompetent to hear the appeal, and that the decree of 1888 was passed by a Court not competent to pass it. In point of fact the appeal went through in the ordinary way. Mt. Rekha had substantial personal reasons for wishing to get a declaration that Jamna Prasad was a person who never existed, and she launched her appeal with that object. It may be when one examines the matter in 927 that there was no legal reason why the lady should not have been content with the declaration that she got on the question of jointness and separation, but the fact is that she was not content with that declaration and preferred that appeal. That appeal was heard and determined after argument and contest. It is the decision in that appeal which has been held in this present litigation to operate as res judicata.

4. Our attention has been drawn to the two decisions of the Privy Council. Tribhuban Bahadur Singh v. Rameshar Bakhsh Singh [1906] 28 All. 727 and Midnapur Zemindary Co., Ltd. v. Naresh Narayan Roy A.I.R. 1924 P.C. 144. We think that those two cases are authorities for the proposition that if a party raises an issue, however improperly, in a case, which is accepted by the other side, and if the Court itself accepts the issue to be one relevant to the inquiry and necessary for the determination of the case, and that issue is argued out by both parties and a judicial decision come to, it is not open subsequently for either of the parties, or their successors in interest, or the persons claiming through them, to say that the issue does not constitute res judicata. This is the main, if not the only ground of appeal in this matter, and Mr. Upadhia has pointed out that there is quite another aspect of the matter that even if this point of law was decided in favour of Mr. Haribans Shai's clients, there will still remain an objection almost insuperable, namely, the preponderance of evidence in favour of Mr. Upadhia's clients. We, however, in this, matter have to consider whether there is a substantial question of law of general importance, and confining our attention to that we decide that question in the negative. We, therefore, decline to certify that it is a fit case for appeal to His Majesty in Council.

5. We, therefore, dismiss this application with costs including in this Court, fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //