1. This is an appeal by defendants Nos. 4 and 10, arising out of a suit by certain reversioners for a declaration that a certain auction sale which took place on the 23rd of July 1917 in execution of a decree dated the 10th of January 1914 is null and void and that the purchase made by Ram Ratan Singh, defendant, is not binding on them.
2. It appears that in 1910 a suit, numbered as 1913 of 1910, was instituted for the sale of the property in question, on the basis of an unregistered mortgage-deed alleged to have been executed on the 6th January 1895 by Ram Rup, the husband of Musammat Kunj Dei, and the father of Rudra Prasad, who was the husband of Musammat Ram Peari. In this suit were impleaded, Kunj Dei, the widow of Ram Rup and Musammat Ram Peari, his daughter-in-law. It appears that the plaintiff's father Durga Charan Pande, claiming to be the immediate reversioner interested in the property, intervened and applied to the Court to be made a party. On his application he was actually brought on the record and filed a written statement challenging the genuineness of the mortgage-deed then in suit. The two ladies also filed a joint written statement challenging the genuineness of the mortgage-deed then in suit. The two ladies also filed a joint written statement denying the genuineness of that deed and its consideration. Separate Vakils were engaged by Durga Charan Pande and by the ladies. The witnesses produced by the plaintiffs were cross-examined by both the legal practitioners and after the evidence was closed and arguments heard, the Court decreed the suit of the plaintiff, holding that the bond was proved to have been duly executed and was for consideration. The Court, however, exempted Durga Charan Pande on the ground that it was not proved that he was the immediate reversioner and that m any case he had no immediate interest in the equity of redemption which was in dispute at that time. The mortgage-decree was executed and in execution of that decree the property was sold and purchased by Ram Ratan Singh, defendant.
3. The present suit has been brought by Gita Pershad, the son of Durga Charan Pande, for the avoidance of that auction-sale. The Court of first instance was of opinion that, in fact, the mortgage-deed of 1895 was not a genuine document, but at the same time held that the plaintiff had entirely failed to prove that the previous suit was a collusive one or that the decree had not been obtained fairly against the widows. It accordingly dismissed the suit. On appeal the learned Subordinate Judge has come to a contrary conclusion. His findings are challenged in second appeal. The first matter which we have to consider is whether the finding of the learned Subordinate Judge, which is to be the effect that 'the Munsif was wrong in arriving at the conclusion that the defence of Musammats Kunj Dei and Peari in that case was a bona fide one' can be interfered with in second appeal.
4. A persual of the judgment of the lower Appellate Court would show that the Court had been influenced by many circumstances which could not properly have been taken into consideration. In the first place, he has taken into account a number of documents purporting to have been executed in favour of third parties which were not proved to have been either executed or executed for consideration in litigation against those third parties. In the second place, he has imported his own knowledge of the qualifications of the Vakil who appeared for the ladies in the previous suit and has been influenced by an impression that no reasonable person who was contesting the suit in a bona fide manner would have engaged him. Furthermore, nowhere in his judgment has he come to a finding that there was in reality any collusion between the widows, on the one hand and the then plaintiff on the other. Reading the judgment as a whole, his finding really does not come to any more than this.
5. 'The ladies in fact did not defend the, suit in a manner in which any reasonable man would have done.' This finding, in our opinion, was not sufficient for the plaintiff to avoid the previous decree.
6. On behalf of the plaintiff no oral evidence was adduced to show that there was in fact any real collusion between the parties. As was remarked in the case of Katama Natchier v. Srimut Rajah Moottoo Vijaya Raganadha; Bodh Gooroo Sawmy Periya Odaya Taver 2 W.R. (P.C.) 31 at p. 37 : 9 M.I.A. 539 : 1 Suth P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 that the reversioners are bound by the decision fairly obtained against Hindu widow 'unless it could be shown that there, had not been a fair trial of the right in that, suit; or, in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to any new suit.' In a recent case their Lordships of the Privy Council have again laid down the law as follows, that in the absence of fraud or collusion a decree obtained against a Hindu widow had a binding effect on all the reversioners; Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 598 : 21 Bom. L.R. 511 : 45 I.A. 168 (P.C.). In the present case there is no suggestion whatsoever that there was any special ground which the ladies could have Taken and which was not taken or that there was any evidence which was deliberately suppressed. On the other hand, we find that the plaintiff's own father, Durga Charan Pande, was contesting the suit seriously and cross-examined the witnesses for the plaintiff. In these circumstances, there is absolutely nothing to suggest that the trial in the previous suit was not a fair one and that there was any special ground which was not urged at that time. This being so, in our opinion, the plaintiff is bound by the previous decree, and he cannot evade it by merely saying that the ladies did not properly contest the suit in a manner which any reasonable man would have done. In Gar Nanak Proshad v. Jai Narain Lal 14 Ind. Cas. 814 : 34 A. 385 : 9 A.L.J. 375 it was painted out 'that a decree in a suit against a Hindu, widow respecting property of her husband of which she is in possession as such widow may be binding on the reversioners notwithstanding that the widow did not contest the suit, provided that the plaintiff's case was properly and fairly stated and the widow had reasonable opportunities, of which she did not choose to avail herself, of defending the suit.' In this view of the matter we are of opinion that the decree of the Court of first instance should be restored.
7. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and dismiss the plaintiff's suit with costs.