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Kali Charan Singh and ors. Vs. Musammat Bageshra Kunwari and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in89Ind.Cas.374
AppellantKali Charan Singh and ors.
RespondentMusammat Bageshra Kunwari and ors.
Cases ReferredRani Anand Kunwar v. Court of Wards
Excerpt:
.....are not reversioners, whether barred--res judicata--remote reversioner, whether can maintain suit--appeal, second--point not argued before lower appellate court, whether can be taken. - - the plaintiffs, however, pleaded that the defendants were debarred from taking advantage of this plea because in a previous suit brought by their father as next reversioner against the widow and against transferees of other portions of the estate of makundi singh, the widow and those transferees had failed to adopt the plea now put forward that the plaintiff's father was not the next reversioner. we, therefore, find no authority for holding that the failure of the widow or the transferees in the first case to raise the plea against the father of the present plaintiffs that he was not the next..........namely, he held that there was a nearer reversioner one jangbahadur, grandson of makundi singh. the plaintiffs, however, pleaded that the defendants were debarred from taking advantage of this plea because in a previous suit brought by their father as next reversioner against the widow and against transferees of other portions of the estate of makundi singh, the widow and those transferees had failed to adopt the plea now put forward that the plaintiff's father was not the next reversioner. the subordinate judge accepted this plea and held that the matter was res judicata. he consequently decreed the plaintiffs' suit.3. in appeal the district judge held that the doctrine of res judicata did not apply and accordingly on the finding of fact that the plaintiffs were not the next.....
Judgment:

1. This second appeal arises out of a suit brought by certain persons alleging themselves to be the presumptive reversionary heirs of one Makundi Singh against the widow in possession and against certain transferees from the widow.

2. Amongst other points taken up in defence, it was urged that the plaintiffs-appellants were not the next reversioners. The Subordinate Judge of Jaunpur framed an issue on this pleading and decided it in favour of the defendants, namely, he held that there was a nearer reversioner one Jangbahadur, grandson of Makundi Singh. The plaintiffs, however, pleaded that the defendants were debarred from taking advantage of this plea because in a previous suit brought by their father as next reversioner against the widow and against transferees of other portions of the estate of Makundi Singh, the widow and those transferees had failed to adopt the plea now put forward that the plaintiff's father was not the next reversioner. The Subordinate Judge accepted this plea and held that the matter was res judicata. He consequently decreed the plaintiffs' suit.

3. In appeal the District Judge held that the doctrine of res judicata did not apply and accordingly on the finding of fact that the plaintiffs were not the next reversioners dismissed the suit.

4. In this appeal the first ground taken up is that the Subordinate Judge was right and the District Judge was wrong as to the question of res judicata. Reliance is placed on the Full Bench ruling of this Court in Kesho Prasad Singh v. Sheopargash Ojha 64 Ind. Cas. 248 : 19 A.L.J. 749 : 3 U.P.L.R. (A.) 117 : 44 A. 19 : (1922) A.I.R. (A.) 301, where it was held that a question decided between the widow in possession and the next reversioner for the time being would bind the reversioners suing at a later date the widow on a similar cause of action. We distinguish this ruling on the following ground. The ruling applied to a party who was, in fact, the reversioner. The present appellants wish us to apply the same reasoning to a party who is not the next reversioner, in fact, but only a claimant to be such. We, therefore, find no authority for holding that the failure of the widow or the transferees in the first case to raise the plea against the father of the present plaintiffs that he was not the next reversioner would in any way be res judicata as regards the present suit.

5. The next ground of appeal taken is that the lower Appellate Court was bound to consider whether the finding of the Subordinate Judge on the question of fact whether Jangbahadur Singh was the next reversioner was correct or not. From the lower Appellate Court's judgment we find it stated that the legal question of res judicata was the only one argued. From this we infer that the respondent did not in that appeal before the District Judge ask to be heard on the question of fact and we must hold that the matter did not come up before the District Judge. He was entitled, therefore, to disregard it.

6. The only other ground taken up in this appeal was that Jangbahadur Singh being a minor at the time of both suits could be legally represented in each by the father of the plaintiffs and the plaintiffs themselves respectively. Reliance is placed on the Privy Council ruling in Rani Anand Kunwar v. Court of Wards 6 C. 764 : 8 C.L.R. 381 : 8 I.A. 14 : 4 Shome L.R. 78 : 4 Sar P.C.J. 195 : 5 Ind. Jur. 161 : Rafique & Jackson's P.C. No. 63 : 3 Ind. Dec. (N.S.) 495 (P.C.), where it was held that a person who was not the presumptive reversionary heir but a more distant heir might bring a suit on behalf of the reversioners where the presumptive reversionary heir had colluded with the widow. An attempt is made to infer from the principles underlying this proposition that a more distant heir may sue where the nearest reversionary heir is a minor. Neither the ruling nor any principles invoked in that ruling appear to support such a proposition and for an obvious reason the more distant reversioners are in a position to appear and sue as the next friends of the minor and that is the method of law prescribed for enabling a minor to assert his rights. Indeed so far as we are aware there is nothing to prevent the minor suing through a next friend at this stage.

7. For the above reasons we dismiss this appeal with costs including in this Court fees oil the higher scale.


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