1. This is a defendant's appeal arising out of a suit for recovery of possession of a one-third share of 49 bighas and old land. The plaintiff claimed to be entitled to the property on the death of his mother and aunt, Bhurya and Kirpya, daughters of Pirthi, the last male owner.
2. On behalf of the defendants it was plea ed that the plaintiff was bound by a family settlement arrived at between the defendants and the ladies and that the claim was also barred by the principle of res judicata in consequence of a previous litigation.
3. Pirthi, the last male owner, died some 22 years ago and his widow, Musammat Shibya, succeeded to the estate. She oied in 1910. On her death an application for mutation of names was made in the Revenue Court by Musammat Bhurya and Kirpya, the two daughters of Musammat Shibya, which was opposed by Chajju, defendant, on the allegation that he was the adopted son of Musammat Shibya. The matter remained pending in the Revenue Court for a long time and, ultimately, on the nth October 1911, a compromise was filed in that Court, under which two-thirds of the properties went to the two daughters in equal shares and the remaining one-third to Chhajju and other collaterals. Mutation of names followed accordingly. Very soon after this compromise, namely, on the 18th of June 1912, Musammat Bhurya and Musammat Kirpya instituted a suit in the Civil Court to recover possession of the one-third share of the properties which had gone to Chhajju and others, on the allegation that the previous compromise was not binding on them. In the plaint, as originally filed, there was no relief asked for as to the cancellation of that compromise. The Court of first instance threw out the suit on the technical ground that the plaint was defective. On appeal the plaint was ordered to be amended, and a relief for the cancelation was added, and the case remanded for disposal on the merits. On the 24th of March 1914 the Court of first instance dismissed the suit, holding that the ladies could not avoid the previous compromise. This decree was affirmed in appeal by the District Judge and by the High Court on the 13th of April 1916. The result was, that Chhajju ana others remained in possession of the one-third share of the estate of Pirthi, and a suit brought to recover possession of it by Pirthi's daughters stood dismissed. Both the daughters have since died. Gokul, the present plaintiff, who is the son of Musammat Bhurya has instituted the present suit to recover possession of the one-third share which had passed out of the estate. This suit has been decreed by both the Courts below.
4. In appeal two points have been raised before me: (1) that the present claim is barred by the principle of res judicata and 10 Ind. Cas. 477 : 33 A. 356 : 38 I.A. 87 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 (P.C.) that, in any case, the previous compromise was a family settlement and was binding on the plaintiff.
5. It would be convenient to dispose of the second point first. If the question of res judicata does not arise then, in my view, on the findings recorded by the learned District Judge, the compromise cannot be held to be binding on the plaintiff. In the first place, there is a finding by the lower Appellatte Court that this really did not amount to 'a genuine family settlement.' In the next place, he has held that this compormise could not bind the ladies nor the plaintiff for want or registration. This latter view is supported by the Full Bench ruling in the case of Jagrani v. Bisheshar Dube 35 Ind. Cas. 701 : 38 A. 366 : 14 A.L.J. 449 (F.B.) in which it was held that a document which purports or operates to create or extinguish any right or interest in immoveable property worth Rs. 100, even though it records a family settlement, was compulsorily registrable. I am, therefore, of opinion that, if the present claim is not barred by the principle of res judicata then, on the findings, the compromise cannot bind the plaintiff. The principal point for determination, therefore, is the plea of res judicata. The former suit was instituted by the ladies to recover possession of a part of the estate which was in the wrongful possession of Chhajju and others who were claiming a paramount title in themselves. The suit obviously must be deemed to have been instituted in the interest of the estate and for the benefit of all the persons who might come to inherit it thereafter. The two ladies represented the estate for the time being and it was their duty to raise all the ground of attack which would entitle them to recover possession of the estate. If they failed to rase any such ground, or if they raised it and it was not accepted by the Court, the decree nevertheless would be final. It is not suggested anywhere that the former decree had been obtained by collusion or fraud. The suit being, in my opinion, a representative one the decree would bind not only the ladies who were the plaintiffs in the suit but all subsequent successors to the estate. It has, however, been strongly contended by the learned Vakil tot the respondent that that former suit was brought in the personal capacity of the ladies and for their own benefit, inasmuch as their main object was to get the compromise cancelled in which they had entered into, and that such a suit was really not a representative suit. It is further contended that the defendants at that time were in the position of transferees from these ladies and a decision arrived at between the ladies and their transferees could not bind the present plaintiff who was not claiming title through them but claiming In his own right. But, as was observed by their Lordships of the Privy Council in the case of Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 38 I.A. 87 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 (P.C.), the property which is acquired by persons under a compromise based on the assumption that there was an antecedent title of some kind in themselves which was acknowledged and defined by an agreement, is not the same thing as an alienation by limited owners in their favour. Chhajju and others did not acquire any title from the two ladies, but, on the other hand, they in compromise of an independent claim acquired a portion of the properly. They cannot, therefore, be treated as mere transferees from those ladies. The learned Munsif in the former case had dismissed the suit for possession on the ground that the compromise had not been obtained under any undue influence, mistake of law or fact, an was in fact valid. The mere fact that the ladies at that time did not raise the plea that the compromise was not binding on them for want of registration cannot nulify the effect of that decree. Even if that suit had been dismissed on the ground of personal estoppel against the ladies, it seems to me that the adjudication would still be final. In the case of Risal Singh v. Balwant Singh 48 Ind. Cas. 55 : 40 A. 593 : 45 I.A. 168 : 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. 597 : 21 Bom. L.R. 511 (P.C.), their Lordships of the Privy Council held a decree dismissing a widow's suit on the ground of personal estoppel as binding on subsequent reversioners. If the previous suit was a suit instituted in the interest of the estate and for the benefit of not only the ladies but all the persons who may come to succeed after them, then it must be deemed to have been a representative suit, and if it was such a suit then the decision arrived at in that litigation, in the absence of any fraud or collusion, would operate as res judicata. This was the view accepted in the Full Bench case of 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 : (192) A.I.R. (A.) 301. The learned Vakil for the respondent has strongly relied on the case of Narain Singh v. Raj Kumar Singh 66 Ind. Cas. 62 : (1922) A.I.R. (A.) 217 : 44 A. 428 : 20 A.L.J. 251, in which it was held that a previous compromise decree between an adopted son on the one hand and certain other claimants on the other was no bar to a subsequent claim raised by the adopted son. That case, however, is clearly distinguishable because in that case a compromise decree did not stand on any higher footing than the compromise itself. There was really no a judication by the Court and a question of res judicata in that case did not arise. The learned Judges were of opinion that, under the circumstances of that case, the compromise was not a settlement of any bona fide family dispute and as such was not binding on the plaintiff. In the present case I have already said that if it were not for the decree in the previous suit which was obtained after a fair fight, the compromise would not have been binding on the plaintiff.
6. The result, therefore, is that I allow the appeal, set aside the decree of the lower Appellate Court and dismiss the suit with costs in all Courts.