1. The defendant-appellant was sued by plaintiffs for recovery of property on the ground that it constituted the estate of one Neelamegam, whose reversioners the plaintiffs alleged that they were, and that the defendant had not been validly adopted by Neelamegam.
2. The only question before us is whether the adjudication on this adoption in a certain previous suit is now res-judicata or whether the lower appellate court's order of remand for trial on the merits is correct. In the previous proceedings Neelamegam's widow sued the present defendant as 2nd defendant on the ground that he had entered on the performance of certain mirasi duties which were jointly owned by Neelamegam and the present plaintiffs, then 3rd and 4th defendants, the allegation being that these duties were performed by the present plaintiffs and Neelamegam in turns, by Neelamegam for two years in succession and the present plaintiffs for the succeeding one year. The widow sued the 2nd defendant without reference to any adoption for a declaration of her right to the mirasi and for possession thereof and an injunction. The present plaintiffs were joined as 3rd and 4th defendants in that suit on the ground that they were entitled jointly to the said Mirasi office 'in order to save subsequent litigation'. This ground for joining them is on its face questionable. It has to be observed that it had not necessarily anything to do with the character, which the plaintiffs have now put forward as reversioners of Neelamegam. The plaintiffs filed their written statement, Ex. A(1) and in it referred-to their character as reversioners, stating that after the widow's death her right would devolve on them and that they would then become entitled to the whole mirasi right, meaning presumably its enjoyment not only for the one year's turn, during which they were already enjoying it, but also during the two years, during which until that time it had been in the enjoyment of Neelamegam. Issues were joined of a very general character, the first being whether the widow was entitled to the mirasi right claimed in the plaint, and the third whether the present defendant was validly adopted by Neelamegam and was entitled to succeed to the mirasi right. The result of the trial in the first court was a decree in favour of the present defendant the present plaintiffs being directed to pay their own costs. Appeal was afterwards preferred by the present defendant, to which he made only the widow respondent. It is unnecessary and it would probably be useless for us to enquire into his reasons. It is sufficient that according to the findings of the lower court there is no question of fraud and we need only consider the legal aspect of what was clone. The appeal ended in the defendant's favour with a finding for the adoption. On these proceedings the lower appellate court has held that neither the previous decrees of the court of first instance nor the appellate decree is res judicata in the present suit.
3. The argument in appeal is directed towards showing that the appellate decree should be regarded as res-judicata. The second respondent, one of the plaintiffs, has filed a memorandum of objections urging that the first court's judgment, Ex. I should be so regarded. We have heard considerable argument with reference to the position of the plaintiffs as 3rd and 4th defendants in the previous suit and as to the inference, if any, to be drawn from their conduct therein. It is not however, necessary to pursue that portion of the case, since neither side before us is really concerned to dispute that Ex. I would be res-judicata now, if Ex. II had not been given. We therefore confine ourselves to Ex. II.
4. The parties to Ex. II were on the one side the widow and on the other side the present defendant. For the defendant it is now urged that the widow represented the estate fully and that an adjudication between her and the defendant will, bind it and must now be treated as conclusive against the reversioners. Reference was made to cases, the principle being Katanm Nachiar v. The Rajah of Shivaganga (1863) 9 M.I.A. 539, and Risal Singh v. Balwant Singh I.L.R. (1918) All. 593. On the other side we have been asked to treat the failure to implead the present plaintiffs in the previous appeal as such 'special cause' as was referred to in the Sivaganga case (1863) 9 M.I.A. 539 and as was found to exist in Bat Kunku v. Bal Jadan I.L.R. (1919) 43 Bom. 869. We need not attempt to define 'special cause,' referred to in those cases exhaustively. So far however as we can judge, it would appear as though it must be ejusdem generis with the unfairness or irregularity in the proceedings, to which their lordships of the Judicial Committee referred explicitly. In Bai Kunku v. Bal Jadav I.L.R. (1919) 43 Bom. 869, 'special cause,' within the meaning of the judgment in the Sivaganga case, was found to consist in this, that the issue then under trial had been concluded in previous proceedings by the admission of the widow and those previous proceedings were therefore not held binding on the reversioners. The basis for this decision is not clear, since it does not seem to have been decided explicitly whether the widow's admission was in terms which covered the whole absolute estate in the property or merely her widow's interest. In fact, however, the application of this authority to cases such as the present is open to objection1 on the broader ground that the same rule will not be relevant to proceedings, such as the present for the avoidance of; the widow's acts, in which the issue is between the representative of the estate and then, in which it is between them and a trespasser relying on an incomplete independent title, for the creation of which the widow was not responsible. In the Bombay case the widow's admission related to the validity of an encumbrance created by herself and her conduct was therefore, quite different from that of the widow now in question, since the latter in the earlier stage of the litigation before us had represented the estate quite as fully as reversioners can now do and had opposed the pretensions of the present defendant on the merits in a regularly contested proceeding. Taking this view, we see no reason for refusing to apply to the present case the rule laid down in the Sivaganga case. We must accordingly hold that the widow in Ex. IT no less than in Ex. I, represented the estate fully and that Ex. II is therefore binding on the reversioners-plaintiffs, who now represent the estate. We allow the appeal, set aside the lower court's order and dismiss the suit with costs in the lower courts. In this Court the plaintiffs will pay defendant's costs in the appeal and 2nd plaintiff will pay defendant's costs in the memorandum of objections.