Venkatasubba Rao, J.
1. The question to be decided in this appeal is, has the subject-matter of the action become res judicata The plaintiffs derive their title from one. Muthu Goundan, and the defendants from Palani Ammal, the widow of the last male holder. Muthu filed as a presumptive reversioner of the estate of one Raya Goundan O.S. No. 83 of 1908 for a declaration that a mortgage executed by Palani in favour of the 2nd defendant in that suit was not binding upon the reversionary heirs. Palani, who was the 1st defendant as also the mortgagee defendant, denied the relationship set up by the plaintiff. The first issue framed in the case. raised the question whether Muthu was related in the manner alleged in the plaint and was the reversioner as claimed. After a witness was examined, Muthu, discovering that the pedigree on which he relied was wrong, applied to be allowed to withdraw the suit with permission to file a fresh suit. The Court refused the permission and the plaintiff having declined to withdraw the suit without such permission, the Court disposed of the case on the merits. The issue relating to Muthu being the reversionary heir was found against him and the suit was dismissed. Muthu then filed an appeal which was also dismissed. In the present suit Muthu alleges that he has become the actual reversioner in whom the estate has vested and possession is claimed on that footing. The matter really decided becomes apparent from the following passage of the judgment of the District Munsif in O.S. No. 83 of 1908:
In the affidavit now filed by the plaintiffs in support of their petition for withdrawal of the suit with permission to sue again they admit that the pedigree given by them along with the plaint is not correct. Ex. I, the registration copy of sale deed executed by 1st plaintiff's father, shows that the 1st plaintiff's grandfather was not Perumal Goundan as given in the plaintiffs' pedigree but his name was Chinna Thirumalai Goundan. From Ex. II the division release deed between the plaintiffs 2 to 4 attested by 1st plaintiff, it is also clear that 1st plaintiff is not related to the other plaintiffs as he claims to be in the pedigree. The burden of proving the relationship to 1st defendant's husband and thus their reversionary right to his estate lies heavily on the 'plaintiffs and they have failed to discharge it. I find the first issue against the plaintiffs and, on that finding alone, dismiss the suit.
2. The Subordinate Judge, in appeal from the decision of the District Munsif, thus deals with the question:
Upon the evidence on the record the Lower Court has found that plaintiffs have failed to prove their reversionary right and I concur in its finding. The appeal is dismissed with costs.
3. The point, therefore, to be decided is, whether the question of the reversionary right of Muthu has become res judicata. This issue has been decided in favour of the plaintiff by the Lower Courts and the 3rd defendant appeals.
4. It is now settled law that a suit by a reversioner during the life-time of the widow is a representative one and enures for the benefit of all the reversioners and is equally operative to the detriment of all. See Venkatanarayana Pillai v.Subbarmal ILR (1915) M 406 and Varamma v. Gopaladasayya ILR (1917) M 659. The last case cited illustrates very forcibly this rule and gives full effect to the principle. The presumptive reversioner at the date of the alienation by failing to bring a suit within the twelve years allowed became barred under Article 125 and his omission was held to preclude all reversioners including even subsequently born reversioners from questioning the alienation during the widow's lifetime although be it noted that subsequently born reversioners became on their birth nearer presumptive reversioners than the person whose omission led to this result.
5. There can thus be no doubt that a judgment obtained by the presumptive reversioner that an alienation is good is binding during the lifetime of the widow on the whole body of reversioners ; and conversely a decision obtained by the presumptive reversioner against the widow that an alienation is not binding is res judicata and cannot be questioned by the widow during her lifetime in any subsequent suit brought by any other reversioner.
6. The question then arises, does the death of the widow make any difference In Kesho Pershad Singh v. Sheo Pragash Ojha (1924) 51 IA 381 the facts are, that the then presumptive reversipner filed a suit during the widow's lifetime and obtained a declaration that an alienation was not binding on the widow's death, she then died and succession opened to the plaintiff who was the actual reversionary heir and in his suit he was held entitled to take advantage of the previous decision and to rely upon it as res judicata.
7. Hussain Reddy v. Venkata Reddy : AIR1925Mad86 . decided by Wallace and Jackson, JJ. is the converse of Kesho Pershad Singh v. SheoPrakash Ojha (1924) 51 IA 381. The previous suit in the lifetime of the widow by the presumptive reversioner was dismissed on the ground that the alienation was for a justifiable purpose. The second suit by the actual reversioner after the widow's death was held barred on the ground of res judicata. To the same effect is my own judgment in S.A. No. 923 of 1921. In the suit against the widow by the presumptive reversioners, their right was found against on the ground that the last male holder had left a will. This judgment, I held, operated as res judiciala precluding the actual reversioner from re-agitating the question after the death of the widow.
8. Sri Raja Rao Lakshmi Kantaiyammi v. Sri Raja Inuganti Rajagopal Rao ILR (1898) M 344 has also a very direct bearing on the issue to be decided. S filed a suit claiming as reversionary heir entitled to inherit after the death of the defendant, the mother of the last male owner. She defended that suit on the ground that the properties were her stridhanam and that her daughter and daughter's son were entitled to succeed to them after her. S died during the pendency of the suit and R, who alleged to be his adopted son, was substituted for him. The said daughter and the daughter's son were also made parties to the suit. A decree was passed declaring that certain alienations made by the mother were invalid against the reversionary heir. The mother having died after decree, R brought as the nearest reversioner. a second suit against the daughter and the mother for possession of the property. The point to be decided was, whether the matter of the reversionary right became res judicata. Collins, C.J. and Parker, J. held that the contention of res judicata was well founded. They observed:
As the issue was tried by a Court of competent jurisdiction between the same parties litigating under the same title, we can see no reason why the question between them should not be res judicata under Section 13 See bottom of page 346.
9. The Privy Council observing at page 350 that the question whether R was the nearest reversioner was distinctly raised in the earlier suit, confirmed the decree of the High Court and held that the previous decision was conclusive between the parties in the second suit. This ruling would be a direct authority but for the fact that in the present case the reversioner did not succeed in the first suit but lost it. But does this fact make any difference Hukum Chand points out that the test of res judicata is mutuality. He cites the observations of Petheram, C.J. in Surendranath Pal Chowdhry v. Brojonath Pal Chowdhry ILR (1886) C 352 and Muthuswami Aiyar in Gnanamhal v. Parvathi ILR (1892) M 477. to the effect that estoppel is mutual, that a particular judgment if obligatory upon either is binding upon both. He says that a party will not be concluded against his contention by a former judgment unless he could have used it as a protection, had the judgment been the other way. The result, therefore, is that the Privy Council having held in Sri Raja Rao lakshmi Kantaiyammi v. Sri Raja Inuganti Rajagopal Rao ILR (1898) M 344. that a decision favourable to the reversioner could be used against the widow, the converse of the proposition is equally true that the widow who obtained a judgment in her favour could use it as a protection against the reversioner. As Mr. Justice Mahmood in Jamait-unnissa v. Lutf-unnissa ILR (1885) A 606. says:
A finding which conclusively binds one party must necessarily bind the opposite party also, and that but for this reciprocity, the rule of res judicata far from attaining its object of putting an end to litigation, would only achieve the contrary result of increasing litigation. [See Hukum Chand's Res judicata 1894 Ed., p. 24. See also Lilabati Misrain v. Chobey (1907) 6 Cal LJ 621
10. In Nawab v. Punjaba (1921) 59 IC 946 it was held, that in similar circumstances a second suit by a reversioner after the death of the widow was barred as res judicata.
11. Fateh Singh v. Jagannath Baksh Singh ILR (1934) A 158. a decision of the Judicial Committee, is almost conclusive against the respondent. Certain reversioners instituted a suit for cancellation as void of a deed of gift executed by the: widow of the last male holder. Besides the widow and the alienee there were others who were impleaded as defendants, one of whom was Ganga Baksh. The plaintiffs admitted that they were remoter in relationship to the common ancestor than Ganga Baksh who being the nearest reversioner would ordinarily be the person entitled to question the alienation. The plaintiffs, however, based their right to sue upon Ganga Baksh's indifference to his rights and collusion with the widow and the alienee. During the pendency of the suit the widow died and the plaintiffs applied for permission to amend the plaint by adding a prayer for possession and by adding a new ground of claim, namely, that according to a custom alleged, the nearer as well as the remoter heirs both inherit the property according to the shares of their fathers per stirpes. The application for amendment was disallowed on the ground that it was material to allege the family custom in the suit even as originally laid and that the plaintiffs not having then alleged it ought not to be permitted to introduce this ground at a later stage. Thereupon the suit itself was disposed of and the material portion of the judgment is as follows:
I therefore order that the plaintiffs being one degree remoter to the last male holder than defendant No. 3 they have no cause of action. The suit must be, therefore, dismissed.
12. Some of the reversioners who instituted this suit instituted a second suit (the widow having as stated above died) against the alienees and the representatives of Ganga Baksh for possession of the property. One of the defence raised was that the subject-matter of the action was res judicata. The Courts in India held that the question became res judicata and the Judicial Committee upheld this view.
13. As an authority on the question involved in the present case, this decision is extremely valuable for the following reasons:
1. The plaintiffs who brought the second action were identical with some of the plaintiffs who instituted the first suit. In this respect there is substantial agreement between the facts of this case and the one decided by the Judicial Committee.
2. The first suit was instituted during the lifetime of the widow, the second after her death. In the present case also, these facts exist.
3. If the plaintiffs', at the time of the first suit, had been the presumptive, reversioners, they would have become, on the facts, upon the death of the widow, actual reversioners. In this respect also, there is no difference between the two cases.
14. Let us now see what their Lordships did. They construed the judgment in the earlier suit as amounting to a negation of the plaintiffs' reversionary rights. In the second suit they held that the question could not be again raised. I may reproduce; their own words : 'They (the plaintiffs) claimed as next heirs and their claim was dismissed. They cannot fight it over again.'
15. Their Lordships felt no difficulty by reason of the fact that the. first suit was for declaration and the second suit was for possession. Nor did they refuse to apply the principle of res judicata on the ground that whereas the earlier suit was directed against the widow, the later one was filed after her death. What is even more significant is, that notwithstanding these facts, they gave full effect to the doctrine of res judicata, holding, as they did, that the case fell within Explanation IV of Section 11, Civil Procedure Code, which runs thus:
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
16. The plaintiffs in the previous suit ought to have alleged the family custom and not having alleged it, they were precluded from relying on that ground in the second action.
17. The respondent supports his contention that the matter has not become res judicata, by relying upon the following passage in the order of the District Munsif in the previous suit, the order referred to by me, by which permission to withdraw from the suit with liberty to file a fresh suit, was refused.
After all this suit is only for a declaration and there is no hardship for the plaintiffs, if no permission to bring a fresh suit for decalration is granted, for they could after the widow's death bring a suit for possession, contesting also the present alienations.
18. I fail to see how these observations of the Munsif can prevent the rule of res judicata from applying. In Fateh Singh v. Jagannath Baksh Singh ILR (1924) A 158. already referred to, a similar contention was put forward by reason of the words ' I leave them to the liberty of filing a fresh suit for possession ' occurring in the previous judgment. But that contention was overruled by the Judicial Committee. The respondent also relies upon Singa Reddi v. Subba Reddi ILR (1915) M 987. The second suit for possession was held not barred under Order 23, Rule 1 by reason of the first suit for declaration being withdrawn without liberty. This is clearly not an authority in favour of the respondent. Order 33, Rule 1, Clause 3 says:
Where the plaintiff withdraws from a suit without the permission referred to in Sub-rule (ii), he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
19. The case referred to decided that the suit for possession cannot be considered as having been brought in respect of the same subject-matter as the earlier suit for declaration. In the present case this section is utterly inapplicable for the very simple reason that the plaintiff has not withdrawn from the suit without permission. It was open to the plaintiff to have adopted this course. But the case was allowed to be tried and judgment was delivered in due course.
20. I am clearly of the opinion that the subject-matter of the action has become res judicata and that the plaintiff's suit, therefore, fails. The second appeal is accordingly allowed and the suit is dismissed with costs throughout.
21. I must add that the appellant's vakil intimated to me that he is in a position to show that the judgment of the Lower Appellate Court cannot be sustained even in second appeal on the merits. As I have come to the conclusion that the plaintiff must fail on the ground of res, judicata I have not heard arguments on the other questions.