1. In O.S. No. 77 of 1900 on the file of the District Munsif of Kundapur, Ganapayya Urala having been defeated on a claim petition arising out of an attachment made by the present plaintiff, sued the present plaintiff to establish title to the property attached. The suit was dismissed on a finding that the conveyance on which he founded his title, a sale by the owner Shesha Navada, was fraudulent and not intended to convey any interest. The decision was affirmed on appeal. The plaintiff now sues, alleging that after the dismissal of Ganapayya Urala's suit, he brought the attached property to sale and purchased it himself and obtained possession ; but was dispossessed by the 1st defendant, who set up a mulgeni tenure under Ganapayya Urala. This suit is, therefore, for recovery of the land, and it has been dismissed on the ground that the 1st defendant is entitled to possession as mulgenidar. It is found inter alia that the first defendant has remained in possession ever since the mulgeni tenure was created, and that the plaintiff's allegation that he obtained actual possession is not true.
2. The first question for decision in the second appeal is whether the first defendant is bound by the decision in the suit of 1900, in which it was held that Ganapayya Urala had no title. If he is so bound, the plaintiff's title cannot be questioned in this suit, and, apart from any question of dispossession, the plaintiff will be entitled to succeed on his title. The question is whether the 1st defendant is a person who claims under Ganapayya Urala within the meaning of Section 13 of the Code of Civil Procedure. The ground of privity is stated by the learned author of Bigelow on Estoppel to be property and not personal relation (P. 142, Vth Edition) and this view is accepted by Mahmood J. in Sita Ram v. Amir Begam I.L.R. (1886) A. 324. The successor to or purchaser from a party becomes a privy only in respect of the interests and rights in property to which he has succeeded or which he has purchased.
3. And it is not to be supposed that the Civil Procedure Code contemplates the adjudication, between the parties to a suit, of interests or other rights, which are not theirs, and are not represented by them. Consequently, though the words 'under whom they or any of them claim' in Section 13 of the Code of the Civil Procedure are wide, there seems to be no difficulty in the way of restricting them so as to bind the party to the subsequent suit by the decision in the former suit only in respect of interests represented by the party to the former suit at the time of suit. Other interests with which he had parted before the suit and which he had ceased to represent could not properly be the subject of adjudication in the suit.
4. In an Irish case In re Burgho's Estate (1896) Ir. Rule 274 Madden J. lays down and explains the rule as follows:--'According to the clear principles of the Law of Estoppel it is necessary in order to estop the objector, to show that he derived title by act or operation of law subsequent to the recovery of the judgment. If this is shewn, it is reasonable that he should be estopped, because his estate was represented at the time of the recovery of the judgment though not in his person.'
5. The question then in each case is whether the interest in suit was represented in the former suit by the party under whom the claimant holds in the second suit, and we apprehend that, if it was so represented, it does not matter whether it rested in the privy before or after the former suit. In Sashi Bhushen Guha v. Gogan Chunder Saha I.L.R. (1895) C. 364 the learned Judges explain the law that a decision against a Hindu widow will conclude her husband's heirs on the ground that the widow represents the whole estate, and the same view is expressed byMahmood J. in Sita Ram v. Amir Begam I.L.R. (1886) A. 324 and the ground on which this question was decided in favour of the mortgagee in those two cases as well as in Bonomalee Nag v. Koylash Chunder Dey I.L.R. (1879) C. 692 is that the mortgagor after the mortgage cannot represent the estate vested in the mortgagee. The test is whether the interest is represented and if it be possible that the party represents in the suit an interest already vested in some one else, that person will be a privy. Though the rule is stated in BIGELOW on Estoppel (5th Edition, page 142) with reference to the time at which the interest becomes that of the successor of, or purchaser from, the party, it is recognized by the learned author that there may be cases to which this consideration will not apply, and these he includes in what he calls 'holding subordinately.' 'To make a man privy to an action he must have acquired an interest in the subject-matter of the action either by inheritance or succession or purchase from a party subsequently to the action, or he must hold property subordinately', and as an instance of a subordinate holding he takes the case of landlord and tenant: 'a lawful judgement,' he says, 'which deprives the landlord of the estate, deprives the tenant, of necessity, of his subordinate right.' (page 143.)
6. Thus the view of the learned author would seem to be that the landlord necessarily represents the interest of the tenant in an action so far as that interest is subordinate.
7. We do not know of any English or Indian authority in support of this view ; the rule that the interest, to be bound, must be acquired after the action, is supported by the English cases of Dod Thomas Foster v. Lord Derby (1834) I.A. & E. 509 and Mercantile Investment and General Trust Company v. River Plate Trust, Loan and Agency Company (1894) 1 Ch. 578 and many American cases are cited in support of it in the work we have quoted. In Hukum Chand on Res Judicata we find cited an American case in which it was held that a tenant of a defendant in ejectment who had acquired his lease before the commencement of the suit is not estopped as to his term by a judgment in the suit against his lessor (page 185). This seems to take a view contrary to that of Dr. Big Elow, but the case is not cited in the 5th Edition of his work nor have we been able to obtain the report of it.
8. Neither of the English cases to which we have referred relates to landlord and tenant, but in the Irish case the title of the objector, who was held not to be estopped, was derived from a lease for lives renewable for ever. This may, however, be distinguishable from the case of ordinary tenancies from year to year or for years. In the present case it is not necessary for us to decide on the soundness of the view that a tenant may be represented by his landlord in so far as his holding is subordinated. It is contended that a mulgeni holder must be treated as a tenant and be bound as such, but the mulgeni tenure is a permanent heritable tenure, alienable in some cases by the conditions of the mulgeni chit, but in all cases perpetual though subject to forfeiture in certain circumstances. The instrument in the present case is not before us, but it is not suggested that it creates anything less than an ordinary mulgeni interest.
9. The lessor has, when the interest is inalienable, a reversion or a 'possibility of reverter' and a right to an annual rent, but he cannot determine the tenancy by notice, nor will it be terminated by efflux of time. Consequently, it cannot, in our opinion, be properly said that the mulgeni is an interest subordinate to that of the lessor. It is certainly greater than that of a simple mortgagee who has not the possession and who can be redeemed at any time, after the mortgage money is due; yet if Sita Ram v. Amir Begam I.L.R. (1886) A. 324 is right, the simple mortgagee is not estopped by a decision against the mortgagor in a suit instituted after the mortgage.
10. It seems to us that the lessor having alienated in perpetuity his right to possession, and having reserved to himself only a right to receive a rent cannot be said to have represented the interest of the mulgenidar in the suit between himself and the plaintiff.
11. It follows that the lower Courts were right in holding that the defence is not barred. It is then contended that the defendant is estopped in a different way. In the former suit he was a witness for Ganapayya Urala and he did not then,or before the execution sale, bring his mulgeni interest into Court. This conduct, if it is to create an estoppel, must be found to have misled the plaintiff. He must show that he purchased the property in the belief that the defendant had abandoned his right to defend his mulgeni tenure, for there is no doubt that he knew, during the progress of the former suit, that the mulgeni was setup. The instrument was filed in the suit (Judgment Exhibit E.) There is no issue on this question, but no doubt, if it were shown that Ganapayya Urala in his suit was suing on behalf of the defendant--that the defendant was then the real plaintiff--the defendant might be bound, but we do not find that alleged anywhere.
12. We think this contention fails. Nor can the defendant rely on Section 41 of the Transfer of Property Act: that question also was not raised by the defendant before the District Munsif, and as Shesha Navada remained in possession until turned out by the 1st defendant himself, this section cannot be said to be applicable.
13. The remaining question is a question of fact. Had Ganapayya Urala any title to the land on which he gave the mulgoni The District Munsif finds that he had, and if paragraph 5 of the Subordinate Judge's judgment can be read as a finding on this question, he must be taken to be of the same opinion. It does not, however, follow from the fact that Shesha Navada was not pressed by creditors, that he intended to sell all his property to his brother-in-law for Rs. 1,000. In the former suit there seems to have been evidence that the conveyance was put in Ganapayya's name to deter others from lending, and that this was done at the instance of Shesha Navada's family. That evidence is not evidence in this case, but we mention it to shew that the object of a sham conveyance is not necessarily confined to the provision of a shield against present creditors.
14. We cannot, therefore, accept paragraph 5 of the Subordinate Judge's judgment as a finding that Ganapaya had title in June 1899, and we must call upon the District Judge of South Canara for a finding on the Ist of the issues settled by the District Munsif in the light of the above observations.
15. The finding should be submitted in six weeks and seven days will be allowed for filing objections.
16. In compliance with the above order the District Judge submitted the findings which were accepted and the second appeal was dismissed with costs.