1. This appeal arises out of a suit by a reversioner to recover certain properties of a deceased person named Punnayya. Defendants 1 and 2 claim to be nearer heirs than the plaintiff. The plaintiff is the son of one Pakeerayya. His present suit is based on the ground that his father who survived the deceased was a nearer heir than the defendants and after the property vested in Pakeerayya he succeeded to his right. The learned Subordinate Judge found in favour of the plaintiff and gave a decree. The defendants appeal.
2. The first question argued in appeal is the question of res judicata. Immediately after the death of Punnayya there was a suit by the present defendants to recover the property in which the defendant was the present plaintiff. But the father of the present plaintiff was not a party to the suit. In that suit the defendant, that is, the present plaintiff pleaded his own title and did not rely upon any title of Pakeerayya because he could not, as Pakeerayya was then living. He merely put forward the title of Pakeerayya as jus tertii. As the plea was found against him, the plaintiffs in that case were given a decree. On appeal an attempt to file some documents and prove the title of Pakeerayya was disallowed. So far as the former litigation is concerned, all we have is that the defendant in the case raised a plea of jus tertii. It cannot be said for the purpose of Section 11 that the decision on a plea of jus tertii is a decision between the parties litigating under the same title when the jus tertii is put forward and actually relied on in a later case by the third person. All that can be said is that, in the former suit, it was raised as a defence. It cannot be said that the defendant was actually relying upon that title or litigating under it. Now the present plaintiff who claims as the heir of Pakeerayya litigates under it. Mr. Somayya who appears for the appellants concedes that the judgment in the former suit does not bind Pakeerayya himself, or his assignees, or his heirs. It is merely an accident in the case that the heir of Pakeerayya happens to be the very person who put forward the plea of Jus tertii. That is only an accidental circumstance. It might happen to be a different person. It is therefore clear that there is no res judicata by reason of the judgment in the former litigation.
3. The second point argued is the question on the merits, namely, as to who is the nearer heir.
4. On the 2nd question argued as to who is the nearer heir, his Lordship after discussing the evidence proceeded as follows.
5. The result is that the plaintiff's case is made out and the decree of the lower court is right.
6. One question of law was raised by the learned vakil for the appellants. He refers to Kedarnath Doss v. Protab Chunder Doss ILR (1881)C 626 and says that the name of the commen ancestor is not proved. On the face of Ex. A it is true that we do not know the name of the common ancestor and we start with three cousins as ancestors. It is said that without the name of the common ancestor a pedigree cannot be proved. In Kedarnath Doss v. Protab Chunder Doss ILR (1881) C 626, Sir Richard Garth, C.J., says:
I believe that the rule of evidence there in cases like the present is correctly laid down in the last edition of Roscoe's Nisi Prius Evidence, page 1010, that where the plaintiff claims as a collateral heir, he is bound to allege and prove his title through the common ancestor in all its stages; and one most important stage is of course the common ancestor himself,
and the other Judge, Pontifex, J., does not say anything on this matter. He simply says:
The plaint ought to have stated the descent from a common ancestor, and the evidence ought to have supported such statement.
But even the Chief justice's judgment merely says that the allegation in the evidence of a person claiming as heir must show all the stages of a relationship from the common ancestor. To this proposition nobody objects. When a person claims to be a 'gnati' of the 4th or 5th degree, it is not sufficient if all that appears in the case is that he may be a cousin of the 10th or 12th degree. What he claims must be alleged and proved. It does not mean that if the name of the common ancestor is not known, it must be held that the relationship is not proved. It does not mean that if two people have been proved to be brothers, their descendants are not related to one another merely because the name of the father of the two brothers is not-known. No doubt, if a witness comes and swears that He knows the names of the two brothers, but he is not able to give the name of their father, it may be a circumstance to be taken into consideration in deciding whether the witness should be believed or not. The fact that a witness is unable to give the name of the common ancestor may be a cogent reason why he should be disbelieved. But if we are otherwise clear that two people are grandsons of brothers, the mere fact that the name of the common ancestor is not known cannot be made a reason for holding that the relationship is not proved at all. There can be no such legal proposition. We do not think that the learned Chief Justice meant to say any such thing or lay down any such proposition. Anyhow the authority relied on by the Chief Justice does not support this proposition. In the 18th Edition of Roscoe's Nisi Prius Evidence, published in 1907, the passage is at page 1038 and runs thus:
If the plaintiff claims as collateral heir, he must prove the descent of himself and the person last seized from a common ancestor; or at least from two brothers or sisters [Roe d. Thome v. Lord (1776) 2 Bl. W. 1099 : 96 E. R. 649.]
This passage merely shows that there must be at least two brothers or sisters. Looking at the case itself, which is reported in Roe on the demise of Thorne v. Lord and Ors. (1776) 2 Bl. W. 1099 : 96 E.R. 649, all that we have got is this:
The court took time to consider till this present term, when not being able to agree in opinion concerning the necessity that a person claiming to be heir shall state in evidence a pedigree, either proving the deceased and the claimant to be descended from some common ancestor, or at least from two brothers, or sisters, (which was allowed to be an immediate descent), or whether vague evidence of heirship, without such deduction, is proper to be left to a jury....
7. The contrast is between definite evidence of common ancestry or brothers' ancestry as against vague evidence of common ancestry. Of course vague evidence will not prove definite pedigree or descent. Definite descent from brothers is certainly common ancestry. There can be no legal proposition that, because the name of the common ancestor is not known, the relationship cannot be held to be proved. Kedarnath Doss v. Protab Chunder Doss ILR (1881)C 626 cannot be regarded as an authority for such a proposition, as is sometimes supposed. In this case there is a clear statement by the defendants' ancestors that Madiraju, Narayanappa and Lingaraju were grandsons of brothers. At that time there was no motive for making an inaccurate statement and the pedigree was not in dispute.
8. Acting on Ex. A-1, I accept the conclusion of the learned Subordinate Judge and dismiss this appeal with costs.
Kumaraswami Sastri, J.
9. I entirely agree.