Abdur Rahim, C.J.
1. IN the suit in which the appeal has arisen the plaintiffs-respondents, who are the reversioners to the estate of one Gopalakrishnamma, seek for a declaration that the adoption of the 2nd defendant made by the 1st defendant, the widow of Gopalakrishnamma, on the 29th January 1917 is invalid inasmuch as it was not, authorized by the 1st defendant's deceased husband and was not made by the consent of his kinmen. The question for decision on which the learned Chief Justice and Mr. Justice Napier differed in the appeal from the judgment of the Court of 1st instance is whether the suit is barred by res judicata by virtue of the decision in a previous suit (Original Suit No. 20 of 1900, in the Ganjam District Court). In the latter suit, the present first plaintiff and some other reversioners bad asked for a declaration that a Will dated 2nd December 1897, propounded as being the last Will and testament of the above mentioned Gopalakrishnamma, was a forged and 'false document. The learned Chief Justice field against the plea of res judicata while Mr. Justice Napier was of a contrary opinion. By the plaint in the suit of 1900 all that was asked for was a declaration that the alleged Will was not genuine. It did not contain any alternative prayer that even if the document was found to be genuine, the Court should hold that it was not a Will, but an authority to adopt and as such invalid for non-registration. The issue framed was also confined, as we gather from the judgment of the District Judge in that suit, to the question of the genuineness of the document. But it is clear that at a later stage of the trial the other question of the construction and operation of the document was allowed to be raised and was determined by the learned Judge. He says in the last paragraph of the judgment: 'The Will is a Will as it stated he wishes to record his intentions as to disposal of his property and, therefore,' be gives authority to defendant to adopt a son who shall inherit it. As a Will it nerd reither be stamped nor registered, and it is not a mere authority to adopt as the plaintiffs' Vakil contends.' The plaintiffs appealed from that judgment to the High Court and not only contested the findings of the District Judge on the question of the genuineness of the alleged Will, but also challenged his conclusion on the question of construction and validity of the document. No lees than two or three of the grounds of appeal were prominently directed to the latter question. The High Court dismissed the appeal in the following words: 'The finding of the District Judge that the Will is a genuine is fully supported by the evidence, and the suit being one for a declaration that it is a forgery, it was rightly dismissed.' It is clear that the High Court only decided the question as to the genuineness of the document and refused to decide the other question dealt with by the lower Court, namely, whether the document was a Will and if not, whether it was invalid as an authority to adopt inasmuch as it was not registered. We must treat the judgment of the High Court as the final decision in the suit. It is difficult to see how it can be said that any bar is orated by Section 11 of the Civil Procedure Code in this case, since the Court of Appeal never decided the present issue. Section 11 says: 'No Court shall try any suit or issue which has been directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.' To my mind, it is a sufficient answer to the plea of res judicata to point out that the Court of Appeal chose not to decide the present question though expressly asked to do so. It is true that there was no prayer in the plaint in the previous suit for a declaration that the document was inoperative as authority to adopt, but the question was allowed to be raised before the trial Court; the Court gave a decision upon it and the plaintiffs challenged that decision before the Court of Appeal. It does not seem to me, therefore, that this is a case under Explanation 4 of Section 11, which says 'any matter which might and ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit.' Our Rules of procedure provide for issues being raised for trial upon statements of parties and their Pleaders though not contained in the pleadings, and the plaintiffs in the suit of 1S0O were allowed by the trial Court to raise this very question and they raised the question again in appeal. There was, therefore, no omission to which Explanation 4 would have application.
2. No reason is expressly stated in the judgment of the High Court in the former suit for its not deciding the question o f the validity of the authority to adopt and one can only make conjectures on the point. The learned Judges probably thought it was not nec3ssary to express any decision on that question as no adoption had been purported to be made, nor was it alleged that the widow was about to act on that authority. If that was the reason which actuated the learned Judges in confining themselves to the question of the genuineness of the document, I think it would be right to impute to them an intention that they wanted to leave the ether question open for future litigation in case any necessity arose, and not that they wanted to conclude that question against the respondent while refraining from giving a declaration upon it although asked to do so.
3. The ruling of the Privy Council in Sheosagar Singh v. Sitaram Singh 1 C.W.N. 297. lays down the principle, which, in my opinion, covers this case. Lord Maonaghten says, 'To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the l3t suit, the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that in a suit constituted as the suit of 1835 was, no decision ought to have been pronounced on the merits.' That judgment is cited with approval 'by the Privy Council in a later decision of theirs in Abdullah Ashgar Ali Khan v Ganesh Dass 42 Ind. Cas 959 : 44 I.A. 213 (P.C.), In Parsotam Gir v. Sarboda Gir 21 A. 503 the Judicial Committee observed as follows: 'The conditions for the exclusion of jurisdiction on the grounds of res judicata are, as Wallis, J., says, that the same identical matters shall have come in question already in a Court of competent jurisdiction, that the matter shall have been controverter and that it shall have been finally decided. That is just what Section 13 requires; there must be a final decision. ' The plaintiffs, or rather the persons whose interest they represent, sought a decision in their favour on two questions on the merits. The Court of Appeal decided against them on one question and refused to decide the other question apparently because they thought it unnecessary to do so in that suit. I am of opinion that, under the circumstances, the plea of res judicata fails and the appeal should be dismissed with costs.
4. I should, as a rule, be unwilling to reject a plea of res judicata with reference to what is implied but not expressed in the judgment relied on. But we are, I think, justified in this case in deducing from the course of argument in the previous proceedings and the appeal grounds that the construction and validity of the document of '2nd December 1897 was in controversy as well as its genuineness and that all probability is in favour of what the language used in this Court's decision in some degree suggests, that an adjudication on the former was refused. The matter having been merely heard and not decided, I agree that there is no res judicata and concur in the judgment just delivered.
Shshagiri Aiyyer, J.
5. I also agree. The previous suit, which was instituted by the reversioners among whom the present 1st plaintiff was one, was avowedly brought for a declaration that the Will alleged to have been executed by one Venkafagopalakrishna, the husband of the first defendant, was not genuine. We have not got the issue paper before us. It is clear from the judgment in that case that before the trial Court, the only issue related to the genuineness of the Will. It is equally clear from it that the question regarding its admissibility and effect was argued before the District Judge. He has devoted a paragraph for the consideration of this latter point and was of opinion that the document did not require registration for its validity. In appeal from that judgment to the High Court, specific grounds were taken against the conclusion of the District Judge re the genuineness of the Will and its validity. There were as many as three grounds regarding the latter point. The learned Judges of this Court in a short judgment say, 'the finding of the Judge that the Will is genuine is fully supported by the evidence and that the suit being one for declaration that it was a forgery, it was rightly dismissed.'
6. My reading of this judgment is that the learned Judges deliberately refused t9 decide the question of the validity of the Will. It was suggested that this refusal might have been due to a disinclination to consider a question which was not put in issue. I do not think that this contention is well founded. No facts were necessary for pronouncement on the legal effect of the document. The District Judge, been expressed an opinion on it and the attention of the learned Judges was pointedly drawn to his conclusion. It is likely that the learned Judges did not consider that, at the stage in which the litigation came up before them, it was necessary to decide the question, I am strengthened in this opinion by the fact that the very comprehensive; character which the Privy Council have; given to suits by reversioners was not settled: when the judgment of the High Court in the previous suit was pronounced. It may, be that the learned Judges thought that this question of the effect of the document should be litigated by a person who will have a right to immediate possession on the death of the widow and should not speculatively be pressed for decision by persons whose interest was contingent. There is also another consideration which leads to the same result. Until very recently, this Court, at any rate, was not dear that a suit like the previous suit was maintainable under Section 42 of the Specific Relief Act 1 of 1877. Sreepada Venkataramana v. Sreepada Ramalakshmamma 12 Ind. Cas. 176 may be quoted as indicating that in the view of some of the Judges such a suit would be incompetent. In these circumstances it is not improbable that the learned Judges did not desire to commit themselves, to a view on a question which, properly speaking, ought to be litigated by a person; who had a more immediate interest and in a litigation of a more durable nature.
7. For all these reasons, my view is that the learned Judges advisedly refused to decide the question relating to the validity of the Will. In this view it seems to me that there is no scope for the applicability of Section 11, Explanation 4, of the Civil Procedure Code. The matter was made the ground of attack in the trial Court and was raised in the Appellate Court, Therefore, there is no ground for the applicability of. the doctrine of constructive res judicata enunciated in Explanation 4. Nor has Explanation 5 any bearing on this question. There is no question of a relief claimed not being granted. A mere ground of attack relating to the main relief should not be regarded as a separate relief, and the refusal to entertain a ground which related to the relief which was adjudicated upon by the judgment cannot be regarded as a refusal of relief. Therefore, the son-structive res judicata referred to in Explanation 5 has also no application to the present ease. We must consequently fall back upon the operative portion of Section 11.
8. Under it the party who seeks the aid of the Court on the ground of res judicata should show that the issue in question has been heard and finally decided. It was undoubtedly heard in the first Court and decided; but in consequence of the appeal, there was no finality to that decision. This was clearly laid down, if authority were needed for the proposition, in Sheosagar Singh v. Sitaram Singh 1 C.W.N. 297 and in Abdullah Ashgar Ali Khan v. Ganesh Dass 128 P.W.R. 1917, In both these decision', the Judical Committee pointed out that, where there is an appeal, the finality of the conclusion of the lower Court disappears.
9. The result is that we have to examine the judgment of the Appellate Court to see whether there has been a final decision and a bearing. It may be that there was a hearing; but undoubtedly there was no decision and much less a final decision. The two decisions, I have referred to, have aha held that, where a competence Court refuses to decide an issue, that issue is not res judicata in a subsequent litigation. What happened in the High Court may be looked at from two standpoints. One i3 what I have already referred to, namely, the disinclination of the Judges to embark upon an enquiry which may prove to be unnecessary and fruitless ; the other that they deliberately reserved the determination of the question for a future occasion. In either view, there can be no res judicata. Parsotam Gir v. Narbada Gir 1 Bom. L.R. 700, a judgment of the Judicial Committee, would cover oases of the second class. The other two oases of the same tribunal will cover the 1st class of oases. I do not think it is necessary to examine the other oases quoted before UP, but it is necessary to say a word about Vinayak v. Dattatraya 4 Bom. L.R. 492. That case had special reference to mortgage transactions and the learned Judges, of whom fair Lawrence Jenkins was one, laid emphasis on the fact that in a mortgage decree every question relating to the rights of parties should be settled on the taking of accounts and they followed certain English decisions. Apart from the question whether after the pronouncement of the Judicial Committee in Gokul Mandar v. Pudmanund Singh 29 C. 707 (P.C.) it is open to us to refer to English authorities on the qu9stion of res judicata it seems to me that the Bombay decision does not affect the present question. I am of opinion that the view taken by the learned Chief Justice is right and that this appeal should be dismissed with costs.