1. The parties to this appeal1 are Indian Christians. The appellant is the eldest sister of the two respondents. Their father died in 1895 and their mother in 1906 and they were left two houses one of which was subsequently let out to tenants. The suit out of which this appeal arises was filed by respondent 1 in the City Civil Court for partition of the estate and she obtained a decree. Her brother, respondent 2, took no part in it and ha& taken no part in the appeal. The contest has been throughout between respondent 1 and the appellant. The appellant challenges the decision of the trial Court on grounds to which we shall shortly refer. Respondent 1's case was that in 1920 an agreement took place between the parties under which they were to enjoy the rents and profits of these houses in common. This followed a suit by the appellant in the City Civil Court for a partition of the estate. She obtained a decree awarding her a one-third share in the property and directing that it be divided between her and her brother and sister. It is common ground that no steps were ever taken to execute this decree, the reason being, according to respondent 1, the agreement to enjoy the properties equally. Thereafter she and the appellant lived amicably together until 1932 when the appellant complained that she had been forcibly dispossessed of the house which was led out to tenants and instituted criminal and civil proceedings against the husband and son of respondent 1. Up to then, respondent 1 and the appellant had been living amicably together but as the result of these legal proceedings it was no longer possible for them to continue to live together and therefore respondent 1 was forced to ask for a partition of the estate in order that she might enjoy her own share.
2. The defence was that respondent 1 and the appellant never lived together and that there had been no joint enjoyment of the property. The appellant claims that after the partition suit she was allowed by respondent 1 to collect the rents and enjoy the income herself. She alleges that she had given cash, jewellery, and other moveable property to respondent 1 and it was in consequence of this that respondent 1 had allowed her to remain in conclusive and adverse enjoyment and possession of the said properties in her own right and collect the rents thereof and appropriate the same to her own use.
3. It was also pleaded by the appellant that respondent 1's suit was barred by reason of the doctrine of res judicata. This argument was based on the decisions in the partition suit of 1919 and in Suit No. 465 of 1932 of this Court in which the appellant had sought a decree Under Section 9, Specific Belief Act, and had succeeded. The learned trial Judge held that respondent 1 and her husband were not in such affluent circumstances that they could afford to let She appellant take the income of the pro-parties for herself and he disbelieved the appellant's version. He also held that there had been no exclusive or adverse possession by the appellant and that the suit was not barred by the doctrine of res judicata. With regard to the suit of 1919, the parties had agreed not to take any advantage of the decree which had been passed therein and had continued to be in joint possession of the properties; in other words, they treated the decree as if it was not in existence. In these circumstances we agree that the decision cannot support the plea of res judicata. With regard to the second suit, that is the suit Under Section 9, Sipecific Reliefe Act, the learned Judge held that a suit of that nature could not give rise to a plea of res judicata in a suit like the present, and we share his opinion. We will return to this question of res judicata in a moment.
4. We also consider that the learned Judge has taken the correct view of the evidence. Hi is impossible to hold in view of the pleadings and the evidence on record that respondent 1 and her brother ever agreed to allow the appellant to enjoy the whole of the income of the family property for the rust of her lifetime. It is true that she is the elder sister and that she is a spinster. But the agreement on which she relies was arrived at, according to her in 1920, when there was a prospect of her living for many years. Respondent 1 was not in affluent circumstances. She had four children of her own, and according to the appellant's own evidence, she was in need from time to time of financial assistance. Therefore it is very unlikely that she would ever agree to give up for many years all interest in her patrimony. With regard to the plea of res judicata it is perfectly true that the parties had agreed not to take any action on the partition decree obtained by the appellant in 1919. It would appear that the reason for that suit being filed was the fact that respondent 2 was interfering in the collection of rents ; but in 1920 ha received an appointment in Delhi and has lived there ever since. His transfer to Delhi removed the cause of friction and the two sisters settled down to enjoy the property as they had been enjoying it before the partition suit was filed by the appellant. In these circumstances, the suit of 1919 could not operate as res judicata. The suit Under Section 9, Specific Relief Act, was brought forward to put the appellant back in possession of property which she said she was in possession of on 1st July 1932. The learned Judge who tried the case came to the conclusion that she had established that she was in possession of the house on that day. The fact that evidence with regard to what had transpired years before 1932 appears on the record and is discussed by the learned Judge does not mean that ha decided anything more than that the appellant was dispossessed on the date mentioned. The suit operated as res judicata to that extant and to that extent only.
5. An attempt has been made to support the contention that there was consideration given by the appellant for bar exclusive enjoyment of the family properly. It is said that she gave her sister moneys, jewelleries and other property and that as the result of this her sister subsequently agreed to the appellant enjoying the rents exclusively. There is here no consideration for the agreement sat up by the appellant and the plea is obviously an afterthought. The appeal therefore fails and must be dismissed with costs.