1. The plaintiffs in the suit out of which this appeal has arisen prayed for possession of the properties described in three different schedules of the plaint filed by them in Court on declaration of their title, as the reversionary heirs of one Jugalkishore Datta, of which the contesting defendants were in possession on the allegation that the defendants were in possession by virtue of sales which were inoperative and which did not in any way affect the rights of the plaintiffs as reversioners. The plaintiffs also prayed for a decree for mesne profits arising out of the properties of which the defendants were in unlawful possession. Without traversing the long history of devolution of interest as set out in the plaint, it is sufficient to state that the sales impeached by the plaintiffs in the suit were effected by Golakeshwari, a daughter of Jugalkishore Datta named above, who was admittedly the last male owner of the properties in question, and Kunjakishore, the son of Golakeshwari, the then reversionary heir of Jugalkishore, as also a sale by Tarini Dasee, the widow of Jugalkishore. The first of these two sales related to the properties described in Schs. 1 and 2 of the plaint, while the second sale by Tarini Dasee was in respect of the properties mentioned in Sch.3 of the plaint. The sales, according to the plaintiffs, did not represent bona fide transactions, were alleged to be without consideration, and it was asserted that the Hindu widows by whom the sales were effected, who were limited owners under the law, had no legal necessity for the sales, and that the estates in the possession of these limited owners were not benefited by the sales.
2. The claim made by the plaintiffs in the suit was resisted by the contesting defendants. The allegations made by the plaintiffs as to the nature of the transactions evidenced by the sales were denied: it was pleaded that the questions raised in the suit by the plaintiffs could not be reinstated, in view of the decision in a previous litigation in which the parties litigating in the present suit were represented. The defendants further pleaded that the sales represented bona fide transaction for good consideration, and there was legal necessity for them, so as to make the sales binding on the reversionary heirs of Jugalkishore Datta, the plaintiff in the suit. It may be mentioned that, so far as the properties described in plot 3, Sch. 3 of the plaint were concerned, the controversy between the parties related to a question of title of the plaintiffs in the same, depending upon the admission of a heba, and not merely on the question whether there was legal necessity for the sale of the properties, as it was the case in regard to the properties mentioned in Schs. 1 and 2 of the plaint. Apparently there was no contest between the parties in regard to plots 2 and 3, Sch. 3.
3. The material issues raised for trial in the suit were whether the sale deed, under which the answering defendants claim title to the lands in suit, confer any absolute interest in the purchaser, whether the sale of the year 1299 B.S. was for legal necessity, and, as such, binding on the reversioner, and whether the plaintiffs had 'any right to and interest in the lands in suit.' The trial Court gave its decision in favour of the plaintiffs, holding that the sale deed of 1299 B.S. was not for legal necessity and did not confer absolute interest, and that the plaintiffs had their right, title and interest in the lands in the suit. Apparently no distinction was made by the learned Subordinate Judge in the Court of first instance, as between the properties mentioned in the different schedules to which reference has been made already. On appeal by the defendants, the decision of the trial Court was affirmed by the learned District Judge, with the modification that the claim of plaintiffs 2, 3 and 5 was dismissed as regards a ten annas share of plot 3, Sch. 3 of the plaint, Defendant 1 in the suit has appealed to this Court, and the plaintiffs-respondents have preferred cross-objection directed against the decision of the Court of appeal below dismissing the claim of plaintiffs 2, 3 and 5 to a ten annas share for the property described as plot 3, Sch. 3.
4. The question of the applicability of the rule of res judicata arises for consideration first, so far as the case of the appellants before the Court is concerned. Brajanath Sharma, predecessor of defendants 1 and 2, and Hridaynath Sharma, predecessor of defendant 3, instituted Suit No. 44 of 1907, in the first Court of the Subordinate Judge, Sylhet, against Golakeshwari, the sons of Kunjakishore (the son of Golakeshwari) the plaintiffs in the present suit, and other persons, for recovery of possession of the lands in suit on declaration of their title, on the allegation that they acquired title thereto by purchase from defendant 1 and the father of defendants 2 and 3 by a kabala executed in the year 1299 B.S., that they let out the lands to the father of defendants 2 and 3 on obtaining kabuliyats from him; that on the expiry of the leases the plaintiffs attempted to obtain khas possession of the lands in suit, but they were opposed by the defendants, and that the plaintiffs were kept out of possession. Golakeshwari, defendant 1 in the suit of 1907, did not contest the suit. Defendants 4 to 8, the plaintiffs in the present suit, contested the suit on the ground that the plaintiffs had no cause of action, that the suit was barred by limitation, and that it was bad for multifariousness and defect of party.
5. On the merits, these defendants contended that plots 6 and 10 in suit appertained to taluk No. 39, two-thirds of plots 3 and 14 and half of plot 9 belonged to them, and that the remaining shares of the said three plots belonged to defendant 1 in the suit. It is to be noticed that the judgment only in the Suit No. 44 of 1907 was filed in the present case, and no other materials on which the plea of res judicata could be founded was before the Court. It appears from the judgment in the previous litigation that an issue was raised as to whether the kabala set up by the plaintiffs was a bona fide transaction; and the finding recorded by the Court on that issue was that the kabala was executed by defendant 1 and father of defendants 2 and 3, and that 'it was a bona fide true deed.' There was an ex parte decree passed against defendants 1, 2 and 3, amongst others, and the plaintiffs' claim to plot 6, 10, two-thirds of plots 3 and 1 and half of plot 9 was dismissed, defendants 4 to 8, the plaintiffs in the present suit, were to bear their own costs. It is difficult to make out, from the judgment in Suit No. 44 of 1907, the exact position taken up by the parties then before the Court, in the absence of the pleadings; and it is impossible to say in what precise manner the question of the bona fides of the kabala of 1299 B.S. was raised before the Court.
6. It does not appear that the question, whether Golakeshwari had any legal necessity for executing the kabala, was raised in the Suit No. 44 of 1907. The arguments in support of the appeal, so far as they relate to the plea of res judicata, are that the decision of the suit in Suit No. 44 of 1907, on the question of bona fide of the kabala of 1299 B.S., on which the defendants' case in the present litigation is based, has to be treated as conclusive between the plaintiffs and the defendants: and the question of legal necessity as raised in the present case could not be allowed to be agitated again; further that, even if it be considered that the question of legal necessity was not raised in the previous litigation by defendants 4 to 8, the plaintiffs in the present litigation, the question was one which might and ought to have been made a ground of defence, as contemplated by Expl. 4, Section 11, Civil P.C., and as such should be deemed to have been a matter directly and substantially in issue in the previous litigation, so as to invoke the principles of res judicata in aid of the defendants in the present case.
7. In support of the latter argument, reliance was placed on behalf of the appellant on the decision of this Court in the case of Shyama Charan Banerjee v. Mrinmayi Debi (1902) 31 Cal 79, in which case a previous suit brought by the defendant's husband against the plaintiff for declaration of title to the property in suit was not defended, and an ex parte decree was passed in a subsequent suit by the plaintiff to have his title to the property declared, to have the sale to the defendant's husband set aside, as having been made without legal necessity, and to recover possession; the defence was that the suit was barred by the operation of the rule of res judicata; and it was held that the question of validity of the sale to the defendant's husband ought to have been raised by way of defence to the previous suit, and it was therefore to be treated as having been directly and substantially in issue in that suit, and was consequently res judicata. It may be mentioned here that the importance the learned District Judge in the Court below has attached to the fact that the decree in Suit No. 44 of 1907 was passed against Golakeshwari ex parte, without any contest on her part, does not commend itself to us.
8. The decree which was passed ex parte against the holder of a woman's estate under the Hindu law, may be binding on the reversioner, unless the decree could be impeached on some special ground unless it could be shown that it was not obtained fairly and properly. The decree in the previous litigation against Golakeshwari has not been proved to be one unfairly or improperly obtained. The question however remained whether the decree against Golakeshwari passed ex parte incorporated a decision on the question of legal necessity as raised by the plaintiffs in the present litigation. We have no means of ascertaining what the exact significance of impeaching the sale of 1299 B.S. by Golakeshwari on the ground of bona fides as mentioned in the judgment in Suit No. 44 of 1907 was: and we are unable to hold on the materials before us that the plea of res judicata arising for consideration in this case could be substantiated and has been substantiated in any way, by the defendants, on the ground that there was an express decision in the previous litigation bearing upon the question of legal necessity for the sale of 1299 B.S. It is not possible for us to say that the conclusion arrived at by the Court in the suit of 1907 that the kabala of 1299 was a 'bona fide true 'deed,' was sufficient for the purpose of disposing of the question of legal necessity raised by the parties in the present litigation. The application of what is sometimes called 'constructive' res judicata founded upon Expl. 4, Section 11, Civil P. C, has to be taken into consideration next. A matter directly and substantially in issue may be in issue constructively. The question whether a matter ought to have been made a ground of defence must depend on the particular facts of each case. As a rule of general application, it may be said that if the introduction of a matter into a suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it must be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that suit and the subsequent suit are so dissimilar that their union might lead to confusion: sea Kameswar Pershad v. Rattan Koer (1892) 20 Cal 79. Judged in the light of the above principles the previous suit of 1907, to which Golakeshwari was a party, and to which the sons of Kunjabihari were also parties, could not be held to be one in which it was incumbent upon defendants 4 to 8 in that suit the plaintiffs in the present litigation, to raise the question of legal necessity as they have done in this case.
9. The suit of 1907 was one for possession on the expiry of a lease; Golakeshwari had no valid defence to the suit, and she did not contest the same; defendants 4 to 8, the plaintiffs in the present suit, had no present right in them to claim possession in derogation of the rights of the plaintiffs in that suit conferred on them by Golakeshwari as the holder of a woman's estate during her lifetime, and the introduction of the question of legal necessity was not necessary in the previous suit, regard being had to its scope, for a complete and final decision of the same, plaintiffs seeking to recover possession on the expiry of a lease. It cannot therefore be said that the principle on which the decision of this Court in Shyama Charan Banerji's case (1902) 31 Cal 79, on which the appellant before us seeks to rely, has any application to the case before us. In the circumstances of the case before us, we have no hesitation in holding that the decision in Suit No. 44 of 1907 in the lifetime of Golakeshwari did not operate as res judicata in the defendants' favour. As has been observed by their Lordships of the Judicial Committee of the Privy Council in the case of Deputy Commissioner, Kheri v. Khanjan Singh (1907) 29 All 331, no question as to the effect of the widow's conveyance on the reversion could have been raised in the previous suit. The introduction of any question as to the effect of the conveyance of 1299 upon the reversion, would have been, to use the words Sir Arthur Wilson in the case mentioned above, incongruous to the matter of the suit of 1907. In our judgment therefore the arguments advanced in support of the appeal, bearing on the question of res judicata, cannot upon principle and authority be accepted as sound, and given effect to. The question of legal necessity might perhaps have been raised in the previous litigation of 1907, but it could not possibly be said that it ought to have been raised as a defence to the same.
10. The plea of res judicata not being sustainable as a defence in the suit, the merits of the case have now to be considered. In regard to the properties mentioned in Schs. 1 and 2, the decision of the Courts below turned entirely upon the conclusions arrived at by them as to whether there was legal necessity for the sale evidenced by the kabala of 1299 B.S., Ex. F in the case, on which the title of the defendants was based. The kabala recited that, at the time when the document was executed Golakeshwari and Kunjakishore had no means of paying their debts or maintaining themselves, and that they owed the sum of Rs, 730 to the purchaser on bonds, the sum of Rs. 250 without bonds, and the sum of Rs. 20 was paid to Golakeshwari and Kunjakishore in cash. On the face of the conveyance, it was apparent that the property covered by the document was sold by Golakeshwari with the consent of Kunjakishore, who was the only immediate reversioner at the time. There can be no doubt that the widow alone was entitled to absolutely alienate property for necessity, and the reversioner in the position of the plaintiffs in the present suit_cannot_recover property sold for legal necessity, even by offering to pay to the purchaser the amount raised. What is taken to be legal necessity justifying alienation by the holder of a woman's estate may be enumerated under these heads: debts of the last male owner; his exequial rites; religious or charitable purposes: maintenance charges for the family; marriage expenses; preservation of the estate; and costs of litigation.
11. For our present purpose, it may be mentioned that, so far as Golakeshwari was concerned, the alienation by her purported to have been for the purpose of maintenance of the family and for expenses in connexion with the preservation of the estate, and for payment of debts incurred by her for those purposes. It is well established that onus lies on him who wants to take benefits under a transaction by a limited owner, to prove justifying necessity. The question was: Did the purchaser act honestly and had he made due inquiry as to the existence of necessity. It was incumbent upon the alienee to prove the same: even when an alienation may be partially justifiable or a portion of the consideration may be valid, the whole alienation has to be set aside: see Sham Sundar Lal v. Achhan Kunwar (1893) 21 All 71 and Deputy Commissioner, Kheri v. Khanjan Singh (1907) 29 All 331. The recitals in the document evidencing alienation may raise a presumption, and sometimes a very strong presumption of necessity in favour of a purchaser in the circumstances of a particular case specially when evidence of a transaction is not available. As a general rule however the recital in the deed by which the property is alienated by a limited owner cannot be relied upon solely for the purpose of proving existence of necessity, though it may be of some evidence. It may be an admission, and it may amount to a representation of necessity, in cases where a transaction, perfectly honest and legitimate when it took place, would ultimately be incapable of justification, merely owing to the passage of time see Banga Chandra Dhur v. Jagat Kishore AIR 1916 PC 110. In the case before us, evidence was forthcoming as to the nature of the alienation in 1299 B.S. by Golakeshwari, and the recitals therefore contained in the kabala, rightly characterised by the learned Judge in the Court below as vague, are by themselves of no real assistance to the defendants in the suit. It may also be noticed in this connexion that the learned Judge in the Court below directed himself rightly in stating that the onus was on the defendants to prove legal necessity although it appears to be clear that the plaintiffs themselves had brought, ample evidence in support of their case before the Court, that there was no legal necessity for the alienation upon which the defendants rested their title and claim to possession of the properties in suit.
12. It is further to be observed that the question of onus was not one of substance, and was not pertinent when the trial Court had taken all the evidence: when all the relevant evidence was before the Court below, and all that remained was decision as to what conclusion was to be drawn from the evidence. When the entire evidence is once before the Court, the debate as to onus of proof is purely academical, and this is more so, at the appellate stage. On the entire evidence, the Courts below have concurrently held, taking into their consideration the whole history of the transaction evidenced by the kabala of 1299 B.S., that the recitals in the document did not contain a true and sufficient representation of legal necessity, that the vendee himself was acquainted with all the facts and circumstances leading up to the conveyance by Golakeshwari. It has been found as a fact that Jugalkishore left considerable property; and that it was not necessary to incur any debt for the maintenance of the family or for other legitimate purposes. The income of the estate left by Jugalkishore was quite sufficient for the purpose of maintaining Golakeshwari and the other members of the family, even if the gharjamai Ramakanta was considered to be a dependent member of the family even before his marriage to Golakeshwari. The debts incurred, which lead up to the kabala of 1299 B.S., have been considered by the Courts below in great detail; and they have concurrently found that there was no such debt or pressure on the estate as could justify an alienation by Golakeshwari.
13. According to the Court of appeal below, it was clear that the plaintiffs had shown that the property left by Jugalkishora yielded a sufficient income to maintain Golakeshwari and the other persons whom Jugalkishore was legally bound to maintain and there was no necessity for incurring any debt so far as Jugalkishore's estate was concerned and for the alienation of the property in 1299 B.S. These are findings of fact binding on this Court in second appeal, and must conclude the case for the defendants, so far as it is based on the assertion by them that the transfer on which their claim rests in regard to properties mentioned in Schs. 1 and 2 was for legal necessity. The case for the defendants, upon the findings arrived at by the Courts below, must be taken to have been disproved or, strictly speaking, not established by them. In addition to that, the Court of appeal below has come to the definite finding that the consideration for the kabala of 1299 B.S. was very inadequate. The question of title to the properties mentioned in plot 3, Sch. 3 of the plaint remains to be considered. In our judgment, the statements contained in the kabalas Exs. A (1) and B in the case as to a heba cannot bind the plaintiffs 2, 3 and 15; and the admission as to a heba cannot operate against these three plaintiffs for the reason that their claim in the present litigation is not as the representatives of the persons by whom an admission as to a heba was said to have been made in the documents referred to above. Plaintiffs 2, 3 and 5 claim the properties in Sch. 3 of the plaint as the reversionary heirs of Jugalkishore Dutta and as such any statement or admission made by the fathers of the different plaintiffs, even if it could be taken to be an admission, would not prejudice their rights as such reversioners. There is no evidence as to the heba mentioned in the documents Exs. A (1) and B; and as the Court of first instance observed, in the absence of any deed of gift or other satisfactory evidence, the mere recital of heba in those documents, which were unregistered kabalas, did not conclusively prove that Ramkanta got the property by heba. This disposes of the decision of the learned District Judge in the Court of appeal below, dismissing the claim of plaintiffs 2, 3 and 5 to a ten annas share of plot 3, Sch. 3 of the plaint, with which we are unable to agree.
14. We have come to the definite conclusion, for the reason stated above, that the three plaintiffs are entitled to have their entire claim allowed in regard to plot 3, Sch. 3. As has been indicated already, so far as the other two plots, plots 1 and 2, Sch. 3 of the plaint were concerned, the defendants did not, it appears lay any claim to these plots; and the plaintiffs were entitled to get a decree for those two plots irrespective of our decision in regard to plot 3, Sch. 3 as mentioned above, reversing that of the learned Judge in the Court of appeal below. In the result, the appeal is dismissed, the defendant appellant's contentions in support of the appeal being disallowed. The cross-objections preferred by the plaintiffs respondents are allowed, in respect of the ten annas share of plot 3, Sch 3 of the plaint in the suit out of which this appeal has arisen, The plaintiffs' suit being decreed in the manner indicated in the judgment of the Court of first instance is restored in its entirety. The plaintiffs are entitled to get their costs in the litigation throughout, including the costs in this appeal. There is no separate order as to costs in the cross-objections preferred by the plaintiffs-respondents in this appeal.