1. The present appeals arise out of a suit brought by Chowdhury Pulin Behari Mosanta, the appellant in cross-Appeal No. 964 of 1906, against Shib Lakhan Bhakat, the appellant in Appeal No. 952 of 1906, as the principal defendant and one Tarangini Dasi as defendant No. 2. The suit was to obtain a declaration that a certain mortgage bond alleged to have been executed on the 23rd June 1899 by Tarangini Dasi in favour of the defendant No. 1, Shib Lakhan Bhakat, and the decree obtained on that bond in suit No. 47 of 1904 were void and ineffectual and not binding at all on the plaintiff and for other reliefs. The plaintiff is the adopted son to Tarangini Dasi, the defendant No. 2. It appears that, after the death of Chowdhury Mohendra Nath Masanta, the husband of Tarangini Dasi. Tarangini took possession of his estate as executrix under a Will executed on the 10th Magh 1293, corresponding to 22nd January 1886. Under that Will, Tarangini was appointed executrix of the estate and was given power to adopt a son. She afterwards adopted Pulin Behari Mosanto, the plaintiff in the present suit. After the death of her husband, Tarangini appears to have borrowed money on a mortgage bond from the defendant No. 1, Shiba Lakhan Bhakat, and executed a bond in his favour on the 23rd June 1899. The defendant No. 1, brought a suit on that bond and obtained a decree on the 11th of April 1904. Tarangini Dasi contested that suit and appeared to defend it as the executrix of the estate of her deceased husband. The result of that suit was that the mortgagee obtained a decree for sale of the mortgaged property in satisfaction of his mortgage-debt. There was no appeal against the decision in that mortgage suit which, therefore, became final. The defendant, Shiba Lakhan Bhakat, afterwards took out execution of his mortgage-decree and the 18th November, 1904, was fixed for sale of the mortgaged property. The present suit was instituted on the 18th November 1904.
2. The main contention on behalf of the plaintiff, who is the adopted son of Tarangini was that Tarangini had executed the mortgage bond in favour of the defendant No. 1, without taking any consideration, that Tarangini had no right, under the terms of the Will, to alienate or create any lien upon the property left by her husband Mohendra Nath Mosanta deceased and that, if she had done so, the same would not be binding on the adopted son. The Court of first instance found in favour of the plaintiff and gave him a decree for the full reliefs sought. On appeal, the lower appellate Court has modified the judgment and decree of the Court of first instance and has given a decree to the following effect, namely, that there should be a declaration that the property covered by the mortgage would be sold if the plaintiff did not pay to the mortgagee, the decree-holder, the sum of Rs. 770-12-2, together with interest at six per cent. per annum from the date of the mortgage-bond, that is, the 10th Assar 1306, till realization and that if that money was not paid, then the mortgaged property would be sold.
3. The defendant, Shiba Lakhan Bhakat, has preferred Appeal No. 952 and his contention is that the decision of the lower appellate Court cannot be affirmed and that the whole suit of the plaintiff should have been dismissed. The plaintiff, on the other hand, has brought a cross-Appeal No. 964 contending that the District Judge has erred in declaring that the defendant No. 1 had a charge on the mortgaged property to the extent of Rs. 770-12-2 with interest and that the lower appellate Court ought to have given the plaintiff a decree declaring that the property in the present suit was not liable for sale in execution of the decree.
4. The two appeals have been heard together and, after hearing the learned Counsel on both sides, we are of opinion that the appeal preferred by the defendant No. 1, must succeed. The main ground which has been urged in support of that appeal is that, after the decision in the mortgage suit brought by the present defendant No. 1, against defendant No. 2, Tarangini, as executrix of the estate of her husband, which was decided on the 11th of April, 1904, in favour of the present defendant No. 1 and which decision has become final, the plaintiff cannot be allowed in the present case to re-open the question which was decided in that case and that, therefore, the question whether the mortgage-debt bound the property covered by the mortgage which was decided in favour of the present defendant No. 1, in that case is res judicata for the purposes of the present case. It is contended that, in that suit, the defendant No. 2, Tarangini Dasi, was sued as executrix to her husband's estate, that she fully represented the estate and that the plaintiff who is the successor-in-interest to that estate must be held to be bound by the decision arrived at in the presence of Tarangini Dasi in that suit, she then fully representing her husband's estate. This contention appears to us to be sound. The question raised in that suit was, in our opinion, the same as the main question which has been raised in the present suit, that is to say, whether the estate of the deceased husband of Tarangini Dasi was bound by the mortgage executed by Tarangini in favour of Shiba Lakhan Bhakat, the defendant No. 1. It appears from the judgment in the suit which was disposed of in 1904 that, in executing the bond, Tarangini Dasi did not describe herself as executrix of her husband's estate but a question was raised and an issue framed in that case whether the mortgage-debt was her personal debt or was a debt contracted for the benefit of the estate which Tarangini Dasi represented as executrix. In that suit it was distinctly found that the mortgage-debt was a debt contracted by Tarangini in her capacity as executrix for the benefit of her husband's estate. She contested that suit on the allegation that, under the terms of the will, she had no power to mortgage her husband's estate. She failed, however, to make out that plea and the result was that the present defendant No. 1, Shiba Lakhan Bhakat, who was the plaintiff in that suit, obtained a decree entitling him to sell the mortgaged property in satisfaction of his mortgage-debt. On behalf of the present plaintiff, it has been argued that, in spite of that decision, it is open to the plaintiff to prove that Tarangini Dasi, under the terms of the Will, had no power to mortgage the property of her husband. We are of opinion that it is not open to the plaintiff in the present case to support that contention. The plaintiff has apparently succeeded to the estate of his father which estate was, at the time of the suit in 1904, represented by Tarangini Dasi as executrix and he is, in our opinion, bound by the decision arrived at in that suit to which Tarangini was a party and in which she fully represented the estate. The question whether Tarangini, in executing the mortgage in favour of the present defendant No. 1, bound the estate of her deceased husband was fully discussed and determined in that suit and it was held that she did bind the estate by that mortgage. The learned Counsel for the plaintiff has referred us to a case between the same parties which came before this Court in appeal and which had reference to another mortgage transaction between Tarangini and the present defendant No. 1 and he has contended that, on the basis of the decision of this Court in that case, we should hold that Tarangini Dasi had no authority by the mortgage to bind her husband's estate as she had only a limited interest under the Will. The question which has been before us in this case and was also before the Court in the suit in 1904 was not before this Court in the case to which we have referred and the decision of this Court in that case had reference to an entirely different question which has no bearing, in our opinion, on the facts of the present case. In our opinion, the contention advanced on behalf of the defendant-appellant must succeed and we must hold that the decision of the Court arrived at in 1904 in the suit brought by the present defendant Shiba Lakhan Bhakat against Tarangini Dasi, which was decided against Tarangini Dasi, binds the plaintiff in the present suit and that the questions raised in the present suit are in consequence of that previous decision res judicata against the present plaintiff.
5. We are, therefore, unable to affirm the judgment and decree of the lower appellate Court or the Court of first instance and, in our opinion, the suit of the plaintiff must be entirely dismissed. The result, therefore, is that the appeal of Shiba Lakhan Bhakat, namely, No. 952 of 1906, is decreed and the suit of the plaintiff dismissed with costs in all the Courts and the cross-appeal of the plaintiff, namely, No. 964 of 1906, is dismissed with costs.