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1905 DIGILAW 189 (ALL)

Madan Mohan Lal v. Akbaryar Khan

1905-11-08

BURKITT, STANLEY

body1905
JUDGMENT : Stanley, J. It appears to us that the question raised in this appeal is concluded by a decision of their Lordships of the Privy Council. The property which is the subject-matter of the appeal, belonged to one Mindhai Lal, who died many years ago, leaving a widow, Musammat Dayali Kunwar, but no issue him surviving Shortly after his death, Musammat Dayali Kunwar instituted a suit against two persons named Bhupal Rai and Jisukh Rai and also one Haji Jafaryar Khan, the predecessor in title of the defendants-respondents, for possession of the property in dispute, alleging that the possession of Bhupal Rai and Jisukh Rai was only as managers of the property for a limited period under a religious endowment made by Mindhai Lal. Bhupal Rai and Jisukh Rai claimed to be absolutely entitled to the property. It was held in the suit upon that evidence of a number of witnesses and also documentary evidence that Bhupal Rai and Jisukh Rai were absolutely entitled to the property under a gift from Mindhai Lal. Accordingly the suit was dismissed. Musammat Dayali Kunwar died on the 6th of July, 1891, and the present suit was instituted by the plaintiff on the 10th of July, 1903, that is, two days short of 12 years after the death of the Musammat, claiming possession of the properly and alleging that Musammat Dayali Kunwar was only entitled to a life-interest, and that upon her death, he has the reversionary heir became entitled to succeed. The Court below has dismissed the suit on the ground that the decree passed in the previous suit was binding upon the reversioner and accordingly the suit could not be maintained. 2. It appears to us that this was a correct view of the law. In the suit brought by the widow for the recovery of the property which had belonged to her husband, the widow in our opinion represented that estate and any decree obtained against her in that suit, would be binding upon the reversioners. 3. That a widow would under such circumstances represent the estate was held by their Lordships of the Privy Council in the case of Katama Natchier v. The Raja of Shivaganga, [1863] 9 M.I.A., 539. 4. 3. That a widow would under such circumstances represent the estate was held by their Lordships of the Privy Council in the case of Katama Natchier v. The Raja of Shivaganga, [1863] 9 M.I.A., 539. 4. Their Lordships in that case upon the question whether a decree passed in a suit brought by a widow for possession of the estate of her husband would bind those claiming the estate in succession to her, held that “unless it could be shown that there had not been a fair trial of the right in that suit or in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to a new suit by any person claiming in succession to ‘the widow.’ For assuming her to be entitled to the zamindari at all, the whole estate would for the time be vested in her absolutely for some purposes, though in some respects for a qualified interest, and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindu widow, and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.” In the later case of Hari Nath Chatterji v. Mothur Mohan Goswami, [1893] I.L.R., 21 Cal., 8, their Lordships adhered to the ruling in the case which we have quoted. We must take it then that a reversioner succeeding to an estate after the death of the widow of the former owner would be bound by a decree obtained against the widow, provided that there was a fair trial of the suit in which the decree was passed. Nothing has been laid before us to lead us to suspect that in the suit instituted in 1886 by the widow for the recovery of possession of the property a fair trial was not had, and this being so, it was properly held that the suit which has given rise to this appeal failed. We therefore dismiss this appeal-with costs, including fees in this Court on the higher scale.