Judgement Appeal (No.8 of 1948) from a judgment and decree of the High Court (March 27, 1942) which had affirmed a judgment and decree of the Subordinate Judge, Jalpaiguri (September 12, 1938). The suit out of which this appeal arose, filed on September 9, 1936, was one for the partition of family property in which the plaintiffs claimed a share, alleging that the first plaintiff, Khatamannessa, was the second wife of one Safiquddin, deceased, and that the other plaintiffs were their legitimate children. Of a number of defendants, the first defendant, Tanjina Khatun, was admittedly one of the wives of Safiquddin, and their two children were also defendants. It was denied in separate written statements filed by the present appellants (who were defendants Nos. 9 and 15 in the suit) that Khatamannessa was the lawful wife of Safiquddin, and they pleaded that that question was res judicata by reason of the decision in an earlier suit, No.1 of 1922. The facts regarding the question of res judicata in suit No. 1 of 1922 were that the suit was brought by his landlord against Safiquddin during his lifetime to recover arrears of rent in regard to certain properties. After his death substitution of defendants was made, and the present plaintiffs, among a large number of other persons, were added as party defendants On August 21, 1924. Tanjina and her children, who had been substituted as party defendants, filed a joint written statement in which they alleged that they were the only heirs of Safiquddin. They alleged that the present first plaintiff was not the wife of Safiquddin and with her children had been unjustly joined as defendants. One of the issues in that suit was "4. Is the suit bad for mis-joinder of parties. On August 23, 1924, the trial judge delivered judgment in which he stated that only Tanjina and her children contested the suit, the "other defendants not appearing in spite of service of summons upon them." He stated "Both" the parties agree that defendants Nos. 20 (una) to 20 (chha) [the present plaintiffs] are not Safiquddins heirs. According " to them defendant No. 20 (una) was not Safiquddins married "wife but a concubine, and defendants Nos. 20 (cha) and " 20 (chha) are her sons,. They are thus not Safiquddins "legal heirs. The suit must be dismissed as against them." He decreed the suit against the other defendants. According " to them defendant No. 20 (una) was not Safiquddins married "wife but a concubine, and defendants Nos. 20 (cha) and " 20 (chha) are her sons,. They are thus not Safiquddins "legal heirs. The suit must be dismissed as against them." He decreed the suit against the other defendants. In the present suit the Subordinate Judge held, inter alia, that suit No. 1 of 1922 did not in law operate as res judicata, on the ground that it was not necessary in that suit to determine the conflict of interest between the present first plaintiff and first defendant in order to grant a decree to the landlord plaintiff in that suit. On appeal, Syed Nasim Ali J., delivering the judgment of the court (Syed Nasim Ali and Radhabinod Pal JJ.) held on the question of res judicata that where a plaint in a prior suit did not raise any conflict between co-defendants, and a defendant did not appear, but a co-defendant appeared and claimed an interest conflicting with that of the absentee defendant, the decision could not operate as res judicata unless the absentee defendant got notice of the conflict. In such circumstances, it was held, the matter could not be said to have been heard and finally decided so as to bind the parties. The judge said that from the evidence on the record it appeared that the present first plaintiff had been designedly kept from the knowledge of the conflict. In the result both the Subordinate Judge and the High Court held that on the evidence the first plaintiff had proved that she was the legitimate wife of Safiquddin and that the other plaintiffs were their legitimate children, and they allowed the claim for partition. The main question in this appeal was whether the plaintiffs were debarred from alleging that they were the lawful heirs of Safiquddin by reason of the decision on that point in suit No. 1 of 1922. 1949. Oct. 25, 26. Rewcastle K. C. and Bagram for the appellants. The respondents did not appear. Nov. 14. The judgment of their Lordships was delivered by LORD SIMONDS. 1949. Oct. 25, 26. Rewcastle K. C. and Bagram for the appellants. The respondents did not appear. Nov. 14. The judgment of their Lordships was delivered by LORD SIMONDS. In this appeal, which is brought ex parte from a judgment and decree of the High Court of Judicature at Fort William in Bengal affirming a judgment and decree of the Subordinate Judge, Jalpaiguri, it is necessary for their Lordships to deal only with one of the many questions which have in the course of the proceedings been debated in the courts of India. On all other questions it has been properly conceded by learned counsel for the appellants that the judgments under appeal cannot seriously be challenged. The single question argued before the Board was as to the validity of the plea raised by the appellants that the claim of the plaintiffs the present suit to be lawful heirs of one Safiquddin, who died intestate on March 11, 1924, was res-judicata in a previous suit namely, suit No. 1 of 1922, which had been heard and determined by the Subordinate Judge of Jalpaiguri on August 23, 1924. If that plea was valid, there was no question but that the appeal must succeed if it was not, then, though the appellants had raised a number of alternative pleas, it was plain to their Lordship that they could not be maintained and the appeal must fail. The appellants contended that the judgment in suit No. 1 of 1922 (which will be referred to as "the previous suit") operated under the principle of res judicata to preclude the plaintiffs from asserting that they were the lawful wife and lawful children of Safiquddin. On this question the judgments of the Subordinate Judge and the High Court were alike adverse to the appellants and their Lordships see no reason for coming to a different conclusion. In Munni Bibi v. Tirloki Nath (( 1931) L.R. 58 I.A. 158.) the conditions for the application of the doctrine of res judicata as between parties who have been co-defendants in a previous suit are thus laid down there must be (1.) a conflict of interest between the co-defendants (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3.) a decision of that question between the co-defendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be} added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had, or must be deemed to have had, notice that the relevant question was in issue and would have to be decided. It is at this point that the appellants case breaks down. Their Lordships do not follow the High Court in saying that it appears from the evidence on the record that the first plaintiff in the present suit, Khatammanessa, who claims to be a lawful widow of Safiquddin was in the previous suit designedly kept from the knowledge that in that suit there was a conflict of interest between herself and her co-defendant Tanjina Khatun, admittedly a lawful widow of the deceased. It was in fact admitted on an application to the High Court for leave to appeal to His Majesty in Council that this statement could not be supported. On the other hand, it appears to their Lordships that the appellants have by no means discharged the burden, which lies on them, of showing that Khatammanessa had, or must be deemed to have had, notice of that conflict. The only documents in the previous suit that have been made available in these proceedings are (1.) the written statement of Tanjina Khatun and her lawful children, (2.) the judgment of the learned Subordinate Judge, and (3.) his decree. Prom these documents it appears, though much is obscure, that the gait was originally brought against Safiquddin (or, it may be, against Safiquddin and others) for recovery of rent for a considerable period in respect of a substantial area of land, and that on Safiquddins death there were substituted for him as defendants Tanjina Khatun and her children and Khatammanessa and her children. It appears, further, that Tanjina pleaded for herself and her children that they were " the only heirs in enjoyment of the properties left by "Safiquddin," that Khatammanessa and her children were not his heirs and had no right or interest or possession of the? It appears, further, that Tanjina pleaded for herself and her children that they were " the only heirs in enjoyment of the properties left by "Safiquddin," that Khatammanessa and her children were not his heirs and had no right or interest or possession of the? rent lands in suit, that Khatammanessa was not the wife of the deceased and that she and her children had been unjustly joined in the suit. Khatammanessa did not enter an appearance in the suit and it is not to be assumed that she was aware of the contents of her co-defendants written statement. Within two days of the filing of the written statement the learned judge gave judgment. Among the issues framed by him was No. 4, " Is the suit bad for mis-joinder of parties? " and on this he said that both the parties [i.e., presumably the plaintiff and Tanjina Khatun and her children] agreed that Khatammanessa and her children were not Safiquddins heirs, that according to them Khatammanessa was not his married wife but a concubine, and that her children were not his legal heirs, and accordingly the suit must be dismissed against them. The claim was accordingly decreed with costs against the defendants other than Khatammanessa and her children. So far it is abundantly clear that there is no justification for attributing to Khatammanessa knowledge. that in the suit for rent brought against her co-defendants and herself the question of her status would as between herself and Tanjina Khatun have to be decided. She might, indeed, assume from the fact of her joinder that that question was not in issue. The appellants, however, have relied on the fact that in the title to the decree as it appears in the record she is described as "The concubine of the deceased 20 (cha) "Khatammanessa." Whatever value there may be in this is somewhat diminished by the fact that in the same title her children are described as "the minors aforesaid being represented by their guardian and mother Khatammanessa, "widow of late Safiquddin." But in any case their Lordships think that from this single fact it would not be proper to draw the inference that Khatammanessa either knew, or should have known, that any conflict of interest between Tanjina Khatun and herself would fall to be determined. It is not clear to them why, if the plaintiff sought to charge Khatammanessa as one of the lawful heirs, he should have described her by a title which removes her from that category. They have not had the advantage of seeing the plaint, original or amended, or the summons that was served on Khatammanessa. Much has been left obscure, but for that she cannot be held liable. The appellants have failed to show that the conditions are satisfied on which alone the principle of res judicata can be applied. The appellants also placed some reliance on the conduct of Khatammanessa in subsequent proceedings, and there is no doubt that, so far as appears on the face of the record, she was not consistent in the attitude she adopted on the question of status. But these are matters which do not appear to be relevant to the question whether the judgment in the previous suit operated to bar her present claim. Their Lordships will humbly advise His Majesty that this appeal must be dismissed.