JUDGMENT: Chaudhary S. N. Mishra, J. The plaintiffs are the appellants in this second appeal (which) have been directed against the judgment and decree dated 8th December, 1987 passed by the 5th Additional District Judge, Sasaram by which the learned' Judge dismissed the suit of the plaintiffs which was filed for partition and for recovery of possession of the If3rd share in the property fully described in Schedule-A of the plaint. 2. The case of the plaintiff appellants in short is that one Gurucharan Lal had three sons and one daughter namely Had Narayan Lal, Mahadeo Lal and Ram Narayan Singh and Laxmina Kuer, the daughter. Ram Narayan Singh, defendant no. 5 was adopted by some other family and as such he lost his interest in his father's property. 3. Gurucharan lal being a karta of the family purchased 10 decimals of land pertaining to plot no. 106 of khata no. 57 in village Rasulpur in the name of his wife Most. Madodara Kuer out of his ancestral property through registered sale deed dated 24.1.1921 (Ext. G). 4. According to the plaintiffs after the death of Gurucharan Lal, Hari Narain Lal, defendant no. 3 became the karta of the family, who was a drunkard and spoiled the ancestral joint property without any legal necessity. Defendant no. 1 Lachhamina Kure, defendant no. 2 Bindeshwari Prasad and defendant no. 3 Harinarain lal are In collusion with each other 5. The wife of Gurucharan lal, Madodara Kuer who was defendant no. 6 in the suit (since deceased) was also under the influence of defendant no. 3 Harinarain Lal. Mahadeo Lal had three sons, who are the plaintiffs in the instant suit. It is also alleged that father of the plaintiffs namely Mahadeo Lal was also working against the interest of these plaintiffs and the plaintiffs were brought up at their Nanihal. 6. The further case of the plaintiffs is that the grand mother of the plaintiffs namely Madodara Kuer executed a deed of gift in favour of her daughter Laxmina Kuer in respect of the suit property. 6. The further case of the plaintiffs is that the grand mother of the plaintiffs namely Madodara Kuer executed a deed of gift in favour of her daughter Laxmina Kuer in respect of the suit property. According to the plaintiffs, this deed of gift executed in favour of the Laxmina Kuer with respect to the suit property is forged, fabricated and has no binding effect on the plaintiffs, Their further case is that the suit property was purchased from the joint family fund by their grand father, Gurucharan Lal in the name of his wife, Madodara Kuer (grand mother of the plaintiffs) 7. According to the plaintiffs, defendent nos. 1 to 3 tried to construct a house and in fact 4-5 feet brick wall was constructed. The plaintiffs objected when defendants disclosed that Madodara Kuer had gifted the suit property to defendant no. 1 Laxmina Kuer. It was pleaded that defendants 1 and 2 bad no fight and title over the suit land and the alleged deed of gift. if any, executed by Madodara Kuer is not binding upon the plaintiffs The plaintiffs after the death of Madodara Kuer, defendant no. 6 claimed 1/3rd share in the suit property. 8. It was further pleaded that the earlier snit filed by their father Mahadeo Lal was not filed as the Karta of the family. They further alleged that their father did not take appropriate steps in the suit and because of his gross negligence the suit was dismissed and accordingly, the judgment and decree of previous suit is not binding upon them. 9. The defendants 1 and 2 jointly filed their written statement and similarly defendant nos. 5 and 6 contested the suit by filing their written statement separately but the pleadings of all the defendants are almost similar in nature. The defendant nos. 1 and 2 are the main contesting defendants. The defendant nos. 4 and 5, however, also filed their separate written statement but the pleadings of all the defendants are almost similar in nature. Apart from a formal and usual defence the substantial defence on the merit was that the suit is not maintainable being barred by principle of resjudicata and further the property was purchased by Madodara Kuer out of her personal fund and she gifted the property to defendant no. 1 through registered deed of gift dated 19. 12. 1946 (Ext. E). 10. 1 through registered deed of gift dated 19. 12. 1946 (Ext. E). 10. In substance, they alleged the property in question is not an ancestral property of the plaintiffs. Gurucharan Lal never purchased the suit land out of the joint family fund and they also pleaded that Mahadeo Lal had earlier filed a title suit no. 296 of 1958 in respect of the property, in question, for partition and for confirmation and possession and in alternative recovery of possession and the said suit, on contest, was dismissed and Mahadeo Lal lost his claim. 11. They have further denied the possession of the plaintiffs over the suit land and have alleged that the plaintiffs were never in possession over the same. On the aforesaid plea dings they prayed that the suit filed by the plaintiffs for the reliefs sought for be dismissed. 12. At the thresh-hold of commencement of the regular trial of the suit in the court below underlying this proceeding the Dumber of issues were framed out of which issue nos. 3, 4 and 6 are the principal issues which are as follows ;. 3. Is there unity of title and possession over the suit land between the plaintiffs and defendants nos. 3 to 5 ? 4. Is the deed of gift dated 19.12.46 executed by most. Madodra Kuer in favour of Dulhin Lakshmina Kuer valid, genuine and for consideration? 6. Is the suit barred by the principles of resjudicata ?" 13. The trial court on considerations of evidence both oral and documentary dismissed the suit of the plaintiffs, after having held in paragraph 3 of its judgment and the suit property was the Stridhan property of Madodara Kuar and was not acquired by Gurucharn Lal out of the joint family fund. The Laxmina kuer, defendant no. 1 is in possession over the suit land as a right full owner on the basis of the gift executed in her favour. The trial court has further held that there is no unity of title and possession between the parties over the land in question and the deed of gift is a valid document. 14. The trial court has further recorded its finding in paragraph-29 of the judgment that the decree passed in title suit no. The trial court has further held that there is no unity of title and possession between the parties over the land in question and the deed of gift is a valid document. 14. The trial court has further recorded its finding in paragraph-29 of the judgment that the decree passed in title suit no. 296 of 1958 will operate as resjudicata and is binding on the plaintiffs and accordingly held that the plaintiffs are pot entitled for a decree of partition. 15. The plaintiffs being aggrieved by the judgment and decree of the trial court filed on appeal before the lower appellate court. The lower appellate court also on consideration of the evidence on record and after having heard the parties recorded it findings in paragraph 14 of the judgment which read as follows: Thus, the oral evidence adduced on behalf of the plaintiffs-appellants regarding consideration money is not conclusive to prove that consideration amount was paid by Gurucharan Lal out of his joint property.” 16. On the same issue, the lower appellate court recorded its finding in paragraph-16 of the judgment: "Thus the consideration money was paid by Gurucharan Lal in presence of P. W. 4 Bageshwari Prasad. On perusal of these oral evidence, I come to the conclusion that the consideration amount was given by Madodara Kuer out of her own fund towards the payment of consideration amount." 17. The lower appellate court finally recorded its findings on this issue in paragraph 25 of these terms. "In view of the facts discussed above, I come to the conclusion that Madodara Kuer purchased 10 decimals of land in dispute out of her own fund. The suit property was purchased through Gurucharan Lal. He looked after property, paid Municipal tax etc. and might have entered his name in the Municipal Register but the possession of the land and possession of the registered deed Ext. G was with Madodara Kuer. The property was given in gift to her daughter Lachhamina Kuer in the year 1946-47. After accepting the property Lachhamina Kuer got her name mutated in the Municipality and got approval of plans for a construction of a house..........................” 18. As regard the finding on issue no. 6 namely is the suit barred by the principle of resjudicata? The property was given in gift to her daughter Lachhamina Kuer in the year 1946-47. After accepting the property Lachhamina Kuer got her name mutated in the Municipality and got approval of plans for a construction of a house..........................” 18. As regard the finding on issue no. 6 namely is the suit barred by the principle of resjudicata? The lower appellate court recorded its finding in paragraph-31 of the judgment in these terms; "The appellants have failed to prove negligence committed on the part of their father Mahadeo La1. They have also not proved fraud or collusion committed by their father Mahadeo Lal in contesting the previous suit. In absence of any proof of gross negligence, fraud or collusion, 1 am unable to hold that the judgment passed in earlier Title Suit no. 296 of 1985 and decree of that suit is not binding upon the appellants ............” And finally on this issue the lower appellate court recorded Its finding which read as follows : "The appellants have failed to prove gross negligence, fraud and misconduct in contesting the earlier suit by their father Mahadeo Lal. Hence this court has no right to interfere in the decree passed in title suit no. 296/1958. Moreover, the seal of the Hon'ble High court in the 2nd appeal has also been obtained. Unless all those decrees and judgment are set aside, there is no ground for giving any other judgment and decree contrary to those judgment and decrees passed earlier." 19. The lower appellate court, accordingly, on the basis of the aforesaid findings dismissed the appeal of the plaintiffs and confirmed the judgment and decree passed by the trial court. Hence this appeal. 20. Mr. Thakur Parsad, learned senior counsel appearing for the plaintiffs-appellants made a two fold submission in support of this appeal, firstly that the courts below has wrongly applied the principle of resjudicata in the facts and circumstances of this case, which vitiates the findings of the courts below and secondly the courts below have misconstrued the evidence both oral and documentary in holding that land in question was exclusively purchased by the defendant no. 6 Madodara Kuer out of her own Stridhan fund and not from the joint family fund. 21. I will take up the second submission as first which alone is sufficient to dispose of this appeal. 22. 6 Madodara Kuer out of her own Stridhan fund and not from the joint family fund. 21. I will take up the second submission as first which alone is sufficient to dispose of this appeal. 22. The learned counsel in support of his second submission has placed reliance upon the evidence both oral and documentary adduced on behalf of the plaintiffs in the courts below. He first relied upon the evidence of P. W. 7 who is plaintiff no. 1 in this case. According to this witness the suit land was acquired by his grand father Gurucharan Lal. Mr. Thakur Pd. heavily relied upon the evidence of P. W. 4 Bageshwari Lal who is a witness to the sale deed in question namely exhibit- G. It may be stated here that original sale deed dated 24. 1. 1921 was produced by defendant no. 1 and the sale deed filed by the plaintiffs was marked as Exhibit-B. P. W. 4 aged about 80 years. According to this witness Gurucharan Lal had paid the, consideration money. This witness claims to have finalised the sale of the land in question and further deposed that Gurucharan Lal purchased the land in question in the name of his wife Madodara Kuer out of his joint family fund. He Was also one of the witness in title suit no. 296 of 1958. Exhibit-N, which is the certified copy of the deposition of this witness in title suit no. 296 of 1958. In cross-examination, he has admitted that he has not enquired from Gurucharan Lal as to the Source of income from which he has paid the consideration money. From the evidence, of this witness, it is not conclusively proved that the money which was paid to the vendor was of joint family fund. It is admitted position that D. W. 6 Madodara Kuer, Was the Pardanashin lady and naturally therefore, the consideration money must have been paid through Gurucharan La1. He also deposed that on being asked Gurucharan lal said that he purchased the land in question in the name of his wife. 23. The evidence of the witness examined on behalf of the plaintiffs do not disclose the source from where Gurucharan Lal paid the money, As against this, there are oral evidence adduced on behalf of the defendants which clearly suggests that defendant no. 23. The evidence of the witness examined on behalf of the plaintiffs do not disclose the source from where Gurucharan Lal paid the money, As against this, there are oral evidence adduced on behalf of the defendants which clearly suggests that defendant no. 6 Madodora Kuer used to receive "Khoicha" from her Naihar to the tune of Rs. 500/-to 600/-out of which she has purchased the disputed land along with other lands. 24. Mr. Thakur Prasad then relied upon the Yaddasht Bahi (Ext. 17) which shows that there has been an entry on 24.1.1921 a sum of Rs. 310/- was paid out of consideration amount of Rs. 320/ and the remaining Rs.10/- was paid on 24. 1. 1921. This exhibit-17 is not a conclusive piece of evidence to show that the amount was paid by Gurucharan Lal out of the joint family fund. 25. The court below has examined this document carefully and has opined that the entries made therein are not in usual course of business. The court of appeal also disbelieved this document on the ground that Gurucharan Lal being an Income Tax assessee, he had not disclosed this amount in his return. 26. Mr. Thakur Prasad lastly contended that the Gurucharan Lal being a Zamindar having sufficient fund at his disposal, it will be presumed that the land in question must have been purchased by him out of the joint family fund. 27. As against the submissions advanced on behalf of the plaintiffs-appellants the counsel appearing on behalf of the defendants-respondent has submitted that both the courts below on considerations of both oral and documentary evidence have disbelieved the case of the plaintiffs and held that the land in question was purchased out of the personal fund of defendant no. 6 Madodara Kuer. 28. Learned counsel further submitted that D. W. 3 Harinarayan Lal, who is one of the co-sharer, though a party in the suit, but not contested the suit. On the contrary, he accepted that the suit property is the exclusive property of his mother. He has specifically deposed that the suit land was not purchased out of the joint family fund and the same was purchased out of the personal fund of his mother. It may be stated here the defendant no. On the contrary, he accepted that the suit property is the exclusive property of his mother. He has specifically deposed that the suit land was not purchased out of the joint family fund and the same was purchased out of the personal fund of his mother. It may be stated here the defendant no. 3 is one of the co• sharer and be is entitled of half share and therefore, there is no reason as to by he will depose against his own interest. 29. The learned counsel further drew my attentions to paragraph-23 of the appellate court judgment wherein D. W. 3 Harinarain Lal has admitted that his mother Madodara Kuer purchased the land in question out of her own personal fund and subsequently the land gifted to her daughter defendant no. 1 in the year 1946. 30. The learned counsel strongly relied upon the statement of defendant no. 3 who is one of the Co-sharer of the family and submitted that his admission in the suit• is binding upon all the co-sharers and, therefore, the plaintiffs being a co-sharer of the family with respect to the laud in question, cannot go beyond that admission. 31. In this connection, learned counsel has placed reliance in a decision of Mr. Ramjhari Kuer and others v. Daynand Singh and others reported in A. I. R. 1946 Patna 278. their Lordships have held as follows: "The principle is that when Several persons are jointly interested in the subject-matter of the suit, an admission of anyone of these persons is receivable not only against himself but also against the other defendants, whether they be all jointly suing or sued, provided that the admission relates to the subject-matter in dispute and be made by the defendant in his character of a person jointly interested with the party against whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance." 32. There is a substance in the contention of the learned counsel of the defendants-respondents. In this case, the several co-sharers are jointly interested in the suit property and the admission of D. W. 3 Harinarain Lal who is admittedly one of the co-sharer has clearly admitted that the land in question was purchased and belonged exclusively to his mother which was purchased from her personal fund and not from the joint family fund. In this case, the several co-sharers are jointly interested in the suit property and the admission of D. W. 3 Harinarain Lal who is admittedly one of the co-sharer has clearly admitted that the land in question was purchased and belonged exclusively to his mother which was purchased from her personal fund and not from the joint family fund. In the facts and circumstances, therefore, this admission is binding upon the other co-sharers who are interested jointly in the subject matter of the suit. 33. The learned counsel also submitted that both the courts have concurrently held against the plaintiffs. This court should not interfere with the said findings of facts arrived at by the courts below 34. I have perused the judgments of both the courts below and heard the submission of the learned counsel of the parties, I am definitely of the view that the courts below have rightly non-suited the plaintiffs and accordingly I reject the submissions of Mr. Thakur Prasad. 35. In view of the finding aforesaid this appeal could have been disposed of on this ground alone but since both the parties have argued whemently on the question of first submission raised by Mr. Thakur Prasad regarding the wrong application of principle of resjudicata in this case, I have no alternative but to decide the said question as well as stated above. Mr. Thakur Prasad has extraneously argued on this question of law and had relied upon number of decisions in support thereof. 36. Mr. Thakur Prasad firstly relied upon a decision of Kamakshya Narain Singh Bahadur V, Baldeo Sahai and others recorded in A. I. R. 1950 Patna 97 Full Bench wherein it has been held that a minor after having attained majority can challenge the decree passed against him on the ground of gross neglience on the part of his guardian ad-litem or next friend by filing a subsequent suit even in absence of fraud or collusion on the part of such guardian ad-litem or next friend. 37. Mr. Thakur Prasad than relied upon in a decision of Sundra Bahu Shatya. 37. Mr. Thakur Prasad than relied upon in a decision of Sundra Bahu Shatya. V. Sakh arom Gopalshat and others reported in A. I. R 1914 Bombay 113, similar view as in the aforesaid Full Bench has also been taken in this Division Bench decision where their Lordship have held that section 11 of the Code of Civil Procedure does not bar subsequent suit' only on the ground that the issues involved herein were also substantially in issue in a previous suit when the minors not adequately represented of if the plaintiff was a perform a defendant in the first suit and took no active part therein. 38. Mr. Thakur Prasad next relied upon in a decision of Ramudar Singh and others V. Ramsurat Singh and others reported in A. I. R. 1948 Patna 281, the fact in this case was that the suit was filed against the father and his minor sons. The suit was dismissed against the minors in default of appointment of guardian ad-litem and consequently a preliminary decree was passed against the father alone, the minors were impleaded subsequently in the final decree under the guardianship of their mother and notice was served upon the mother Subsequently, a final decree was passed and put in execution and the notice under order 21 Rule-22 was served on the mother. The land was put to sale and purchased by the decree holder. The mother did not appear at any stage at the time of preparation of final decree or in the execution proceeding, and no guardian was appointed for the minors either in the suit or in the execution proceedings. Neither there was formal order appointing the mother as guardian ad-litem. Subsequently, the minors brought a suit for declaration that the decree and the sale held in the execution thereof were null and void and are not binding upon them, In that situation, it was held that minors were not effectively represented in the suit, and, therefore, there was no decree against them, and therefore, the minors were not bound by the said decree and sale held in the execution are nullity as against the minors. 39. 39. Reliance has also been placed in a decision of Bankey Prasad Tewari and others V. Thakur Prasad Singh and others reported in A. I. R. 1954 Patna 12 where it has been held that the, question of resjudicata depends upon the pleadings and the issues raised by the parties. 40. Lastly, Mr. Thakur Prasad has placed raliance upon a decision of Chandramani Prushti v, Jambeswara Rayagaru and others reported in A. I. R. 1931 Madras 550 on the proposition that plea of resjudicata available against the, Hindu father is not available against his son who do as not claim the family property through his father' but claims by reason of his birth as a coparcener in the family. 41. The learned counsel appearing on behalf of the defendant respondent, on the other hand, has drawn my attention to paragraph-29 of the trial court judgment wherein the learned Muasif on appreciation of the evidence on record has recorded its finding which reads as follows :- There is nothing to show that Jagarnath Prasad was ill. It is manifest, therefore, that Mahadeo Lal had engaged one of the best Civil Lawyer of this station to conduct his case. On a consideration of the evidence and circumstances discussed above I am of the opinion that Mahadeo Lal did not commit nagligence in conducting the case. I, therefore, find and hold that the decree in T. S. No. 296 of 1958 is binding on the plaintiffs. This issues are accordingly dispossed of" 42. The lower appellate court has also confirmed this finding in paragraph-31 of the judgment which has already been quoted above. 43 The learned counsel in reply to the submission made by Mr. Thakur Prasad on this issue further submitted that the decision relied upon by Mr. Thakur Prasad, learned counsel for the plaintiff appellants is not relevant in the facts and circumstances of this case inasmuch the law laid down in those decisions are with respect to the minors who have either not been represented effectively, or, if represented, but because of the gross negligence of their guardian their interest has not been protected, but the case in hand stands entirely on a different footing. The plaintiffs who were minors at that time were fully represented in the previous suit filed by the father of the plaintiffs as kart a of the family, which was also for partition of the same very property which is the subject matter of the instant suit. 44. The learned counsel in support of his contention relied upon certain provisions of Hindu Law, and also relied upon several decisions of this court, as well as, of supreme Court. Reference may be made to a decision of Amrit Sagar Gupta & ors V. Sudesh Behari Lar & ors. reported in 1970 S. C. 5 where it has been held that the karta can represent the family effectively although it has not been pleaded as such. Their lordships after discussing the various decisions on the issue in hand recorded the findings in the following terms : "6. It is not necessary in order that a decree against the manager may operate as res-judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family. 7. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is manager of the family and the property involved in the suit is family property. It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A karta can represent the family effectively in a proceeding though he is not named as such. " 45. The learned counsel next relied upon a decision of Lakhan Lal Jha and another v. Jiwach Jha and others reported in A. I. R. 1948 Pat 388 to a proposition that the previous suit filed by the father as a Karta of the family on behalf of the Hindu Joint family, then for the same relief the subsequent suit by his son for the same and similar relief is barred even if he is a minor at the time of previous suit. 46. 46. The learned counsel also relied upon a decision of Lingangowda Dod-Basangowda Patil and others v. Basangowda Bistangowda Potil and others reported in A. I. R. 1927 Privy Council 56 wherein their lordships have held that in a Hindu family each and every member of the family cannot be allowed to litigate the same issue over again. It has been held by their Lordships as follows: "Counsel for the appellants says truly that no body is ever precluded from raising a point of law, except where there are some other considerations which would make it unfair that he should raise it. But he seeks to argue it now, the answer is, that this was not a pure point of law. It depended very largely upon the facts. In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before, and if! each of these cases, therefore, the Court looks to Explanation 6 of S. 11 of the Code of Civil Procedure to see whether or not the leading member of the family has been acting either on behalf of minors or in their interest, or if they are majors, with !the assent of the majors. In this case there is no question of majors. It seem clear that the plaintiff in the previous suit was acting on behalf of himself and his minor children to try to exclude a collateral branch from a share of the family property. If he had succeeded the judgment would have inured for the benefit of the children, and as he has failed, they must take the consequences. Their Lordships had occassion to comment upon and apply this Explanation 6, in the case of Mata Prasad v. Nageshar Sahai (1). In their Lordships' view this appeal fails and they will humbly advise His Majesty that it be dismissed with costs," 47. In the instant case it has been admitted that the previous suit namely the T. S No. 296 of 1958 was instituted by the father of the plaintiffs being a Karta of the family and. In their Lordships' view this appeal fails and they will humbly advise His Majesty that it be dismissed with costs," 47. In the instant case it has been admitted that the previous suit namely the T. S No. 296 of 1958 was instituted by the father of the plaintiffs being a Karta of the family and. therefore, the decisions of the previous suit is binding upon the heirs in view of the law laid down in the aforesaid decisions. 48. Section 253 of the Hindu law says that decree passed against the Manager of a joint family.........' or in respect of family properties operate as resjudicata under the Code of Civil Procedure and is binding upon all members of the family including minors. 49. The submission of the learned counsel appearing on behalf of the defendant respondents has substance on this point as well and I accept the same. 50. On considerations of the evidence on record and after having considered the submission advanced on behalf of the counsels, I find that there is no merit in this appeal which is accordingly dismissed without cost, Appeal dismissed.