Ramaswami, J.:— It is advisable at the outsets to set out the material facts which have led to the prosecution of this appeal.

Janki Pandey and Foujdar Mahto had obtained a preliminary mortgage decree against which the judgment-debtors preferred appeal to the High Court While the appeal was pending, Janki Pandey died and in his place plaintiff and defendant no. 1 were substituted. After the appeal was dismissed, final decree was prepared in favour of plaintiff and defendant no. 1. The plaintiff brought this present suit for a declaration that he was the daughter's son of deceased Janki and being his sole heir was entitled to the entire money due on the mortgage decree. The plaintiff also asked for a temporary injunction restraining defendant, no. 1 from withdrawing his share of the amount due on the mortgage decree. The main ground of defence was that plaintiff was not the grandson of Janki, that the suit was in any case barred by res Judicata. The learned Munsif held that plaintiff was the sole heir of the deceased Janki, but he dismissed the suit on the ground that the rule of res judicata applied. In appeal the learned Subordinate Judge reversed the judgment of the Munsif holding that plaintiff was entitled to decree.

The main question to be determined in this appeal is whether the claim of the plaintiff is barred by res judicata.

It is manifest that a decision of the question under Order XXII rule 5 whether a certain person is or is not the legal representative of a deceased plaintiff is not an issue arising in the suit itself but it is really a matter collateral to the suit and one that has to be decided before the suit itself can be proceeded with. The rule empowers the court in a case where a dispute arises as to who is the legal representative of a deceased plaintiff to appoint a legal representative for the purpose of prosecuting the suit. But the appointment of such legal representative is not the determination of any issue which is properly raised in the suit itself, and cannot operate as res judicata. This opinion is supported by a catena of authorities. In Antu Rai v. Ram Kinkar Rai) the Allahabad High Court held that decision under Order XXII, rule 5 of the Civil Procedure Code of a dispute as to which of several persons was the heir and legal representative of a deceased appellant was a decision in a summary proceeding for the purpose of continuance of the appeal, and cannot operate as res judicata in a subsequent suit between the same persons regarding succession to the property of the deceased person, which property was not in suit in the earlier suit. The learned Judges dissented from Raj Bahadur v. Narain Prasad and expressly followed an earlier decision of the same High Court, Parsotam Rao v. Janki Rai. Similarly in Samsarivsa Sarvathi Palekhan v. Pathumma the Madras High Court held that the question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit could not be regarded as one of the questions arising for decision in the suit itself, and that it was a matter to be decided at a preliminary stage before the suit itself can be proceeded with. In Bala Rai v. Ganesh the Bombay High Court expressed the same view. In Chiragh Din v. Dilawar Khan the Lahore High Court held that a decision of a proceeding under order XXII, rule 5, did not bar, the reagitating of the same question in a separate suit and the rule of res judicata did not apply in such a case. In Zalam v. Tirlochan Pd. Singh a Full Bench of the Oudh Chief Court reached the same conclusion.

Learned advocate for the appellant stressed the argument that the rule of res judicata as between co-plaintiffs will be applicable. But the argument is invalid. On principle the rule of res judicata will not apply unless there is a conflict of interest among the co-plaintiffs, and a judgment defining the real rights and obligations of the co-plaintiffs inter se. Further the adjudication inter se between the co-plaintiffs should have been necessary to give appropriate relief to the defendants [Cf. Wigram V.C in Cottingham v. Earl of Shrewsbury].

In the last case (which deals with the cognate rule as to co-defendants) the Vice-Chancellor states: “But, if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains”.

In Rukhmini v. Dhondo Mahadu it was pointed out that a finding to become res judicata as between co-plaintiffs must have been essential for the purpose of giving relief against the defendants. In that case the plaintiff D and his step-mother R brought a suit against O to recover possession of certain ornaments which formed part of the estate of M, the father of D and husband of R. It was held by the court of first instance that R was entitled to the ornaments, because they were her stridhan; but the appellate court held that she was entitled to them not because they were her stridhan, but because she was the absolute owner of the property. D then sued R for a declaration that he, as son and heir to M, was entitled to hold the decree. The defendant in reply contended inter alia, that the suit was barred by res judicata. The learned Judges held that the bar of res judicata did not apply, inasmuch as there was no final adjudication as between R and D, and in the first suit it was a matter of no consequence to the defendant therein for the purposes of the relief to be given against him whether R succeeded or whether D succeeded. The Court ought not to hold a point to be res judicata unless it is clear from the pleadings and the findings in the previous suit. The learned Judges referred to Attorney-General for Trinidad and Tobago v. Eriche in which it was held that no Court ought to infer res judicata by mere arguments from a judgment in a previous suit.

In Ashgar Reza Khan v. Mahomed Mehdi Hossain Khan the Judicial Committee had the same question before them. The right to the profit rental of a bazar had been decided in the plaintiff's favour in a suit between rival zemindars. In the subsequent litigation all the parties claimed under the former plaintiff, and the matter in litigation was the right to possession of a share in the bazar. The Judicial Committee held that the rule of res judicata was not applicable, and decided the case on the construction of the conveyances and sale-certificate. Lord Lindley observed: “Under these circumstances the plea of res judicata might well be a defence to a hostile claim by persons asserting a title under Ahmed Reza's former opponent against those who claim under him. But their Lordships are at a loss to understand its applicability in a dispute between persons all of whom claim under Ahmed Reza himself, as the plaintiff and the defendants in this case do. The claim under the Statute of Limitations being negatived, the present dispute roust turn on the construction of the conveyances under which the parties respectively claim”.

In Maharaja Pratap Udainath Sahi Deo v. Ganesh Narain Sahi Sir Dawson-Miller, C.J and Jawala Prasad, J. in dealing with the question of res judicata as between co-plaintiffs observed as follows: “There was no dispute between the plaintiffs in that suit as to the Maharaja's right to resume or the fact that the tenure had come to an end on the death of Lachmi Nath. The principle laid down in Cottingham v. Shrewsbury can therefore have no application. There was no conflict of interest between the co-plaintiffs and the decision cannot, in my opinion, be held binding as res judicata on their successors vide Ramchandra Narayan v. Narayan Mahadev, 11 Bombay 216.

Upon this review of the authorities it is manifest that if the bar of res judicata is to apply, the first requisite is that there should have been active controversy inter se between the parties arrayed on the same side. In the second place, the adjudication inter se between the co-plaintiffs should have been necessary to give the appropriate relief to the defendants.

Applying these principles to the present case I hold that the suit is not barred by res judicata, and that the lower appellate court rightly granted a decree, to the plaintiff.

I should accordingly dismiss this appeal with costs.

Manohar Lall, J.:— I have also come to the same conclusion that in the circumstances of the present case the principle of res judicata has no application. As far back as 1878, their Lordships of the Privy Council pointed out in Sheo Singh Rai's case: “The Court, indeed, could not properly make a binding declaration as between the adoptive mother and the adopted son, both being plaintiffs. It is, no doubt, on this account that the decree, whilst it declares the right of the widow to present possession as against the Defendant, is framed in a form which avoids prejudice to the rights of the plaintiffs inter se.”—In this case the suit was to establish a Jain widow's right of inheritance to her husband's estate, and to uphold her adoption of her daughter's son, as well as his right to succeed her after her death, by avoiding the pretensions of the defendant who claimed under some title. The under lying principle has been so often stated that it is unnecessary to do more than make references to the well-known decisions of the Privy Council where they have adopted the observations of Wigram, V.C in Cottingham v. Earl of Shrewsbury the leading case on the subject: “If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants, will be bound; but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.” This rule governs the cases of co-plaintiffs also because on principle there is no distinction whether the persons are arrayed as co-plaintiffs or as co-defendants. In either case the rule of res judicata will apply if it was essential to decide the matter between the co-plaintiffs in order to give relief against the defendants and the matter had in fact been decided. See Munni Bibi v. Triloki Nath, Maung Sein Done v. Ma Pan Nyun, and Kedar Nath Goenka v. Ram Narain Lal. In the case of Rukhmini v. Dondo Mahad, an identical question came for decision, and it was held that a subsequent suit was maintainable by one of the co-plaintiff for a declaration that he and not a co-plaintiff was entitled to hold the decree. This is exactly the situation in the present case. For these reasons, I agree that the appeal should be dismissed with costs.

S.H

Appeal dismissed.