1. This is an appeal by Defendants Nos. 1, 2 and 8 against the judgment and decree of the Subordinate Judge of Burdwan, dated the 19th June 1921. The suit was instituted by three persons for possession of B-annas share of certain properties which originally belonged to one Durga Charan Baral The Plaintiffs Nos. 2 and 3 claimed as heirs of one of the daughters of Durga Charan named Nistarini Dasi and Plaintiff No. 1 claimed on the strength of purchase of the share of another heir named Jogesh Chandra Dhar, and a portion of the shares of Plaintiffs Nos. 2 and 3. Durga Charan had two daughters, Nistarini and Gokul Sundari. He died in 1872 after having executed a Will. Letters of Administration with the Will annexed were, obtained by Nistarini and Gokul Sundari, the two daughters of Durga Charan. After that this property-was the subject of various legal proceedings. Two attempts were made during the lifetime of those ladies for revocation of the Probate on various grounds which it is unnecessary to mention now. Gokul Sundari died in 1313 B.S. Nistarini died in 1316 B.S. The exact date of Nistarini's death is not mentioned, but it was sometime in November 1909. After the death of Nistarini various persons claimed the properties left by her and applied for Letters of Administration of her estate as her heir, as under the Will of Durga Charan the heirs of Nistarini were entitled to succeed to the property before other persons. The question as to who was entitled to the Letters of Administration was raised in the proceedings in 1,910 and the matter was decided by the Subordinate Judge on the 20th August 1912. The Letters of Administration were issued in favour of the Defendant No. 1 as the nearest heir of Nistarini. It will be necessary here to give the genealogy under which the plaintiff based their title. (After setting out the genealogy his Lordship continued.) The Defendant No. 1 admits the genealogy except that he says that Bhubaneswari his mother was the daughter of Krishna Prosad and that he is the nearest heir of Nistarini's stridhan properties being her husband's sister's son. His opponent in the Letters of Administration proceedings was Gokul, whose case was that Dwijapada, Defendant No. 1, had no connexion with the family. The other brother of Gokul who was then alive does not appear to have made any application for Letters of Administration, and it is a question whether he was a party to those proceedings in the Court of first instance. The Defendant No. 1 has been in possession of the properties since the grant of Letters of Administration and Defendants Nos. 2 and 3 are purchasers of certain lands from Defendant No. 1.

2. The present suit was instituted on the 3rd November 1921. The Subordinate Judge has found that it was brought on the last date on which the suit might have been instituted according to the Law of Limitation, that is, on the very last day of the expiry of 12 years from the death of Nistarini. The plea of the plaintiffs is that the Defendant No. 1 was really the son of a daughter of Ramdhan, in other words, Bhubaneswari his mother, was the daughter of Ramdhan; therefore, the Defendant No. 1 would not be the heir of Nistarini as regards her stridhan property, bit the heirs at the tim3 of her death would be Banwari and Gokul. The Plaintiffs Nos. 2 and 3 claim there properties by virtue of inheritance from Gokul and Plaintiff No. 1 by purchase from the son. of Banwari and also from Plaintiffs Nos. 2 and 4. The Defendant No. 1's case, on the other hand, is that he is really the nearest heir of Nistarini's stridhan and the question as regards the relationship is barred by the rule of res judicata.

3. The Subordinate Judge has put the question in a short way : If Defendant No. 1 is the sister's son of Hari Madhab, then the plaintiffs are not entitled to succeed, but if he is found to be the son of a female cousin of Hari Madhab then the plaintiffs are entitled to succeed. Several issues were raised in the Court below. Some of the issues were taken up first for decision by the Subordinate Judge who was a different Judge from the one who decided the case finally. The important question that he decided was the question of res judicata and, in his opinion, the question as to the relationship was not res judicata, because he thought that the decision of the Subordinate Judge of 1912 was the decision of a Court acting under Act 5 of 1881 (the Probate and Administration Act) and cannot, therefore, operate as res judicata in the present suit. The judgment with regard to this issue was delivered in April 1923. The case then came on for trial on the other issues and the final judgment was delivered in June 1924. The Subordinate Judge, who finally tried the case rightly considered that be was bound by the decision on the issue on res judicata by his predecessor, and upon that finding he proceeded to decide the question on the evidence as regards the fact of the relationship of the parties to Nistarini Dasi and her husband. He came to the conclusion upon the evidence that the plaintiffs have succeeded in proving that Dwijapada the Defendant No. 1 was not Nistarini's husband's sister's son, but he was the son of the daughter of Ramdhan, and, therefore, the plaintiffs were entitled to succeed in their suit.

4. The question of res judicata is of great importance in this case. The first case that was cited on behalf of the appellants was that of Ramnandan Prosad. v. Sheo Parson Singh [1910] 11 C.L.J. 623. The Subordinate Judge in his judgment of April 1923, referred to that case. But he was of opinion that on account of the judgment of the Judicial Committee in Sheoparsan Singh v. Ramnandan Parshad Narayan Singh [1916] 43 Cal. 694 in that very case which was carried up to the Privy Council, the Opinion of the learned Judges was reduced to a mere obiter dictum. That suit was brought for a declaration that a certain person was the next reversionary heir with regard to certain properties, and it was pleaded by his opponent that the question was res judicata. The High Court held that such a suit was maintainable, but the question was decided in a previous Probate proceeding and was, therefore, res judicata and dismissed the suit. On appeal to the Privy Council their Lordships held that a suit such as that was not maintainable under the provisions of Section 42 of the Specific Relief Act. But with regard to the question of res judicata the pronouncement of their Lordships is very important. They pointed out that the question of res judicata was not a rule of technicality but was based upon general principles of law which must be given effect to for the purpose of giving finality to judicial decisions. If that principle is given affect to there cannot be any doubt that the question now debated in this appeal is res judicata by reason of the decision of the Subordinate Judge of the 20th August 1912, in the Probate proceedings.

5. It is contended, however, on behalf of the respondents that the Subordinate Judge was acting in the previous matter as a Court of Special Jurisdiction, therefore, the judgment delivered in that case Cannot operate as res judicata in the present case. This argument is based upon the decision of this Court in Lalit Mohan Das v. Radha Raman Saha [1916] 43 Cal. 694. That case certainly supports the contention of the respondents, but the authority of that case has been undermined by the decisions of the Privy Council and particularly the decision in the case of Rama Chandra Rao v. Ramachandra Rao A.I.R. 1922 P.C. 80. Their Lordships at page 137 of She Indian Appeals stated:

How the proceedings were commenced is a Matter that is not material provided that they were instituted in the manner that gave the Court jurisdiction, for they ended in a decree made by the High Court and appealable to this Board.

6. In the present case it cannot be disputed that the Probate proceedings were tried in the Court of the Subordinate Judge who had jurisdiction to decide that matter. There was an appeal to this Court which affirmed the decision of the Subordinate Judge, and the matter might have been carried to a higher Court had the conditions satisfied the provisions of the Civil Procedure Code for its being carried to the Judicial Committee. The case reported in Lalit Mohan Das v. Radha Raman Saha [1911] 13 C.L.J. 547 cannot now, therefore, be treated as an authority which we are bound to follow. The same may be said of another case on which the respondents rely, Arunmoyi Dasi v. Mohendra Nath Wadadar [1893] 20 Cal. 888. In addition to the decisions of the Privy Council already cited the following cases decided by their Lordships may also be referred to on the question of res judicata. Badar Bee v. Habib Merican Nooridin [1909] A.C. 615, G.H. Hook v. Administrator-General of Bengal A.I.R. 1921 P.c. 11, Ram Kirpal v. Rup Kuari [1884] 6 All. 269, Beni Ram v. Nanhu Mal [1885] 7 Al. 102, Rameshwar Singh v. Hitendra Singh A.I.R. 1924 P.C. 202 and the principles laid down in all these cases have been followed by the Full Bench decision of the Bombay High Court in Kalyanchand Lalchand v. Sitbai Dhanasa [1914] 38 Bom. 309 and Maung Hmat v. Ma Htay A.I.R. 1928 Rang. 257. It appears from all these case3 that the real principle is that if a matter has been fought out in a Court having jurisdiction to decide that matter, the decision on that matter would operate as res judicata although the Courts might not be the same. Bui in the present case it is very difficult to say that the Subordinate Judge was not acting as a civil Court in deciding the previous case. Under the provisions of the Bengal, North-Western Provinces and Assam Civil Courts Act, Section 23, Sub-section 2(d) the District Judge may in certain circumstances transfer this class of cases to the Subordinate Judge, and when the Subordinate Judge is in seisin of a case of this class he does not cease to be a Subordinate Judge who exercises his ordinary jurisdiction.

7. In my opinion, therefore, the previous decision of the Subordinate Judge of 1912 on the question of the relationship of the Defendant No. 1 with reference to1 the parties to this suit should be held to operate a res judicata, as the issue was distinctly raised in the previous proceedings as to whether Dwijapada the son of Bhubaneswari was the sister's son of Nistarini's husband.

8. It is, however, said that if it was res judicata, that would bar the suit of Plaintiffs Nos. 2 and 3, bit it does not debar the Plaintiff No. 1 who derived title from Jogesh the son of Banwari from raining the same question as Banwari was no party in the previous litigation and that is what the Subordinate Judge has said in his judgment. The appellants, however, point out that Banwari was a party as will appear from the decree of the High Court to which Gokul carried his appeal. It is argued on behalf of the appellants that if Banwari was no party to the suit either as applicant or as objector it is difficult to imagine how he could have been made a party in the appeal in this Court where he was described as one of the objectors. The decree of the High Court will be found at page 82 of the 2nd part of the paper-book. The point that the respondents raise is that; you do not find the name of Banwari in the decree prepared by the trial Court. As there is nothing to show how Banwari was made a party in the appeal this matter seems to have been left in some obscurity. From the order of the Subordinate Judge in those proceedings (at page) 50 of the paper-book, part II) it appears that there ware two petitioners and nine objectors, which number does not appear in the decree. But at the same time we find that Banwari filed two petitions in the Probate case, one has been printed at page 40 in which he describes himself as the petitioner and his brother Gokul as the opposite party, and there is another petition printed at page 42 in which the cause title has been given as Gokul petitioner and Banwari opposite party.

9. From this it would appear that Banwari was the opposite party to the petition presented by Gokul for Letters of Administration. If that is so Banwari and his hairs would be as much bound by the decision in the previous case as the heirs of Gokul. But assuming that Banwari was no party, it is quite clear that Banwari never disputed the relationship of Defendant No. 1 Nistarini as claimed by him. There is a kabuliyat-executed by Banwari in favour of Defendant No. I which in marked Ex. A(3) in-January 1912, i.e., during the pendency of the proceedings for Letters of Administration. By that kabuliyat Banwari purported to take a lease of certain property from the Defendant No. 1 admitting, the relationship as claimed by the Defendant No. 1. The Subordinate Judge, seems to have held that this admission was made by Banwari for the purpose of defeating the claim of his brother Gokul because he was in dispute with his brother. The Subordinate Judie further seems to hold that the kabuliyat was not a bona fide and valid transaction and the recital in the lease cannot operate as an admission of the defendant's right. The kabuliyat was obtained by undue influence and so forth. No evidence of undue influence has been adduced in this case and the Subordinate Judge does not give, any sufficient reason why this admission by Banwari should not be taken as against him and his heir.

10. The next thing that requires consideration in this case is whether the Subordinate Judge is right in holding upon the evidence that the plaintiffs have succeeded in proving their title. The Subordinate Judge starts his decision with regard to that question by reference to the statements male by one Shyama Charan Nath who brought a suit in 1913 against Defendant No. 1 for possession of these very properties. In that suit Shyama Charan was defeated and because Shyama Charan stated in that suit that the maternal grandfather of Defendant No 1 was Ramdhan Dhar that statement seems to have been taken as evidence against the Defendant No. 1. In this there cannot be any doubt that the Subordinate Judge is clearly wrong. The next two documents which the Subordinate Judge has taken into consideration again are two genealogical tables filed by Gokul Sundari and Nistarini in 1899 and in 1907. Two different persons applied for revocation of the Letters of Administration granted to the ladies. In those proceedings those two ladies filed genealogical tables in support of their petition that the applicants for revocation of Probate were not entitled to come into possession of the properties tinder the terms of Will as the ladies had nearer heirs surviving. In these documents the name of Dwijapada as husband's sister's son of Nistarini does not appear. In the petition filed by those ladies they do not profess to give an exhaustive list of the heirs of Nistarini, but what they said was that they gave certain names as nearer heirs than the petitioners in those cases and they said that there were other heirs too. The omission of the name of Dwijapada cannot be deceive of the question of his not being related as he claim. The absence of his name may be explained in many ways. It may be that the ladies thought that the husband's sister's son was not an heir of stridhan property and they thought it was only necessary to give the names of Nistarini's husband's agnates, or it might possibly be duo to forgetfulness as Dwijapada was not a member of the family living in the village. The Subordinate Judge also relied upon certain rent decrees and proceedings which do not appear to be at all relevant to this enquiry or evidence against the defendant.

11. She next question is with regard to the oral evidence. The Subordinate Judge states in his judgment in more than one place that the decision of the Subordinate Judge in the Probate proceedings was based upon insufficient evidence. He seems to have been of opinion that Gokul was a very poor man and for that reason he was unable to cite any number of witnesses to prove that he was the nearest heir and not Dwijapada. The Subordinate Judge also comments on the fact that Gokul stupidly pleaded in the previous proceedings that Dwijapada was a person who was not known to him and no connexion with the family, and this plea enabled Dwijapada to establish the fact of his relationship with the family very easily. These are matters, however, which the Subordinate Judge ought not to have taken into consideration. If a man fighting a case fights it on false statements and does not call necessary evidence to support his own statements, he cannot afterwards gain any advantage for those omissions of his. He must be considered to be as much bound by that decision as he would have been if he pn6 forward a true case and called all the evidence that was available. (His Lordship then discussed the evidence and concluded.) It is difficult, no doubt, to prove the genealogy of persons who have died more than 50 years ago, and the Defendant No. 1, therefore, probably has not been able to give such satisfactory evidence as might have been expected. But defendant No. 1 has been in possession of this property as the nearest heir of Nistarini for nearly 12 years The burden on the plaintiffs must be very heavy to displace that title and they have certainly not succeeded in doing it.

12. On these grounds this appeal must be allowed and the suit dismissed with costs, in both Courts.

Panton, J.

13. I agree.