Sankaran Nair, J.:— This is an appeal by the plaintiffs from the decree of the Subordinate Judge of Masulipatam declaring that an alienation of the properties in suit in favour of defendant 2 by defendant 1, the widow of the last male owner, is not binding on them and defendants 3 and 4 who are expectant reversioners. Bapanna, the last male owner died in the year 1881. In 1882 his widow, defendant 1, sued to recover possession of the properties from defendant 2 who was the a minor. His father as his guardian contended in that suit that his son, defendant 2, was adopted by the deceased. The Court found that there was no such adoption and decreed possession of the properties to the widow, the plaintiff in that suit. In execution of the decree, she obtained possession and in 1897 she executed the registered deed of gift which the plaintiffs now seek to set aside.
2. The Subordinate Judge has held that the deed of gift is valid because defendant 1 was entitled to a moiety of the properties in suit under a will executed by her husband a few days before his death, by which he left a moiety of his properties to defendant 1 and the other moiety to defendant 2 who is his brother's son. The first contention raised in appeal is that defendant 2 is barred by the proceedings in that suit from relying on this will. The Sub-Judge is of opinion that there was no bar as defendant 2's guardian was guilty of gross negligence in defending that suit. The facts necessary for the decision of that question are these: In that suit the widow alleged that her husband executed a will on 8th May 1881, but a few days after the execution of the will he revoked it. The defence set up by defendant 2's father in the Court of first instance was that defendant 2 had been adopted by defendant 1, that he was not aware of the execution of the will and that even if the will was genuine, it was not valid against defendant 2. The Munsif found that the adoption set up by defendant 2's guardian was not proved. He also added that it was unnecessary to take any notice of the will as the evidence showed in his opinion that it was executed at a time when the testator was “distressingly ill” and as both parties deny the will. He accordingly decided in favour of defendant 1.
3. In appeal the Judge held that the adoption was not proved and as to the will, he observed: ‘It is remarkable with what caution both parties approach Ex. A. The defendants deny its authenticity. But as a pis aller elect, if the adoption is disallowed, to profit by its provisions to the extent of getting half the properties of the deceased for the minor defendant 2.” He then considered the evidence in the case and found that the will was genuine and that it was revoked. The Sub-Judge is of opinion that the plea of adoption set up for defendant 2 the former suit was false to the knowledge of his guardian and it was gross negligence on his part not to have relied on the will. I am of opinion that the Sub-Judge is right. There is no doubt from the evidence that the guardian, who was the father of the minor, must have known that the alleged adoption was false. Without his knowledge no such adoption could have taken place. The will was inconsistent with the adoption and be precluded himself from giving evidence about the genuineness of the will by setting up the false plea of adoption, which he did no doubt to obtain the entire properties of the testator for his son who under the will would have obtained only half. The case before us then is that of a guardian who deliberately sets up a false plea of adoption and fails to set up the claim of the minor under a will of which also he must have been aware. There is no doubt therefore that he was grossly negligent in the conduct of the suit. A minor is not bound by a decree passed against him if he shows that his guardian is guilty of gross negligence. I am of opinion therefore that the plea of res judicata cannot be upheld.
4. It is then urged that the widow was in possession of the property from 1883 to 1897, not as full owner claiming under the will, but only setting up a widow's claim to the property. It is denied that the widow got possession in 1883 and it is alleged that she took possession only in 1887. This contention was not raised in the lower Court and as further evidence will have to be taken if the plea is now allowed to be urged, we are not prepared to entertain it at this stage.
5. It was also contended that the widow having disclaimed her rights under the will, it is not open to her now to claim the property as it became vested in the heir-at-law. This plea also was not raised in the lower Court and as further evidence has to be taken, we cannot allow the appellant to raise it in appeal.
6. The next question is whether the will is genuine. It was produced with the plaint in the suit in 1882. It was proved in that case. It is also proved to be attested by the father of plaintiffs 4 and 5 who was a witness in that suit. The karnam of the village, who is an attesting witness, has been examined in this suit and he proves that the testator executed it of his own free will.
7. There is no evidence of the revocation of the will. It is true no doubt in the suit in 1881 it was found that the will was revoked. The evidence on which reliance was placed in that suit was of the father of plaintiffs 4 and 5. That evidence is not of much weight as he was an attesting witness and was trying to get rid of the will. There is the oral evidence of D.Ws 3 and 4, which the Sub-Judge has believed to show that the will is not revoked. We therefore disallow this contention.
8. For these reasons we confirm the decree of the lower Court and dismiss the appeal with costs.
Spencer, J.:— While agreeing with the view taken by my learned brother that defendant 2's father, while acting as his next friend in O.S No. 972 of 1882, was guilty of gross laches in basing his son's defence upon a false plea of adoption, which he must necessarily have known to be not true, instead of relying upon the will which has now been found to be genuine, I am further inclined to agree with the Subordinate Judge that no case of res judicata can arise in this suit by reason of the previous litigation. My grounds are these. The widow was the plaintiff in the former suit and seeing that she and defendant 2 in this suit were then in competition for the right to succeed as heirs to the deceased Bapanna, the widow's cause of action appears to have been a personal one. But assuming for the sake of argument that she represented the estate of the deceased, it appears that the reversioners, who are the plaintiffs in this suit, are neither claiming under her in the present litigation nor were represented by her in the former litigation. For the widow being still alive and appearing as defendant 1 in this suit, must be treated as the representative of the estate in this suit, if the estate is represented at all. As it stands to reason that an estate cannot be represented in one and the same suit by two representatives, each with interests adverse to the other, it follows that while she lives, the reversioners do not represent the estate when she dies, and therefore they are not bound by any decision obtained for or against her acting in her capacity as representative of the estate. Moreover in a suit to which no strangers are parties, each member of the family must ordinarily be considered to litigating for his own benefit and not for the benefit of the estate: vide Ashgar Raza Khan v. Mahamad Mehdi Hossein Khan(1). On the other points arising in the appeal, I adopt the view taken in my learned brother's judgment and I agree that the appeal should be dismissed with costs.
S.N/R.K
9. Appeal dismissed.