Manohar Lall, J.:— The question for decision in this appeal by the defendant which has been referred to a Division Bench by a learned Single Judge of this Court is whether the suit of the plaintiff is barred by the principle of constructive res judicata.

The facts lie in a narrow compass: Hitlal Rai a separated member of a joint family had two sons, Pulkit Rai and Mahadeo Rai, the father of the plaintiff Krishna Ballabh Rai. Pulkit and Mahadeo also were separate so that Pulkit became entitled to a separate share in the properties including the properties in suit. After the separation from Mahadeo Rai, Pulkit Rai sold 1 bigha and 13 kathas of land to the plaintiff on the 21st January, 1926. A few months after, Pulkit Rai executed a sale deed in favour of his daughter Mussammat Thakani with respect to 16 kathas 15½ dhurs of land on the 10th April, 1926—this 16 kathas and odd land was a portion of the land covered by the sale deed of January 1926. Pulkit Rai died in 1937 and his estate descended to Mussammat Thakani who took possession as a Hindu widow's estate. She died in 1939, but before her death she executed a deed of gift in favour of Mussammat Mantorni, the appellant before us.

The present suit was instituted on the 20th of January, 1945 by Krishna Ballabh Rai for a declaration that the deed of gift was a fraudulent transaction and Mussammat Thakani was not in a conscious state of mind during her illness. It is claimed in the first place that Pulkit Rai had no right left in the property in suit after he had executed the sale deed in favour of the plaintiff in January 1926, and secondly, that even if he had any title the plaintiff being the reversioner of Pulkit is entitled to possession on the death of the last limited owner, namely, Mussammat Thakani, who died in 1939.

In the court below the plaintiff did not press his claim so far as it related to 16 kathas 15½ dhurs of land which had been transferred by Pulkit to his daughter as at the time of the transfer Pulkit had a right to make a transfer because it has been found by the courts below that the sale deed by Pulkit in favour of the plaintiff remained inoperative. The contest between the parties, therefore, was confined to that part of the land in suit which was in possession of Mussammat Thakani as a Hindu widow's estate and which she transferred by the deed of gift in favour of the appellant Mussammat Mantorni.

In order to appreciate the plea of res judicata it should now be stated that in the year 1941 Partition. Suit no. 67 was instituted by Mussammat Mantorni against the plaintiff, his father and other agnates in respect of the disputed lands, the plea of the plaintiff that he was no party to that suit had been found to be false by the courts below. The judgment and decree of that suit are Exhibits E and E1. The plaintiff in that suit claimed to be in joint possession with all the defendants and wanted a separation of her share basing the title on the deed of gift by Mussammat Thakani on the 14th of September 1938. The agnates did not appear, but only the plaintiff and his father contested the suit. They denied that the plaintiff had any title because by virtue of the sale deed, dated the 21st January, 1928 executed by Pulkit Rai, above referred to, Pulkit Rai had no right to make a kebala in favour of his daughter, the genuineness and validity of the kebala and the deed of gift were also denied. The trial court came to the conclusion that the kebala in favour of the defendant (the plaintiff in the present case) was never given effect to. The present plaintiff did not set up his title as a reversioner in that suit. The result was that Mussammat Mantorni was held entitled to the right claimed by her namely, of separate possession of the property conveyed to her by Mussammat Thakani. This decision was upheld in appeal by the additional Subordinate Judge.

It is claimed on behalf of the appellant that this decision operated as res judicata because the plaintiff ought to have set up his title to claim the property as the reversioner in the partition suit in which the title of the parties was directly and substantially involved. On the other hand, it has been urged on behalf of the plaintiff that the only title, which was litigated in those proceedings was the title of the defendant based upon the sale deed of January 1926 and that he did not put forward his claim based upon his right as a reversioner, because it was open to him to await the result of that suit.

The learned Munsif came to the conclusion that in the partition suit the rights of the parties had been finally heard and decided, and that even though the plaintiff had brought the suit on a different title but the different right was not being claimed. Accordingly he took the view that the principle of constructive res judicata applies against the plaintiff, and he dismissed the suit.

In appeal, the learned Additional Subordinate Judge of Darbhanga has taken a different view. He thinks that

“so long as the contest in the above partition suit and appeal lasted the plaintiff's title as a reversioner to Pulkit Rai had not accrued to him. He could not therefore put forward any defence on the ground that the deed of gife executed by Mussammat Thakani in favour of Mantorni was illegal and invalid as against him. The matter in issue now therefore cannot be said to have been directly and substantially in issue in the previous partition suit.”

Accordingly he did not agree with the view of the constructive res judicata which appealed to the learned Munsif and he reversed his decision, and the appeal was allowed and the suit of the plaintiff with regard to half property was decreed. Hence, the second appeal to this Court.

Upon a perusal of the judgments which were placed before us by Dr. Mitter we decided to call upon the learned Advocate for the respondents at once to satisfy us how in these circumstances the principle of constructive res judicata had no application.

Mr. R.K Choudhury in the course of his able argument cited a number of cases and contended that the plaintiff was not litigating under the same title in the partition proceedings as he is litigating in the present proceeding, and therefore, the principle of constructive res judicata has no application. He also developes his argument by urging that it was open to the plaintiff as the reversioner to wait till such time as he chose to elect whether he would or would not affirm the transaction entered into by the last limited owner. He, therefore, urges that the plaintiff elected to ignore the transaction only by instituting the present suit in 1945.

In my opinion, the question can be satisfactorily decided by referring to the decision of their Lordships of the Privy Council in the case of Tekait Doorga Prasad Singh v. Tekaitni Doorga Konwari and the terms of Explanation 4 to section 11 of the Civil Procedure Code of 1908.

Their Lordships referred to a number of cases in Doorga Prasad's case and held that when a plaintiff claims an estate, and the defendant resists that claim he is bound to resist it upon all the grounds that it is possible for him according to his knowledge then to bring forward. This is exactly the same what Explanation 4 enjoins. To the same effect is a later decision of the Privy Council in Fateh Singh.

Applying this principle to the facts of the present case I am clearly of the opinion that the plaintiff might and ought to have set up his claim as a reversioner to deny and destroy the title claimed by the plaintiff in that suit—the matter would have been different if the title of the plaintiff had not accrued to him as a reversioner. It may be observed that the plaintiff did attempt to urge that the title to him as a reversioner did not accrue when the partition proceedings were going on. But this is incorrect, and this line of argument has not been pursued by the learned Advocate for the respondents. Indeed, the learned Subordinate Judge thought that the plaintiff's title as a reversioner had not accrued to him so long as the contest in the proceedings and the appeal lasted. I am unable to appreciate the force of this view. The title to the plaintiff accrued as a reversioner on the death of Pulkit Rai and not on the close of the partition proceedings. The plaintiff, in my opinion, rightly has been found to be barred by the principle of res judicata by the trial court.

I now propose to deal with the cases cited by Mr. Chaudhury.

The first case relied upon was a Patna case, Teju Bhagat v. Deoki Nandan Prosad. The plaintiff brought a suit against the defendant for recovery of money on the basis of a promissory note; but the suit was dismissed and the pro-note was found to be not genuine. Thereupon the defendant prosecuted the plaintiff for committing forgery, but the plaintiff was acquitted on the finding that the criminal court was not satisfied that the hand-note was a forgery. The plaintiff now sued the defendant for damages for malicious prosecution. It was held by Mullick, J., Sir Ali Imam, J. agreeing that the finding as to the genuineness of the pro-note in the previous suit was not res judicata in the suit for malicious prosecution, because the plaintiff was not litigating under the same title in both the suits. With great respect I am unable to agree with this decision. The learned Judges did not consider that the issue as to the genuineness of the pro-note in both the suits was identical. The facts of that case are peculiar and have no bearing on the facts of the present, case. Therefore, it is unnecessary to pursue the matter further. It has been held in a large number of cases that the identity of the issue is the proper test to apply. See Krishna Behari Roy.

In the case of Kanhaiya Lal v. Ashraf Khan, the head-note states that it is not obligatory on a party seeking to protect certain property as waqf property from an impending sale to assert in the same suit any personal right thereto to which he may afterwards find himself entitled in case the property in question is not found to be waqf property, that it is immaterial whether he could have joined in the previous suit an alternative claim for the protection of his personal share; because there was no obligation to join the two claims, and his omission to set up the personal title in the previous suit would not bar the decision of that matter in a subsequent suit. The learned Judges pointed out that the previous suit was brought for protection of what was described as public property claimed by the plaintiff as being waqf. The present suit is entirely different, and the capacity in which the plaintiff sued in the former suit is not the same capacity in which he is now suing. It will be noticed that in this case the plaintiff had two capacities, one public or as a trustee and the other private capacity. He could not in the same breath give evidence that the property was public property and therefore should, not be sold, and at the same time give evidence that the property was his own property and therefore was not liable to be sold. In such cases the union of dissimilar matters and contradictory evidence would be confusing and embarrassing. See Kameshwar Pershad's case where their Lordships at page 238 observed: “That it ‘ought’ to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word ‘ought’ would become important; in this case the matters were the same.” The facts of this case are interesting in that although Run Bahadur was joined defendant, no relief was claimed against him personally as the plaintiff wanted a mortgage decree upon the whole state. The plaintiff obtained a personal decree against the Rani and he was now debarred from instituting another suit to claim a personal decree against Run Bahadur on the ground of Explanation 4 to section 11 of the Civil Procedure Code.

In Hazari Singh v. Jhuna Singh it was held that if the plaintiff claims title through one person and the court finds that title is in another person and so dismisses the claim, the subsequent suit by the same plaintiff claiming title through the other person in whom the court found the title is not barred by res judicata. In this case the former suit was based upon the ground that the property belonged to Kauleshar, but it was found that it did not belong to Kauleshar. The plaintiff then brings the suit for a declaration that he is also an heir to somebody Mussammat Kali Kunwar, so he is entitled to a share. This decision is clearly supportable on the ground mentioned by me above.

In Mussammat Gaura Dei v. Raja Mohammad Yasin Ali Khan the head-note accurately states that where a person was defending his title as purchaser of a particular share in a village in the former suit and subsequently sued on his title as purchaser of a different share in the same village he was not litigating under the same title in the subsequent suit, and therefore, the decision in the former suit cannot operate as res judicata. A discussion of the matter on the question will be found at page 379 where it has been pointed out that the subject matter of the present suit is a fourteen annas share in the village excluding the two annas share in respect of which the rights of the parties had been finally decided by an earlier compromise of 1915—the mortgagee Tights of Bisheshwar Singh were never in dispute in the pre-emption suit brought by him in 1914 to pre-empt a two annas share sold by Ali Bahadur Khan to one, who was not a co-sharer in the village. The learned Judges directed their attention to Explanation 3 only, and not to Explanation 4, as upon the admitted facts nobody argued that the matter in issue now ought to have been raised in the previous suit. To use the language of the Privy Council in 19 Indian Appeals 234, it is a question of fact in each case where the matter not only might have been raised but ought to have been raised in the former suit.

The judgment of the Calcutta High Court in Subodhchandra Niyogi v. Bhubalika Dasee was also relied on, but only to illustrate the meaning of the phrase ‘litigating under the same title’. I do not see anywhere in the two judgments of the learned Judges that any argument based upon section 11 of the Civil Procedure Code was advanced. All that appears to have been decided was that a person who is in possession of the property is not stopped from questioning the validity of a will disposing of the properties in question merely because he has taken out probate of the will.

The last case relied upon was a Full Bench case of the Calcutta High Court, Denobundhoo Chowdhry v. Kristomonee Dossee, a case decided under the Civil Procedure Code of 1859. This case decided the meaning of the second section of the Civil Procedure Code which enacts,

“that the Civil Courts shall not take cognizance of any suit brought on a ‘cause of action’ which has been heard and determined by a Court of competent jurisdiction, in a former suit between the same parties”.

The head-note states, that certain property, originally belonging to the husband of the plaintiff, was conveyed by him by deed of gift to his daughter, after her marriage with the defendant, as her stridhan; and some years after the daughter's death, the plaintiff brought a suit to recover the property, on the ground that the deed of gift was a forgery; but the suit was dismissed, the deed of gift being found to be genuine. In a suit subsequently brought to recover the same property on the ground that the plaintiff was the heiress of her daughter, it was held that the suit was barred by the rule of res judicata. I am unable to see how this case helps the respondents. It rather confirms the view that the plaintiff should have instituted the suit to recover the property as the cause of action accrued to her on the date of the death of her daughter, and she was not suing in two different capacities like the cases referred to above where the plaintiff sued in his capacity of a Mutwali in the former suit and in the latter suit as claiming the property as an owner himself. The judgment of Kemp, J. at page 173 shows that the majority of the Full Bench were of the opinion that the plaintiff in that suit had to make out a title to possession such as to prevail against the defendant and that it was true that the title set up in the present suit was different from the title set up in the former suit, but the cause of action remained unchanged. The learned Judge goes on, “The title she now sues upon was a title which she could have set up in the first suit, as it is admitted that both her husband and her daughter were dead, and had been so for many years when she brought her first suit. If she omitted to put forward her strongest or any title then available to her and within her cognizance, ‘so much the worse for her,’ to use the words of Phear, J., in his decision in Urmtara Debia v. Krishna Kamini Dasi (2 Bengal Law Report, A.C 102) which decision was affirmed by the Privy Council.”

The position is exactly the same here. The plaintiff as a defendant was resisting the claim of Mussammat Mantorni in the partition suit at a time when both Pulkit and Mussammat Thakani were dead. There was no embarrassment, the two pleas were not inconsistent and there was nothing embarrassing or confusing if he had set up his title as a reversioner also in that, suit.

For these reasons, none of the cases relied upon by Mr. Chaudhury assists him in the view which he asks us to take.

It was then argued that the plaintiff as a reversioner was not bound to elect at any particular time and it was open to him to make the election after the decision of the partition suit wherein he was basing his title upon the sale deed executed by Pulkit himself. It is enough to state that it is quite open to a reversioner to await before he makes any election provided 12 years have not elapsed from the date of the death of the last limited owner in possession. But he must not do any act in the mean time which may amount directly or indirectly to his affirming the transaction impugned. In the present case the plaintiff by his conduct and by his refusing to act upon the title which would be in him as a reversioner must be taken to have elected to affirm the transaction if the title is found to be with Pulkit in 1926. The scope of a suit by a reversioner who does not like to affirm the transaction by the limited owner has been examined by the Privy Council in Bijay Gopal Mukerjee. See also Ramsumran Prasad and Maharaja Kesho Prasad Singh. The matter is now well settled and there is no room for the application of the principle to the facts of the present case. I am of the opinion that the decision of the learned Subordinate Judge is erroneous in law and must be set aside. I would allow the appeal, restore the decision of the learned Munsif and dismiss the plaintiff's suit with costs in all the courts payable to the appellant Mussammat Mantorni Missaraini.

Mahabir Prasad, J.:— I agree.

S.H

Appeal allowed.