1. The following pedigree shows the relationship between the parties:
BIRBAL, ____________|_____________ | | Ram Karan, Moti, | | Mohar Singh, _______|______ _______|_________ | | | | Jagrup. Rajrup, | | | Ganga Bishan, Niadar Khiinma, | plaintiff. plaintiff. | Tarif= Musammat Sujani | Dharam Singh.
2. It is common ground that the pro-party in suit belonged to Tarif who died in February 1907. The property then according to the plaintiffs passed on to his son Dharam Singh who died in April 1907. On his death his mother Sujani inherited it. On 2nd July 1912 Musammat Sujani executed a deed of mortgage of this property in favour of the second defendant for Rs. 300. The plaintiffs who are the next reversioners to the estate according to the pedigree set forth above sue to obtain a declaration that the said mortgage was made without any legal necessity or consideration and is null and void as against them, and not binding upon them as next reversioners to the estate. The defence to the suit inter alia is that the plaintiffs are not reversioners of Dharam Singh and that the pedigree set up by them is not correct.
3. The Court of first instance found that the pedigree set up was fully established, and that the mortgage impugned was not shown to have been made for legal necessity. It decreed the claim of the plaintiffs.
4. The learned Subordinate Judge in appeal has reversed that decree, on the ground that the plaintiffs have failed to prove their pedigree. He has, of course, not tried the question of legal necesstiy, but has dismissed the suit upon the preliminary ground mentioned above.
5. So far as the question of the proof of the pedigree relied upon by the plaintiffs (apart from the question of res judicata) is concerned, the question is one of fact and I am, bound in second appeal to accept that finding and to hold that the plaintiffs have failed to prove it.
6. Mr. Benode Behari for the appellants has, however, argued that that question was res judicata, having been decided in favour of the plaintiffs in a former suit on 22nd January 1909. That was a Similar suit instituted by the plaintiffs against Musammat Sujani and one Bhikoo to set aside a lease which Musammat Sujani had executed in favour of the latter. The plaintiffs as the next reversioners of Dharam Singh had claimed a similar declaration. The decree in the suit was based upon a compromise under which Bhikoo consented to a declaration being made that the lease was inoperative beyond the life-time of Musammat Sujani and that the plaintiffs were the next reversioners to the estate of Dharam Singh. The decree so far as Musammat Sujani was concerned was made ex parte, and it in terms declared that the plaintiffs were the next reversioners. More than three years after that decree, Musammat Sujani has made the transfer now impugned. The present transferee, Mehar Ilahi Khan, was, of course, no party to the former suit, but it is urged that he is a transferee from the first defendant against whom the former decree bad been made on 22nd January 1909. He is claiming under her and is bound by the adjudications obtained against her.
7. This contention has been repelled by the learned Judge on two grounds viz:
(1) that the present defendant Mehar Uahi Khan was no party to the former suit;
(2) that the suit was "never heard and decided after a fair trial but was only compromised.
8. Before dealing with this contention, it would be perhaps as well to deal with a minor question upon which the Court below has partly based its judgment. That Court has held that it has not been proved that Dharam Singh (who was alleged to have died about a couple of months after his father) survived his father. If this be so, and I must take it to be so as a fact found, the plaintiffs are still the real reversioners of the property which on this finding must be deemed to be the estate of Tarif, its last full owner. The title of Musammat Sujani, is that of a Hindu widow succeeding to her husband's estate. Tin's finding makes no material difference in the plaintiffs' case.
9. I now return to the question of res judicata. It is true that Mehar Ilahi Khan was no party to the former suit, but his mortgagor under whom he claims was a party to it. He is a transferee from her after the decree had been made, and is bound by the adjudications arrived at against her to the same extent as she is bound by them. In Lord Halsbury's Laws of England, Vol. 13, the law is thus laid down at page 346:
"in order that a judgment may be conclusive against a person as privy in estate to a party litigant it is necessary to show (apart from his taking with a notice of a lis pendents), that he derives title under the latter by act or operation of law subsequent to the recovery of the judgment."
See also In Re: Burgho's Estate (
1896) 1 Ir. Rep. 274 :
2 Ir.L.R. 491 .
10. In Mr. Hukum Chaud's work on the Law of Res Judicata the American Law on the subject is thus enunciated at page 185: It is quite a general rule, in fact, that to create the relation of privity, the person to be bound by the judgment must be one who claims an interest in the subject-matter affected through or under one of the, parties, and he must claim it as acquired after the rendition of the judgment. It was held in Hunt v. Haven 52 N.H. 162 that one cannot be a privy in estate to a judgment or decree unless he derives his title to the property in question, subsequent to, and from some party who is bound by, such judgment or decree.' Thus a mortgagee is in privity with a mortgagor as to all that happened before the execution of the mortgage, and not in regard to anything happening afterwards."
11. The law on the subject in India has been considered in a recent case in the Madras High Court Seshappaya v. Venkatramana Upadya 5 Ind. Cas. 732 : 33 M. 459 : 20 M.L.J. 752 : (1910) M.W.N. 26 . At page 462 their Lordships, (Miller and Sankaran Nair, JJ.) observe as follows:
"The rule that the interest to be bound, must be acquired after the action, is supported by the English cases of Doe dem Thomas Foster v. Marl of Derby
1 A.&E. 783 :
110 E.R. 1406 :
3 N.& M. 782 :
3 L.J.K.B. 191 :
40 R.R. 423 and Mercantile Investment and
General Trust Co. v. River Plate Trust, Loan and Agency Co., (
1894) 1 Ch. 578 at p. 595 :
63 L.J.Ch. 366 :
8 R. 791 :
40 L.T. 131 :
42 W.R. 365 and many American cases are cited in support of it in the work we have quoted."
12. It is thus evident that the defendant No. 2, being a transferee by way of mortgage subsequent to the decree, is bound by the adjudications contained therein against his treansferor.
13. The next question is whether the decree is binding en him though made ex parte or based on a compromise. The question was considered in In Re: South American and Mexican Co., Ex parte Bank of England (1896) 1 Ch. 37 : 64 L.J.Ch. 189 : 12 R. 1 : 71 L.T. 594 : 43 W.R. 131. Vaughan Williams at page 45 of the report states:
Under these circumstances I have only to consider, with reference to the second question, Mr. Moulton's suggestion, that a judgment by consent, upon which the Court has not exercised its mind, does not and cannot raise an estoppel inter paries. I can only say this is the first time I have ever heard such a proposition suggested. It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial. discretion in the matter. The basis of the estoppel is that, when parties have once litigated a matter, it is in the interest of the estate that litigation should come to an end; and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end.
14. The case went up in appeal and Lord Herschell, L. C, thus summed up the law in his judgment: The truth is, a judgment by consent is intended to put a stop to' litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end." His Lordship dismissed the appeal. Lord Justices Lendely and Smith concurred in that order.
15. The same view was taken by Lord Esher, M. R., in The Bellcairn 10 P.D. 161 : 55 L.J.P. 3 : 53 L.T. 686 : 34 W.R. 55.
16. Mr. Hukum Chanel in his work on the Law of Res Judicata, page 126, cites several cases to show that the American Courts take the same view.
17. The same view has been taken in India Tide Lakhsmishankar Devshankar v. Vishnurmn 24 B. 77 : 1 Bom. L.R. 534 and Shib Lal v. Gouri Prasad 2 C.W.N. 174 .
18. An ex parte decree is as much binding upon the parties as a decree based upon a judgment passed after contest between the parties. I have, therefore, no hesitation in holding that the decree is binding upon defendant No. 2, just in the same way as upon defendant No 1. The learned Subordinate Judge observes that the case was never heard and decided after a fair trial, but was only compromised."
19. In making this observation he has probably in mind the cases where decrees had been obtained by a stranger to the family against a Hindu widow in the possession of her husband's estate. It has been held that in such cases a decree fairly obtained after contest against the widow is binding upon the reversioners. It is necessary to show that a decree was so obtained to make it binding, not upon the widow alone, but also upon the reversioners. In this case it is not sought to do so against the reversioners. All that is sought in this case is to make the decree binding upon a person who claims title under the lady, and under her alone. There is no suggestion or proof that the compromise was obtained by fraud or misrepresentation or that it was not fairly obtained. The decree in the former suit clearly declares that the plaintiffs are the next reversioners to the estate. It gives effect to their claim by holding that the lease was binding only during the lady's life-time. I must, therefore, hold that the question of the status of the plaintiffs as next reversioners is res judicata and cannot be re-opened either by Mnsammat Sujani or by any one claiming under her by a title derived after the decree.
20. I set aside the decree of the lower Appellate Court and allowing the appeal 'direct the Court below to restore the appeal to its file of pending appeals under Order XLI, Rule 23, of the Code of Civil Procedure, 1908, and to hear and dispose of the same in accordance with law. Costs here and hitherto incurred by the parties will be costs in the case.