Mookerjee, J.:— The subject matter of the litigation which has culminated in this appeal is immoveable property which, according to the Plaintiffs-Respondents, belonged to one Pulin Paramanick who died in 1865. Pulin left a widow, Khudumoni, who died on the 15th November 1907. A few days before her death, Khudumoni, it is alleged, executed a deed of gift in respect of the disputed properties in favour of the Defendant-Appellant. The Plaintiffs claim to be sons of the sister of Pulin and thus entitled to take the disputed properties as reversionary heirs to the estate of their maternal uncle. Immediately after the death of Khudumoni, on 5th December 1907, they applied for letters of administration to the estate of Pulin Paramanick and his widow, Khudumoni. The requisite notices were issued, and the Appellants, on the 3rd January 1908, put in a petition of objection, in which he denied that the applicants were the nephews of Pulin and entitled as such to letters of administration to the estate left by him. Evidence was adduced on both sides, and, on the 27th February 1908, the District Judge held that the Petitioners were not entitled to letters of administration, as they had failed to establish relationship with the deceased as alleged by them. On the 6th April following, the Plaintiffs commenced the present action for recovery of possession and mesne profits upon declaration of their title by inheritance. The. Defendant resisted the claim on the ground, that the matter was res judicata. He also denied that the disputed properties formed part of the estate of Pulin Paramanick. The Subordinate Judge held on the authority of the case of Karutulain v. Nazbutuddowla(1) that the question of the relationship of the Plaintiffs to Pulin Paiamanick was res judicata and could not be re-investigated. In this view, he dismissed the suit with costs. Upon appeal, the learned District Judge held upon the authority of the cases of Arunmoyi v. Mohendra Nath(2), Jaggannath Prasad v. Runjit Singh(3) and Gonesh Jagannath v. Ram Chandra(4), that the matter was not res judicata. He, therefore, reversed the decision of the Subordinate Judge, and remanded the case for trial on the merits.

The Defendant has now appealed to this Court, and, on his behalf, the objection taken in the Courts below has been reiterated, namely, that the question of the relationship of the Plaintiffs to Pulin Paramanick is res judicata, and is not open for fresh investigation. In support of this position, reliance has been placed upon the cases of Ramnandan v. Sheoparsan(5), Barrs v. Jackson(6), Spencer v. Williams(7), Karutulain v. Nasbutuddowla, and In re Pitambar Girdhar(8). In answer to this contention, the learned Vakil for the Respondent has argued, that the decision of the Probate Court does not operate as res judicata, because, first, the Probate Court was not competent to try the present suit; and, secondly, the matter now directly and substantially in issue, was not directly and substantially in issue in the proceedings for grant of letters of administration, but arose only incidently for the determination of the question of representation to the estate of the original owner. In support of this argument, reliance has been placed upon the cases of Arunmoyi v. Mahendra Nath, Jaggannath v. Runjit Singh, Ganesh Jagannath v. Ram Chandra and Concha v. Concha(9). The cases, relied upon on behalf of the Appellant, have been sought to be distinguished on the ground, that they either contained obiter dicta not binding upon this Court, or were decided under a different system of law so as to be inapplicable to judgments of Probate Courts in this country. After a careful consideration of the arguments addressed to the Court on both sides, I have arrived at the conclusion that the decision of the district Judge must be affirmed.

Under sec. 13 of Act XIV of 1882, which was in force when the present suit was instituted, the Defendant must prove, in order that the decision of the Probate Court may operate as res judicata, first, that the Probate Court was a Court of jurisdiction competent to try the present suit: and, secondly, that the matter now directly and substantially in issue was directly and substantially in issue in a former suit, and that the proceeding in the Probate Court was a suit within the meaning of this rule. In so far as the first of these elements is concerned, it is to be observed that under sec. 51 of the Probate and Administration Act, 1881, jurisdiction is conferred upon the District Judge to grant and revoke probates and letters of administration in all cases within his local jurisdiction. Under sec. 87, the High Court has concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge-Under sec. 23 of the Bengal Civil Courts Act, 1887, a Subordinate Judge or a Munsif may be authorised, by a general or special order of the High Court, to exercise under the Probate and Administration Act the jurisdiction vested in the District Judge. Sec. 24 then provides, that these officers will deal with the cases under rules applicable to like proceedings when disposed of by the District Judge, subject to the qualification that when a Munsif deals with the matter, a first appeal lies from his order to the District Judge whose order may be questioned on appeal before the High Court. The appeal against an order of the Subordinate Judge, however, in a case disposed of by him, lies to the High Court, under sec. 86 of the Probate and Administration Act, in the same manner as against an order of the District Judge himself. It is clear, therefore, that the jurisdiction which a Court of Probate exercises, whether the presiding officer be the District Judge or a Subordinate Judge or a Munsif, is special jurisdiction distinct from the ordinary jurisdiction of the Court. I am, therefore, not prepared to accede to the contention of the learned Vakil for the Appellant that when a question of res judicata arises the Courts should be treated as identical. The special jurisdiction, so far as Hindus are concerned, was created when by sec. 2 of the Hindu Wills Act, 1870, as it stood before its amendment by sec. 154 of the Probate and Administration Act, 1881, the provisions of Part XXXI of the Indian Succession Act, 1865, relating to grants of probate and letters of administration with the Wills annexed, were made applicable to Hindus. Sec. 23 of the Probate and Administration Act, however, read with sec. 51 confers upon the District Judge jurisdiction to grant letters of administration in cases of intestacy also, and the grant is directed to be made to the person who would be entitled to the whole or any part of the estate of the deceased according to the rules for the distribution of the estate of an intestate applicable to his case. Under these circumstances, I am not prepared to hold that the Court which refused the application for letters of administration was a Court competent to try the present suit within the meaning of sec. 13 of the Civil Procedure Code of 1882. It was not competent to that Court to determine the question of title to the disputed properties and the mode of their distribution, now in controversy between the parties to this litigation. The jurisdictions of the two Courts are entirely distinct and though the same officer may preside in both the Courts, the functions he discharges and the questions he investigates are radically different in scope and character.

A useful analogy is furnished by the cases under the Land Acquisition Act, 1894, in which it has been held that the decision of a Land Acquisition Judge, as an adjudication by a special tribunal constituted for a special purpose, does not operate as res judicata in a subsequent title suit, though the decision is final and conclusive for the purpose of the proceeding before the Land Acquisition Judge, Nobodeep v. Brajendra Lall(10), Dirgaj Deo v. Kali Charan(11) and Mahadevi v. Neelamani(12). The case of Ram Chunder v. Madho Kumari(13) is not opposed to this view, as there the decision was in a civil suit for apportionment. But although this is so, parties cannot reopen matters which have formed the precise subject-matter of investigation by the Court of special jurisdiction [Nilmani v. Rambundhu(14) and Chowakaran v. Vayyaprath(15)]. To put the matter in another way, when a special Court has been created to exercise special jurisdiction, there is no conflict with the jurisdiction of the ordinary Court, because, admittedly, this latter never possessed the jurisdiction which is for the first time conferred by statute for a particular purpose: to hold that a Court of such special jurisdiction is identical with a Court of ordinary original civil jurisdiction is to overlook a distinction of fundamental importance. The first element, therefore, essential to make the rule of res judicata applicable, is absent in the present case. As observed by their Lordships of the Judicial Committee in Gokul Mandar v. Pudmanund(16), in a matter like this, the Code must be taken 10 be exhaustive, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. Shib Rout v. Baban Rout(17).

In so far as the second element is concerned, namely, whether the question, now directly and substantially in issue, was directly and substantially in issue in the proceedings for letters of administration, the answer must depend upon the nature and scope of the previous proceedings. The question then before the Court was one of representation of the estate of the deceased and not of distribution. It was only for the purpose of determining the question of representation that the Court was called upon to decide whether the then Petitioners would be entitled to the whole or any part of the estate of the deceased within the meaning of sec. 23 of the Probate and Administration Act. It was not competent to that Court to decide any question of title to the properties: obviously that Court could not decide the extent of the estate of the deceased [Behari Lall v. Juggomohan(18), Raghunath v. Pate Koer(19) and Ochavaram v. Dolatram(20)], the Court was competent to deal with the question of representation and administration of the estate of the deceased, and whatever investigation was held was incidental to that purpose and that purpose alone. The view I take is in accord with the decision of this Court in Arunmoyi v. Mohendra Nath. In that case, an application was made for letters of administration to the estate of one Narendra Nath by his two surviving brothers, on the ground that they were residuary legatees under his Will. The application was opposed by the widow on the ground that upon a true construction of the Will there was no residuary bequest and that the Petitioners were not entitled to letters of administration under sec. 19 of the Probate and Administration Act. The High Court of Allahabad which construed the Will, held that there was a residuary bequest in favour of the brothers, and granted letters of administration to them. The widow then sued, in the Court of the Subordinate Judge of the 24-Pergunnahs, for possession of the estate. Her brothers-in-law defended the suit on the ground that the matter was res judicata and that the residuary bequest was in their favour. The Subordinate Judge gave effect to this contention and practically dismissed the suit. Upon appeal, it was ruled by this Court that the matter was not res judicata, because the only question which could be decided by the Court which had granted letters of administration was the question of representative title within the meaning of sec. 59 of the Probate and Administration Act, and that the question of the construction of the Will was but an incidental question, which the Court had to consider in determining whether the brothers of the deceased were entitled to letters of administration in respect of his estate. This principle, in my opinion, is indubitably applicable to the present case. The Court of Probate has decided against the representative character set up by the Plaintiffs. That decision, for the purposes of the controversy then before the Court, is final under sec. 41 of the Indian Evidence Act, and operates as a judgment in rem. [Chinnasami v. Hariharabadra(21)]. It has conclusively decided that the present Plaintiffs, then Petitioners, were not entitled to letters of administration to the estate of Pulin Paramanick. But although this question cannot be reopened and readjudicated, it would not be right to hold that decision has also finally concluded the parties upon the question of title to the properties in controversy in this suit. The view I take is supported by the cases of Jaggannath Prasad v. Runjit Singh and Ganesh Jaggannath v. Ram Chandra.

It was argued, however, by the learned Vakil for the Appellant that this view cannot be reconciled with the decision in Ramnandan v. Sheoparsan Singh. In my opinion, the decision relied upon is distinguishable and is of no assistance to the Appellant. As will be more fully explained by my learned brother in his judgment, the facts of that litigation were very peculiar: A Will had been set up in the Court of Probate, alleged to have been executed by one Bechu Singh. The caveators were met by the plea that they were not the next reversioners, and had no locus standi in the probate proceedings. This objection was successful and probate was granted. The grant was ultimately confirmed on appeal to this Court. The caveators then commenced a suit for declaration that they were the next reversioners, that the decision of the Probate Court was erroneous and that the grant of probate was not operative as against them. Under these circumstances, this Court held that the suit was not maintainable. Possibly if some of the observations of the Court are taken apart from the circumstances of that litigation, they may lend an apparent support to the contention of the Appellant. But it is profitable to bear in mind the observation of Lord Halsbury, L.C, in Quinn v. Leathern(22), that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. In the case to which reference has been made, the Will had been found genuine by the Probate Court. If the probate remained in force, it was impossible for the caveators to succeed in their claim. They were consequently driven to sue for a declaration that the decision of the Probate Court was erroneous and was inoperative as against them. The attempt was as hold as it was futile. The Court of Probate was the only Court competent to decide the question of genuineness of the Will, and also to determine for that purpose who were the parties competent to be heard before the adjudication was made. The Civil Court could give no declaration to nullify the decision of the Probate Court, and to compel that Court, as it were, to reverse its decision and recall the probate. Similarly, in the case before us, if the Plaintiffs sought for a declaration that they were entitled to letters of administration in spite of the adverse decision of the Probate Court, their claim could not possibly succeed. But they are no longer concerned with the question of administration, possibly because, as happens frequently, Lakskmi Narain v. Nanda Rani(23), there is really nothing to administer. They are not anxious to establish a representative title as against all debtors of the deceased and persons holding property which belonged to him. They seek, on the other hand, to establish their title to properties which they claim as the nephews of the deceased. In my opinion, the decision in the case of Ramnandan v. Sheopursan does not operate as a bar to the enforcement of their claim.

The learned Vakil for the Appellant further relied upon the observations in the case of In re Pitambar Girdhar and Karutulain v. Nazbutuddowla. These observations, however, do not decide that every matter decided in proceedings for grant of probate or letters of administration operates as res judicata in a subsequent civil suit between the parties. The decision is final and conclusive in so far as its immediate purpose is concerned, and no suit is maintainable to qualify or take away its effect. But these cases do not decide that if a matter has been decided incidentally the decision operates as res judicata.

Much reliance was also placed by the learned Vakil for the Appellant upon the decisions of Barrs v. Jackson and Spencer v. Williams, and it was argued, upon the authority of these cases, that if a question of fact arises in a Probate Court as to which of two persons is the next of kin of a deceased, and is determined, and the same question is afterwards raised between the same parties in any other Court, the decision of the Probate Court operates as res judicata. The decision in Barrs v. Jackson was based upon the authotity of the cases of Bouchier v. Taylor(24), Thomas v. Ketterich(25) and Blockham's case(26). Now it is important to note that at the time when these cases were decided, a suit for distribution might have been instituted in the Ecclesiastical Court so that the Court of Chancery and the Ecclesiastical Court had concurrent jurisdiction with respect to distribution. The decision of the Court of Appeal in Barrs v. Jackson was passed on the ground, that although the two suits were for different objects, one for administration and the other for distribution, yet the fact had been in issue between the parties and was finally decided between them in a Court of concurrent jurisdiction. This is abundantly clear from the arguments addressed to the Court in De Mora v. Concha(27). The learned Vakil for the Respondents rightly placed reliance upon the decisions of the House of Lords in Whicker v. Hume(28) and Concha v. Concha, which shew the real basis of the decision in Barrs v. Jackson and Spencer v. Williams. It is perfectly true, as pointed out by the learned Vakil for the Appellant, that the exposition of the principle of res judicata given in the case of Barrs v. Jackson, has been adopted with approval by their Lordships of the Judicial Committee in Doorga Persad v. Doorga Konware(29) and Raja of Pittapur v. Raja Row Buchi(30). We must, however, be cautious in the application of these principles to the facts of individual cases, and one of the most important elements to be borne in mind is the character and extent of the jurisdiction of the two Courts. In my opinion, for reason already explained, the decision of the Probate Court in the case before me does not operate as res judicata for the purpose suggested. As pointed out in the case of Concha v. Concha, the decision operates as an estoppel in rem in so far as it decides that the Plaintiffs are not entitled to administer the estate of the deceased, but it does not operate as an estoppel inter partes in so far as the question arises, whether the Plaintiffs are entitled to take by inheritance the estate of the deceased. In this view, it is unnecessary to discuss whether the broad proposition put forward by the learned Vakil for the Respondents, that a proceeding for the grant of letters of administration is in no sense a suit, requires to be qualified, need only say, that the cases of Saroda Kanto v. Gobinda Mohan(31) and Ramani Debi v. Kumud Bandhu(32) do not support such a comprehensive proposition. The conclusion consequently follows that the view taken by the District Judge is correct, and his order must be affirmed.

The result, therefore, is that the appeal is dismissed with costs. We assess the hearing fee at three gold mohurs.

Caspersz, J.— I agree that this appeal must be dismissed, but I desire to say a few words with reference to the case of Ramnandan Pershad v. Sheoparsan Singh, to the decision in which I was a party.

The Plaintiffs, alleging themselves to be the reversionary heirs of one Pulin Patamanick, sought to obtain a grant of letters of administration to his estate. They were opposed by the present Defendant. The District Judge found that the Plaintiffs “had entirely failed to establish the relationship,” and disallowed their application. The Plaintiffs then brought the suits, giving rise to this appeal, for a declaration of their heirship, and to recover possession of the properties in Schs. Ka and Kha, and for other suitable reliefs, on the issue of res judicata, the first Court decided against the Plaintiffs, but on appeal the District Judge held otherwise, and the Defendant has appealed to this Court.

The weight of authority is in favour of the contention raised on behalf of the Plaintiffs that this suit is not barred by the principle of res judicata. But the learned Vakil for the Defendant has relied on the case already cited, Ramnandan Pershad v. Sheoparsan Singh, the observations upon which stress is laid being on pp. 630, 631 of the report. The learned Vakil for the Plaintiffs however does not impugn the correctness of that decision on the facts of that case, and if we look to those facts, it is evident that no other decision was possible. There, the Plaintiffs sued for a declaration that they were entitled to represent the estate of the deceased. The District Judge, sitting as a Court of Probate, had previously held (1) that the Plaintiffs had no locus standi to oppose the grant of probate, they not being the next reversioners of the deceased and (2) that the Will propounded by the Defendant (which was thereupon proved without further contest) was the genuine duly executed Will of the deceased. The Plaintiffs appealed from the probate decree of the District Judge but this Court confirmed the same. The suit following upon this result, was aimed directly against the grant of probate, and for a declaration of heirship, and it was held that the judgment assailed, being a judgment in rem could not be disturbed by a suit involving the same issues as were decided in the probate proceedings. It was further pointed out that any declaratory decree would, in the circumstances, be infructutous.

The present Plaintiffs failed to obtain a grant of letters of administration. The estate is not represented, and the Plaintiffs do not now seek to represent it. Nor could administration be granted at this distance of time: the deceased Pulin died so long ago as the year 1865. But Pulin's widow is said by the Defendant to have made a deed of gift in his favour, and the Plaintiffs are entitled to bring their suit asserting an independent right against a transaction which, if that right is well-founded, would wrongfully deprive them of the property of Pulin.

The fact of the present litigation, and the reliefs claimed, differ widely from those in: he case of Ramnandan Pershad v. Sheoparsan Singh, which is not, therefore, an authority for the general proposition Advanced on behalf of the Defendant. The Plaintiffs, as already observed, seeks to establish an independent right against the deed of gift set up by the Defendant, consequently the question of title is not concluded by the judgment of the Probate Court. Again, if we assume that the Plaintiffs had succeeded before the District Judge, the Defendant would, nevertheless, have been permitted to sue to enforce his deed of gift, for he does not claim from Pulin Paramanick but from his widow. Thus the principle of mutuality, which is a test to be applied in such cases, avails the Plaintiffs.

The appeal therefore fails and must be dismissed with costs.

Appeal dismissed.