DAULAT RAM SINGH Vs. SWAMI DAYAL

JUDGEMENT

(1.) THIS is an application for leave to appeal to the Supreme Court under Article 133 of the constitution against an order of remand passed by this Court on 4-2-1952.

(2.) THE case had rather a chequered history as would appear from the following facts. On 13-3-1931, one Ganga Sahai filed a suit No. 7 of 1931, in the Court of the Subordinate Judge, kanpur, for a declaration that Daulat Ram was not the son and heir of his brother Raj Kumar. During the pendency of that suit, Ganga Sahai died on 24-4-1932. Ganga Sahai had left two daughters. Amrawati and Indrawati, who, on 15-7-1932, applied that their names be substituted in place of the name of Ganga Sahai deceased. Another application was, however, filed on 11-7-1932, by Swami Dayal; son of Indrawati who claimed that Ganga Sahai had left a will and under that will he was the sole legatee and was thus entitled to inherit all the right, title and interest of Ganga Sahai in the property in suit. On 19-10-1932, the learned Subordinate Judge dismissed the application of Swami Dayal but granted the application of the daughters Amrawati and Indrawati. Swami Dayal thereupon filed a suit, No. 6 of 1934, and in that suit he impleaded amrawati and Indrawati, as also the Collector of Kanpur as Manager, Court of Wards, Estate of daulat Ram Singh minor. The relief claimed in the suit was as follows:

(3.) THE suit was valued at Rs. 5,73,998/6/10. It was contested by Amrawati who raised a plea that the order dated 19-10-1932, passed in suit No. 7 of 1931, had become final and operated as res judicata. This issue was tried as a preliminary issue, and the learned Subordinate Judge found in favour of the contesting defendant and dismissed the suit with costs on 21-5-1934. The other issues in the case were not gone into. A First Appeal, No. 423 of 1934, was filed in this Court in which the following order was passed by Chaudhri Niamatullah and Alsop JJ. on 1-10-1935: