GHELABHAI BHIKHABHAI Vs. BAI JAVER

JUDGEMENT

(1.) THE suit was brought by the plaintiff, who is the appellant, to recover possession of the property in dispute on the allegation that it belonged to him and his uncle Vithal as members of a joint Hindu family, and that on the ''death of Vithal he, i. e. the plaintiff, as the surviving coparcener, became exclusively entitled to it.

(2.) THE respondent Bai Javer against whom the suit was brought is the daughter of Vithal, and she contested the claim of the plaintiff upon the ground that the property was the separate property of her father, and that she was on his death heir according to Hindu law. The plaintiff challenged the defendant's right to the property as Vithal's heir upon several the principal of which tried in both the Courts be was the ground of res judicata.

(3.) FROM that decree the widow appealed. But instead of prosecuting the appeal she withdrew it. The result of that, was that the decree of the Subordinate Judge's Court was left untouched. It was contended in the Court below, however, that that decree could not operate as res judicata in the present suit which was brought by the appellant, who was the defendant in the previous suit against Vithal's daughter ; that the daughter does not claim from her mother, the plaintiff in the previous suit, but claims as the heir of her father. The decree would operate as res judicata if it was a decree against Vithal's widow as representing the estate of Vithal. There can be no doubt that the widow did represent the estate in the previous suit. The only question is whether having regard to the decision of the Privy Council in Katama Natchiar v. The Rajah of Shivagunga, (1863) 9 M.I.A. 539, the question in the previous suit was prosecuted by her, and the litigation was carried to its end after a fair trial of the question which had led to the previous suit. -,. It is not denied that, so far as the previous suit itself was concerned, the questions raised in it were fairly tried. The only question is whether the withdrawal of the appeal had such an effect upon the decree as to deprive it of its operative power for the purposes of res judicata. The withdrawal was by the widow. We are not aware of the circumstances under which she withdrew the appeal. But it is clear that, so far as he was concerned, the case was fairly contested and withdrawal of the appeal by the widow is not sufficient to deprive the decree of its operative character in law.