CHANDU LAL AGARWALLA Vs. KHALILUR RAHAMAN

JUDGEMENT

(1.) IN this appeal, which is brought ex part from a judgment and decree of the High Court of Judicature at Fort Wiliam in Bengal affirming a judgment and decree of the Subordinate Judge, Jalpaiguri, it is necessary for their Lordships to deal only with one of the many questions which have in the course of the proceedings been debated in the Courts of INdia. Upon all other questions it has been properly conceded by learned Counsel for the appellants that the judgments under appeal cannot seriously be challenged.

(2.) THE single question argued before the Board was as to the validity of the plea raised by the appellants that the claim of the plaintiffs in the present suit to be lawful heirs of one Safiquddin, who died in testate on March 11, 1924, was res judicata in a previous suit, namely Suit No.1 of 1922, which had been heard and determined by the Subordinate Judge of Jalpaiguri on August 23, 1924. If that plea was valid, there was no question but that the appeal must succeed : if it was not, then, though the appellants had raised a number of alternative pleas, it was plain to their Lordships that they could not be maintained and the appeal must fail.

(3.) IT is at this point that the appellants' case breaks down, Their Lordships do not follow the High Court in saying that it appears from the evidence on the record that the first plaintiff in the present suit, Khatemmanessa, who claims to be a lawful widow of Safiquddin, was in the previous suit designedly kept from the knowledge that in that suit there was a conflict of interest between herself and her co-defendant Tanjina Khatun, admittedly a lawful widow of the deceased. IT was in fact admitted upon an application to the High Court for leave to appeal to His Majesty in Council, that this statement could not be supported. On the other hand it appears to their Lordships that the appellants have by no means discharged the burden, which lies upon them, of showing that Khatemmanessa had or must be deemed to have notice of that conflict.