SHAMARAO Vs. TRIMBAK RAO

JUDGEMENT

(1.) BEFORE setting out the facts on the suit it is necessary to refer to a previous suits between the same parties as much turns -upon what was decided in the previous suit. Respondent 1 before us, Trimbak Rao, filed a suit for possession of the suit property and foe a declaration of title to the same alleging that respondent 2, Lakshmi Bai, alienated the suit property in his favour. The present plaintiffs -appellants before us wore made parties to that suit as defendants. The present plaintiffs filed their written statement in that suit as defendants and in the written statement they raised the plea that Lakshmi Bai was the widow of a member of a Hindu joint family and, therefore, had no right to alienate the joint family property. In that suit it was held that Lakshmi Bai was the widow of a separated member of the family and it was also held that the property was alienated for legal necessity. These findings of the trial Court were upheld by the High Court in second appeal, and thus these findings -became conclusive so far as the present parties are concerned.

(2.) NOW the present suit has been filed by the reversioners viz., (the defendants in the previous suit) for a declaration that the alienation by the widow is not valid and they pray for a decree for possession of the suit property against the alienee. In this suit the plaintiffs aver that during the pendency of the former suit the widow re -married and, therefore, by reason of the re -marriage she forfeited her right in the suit properties and as she had no right the -aliened could get no title. The trial Court dismissed the suit on the ground that this suit was barred by the rule of res judicata by reason of the findings in the former suit against the present plaintiffs. This judgment was up held by the lower appellate Court. The plaintiffs have come in second appeal.

(3.) ANOTHER argument is advanced before us by the Advocate for the appellants stating that it was during the pendency of the former suit that the widow remarried and by re -marriage she forfeited her right to the property. This was a new circumstance which came into existence after the suit was filed, and they could not have raised this defence at the time of the suit. There, fore, they are now in a position to contest the alienation even if it be held that the alienation was valid by reason of the judgment in the former Suit. So far as this argument is concerned in the view that we have taken with reference to Section 7, Civil P.C., it would no longer be necessary for us to give any opinion on this matter as the present suit is liable to be dismissed on the plea of res judicata, but however inasmuch as arguments were advanced on this point also, we desire to make our observations with regard to this. It was urged that because the vendor Lakshmi Bai remarried, she ceased to have any right in the property and no special custom was set up to show that in spite of remarriage the widow would not forfeit her rights to property. So far as this point is concerned, the question does not arise at all for the reason that the alienation took place prior to Lakshmi Bai re -marrying and the alienee acquired rights in the property prior to Lakshmi Bai's remarriage and the rights acquired by him could not be affected by reason of any disability that may attach to Lakshmi Bai on account of her re -marriage. On this ground we disagree with the contention raised by the appellant. In the result, we dismiss the appeal with costs of this Court and the Courts below.