JHARULA DAS Vs. JALANDHAR THAKUR

JUDGEMENT

(1.) This was a suit brought by one Bhaiji Thakur for recovery of 11 bighas of lakheraj land and an interest of 3? annas in the income derived from offerings in a certain temple. The property originally belonged to one Pratipal who was a shebait ? of the temple, and was succeeded in that office by his widow, Girimoni. Girimoni sold the land to the defendant, Jharula Das, in 1282. Previously in 1281 she had mortgaged some other land and her interest in the temple income to the defendant. He sued on, the mortgage and obtained a decree on the 24th" September 1880. This was before the Transfer of Property Act, and seems to have been no more than an ordinary decree for money. In execution he put up the temple income for sale and bought it himself. He obtained delivery of possession in 1892. Girimoni and the present plaintiff then sued to have the sale set aside on the ground, among others, that the property was not alienable, and in the alternative for a declaration that it would not bind the present plaintiff after Girimoni s death. That suit was ultimately withdrawn with liberty to sae again. Girimoni then sued again, and that suit was dismissed, being held to be barred by Section 211 of the then Code. Girimoni then died, and this suit has now been brought by the present plaintiff. It was decreed by the learned Subordinate Judge, and the defendant appeals.

(2.) As regards the lakheraj land, we have no hesitation in maintaining the decision of the learned Subordinate Judge. That was voluntarily alienated by Girimoni, and the view of the learned Subordinate Judge that there was no legal necessity for any of these transactions has not been contested before us. With respect to this property Girimoni had the ordinary interest of a Hindu widow and not that of a Shebait, and the land was not the subject of the former suits. The only question therefore that has been argued before us with respect to the land is whether the evidence justifies the findings of the learned Sub ordinate Judge, that Girimoni died within 12 years of the suit, and that the present plaintiff is the next reversioner. After reading the evidence we have no doubt at all that the decision of the court below on these two points is correct.

(3.) The main question in the appeal is whether the suit, so far as it relates to the temple income, is barred by (i) limitation and (ii) the rule of res judicata. It appears to ns that both these questions turn on the point whether Girimoni fully represented the estate, and this point appears to us to be concluded by authority. It cannot be contended for a moment that there was any collusion or dishonesty about the former suits. In one of them the plaintiff himself was a party. And that the decision of a suit, fairly conducted, against a widow binds the reversioners is now well settled (see the cases quoted on page 631 of the 6th volume of the C.L.J.) And when the widow occupies the position of a shebait, as in this case, it appears that her sex makes no difference. This was held in Pydigantam Jagannadha Row v. Rama Doss Patnaik (1904) I.L.R. 28 Mad. 197 which was followed in Lilabati Misrain v. Bishun Chobey (1907) 6 C.L.J. 621.