DATTATRAYA TATYA KHURD Vs. MATHA BALA JASUD

JUDGEMENT

(1.) The facts of this case are that the suit property originally belonged to one Vitha. She had acquired the property while she was in the keeping of one Khandu during the lifetime of her husband whom she had left. While living in this condition she had a son named Ganu born to her and two daughters. One of the daughters is dead, and plaintiff No. 1 in this case is the other daughter. On the death of Vitha, Ganu took possession of her property and continued to be in possession of the same until death. After his death, Chandra, his widow, took possession of the property. While Ganu's widow was in possession of the property, the present plaintiff No. 1 passed a sale-deed of the property to one Vithu Todkar, who filed a suit in 1914 (Suit No. 577 of 1914) against Ganu's widow and some other persons for recovery of possession of the property. Vithu Todkar failed in the litigation. It was held that his vendor Matha was an off spring of adulterous intercourse and could not be said to be the daughter of Vitha in the legal sense of the term. On the death of Chandra, defendant No. 1 came into possession of the property. He based his claim on a will said to have been made by Ganu's widow. The will has been challenged in this litigation. The point as to the execution and genuineness of the will has been left over because the trial Court held that the present suit was not maintainable on other grounds.

(2.) The present suit has been brought by the plaintiffs for recovery of possession of the property on the ground that plaintiff No. 1 as the sister of Ganu was entitled to succeed to the property as there is no other nearer heir to the estate left by Ganu. Plaintiffs Nos. 2 and 3 are stated to be purchasers of some of the suit properties from plaintiff No. 1. To this suit various objections were raised. Some of the objections have not been gone into. It was held by the trial Court that plaintiff No. 1 could not succeed as heir in her alleged capacity as the sister of Ganu. The Court also held that the suit was barred by res judicata in view of the decision in suit No. 577 of 1914. On appeal the learned Judge of the appellate Court held that plaintiff No. 1 was entitled to succeed to the property of Ganu as she was an offspring born of the same woman as Ganu and that this legal position was not affected by the decision in the previous suit which related to plaintiff No. 1's claim as the surviving daughter of Vitha. Holding in this way, the learned Judge of the appellate Court reversed the decree of the trial Court and remanded the case for decision of other issues left over in the trial Court.

(3.) In this appeal, the same two points which prevailed in the Court of first instance have been taken. Taking the point of res judicata first, I agree with the view of the appellate Court that the present claim is not barred by reason of the decision in the suit of 1914. As observed by the learned Judge of the appellate Court, the former litigation involved a question of plaintiff No. 1's right on the ground that she as daughter was a preferable heir to the property left by Vitha. I am of opinion that it is still open to plaintiff No. 1 to put forward a claim on the ground of her consanguinity with Ganu. The two claims are widely different and the present claim, or rather the ground for it, could not have been set up in the previous litigation as Ganu's widow was then living. The point is so clear that the legal capacity on the basis of which the claim in the former suit was brought cannot be regarded in any way the same as the one on the basis of which the present claim is sought to be supported. I agree, therefore, with the view taken by the lower appellate Court on the point.