NIHALUDDIN KHAN Vs. AHMUD HOSSEIN KHAN

JUDGEMENT

(1.) THIS is a suit between two brothers, the sons of Mahomed Hossein Khan, who died in November, 1863. The Plaintiff in the suit, the Respondent before their Lordships, was the second son of Mahomed Hossein Khan, and the Defendant, the Appellant, was the elder son. It appears that upon the death of their father there was considerable litigation between the brothers with regard to the right to the estate of the father. That litigation began in 18(53, and the result of it was that the Defendant, the Appellant, was declared to be entitled to the estate. After that the Respondent brought a suit against his brother in which he claimed to recover Rs. 19,600 for arrears of maintenance for eleven years and eight months, viz., from the 1st of July, 1866, to the end of February, 1878, at Rs. 140 a month, and a declaration of his right to maintenance in perpetuity, and to have it judicially declared that the maintenance was a debt due from the estate of Kalispur, situated in the Lucknow district, as also from Mamni and Motka, being the estates which the Defendant had recovered by means of the litigation. He appears to have fixed the 1st of July, 1866, for the beginning of this claim for maintenance, and claimed arrears from that date, as being the day on which he was himself dispossessed of the estate and the Defendant got possession of it. His case was that he was legally entitled to maintenance at the rate of Rs. 140 a month from the estate of his deceased father; and in his plaint he founded his claim upon an order of the Deputy Commissioner of Lucknow in a suit between the father and Mussumat Bibi Fatima, his grandmother, and the present Defendant, who was the Plaintiff in that suit. He also said that he was dispossessed of the property under an order dated the 29th of June, 1865, which was upheld by Her Majesty in Council. The Defendant, by his written statement, set up various answers to the claim. The material defences were that the Plaintiff was not entitled to any maintenance as the son of Mahomed Hossein; that the claim was barred by limitation, as the Plaintiff himself said that he had not received maintenance since September, 1863, and that the Defendant was not bound by the document which was filed by Bibi Fatima, being a document alluded to in the plaint, nor by any document filed by Mahomed Hossein; and lastly, in the 11th paragraph of his written statement, he alleged that the claim was barred by the fact of its being res judicata. Issues were settled which raised what are the substantial questions between the parties, and they were : 1, Is the suit barred by res judicata? 2. Is the suit barred by limitation? and 3 and 4, which may be taken together : Was the Plaintiff entitled to the maintenance, and if so at what rate, and from whom? Both the Lower Courts have made decrees in favour of the Plaintiff, and the Defendant has appealed to Her Majesty in Council from the decree of the Commissioner which affirmed the decree of the First Court.

(2.) WITH regard to the first question, whether the suit was barred by res judicata, the document which is relied upon by the Defendant appears to be an order made in a suit brought by the Plaintiff against Mahomed Hossein the father in which he claimed to be entitled to a monthly allowance for maintenance founded on some ikrarnama, which would appear to have been executed by the grandmother, who had the management of the property in consequence of Mahomed Hossein being incapable of taking care of his affairs. That is clearly not an order which would be res judicata in the present suit. It was not an adjudication between these parties but between the Plaintiff and his father, and it was altogether upon a different sort of claim. There is no ground for saying that the Lower Courts were wrong in deciding against the Defendant upon that issue.

(3.) THE next question, in the order in which the issues were framed, is the law of limitation; but perhaps it will be better first to consider the other, which is the main question in the case, and which arises upon the third and fourth issues, namely, whether the Plaintiff is entitled to receive the maintenance.