KRISHNASWAMI AYYA Vs. TBRAMACHANDRA RAO

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows: One Ramaji Bavaji Pandit a Mahratta Brahman of Tanjore died on August 10, 1858. Before his death he had adopted a son Bavaji Ramji Pandit whose son is the present plaintiff. He also left two widows Kamakshi Boyee and Thulja Boyee. He had also executed a will dated August 6, 1858 (Ex. V) making various dispositions of his property. After giving certain properties to his relations, half of the remaining properties he devised, to his two widows who "shall be entitled to and take the same." By an arrangement in the year 1860 between the two widows Thulji Boyee got the suit house belonging to the deceased. A creditor of the widows filed 0. Section No. 275 of 1872 against them for the recovery of a debt contracted by them after their husband's death. A decree was obtained and in Court auction in execution of the decree the house was sold and purchased by the decree-holder and one Krishnaji Kottadya. They sold their rights in the house by sale-deeds to one, Chinnasami Ayya whose legal representatives are defendants Nos. 1 and 2. Defendants Nos. 3, 4 and 5, are lessees under defendants Nos. 1 and 2. Thulji Boyee died on April 2, 1916, and on her death the plaintiff and his undivided younger brother Jeevanna Rao became the reversioners to the suit property on the footing that the widow had only a life-interest. Jeevanna Rao died in June 1921, and the whole of the reversionary interest survived to the present plaintiff; The suit was filed on April 2, 1928, exactly within 12 years of the death of Thulja Boyee to recover the suit property on the ground that the decree in O.S. No. 275 of 1872 and the sale in execution thereof do not bind the reversionary estate after the. death of Thulji Boyee. The plaintiff contends that on a proper construction of the will of Ramaji Bavaji the widows had only a life-estate Hence the suit to recover possession of the property from the defendants.

(2.) Between 1872 and the present suit there were two other litigations which should be noticed. The earlier litigation came up to the High Court in Appeal No. 74 of 1896 which was disposed of by Collins, C.J. and Shephard, J. on July 13, 1897. They held that there being no indication of intention to give a large estate we must assume that the husband intended that a widow's estate only should pass. The judgment is now Ex. C. Again in the year 1917 there was another litigation. The present plaintiff and his brother Jeevanna Rao sued to recover certain other properties belonging to the estate from some other defendants on the ground that only a life-estate passed to the widows under the will and that the plaintiffs were entitled to the estate as reversioners. The matter came up to the High Court and Wallis, C.J. and Seshagiri Ayyar, J. held that an absolute estate passed under the will : Vide Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 : 42 M. 283 : A.I.R. 1920 Mad. 557 : 36 M.L.J. 306. The plaintiff ook the matter to the Privy Council. The judgment of the Board was delivered by Lord Buckmaster. Their Lordships held that the points argued as to the effect of the gift in the present case are not now open to consideration, for in their Lordships opinion the decision given on July 13, 1897, by the, High Court at Madras is a clear and complete determination as between the parties to that suit and those claiming under them which the present litigants cannot dispute. In other words it was held that the litigation of 1917 was bound by the rule of res judicata by reason of the decision in the earlier case. On this ground the plaintiff's suit was. decreed : Vide Ramachandra Rao V/s. Ramachadra Rao 67 Ind. Cas. 408 : 45 M. 320 : A.I.R. 1922 P.C. 80 : 49 I.A. 129 : 30 M.L.T. 151 : 26 C.W.N. 713 : 35 C.L.J. 545 : 16 L.W. 1 : (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom. L.R. 963 (P.C.).

(3.) The defendants in the present suit have nothing to do with the defendants in the former suits and it was expressly stated before us that the defendants do not rely upon any rule of res judicata in this case. The sole question before us, therefore, is one of construction of the will which was left open by the Judicial Committee in Ramachandra Rao V/s. Ramachandra Rao 67 Ind. Cas. 408 : 45 M. 320 : A.I.R. 1922 P.C. 80 : 49 I.A. 129 : 30 M.L.T. 151 : 26 C.W.N. 713 : 35 C.L.J. 545 : 16 L.W. 1 : (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom. L.R. 963 (P.C.). It may be observed that Wallis, C. J, and Seshagiri Ayyar, J. decided the question of construction in favour of the defendants i.e. that the widows got an absolute estate under the will. But that decision cannot be relied upon as res judicata but only like any other authority.