DHARANIDHAR BHANDARI Vs. SREEMATI HEMANGINI DEI

JUDGEMENT

(1.) This is an appeal by defendant No. 1 against a judgment of the Subordinate Judge, First Court, Midnapur, dated the 18 July, 1923, confirming a decision of the Munsif, First Court, Tamluk. The facts which gave rise to this litigation shortly stated are these: One Kamani Samanta married one Monmohini and then during her lifetime married Hemangini Ramani and died about 10 years before the institution of the present suit. By a kobala dated May, 1919, Monmohini who is defendant No. 2 conveyed eight-annas share of two properties which admittedly belonged to her husband to Dharanidhar who is defendant No. 1 in the suit. Dharanidhar brought a suit for rent against defendant No. 3, a tenant of one of the two properties and in that suit he made both Hemangini and Monmohini party defendants. The Court of first instance dismissed the suit for rent but it was decreed on appeal by defendant No. 1 who was the plaintiff in that suit. The judgment of the Appellate Court is dated the 1st February, 1922. The present suit was instituted on the 4 March, 1922, by Hemangini against Dharanidhar, defendant No. 1, Monmohini defendant No. 2 and Kartic, the tenant in that rent suit as defendant No. 3, and she prayed for a declaration that she was the sole heiress of her husband, as Monmohini had become unchaste during the lifetime of her husband and was in fact driven out of the house on account of her unchastity and then the plaintiff was married by Ramani. The-plaintiff also prayed for confirmation of possession in both the properties which were conveyed by Monmohini to defendant No. 1. Defendants Nos. land contested the suit and contended amongst other matters that the suit was barred by res judicata and that defendant No. 2 was not excluded from inheritance of her husband's estate, and also that the allegations of her unchastity during the lifetime of her husband were untrue. The defendants averred that the plaintiff and defendant No. 2 lived jointly and enjoyed the usufruct of her husband's property in equal shares after his death. Issues were raised on the pleadings set out above and also a further issue was raised at the instance of the plaintiff as to whether the conveyance by Monmohini to defendant No. 1 was a sham transaction without any consideration, for the same. The Court of first instance found that Monmohini was excluded from inheritance of her husband's property, because she became unchaste during the lifetime of her husband and had left the house and had been living in adultery with one Jati Singh and hat she had never possessed lands jointly with the plaintiff. The learned Munsif further found that the suit was not barred by res judicata. As to the conveyance executed by Monmohini in favour of defendant No. 1, the learned Munsif found that it was a collusive one without consideration. In the result, the suit was decreed, plaintiff's 16-annas title was declared in both the properties and she was confirmed in her possession. Against this decree, defendant No. 1 appealed before the District Court; and the two points which were urged on appeal were, firstly, as to whether the suit was barred by res judicata and, secondly, as to whether defendant No, 2 inherited the half share of her husband's property.

(2.) As to the second point, the learned Subordinate Judge agreed with the learned Munsif and found that the appellant has no case on merits and that there was overwhelming evidence on the side of the plaintiff to show that defendant No. 2 had left her husband's house in his lifetime and had committed adultery with one Jati Singh, and also that she never was in possession of any property left by him.

(3.) As to the question of res judicata the learned Subordinate Judge also agreed with the Munsif and held that the decree in the previous rent suit brought by defendant No. 1 was not res judicata in the present case. The learned Advocate who appeared for defendant No. 1, did not, as he could not question the validity of the finding on the question that the vendor of defendant No. 1, Monmohini, had no title to the two properties which she conveyed ,in the year 1919. The sole contention of the learned Advocate was that the trial of the present suit was barred by res judicata on account of the decision hr the rent suit. I am clearly of: opinion that the judgment in the rent suit is not a bar to trial of the present suit. The suit for rent which defendant No. I brought against Kartic, defendant No. 3, was with reference to the property described in schedule ka of the present plaint as a tenant thereof. The earlier suit had no connection with the property described in schedule kha. The issue which was raised in the suit for rent, as it appears from the judgment of the learned Munsif who originally tried the case, ran as follows: "Whether the relation of landlord and tenant existed between the parties." It is true that in that suit both Kartic and Hemangini filed a joint written statement and alleged that the plaintiff in that suit had no right to recover rent as his vendor Monmohini was excluded from inheritance of her husband's property on account of her unchastity. The Munsif dismissed the suit giving effect to the defence of the defendants. Monmohini was also a defendant in the suit;, she did not question, the decision of the Munsif; but it was defendant No. 1 who alone preferred an appeal, and the learned Subordinate Judge in that case gave a decree to the plaintiff for recovery of rent claimed against Kartic, defendant No. 1, who was described as respondent No. I in the appeal and Monmohini and Hemangini were described as mere pro forma respondents. As I have already pointed out, the property described in schedule kha. in the plaint of the present suit was not the subject-matter of the rent suit at all. The Learned Advocate for the appellant, therefore, contended that he could not say that the subject-matters of the two suits are the same, but he contended that the determination of the issue in the previous suit was operative as a baragainst the determination of the question of title of Hemangini as raised in the present suit. The short answer to the contention of the learned Advocate is that the only issue which was raised and decided in the previous suit was that the relationship of landlord and tenant existed between defendant No. 1 and defendant No. 3 of the present suit with respect to property in schedule ka. That is not the issue in the present case. In the present suit, the plaintiff's title is a title which she claims as the heiress of her husband in the two properties in suit. The Judicial Committee in the well known case of Run Bahadur Singh V/s. Luch Koer 11 C. 301 : 12 I.A. 23 : 4 Sar. P.C.J. 602 : 9 Ind. Jur. 202 5 Ind. Dec. (N.S.) 960 (P.C.) have pointed out "Having regard...to the subject-matter of the suit to the form of the issue their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question, viz., whether any and what rent was due from the tenant, on this ground also the judgment was not conclusive." Therefore the question as to whether Monmohini had a title to the properties in suit as against Hemangini was not more than incidental to the main issue as to whether or not defendant No. 3 was a tenant under defendant No. 1. The suit was dismissed in the presence of Monmohini and she did not prefer any appeal against the decree of the Munsif, so far as it decided that she had no title as against Hemangini, The appeal was by defendant No. 1 alone and, therefore, was strictly limited to the question which arose between himself and his tenant as to the rent claimed. Hemangini was a pro forma respondent and, no relief was claimed against her. The learned Advocate relied upon the case of Radhamadhub Holdar V/s. Monomohur Mukerji 15 C. 756 : 15 I.A. 97 : 12 Ind. Jur. 297 : 5 Sar. P.C.J. 211 : 7 Ind. Dec. (N.S.) 1088 (P.C.). In this case the question of title was raised directly between the landlord and the tenant, because the tenant, claimed, the proprietary interest in himself and, therefore, the decision was on an issue directly and substantially raised as to the title between the contesting parties. This is not the case here. The learned Advocate for the respondent relied on the case of Brojo Behari Mitter V/s. Kadar Nath Mozumdar 12 C. 580 : 6 Ind. Dec. (N.S.) 394. This is an authority for the proposition that although a party was a party defendant in a previous rent suit, the question raised as to title in the rent suit, is no bar in a suit subsequently brought by the co-defendant to establish his title against the other defendant. In the present case also the question of title was really between Hetnangini and Monmohini who were co-defendants in the previous suit, and the question of title of Hemangini as to the property described in schedule kha was not at all raised in the rent suit. I do not see how it can, therefore, be contended that the decision in the previous suit in anyway affected the right, of Hemangini against Monmohini with reference to that property. I have already, pointed out that the issue raised in the rent suit only incidentally raised the question of Monmohiui's title, and the question of title as between Hemangini and defendant No. 1 was neither directly nor substantially in issue in the previous suit. That being so, the decision of such an issue incidentally raised in the previous suit cannot be treated as res judicata when the question is directly and substantially in issue between the parties is a subsequent suit.