TEKAIT DOORGA PERSAD SINGH Vs. TEKAITNI DOORGA KONWARI

JUDGEMENT

(1.) THIS is a suit brought by Doorga Persad Singh, son of Gopi Nath Singh, alleging himself to be the proprietor of talook Guddi Chakai and other property in Zillah Monghyr. The suit is against Tekaitni Doorga Konwari, widow of Futteh Narain Singh, deceased, and mother of Gurbh Narain Singh, deceased, and also against Maharaja Joy Mungul Singh, It was brought first, to obtain possession from the widow by adjudication of the right of inheritance of the Plaintiff in accordance with koolachar or family usage in reference to the property in suit left by Tekait Gurbh Narain Singh, son of the late Tekait Futteh Narain Singh. Secondly, for an adjudication and order with respect to the right of reversion to the said estate, that, a deed which had been executed by the widow in favour of the Defendant Joy Mungul Singh should be declared illegal and inoperative after the decease of the widow, the Defendant No. 1.

(2.) THE property was formerly the property of Dhurm Narain Singh, and their Lordships think it must be taken to be joint ancestral family property although impartible. Upon the death of Dhurm Narain Sing, who left several sons and other lineal descendants, the property descended to his grandson, Loke Narain Singh, the father of that grandson, Juggernauth Singh, having died in the lifetime of Dhurm Narain. Upon Lake Narain Singh's death the estate descended to Futteh Narain Singh, the husband of the present Defendant No. 1. Futteh Narain Singh left three widows, who upon his death claimed to have the estate registered in their names. The present Plaintiff intervened before the Collector and objected to the registration of the property in the names of the three widows, but the Collector decided in favour of the widows, and their names were registered as the proprietors of, the estate upon the death of Futteh Narain. After that registration the present Defendant gave birth to a son, Gurbh Narain Singh, who lived for a short time and died in his infancy. The Plaintiff claims that upon the death of Gurbh Narain he was entitled to succeed to the estate, and that the widow was not entitled, according to the Mitakshara law and the custom of the family, to succeed as the mother and heiress of her son.

(3.) TH paragraph, " On the 13th Jayt 1274 Fusli, I the Defendant on account of my being the rightful party was by the consent of all the three widows of Tekait Futteh Narain Singh, the amlahs, ryots, and lessees and others, installed as the Gadinashin of talook Chakai according to the usage which has prevailed of old. Since that date I have been enjoying possession of all the mouzahs in suit." He there says that he was installed according to the usage, and therefore it may be taken that, notwithstanding the estate was joint family property, he claimed to be installed because according to family usage it was an impartible estate to which he as the eldest branch of the family was entitled to succeed. The Court of first instance in that suit decided that the claim of the Plaintiff be decreed with this specification, " That the Plaintiff aforesaid do recover possession of two thirds of the estate claimed," that is, the two thirds which were held by the other widows with whom the Defendant was alleged to be colluding, " and that her possession of one third be confirmed." There was therefore a decision in that suit between the Plaintiff, who is the present Defendant, and the present Plaintiff, who was the Defendant, that the widow was entitled to succeed as the mother and heiress of Gurbh Narain Singh her son. An appeal was preferred to the High Court, and the High Court affirmed that decision. 4. The question now is, whether in the face of that adjudication the Plaintiff is entitled in this suit to recover the possession of the property upon the ground that he, and not the Defendant as mother of Gurbh Narain, was entitled to succeed upon his death. It is contended on behalf of the Plaintiff that he did not in that suit set up the family usage which has been set up in the present suit, and that consequently the adjudication in the former suit is no bar to his recovering possession. The case of Hunter v. Stewart 31 L.J. (Ch.) 346 : 4 De G. F. & J. 168. was cited, in which Lord Westbury held that, as the allegations and equity in the first suit were different from the allegations and equity in the second suit, the decision in the first suit was no bar to the proceeding in the second. But there it was expressly stated that the equity in the second suit was different from that which had been set up in the first suit, and that the allegations were also different. In this case, although the allegations are different the claim is the same. The claim on the part of the widow in that suit was based upon her title to succeed as the mother and heiress of her son. The present Plaintiff, who was the Defendant in that suit, relied upon his own title and denied that of the mother, the present Defendant No. 1, but it was adjudged against him, that the mother was entitled to succeed as the heiress of her son.