MT DULARI Vs. EDWARD THELWAL

JUDGEMENT

(1.) I think that both the Subordinate Courts have gone wrong on the question of res judicata. I have refused to entertain grounds of appeal other than the first because they were abandoned in the Court of first appeal, and whether they be grounds of law or fact, once they are abandoned in the first Court they could not be raised in the Court of second appeal. There were three brothers Edward, Richard and John. Edward is the plaintiff of this suit and John is defendant; Richard is dead, and the defendant Mt. Dulari is his widow. The father of these sons owned 200 bighas of cultivation in a certain village along with other property and bequeathed them to Richard for his life with reversion to Edward.

(2.) On 8 February 1922, subsequent to the father's death and after the will came into operation Edward executed a deed of release in favour of Richard of this area of land. Richard then considering himself to be the full owner of this land executed a deed of gift thereof bequeathing half and half to John and Mt. Dulari. We need not refer to Richard's will as I have refused to consider grounds of appeal other than the one covering the question of res judicata. After the death of Richard Mt. Dulari sued both John and Edward for partition of the 200 bighas and stated in her plaint that Edward was only nominally a defendant as he had no right to the property in respect of which partition was asked for by her because of his release dated 8 February 1922. Both John and Edward entered into defence, and Edward pleaded that the deed of release was not good at law. The same counsel was appointed to represent both brothers. The issue, therefore, arose between Mt. Dulari and Edward as to whether the deed of release was valid or not. Two issues were framed, the first and second, with respect to that deed. Before any evidence had been recorded John and Mt. Dulari compromised the suit in terms of the plaint that the land should be divided between them and the actual partition made subsequently by the patwari. The Court granted a decree in the following words: That a decree be prepared in terms of the compromise. The decree is ex parte in the same terms against the absent defendant (meaning Edward).

(3.) This decree was passed on 12 October 1925. On 25 August 1926 Edward filed the present suit against John and Mt. Dulari for recovery of the 200 bighas of land on the ground that the deed of release of 8 February 1922 was invalid and not binding on him.