Judgement

Appeal (No.8 of 1948) from a judgment and decree of the High Court (March 27, 1942) which had affirmed a judgment and decree of the Subordinate Judge, Jalpaiguri (September 12, 1938).

The suit out of which this appeal arose, filed on September 9, 1936, was one for the partition of family property in which the plaintiffs claimed a share, alleging that the first plaintiff, Khatamannessa, was the second wife of one Safiquddin, deceased, and that the other plaintiffs were their legitimate children. Of a number of defendants, the first defendant, Tanjina Khatun, was admittedly one of the wives of Safiquddin, and their two children were also defendants. It was denied in separate written statements filed by the present appellants (who were defendants Nos. 9 and 15 in the suit) that Khatamannessa was the lawful wife of Safiquddin, and they pleaded that that question was res judicata by reason of the decision in an earlier suit, No.1 of 1922.

The facts regarding the question of res judicata in suit No. 1 of 1922 were that the suit was brought by his landlord against Safiquddin during his lifetime to recover arrears of rent in regard to certain properties. After his death substitut