Judgement

Appeal from a judgment and decree of the High Court (April 29, 1915) affirming a decree of the Subordinate Judge of Saharanpur.

The suit was instituted by the appellants against the respondents for possession of immovable property known as the Landhaura Estate. By the plaint the first appellant claimed that he was entitled to succeed to the property as reversionary heir of Raja Jagat Prakash Singh ; it was alleged that Rani Dharam Kunwar, the mother of the said deceased Raja, had no authority from her husband to adopt the first respondent; and that the adoption was invalid by Hindu law. The respondents pleaded that the Rani had authority to make the adoption, and that the adoption was valid; further, that the question of the validity of the adoption was res judicata, in that it had been decided by the Privy Council in favour of Balwant Singh in a suit brought by the Rani at a time when she represented the estate.

The decision of the Privy Council referred to is reported at L.R. 39 I. A. 142.

The facts appear from the judgment of their Lordships.

The Subordinate Judge framed several issues, of which two only are material to this report, namely (1.) Are the plaintiffs bound by the decision of their Lordships of the Privy Council? (7.) Was the defendant No. 1 (Balwant Singh) validly adopted to Raja Raghubir with his permission?

In the previous suit, in addition to issues directed to the question of estoppel against the Rani, the following issue was settled (3.) Had or had not the plaintiff (the Rani) any authority from her husband to adopt the defendant (Balwant Singh) ? Both Courts in India decided in that suit upon the estoppel without recording any finding upon that issue. The facts as to the proceedings upon the appeal to the Privy Council appear from the report at L. R. 39 I. A. 142 and the present judgment of their Lordships.

The Subordinate Judge held in the present suit that the appellants were bound by the previous decision of the Privy Council; he accordingly considered that it was unnecessary to deal with issue No. 7, and dismissed the suit.

Upon appeal to the High Court, the learned judges, Sir Henry Richards C.J. and Sir P. C. Banerji J., differed. The Chief Justice was of opinion that the matter was not res judicata against the appellants because the trial judge in the former suit had excluded certain verbal evidence upon the issue as to authority, though he had recorded the documentary evidence thereon. Banerji J. agreed with the Subordinate Judge that, the Judicial Committee having considered the evidence upon the record as sufficient to enable them to decide the question of fact, the decision was binding. The matter was referred under s. 98 of the Civil Procedure Code, 1908, to a third judge, Chamier J., who, upon a consideration of the former proceedings before the Board and their Lordships judgment, agreed with the view of Bannerji J.

The appeal was accordingly dismissed.

1918. May 3, 6, 7, 9. Dunne K.C. and W. L. Richards for the appellants. In the former suit the Rani was estopped by her acts from denying that she had authority to adopt Balwant Singh; she consequently could not represent the estate upon that issue within the principle laid down in Katama Natchiar v. Raja of Shivagunga. (( 1863) 9 Moo. I. A. 539, 604.) That principle has never been applied where the female holder was estopped by facts personal to herself; it applies only where there has been a "fair trial of the right." That has not been the case here. Both Courts in India decided the former suit purely upon the ground of estoppel, and the trial judge excluded evidence as to the authority to adopt. Having regard to the exclusion of evidence, it is to be inferred that the Board did not intend to give a judicial decision binding upon the reversioners. The appellants not having been parties to the previous suit, s. 11 of the Code of Civil Procedure, 1908, does not apply, the sole question being whether the appellants are bound under the