Judgement

Appeal (No. 141 of 1923) from a decree of the Court of the Judicial Commissioner (February 6, 1913) affirming a decree of the Subordinate Judge of Bahraich.

The suit was brought by the appellants to recover a moiety of the estate of a deceased Hindu, Raghunath Singh ; they claimed that according to a custom of the family they were the next reversionary heirs upon the death of the widow of the deceased.

The respondents by their written statements, pleaded (inter alia) that the claim was barred under s. 11 of the Code of Civil Procedure, 1908, as being res judicata.

The facts are fully stated in the judgment of the Judicial Committee.

Both Courts in India held that the plea of res judicata was established, and that the suit should be dismissed.

1924. Oct. 24. De Mello for the appellants, referred to Parsotam Gir v. Narbada Gir (( 1899) L. R. 26

I. A. 175.); Kailash Mondul v. Baroda Sundari Dasi (( 1897) I. L. R. 24 C. 711.); Konerrav v. Gurrav (( 1880) I. L. R. 5 B. 589.) ; Chand Kour v. Partab Singh (( 1888) L. R. 15 I. A. 156.) ; Kali Krishna Tagore v. Secretary of State for India (( 1888) L. R. 15 I. A. 186.); Sheosagar Singh v. Sitaram Singh (( 1897) L. R. 24 I. A. 50.) ; and to C. P. Code, s. 11, and Order XXIII., r. 1.

Parikh for respondent No. 1 and Dube for respondent No. 2 were not called upon.

Nov. 17. The judgment of their Lordships was delivered by

LORD PHILLIMORE. This is an appeal by the plaintiffs from concurrent judgments against them given by the Subordinate Judge of Bahraich and affirmed by the Court of the Judicial Commissioner of Oudh.

It is a suit for possession of land, in which the defendants and present respondents raised as a first defence that the matter was res judicata, having already been decided between the same parties. Both Courts being of this opinion and having determined this issue, found it unnecessary to determine any of the other issues and dismissed the suit.

The history of the case is as follows The present appellants and plaintiffs with others filed a suit in July, 1908, against one Musammat Ram Kunwar, and the present defendant and respondent Jagannath Bakhsh Singh, and one Ganga Bakhsh, now represented by the defendant and respondent Bishunath Singh, in which they stated that Musammat Ram Kunwar, being a Hindu widow, was in possession of her husbands property for the ordinary Hindu womans estate, that they (the plaintiffs) and Ganga Bakhsh were the presumptive heirs of her husband, and that she, intending to defeat their succession, had purported to make a deed of gift of the property to Jagannath Bakhsh, her daughters son; and they claimed that the deed of gift might be declared void and illegal against them.

The defendants in that suit among other defences pleaded that the plaintiffs were not equal in degree with Ganga Bakhsh, but that he was the nearest reversioner and the only person entitled to dispute the deed of gift. To this the plaintiffs replied that if he were the nearer heir—-" even then the plaintiffs are entitled to maintain this suit on account of Ganga Bakhsh Singhs denial and his not joining the suit, owing to his indifference towards the preservation of his rights, having regard to his views expressed in the written statement and on account of his colluding with the defendants 1 and 2 ; and the defendants 1 and 2 cannot derive any benefit by setting up, a jus tertii in favour of Ganga Bakhsh Singh, as alleged by them." In this state of the pleadings the widow died.

A suit for a declaration that a gift by a Hindu widow is void as against the reversionary heirs of her husband is one which is contemplated by the Specific Relief Act (Act I. of 1877, s. 42), as is shown by the explanation lettered (e) to that section. But it is established that such a suit is prima facie competent only to the nearest prospective reversioner, and that if a more distant relation claims to sue, he can only maintain his suit by showing that the nearer reversioner has colluded with the