Judgement

Appeal (No. 148 of 1919) from a judgment of the High Court (July 1, 1918) reversing a decree of Chaudhuri J. (March 4, 1918).

The appeal arose out of proceedings in an administration suit instituted in the High Court in 1911 by the respondent the Administrator-General, as executor and trustee of the will, with codicils of Henry Wilkins Jones who resided at Calcutta and died there in 1909. The appellant the Rev. G. H. Hook was pastor of the Lal Bazar Baptist Church. The respondents on the record other than the Administrator-General were J. H. Jones and E. A. Jones, as executor and executrix of one of the next of kin and as being next of kin of the testator, other parties who were alleged next of kin, and (the fourth respondent) the Rev. B. E. Evans, pastor of the Howrah Baptist Church.

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

The judgment of Chaudhuri J., delivered on July 16, 1912, upon the suit originally coming before him for trial is fully reported at I. L. R. 40 C. 192. He held (inter alia) that the gift over upon a failure by the Baptist Church to observe the conditions of the gift to it, was valid.

In the present proceedings which were commenced in 1917 by petition in the suit Chaudhuri J. delivered judgment on March 4, 1918. The learned judge said that it was contended by the next of kin that his former decision that the gift over was valid was not correct, and that, having regard to the death of the annuitant, it was open to them to question the decision. The learned judge did not think that it was open. He said that a further contention had been raised— namely, that s. 101 of the Indian Succession Act, 1865, applied to charitable bequests and rendered the gift over void. After a consideration of that question the learned judge rejected the contention, adding that he did not think that it was open to the next of kin to raise it. An order was made directing that the corpus of the fund and the accumulated income, after the payment of costs, should be handed over to the present appellant and to the respondent in equal moieties.

An appeal to a Division Bench consisting of Saunder-son C.J. and Woodroffe J. was allowed and it was declared that the bequests to the Howrah and Lal Bazar Baptist Churches were invalid under s. 101 of the Indian Succession Act, 1865, and that as to the residue of the corpus and income of the residuary trust fund there was an intestacy. The learned judges were of opinion that there was no res judicata, since s. 11 of the Code of Civil Procedure did not apply, and in their view the order made on July 16, 1912, left it open to the next of kin to raise that contention, which they pointed out had not been raised at the former hearing.

1920. Dec. 13. De Gruyther K.C. and R. H. Hodge for the appellant; Turnbull for the respondent Rev.

B. Evans. By the decision of Chaudhuri J. on July 16, 1912, the validity of the gift over in favour of the Howrah Baptist Church and the Lal Bazar Baptist Church was res judicata. The question was material to the judgment then delivered and was finally determined. The next of kin could have appealed but did not do so. The decision with regard to the destination of the income and corpus on the death of the annuitant was deferred in view of a contention that the Lower Circular Road Baptist Church had the period of the life of the annuitant to fulfil the conditions. Although s. 11 of the Code of Civil Procedure, 1908, applies only to a former decision in another suit, that section is not exhaustive ; the general principle of res judicata applies Ram Kirpal Sukul v. Rup Kuari. (( 1883) L. R. 11 I. A. 37.)

The Judicial Committee desired to hear counsel for the respondents, the next of kin, on the question of res judicata.

Tomlin K.C. and Andrewes-Uthwatt for the respondents J. H. Jones and E. A. Jones. There was no res judicata affecting the question now for determination. The will and codicils provided for two distinct gifts ; the first