Judgement

Appeal (No. 21 of 1929) from a decree of the High Court (November 29, 1926), reversing a decree of the Subordinate Judge of Burdwan

The only question necessary to be determined upon the appeal was whether a finding arrived at in a contentious proceeding under the Probate and Administration Act, 1881, that respondent No. 1 was the nearest relation to one Nistarini deceased, was res judicata in a suit subsequently brought by the present appellants.

The facts sufficiently appear from the judgment of the Judicial Committee.

98 Law. Rep. 57 Ind. App. 24 ( 1929- 1930)

Kalipada De V. Dwijapada Das 199

The Subordinate Judge, relying upon Lalit Mohan Das v. Radharaman Saha (( 1911) 15 Cal. W. N. 1021.), held that the matter was not res judicata, and that upon the evidence Gokal Dhar and Banwari Dhar, from whom the plaintiffs derived title, were Nistarinis heirs.

The High Court (Ghose and Panton JJ.) reversed the decision, holding that the earlier finding was binding upon the parties; they were also of opinion upon the evidence that Dwijapada Das was the nearest heir.

1929. Oct. 25. De Gruyther K.C. and Dube for the appellants. The respondents did not appear.

Nov. 19. The judgment of their Lordships was delivered by

LORD DARLING. The question in this appeal is as to the right of inheritance to one Nistarini who is entitled under her fathers will to the property in suit. She died childless and intestate in November, 1909. There were various claims to her estate, but this appeal is concerned only with the claim of the first respondent, Dwijapada, on the one hand, and two brothers, Gokal and Banwari (through whom the appellants claim) on the other.

On the death of Nistarini, applications were made by both parties to the District Court for the grant of letters of administration to her estate under Act V. of 1881. The proceedings being contentious were tried as a suit by the Subordinate Judge to whom the case was transferred under the provisions of Bengal Act XII. of 1887. The principal, if not the only, question for his decision was whether Dwijapada was the nearest heir of Nistarini, this depending upon a pure question of fact, namely, whether Dwijapadas mother was the sister of Nistarinis husband. This issue was formally raised and determined by the Subordinate Judge in favour of the first respondent Dwijapada, and on August 20, 1912, the Sub ordinate Judge ordered that letters of administration to Nistarinis estate should issue to him.

There was an appeal to the High Court and the decision of the Subordinate Judge was affirmed. Letters of administration were granted to the first respondent and he obtained possession of the property. No appeal was made to His Majesty in Council, as it could hardly be doubted that upon the concurrent finding of fact of the two Indian Courts such an appeal would have been hopeless. The other claimants, Gokal and Banwari, apparently acquiesced in the finality of this adjudication and took no further steps in the matter. After their deaths their heirs seem to have sold their alleged shares in the property to the present appellants, who, in November, 1921, on the eve of limitation, instituted the somewhat speculative suit out of which this appeal has arisen. They prayed for a declaration that Dwijapada, the first respondent, was not the sisters son of Nistarinis husband, and the establishment of their title through Gokal and Banwari, with possession and mesne profits.

The first defence raised was that the suit was res judicata by reason of the previous decision, but the trial judge, relying mainly upon a decision of the Calcutta High Court, Lalit Mohan Das v. Radharaman Saha (15 Cal. W. N. 1021.), held against this con tention, and, proceeding to try the suit upon its merits, came to the conclusion that Dwijapada was not in the relationship to Nistarini which had been found in the former proceedings, and consequently was not her heir, but that Gokal and Banwari were entitled to the property. Dwijapada