Judgement

Consolidated Appeal (No. 184 of 1924) by special leave from two decrees of the High Court (December 20, 1920) affirming two decrees of the Subordinate Judge of Dharwar (February 16, 1918).

The suits giving rise to the consolidated appeal were for partition, and the question to be determined was whether the respondents were entitled to share in the joint family property.

The first appellant and his brother, since deceased, as plaintiffs in the first suit and defendants in the second, alleged that the respondents were not entitled to share as they were descendants of the

Law. Rep. 54 Ind. App. 122 ( 1926- 1927)

Lingangowda V. Basangowda 10

concubine of a former member of the joint family, and that in any case they had lost their right by exclusion.

The father of the present appellants had brought a suit in 1904 against the respondents claiming that certain land was in his ownership and under his management, and that they were obstructing him in his enjoyment and management, and praying for an injunction. The respondents had put in a written statement in that suit, namely, No. 112 of 1904, claiming to be jointly entitled to the land. The suit was dismissed, it being concurrently found that the respondents were legitimate members of the family, and, on appeal, that there had been no exclusion. A second appeal to the High Court had been dismissed. The present appellants contended in the present suits that they were not bound by the decision of the 1904 suit, as they were not parties and were then minors, and their father had not sued on behalf of the family with due care.

The Subordinate Judge found that suit No. 112 of 1904 had been brought by the appellants father as manager and had been conducted with due care, and that the decision was res judicata in the present suits. He also found on the facts that the present respondents were legitimate members of the family.

On appeal the High Court affirmed the decision on res judicata, without going into other questions.

An application to the High Court for a certificate enabling an appeal to the Privy Council was dismissed as barred by limitation. The Judicial Committee, however, granted special leave to appeal.

1927. Feb. 3. Kenworthy Brown for the appellants. The decision in the suit of 1904 raised no res judicata against the appellants. They were not parties and were minors. They do not claim through the plaintiff in that suit so as to make s. 11 of the Code of Civil Procedure applicable. A son in a joint Hindu family becomes entitled in his own right on birth, he does not claim through his father Ram Narain v. Bisheshar Prasad (( 1888) I. L. R. 10 A. 411.); Sundar Lal v. Chhitar Mal. (( 1906) I. L. R. 29 A. 1.) Explanation 6 to that section does not apply, because the plaintiff in the former suit did not aver that the property was joint property; the suit was not as to title but as to possession. The appellants in no way acquiesced in the former suit.

Sir George Lowndes K.C., and E. B. Raikes for the respondent. The contention that the appellants were not bound by the former suit was abandoned in the High Court. Therefore it cannot now be raised Lola Kalyan Das v. Sheikh Maqbul Ahmad (( 1918)22Cal. W.N. 866.); especially as the question depended on the facts. But in any case the appellants father was manager of the joint family, and must be presumed to represent their interest in the former suit Kunjan Chetti v. Sidda Pillai. (( 1899) I. L. R. 22 M. 461.) It was found in the former suit that the appellant brought it as manager.

Kenworthy Brown replied.

The judgment of their Lordships was delivered by

LORD PHILLIMORE. Their Lordships have listened carefully to the arguments of counsel for the appellants, but they are of opinion that on the first point, which, decided in the way in which they propose to decide it, determines the appeal, the judgment of the High Court was right. Their Lordships adopt their reasons.

It was necessary for a decision in the previous suit that the j