Judgement

Appeal (No. 7 of 1931) from a decree of the High Court (April 1, 1930) affirming a decree of the District Judge of Pyapon (December 10, 1928).

The present suit was brought in 1927 in the District Court by respondent No. 1 against her brothers (the appellant and respondent No. 2), her sister (respondent No. 3) being added as a defendant pro forma. The plaint stated that Ma Myit, the mother of the parties, died a Burmese Buddhist on January 22, 1918, possessed of property of which the brothers had taken possession ; the plaint claimed a one-fourth share of the property, and administration of the estate.

Ma Myit had been married to a Chinaman, who died in 1902.

The appellant alone put in a written statement. In addition to pleas by which he relied upon Chinese Buddhist law as being alone applicable, he pleaded that the suit was barred by res judicata by reason of the decision in a suit brought in 1918. That suit had been brought by respondent No. 3, the defendants being the other parties to the present suit and the relief the same as that now sought. The suit had been dismissed by a final decree of the High Court made in 1924 upon the ground that Chinese customary law applied, and that under it Ma Myits sons alone succeeded to the property. The matter is reported at I. L. R. 2 R. 94.

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

A preliminary issue was framed whether the suit was barred by res judicata. The District Judge, though holding that the suit was not barred by res judicata, was of opinion that he was bound by the previous decision of the High Court; he accordingly dismissed the suit. An appeal to the High Court was allowed by Das and Doyle JJ. (reported at I. L. R. 6 R. 575), and the suit was remitted for trial.

Further issues were then framed upon which the District Judge found that Ma Myit had died a Burmese Buddhist and that Burmese Buddhist law applied. He made a decree for administration of the estate.

An appeal to the High Court was dismissed by a judgment delivered by Heald A.C.J., Otter J. concurring. The learned judge referred to the Full Bench decision in Phan Tiyok v. him Kyin Kauk (( 1930) I. L. R. 8 R. 57.), and held that under that decision, whether Burmese Buddhist law or the Indian Succession Act applied, the plaintiff was entitled to a one-fourth share of the estate.

1932. March 7, 8. Dunne K.C. and R. W. Leach for the appellant. The suit should have been dismissed. First, because it was barred by res judicata having regard to the decision in the 1918 suit; secondly, because the property in Ma Myits possession was held by her on behalf of her sons. The judgment of the High Court upon the preliminary issue was based upon the terms of s. 11 of the Code of Civil Procedure, but in a series of decisions the Board has held that s. 11 is not exhaustive of the principle. The 1918 suit, like the present suit, claimed administration of the estate of Ma Myit, and the present plaintiff, as one of the heirs, was a necessary party. The decision then given finally determined the rights of all the parties Hook v. Administrator-General of Bengal (( 1921) L. R. 48 I. A. 187.) ; Ramachandra Rao v. Ramachandra Rao (( 1922) L. R. 49 I. A. 129.); Kalipada De v. Dwijapada Das. (( 1929) L. R. 57 I. A. 24.) Apart from the principle that a decision in an administration suit is binding upon all parties, all the conditions under which a decision is res judicata between co-defendants were present in this case Munni Bibi v. Tirloki Nath. (L. R. 58 I. A. 158.)

Their Lordships directed that the respondents counsel should argue the first point before the second was. proceeded with.

Pennell for respondent No. 1. Munni Bibis case (5) is distinguishable, because there a decree had been made in the previous suit, whereas in this case the suit of 1918 was dismissed. The principle as laid down by the Board as to res judicata between co-defendants does not apply where no relief was granted. The terms of the judg