Judgement

Appeal (No. 15 of 1928) from a decree of the High Court (February 19, 1925) reversing a decree of the Subordinate Judge of Agra (February 8, 1922).

The suit was brought by Mst. Munni Bibi, the appellant, since deceased, against the respondent for possession of a house at Agra, the title to which had been in dispute between the parties and their respective predecessors for many years. The defendants and their predecessors claimed title under a deed of gift made in 1864 by Joti Prasad to his wife Mukandi. The plaintiffs title rested upon the contention that the gift had not been completed and that upon a partition after Joti Prasads death the house had been allotted to his son Amar Nath. In a suit brought in 1893 Kashi, Mukandis daughter, had obtained a decree for possession against the widow of Amar Nath. In 1909 the holder of a decree against Amar Nath, then deceased, sued for a declaration that he was entitled to attach and sell the house in execution ; he made Munni Bibi, the daughter of Amar Nath, and Kashi, the daughter of Mukandi, defendants. He obtained a decree on appeal, it being held that the decree of 1893 in favour of Kashi had been obtained by collusion. In the present suit the plaintiff-appellants contended that by the decree of 1909 the question of title was res judicata in their favour. The defendant-respondents relied on the decree of 1893.

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

The High Court, reversing the Subordinate Judge, dismissed the suit. The learned judges (Mears C.J. and Piggott J.) held that the suit of 1893 had not been collusive, as held by the trial judge, and that the decision operated as res judicata in favour of the defendants. They held that the decision in the 1909 suit did not so operate because Munni Bibi had not been a necessary party and had collusively failed to appear. Apart from the question of res judicata they were of opinion that the gift to Mukandi had been completed and was effective. Accordingly they dismissed the suit.

1930. Dec. 11, 12. De Gruyther K.C. and Hyam for the appellants. The principle Laid down in Cottingham v. Earl of Shrewsbury (( 1843) 3 Ha. 627.) as to res judicata between co-defendants has been applied in India in several cases e.g. Ahmad Ali v. Najabat Khan (( 1895) I. L. R. 18 A. 65.) ; Jadav Chandra v. Kailash Chandra. (( 1916) 21 C. W. N. 693.) Each of the three conditions Laid down in the case last mentioned as being necessary existed in the present case. Sect. 11 of the Code of Civil Procedure is not exhaustive of the subject of res judicata Hook v. Administrator-General of Bengal. (( 1921) L. R. 48 I. A. 187.) Munni Bibi was a proper party to the suit of 1909 as the Court had to decide title as between her and Kashi. The fact that Munni Bibi did not appear does not prevent the decision in her favour from being binding upon Kashi. It is conceded that the respondents do not claim through Kashi; but as reversionary heirs they are bound by the decree Shivagunga case. (( 1863) 9 Moo. I. A. 543, 609.)

Dunne K.C. and Dube for the respondents Nos. 1, 2 and 3. The decision in the 1909 suit did not operate as res judicata between the co-defendants, because Munni Bibi did not really dispute the title of Kashi. Both Courts below took the view that that was so. There was really no issue between them for the purpose of s. 11 of the Code which primarily governs the subject of res judicata. In Hooks case (( 1921) L. R. 48 I. A. 187.) the earlier decision was in the same suit, so that although s. 11 did not apply in terms, it applied a fortiori. The same consideration applies to Ramachandra Rao v. Ramachandra Rao. (( 1922) L. R. 49 I. A. 129.) The terms of s. 11 should not be departed from save in exceptional cases.

De Gruyther K.C. in reply referred to Kalipada De v. Dwijapada Das. (( 1929) L. R. 57 I. A. 24.)

1931. Feb. 24. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The property in dispute in this app