Judgments in previous litigation, though not operating as res judicata or admissible under Sections 40 or 41 of the Evidence Act, 1872, may be admissible under Section 13 of the Act as an instance of the fact that a right was claimed and asserted.

K.Ahmad, J.

1. The suit which has given rise to this appeal by the defendants was for partition of immoveable properties described in detail in Schedules 1 and 2 of the plaint and for allotment of a separate takhta of -/8/- annas share therein to the plaintiff. Both the Courts below have decreed the suit. The parties thereto are admittedly members of a common family. Their common ancestor was one Sukan Mahton, who had two wives. By the first wife, he had a son, Loki Mahton, and Loki Mahton in his turn had a son, Ram Keshwar Mahton. By the second wife, Sukan Mahton had three sons, Girwar Mahton, Bundel Mahton and Mahabir Mahton. Bundel predeceased his father. Girwar died leaving a son, Kashi Mahton. Kashi Mahton is also now dead with out any issue. The plaintiff, Sonamati Kuer, is the widow of this Kashi Mahton. The third son, Mahabir Mahton, is defendant No. 1, and his sons and grandson have been impleaded as defendants 2 to 5.

2. In this Court the case has been argued oh; the admitted footing that on the date Kashi Mahton died, the heirs of Sukan Mahton by his second wife were inter se joint as contemplated, by the Mitakshara School of Hindu Law. The claim of the plaintiff, however, was that Kashi Mahton died in the year 1939, that is to say, after the passing of the Hindu Womens Rights to Property Act, 1937. Therefore, it was claimed that she was entitled to one-half of the properties owned and possessed by the heirs of Sukan Mahton by his second wife, or one-fourth of what Sukan Mahton had left on his death. Further, it appears that the properties of which partition was sought were of two classes;

(i) the ancestral property which has been detailed in the plaint in Schedule 1, and (ii) the acquired properties standing either in the name of defendant No. 1 or in the name of his wife or that of the wife of his son, which have been detailed in Schedule 2 of the plaint. According to the plaintiff, these acquisitions as well were made out of the common family fund, and, therefore, she was entitled to her share therein as well.

3. In answer thereto, the plea in defence was two fold; (i) that Kashi Mahton died sometime in 1933, that means, before the passing of the Hindu Womens Rights to Property Act, 1937, and, therefore, his widow, who as already stated is the plaintiff in the present case, could not inherit, any of his properties on his death, the family then being joint, and (ii) that the acquisitions on the properties mentioned in Schedule 2 of the plaint were the personal acquisitions of the purchasers out of their personal funds, and, therefore, the plaintiff was in any case not entitled to any share in those properties.

4. The trial Court, on hearing the parties, negatived both these pleas raised on behalf of the defendants and decreed the suit. In appeal, it appears, the claim of the plaintiff was contested only on the ground that the date of death of Kashi Mahton as found by the trial Court was wrong and it should have been held as the year 1933- The Court of appeal below has not agreed with this contention, and accordingly, the suit by the appellate Court also has been decreed.

5. In this Court Mr. Lal Narain Sinha appearing for the appellants has again raised both the aforesaid pleas and the submission made by the learned counsel is that the findings given on those points by the Courts below are perverse and erroneous in law.

6. So far as the date of death of Kashi Mahton is concerned, that is based on the oral testimony of the witnesses examined on behalf of the parties and two circumstances relied upon by the plaintiff in support of the evidence of her witnesses. The submission made by Mr. Sinha is that so far as the evidence of the witnesses examined on behalf of the plaintiff is concerned, that taken by itself has not been accepted by the Court of appeal below as sufficient and conclusive on the point of date of death of Kashi Mahton. In support of this contention, my attention has been drawn by learned coun