JUDGMENT

Lord Macnaghten.

1. The question in this appeal is whether the infant respondent Sitaram Singh is or is not the son of one Anar Koer who died in November or December 1884.

2. Upon the answer to this question the title of the appellants to a moiety of certain shares in mouza Nadaura depends.

2. Anar Koer was the wife of Adit Singh, the guardian on the record, and alleged father of Sitaram, and she was the only child and heiress of Mahipat Singh.

3. Mahipat Singh and a cousin of his, one Jawahir Singh, had purchased the shares in question on their joint account and had registered them in their joint names. Mahipat, who survived Jawahir, died in August 1882. On his death the plaintiffs, who were sons of Jawahir, applied for registration on the ground that the family was joint, and that the succession belonged to them. The Deputy Collector on a summary application decided in their favour. Anar Koer then brought a regular suit to recover her father's moiety. In that suit it was held that the family was not joint, and this decision was confirmed on appeal. But the registration in the Collector's books was not altered and possession of the whole property has remained with the plaintiffs ever since.

4. In the present suit, which was commenced in 1888, the plaintiffs asked to have it declared that Sitaram was not the son of Anar Koer or the grandson by the daughter of Mahipat, and that Anar Koer did not leave any child behind. The Subordinate Judge of Gya made a declaration to that effect. The High Court (Petheram, C.J., and Beverley, J.) reversed this decision and dismissed the suit. From that reversal the present appeal is brought.

5. There had been a previous litigation begun in 1885 between the same parties in which the very same issue was raised. The Additional Subordinate. Judge of Gya, by whom the case was tried, a different person from the Subordinate Judge in the present suit, attached little or no weight to the oral evidence on the part of the plaintiffs. Holding that the burden of proof lay on the plaintiffs and that they had not discharged it he dismissed the suit. On appeal the learned Judges of the High Court (Mitter and Agnew, JJ.) affirmed the decree. They did not, however, deal with the real question at issue between the parties. They held that the suit could not be maintained in the absence of certain persons in the same interest as the plaintiff's. And apart from that objection they were of opinion that under the particular circumstances of the suit before them the Court ought not, in the exercise of its discretion, to make a declaratory decree. Whether the view of the learned Judges on these points was right or wrong the judgment proceeds expressly on the footing that it was "not necessary to come to a decision" on the question of Sitaram's parentage. And so the appeal was dismissed.

6. The plaintiffs then bought up the interests of the persons not represented in the first suit and commenced fresh proceedings. It was objected that the plaintiffs were precluded from bringing a second suit by the decision in the suit of 1885. In a preliminary judgment the Subordinate Judge disposed of that point without any hesitation. On the 7th of February 1890 he delivered judgment on the main question. He carefully reviewed the evidence and all the circumstances of the case. He was not so much impressed by the oral testimony on the part of the plaintiffs as he was by the way in which the defendant's case had been conducted and by the absence of evidence which, if the defence were an honest one, would, he thought, certainly have been forthcoming. He held that the plaintiffs had made out "a sufficient prima facie case," and that the defendant had altogether failed to meet it.

7. It is not necessary for their Lordships to do more than express their concurrence with the Subordinate Judge in his view of the question as it was presented to him, because to that extent the learned Judges of the High Court adopt the reasoning and conclusio