Applicability of the doctrine of res judicata between co-defendants.

Lord Simonds.-In this appeal, which is brought ex parte from a judgment and decree of the High Court of Judicature at Fort William in Bengal affirming a judgment and decree of the Subordinate Judge, Jalpaiguri, it is necessary for their Lordships to deal only with one of the many questions which have in the course of the proceedings been debated in the courts of India. Upon all other questions it has been properly conceded by learned counsel for the appellants that the judgments under appeal cannot seriously be challenged.

The single question argued before the Board was as to the validity of the plea raised by the appellants that the claim of the plaintiffs in the present suit to be lawful heirs of one Safiquddin, who died intestate on the 11th March, 1924, was res judicata in a previous suit, namely, Suit No. 1 of 1922, which had been heard and determined by the Subordinate Judge of Jalpaiguri on the 23rd August, 1924. If that plea was valid, there was no question but that the appeal must succeed: if it was not, then, though the appellants had raised a number of alternative pleas, it was plain to their Lordships that they could not be maintained and the appeal must fail.

The appellants contended that the judgment in Suit No. 1 of 1922 which will be referred to as “the previous suit-”) operated under the principle of res judicata to preclude the plaintiffs from asserting that they were the lawful wife and lawful children of Safiquddin. Upon this question the judgments of the Subordinate Judge and the High Court were alike adverse to the appellants and their Lordships see no reason for coming to a different conclusion.

In Munni Bibi v. Tirloki Nath1, the conditions for the application of the doctrine of res judicata as between parties who have been co-defendants in a previous suit are thus laid down: there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict m order to give the plaintiff the appropriate relief, and (3) a decision of that question between he co-defendants. It may be added that the doctrine may apply even though he party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.

It is at this point that the appellants’ case breaks down. Their Lordships do not follow the High Court in saying that it appears from the evidence on the record that the first plaintiff in the present suit, Khatemmanessa, who claims to be a lawful widow of Safiquddin, was in the previous suit designedly kept from the knowledge that in that suit there was a conflict of interest between herself and her co-defendant Tanjmu Khatun admittedly a lawful widow of the deceased. It was in fact admitted upon an application to the High Court for leave to appeal to His Majesty in Council that this statement could not be supported. On the other hand it appears’ to their Lordships that the appellants have by no means discharged the burden, which lies upon them, of showing that Khatemmanessa had or must be deemed to have had notice of that conflict.

The only documents in the previous suit that have been made available in these proceedings are (1) the written statement of Tanjina Khatun and her lawful children, (2) the judgment of the learned Subordinate Judge, and (3) his decree From these documents it appears, though much is obscure that the suit was originally brought against Safiquddin (or, it may be, against Safiquddin and others) for recovery of rent for a considerable period in respect of a substantial area of land, and that on Safiquddin’s death there were substituted for him as defendants Tanjina Khatun and her children and Khatemmanessa and her children. It appears further that