JUDGMENT

Sulaiman, J. - This is a defendant's appeal arising out of a suit for possession of a half share in certain properties. The parties are own sisters and are the daughters of Mt. Rampiyari and the grand-daughters of Mt. Sahodra. In the plaint it was stated that Mt. Sahodra was the absolute owner of the entire estate and after her death her daughter Rampiyari came in possession of it as a life-tenant by right of inheritance, and that Mt. Rampiyari died on the 12th of December 1917, leaving daughters, the plaintiff and the defendant. These facts were admitted in the written statement. The plaintiff claimed a half share on the ground that she was entitled to the estate equally with the defendant.

2. The main pleas raised on behalf of the defendant were a denial of the plaintiff's right and a further plea that the defendant, being unmarried at the time of Mt. Rampiyari's death, had preference as against the plaintiff who was married. The plaintiff's claim has been decreed for a half share. In this case it is an admitted fact that the entire estate was the absolute property of Mt. Sahodra and was her stridhan and that she had an absolute power of disposal over it. It is also an admitted fact that on the death of Mt. Sahodra this property devolved on her daughter Mt. Rampiyari not as stridhan (that is with absolute power of disposal), but as a limited estate only. It, therefore, follows as a matter of course that on the death of Mt. Rampiyari this property did not devolve on the heirs of Mt. Rampiyari, but on the heirs of Mt. Sahodra. This position is conceded by the learned advocate for the appellant. Indeed, in view of the pronouncement of their Lordships of the Privy Council in the case of Sheo Shankar Lal v. Debi Sahai [1903] 25 All 468, and the case of Sheo Partab Bahadur Singh v. Allahabad Bank [1903] 25 All 476, it cannot be doubted for a moment that the estate inherited by Mt. Rampiyari was limited estate only.

3. The learned Advocate for the appellant, however, has urged two points before us: (1) that the heirs of Mt. Sahodra would be her son's sons, Lachhmi Narayan and Sham Bihari and that the defendant is entitled to plead justertii, and (2) that in any case the defendant being unmarried at the time when Rampiyari died, she had preference over the plaintiff. With regard to the first contention it may be pointed out that on a previous occasion Lachhmi Narayan and Sham Bihari instituted a suit against the defendant Ram Kali for possession of the estate as the heirs of Mt Sahodra. Their suit was dismissed by the first Court as well as by the High Court on the ground that they were not the heirs. The judgment of the High Court is reported in 21 ALJR 656. As the present plaintiff, Gopal Dei, was no party to that litigation, the judgment cannot operate as res judicata. But the plea that Lachhmi Narayan and Sham Behari are the heirs does not come with good grace from Ram Kali who successfully resisted their claim on the previous occasion. That judgment however is of value as a ruling against the appellant, because it clearly held that on the death of Mt. Sahodra the heirs were not Lachhmi Narayan and Sham Behari, but her descendants in the female line.

4. The learned Judges in that case strongly relied on the comments of their Lordships of the Privy Council in the case of Sheo Partab Bahadur Singh v. Allahabad Bank [1903] 25 All 476.

That in the previous case of Jagdish Bahadur Singh v. Sheo Partab Singh (1901) 23 All 369, it was not disputed that the succession must be to the heirs of her (Janki's), father, presumably as the stridhan heirs of her mother in the absence of the lineal heirs of the latter,

5. There is no obscurity in this passage. Janki had got the property from her mother Kabilas Kunwar, whose husband was Mahipal. Their Lordships clearly meant to say that in that case it was not disputed that the succession must be to the heirs of Kabilas Kunwar's husband Mahipal, presumably as the stridhan heirs of Kabilas Kunwa