1878 TEKAIT PERSAD v. TEKAITNI DOORGA KOONWARI. to resist it upon all the grounds that it is possible for him according to his knowledge then to bring forward." If the defendant did not resist the claim in the former suit on the ground of family custom, he is not entitled in the present suit to upset the former decision, because he failed to set up a custom which he ought to have relied upon at the time. The decision in the former suit would be utterly useless Judgment. if the present suit could be maintained. The plaintiff in his present suit, in the 8th paragraph of his plaint, says, " on the strength of the aforesaid decree, the defendant No. 1," that is, the widow, "put your petitioner out of possession." If that decision was correct, she was entitled to put him out of possession. But in the next paragraph he says, "the cause of action arose from the said date when your petitioner's dispossession took place." In effect, he says, that although the mother took possession under the decree in the former suit, the taking of possession under that decree gave him a right to sue her to recover the possession back again from her. If such a suit could be maintained there would be no end to litigation. A case was referred to from the third Madras High Court Reports, page 320—Chinniya Mudali vs. Venkatachella Pillai, in which Chief Justice SCOTLAND seems to have been of opinion that if the same facts were not set up in the former suit a decision in that suit would not be a bar in the second suit. The ground, however, upon which Chief Justice SCOTLAND thought that the former judgment could be impeached, was that the Court had refused in the first suit to allow the party who wished to impeach the judgment to go into the case which he set up in the second suit. In the second Law Reports, Indian Appeals, 283-Krishna Behari Roy vs. Brojeswari Chowdhranee, a similar question was brought before the Judicial Committee. It is said, in the judgment delivered by Sir MONTAGUE SMITH, "It was suggested by Mr. Cave that the former judgment ought not to be binding, because certain witnesses having been examined before the present appellant intervened in the suit, he was refused the opportunity of cross-examining them. Their Lordships think that such an objection is no answer to the defence 1878 TEKAIT DOORGA PERSAD v. TEKAITNI DOORGA KOONWARI. arising from the former judgment. If there had been any miscarriage of that kind the matter was one for appeal in that suit. The objection does not appear to have been raised in the appeals that were successively made in that suit to the Civil Judge and to the High Court; but whether it was so raised or not, their Lordships think that that cannot affect the operation of Judgment. the final judgment, which must be taken to have been rightly given." But it appears at page 166 of the record in the present case that the family custom was brought before the Court in the former suit. They say "As to the third ground, Doorga Persad Singh attempted to give evidence that there is a family custom or koolachar, by which, in this family, females were exIcluded from inheritance. He did not make any averment to that effect in his written statement, and, therefore, did not, perhaps would not, pledge himself to it on oath or solemu affirmation. He did not give the plaintiff any warning that she would have to meet any such case. No issue was raised on it, and down to the time when he examined his witnesses, and even in his written grounds of appeal before us, there is no statement of the particulars of this custom or koolachar the existence of which he now suggests. He does not even aver in his written grounds of appeal that such a custom is proved." It was contended that the cause of action in the suit in which the present defendant was plaintiff was not the same cause of action as that which is set up by the plaintiff against her in the present suit. A similar point was considered in the case reported in the second Law Reports, Indian Appeals, page 283, to which reference has already been made. It was there said: "Both the Courts below have held that the present suit is barred by reason of the judgment in the former one. The ground of the present appeal is that they were wrong, inasmuch as it is said that the case does not come within section 2 of Act VIII of 1859. Now the section is this: The Civil Court shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim.' Their Lordships are of opinion that the expression 'cause of action' can not be taken in its literal and most restricted sense. But however that may be, by the general law, when a material issue has been tried and determined between the same parties in a proper suit and in a competent Court as to the status of one of them in relation to the other, it cannot, in their opinion, be again tried in another suit between them." It is not necessary for their Lordships to go at length into the reasons for their decision; because those reasons appear in a recent judgment of this Board in the case of Soorjomonee Dayee vs. Suddanund Mohapatter, 12 B. L. R., 304. In that judgment it is said, after reference to the second clause of Act VIII, "their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action, and they are of opinion that in this case the cause was in substance to declare the will invalid on the ground of the want of power of the testator to devise the property he dealt with. But even if this interpretation were not correct, their Lordships are of opinion that this clause in the Code of Procedure would by no means ⚫ prevent the operation of the general law relating to res judicata founded on the principle 'nemo debet bis vexari pro eadem causa.' This law has been laid down by a series of cases in this country with which the profession is familiar. It probably has never been better laid down than in a case which was referred to in volume 3 of Atkyn's-Gregory vs. Molesworth, in which Lord HARDWICKE held that where a question was necessarily decided in effect, though not in express terms, between parties to the suit, they could not raise the same question as between themselves in any other suit in any other form, and that decision has been followed by a long course of decisions, the greater part of which will be found noticed in the very able notes of Mr. Smith to the case of the Duchess of Kingston.' A decision of the High Court of Bengal has been referred to, the case of Sheikh Ramatulla vs. Sheikh Sariutulla Kagchi, 1 B. L. R., F. B., 68, as having a contrary tendency. All their Lordships desire to say of it is that, as reported, it does not appear to be consistent with their judgment in the former appeal, to which they have referred, nor with their opinion on the present case. The decision is of so recent a date that they desire to say no more upon it." 1878 TEKAIT DOORGA v. TEKAITNI DOORGA KOONWARI. Judgment. 1878 TEKAIT DOORGA Their Lordships think it clear that the decision in the former suit, that the plaintiff as mother was the heiress of her son, and that she as such heiress was entitled to possession, is conclusive against the present plaintiff, who was a party to the suit, that she was so entitled, and that she having taken possession KOONWARI. under that decree, the plaintiff is barred by the adjudication Judgment. from recovering the possession from her upon the ground that v TEKAITNI she is not the heiress, and that he was entitled to succeed to the property upon the death of her son. As to the second portion of the claim, namely, whether the plaintiff is entitled to have it declared that the deed which the widow executed in favour of Joymungul is void and invalid as against the reversionary heirs, the plaintiff must prove that he is the person presumptively entitled to succeed upon the death of the defendant No. 1. No doubt the family custom might be set up in this suit for that purpose; for, although the plaintiff is barred by the former adjudication from setting it up for the purpose of showing that he is entitled to possession during the life of the defendant No. 1, he is not thereby barred from showing that upon her death, he, if he survives, will be entitled to succeed her. See the case of Barrs vs. Jackson, 1 Young and Collier, 582. The plaintiff in his plaint says:-"The aforesaid estate was originally the ancestral property of the ancestors of Tekait Dhurm Narain Singh, the ancestor of the plaintiff. The aforesaid property as a Raj is not divisible, and according to the ancient family usage the succession has always run in this manner, that the eldest male heir of the superior branch succeeds to the entire estate to the exclusion of other male heirs of the inferior branch, who only receive suitable maintenance; no widow or any female heir after the decease of the proprietor acquires a right to succeed. In the event of the decease of the proprietor of the mehal in dispute, leaving a female heir or male heirs who have descended from females, the eldest male heir of the eldest branch of the second degree, which said branch may have descended from males, becomes the heir and successor, to the exclusion of females and the aforesaid heirs. In fact this practice obtains in other zemindaries, known as Gadis, in Pergunnahs Chakai and 1878 TEKAIT DOORGA PERSAD v. TEKAITNI Khurugdiha in the neighbourhood of Talooka Chakai, the proprietors and occupants whereof are of the same caste as the plaintiff and his ancestors. Conformably to this ancient usage, the property in suit passed to the late Tekait Futteh Narain Singh, and after him to the late Gurbh Narain DOORGA KOONWARL Singh, son of the aforesaid Futteh Narain Singh. Tekait Gurbh Narain Singh died a minor unmarried in the month Judgment. of Cheyt 1272 F.S., leaving plaintiff, the eldest male heir in the eldest branch of second degree of the said family, and, according to the family usage, your petitioner is entitled to succeed to the disputed property." Then he mentions the former suit, and says:-"Should your petitioner not be held entitled to immediate possession of the property in suit, he, as the next heir, is entitled (consistently with the practice of succession referred to above) to the reversionary right in the property after the decease of the defendant No. 1. The alienation of the said six annas, which is alleged to have been made for the payment of bond debts, was not made for such a purpose, by which, in the event of the defendant No. 1 being a female heir, such alienations would be binding upon the reversioner, nor was it made under legal necessity, which entitles the purchaser to hold possession for a longer period than the lifetime of the vendor. Your petitioner therefore prays that he may be put in possession of the property in suit, but should the Court not deem him deserving of this relief, that an order be passed in reference to the aforesaid alienation, declaring the said alienation ineffectual after the demise of the defendant No. 1, and that the reversioner is not bound by it." In the present case there are other members of the joint family nearer in degree to the deceased Gurbh Narain than the present plaintiff, and who, in the absence of family custom, might be entitled (under the ordinary Mitakshara law) to succeed to the estate, assuming it to be joint family property; indeed, that fact was not disputed. The impartibility of the property does not destroy its nature as joint family property, or render it the separate estate of the last holder, so as to destroy the right of another member of the joint family to succeed to it upon his |