Shamarao and Others vs Trimbak Rao and Another

Before setting out the facts on the suit it is necessary to refer to a previous suits between the same parties as much turns-upon what was decided in the previous suit. Respondent 1 before us, Trimbak Rao, filed a suit for possession of the suit property and foe a declaration of title to the same alleging that respondent 2, Lakshmi Bai, alienated the suit property in his favour. The present plaintiffs-appellants before us wore made parties to that suit as defendants. The present plaintiffs filed their written statement in that suit as defendants and in the written statement they raised the plea that Lakshmi Bai was the widow of a member of a Hindu joint family and, therefore, had no right to alienate the joint family property. In that suit it was held that Lakshmi Bai was the widow of a separated member of the family and it was also held that the property was alienated for legal necessity. These findings of the trial Court were upheld by the High Court in second appeal, and thus these findings-became conclusive so far as the present parties are concerned.

Now the present suit has been filed by the reversioners viz., (the defendants in the previous suit) for a declaration that the alienation by the widow is not valid and they pray for a decree for possession of the suit property against the alienee. In this suit the plaintiffs aver that during the pendency of the former suit the widow re-married and, therefore, by reason of the re-marriage she forfeited her right in the suit properties and as she had no right the-aliened could get no title. The trial Court dismissed the suit on the ground that this suit was barred by the rule of res judicata by reason of the findings in the former suit against the present plaintiffs. This judgment was up held by the lower appellate Court. The plaintiffs have come in second appeal.

The sole point to be considered in this appeal is as to whether the present suit is bar red u/s 7, Hyderabad Civil P.C., by reason of the judgment in the previous suit. It is argued by the advocate for the appellants that there can be no question of res judicata for the reason that in the previous suit by the alienee, the defence of the present plaintiffs was that Lakshmi Bai was the widow of a member of a joint family which was held against, but the present suit by the plaintiffs is based upon quite a different set of facts namely that the widow re-married by reason of which she lost her right in the property. This argument is not quits relevant. The question arises whether under these circumstances the plea of res judicata would prevail. The question has to be considered whether the present plaintiffs should have raised all defences in the previous suit. Explanation 4 to Section 7, Civil P.C., is in. point. It dearly states that it would operate as res judicata if a plea ''could'' and ''ought'' to have been raised has not been raised. We have to consider whether having regard to the form of the previous suit and the defence raised there whether it could be said that the claim in the previous suit could have been resisted on other grounds as well. So far as this is concerned we are of opinion that in the previous suit which was by an alienee against the widow alienee and the reversioners for possession of the property, the reversioner a who were interested in the property could have raised all such pleas that would defeat the claim of the alienee and one of such defences was that even on the footing that Lakshmi Bai was the widow of a divided member of the joint family, the alienation was bad because it was not for legal necessity. As has been laid down by their Lordships of the Privy Council in the leading case of Raja Moottoo Vijaya Ranganadha v. Katama Natchiar 11 M.I.A. 51 where a person resists a claim, he is bound to resist it upon all the grounds that it is possible for him. It would have been only an alternative plea raised to non-suit the plaintiff in that suit. A party can also raise inconsistent pleas. We, therefore, hold that the present plain-tiffs could have attacked the alienation as being invalid also on the ground that the alienation been if it were by a widow of a divided member of the Hindu joint family as it was not foe legal necessity On a perusal of the judgment in the former suit, we find that a specific issue was raised as to whether the alienation was made by the widow and whether she was competent to do so. On the evidence before the Court, the Court held that the widow alienated the property and also that she was competent to alienate as much to say that the alienation was for legal necessity. On the above finding we are led to conclude that the fact as to whether the widow alienated for legal necessity was directly in issue and was heard and determined in the former suit. There fore the matter having, been heard and finally determined it comes within the scope and purview of Section 7, Civil P.C.

Another argument is advanced before us by the Advocate for the appellants stating that it was during the pendency of the former suit that the widow remarried and by re-marriage she forfeited her right to the property. This was a new circumstance which came into existence after the suit was filed, and they could not have raised this defence at the time of the suit. There, fore, they are now in a position to contest the alienation even if it be held that the alienation was valid by reason of the judgment in the former Suit. So far as this argument is concerned in the view that we have taken with reference to Section 7, Civil P.C., it would no longer be necessary for us to give any opinion on this matter as the present suit is liable to be dismissed on the plea of res judicata, but however inasmuch as arguments were advanced on this point also, we desire to make our observations with regard to this. It was urged that because the vendor Lakshmi Bai remarried, she ceased to have any right in the property and no special custom was set up to show that in spite of remarriage the widow would not forfeit her rights to property. So far as this point is concerned, the question does not arise at all for the reason that the alienation took place prior to Lakshmi Bai re-marrying and the alienee acquired rights in the property prior to Lakshmi Bai''s remarriage and the rights acquired by him could not be affected by reason of any disability that may attach to Lakshmi Bai on account of her re-marriage. On this ground we disagree with the contention raised by the appellant. In the result, we dismiss the appeal with costs of this Court and the Courts below.