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TMI Blog1884 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... w has not appealed against the decree, nor could she, because it is in her favour, but she has appealed against the finding that the brothers were joint in estate. 6. It may be supposed that her advisers were apprehensive lest that finding should be hereafter held conclusive against her, but this could not be so, inasmuch as the decree was not based upon it, but was made in spite of it. If she had not appealed, she could have supported the decree, on the ground that the Court ought to have decided the question of separation in her favour. But inasmuch as no objection has been taken at the bar to her cross-appeal, and as (the appeals being consolidated) practically the inquiry would have taken the same course, and the costs would have been nearly the same, whether she had appealed or not, their Lordships are not disposed, under the peculiar circumstances of the case, themselves to take the objection. 7. The question of res judicata arose in this way: After the death of her husband she applied for a certificate, under Act XXVII of 1860, enabling her to collect the debts of her husband. This application was opposed by the plaintiff, who set up the case of joint ownership, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of the High Court. 17. Their Lordships regard it as having been decided that such a judgment as that of the Munsiff is not conclusive. 18. The Indian Act in force relative to estoppel by res judicata was at the time of the institution of this suit Act VIII of 1859, Section 2, which is in these terms: The Civil Courts 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. 19. With reference to this enactment it has been observed by the Board Soorjomonee Dayee v. Saddanand Mohapatter 12 B.L.R. 304: Their Lordships are of opinion that the term cause of action is to be construed rather with reference to the substance than to the form of action,...and 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 vexsari pro eadem causa. 20. The same view has since been expressed by this Board, Krishna Behari Roy v. Brojeswari Chowdranee L.R. 21. A. 283: I.L.R. 1 Cal. 144. 21. A s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was beyond the limits of his jurisdiction. 28. Their Lordships approve of the statement of the law by Sir Babnes Peacock above quoted, and proceed to observe: In their Lordships' opinion it would not be proper that the decision of a Munsiff upon (for instance) the validity of a will or of an adoption, in a suit for a small portion of the property affected by it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which might depend upon the will or adoption;...by taking concurrent jurisdiction to mean concurrent as regards pecuniary limit as well as the subject-matter, this evil or inconvenience is avoided. 29. If this construction of the law were not adopted, the lowest Court in India might determine finally, and without appeal to the High Court, the title to the greatest estate in the Indian Empire. 30. Assuming, therefore, that the question of title was directly raised in the rent suit, their Lordships are of opinion that the judgment in that suit is not conclusive in this. 31. Having regard, however, to the subject-matter of the suit, to the form of the issue (which has been abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing occurrences took place. His two sons brought a suit in his name under the alleged authority of an am-muktarnama from him against the Maharani, her adopted son, and the widows of Modenarain, disputing the adoption and claiming possession of 9 annas of the property, and a declaration of right to 7 annas. That suit had been dismissed in the District Court, and again on appeal in the High Court, on the ground that the am-muktarnama was not genuine. 36. The Maharani had, on the mokurrari rent not being paid, seized the property, pat it up for sale, and bought it herself. 37. It is further alleged by the defendant, and denied by the plaintiff, that the brothers separated in estate in 1862 or 1863 (Fasli 1260). 38. It may be as well to say at once that their Lordships agree with both Courts that separation at this time (as alleged on the written statement of defendant) is not satisfactorily proved; indeed, whatever might have been the desire of the brothers to live and act separately, they could not effect a partition of the family property without the consent of their father; but if the father on his return was informed of their desire to separate, this may have influenced h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consolidated annual uniform jama of ₹ 1,709 in equal shares. That relating to Patna is to the same effect, the grant being to Mitan Rawat and Ducki Rawat. These grants are made by the Maharani and confirmed by Ramkishen. The grantees are household slaves, and it is admitted on both sides that they were fursidars. It therefore becomes necessary to go behind the deeds and ascertain the true nature of the transaction. 46. The view of the defendant has been stated, viz., that the two brothers were the real mokurraridars, and were to hold separately. 47. That of the plaintiff is that they were the real mokurraridars and were to hold jointly. 48. The High Court are of opinion that Bishen was the real mokurraridar, a case set up by neither party. 49. The defendant called the Maharani, the only surviving principal of the transaction except the plaintiff, Ramkishen having died before the evidence was taken in this suit. But the Maharani and Ramkishen had both given evidence for the defendant in the certificate and rent suits, and their depositions are on the record. They are witnesses of high station, having no interest in the cause, speaking of transactions in which they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that there was a separation between him and his brother, he gave no evidence with respect to the above transaction, at which Ramkishen alleged he was present, nor did he deny having said to Ramkishen what Ramkishen deposed to. The rest of his evidence may be described as mainly consisting of witnesses who deposed that the brothers lived and messed jointly, against whom a nearly equal number of witnesses for the defendant may be set off who deposed that they lived and messed separately. 58. The evidence of the Maharani and Ramkishen is confirmed by Hafiz Syed Ahmed Reza, a pleader and zamindar, who appears to have long been on intimate terms with the two brothers, and gives the same version of the transaction. He says Babu Bishen Singh said these men are of the world ; therefore, according to his wish, the mokurrari was granted to Run Bahadur and Murlidhar in the fictitious names of other persons, and he speaks to the negotiations at the time of the preparation of the deed. 59. Soon after the completion of the transaction Bishen Singh retired to Benares, where he died. 60. The evidence of the Maharani and Ramkishen, though accepted by the Sub-Judge, has been discredi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by each of them were entered.' But the Subordinate Judge has failed to consider this gentleman's statement in cross-examination, ' I do not recollect whether I had made a draft of the mokurrari pottah in favour of the plaintiff and Murlidhar. I do not know where that deed was engrossed in stamp or where it was signed, but several had witnessed it here. When the deed was written and read I was not at Tikari (the place of execution); when the deed was presented to our signature as witnesses there was no mention made as to whose benamidars are the persons whose names are mentioned in the deed.' So this gentleman contradicts himself, and though practising as a vakil seems wilfully to have followed the too common custom of this country of attesting a deed subsequently and at a different place to its execution. 67. For these reasons they place no reliance whatever on his evidence. 68. The High Court suppose Reza to have been a witness to one of the mokurrari pottahs, but this is a mistake: he was a witness only to the ladavi ikramamas; therefore the accusation of having witnessed a deed where it was not executed, together with the contradiction in his evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he set up his present case. During that time Run Bahadur only claimed the right to deal with his own half-share; he raised money on mortgages of that half-share only; he brought several actions in the name of Ducki Rawat, his fursidar, in respect of that share only, in the plaints to which actions it is stated that the property was held in separate moieties. He let 2 annas of certain property in which he and his late brother had held 4 annas, leaving the widow to deal with the remaining 2 annas. Indeed, the High Court find, in agreement on this point with the lower Court, that, after Murlidhar's death, the plaintiff and defendant enjoyed the property separately. But the High Court explain this by the supposition that Run Bahadur, who seems to have been a somewhat easy-going person, was willing that the defendant should enjoy the 8 annas by way of maintenance. 74. An easy-going person appears an expression singularly inapplicable to a man who was bound over to keep the peace towards the widow on account of continued oppression and cruelty. It is to be observed that this was not his case--that he denied the fact of her possession which has been found by both Courts aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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