JUDGMENT Muhammad Rafiq and Stuart, JJ.
1. In this case the plaintiff appellant, who was entitled to succeed to the estate of one Hoti Lal on the death of the widow of Hoti Lal, Musammat Mul Kunwar, sued for recovery of possession of a house sold by Hoti Lal's widow, Musammat Mul Kunwar, to the ancestors of the defendants on the 20th of January, 1889. The courts below have found that this house was purchased by Musammat Mul Kunwar in 1869, eleven years after the death of Hoti Lal. They found further that there was nothing on the evidence to establish that the house had been purchased with the funds of Hoti Lal's estate in the hands of his widow or to establish that the widow had shown any intention to make the house an accretion to her husband's estate. They found further that there was nothing to establish even that the house had been purchased with the proceeds of savings out of the estate. The above findings are findings of fact which cannot be traversed in second appeal. The only point that remains is this. In the year 1890 the plaintiffs appellants' deceased uncle Buhh Sen, who was then the presumptive next reversioner of Hoti Lal, obtained a declaratory decree against Mul Kunwar and the purchasers to the effect that Mul Kunwar had no right to transfer anything more than a life interest in the house in question. If this decree be treated as binding in the present case on the principle of res judicata the plaintiff appellant should certainly succeed, but we agree with the lower courts that the decree does not operate as res judicata. The ruling of the Full Bench in Bhagwanta v. Suhki (1899) I.L.R. 22 All. 33 has application. No reversioner can be held to derive his title from another reversioner. He derives his title from the last full owner, the title in question being the title to the estate. This is the law which prevails in this province, for nothing has been laid down by their Lordships of the Privy Council to vary the law laid down in this decision. There is nothing in the decision in Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 38 Mad. 406 inconsistent with the view taken by the Full Bench of this Court. There it was laid down that when a reversioner who had instituted a suit died during the hearing of the suit the next reversioner had a right to carry on the suit. Their Lordships were considering the provisions of Order XXII, Rule 1, of the Code of Civil Procedure. They were not concerned in any way with the question whether a decision in favour of or against one reversioner could be held to operate as res judicata in favour or against another reversioner. In fact at page 412 of that decision they said clearly that the test of res judicata applied by the Madras High Court was irrelevant to the inquiry whether the petitioner was entitled to continue the action commenced by his grand-father, and there is authority of their Lordships of the Privy Council themselves that no question of res judicata arises in these circumstances. The reference here is to the decision in Isri Dut Koer v. Mussumat Hansbutti Koerain (1883) L.R. 10 I.A. 150 (157). The words are "nor is it readily conceivable that the decision will be fruitless; because the question of law is of such a nature that its decision, though not binding as res judicata between the widow and a new reversioner, would be so strong an authority in point as probably to deter either party from disputing it."
2. There was thus no bar of res judicata against the defendants respondents and it was open to them to take the pleas which they took. These pleas have been decided on the merits and have been rightly decided. The appeal, therefore, fails and is dismissed with costs.