JUDGMENT Piggott, J.
1. This is a Second appeal in a ease in which the plaintiffs claimed certain property as the nearest reversioners under the Hindu Law to the estate of one Mangal Nath, who died in 1903. It is common ground that possession over the estate of the deceased passed to his mother, Musammat Lekhraji, and we must take it that she took the fame as a Hindu widow. On January 1st, 1905, Lakhraji executed a deed of sale by which she purported to transfer outright the bulk of the landed property which had some to her from Mangal Nath to four vendees. One of the reliefs sought is to have this alienation set aside, or at least to have it declared inoperative after the death of the vendor. This is not the first litigation to which this sale deed has given rise; and as there is an issue of res judicata raised in the present suit, it will be convenient to consider at once the circumstances under which the previous suit was brought and the effect of the decision arrived at.
2. The husband of Musammat Lekhraji was one Hars Nath. He was the only son of Har Sewak Shukul by that gentleman's Second wife, but he had no fewer than five half brothers, sons of Har Sewak by his first wife. In 1905 the nearest reversioners living to the estate of Hans Nath, or of his son Mangal Nath, were four grandsons of Har Sewak, sons of two of his sons by his first wife, named Nakched and Bachoha. The sons of Nakched were Mata Parshad and Kalka Parshad, while the sons of Bachcha were Kashi Parshad and Brijnath. Of these the last named was a minor, living jointly with his brother Kashi Parshad. Amongst the more remote reversioners were two great grandson of Har Sewak named Lalta Parshad and Nath Parshad, the sons of a grandson named Chandra Ched. The sale by Musammat Lekhraji was in favour of the wives of Mata Parshad, Kalka Parshad, Lalta Parshad and Nath Parshad and the sale-deed was attested by Kashi Parshad as a marginal witness. The suit filed in 1908 was instituted by Murlidhar, another great-grandson of Har Sewak's, being the prardson of a son by the first wife, named Nagesbar. The vendees were of course impleaded along with Musammat Lekhraji, but Nath Parshad appeared in the array of defendants as the heir of his wife who bad died in the interval. Kashi Parshad and Brijnath were also impleaded as defendants, but were subsequently added as plaintiffs at their own request. Kashi Parshad declined to Act as guardian ad litem for his minor brother, so that Brijnath was represented by his mother. The suit was for actual possession of the property covered by the deed of sale, one of the allegations in the plaint being that Mangal Nath had died while a member of a joint undivided Hindu family with the plaintiffs and others, so that Musammat Lekhraji had no title whatever to the property with which she purported to deal. In the alternative, however, a declaration was sought that the sale deed of January 1st, 1905, passed no title to the vendees beyond the lifetime of Musammat Lekhraji and would not affect the rights of the reversioner or reversioners entitled to succeed to Mangal Nath's estate on the death of that lady. The trial Court dismissed this snit on a variety of grounds, It found that Mangal Nath died as a separated Hindu, and went on to hold that there was & misjoinder of causes of action involved in the attempt to obtain alternative relief by way of a declaration as to the ineffectiveness of the transfer beyond the death of Musnmrnat Lekhraji. For this reason perhaps the Court declined to go into the question as to whether there was legal necessity for the transfer. It held, however, that, if the suit were to be treated as one brought by a reversioner to contest an alienation by a Hindu widow, then Murlidhar was not entitled to maintain such a suit in the presence of nearer reversioners. As against Kashi Parshad it found that he had assented to the transfer and was perfonally entopped from contesting it; finally it held that Kashi Parshad's assent bound his minor brother Brijnath. Against this decision only Murlidhar and Kashi Parshad appealed; the latter did not take the trouble to see that an appeal was also preferred, if only as a matter of form, on behalf of Brijnath. In l909, while this appeal was pending, Musammat Lahkraji died. The appellants Murlidhar and Kashi Parshad thereupon petitioned the Appellate Court to be permitted to withdraw from the suit with liberty to bring a fresh suit; in their petition they said that the suit as brought was undoubtedly open to objection on the ground of misjoinder of causes of Act ion, and added farther that the death of Musammat Lehkraji had considerably modified the position of the parties and their respective rights. The order of the Appellate Court on this application is dated April 12th, 1912, its effect is to substitute for the decree of the first Court dismistirg the suit an order under Order XXIII, Rule 1 of the Code of Civil Procedure, permitting Murlidhar and Kashi Pars had to withdraw from the suit with leave to bring a fresh one; but this permission is in terms extended only to the two plaintiffs above named, they being the only appellants before the Court which passed the order. It may be noted that Brijnath was not even impleaded as a respondent to the appeal.
3. The present suit was filed on December 5tb, 1914. The plaintiffs are Mata Parshad and Brijnath. The latter has, in the meantime, attained majority; his position in the previous litigation has already been indicated. Mata Prashad, it will be remembered, is the husband of one of the transferees under the deed of sale; be was impleaded as a defendant in the former litigator, but did not then contest the validity of the alienation. The two plaintiffs now claim possession of the property affected by the deed of January 1st, 1905, on the ground that Musammat Lekhraji had only a Hindu widow's estate, that the alienation was without legal necessity and ineffective beyond the lifetime of the widow, and that they are themselves the nearest reversioners, entitled as such to possession of the property from the date when the succession opened on the death of Musammat Lekhraji. They admit the existence of Kashi Parshad as a reversioner equal in degree with themselves; but plead that he is disentitled to succeed inasmuch as he had "renounced the world" before Musammat Lekhraji died. The only defendant who has taken the trouble to contest the suit is Nath Parshad; be is indeed the person principally interested in doing so, His wife appears in the sale deed itself as the transferee of the larger portion of the property and as having advanced the largest portion of the purchase-money.
4. The learned Subordinate Judge in whose Court this suit was filed has tried it very carefully and, on the whole, judiciously; but his framing of the issues left the question of alleged legal necessity for the sale wholly detached from the questions of law and of fact raised by the plea that it was effected with the consent of the entire body of reversioners near enough in degree to have been entitled to the property if the succession bad opened on the date of the sale, There was an issue of fact arising out of a plea that the property in suit was the stridhon of Musammat Lekhraji, or was at any rate property over which she had unlimited powers of disposal: this has been decided against the defendants on the evidence. It has also been found in favour of the plaintiffs-- somewhat curiously in view of the decision come to in the first suit--that there was nothing to prove that Kashi Parshad had assented to the sale. On the other hand there was a finding of fact against the plaintiffs, that Kashi Parshad had not "renounced the world," but was equally entitled with the three plaintiffs to a share in the property in suit. On the issue of legal necessity, as framed by him, the learned Subordinate Judge held that there was no adequate evidence to support the alleged necessity of the several items of the consideration, except as regards one small item, and on the whole that the alienation could not be supported on that ground. Nevertheless he held that the two plaintiffs were, each of them for a separate and independent reason, precluded from questioning the validity of the sale. In respect of Mata Parshad he found that he had personally consented to the sale and was estopped from denying the title of the vendees. As regards Brijnath he held that the decree of the trial Court in the first suit operated as res judicata against him.
5. The Additional District Judge of Gorakhpur, before whom the case came in first appeal, dealt with these two questions only. Agreeing with the trial Court on both points, he dismissed the appeal.
6. As regards Mata Parshad I think there is little to be said except that the Courts below were right. There is a clear finding of fast against him by the lower Appellate Court; and in the view which I take of the case as a whole it seems to me that he undoubtedly gave his consent to the alienation and acted for his wife in acquiring a portion of the property sold. He is personally estopped from asserting that there was not legal necessity for the transfer.
7. The case of Brijnath has been argued out before us at considerable length from more than one point of view. I think the Courts below were wrong on the Question of res judicata. To begin with, the Court which tried the first suit was the Court of a Munsif and was not legally competent to try the present suit, which was valued at Rs. 1,200 and instituted in the Court of a Subordinate Judge. On behalf of the respondents, it was pointed out that the property involved was identically the same in both suits, and reliance is placed on the decision in Gopi Nath Chobey v. Bhugwat Pershad 19. C. 697 : 5 Ind. Dec. (N.S.) 468. With all respect to the learned Judges who decided that case, I entertain grave doubts whether they have not declined--on what seemed to them to be adequate grounds of public policy--to give their full legal effect to the words "in a Court competent to try such subsequent suit," as they appear in the relevant section of the Code of Civil Procedure. I quite agree that we have to look to the competence of the first Court at the time when the first suit was instituted; but the Court of the Munsif would not have been competent in the year 1908 to try a suit valued at Rs. 1,200. Moreover, I am assessed that the authority quoted does not cover the present case, There is no question of a proved or admitted increase in the value of the property concerned, and I see no reason why we should presume a substantial increase in value in the course of six years. In both suits the valuation for purposes of Court fees was based upon the land revenue payable and is wholly independent of the valuation for purposes of jurisdiction. In the suit now before us this purports to be based on the market value of the property, stated at Rs. 1,200. This has never been disputed; there is no suggestion that the present plaintiffs overvalued the property in order to bring the suit before a tribunal of higher grade. Why the plaintiffs in the suit of 1908 were allowed, without question raised, to value their suit for purposes of jurisdiction at Rs. 999, being the sale consideration as stated in the deed of January 1st, 1905, has never been explained, The fact remains that the Court which tried the suit of 1908 is not, and never was, competent to try this present subsequent suit.
8. Over and above this, I think we should have to consider very carefully before holding Brijnath bound by the result of the suit litigated during his minority, in view of the peculiar course taken by that litigation. I do not wish to commit myself to any general proposition as to whether an order passed in appeal, in favour of some only' of the plaintiffs, permitting them to withdraw from the suit with liberty to sue again, may or may not operate in favour of a plaintiff who is not in terms included in the permission. I think that was the effect in the present case of the Court's order of April 12th, 1910, as far as Brijnath is concerned. The decision against him in the trial Court had proceeded wholly upon a finding that this minor was completely represented in all these transactions by his elder brother Kiahi Parshad, the managing member of the family, and was as mush bound by Kashi Parshad's consent to the alienation as if he had himself joined in giving the same. It seems to me that Kashi Parshad virtually accepted this position when he dropped his minor brother out of the appeal altogether. The order of the Appellate Court is effect set aside the decree of the trial Court as a whole, and the order substituted therefor permits Kashi Parshad, the managing member of the joint family consisting of himself and his minor brother, to bring a fresh suit upon the same cause of action. Finally the cause of Act ion is not, in my opinion, identically the same in the two suits: the death of Musammat Lekhraji has modified the position of the parties and has given rise to a fresh cause of Act ion in favour of the nearest reveraioners actually living on the date of that lady's death. I hold, therefore, that the result of the litigation of 1908-19 does not in itself preclude Brijnath from maintaining the present suit.
9. Nevertheless the above finding does not, in my opinion, involve the success of this appeal. To begin with, I must point out that Brijnath string alone could not in any event claim more than one fourth share in the property of which Mangal Nath was the last male owner: the finding of the trial Court that there were three reversioners equal with him in degree, alive and competent to inherit when the succession opened, was not challenged in the Court of first appeal and has become final. The contesting defendant Nath Parsbad, on the other hand, was not only entitled in the Court of first appeal to support the decision of the first Court on any of the grounds on which that Court bad decided against him, but he went out of his way to put in a written pleading giving fair notice to the opposite side of his intention to do so. He desired a fresh finding on the issue of fast decided against him as to the nature of Musammat Lekhraji's ownership of the property. We could not decree any portion of the plaintiff's claim without ourselves recording, or obtaining from the lower Appellate Court, a distinct finding on this point. Besides this Nath Parshad pleaded that Kashi Parshad had consented to the alienation and that this alienation was in fact made for legal necessity, or, at any rate, must be held to have been so made as against those reversioners who expressly consented at the time, and also as against Brijnath who is bound by the consent given by his elder brother as managing member of the family.
10. These last pleas involve certain mixed questions of fact and of law which, I think, we ought to look into before passing any order which would have the effect of prolonging this litigation. I find that at the time of the sale by Musimmat Lekhraji a substantial portion of the property involved was in the hands of mortgagees holding under a mortgage contrasted by that lady's late husband. The vendees under the deed of January let, 1905, were left Rs. 495 to pay this mortgage, but have never done so. The rest of the sale consideration, excepting a small sum advanced in cash at execution, consisted of the repayment of a series of small antecedent loans, the largest of which was advanced by Nath Parshad himself. It seems a fair inference that Musammat Lekhraji had succeeded to an encumbered property and was finding it difficult to maintain herself, and that she approached the nearest reversioners then living to see if they were inclined to help her. This much is certain that Mata Parshad and Kalka Parshad advanced comparatively small portions of the sale consideration in return for transfers of fractional shares in favour of their wives, while Kashi Parshad signed the deed as an attesting witness. The bulk of the sale considsration was furnished by two reversioners one degree more remote, Nath Parshad and Lalta Parshad, in return for transfers in favour of their respective wives. These facts seem to me to amount to very strong evidence in favour of the proposition that the three reversioners nearest in degree at the time of the sale, who were at that time of full age, were consulted beforehand as to the transaction and gave their consent to it because they were satisfied that there was legal necessity for the sale and were content that two reversioners one degree remote should acquire the greater part of the property by advancing the greater part of the sale consideration.
11. Of the authorities to which we were referred on the question of legal necessity for a sale by a Hindu widow, and of the effect of consent by the nearest reversioners living at the time of the sale, I think it unnecessary to refer to any other except the case of Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 17 A.L.J. 556 : 36 M.L.J. 493 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 42 M. 523 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 (P.C.) in which, previous decisions of their Lordships of the Privy Council are reviewed and explained. The case before us is not an alienation by the widow of the entire estate of her late husband in her hands; the consent of the nearest reversioners living at the date of the sale will not validate it on the principle of acceleration of the succession. Nevertheless such consent remains strong presumptive evidence of the fact that there really was legal necessity for the sale. It seams to me that this presumption applies with peon liar force to the facts of the present case, and that there is nothing: to rebut it in the comments made by the trial Court on the details of the sale consideration. The fast is that owing to the frame of the issues in the trial Court and to the subsequent Bourse taken by the litigation, neither of the Courts below has really considered the probative value of the consent of the nearest reversioners on the issue of legal necessity. Had they done BO in the light of the principles laid down in the ruling to whish I have referred, I am confident that they would have reached the conclusion at which I have myself arrived. I would record a plain finding that legal necessity for the gale of January let, 1905, is proved, so as to give the vendees a clear title, more particularly as against the present plaintiffs. On this finding the appeal must fail, and I would dismiss it with costs including fees on the higher scale.
Walsh, J.
12. I agree.
13. We dismiss this appeal with costs including fees on the higher scale.