JUDGMENT Niamatullah, J.
1. This is an appeal from an order which purports to have been passed under Section 47, Civil P.C. It is not suggested that the order is not really one under Section 47, Civil P.C. and that therefore no appeal lies. The facts which led to the present appeal are as follows : The four houses in dispute in this case belonged to one Bishambhar who died a long time ago, leaving a son Narain, a widow Mt. Chunni and a daughter Mt. Shyam Sundar. The last named had a daughter whose sons the present appellants are. As a matter of fact, Narain was a posthumous son and died in infancy. Mt. Chunni and Mt. Shyam Sundar executed a deed of simple mortgage on 22nd September 1910 in lieu of Rupees 2635-10-0, hypothecating the four houses in dispute, in favour of Mt. Dulhin Radha Dulari Kunwar, who is now represented by Rameshwar Pratap Sahi, the respondent in this appeal. The mortgagee instituted a suit on foot of the mortgage against Mt. Chunni and Shyam Sundar. The suit was contested by the mortgagors and it was held that the mortgage-deed not having been properly attested, was not enforceable. A simple money decree was however passed against the two ladies. Not long after the decree Mt. Chunni executed a deed of surrender in respect of the entire property left by her husband, including the houses in question, in favour of the appellants, who were then minors and were believed to be the next reversionary heirs. Mt. Dulhin applied for execution of her decree and had the houses attached. The appellants objected to the attachment but their objection was overruled. There, upon they instituted a suit for a declaration on the allegation that the deed of surrender executed by Mt. Chunni put an end to her Hindu widow's estate and vested the last male owner's estate in the appellants who were the next reversioners and that the simple money decree passed against Mt. Chunni could not be executed by attachment and sale of the property which then belonged to them. The suit was contested by the decree-holder on a variety of grounds. It was held by the Subordinate Judge, in whose Court the suit had been instituted, that the deed of surrender was fictitious and fraudulent and conferred no right upon the appellants and that the property which had been attached at the instance of the decree-holder was liable to be sold in execution of her decree.
2. It so happened that on the day the Sub-ordinate Judge delivered his judgment, a day or two earlier, Mt. Chunni died. Subsequently appellants applied for review of the decree passed by the Subordinate Judge in their suit on the ground that Mt. Chunni had, at any rate, no more than a Hindu widow's estate and that on the termination of that estate by her death, the property which was the subject-matter of the dispute in the case devolved upon the appellants and that it was not liable to be sold in execution of the simple money decree which had been obtained against her. The application for review was granted and the Subordinate Judge, reversed his previous decree and passed another, decreeing the plaintiffs' suit. An appeal to this Court was unsuccessful but on a special appeal to the Privy Council the decree passed upon review was reversed and the original decree passed by the Subordinate Judge was restored. The net result of the litigation so far was that the appellants' suit for a declaration of their right stood dismissed. The decree, holder then renewed her application for execution of the simple money decree by attachment and sale of the houses in dispute. The appellants again-contested, this time on the allegations on which they had applied for review, namely that as the life estate of Mt. Chunni had elapsed the simple money decree which had been obtained against her was not capable of execution by attachment and sale of what was originally her husband's estate and then belonged to the appellants. The learned Subordinate Judge held that the decretal amount included a sum of Rs. 1500 which was warranted by legal necessity and that the decree against Mt. Chunni should be considered to have been obtained by the decree-holder against the representative of the estate of the last male owner. In that view the learned Subordinate Judge allowed the application for execution for recovery of Rs. 1500 only. The objectors have preferred the present appeal from that order. The decree, holder has filed cross-objections impugning the order of the lower Court so far as it allowed the application for execution for Rs. 1500 only and not for the entire decretal amount.
3. It is argued on behalf of the appellants that the simple money decree obtained by the respondent can be executed by attachment and sale of the personal effects of Mt. Chunni and that, as she left no interest in the houses in dispute after her death, the same could not be proceeded against by the decree-holder. It is also urged that the judgment of the Subordinate Judge which was restored by their Lordships of the Privy Council, contains an adjudication on this point and operates as res judicata between the parties. Lastly it is argued that the finding of the lower Court that a sum of Rs. 1500 bad been borrowed by Mt. Chunni for legal necessity is based on the judgment of the Subordinate Judge which, if it does not operate as res judicata, is not admissible in evidence on this part of the case. The contention seems to be that, if that judgment operates as res judicata, the decree-holder is out of Court and it ought to be held that her decree cannot be executed by attachment and sale of the houses in dispute at all and that, if it does not operate as res judicata, any finding on the question of legal necessity is equally not res judicata and should not be admitted in evidence. The respondent joins issue on every one of these questions which we propose to dispose of seriatim.
4. The mortgage deed executed by Mt. Chunni recites that a sum of Rs. 1200 was due to the mortgagee in respect of a transaction affecting, two of the houses and that the same had been borrowed for legal necessity. The nature of the remaining part of the consideration is then described and finally it is declared that the entire loan taken by the executants was for legal necessity. The executants assured the mortgagee that the property which was hypothecated by them belonged to them and was in their proprietary possession. In the opening lines of the deed Mt. Chunni is described as the widow of Bishambhar and Mt. Shyam Sundar as his daughter. The plaint of the suit in which the mortgage deed was sought to be enforced is in the usual terms giving the particulars of the mortgage with reference to its date, the amount of mortgage money, the hypothecated property and so forth. The relief claimed is the recovery of the mortgage money by sale of the mortgaged property. There is no doubt that the mortgage deed, which was the basis of the suit, was made an integral part of the plaint. As already stated, the Court held that the mortgage as such was not valid for want of proper attestation and a simple money decree was passed. The appellants contend that in the events which happened the mortgagee obtained only a simple money decree against Mt. Chunni and her daughter Mt. Shyam Sundar. It is pointed out that the decree, which is sought to be executed, has absolutely no reference to the estate of Bishambhar. It is further pointed out that the last male holder was Narain, the son of Mt. Chunni, and that his interest was not referred to either in the mortgage deed, the plaint or the decree. It is argued that if the decree-holder had sought to bind the estate of the last male holder, his pleadings should have left no doubt on the point and the decree should have been so obtained as to be capable of execution by attachment and sale of his property. Reliance is placed on a series of rulings of this Court which are said to support the above contention. The case which is strongly relied on is Kallu v. Faiyaz Ali Khan (1908) 30 All. 394 5 A.L.J. 367 in which it was held that:
Where money is lent to a Hindu widow on her personal security, a decree for such a debt and a sale of property of the widow's late husband in execution of such decree binds only the widow's estate, notwithstanding that the original debt may have been incurred for legal necessity.
5. On a reference to the text of the judgment it appears that in that case a Hindu widow named Mt. Gaura had executed a bond for a small amount and that in execution of a simple money decree obtained against her certain property belonging to her husband was sold. The question was whether the interest of her husband was conveyed by such sale. It was held that as the money had been advanced to Mt. Gaura on her personal security, the decree could not be executed so as to affect anything beyond her own interest in her husband's estate. An earlier ruling of this Court reported in Dhiraj Singh v. Manga Ram (1897) 19 All. 300 was followed. It was held in the latter case that:
The plaintiff, if he had chosen, could, before lending his money, have obtained from the Hindu widow the security of the ancestral property by obtaining a mortgage. He did not choose to demand a mortgage before advancing his money; he accepted the personal liability of the widow. He now seeks to get a decree under which he can bring to sale the ancestral property in the hands of the reversioners. He seeks a decree which would bind that property. In other words he is seeking a decree in this suit, there being no assets of the widow in the hands of the reversioners which he could only have obtained if he had a valid charge on the ancestral property. The plain answer to his suit is that the plaintiff lent his money on the personal liability of the widow, and the defendants reversioners having no assets of the widow in their hands, the plaintiff cannot get a decree against them.
6. This dictum is construed as laying down that the only case in which a creditor can proceed against the estate of the husband, where the widow borrowed money for legal necessity, is one in which she mortgaged or otherwise charged her husband's estate and that in no case is it open to the creditor to proceed against the assets of the husband unless he took care to secure the loan on the husband's estate. A still earlier case of this Court, Shiamanand v. Har Lal (1896) 18 All. 471 is much to the same effect. On a careful examination of these cases it will appear that their Lordships were not called upon to consider an aspect of the case which is the foundation of the respondent's case in the present appeal. It is borne out by certain cases to which we shall presently refer that if a Hindu widow acts expressly or by implication on behalf of her husband's estate and as representing it borrows money for legal necessity and the creditor deals with her on that footing and obtains a decree against her, the decree is in substance a decree against her husband's estate and it is capable of execution by attachment and sale of his property even where she had contracted a simple loan. The decree in such a case should be deemed to have been passed against her not in her individual capacity but as representing the estate of her husband. In none of the cases to which reference has already been made the learned Judges went the length of holding that in execution of a decree passed in a suit properly framed the husband's estate could, not be proceeded against unless it was mortgaged or otherwise charged by the widow. The only question which their Lordships considered was whether if nothing else appears from the evidence, a simple money decree against the widow should be taken to be capable of execution against the husband's estate. It is in those circumstances that they held that the husband's estate in the hands of the reversioners could not be considered to be liable for what was a personal liability of the widow who did not represent the estate when she incurred a liability in her individual capacity. It is easily conceivable that a widow having ample resources borrowed for what may be proved to be legal necessity in her personal capacity intending to repay it out of her own income and in view of the small amount of the loan the creditor looked to her and not her husband's estate for payment. In such a case a simple money decree against the widow is not enforceable against the estate of the husband after her death.
7. In the well-known case in Jugal Kishore v. Jotendro Mohun Tagore (1884) 10 Cal. 985 it was laid down by their Lordships of the Privy Council that:
Although a Hindu widow has for some purposes only a partial or qualified right, title and interest in the estate which was her husband's, yet for other purposes she represents an absolute interest therein. The question, whether on the sale of the right, title and interest of the widow in execution of a decree, the whole interest, or inheritance in the family estate does, or does not, pass, depends on the nature of the suit in which the execution of the decree takes place. If the suit is a personal claim against the widow, then merely the widow's limited estate is sold. If, on the other hand, the suit is against the widow in respect of the family estate, or upon a cause not merely personal against her, then, the whole of the inheritance passes by the execution sale. The judgment which the decree has followed, may be examined in order to determine which of these two results attends the execution sale of the widow's right, title and interest.
8. In a case decided by the Calcutta High Court and which is reported in Dayamoyee Roy v. Lalit Mohan (1925) A.I.R. Cal. 401 it was held that:
If the decree against a Hindu female is merely a personal decree it binds only her personal and of the reversionary interest, but a creditor suing such a female can so frame his suit as to make it clear that lie intends to bind the entire estate and not merely the limited or personal interest of a female so as to put other persons interested on their guard and to enable them to protect the estate if they care to do so, for a Hindu female heir represents the entire estate in respect of her own as well as the reversionary interest.
9. This case went up to Privy Council and their Lordships unequivocally approved of the view to which expression was given by the learned Judges of the Calcutta High Court. In particular their Lordships refer with approval to the following dictum of the learned Judges of the Calcutta High Court:
It is possible that although no charge was created the original debt having been for lawful purposes, the creditor might have recovered his debt from the estate left by Bharat if he had chosen to do so. But in order to make the estate liable he ought to have framed his suit in a proper manner. What he asked for was simply to have a personal decree against Mon Mohini and the guardian who was made defendant 2. The Court passed a decree against the minor alone. It does not appear anywhere that the minor was made a party to the suit as representing her father's estate.
10. It is thus clear that even where the widow has contracted a simple loan and has not specifically charged her husband's estate, the creditor may so frame his suit as to make it clear that he is suing the husband's estate represented by the widow who had contracted the debt in suit for legal necessity and therefore for the estate. If the creditor so frames his suit, it is open to the reversioners to intervene and to contest his claim if it is put forward in the, lifetime of the widow. If they do not do so, the decree obtained against the widow in the absence of fraud and collusion is virtually a decree against the estate and is binding not only on the widow but on the reversioners also. The test therefore, is whether the widow was sued as a representative of the estate of the last male owner or in her personal capacity. We have already referred to the recitals contained in the mortgage deed and the plaint. Mt. Chunni claimed to be entitled to hypothecate the property as full owner, that is as representing the absolute interest, in lieu of the sum therein mentioned and bor. rowed for legal necessity. Learned advocate for the appellants has laid stress on the fact that Mt. Chunni is described in the deed as the widow of Bishambhar and she professed to act in that capacity, though as a matter of fact, the last male owner was her son Narain and she held, so to say, a mother's estate.
11. It is argued that there is nothing in the mortgage deed to show that she was acting: on behalf of her son's estate. We do not think that this contention has force. Mt. Chunni was certainly described as the widow of Bishambhar, but this was not because she professed to act as representing, his estate; this was only her description which is usual in every case where a married or widowed woman figures as the executant of a document. What appears from the deed is that she was hypothecating, four houses which she could hypothecate as representing the absolute estate in case of legal necessity. The existence of legal necessity and the absolute interest affected by the deed are clearly mentioned and emphasized in the mortgage deed. The creditor took care to have the legal necessity recited in the deed, and it is perfectly clear that the creditor on the one hand was dealing with the executants of that document as persons empowered to hypothecate the property in case of legal necessity only. The executants on their part likewise made it clear that there was legal necessity and that they had full power to mortgage the property affected by the instrument. We are clearly of opinion that in entering into that transaction Mt. Chunni deliberately acted not in her personal capacity but as representing the estate originally belonging, to her husband and subsequently to her son.
12. When the mortgagee instituted her suit she sought to enforce the very same rights which had been created in her favour by the mortgage deed and was seeking to. enforce precisely the same liability which had been incurred by Mt. Chunni the executant of the mortgage deed. In other words she was impleaded as a person representing the estate which had been hypothecated. It is noteworthy that the mortgagee did not claim a personal decree-but the Court granted it on finding that the mortgage was not enforceable as such. Properly analysed the decision of the Court came to this. The widow, acting as representing the estate, let us say, of her son, contracted a certain liability which was secured by the execution of the mortgage deed but as the mortgage deed was invalid, a simple money decree was passed against her in the same capacity. In other words the simple money decree which was passed was against the estate of the last male owner. It is pointed out that there is nothing in the plaint which can warrant the inference that Mt. Chunni had been sued as a representative of the estate of the last male owner. If the reference to the mortgage deed and its contents be ignored, the contention may be correct. But we think that the mortgage deed, which was the foundation of the suit and all the particulars of which are stated in the plaint, should be considered as if it is reproduced in the plaint. We think that the frame of the suit is to be gathered from the plaint read with the mortgage deed on which the suit was founded and as we have already held, they leave no doubt in our mind that the suit was so framed as to be directed against the widow representing the estate of the last male owner in which capacity she had contracted the loan.
13. On the above view of the frame of the suit we are of opinion that the decree passed against Mt. Chunni is binding on the estate of the last male owner to the extent of such amount as had been borrowed by her for legal necessity. As regards the rest the estate of the husband cannot be considered to be bound, because apart from legal necessity Mt. Chunni had no right to represent the estate of her son, and the decree to that extent cannot be considered to be binding on the reversioners in whom that estate is now vested.
14. The next contention urged by the learned advocate for the appellants is that the judgment of the Subordinate Judge in the declaratory suit operates as res judicata on the question whether the decree is at all binding on the reversioners. We have been taken through the judgment of that case and find that one of the issues tried in that case was:
Whether Mt. Chunni had only a life interest in the properties in suit, or was she the absolute owner of the same along with Shiam Sundar? What interest the contending defendant could sell?
15. It was found on this issue that:
Mt. Chunni and Shiam Sundar mortgaged the property, and it was on the basis of that mortgage deed that defendant 1 brought a mortgage suit, but she failed to prove the bond as a mortgage bond and nonce only a personal decree was passed. Thus what was attached in execution of the decree against Chunni, was her right and interest in the property, i.e., her life interest and not the entire estate.
The decree No. 129 of 1923 is under appeal and in case the appeal is allowed and the mortgage deed is hold to have been legally proved, the case would be quite different and in that case, this suit too would be useless, but as it stands only the life interest of Mt. Chunni was attached. This view of mine finds support in Kallu v. Faiyaz Ali Khan (1908) 30 All. 394 and thus it is the widow's estate which could be put to sale.
16. At the first sight the Court then decided nearly the same question as is now before us, but it is to be observed that the suit of the appellants who were then plaintiffs was dismissed in toto. No relief was granted to them. Referring to the plaint in that case we find that the plaintiffs (now the appellants) had alleged:
The property in question cannot be attached merely in satisfaction of the amount of simple money decree. Even if the wrong statement of defendant 1 be assumed (to be correct) still if on the date of attachment (defendant 2 Mt. Chunni) had any right then the said life interest was fit to be attached and not the property attached.
17. We also find that the principal allegation on which the declaratory suit was based was that Mt. Chunni had surrendered the entire estate which had become vested in the plaintiffs and that therefore the simple money decree passed against her could not be executed. It should be noted that Mt. Chunni was then alive and the plaintiffs' case was that even in her lifetime the decree could not be executed, because she had effaced herself by surrendering the estate of the last male owner. The only relief which the plaintiffs claimed in that case was that the plaintiffs are the owners of the property, detailed below, under a deed of relinquishment executed by Mt. Chunni in favour of the plaintiffs, dated 14th December 1923 and that it is by no means fit to be attached and sold by auction in execution of decree passed by the Subordinate Judge of Benares in case No. 129 of 1923.
18. The plaint therefore leaves no room for doubt that the appellants then claimed a declaration that they were the full owners of the property which had been attached and that it could not be sold in execution of the decree. They did not claim in the alternative the relief that even if the property could be sold, no more than the life-interest of Mt. Chunni would pass as the decree against her was a simple money decree. The facts necessary for such an alternative relief were no doubt alleged in the plaint, but no relief on proof thereof was claimed and none was decreed by the Court. It was held in Abhey Ram v. Jhanda (1929) 16 A.I.R. All. 910 that:
Any issue decided by a Court in favour of the plaintiff whose suit is ultimately dismissed on another ground, cannot operate as res judicata as against the defendant in a subsequent suit. A finding cannot be conclusive against a party if the decree was not based upon it but was made in spite of it.
19. This rule seems to us to be clearly applicable in the present ease. The declaratory suit brought by the appellants was dismissed in its entirety in spite of the finding in their favour that the simple money decree obtained by the mortgagee did not affect anything more than Mt. Ghunni's life interest. Accordingly we hold that the principal question in dispute in this ease and which has been decided by the lower Court and by ourselves in favour of the respondent is not barred by res judicata so as to be deemed to have been decided in the earlier case in favour of the appellants.
20. The last question is whether the lower Court was right in allowing execution to issue for Rs. 1500. The learned Subordinate Judge has himself made no inquiry as to whether there was legal necessity for Mt. Chunni to borrow Rs. 1500 but has based his finding on what was held in the declaratory suit which has been fully discussed above. Learned advocate for the appellants contends that if the decree in that suit does not operate as res judicata in their favour, it should not be allowed to operate against them so far as this part of the case is concerned. We think this contention is sound. The lower Court ought to have gone into the question and arrived at its own finding. There are no materials before us on which we can record a finding ourselves. The respondent who has filed a cross, objection claims that the entire decretal amount was warranted by legal necessity. In these circumstances we think it necessary to remit the following issue to the lower Court for a finding to be returned within three months : "How far the consideration of the mortgage deed, dated 22nd September 1910, was taken by Mt. Chunni for legal necessity?" The parties shall be at liberty to adduce such evidence as they may be advised to produce. On receipt of the finding ten days shall be allowed for objections.