JUDGMENT
1. The suit of the plaintiff Narain Prasad was dismissed by the Trial Court of the Subordinate Judge on the ground that it was barred by the principle of res judicata. On appeal the learned Additional District Judge disagreed with this finding and remanded the suit for trial on the merits. This appeal is filed from the order of remand. One Chhotey Lal had two sons and the widow of one of them Musammat Ganeshi by name made certain transfers in favour of the defendant of this suit Raj Bahadur. Musammat Ganeshi had a daughter Musammat Katori who was an heir to the property on the death of her mother the life holder. She instituted a suit in 1917 (Suit No. 117 of 1917) for a declaration that the transfers were beyond the power of a Hindu widow and sought a declaration that they were not binding on her. During the pendency of the suit she died on the 12th November 1917. The plaintiff of this suit Narain Prasad applied to the Court to be brought on the record as representative in interest of Musammat Katori on the ground that Musammat Katori had given birth to a son who died the day after he was born and Narain Prasad was successor-in-interest of his wife through that, son. The Court in which Musammat Katori's suit was being tried was entitled to determine the question whether Narain Prasad was or was not legal representative of Musammat Katori (O. XXLI, Rule 5). The finding of the Court was that no son was born to Musammat Katori and that Narain Prasad was not her legal representative. The suit, therefore, abated and was dismissed. Prior to the dismissal of the suit Narain Prasad who claimed the property and the sons of Durga Prasad brother of Musammat Ganeshi's deceased husband had referred the question in dispute to arbitration and an award was passed in favour of Narain Prasad. This award had been passed before the dismissal of Musammat Katori's suit.
2. We are of opinion that the proceedings in the suit of Musammat Katori subsequent to her death bar the present suit of the plaintiff. The Court which heard Musammat Katori's suit was entitled to decide the question whether Narain Prasad was or was not the legal representative of Musammat Katori and the decision would be binding on the parties. On behalf of the respondent here reference was made to the Case of Parsotam Rao v. Janki Bai 28 A. 109 : A.W.N. (1905) 208. The facts of the case do not appear very clearly from the judgment and it is not clear whether the learned Judges desired to decide or not that once the question of a legal representative was decided by a Court under Order XXII, Rule 5 it could be read judicated upon in a regular suit. Reference is there made to some vital issue arising in that case whether two Hindu brothers were Separate or were members of a joint Hindu family. If the learned Judges desired to decide that a question once determined Under Order XXII, Rule 5 would not operate as res judicata we are not prepared to follow that opinion, with all respect. In a Bombay case Raoji Bhikaji v. Anant Laxman 46 Ind. Cas. 750 : 42 B. 535 : 20 Bom. L.R. 671 a Bench of that Court held that where a party died between the passing of a preliminary decree and a final decree in a suit for partition and the cause of action survived the Court was bound to determine the question of the successor-in-interest of the deceased party under Order XXII, Rule 5 and decide such dispute without referring the parties to a separate suit.
3. As to the award Narain Prasad ought to have pleaded it in support of his right to be brought on the record as representative-in-interest of Musammat Katori. The words of Section 11 of the C.P.C. in Explanation IV are: "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." It must, therefore, be taken that in the suit of Musammat Katori a Court having jurisdiction decided that Narain Prasad was not her representative-in-interest either through her son or on the basis of an award given by arbitrators in a dispute between himself and the sons of Durga Prasad. We have already held that such a finding is binding on the parties.
4. We decree the appeal, restore the decree of the Subordinate Judge and dismiss the plaintiff's suit with costs of all the Courts.