decision regarding it on the finding on the fourth issue. The best proof of this is that no reference was ever made to this property by counsel at any time in their elaborate arguments. Further, I do not think there is any necessity to refer the decision as respects this property to the fourth issue as no reference is made to it by the District Judge. He never tried the case based on inheritance and went into that issue simply in order to see whether there was any obstacle to the award being binding. He may have meant to divide it among the sons simply because they had got all the other property under the award. I say this because no special reasons are given.

Apart from this I think if we take the view that this property was sued for on the ground of inheritance, we must hold that the inheritance was split into two parts, one of which was sued for in the alternative in case the award failed, and the other, viz., this property, in addition to that covered by the award. The joinder of the latter to the claim on the award was permissible but not the splitting of the claim on inheritance. Waiving this objection as not one to be taken cognizance of at this stage, the difficulty still remains whether the daughters could appeal from the decree. This forms a part of the ground of decision in Mussammat Fakhar-un-nissa v. Malik Rahim Bakhsh (1), and Malik Rahim Bakhsh v. Mussammat Fakhar-un-nissa (2), and in the present case I see no good reason to recede from the position taken up in my former decision. The important bearing of the right of appeal on the question of res-judicata is set forth in Malik Rahim Bakhsh v. Mussammat Fakhar-un-nissi (2), and in Shamas Din v. Ghulam Kadir (3). It is true that the High Courts are not quite unanimous on this question: See Vitthilinga Padayachi v. Vithilinga Mudali (4), Govind v. Dhondbarav (5), in which this view is taken, and Rai Charan Ghose v. Kumud Mohun Dutt Chawdhry ("), Bhugwanbutti Chowdhran v. Forbes (1), where it was dissented from or not followed, but the authorities referred to in the judgments quoted appear to me to be of great weight, and particularly the views of that eminent Judge Mr. Justice West in Bhola Bhai v. Adesang (8), who cites the opinion of the great German Jurist Savigny in support of his opinion. I think I am bound to follow the views of the Full Bench judgment just cited: see also the opinion of their

Lordships of the Privy Council in Misir Raghobar Dial v. Sheo Bakhsh Singh (1), at p. 444.

I still find difficulty in understanding how an appeal by the daughters in the former suit could have been preferred or could have been valued could they appeal on full stamp on the value of their shares? They could have got nothing from the Appellate Court as they had not sued. They could not have appealed for a declaration for there was none granted against them, and they could get none themselves as their obvious remedy was to sue. They could not appeal from the finding on the fourth issue which was not embodied in the decree. I am not saying that the latter fact has any necessary bearing on the question of res-judicata generally, but I am here considering only the right of appeal. The learned counsel for the respondent quotes Jamna Das v. Udey Ram (2), but I am doubtful about the correctness of that ruling, and it is to some extent distinguishable. Moreover, the suit might possibly have been dismissed altogether as against the first assignees. The view I take of the matter is that the daughters here were pro forma defendants as far as this part of the case was concerned, and their only remedy was by way of a regular suit for their shares. The case might be different if a different view is taken of the bearing of the right of appeal, but I think we are bound to accept the view that it is essential to the creation of the bar of res judicata I have already pointed out, that the award was thrown out as against the daughters. The objection based on the absence of the right of appeal applies to the whole case.

The rule of res judicata is a wholesome one but it ought not to receive an undue extension nor be too stringently applied, particularly in India, Missir Raghobar Dial v. Sheo Bikhsh Singh (1), at p. 444. A plea of res judicata is a technical objection and may well be met by arguments of the same character. It caunot be established on broad general grounds, and without a careful analysis, and a critical examination of the previous proceedings. Upon such a consideration of the former case I am of opinion that the plea is not established against the present appellants. At all events it is very doubtful whether it is, and if there is doubt, the right to proceed should be conceded. The plaintiffs here have a judgment of a Bench of this Court giving a finding favourable to them on

the question of custom, and taking this into consideration, and the fact of their being daughters of the late owner, they should be allowed to carry on their suits unless the bar is clearly and unequivocally made out, and it lay on defendants to do this.

the

It is necessary also to point out here that as far as Habib Bakhsh, defendant, is concerned, the bar appears not to arise at all. He and the present plaintiffs were corespondents in the former suit and their defences were not. adverse to each other but to the plaintiff and the two other defendants, Rahim Bakhsh, and Kadir Bakhsh who really sided with the then plaintiff. The District Judge has failed to notice this and dismissed the suit against Habib Bakhsh also, though he states rightly in his judgment that Habib Bakhsh in the former case favoured the claims of the sisters. This is obviously wrong. It will be seen that I have to a certain extent modified my views as expressed in the two published judgments in the former case, but this was because I had to reconsider the whole case afresh, on the present occasion. It was done after a careful analysis of the former proceedings.

I would accept the appeal and, setting aside the decree of the District Judge on the question of res judicata, return the case to him for a decision on the merits.

JOHNSTONE, J.-I have some difficulty in accepting the views of my learned colleague in this case. I have delayed recording my final opinions, and have thought over the case long and anxiously, but in the end I find myself unable to see eye to eye with him, and I reluctantly suggest that the case be referred to a third Judge for opinion.

The parties in suit are connected thus

24th Oct. 1905.

There are four suits and four appeals by the ladies A., B., C. and D., rapǝtively. Each of them, apart from slight Variations and partial renunciations in appeal, claims 5

share of the estate of Malik Karim Bakhsh, asserting the applicability of Muhammadan Law, under which each of the four sons is entitled to and each of the five surviving daughters T

2 13

There have already been three law suits about the estate, in all of which the whole of the surviving family of Malik Karim Bakhsh have been parties-first, application by Rahim Bakhsh, under Section 525, Civil Procedure Code, to have Aziz Din's award filed and a decree passed on it; secondly, suit by Rahman Bakhsh claiming division in terms of the award, i.e., equal division between the four sons or failing this, a declaration whether custom or Muhammadan Law applies, and, if the latter, then actual partition in accordance therewith, it being asserted that by custom daughters were excluded by sons; thirdly, a suit by Mussammat Fakhrun-nisa for

alive.

share, Mussammat Wali-un-nissa being then

The first of these suits, the application under Section 525, Civil Procedure Code, was dismissed on the ground that the daughters did not give free consent to the arbitration. The other two suits were tried together by the District Judge, who held that the daughters did not give free consent to the arbitration; that the family followed custom and not Muhammadan Law; that by custom sons excluded daughters; and, in effect, that thus the absence of consent of the daughters was immaterial; the persons really entitled to share having all joined in the reference. Upon Upon these findings the District Judge naturally held the award enforceable, and passed a decree substantially in accordance with it. Against this decree in her own case Mussammat Fakhrun-Nissa appealed to the Chief Court, which over-ruled the Court below, and in her suit gave her a decree for as prayed, holding that, it was not proved that custom excluded daughters. The other daughters did not appeal.

The question for decision is whether the plaintiffs are barred by Section 13, Civil Procedure Code, from raising the question whether they are entitled to share along with their brothers.

There are, of course, certain propositions laid down by my learned colleague in which I fully concur; but there are others from which I am reluctantly obliged to dissent. As the third Judge, to whom the case will now go, will probably find it convenient to have the points in which I dissent from my brother

Chatterji plainly stated, I will now go through his judgment bit by bit and state my own views.

66

At an early stage my learned colleague remarks: "It may be noted here that no part of the property of Karim "Bakhsh was in the possession of any of the daughters, no "relief was prayed for in respect of any property against them nor granted by the Court." (This relates to the second suit of the three suits described above.) The remark is true, but I do not myself think the fact material or the use made of it legitimate. Later on it is used to enforce the suggestion that the daughters, apart from Mussammat Fakhr-un-Nissa, could not have appealed in her case or in Rahman Bakhsh's case. They were formal defendants in Mussammat Fakhr-un-Nissa's case and had nothing to appeal about; but I see no reason why they could not have appealed in the other case. In my opinion Rahman Bakhshs' suit was not wrongly framed according to the rules in force in India for the framing of suits. I know of no law under which it was illegal for Rahman Bakhsh to sue on the award and at the same time to implead the daughters, who were in opposition to him, and to ask that his dispute with them also, should be settled. It is true that the daughters were not in possession of any of the property; but their claims to share were over-ruled, and, though the decree did not direct them to surrender any property, it did in effect declare them not entitled to share in the estate. It is asked on what stamp they would have appealed I do not think I need answer the question: I do not think the circumstance that the amount of the proper stamp is difficult to decide has any bearing on the question whether they could appeal or not. In my opinion they could have appealed, and have asked this Court to hold

(a) that the family did not follow custom but Muhammadan Law;

(b) that therefore they were sharers;

(c) that therefore, as the Court had held that they had not consented freely to the arbitration, the award should not interfere with their rights;

(d) that the first of the two alternative claims of Rahman Bakhsh was thus inadmissible; and

(e) that the second claim was sound, viz. partition according to Muhammadan Law.

Rahman Bakhsh had by implication admitted that, if the award was not binding and Muhammadan Law applied, the property was joint of all the brothers and sisters, the case being then one of partition and thus finally the daughters