TMI Blog1913 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... of Samo, Bhamo the mother of Lakhan obtained possession. This led to a dispute between Bhamo and a cousin of Lakhan, by name Satyabadi, and there was a litigation between them, which ultimately terminated in favour of Bhamo. On the 30th April 1899, Bhamo executed a conditional mortgage in favour of the predecessor of the defendants. On the 80th September 1904, the mortgagee obtained a foreclosure decree. To this suit the present plaintiff was joined as a defendant on the allegation that he was in possession as a donee of the equity of redemption from the mortgagor. He repudiated, however, the title of the mortgagor and set up title in himself, with the result that he was dismissed from the suit. On the 18th May 1905 the decree nisi was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court in its conclusion, that Bhamo was the sole owner of the village in suit. This decree was ultimately affirmed by this Court on the 7th April 1908: Baleshwar Bagarti v. Bhagirathi Das ILR (1908) Cal 701. Shortly after the decree of this Court, Bhamo died, and on the 2nd April 1909 Baleshwar who had been defeated in the previous litigation, commenced the present action for declaration of title and recovery of possession. His allegation now is that Bhamo was in possession as a Hindu mother, and that upon her death, he is entitled to succeed to the property as the reversionary heir to her son the last full owner. The defendants contend that the claim is barred by the principle of res judicata and that it had been conclusively establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim for foreclosure on the ground that the mortgage had been executed by Bhamo under circumstances which did not make it binding upon him as reversionary heir to the estate of the last full owner; and in support of this view, reference has been made to the cases, of Mohima Ch. Roy Chowdhury v. Ramkishore Acharjee Chowdhury (1875) 15 B.L.R. 142 Nugender Chunder Ghose v. Sm. Kaminee Dossee (1867) 11 Moo. I.A. 241 Sreenath Das v. Haripada Mitter 3 C.W.N. 637 and Nilkant v. Suresh ILR (1885) Cal 414; L.R. 121. A. 171. It has been argued, on the other hand, that a reversionary heir is not a proper party to a mortgage suit because he cannot be invited to redeem the mortgage as pointed out in the case of Ram Chandar v. Kallu ILR (1908) All. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual reversionary heir. In the present case, however, as already explained, the mortgagees did not sue on the assumption that they had taken a mortgage from a Hindu mother in possession of the estate of her son, nor did they join the plaintiff in their suit on the assumption that he was the reversionary heir to such estate. Their theory, on the other hand, was that the mortgagor was the absolute owner of the property and was competent to deal with it in any way she chose. The present plaintiff was brought on the record as an alleged transferee of the equity of redemption from the mortgagor and the obvious object of the mortgagee was to give him an opportunity to redeem. He took up the position that the mortgagor had no title whatsoever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. On this basis it is argued that the plaintiff is at liberty to contend that the decision in the previous suit has become practically inoperative by reason of the death of Bhamo, that there has been a complete change of circumstances, and that he can now succeed on a ground not asserted in the previous litigation. 5. We are of opinion that this view is unsound. The decision in the suit for possession to the effect that Bhamo was the absolute owner of the property is conclusive between the parties and cannot be ignored. Besides, the plaintiff cannot resile from the position he deliberately adopted on two previous occasions. When he was joined as a party to the foreclosure suit, he stated that Bhamo had no title and that the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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