1. This is an appeal on behalf of the plaintiffs in a suitfor declaration of title to land and for recovery of possession. The plaintiffsclaim title by purchase, and state that the property was acquired by theirfather in the name of their mother. The defendants resist the claim on theground that the matter in controversy is res judicata, The Courts below havegiven effect to this plea and have dismissed the suit. Upon the present appeal,the question of res judicata has been elaborately argued on behalf of theappellants. To appreciate the points raised, it is necessary to remember thatin 1905 the mother of the plaintiffs instituted a suit against the presentdefendants or their predecessors for declaration of her title to the propertyand for recovery of possession. The defendants pleaded that the then plaintiffhad no title enforceable as against them and that she was in reality theostensible owner for the benefit of her husband. They further contended thatthe claim was barred by limitation. The Court went into evidence, found infavour of the defendants upon each of these points, and dismissed the suit. Theplaintiffs contend that the decision in the previous suit upon the question oflimitation does not operate as res judicata, first, because they were notparties litigant to the previous suit, secondly, because the decision on thequestion of limitation was not necessary for the determination of that suit inview of the finding of the Court that the then plaintiff was an ostensibleowner and had no title; thirdly, because the principle of mutuality isinapplicable to the circumstances of the present case; and fourthly, becausethe decision upon the question of limitation was erroneous in law.

2. In so far as the first ground is concerned, it is, in ouropinion, entirely unsustainable. In the case of Gopi Nath v. Bhugwat Pershad: 10 C. 697 at p. 705, it was pointed out by Mitter andNorris, JJ., that so long as the benami system is recognised in this country,the proper rule is, in the absence of any evidence to the contrary, to presumethat the benamdar has instituted the suit with the full authority of the beneficialowner, and if he does so, any decision come to in his presence would be as muchbinding upon the real owner as if the suit had been brought by the originalowner himself. This statement of the law is unquestionably sound. Theconclusive effect of a judgment is upon the real party-in-interest and it makesno difference that there are nominal parties on the record or that the actionis prosecuted or defended by a nominal party; it is immaterial that the suithas been brought by or against the nominal party who had been set up by thetrue owner to represent him. Consequently, where a suit is prosecuted by oneperson for the benefit of another who is the real party-in-interest, it is thelatter who is bound by the judgment. [Wright v. Doe de Tatham 1 A. & E. 3 :40 R.R. 226 : S.C. 3 N. & M. 268 : 3 L.J. (n.s.) Ex. 366 : 110 E.R. 1108,Stone v. Farmers Bank of Kentuckey 174 U.S. 409 : 43 Law. Ed. 1027,] Wiswallv. Sampton 14 Howard 52 : 14 Law. Ed. 322]. This view is not opposed to thedecisions in the cases of Mohunt Das v. Nilkomal Dewan : 4C.W.N. 283 and Joy Chandra v. Srinath 32 C. 357 : 1 C.L.J. 23, where theplaintiff had, under a mistake to which the defendant did in no way contribute,instituted a suit against a wrong person. It was ruled that the mere fact thatthe person really interested in the subject-matter of the litigation hadassisted the person so sued did not make the ultimate judgment operativeagainst him. This decision was based on the ground that the error of the plaintiffhad not been initiated by the real owner and that no duty was cast upon him toapprise the plaintiff that the suit had been brought against a wrong party. Thedecision of Jadu Nath v. Prem Moni Dasi : 6 Ind. Cas. 414 [LQ/CalHC/1910/223] :15 C.L.J. 128: 14 C.W.N. 774 is distinguishable on similar grounds. In the casebefore us, the principle invoked is obviously inapplicable. The mother of theplaintiffs had been Bet up by their father as the ostensible owner of thisproperty. She instituted the suit as owner against the defendants but, as theDistrict Judge has found, the suit was brought nominally by her, while herhusband was the real plaintiff. There is no force in the contention, based onthe decision of Maharaja Kumar Bindeswari Prosad Singh v. Lakpat Nath Singh: 8 Ind. Cas. 26 [LQ/CalHC/1910/477] : 15 C.W.N. 725 at p. 727, that thedefendants cannot approbate and reprobate; they have not taken up inconsistentpositions in the two suits; in the former case, they contended that the realplaintiff must suo in his own name and not in the name of his benamdar; theynow contend that as the former suit was essentially by the real owner, he isbound by the result thereof even though he did not sue in his own name. Underthe circumstances stated, it is impossible to hold that the present plaintiffscan ignore the result of that litigation. If the contrary view is adopted, aperson has only to place his property in the name of another to enable him toescape from the operation of the salutary rule of res judicata [See also BamaSundery v. Anundololl Bourke O.C. 44 : Bourko A.O.C. 96, Jointee Chunder Seinv. Anundo Lall Dos 14 W.R.O.C. 1, Juggessur v. Prossono 1 Ind. Jur. (N.S.) 282,Bamasundri v. Ramnarayan 8 B.L.R. Ap. 65, Ram Nidhy Koondo v. Ajondhya Ram 20W.R. 123 : 11 B.L.R. Ap. 37, which indicate how a real litigant, though notparty to a suit, may be made responsible for the result]. Reliance, however,has been placed upon the principle that misrepresentation which does notmislead cannot work an estoppel, as laid down by their Lordships of theJudicial Committee in the case of Mohori Bibee v. Dharmodas Ghose: 30 C. 539 at p. 546 : 5 Bom. L.R. 421 : 7 C.W.N. 441 : 30I.A. 114 (P.C.). With reference to this principle, it has been contended thatas the defendants did discover in the previous litigation that the thenplaintiff was not the real owner, they are not entitled to claim the benefit ofthe doctrine of estoppel. This argument is clearly not well-founded on reason.No doubt, the defendants did make that discovery, but nevertheless they weredrawn into that litigation by the then plaintiff who was nominally the motherbut really the father of the present plaintiffs. They fought out the casesuccessfully, not merely upon the question, whether the then plaintiff was thereal owner but also upon the question whether the real owner, whoever he mightbe, had a subsisting title at the date of the institution of the suit. In ouropinion, the plaintiffs, who had unsuccessfully fought the previous litigationon the merits in the name of their mother, should not now be permitted to turnround and contend that the previous decision is not binding on them because inthat suit the defendants had discovered the mask assumed by the real owner. Thefirst ground, consequently, fails.

3. In so far as the second ground is concerned, it has beenurged that the question of limitation need not have been decided by the Courtin the previous suit; in other words, as soon as the Court found that the thenplaintiff had no title, the suit should have been dismissed on the ground that,as ruled in Baroda Sundary v. Dino Bandhu : 25 C. 874 : 3C.W.N. 12, the ostensible owner could not sue in ejectment, and in this view,no inquiry need have been made into the merits. In support of this proposition,reliance has been placed upon a dictum of their Lordship of the JudicialCommittee in the case of Walihan v. Jogeshwar Narayan : 35 C.189 : 12 C.W.N. 227 : 7 C.L.J. 44 : 10 Bom. L.R. 9 : 17 M.L.J. 220 : 2 M.L.T.509 : 14 Bur. L.R. 101 : 35 I.A. 38. It has also been argued that as the thenplaintiff was not entitled to maintain the suit, a decision upon the meritscould not be taken to be a decision upon a question substantially in issuebetween the parties and in support of this position, reliance has been placedupon the cases of Shib Charan Lal v. Raghu Nath 17 A. 174 : :A.W.N. (1895) 47, Jiwa Ram v. Kalyan : 9 Ind. Cas. 983 [LQ/AllHC/1911/81] : 8A.L.J 409, Ahmedbhoy Habibay v. Sir Dinshaw M. Petit : 3 Ind.Cas. 124: 6 M.L.T. 200: 11 Bom. L.R. 366, Irawa Laxmana v. Satyappa: 7 Ind. Cas. 967 [LQ/BomHC/1910/93] : 35 B. 38 : 12 Bom. L.R. 766, Brindabun v.Dununjoy 5 C. 246 : 4 C.L.R. 443 and Poorendra Nath v. Hemangini Dasi: 1 Ind. Cas. 523 [LQ/CalHC/1908/48] : 12 C.W.N. 1002 at p. 1007 36 C. 75. Butit has not been disputed by the learned Vakil for the appellants that hiscontention is negatived by the decision of this Court in the case of Peary MohunMukerjee v. Ambica Churn Bandopadhya : 24 C. 900. He has,consequently, been constrained to invite the Court to examine the grounds uponwhich the decision last mentioned is based, with a view to a possible referenceto a Full Bench. In Peary Mohun Mukerjee v. Ambica Churn Bandopadhya: 24 C. 900, a Division Bench of this Court declined toaccept the contention that if a decision is based" upon two findings offact either of which would justify in law the decree actually made, that one ofsuch findings of fact, which should, in the logical sequence of necessaryissues, have been first found and the finding whereon would have rendered theother finding unnecessary to support the decree made, is the finding whichoperates as res judicata. After a careful consideration of the argumentsaddressed to us, we are not prepared to dissent from the view taken in PearyMohun Mukerjee v. Ambica Churn Bandopadhya : 24 C. 900, whichis indisputably in strict accordance with the language of the Code. But it hasbeen urged that considerable hardships may result to litigants if this view isadopted and uniformly applied, and reliance has been placed particularly uponpassages from the judgment of Ahmcdbhoy Habiboy v. Sir Dinshaw: M. Petit 3 Ind. Cas. 14 : 6 M.L.T. 200 : 11 Bom. L.R. 366,where the applicability of the principle of res judicata is made to depend onthe test, whether the decision in the previous litigation was or was not opento appeal. But it is worthy of note that the view taken by the Bombay HighCourt in the case of Bholabhai v. Adesang : 9 B. 75 at p. 78was repudiated by this Court in the case of Bai Charan Ghose v. Rumnd MohunDutt : 2 C.W.N. 297 : 25 C. 571, where it was ruled that thejudgment in a previous suit may operate as res judicata notwithstanding thefact that no appeal was allowed by law against the decision. The position,consequently, is that the principle, upon which the decisions of the Allahabadand Bombay High Courts Are baaed, has not been accepted in this Court indecisions which have remained unchallenged for many years. We are not preparedto hold that the view taken by this Court is erroneous. We find, on the otherhand, that the view adopted by this Court, is in accord with what has beenaccepted elsewhere as well-founded on reason. To take one illustration, in thecase of Four hundred-twenty Mining Company v. Bakim Mining Company 3 Sanyer 634: 9 Fed. Cas. 592, it was ruled, upon an elaborate examination of the principleapplicable to cases of this description, that if the questions involved in asuit are tried and decided in favour of the defendant, no matter how numerousthey may be, the estoppel of the judgment will apply to each point so settledin the same degree, as if it were the sole issue in the case. Thus where astatute authorises a defendant to set up in the same answer as many defences ashe has; if a judgment is entered in his favour, which contains no provision thatit shall be without prejudice or any other limitation or restriction, theestoppel raised by it will extend to every matter or fact in issue actuallyfound by the Court in favour of the defendant. To the same effect is thedecision of Clark v. Knoz 32 Colorado 342 : 70 Pacific 372, in which it wasruled that where an Appellate Court found distinctly on a given issue in favourof the defendant, the estoppel of the judgment cannot be escaped by contendingthat the determination of such question was unnecessary, since the defendantbeing authorised to interpose as many defences as he has, the Court mightdetermine them all, although the decision upon any one might be sufficient todetermine the whole cause. The second ground cannot thus be supported.

4. In so far as the third ground is concerned, it has beenargued for the appellants that the doctrine of res judicata should not beapplied in this case, as that would contravene the principle of mutuality. Insupport of this proposition, reliance has been placed upon a passage from thejudgment of Lord Herschell in Concha v. Concha 11 App. Cas. 541 at p. 553 : 56L.J. Ch. 257 : 55 L.T. 522 : 35 W.R. 417. The contention substance is that ifthe decision upon the question of limitation in the previous litigation hadbeen adverse to the defendants, inasmuch as they would not have been bound bythat finding in a subsequent suit, the contrary finding in their favour shouldnot be treated as res judicata against the plaintiffs. This proposition doesnot find support from the judgment of Lord Hersshell, who referred to decisionsupon points not necessary for the determination of the previous litigation.Here it was open to the Court to base its judgment in favour of the defendantsupon more than one ground. Indeed, it was incumbent upon the defendants to putforward all the defences available to them. Both the parties asked the Court toinvestigate the facts essential for the determination of those defences. Theywent to trial, evidence was given, and the Court, at their invitation, decidedeach of the points in issue, although the decision in favour of the defendantsupon either point would have been sufficient to support the decree. In ouropinion, it is not open to the plaintiffs to turn round now and contend thatalthough the question of limitation was decided against them in the previouslitigation, the decision does not bind them. The principle of mutuality cannotbe successfully invoked under these circumstances, and the third ground must beoverruled.

5. In so far as the fourth ground is concerned, it has beenurged that the decision upon the question of limitation in the previouslitigation was erroneous in law and does not operate as res judicata. Insupport of this view, reliance has been placed upon the cases of Aghore NathMukerjee v. Kamini Debi : 6 Ind. Cas. 554 [LQ/CalHC/1909/488] : 11 C.L.J. 461,Puma Chandra Sarbajna v. Rasik Chandra Chakravarty : 9 Ind.Cas. 568 : 13 C.L.J. 1 19 and Baij Nath Goenka v. Padmanand Singh: 14 Ind. Cas. 124 [LQ/CalHC/1912/112] : 16 C.L.J. 154 : 39 C. 848 : 16 C.W.N.621. None of these decisions is plainly of any assistance to the appellants.The determination upon the question of limitation was a decision upon a mixedquestion of fact and law, and it is unquestionable, as fully explained inAghore Nath Mukerjee v. Kamini Debi : 6 Ind. Cas. 551 : 11C.L.J. 461, that a decision upon such a matter does operate as res judicata. Itmay be further remarked that as pointed out in the case of Rai Churn Ghose v.Kumud Mohon Dutta : 1 C.W.N. 687, a decision upon a purequestion of law, even though erroneous, may under certain circumstances operateas res judicata. It is, however, needless to enter into a further examinationof this point, because, as we have already stated, the decision here was, notupon a pure question of law, but upon a mixed question of fact and law. Thefourth ground, consequently, fails.

6. The result is that the decree of the District Judge isaffirmed and this appeal dismissed with costs.

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Rash Behary Sarkarvs. Mahendra Nath Ghose(26.02.1913 - CALHC)