Patkar, J.
1. In this case the plaintiff sued to recover possession of the property in suit on the ground that it belonged to the plaintiff's father Bhojappa bin Shivbasappa, who died in May 1905 leaving a widow Tengava who remarried in 1912 and died in 1916, and that the plaintiff was born two months after Bhojappa's death in July 1905 and was the preferable heir as the unmarried daughter of Bhojappa.
2. The learned Subordinate Judge held that Tengava, the plaintiff's mother, was the udki wife of Bhojappa, and in that ease the plaintiff would be the sole heir of Bhojappa, but held that the decree in suit No. 229 of 1906 obtained by defendant No. 1, the daughter of Bhojappa by another wife who had predeceased Bhojappa, operated as res judicata, as in that suit Tengava's udki marriage was held not proved.
3. Bhojappa was adopted by Shivbasappa of Hirehattiholi and had two natural brothers Irappa and Baslingappa who lived at Gajapati. The plaintiff's case is that her mother Tengava was married to Bhojappa in the udki form two or three years before his death at the village of Gajapati. After the marriage Bhojappa died in May 1905 leaving his adoptive mother Balava, his wife by udki marriage Tengava alias Savantreva who was pregnant, and a daughter Parvateva, defendant No. 1, born of his first wife and married to Baswanappa a year before Bhojappa Shivbasappa's death. The plaintiff was born on July 25, 1905. Exhibit 63 is a copy of the birth register in which the father's name is given as Bhojappa Shivbasappa. After Bhojappa's death an heirship inquiry was held and various persons were examined including Tengava, Exhibit 66, the adoptive mother Balava, Exhibit 93, Irappa, the natural brother of Bhojappa, Exhibit 94, and another brother Baslingappa, Exhibit 95. The Assistant Collector ordered in September 1905 that Tengava's name should be entered as heir. In June 1906, the Collector reversed the order in favour of one Basvantappa, the son of Baslingappa, the natural brother of Bhojappa, who was alleged to have been adopted by Bhojappa shortly before his death. In 1906, suit No. 229 was brought by defendant No. 1, then a minor by her husband as the next friend, against Basvantappa, the adopted son, and Tengava, the mother of the plaintiff'. In that suit Tengava was examined in May and July 1907, see Exhibit 67. On July 4, Tengava made an application, Exhibit 103, and another application, Exhibit 72, for adjournment for engaging a pleader. It appears that Tengava did not examine any witnesses who were personally present at her remarriage, and in August 1907 the decision, Exhibit 71, was given in suit No. 229 of 1906, holding that Basvantappa was not the adopted son of Bhojappa and Tengava was not the udki wife of Bhojappa. The present suit was brought by the plaintiff within three years after her attaining majority.
4. The first question, therefore, arising in this appeal is whether the decision in suit No. 229 of 1906 operates as res judicata. The learned Subordinate Judge held that the plaintiff's mother Tengava represented the estate of her husband and the plaintiff was bound by the decision in that suit. The plaintiff claims the property in her own right as the daughter of her father, and though she is born from her mother Tengava she does not claim through her. The suit would not, therefore, be barred by the principle of res judicata embodied in Section 11 of the Civil Procedure Code. It has been held that Section 11 of the Civil Procedure Code is not exhaustive. In Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 539 it was held by the Privy Council that a decree in a suit by A against B, claiming as widow, to succeed to her husband's estate, in preference to B, his nephew, on the ground of the family being divided, was held not to operate as res judicata, or capable of being pleaded in bar to a suit by C, a daughter, claiming to succeed to her father's estate on A's death, on the ground that the property was self-acquired by her father, and that such judgment though viewed otherwise by the Court below determined only an issue raised concerning a particular person, and was not a judgment in rem, but simply a judgment inter partes. At page 604 it was observed as follows :-
The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindoo widow; and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.
5. The Shivagunga case has been followed and interpreted in several decisions of the different High Courts and by their Lordships of the Privy Council in subsequent decisions. A decree against a widow would be binding against the reversion or if the suit was brought against the widow representing the estate and the decree was fairly and properly obtained. On behalf of the appellant reliance is placed on the decisions of this Court in Subbi v. Ramkrishnabhatta I.L.R. (1917) Bom. 69 19 Bom. L.R. 919 and Bai Kanku v. Bai Jadav I.L.R. (1919) Bom. 869 21 Bom. L.R. 837 It was held in Subbi's case that the rule in Shivagunga case would not apply to cases in which suits either conducted or defended by a widow are personal to herself and originate in her own acts, and therefore a widow in the enjoyment of a life-estate can never fully represent the estate within the meaning of the dicta in the Shivagunga case in any litigation arising out of acts of her own, and therefore, it was held in that case that the plaintiff, the daughter, who claimed as reversioner to the father, was not bound by any decision in the previous suit to which the plaintiff's mother was a party. It was further held that a litigation by the widow in enjoyment of a life-estate, whether she be plaintiff or defendant, will not represent the estate fully so as to give rise to a bar of res judicata against reversioners, if such litigation is qualified and personal to the widow or has arisen out of acts of her own affecting the estate during her own life-estate therein. In Bai Kanku's case it was held that the suit was not barred by res judicata as the decree was given against the widow on a ground personal to herself, and therefore, there was no fair trial of the right of the reversioner. It was held by Hayward J. at page 884 :-
It would seem, therefore, that if there should be no real trial of the rights of the reversion era, it would be unnecessary to establish fraud to exclude the trial from the rule in the Shivagunga case. If there should be a real trial of the rights of the reversioners, the effect would of course be nullified by proof of fraud. But there must be a real trial of the rights of the reversioners and there must also be freedom from fraud in order to provoke the rule in the Shivagunga case.
6. It appears that these cases do not precisely decide the point arising in this appeal as to whether Tengava in a case like the present represented the estate. It is, however, necessary for the application of the rule in Shivagunga case that the widow must represent the estate and there must be a trial of the rights of the reversioners and the decree must be fairly and properly obtained. In the present case Tengava was not sued as the widow of Bhojappa and it was alleged that she was not the widow of Bhojappa but was a pretender, and the Court decided that Tengava was not the widow of Bhojappa. In these circumstances it is difficult to say that Tengava inherited the estate of Bhojappa and represented that estate as his widow and that the estate was vested in her, and that she was not only representing herself in that suit but also represented the interest of all the reversioners either within the meaning of Shivagunga case, or under Section 11, expl. VI, of the Civil Procedure Code.
7. In Vaithialinga Mudaliar v. Srirangath Anni it was held that a widow, notwithstanding the personal estoppel under which she laboured, represented the estate on a question of fact according to the decision in Chaudhri Risal Singh v. Balwant Singh It was, however, held that the principle of law to be applied in such cases was correctly summarized by Banerji J. (p. 178) :-
Where the estate of a deceased Hindu has vested in a female heir a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.
8. This view of the law has been accepted in Munni Bibi v. Tirloki Nath (1981) L.R. 58 IndAp 158 33 Bom. L.R. 979 where it was held that Section 11 of the Civil Procedure Code was not exhaustive, but where the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.
9. The question, therefore, arising for decision is whether Tengava in the previous suit represented the estate of the deceased Bhojappa, or in other words, whether the estate of the deceased Bhojappa had vested in the female heir Tengava. It was contended in the previous suit that she was not the heir of Bhojappa as she was not the udki wife of Bhojappa. Defendant No. 1, who was the plaintiff in that suit, denied her representative character, and though Tengava claimed the representative character it was not recognised by the decree, and it is difficult to hold that such a decree which did not recognise Tengava as the heir of Bhojappa or as representing the estate is binding on the plaintiff, the reversionary heir. It is contended on behalf of the respondent that Tengava claimed to be the widow of Bhojappa in the previous suit and it was held that she was not the udki wife of Bhojappa, and the plaintiff who is born from Tengava is bound by the previous decision which denied the very basis of the plaintiff's claim in the present suit. The plaintiff, if she is the legitimate daughter of Bhojappa, claims as the heir not of Tengava but as the heir of Bhojappa and does not claim through Tengava, and if Tengava was held not to represent the estate in the previous Suit, the plaintiff the daughter, is not, in my opinion, bound by that decision. The judgment, besides, is not a judgment in rem in a Matrimonial Court which would be binding under Section 41 of the Indian Evidence Act, but is a judgment inter partes, that is, between defendant No. 1 as plaintiff and Tengava as defendant.
10. In Kanhya Loll v. Radha Churn (1867) 7 W.R. 338 it was held by the Full Bench that a decision by a Court that a Hindu family is joint and undivided, or upon a question of legitimacy, adoption, partibility of property, rule of descent in any particular family or upon any other question of the same nature in a suit inter partes, is not a judgment in rem or binding upon a stranger (i.e., persons neither parties to the suit nor privies) and the decree in such a case is not admissible as evidence at all against strangers.
11. In Jogendro Deb Roy Kut v. Funindro Deb Roy Kut (1871) 14 M.I.A. 367 where a previous suit involved issues of legitimacy and the validity of a particular form of marriage of one of the members of the family, and another suit was brought by another member of the family, who was not a party to the former suit, against the party in possession, which raised substantially the same issue of legitimacy and a further question of priority to succeed by reason of the superior nature of the marriage of which the plaintiff was the issue, it was hold that the decree in the former suit was not a judgment in rem but was a judgment inter partes, and it was observed at page 376 that unless the previous suit could be held binding on the members of the family on account of its representative character, the previous suit would be merely a suit for possession by a party claiming to have a preferable right to the party in possession and having failed to establish that case by proving the illegitimacy of the other party. I think, therefore, that the previous decision does not operate as res judicata.
12. The next question, therefore, arising in the case is whether the plaintiff is the legitimate daughter of Bhojappa, in other words, whether Tengava was married to Bhojappa in the udki form of marriage. The learned Subordinate Judge on the evidence came to the conclusion that Tehgava's udki marriage was held proved and that the plaintiff was a legitimate daughter of Bhojappa. The plaintiff has examined as Witnesses Balkrishna Jivaji, Exhibit 82, Sidramaya Adiveya, Exhibit 83, and Balkrishna Narsappa, Exhibit 91, and also relied on Exhibits 66 and 93 to 102, the statements made by Tengava and other witnesses in the heirship inquiry held soon after the death of Bhojappa. Objection is taken on behalf of the respondent to the admissibility of Exhibits 66 and 93 to 102 on the ground that they had no right or opportunity of cross-examining the witnesses. Shivappa, Exhibit 104, who was engaged to conduct the proceedings in the heirship inquiry as Mukhtyar on behalf of the defendant, stated that the witnesses were called without any notice to him by the Mamlatdar and were examined behind his back. On the other hand, it is contended on behalf of the appellant that Tengava's statement, Exhibit 66, shows that she was subjected to cross-examination. The learned Judge was not prepared to believe Shivappa without corroboration. The revenue inquiry after Bhojappa's death appears to have been conducted under the old Section 71 of the Land Revenue Code, Bombay Act V of 1879, and was directed to the ascertainment of the person who would be entitled to be placed in Revenue Records as the heir of the deceased Khatedar Bhojappa. It was, in my opinion, an administrative or executive proceeding and not a judicial proceeding within the meaning of Section 33 of the Indian Evidence Act, and that defendant No. 1 had no right to cross-examine the witnesses though she may have an opportunity of doing so. Further, it appears that the proceeding was not between the same parties or their representatives in interest. The proceeding was between defendant No. 1, the adopted son, and Tengava; and the present plaintiff is not the representative in interest of Tengava. If the plaintiffs wore considered as the representative of Tongava, the previous decision in suit No. 229 of 1906 would bind her by virtue of the principle of res judicata, but I have held that the decision is not binding because she does not claim through her mother. It is clear, therefore, that the depositions taken in that proceeding are not admissible in evidence under Section 33 of the Indian Evidence Act. The appellant's counsel attempted to bring them under Section 35 of the Indian Evidence Act, but the depositions cannot be said to be entries in any public or official book, register or record made by a public servant in the discharge of his official duty. It is not contended that the depositions, Exhibits 66 and 93 to 102, would be admissible under any other provision of the Indian Evidence Act. Section 32, Sub-section (5), of the Indian Evidence Act does not apply as the statements were made after the question in dispute was raised. I think, therefore, that the depositions in the previous proceedings are inadmissible in evidence as substantive evidence relating to the question of the udki marriage of Tengava. They might be used as corroborating or contradicting the witnesses who have been examined in this case. The learned Subordinate Judge, however, used those depositions as substantive evidence in the case, and for reasons stated above they must be excluded from consideration.
13. [After dealing with the evidence at length, the judgment proceeded]. On the whole I see no sufficient ground to differ from the view of the learned Subordinate Judge on the point of the udki marriage of Tengava with Bhojappa. I, therefore, hold that Tengava was married to Bhojappa, and the plaintiff is the legitimate daughter of Bhojappa.
14. It is contended for the first time on behalf of the respondent that the plaintiff was not born at the death of Bhojappa and that the estate vested in defendant No. 1 as the daughter of Bhojappa and the theory of the plaintiff being in existence at the time of conception cannot be extended to a daughter as it applies to a son who takes inheritance by birth. This point was not raised in the lower Court and the point is not sought to be supported by any authority. In Juttendromohun Tagore v. Ganendromohun Tagore (1872) L.R.IndAp 47 it was held that by Hindu law as a general principle, a person capable of taking under gift or will must either in fact or in contemplation of law be in existence at the time when the gift takes effect, i.e., in the case of a will, at the death of the testator, and in the latter term are included children in embryo and children subsequently adopted. The plaintiff is the legitimate daughter of Bhojappa, though posthumous, and is, I think, entitled to succeed. It appears from the judgment of the lower Court that if the plaintiff is the legitimate daughter of Bhojappa, it was not disputed that she would be the sole heir of Bhojappa probably on the ground that when the inheritance opened, she was entitled to preference over defendant No. 1, who was a married daughter of Bhojappa. The unmarried daughter is preferred to the married daughter : see Mitakshara ch. II, Section 2, pl. 1 to 4, Gharpure's translation, page 246, and Mayukha, ch. IV, Section 8, pl. 11 and 12, Gharpure's translation, page 110, and Jamnabai v. Khimji Vullubdass I.L.R. (1889) Bom. 1
15. I think, therefore, that the plaintiff is entitled to succeed to the property left by Bhojappa as the legitimate daughter of Bhojappa born of Tengava who was married to Bhojappa by the udki form of marriage.
16. I would, therefore, reverse the decree of the lower Court, and allow the plaintiff's claim for possession and mesne profits with costs throughout.
17. It is found by the lower Court that the defendant No. 1 did not prove the alleged improvements and no objections were urged before us on that point. The lower Court also assessed mesne profits at the rate of Rs. 400 per year. This point was also not contested before us. The plaintiff is, therefore, entitled to recover possession of the property in suit with mesne profits for three years before suit at the rate of Rs. 400 and also mesne profits at the same rate from the date of the institution of the suit till delivery of possession or till the expiration of three years whichever event happens earlier.
Murphy, J.
18. In this matter the plaintiff claims to inherit from her father in preference to her step-sister, a daughter who was married at the time of the father's death; and the contentions against her have been that she is not her father's legitimate daughter, and that the issue is now res judicata by reason of the decision on the same point in a previous suit, between her mother and her step-sister, and a man who alleged that he had been adopted by her father.
19. It appears that the father Bhojappa had acquired the property in suit by his adoption into another family. He had two natural brothers. On his death in 1905, the estate was claimed by a son of one of his brothers on the basis of an alleged adoption; by the widow in the ordinary way; and by his elder daughter, his only other surviving child. There were heirship inquiry proceedings under the old Section 71 of the Land Revenue Code, since repealed. The Mamlatdar took many statements and the Assistant Collector decided in favour of the widow. In the end his decision was reversed by the Collector, who held in favour of the alleged adopted son. On this the elder daughter sued both the widow and the adopted son, and it was hold that the plaintiff's mother had not been married to the plaintiff's father, and that there had been no adoption. The married daughter, therefore, inherited.
20. Tengava, the plaintiffs mother, seems to have had a varied career. She was first married to one Nanasaheb by whom she had a daughter. Nanasaheb, however, divorced her, why is not certain, and the child was abandoned to a 'math,' and seems to have been adopted by some kindly person. Tongava next is alleged to have married Bhojappa in the 'udki' or second marriage form, and to have lived with him till his death. The plaintiff was born shortly after her father's death. Then followed the revenue proceedings I have already mentioned and the civil suit, and finally Tengava married a third husband and has since died. She is described as having been 'simple,' though allegations have also been made against her chastity, and it was alleged that she Was no more than Bhojappa's kept mistress.
21. There is no doubt that the plaintiff, if she is her father's legitimate child, is the proper heir, provided there is no legal obstacle to her claim The one here set up is the earlier decision in civil suit No. 229 of 1906. The plaintiff was not a party to that suit, and if it is a real hindrance to her now, it can only be on the ground that her mother then represented Bhojappa's estate, so as to preclude the reversioner's right to it. But it seems to me that so to ' represent the estate ' really means to do some act in connection with it, purporting to be done or at least implying that it was done, as owner, here as that by the widow of the last male owner. But what happened was that Tengava claimed the estate against her two rivals, the alleged adopted son and the elder daughter, and failed to establish her claim. The rule is, that to constitute res judicata, the widow must represent the estate so that there is trial of the rights of the reversioners and a decree fairly and properly obtained. Where the estate of a deceased Hindu has been vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heirs : Munni Bibi v. Tirloki Nath For the reason already given, that Tengava in the former suit was a defending trespasser claiming the estate, and not doing anything to represent it, in circumstances similar to those contemplated in the ruling I have quoted and others to be found in my learned brother's judgment, which I need not quote again, I think that the former suit between her mother and her step-sister is no bar to the plaintiff's present suit.
22. The only remaining issue is a question of fact.... I think the marriage has been proved and that on these findings the plaintiff must succeed and, the original Court's decree being reversed, the plaintiff should be given one for the subject-matter of the suit.