RAJENDRA KUMAR Vs. KALYAN

JUDGEMENT

(1.) The cardinal issue in this appeal by the grant of special leave against the judgment of Bombay High Court (Nagpur Bench) pertains to the applicability of the doctrine of Res judicata or Constructive Res judicata envisaged under Section 11 of the Code of Civil Procedure read with the Explanation including Explanation VIII thereto in terms of the provisions of Amendment Act of 1976.

(2.) In order, however, to appreciate the issues as above, it would be convenient to advert to the contextual facts at this juncture. The facts disclose that the plaintiff/appellant herein instituted a civil litigation being Suit No. 13 of 1974 against the denial of claim for possession of the property. The plaintiff alleged that he was taken in adoption by one Radhabai on 25th April, 1967 who, however, was married to Mahadeo. Admittedly Mahadeo died on 1st August, 1919 and the property being the subject-matter of the suit, belonged to one Mohanlal who died in 1923 leaving him surviving his widow Kisnibai who died in 1951. The plaintiff/appellant's claim was that his adoptive father Mahadeo, was adopted by Mohanlal as a son to him during his lifetime and after the death of Mohanlal, the family comprised of only two members, namely, Kisnibai who was Mohanlal's widow and Radhabai who, according to the plaintiff, was Mohanlal's predeceased's son Mahadeo's widow. The first defendant Ramgopal claimed to be adopted son of Mohanlal, though according to the plaintiff, there was, in fact, no adoption.

(3.) The factual score further depicts that the family of Mohanlal had migrated from Jaipur and was governed by the Benaras School of Hindu Law. The plaintiff contended that Ramgopal's adoption stands vitiated for want of authority from Mohanlal to Kisnibai to adopt a son to him. Ramgopal, however, as the records depict used to live with Kisnibai and Radhabai, and had an ante-adoption deed executed by Kisnibai on December 9, 1923. The document recited that Ramgopal was to be adopted only in respect of half of the property of Mohanlal and Mahadeo's line was to be continued by his widow Radhabai taking in adoption a suitable boy at any time beyond Kisnibai's lifetime. A Kararnama was also got executed on December 10, 1923 with the recitals to the above effect.