GULAB BAI Vs. MANPBOOL BAI

JUDGEMENT

(1.) This appeal by a certificate given by the Rajasthan High Court arises from a suit filed by the respondent Mst. Manphool Bai against appellant 2 Ladu Ram for the recovery of the arrears of rent and for ejectment. To this suit the respondent joined appellant 1 her mother in-law Gulab Bai as a pro forma defendant. The property in question is a shop situated in the Johri Bazar at Jaipur. This property originally belonged to Chhogalal, and after him it devolved on his adopted son Phool Chand. The case for the respondent is that her husband Lal Chand had been adopted by appellant 1 after the death of her husband Phool Chand. Appellant 2 had executed a rent note (Ex. 24) in favour of Lal Chand in Samvat Year 1939. On Lal Chand's death the respondent held the property as his widow and as such she served a notice on appellant 2 on May 31, 1938, calling upon him to pay the arrears of rent due from him and asking him to vacate the shop (Ex. 16). It appears that soon thereafter on August 27, 1938, appellant 2 executed a rent note in favour of the respondent (Ex. 21) but apparently appellant 2 failed to pay the rent regularly and so on January 17, 1939, the respondent had to sue appellant 2 for arrears of rent due and for ejectment. This suit was filed in the Court of Munsiff, East Jaipur. The amount due by way of arrears which was claimed in that suit was Rs. 700/. Appellant 2 resisted the said claim made by the respondent mainly on the ground that the rent note on which the suit was based had been executed by appellant 2 in favour at the respondent an her mother-in-law and that the suit was defective for want of a necessary party inasmuch as the mother-in-law had not been joined to it. Appellant 2 claimed that the respondent, acting by herself, was not entitled to claim either the arrears or to ask for ejectment. Incidentally be pleaded that the rent in question had been paid by him to the respondent's mother-in-law Gulab Bai. This litigation went up to the Jaipur Chief Court in second appeal. All the Courts upheld the principal plea raised by appellant 2 that Gulab Bai was a necessary party to the suit, and so on the preliminary ground that for non-joinder of the necessary party the suit was defective the claim made by the respondent was rejected. The decision of the Chief Court was pronounced on May 26, 1941. It was under these circumstances that the respondent filed the present suit on November 15, 1943, in the Court of Civil Judge, Sawai Jaipur, claiming to recover Rs. 2,400 /- as arrears from appellant 2 and asking for his ejectment from the suit premises; and as we have already stated the respondent impleaded appellant 1 as a pro forma defendant to this suit.

(2.) Several pleas were raised by appellant 2 against the claim made by the respondent. In the present appeal, however, we are concerned only with two of these pleas. It was urged by appellant 2 that the present suit was barred by res judicata and so since appellant 1 had not joined the respondent in making the claim the suit was incompetent. It was also urged in the alternative that on the merits it should he held that the rent note had been executed by appellant 2 in favour of two lessors, appellant 1 and the respondent. The trial Court rejected these pleas and passed a decree in favour of the respondent and against both the appellants for Rs. 1,800/-. It also directed appellant 2 to vacate the premises by the end of March, 1948, failing which the respondent was given a right to execute the decree against him. Against this decree both the appellants preferred an appeal in the Court of the District Judge. The learned District Judge held that the respondent's suit was barred by res judicata and so he allowed the appeal and dismissed the respondent's suit. Then the matter reached the Rajasthan High Court at the instance of the respondent in second appeal. The High Court has reversed the conclusion of the District Court on the question of res judicata and has held that the present suit was not barred by res judicata. On the construction of the rent note the High Court has held that the rent note on which the suit is based was passed by appellant 2 in favour of the respondents and that the reference the name of appellant 1 in the said rent note does not constitution her into a co-lessor with the respondent. On these findings decree passed by the District Court has been reversed and that of the trial Court has been restored. The appellants then moved the Rajasthan High Court for a certificate and a certificate has been granted to them principally on the ground that the question of res judicata which the appellants seek to raise of a question of general importance. It is with this certificate that the appellants have come to this Court by their present appeal.

(3.) Pending the appeal appellant 1 Gulab Bai died on April 19, 1959. Thereupon an application was made by appellant 2 and Dhan Kumar who claims to have been adopted by Gulab Bai in her lifetime applied for a certificate declaring that Dhan Kumar was the heir and legal representative of appellant 1. The High Court refused to grant the certificate on the ground that the deceased appellant 1 was merely a pro forma defendant to the suit and since no relief had been claimed against her the High Court thought that her death did not cause any defect in the record in the appeal preferred to this Court and all that was needed to be done was to remove her name from the cause title. The High Court also held that Dhan Kumar may seek his remedy by a proper suit if he so desired. Dhan Kumar and appellant 2 then applied to this Court (Civil Miscellaneous Petition No. 267 of 1961) for substitution of Dhan Kumar in the place of deceased appellant 1. The respondent objects to the introduction of the name of Dhan Kumar on the record in place of the deceased appellant 1. It is urged on her behalf that Gulab Bai had no authority to make an adoption and in fact had made no adopted as alleged by Dhan Kumar. In ordinary course we might have called for finding on issues arising between to parties on his application, but since the matter is very old we do not wish to give it a further lease of life by adopting that course. We have, therefore, allowed Dhan Kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. We may also add that the question about the factum and validity of the adoption of the respondent's husband Lal Chand was also put in issue in the Courts below and in fact the District Court had made a finding against Lal Chand's adoption. The High Court thought it unnecessary to decide this matter. Thus there is a dispute between Dhan Kumar and the respondent on two grounds:Dhan Kumar seeks to challenge the factum and validity of Lal Chand's adoption, whereas the respondent seeks to challenge the factum and validity of Dhan Kumar's adoption. Both these points have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent note.