DODDARANGAPPA Vs. KENCHEGOWDA

JUDGEMENT

(1.) The property in dispute in this appeal originally belonged to Kenchegowda who, it is in evidence, died early in the year 1900 or in the early part of 1901. He left a widow by name Chikkamma and according to the case of the plaintiff, Mallegowda, father of Defendant 4 Karigowda is their adopted son, Karigowda hypothecated the property on 10-8-1927 to the plaintiff and the plaintiff obtained a decree against him and purchased the property in execution of that decree. The husband of the second defendant claimed to be the reversioner of Chikkamma and obtained a decree against Defendant 4 in O. S. No. 224 of 1935-36 on the file of the Munsiff, Madhugiri. The plaintiff-appellant has filed the suit now in appeal for a declaration of his title to the plaint schedule property and for possession of the same. Second defendant contends that Mallegowda, father of Defendant 4, was not the adopted son of Kenchegowda and Chikkamma and that after the death of Chikkamma, her husband became entitled to the property as reversioner. Second defendant also pleads that the adoption was found to be not true in the suit filed by her husband against the 4th defendant.

(2.) The first and most important point for consideration in this case is whether the decree obtained against defendant 4 in which it was declared that his father Mallegowda was not the adopted son of Kenchegowda and Chikkamma is binding on the plaintiff and whether the plaintiff is precluded by principles of 'res judicata' from reagitating the matter over again. It has to be noticed that the hypothecation in favour of the plaintiff was much earlier than the suit filed by the husband of the second defendant against 4th defendant. It cannot be said that defendant 4 could represent the interests of the plaintiff in that suit. If such a thing is possible, it is easy for a person to allow a decree to be passed against him declaring that be is not the owner of the property after hypothecating the property to the hilt with the result that the hypothecatee would be left without any remedy. The law, however, does not give room for the rights of a person like the plaintiff being defeated by a decree against the person who can under no circumstances be said to represent him in the previous suit. As observed in a similar case in --'Ramachandra Dhondo v. Malkapa', AIR 1916 Bom 204 (A),

(3.) The matter directly and substantially in issue in this suit is the adoption set up by plaintiff. It was directly and substantially in issue in the previous suit and was heard and finally decided in a Court competent to try the present suit. The section would however not be applicable unless the plaintiff could be said to be claiming under the 4th defendant in the previous suit filed against the latter and it could be said that the plaintiff is litigating under the same title as that of 4th defendant in the previous suit. In a sense, it could be said that the plaintiff is a person claiming under 4th defendant since in execution of the decree against the latter, he has purchased all the interests he had. But as observed by Mahmood J. in --'Sita Ram v. Amir Begam', 8 All 324 (B), "The plaintiff in the present suit could not be treated as a party claiming under his mortgagors, within the meaning of Section 13 of the Civil Procedure Code, and that section must be interpreted as if, after the words 'under whom they or any of them claim', the words 'by a title arising subsequently to the commencement of the former suit' had been inserted." Mahmood J. relies on the observations of an American writer Mr. Bigelow. It is worthwhile referring to what that learned author says on this point.