MAHADEVAPPA SOMAPPA BHUSARADDI Vs. DHARMAPPA SANNA NINGAPPA BHUSARADDI

JUDGEMENT

(1.) THIS was a suit by the plaintiff-appellant for a declaration that he was the validly adopted son of Somappa, the deceased husband of defendant No.2. The part of his case with which we are now concerned is as follows. Somappa and Basavanneppa were two brothers in a joint Hindu, family. Both of them died in December, 1911, Basavanneppa dying unmarried and Somappa leaving behind him his widow Dyamavva, defendant No.2. Defendant No.2 adopted the plaintiff on October 3, 1927, and there was an adoption deed which was registered a few days later. In suit No.50 of 1928 brought by defendant No.1, who is a distant agnate of Somappa, there was a compromise decree to the effect that the adoption was null and void, the reason for such compromise being that under the law of adoption as understood then defendant No.2 had no power to adopt without the authority of her husband or the consent of his undivided coparceners, and that no evidence was available to show that defendant No.2 had got such authority or consent. Defendant No.2 next adopted the plaintiff on November 8, 1935, and the present suit was brought on the strength of this adoption for a declaration that he was the validly adopted son of Somappa. As it had been agreed at the time of the adoption that the property of the family was to be enjoyed by defendant No.2 during her lifetime no relief was sought in this suit regarding any property. Defendant No.1 denied the plaintiff's adoption, but at the hearing he admitted the factum of the adoption. He contended, however, that the adoption was invalid, the principal ground for such contention being that the questions of defendant No.2's right to adopt and the validity of the plaintiff's adoption were barred by res judicata in view of the decree in the previous suit No.50 of 1928. The trial Court upheld this objection and held that but for this ground the adoption was valid in law. It held that the matter directly and substantially in issue in both the suits was the question whether defendant No.2 had the power to adopt. As decision on this question was held barred, the plaintiff's suit failed. The learned Judge held that Chamanlal v. Bapubhai (1897) I.L.R. 22 Bom. 669, relied on by the plaintiff, was inapplicable, and he applied the principles of Sitaram v. Laxman (1921) 23 Bom. L.R. 749, Keshav v. Gangadhar (1931) 33 Bom. L.R. 1443, and Tarini Charon Bhattacharya v. Kedar Nath Haldar (1928) I.L.R. 56 Cal. 723, F.B. In the result the plaintiff's suit was dismissed with costs.

(2.) MR. Coyajee on behalf of the appellant has not disputed the proposition that the decree in a former suit based on a compromise has to all intents and purposes the same effect, so far as the rule of res judicata is concerned, as a decree passed per invtium (Bhaishankar Nanabhai v. Morarji Keshavji & Co. (1911) I.L.R. 36 Bom. 283, S.C. 13 Bom. L.R. 950) The question that arises under Section 11 of the Civil Procedure Code is whether any matter directly and substantially in issue of suit No.50 of 1928 between the parties litigating under the same title as in the present suit, which was heard and finally decided in that suit, is now again directly and substantially in issue in the present suit. According to the learned trial Judge such a matter is the question whether defendant No.2 had the power to adopt. In suit No.50 of 1923 the plaintiff was the present defendant No.1, and defendants Nos. 1 and 2 in that suit are, respectively, the plaintiff and defendant No.2 in the present suit. There is no doubt, therefore, that the two suits were between the same parties. One question that arises is whether these parties are litigating under the same title. In suit No.50 of 1928 Mahadevappa, i.e. defendant No.1, claimed to have been adopted as Somappa's son in 1927. In the present suit he claims to have been adopted as Somappa's sod in 1935. It seems to me difficult to say, therefore, that he is litigating under the same title. The title that he has sought to make out in the two suits has, according to him, been derived from different transactions. Prima facie, therefore, his title in each suit, though of the same nature in both, is different. In Shidlingappa Maharudrappa v. Ramappa (1941) Second Appeal No.892 of 1939, decided by Sen J., on January 28, 1941 (Unrep.), which I decided sitting singly, the facts were somewhat similar to those in the present suit, and I held that the parties there could not be said to be litigating under the same title in the two successive suits.

(3.) IN the plaint in suit No.50 of 1928 it was stated that defendant No.2 being the widow of an undivided coparcener had no right over the property and had no power to make any adoption. IN paragraph 2 of the decree, on this point it was stated that "under no circumstances had the defendant any right under the law to make an adoption." The wording of both these passages no doubt appears at first sight to refer to defendant No.2's general power to adopt, including her power to make an adoption in future. But it appears to us improbable that the plaintiff asked the Court to consider the question of defendant No.2's power to adopt throughout her lifetime. The prayer clause in the plaint shows that he wanted a declaration that defendant No.2 had no right to adopt defendant No.1 and that the adoption of the latter was void. The decree also, after saying, "Under no circumstances had the defendant any right under the law to make an adoption", stated, "Therefore the adoption of defendant is illegal and void." No Court could presume that the law relating to adoption would remain unaltered for all time or would be expected to make an unqualified pronouncement as to a party's legal capacity to act in a specific manner on a future date.