VASANT ATMARAM Vs. DATTOBA RAJARAM

JUDGEMENT

(1.) THE following genealogy will explain the relation between the parties to this litigation:

(2.) DATTOBA, son of Ramchandra, died on 1-5-1935. Rajaram, had predeceased Dattoba, leaving him surviving his wife Chandrabai. After the death of Dattoba, Chandrabai adopted the plaintiff as a son to her deceased husband. The adoption was made on 15-5-1935. The family of the parties was originally resident of the former Kolhapur State. Dattoba was conducting the family shop at Sankeshwar (in the Belgaum district) which was opened sometime in the year 1917 and he was residing permanently in Sankeshwar. Sankeshwar is at a distance of about 14 or 15 miles from the village of Ainapur which was the place where the family originally resided. It appears that Dattoba had migrated from Ainapur to Sankeshwar and was residing in Sankeshwar for attending to his business. He had set up a family house and his son Rajaram and even the defendants who arc the cousins of Dattoba were living at Sankeshwar. It appears that the family was possessed of properties some of which were at Sankeshwar, some in the town of Kolhapur and the remaining properties were in Ichalkaranji, Jahagir, which was also a part of the former Kolhapur State. The plaintiff's adoption was not recognised by the defendants and the plaintiff filed three suits for establishing his title to the properties of the joint family in which he was adopted. The plaintiff filed suit No. 363 of 1942 in the Belgaum Court for a share in the properties at Sankeshwar. To that suit were impleaded as defendants Chandrabai the adoptive mother, and Vasant Atmaram and Kashinath Sitaram whom I will hereafter refer to as defendants Nos. 1 and 2. By that suit, the plaintiff claimed one-third share in the properties at Sankeshwar alleging that the properties were part of the estate of the joint family in which he was adopted. The plaintiff also filed suit No. 6 of 1942 in the Court of the First Class Subordinate Judge, Kolhapur, for partition and separate possession of his share in the Ishalkaranji property. This suit was filed against defendants Nos. 1 and 2. The third suit was flled by the plaintiff on 5-6-1947, in the Court of the Subordinate Judge at Kolhapur for a share in the Karveer (Kolhapur) properties. That suit was filed also against defendants Nos. 1 and 2. Suit No. 363 of 1942 filed in the Court of the Joint First Class Subordinate Judge at Belgaum was decided in favour of the plaintiff. The Court held that the plaintiff was adopted by Chandrabai as a son to her husband Rajaram and that his adoption was valid. In that suit, defendants Nos. 1 and 2 who are the cousins of Dattoba, had contended that the plaintiff was not the adoped son of Rajaram, that neither Dattoba nor Rajaram had consented to Chandrabai adopting a son to her husband and that in any event Rajaram having predeceased Dattoba, Chandrabai had no right to adopt. The learned Judge considered the evidence and held that the plaintiff was in fact adopted by Chandrabai and relying upon a judgment of the Privy Council in -- 'anant Bhikappa v. Shankar Ramchandra', AIR 1943 PC 196 (A) he upheld the plaintiff's adoption. The learned Judge passed a preliminary decree on 8-3-1944, declaring that the plaintiff was entitled to a third share in the immoveable and moveable properties in suit and in the business described in paras. (3) and (4) of the plaint and ordered an equitable partition. He gave certain directions to the Commissioner appointed by his order which are not material in this litigation. The decree provided that the plaintiff was permitted to sue for his share in the immoveable properties in Kolhapur and the Ichalkaranji Jahagir in the Courts having jurisdiction. After this decree was passed, the parties arrived at certain terms of compromise which were recorded at exh. 58. By the compromise the plaintiff was given in lieu of his one-third share, properties described in sub-paras (A) and (B) of para. (1 ). It was then provided that defendants Nos. 1 and 2 should enjoy as owners all the remaining properties (including the house in respect of which an appeal was pending) excepting the property, described in para. (1) and the property and the cash amount awarded to the plaintiff and that the plaintiff had no claim of any sort over that property. By para, (3) it was provided that :

(3.) NOW, the trial Court in suit No. 52 of 1950 held that the decree passed in suit No. 363 of 1942 operated as 'res judicata' and barred the trial of the issue raised by the defendants that the plaintiff was not the adopted son of Rajaram; and the principal contention which has been raised in this appeal is that the Court below was in error in so holding. In order to appreciate that contention, it is necessary to refer to a few facts which have a bearing on the plea of 'res judicata'. Prior to the year 1920, in the Kolhapur State there was no codified Hindu law. In 1920 the State of Kolhapur enacted the Digest of Hindu law. There is some dispute in this case as to the competence of the Ruler of Kolhapur to legislate in respect of the Ichalkaranji Jahagir area. But it is undisputed that for the Kolhapur town and certain other areas His Highness the Maharaja, of Kolhapur, had the right to legislate. By the Digest of Hindu law, it was enacted that a Hindu widow in a joint Hindu family could only adopt either under the express authority of her husband or with the consent of the surviving coparceners. It appears that prior to the year 1932, the law as understood in the Presidency of Bombay was also the same. But since the decision in -- 'bhimabai v. Gurunathgouda', AIR 1933 PC 1 (B), of the Privy Council, it has been, held that a widow of a coparcener in a joint Hindu family is entitled to adopt without the consent of the surviving coparceners and even without express authority of her husband. The law, therefore, in the territory in the Bombay Province was different from the law as codified by the Digest of Hindu Law.