BHANWARLAL Vs. RAJA BABU

JUDGEMENT

(1.) THIS is a special appeal under Section 18 of the High Court Ordinance. The suit out of which this appeal arises was filed by Gaindilal against Mst. Rajbai, rajababu, Mannalal and three other persons in the court of Civil Judge Jaipur. The case set up by the plaintiff is that one Motilal husband of Mst. Rajbai died in the Samwat year 1971 and that according to the pedigree-table submitted in the plaint, the plaintiff was the next reversioner. Gaindilal plaintiff further alleged that in his lifetime Motilal had made an oral will in his favour bequeathing all his property in favour of the plaintiff and that after the death of Motilal Mst. Rajbai continued to live with the plaintiff. On 20th December, 1941 she executed an adoption deed purporting to adopt Mannalal. On this the plaintiff filed a suit which was dismissed in the trial Court and in the Court of first appeal but was decreed by the High Court of the former Jaipur State on 5th April, 1944. In spite of this, Mst. Rajbai executed another adoption deed on 22nd November, 1945 purporting to adopt Rajababu minor son of Mannalal. The plaintiff stated that in fact Rajbai never adopted Rajababu. Mst. Rajbai who was a Hindu widow had merely a right of residence in the house left by Motilal and in the light of the averments made in the plaint, he prayed for a declaration that Rajababu was not the adopted son of motilal and that he being the nearest reversioner was entitled to his property. After the death of Mst. Rajbai, the plaintiff amended his plaint and prayed for a decree of possession in respect of certain properties. The suit was contested by rajababu.

(2.) THE trial Court held that Mst. Rajbai who was a Jain widow had a right to adopt a son to herself and to her husband without any authority from her husband and that in fact, she had adopted Rajababu defendant to her husband. On the question of will the finding was against the plaintiff. The trial Court also decided issue No. 9 about res judicata against the plaintiff. With these findings, the suit was dismissed.

(3.) PLAINTIFF Gaindilal filed an appeal in the Court of District Judge, Jaipur City. During the pendency of the appeal, he died and his sons and widow were brought on record as his legal representatives. The learned District Judge dismissed the appeal holding inter alia that the bar of res judicata was not available in the present case. Thereupon the appellants filed a second appeal in this Court which was decided by Bhargava J. The only point argued before the learned single Judge was that of res judicata inasmuch as the question whether Mst. Rajbai could take a son to her husband in adoption without the authority of her husband roust be taken to have been decided against her in the previous suit which was decreed by the High Court of the former Jaipur State. It may be mentioned that the judgment of the former Jaipur State High Court was based on the admission made by learned counsel for the respondent in that case that the suit may be decreed against the respondent but the defendant may be exempted from paying the costs incurred by the plaintiff. The learned single Judge held that the relief claimed in the previous suit was for declaration that Mannalal was not the adopted son of motilal and that this relief could be granted to the plaintiff on this ground alone that Mannalal who was orphan was given in adoption by his brother and that it was quite unnecessary in the circumstances of the case to make any admission by counsel for Mst. Rajbai that Mst. Rajbai could not adopt any boy without the authority of her husband. He, however, granted permission under Section 18 to the appellants to file a special appeal. In pursuance of this, they have filed this special appeal.