VYANKAT AWACHIT PATIL Vs. ONKAR NATHU CHAWDHARI

JUDGEMENT

(1.) The plaintiff sued to recover as owner possession of the suit property. He claimed as the adopted son of one Nathu who died in 1902 leaving two widows, Anandi and Vari. Anandi purported to adopt the plaintiff in 1903. At that time he was a minor, not coming of age until 1914. In 1910, Anandi as his guardian filed a suit against the present 2nd defendant, the junior widow, and other persons in possession of some of Nathu s property to recover possession. In that suit the plaintiff s adoption was disputed, But it was held by the Second Class Subordinate Judge, in whose Court the suit was instituted, that the plaintiff was the adopted son of Nathu and that judgment was affirmed on appeal. The suit came up in Second Appeal to the High Court and the appeal was dismissed. The plaintiff has now filed this suit to recover possession of another portion of family property, and in the first place it was argued that the suit was barred under Order II, Rule 2, as the subject-matter of this suit ought to have been included in the previous suit. That argument would net apply to a case like this where the previous proceedings were taken in the name of the minor by his next friend. The minor could not possibly be prejudiced by a mistake made by those representing him during his minority as his rights to sue in his own person only come into effect when he attains majority. He will, therefore, be entitled to disregard any proceedings which had been taken during his minority if his interests had not been properly safeguarded. I cannot see how he could possibly be injured and prevented from now suing for the suit property owing to the fact that his adoptive mother did not sue for it in 1910 during his minority.

(2.) Then the next question is whether the plaintiff is the adopted son of Nathu. That was the first issue in the lower Court. It was also combined with the sixth issue whether the defendants were barred by res judicata from disputing the plaintiff s adoption. The first was a question of fact and the second was a question of law. Evidence was called for the plaintiff. The first witness was the genitive father of the plaintiff. He said : " The plaintiff was my son, He is given in adoption to my father-in-law Nathu. Nathu died in 1902 and plaintiff was adopted in 1903. I live at present in Nathu s house, Nathu had two wives, the elder was Anandi and the second is defendant No. 2, Anandi is alive. Anandi adopted the plaintiff. There is an adoption deed for that." The witness was cross-examined and there is nothing in the cross-examination which weakens the evidence he gave in examination-in-chief with regard to the factum of adoption. In fact hardly any attempt was made in cross-examination to destroy the effect of the witness s evidence. It was open to the defendants to call evidence to show that as a matter of fact the plaintiff never had been adopted by Anandi. They did not do so. We are now told that their witnesses were there, but owing to an expression of opinion on the part of the Judge, that the matter was res judicata they considered that it would be useless to call evidence. It is quite possible that there were other reasons as well which decided the defendants pleader with regard to the advisability of calling evidence to dispute the plaintiff s adoption.

(3.) On the question of res judicata it does appear that the learned Judge s finding was wrong, because the previous suit was file! in the Second Glass Subordinate Judge s Court, and that Court was not competent to try the present suit as the value of the subject-matter of this suit is over Rs. 5,000, and it is now beyond dispute on the decided cases, the latest of which is Gokul Mandar v. Pudmannnd Singh (1902) L.R. 29 I.A. 196, 202 : 4 Bom. L.R. 793, that a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent suit in which the issue is subsequently raised. It has been very strongly urged upon us, therefore, that we should remand the case to enable the defendants to lead evidence against the plaintiff s adoption. The defendant No. 2 in her written statement merely says that the plaintiff has no right to bring the suit and he is not Nathu s adopted son. Now 1 think in the first place that the evidence which I have already referred to, of the plaintiff s genitive father is quite sufficient to enable us to come to the conclusion that the plaintiff was the adopted son and I should not be inclined to think that there was any hardship in the defendant s case, because he had the opportunity of calling evidence and he did not do so. But I also think that apart from that we are entitled to consider whether there would be the slightest chance of success on the defendants own showing if a remand be granted. The judgment in the previous case is on the record and is evidence on the question of adoption, and it appears from that judgment that the 2nd defendant herself had admitted in the plaint filed before the conciliator that the plaintiff had been adopted by Anandi. It appears to me the defence made in her written statement as to the factum of adoption was merely made for the purpose of obstruction, and nothing else. There is no reason, therefore, I think, why we should interfere with the decision of the learned Subordinate Judge.