YESHWANT BALA Vs. BABAI

JUDGEMENT

(1.) This is a plaintiff's appeal against the dismissal of his suit by the First Class Subordinate Judge of Satara. The suit was brought by the plaintiff as a person adopted into a joint family, and he claimed the property in suit from the persons in whose possession it was. But his suit was dismissed principally on the ground that the matter was res judkata by reason of the decision in some litigation that was launched in 1914. Other questions; as to the validity of the adoption and limitation were raised in the suit; but it is not necessary to deal with them in this appeal.

(2.) In 1907 one Bhiku was the last surviving male member of the joint family. He died in that year Waving a daughter named Chandrabhaga, who was married to a man named Anant. At the same time there was in existence one Nana (defendant No. 2 in the present litigation), who was the son of Bhiku's half sister Babai. There was also in existence another Babai (defendant No. 1 in the present litigation), the widow of Bhiku's predeceased brother, Bala. In 1908 the present plaintiff, Yeshwant, was adopted to Bala by his widow, Babai. In 1914 Chandrabhaga, claiming to be Bhiku's heir and as such the owner of the entire property once held by the joint family, brought suits against; the present plaintiff and defendants Nos. 1 and 2 for possession of the property. The suits were brought in the Court at Wai, which had jurisdiction to try them by reason of the fact that the property had been artificially split up so as to give rise to several claims in separate suits. The trial Court decided in favour of the plaintiff in the suits, and she was declared to be the owner of the property. The present plaintiff, Yeshwant, did not appeal against the decision; but the other parties appealed, and the matter came as far as the High Court. But Chandrabhaga had died in 1916 while, the matter was under appeal in the District Court. Thereupon Chandrabhaga's husband, Anant, put in a claim to be regarded as legal representative and heir of Chandrabhaga, and Babai also (the present defendant No. 1), though a defendant in that suit, claimed to be the legal representative and heir of the deceased Chandrabhaga, the plaintiff in. the suit. The appeal was compromised in the District Court; but Anant was not a party to the compromise, and he appealed to the High Court. The High Court thought that it was undesirable that a compromise in circumstances such as these should be accepted, since it was possible that it was collusive. It therefore restored the decree of the trial Court recognising Chandrabhaga as the owner of the property, but gave Anant liberty to establish his. own position as: heir of the deceased Chandrabhaga in a separate suit, if so advised. He filed a suit in 1921, but, compromised it; and we are no longer concerned with him.

(3.) In the present suit there is prima facie a bar of res judkata in the way of the plaintiff. The! plaintiff's position now is exactly the same as it was in 1914. If he has now a good case for a claim to the property by reason of his adoption, he had an equally good case then ; and if he did not put it forward in that litigation, he ought to have put it. It is obvious that the owner of the property in that litigation could have been none another than either Chandrabhaga or the present plaintiff, Chandra bhaga as heir of her father Bhiku or the plaintiff as adopted son of the predeceased coparcener Bala no one else had any claim) at all. But whether he put it forward or not, the case was decided in favour, of Chandrabhaga and against the plaintiff; and on the principles of res judicata it is evident that the present suit is barred, unless on some technical ground it is possible for the plaintiff to escape from the consequences. His learned counsel argues that on the law as it was understood in 1914 the plaintiff had no chance of convincing any Court that his adoption was a valid adoption (valid in the sense that it was capable of giving the plaintiff a title to the property). That may be so; but if by reason of recent decisions it is possible that the plaintiff could at the present time be held to have a valid title to the property by reason of his adoption, then in theory that should have been the position in 1914 also. The fact that the case law is changed does not alter the fact that the true law must be deemed to have been the same in 1914 as it is at the present time.