DURJATI SUBBAYYA Vs. ANANTARAJU NAGAYYA

JUDGEMENT

(1.) This is an appeal by the first defendant who seeks to defeat the claims of the plaintiffs as reversioners to the estate of one Sundararamiah, by setting himself up as the adopted son of Sundararamiah. Sundararamiah admittedly died on the 5 March, 1878, and it is not denied that he died of cholera. It is the appellant's case that just before his death he orally authorised his wife to take a boy in adoption and that the first defendant who is the son of a cousin of Sundararamiah was accordingly adopted by the widow about a year after Sundararamiah's death.

(2.) This alleged adoption was the subject of adjudication in a suit for declaration instituted by the first plaintiff and his brothers so long ago as in 1883. (O.S. No. 877 of 1883.) In that litigation, the Court of first instance upheld the adoption; but, on appeal, the lower appellate Court held that the adoption was invalid as not authorised by Sundararamiah or consented to by the sapindas. This decision was confirmed in second appeal by this Court. The point for determination in this appeal is whether the decision in that litigation can operate as res judicata in the present litigation.

(3.) An argument seems to have been advanced before the lower Court that the present appellant who was a minor in 1883, was not properly represented in the former litigation, because his guardian ad litem was his natural father who, being himself one of the reversioners to Sundararamiah's estate, must be taken to have had an interest adverse to that of the minor. As pointed out by the lower Court, it is impossible to find that in the conduct of that litigation the appellant's natural father had been guilty of any negligence or laches. Mr. Rajah Aiyar admits that according to the decision of a Full Bench of this Court, the question of adverse interest is one of fact dependent upon the circumstances of each case and in the absence of any basis for the suggestion that the guardian ad litem had in fact an adverse interest, there is no reason for presuming that his interest must have been adverse simply because he might have had a claim as one of six reversioners.