TMI Blog2000 (8) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the subject matter of the suit, belonged to one Mohanlal who died in 1923 leaving him surviving his widow Kisnibai who died in 1951. The plaintiff/appellants claim was that his adoptive father Mahadeo, was adopted by Mohanlal as a son to him during his life time and after the death of Mohanlal, the family comprised of only two members, namely, Kisnibai who was Mohanlals widow and Radhabai who, according to the plaintiff, was Mohanlals predeceaseds son Mahadeos widow. The first defendant Ramgopal claimed to be adopted son of Mohanlal, though according to the plaintiff, there was, in fact, no adoption. The factual score further depicts that the family of Mohanlal had migrated from Jaipur and was governed by the Benaras School of Hindu Law. The plaintiff contended that Ramgopals adoption stands vitiated for want of authority from Mohanlal to Kisnibai to adopt a son to him. Ramgopal, however, as the records depict used to live with Kisnibai and Radhabai, and had an ante- adoption deed executed by Kisnibai on December 9, 1923. The document recited that Ramgopal was to be adopted only in respect of half of the property of Mohanlal and Mahadeos line was to be continued by his widow Rad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the factual score: (i) the first defendant was not proved to be the Kulmukhtyar of Kisnibai in respect of Mohanlal's property; (ii) Mohanlal was governed by Benaras School of Hindu law and not the Bombay School of Hindu Law; (iii) Radhabai was not living as a member of Mohanlal's joint Hindu family; (iv) there was no authorisation to Radhabai to adopt a son to Mahadeo and though the factum of plaintiff's adoption by Radhabai was established, his adoption was not legal and valid; (v) the partition between Radhabai and Kisnibai was not proved and it was also not proved that the first-defendant fraudulently got an adoption deed in his favour from Kisnibai; (vi) the adoption by Mohanlal of Ramgopal, the first defendant, was held proved. In the present suit, the learned Trial Judge, while rejecting the plea that the suit was barred by time and that the first-defendant acquired title by adverse possession, held that the decision in Civil Suit No.87 of 1929 and First Appeal No.19 of 1932, as well as the decision in Civil Suit No. 157 of 1935 and the decision in Civil appeal No.2-A of 1939, operated as res judicata on the question of the adoption of Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the present suit, being the subject matter of the appeal presently, answered the issues as below: I in the affirmative. II The factum of adoption is proved but the adoption is not legal and valid. III .in the negative. IV .in the affirmative. V .in the affirmative. VI .in the affirmative. VII .in the affirmative. and on the basis whereof dismissed the suit. Records depict that the Appellate Court confirmed the decree of dismissal of the suit. The Appellants definite assertion is that Mohan Lal adopted Mahadeo in 1910 much before his death in the year 1923. Admittedly Mahadeo pre-deceased Mohan Lal as he died on 20th August, 1921 and the Appellants (Plaintiff) adoption by Radhabai is said to have taken place on 25th April, 1967. There is in fact a deed of adoption. Exhibit 116 brought before the learned Trial Judge corroborated such a state of affairs. The deed also was registered and by reason of registration and other available evidence on record no exception can be taken to the observations of the learned Trial Judge that there is overwhelming evidence on record to prove the factum of adoption. There is existing evidence on record as regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salutory effect on to the jurisprudential system of the country. The 1976 Amendment to the Code and the introduction of Explanations VII and VIII clarify the dual objective as noticed above. The objection howsoever technical it may be, ought not to outweigh the reasonableness of the doctrine. Raghubir Dayal, J. speaking for the majority view in off cited Gulab Chands case (Gulabchand Chhotalal Parikh v. State of Gujarat: AIR 1965 SC 1153) in paragraphs 60 and 61 observed: As a result of the above discussion, we are of opinion that the provisions of S.11 CPC. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 10th December 1923 and adoption deed were not binding on the Defendant No.1 who was the plaintiff No.2 in that case. Hence all these questions cannot now be agitated in the suit before us and the decisions on those points would operate as res judicata. The civil Suit No.157-A/1935 was filed by the Defendant No.1 Ramgopal, as stated above, against Kisanibai and Radhabai and three others, now the question is as to whether the decision in this Suit No.157-A/35 operates as res judicata. In that suit Radhabai was a party. The issues were (1) Whether the plaintiff (Defendant No.1in this suit) was adopted by Mohanlal (2) Whether the adoption deed, dated 9th December, 1923 and the Kararnama, dated 10th December, 1923 were binding on the plaintiff (Defendant No.1 in this suit)? It has been held that the Plaintiff (Defendant No.1 in this suit) was adopted by Mohanlal. Secondly, the adoption deed dated 9th December, 1923and the Kararnama, dated 10th December 1923 were held to be not binding on the plaintiff (Defendant No.1 in this suit). This decision was confirmed by the High Court in Second appeal No.466/1940 vide Exh.173 certified copy of the judgment. In my view, the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Act 104 of 1976, so far as relevant runs as follows:- 97(1) any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of the Act have come into force or the repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897, (a) the amendment made to clause (2) of Section 2 of the Principal Act by Section 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in section 47 and every such appeal shall be dealt with as if the said section 3 had not come into force; (b) ------------------------------to (zb) ---------------------------------. (3) Save as otherwise provided in sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement, notwithstanding the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess enactment or necessary intendment (Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner: AIR 1927 PC 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the Court to which appeal lay at the commencement of the suit stands abolished (Garikapati Veeraya v. N. Subbiah Choudhary : AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving : 1905 AC 369). Still later this Court in Gurbachan Singh v. Satpal Singh Others (AIR 1990 SC 209) expressed in the similar vein as regards the element of retrospectivity. The English Courts also laid that the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect the vested rights: It does not apply to statutes which alter the form of procedure or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maintenance Act. For convenience sake the third proviso to Section 12 is noted hereinbelow: 12. Effects of adoption. provided that - (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. It is on this aspect of the matter the Appellate Court observed: The whole basis for claiming a right in the property left by Mohan Lal is that Radhabai is the widow of Mahadeo alleged to be the deceased son of Mohanlal. The argument was that after the death of Mohanlal and in the absence of Ramgopals adoption, it would be Radhabai who would take the property belonging to Mohanlal to the exclusion, or otherwise, of Kisnibai who died in the year 1951, as on the date of the adoption, i.e., 25th April, 1967, Radhabai was the only surviving member of the family of Mohanlal. Succession to Mohanlal opened in the year 1923 when the Hindu Womens Rights to Property Act, 1937, had not been enacted. The most that could be said in respect of Radhabai would be that Radhabai, by virtue of her being the widow of Mahadeo, would be entitled to take widows estate in the property left by Mohanlal, and by virtue of the provisions of section 14 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, declared to be a valid adoption in any event, the same being a finding against the estate, question of further accrual of any right would not arise. The Plaintiff cannot as a matter of fact lodge its claim independently of Radhabai as a co-parcener by reason of being a deemed son of Mahadeo. As noted above the entitlement is only if there be any, through Radhabai and not independently of Radhabai. The legal fiction introduced by Mr. Sampath unfortunately cannot find favour with us, more so by reason of the fact that the adoption of Mahadeo stands negated in the earlier suit. Mr. Mohta appearing for the respondents, however, relying on the earlier judgment and the findings as regards the affirmation of Ramgopals adoption and negation of Mahadeos adoption and the factum of the Plaintiff having been litigated under the same title as Radhabai and since Radhabai was a party to the previous suit, very strongly contended that question of any doubt being raised as regards the applicability of the doctrine of res judicata or constructive res judicata does not and cannot arise. Mr. Mohta contended that vesting in any event cannot take place in favour of an unborn person and vesting mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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