TMI Blog1952 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... to the validity of the adoption of the Plaintiff. These disputes were referred to the sole arbitration of V. D. Belvi, a pleader at Belgaum. He entered upon the reference and during the course of the reference he communicated to the parties his opinion in regard to the position of the plaintiff as the adopted son of Shankar, in fact suggesting to the parties that they should if possible bring about an amicable settlement and an award was made by the Arbitrator in terms of the compromise. Under the terms of the award the Arbitrator ordered: 1. It is declared that the adoption of the plaintiff is not valid. 2. It is declared that the right of adoption is lost to Gangabai from the very beginning. 3. It is declared that the Plaintiff is not and can never become entitled to the property belonging to the family of Devarao Bapuji Deshpande. 4. Nevertheless, with the object of maintaining peace and good-will and affection in the family and the property belonging to the family may not be wasted away owing to the rise of any dispute of whatsoever sort and if Gangabai and the plaintiff were to agree to what is written in the above paragraphs some c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his possession. The Defendant 1 filed her written statement in the suit contending 'inter alia' that the suit was barred by 'res Judicata' by virtue of the decree passed in suit No. 291 of 1937 and that the Plaintiff's claim was barred by estoppel. The Defendant 2 filed his written statement adopting the contentions raised by the Defendant 1 in her written statement set out above. 6. The learned Trial Judge came to the conclusion that the suit was not barred by 'res judicata', that the adoption of the Plaintiff by Gangabai on 12th December, 1943 was proved and that the same was valid, and that the adoption of the Defendant 2 by the Defendant 1 was also proved though he did not record a finding on the issue as to what was the date of that adoption. He, however, held that the Plaintiff was estopped from claiming possession of the properties from the Defendant 1 and was only entitled to possession of the properties belonging to the family after her death. He came to the conclusion that, the adoption of the Defendant 2 by the Defendant 1 was invalid by reason of the adoption of the Plaintiff by Gangabai which was anterior in date. He, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... null and void, as under the law of adoption then understood D had no power to adopt without authority of her husband S. In 1932, there was a change in the law of adoption, and in 1935 M was again adopted by D and a suit was then brought by M for a declaration that he was the adopted son of S. On a plea of 'res judicata' being taken by the Defendant in that suit, it was held that M was not litigating under the same title. The title that he sought to make out in the two suite had according to him been derived from different transactions and 'prima facie' therefore his title in each suit though of the same nature in both was different. The two adoptions of M by D, the widow of S were treated as different transactions conferring on the Plaintiff in that suit different titles though the claim in each suit was really of the same nature, i.e., the claim as an adopted son of S. Even though the facts of that case appear to be on all fours with the facts of the present case, the real ratio of the decision is to be found in the judgment of Broomfield, J. as under: It is true that 'litigating under the same title' has generally been interpreted to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum. 13. The contention which was very strenuously urged before us by the learned Attorney-General on behalf of the Defendant 1 therefore was that the Plaintiff was estopped from contending that Gangabai had a right to adopt him as a son to her deceased husband Shankar, on the 12th December, 1943. 14. Estoppel is a rule of evidence and the general rule is enacted in section 115 of the Evidence Act, which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. This is the rule of estoppel by conduct as distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compromise it was declared that the right of adoption was lost to Gangabai from the very beginning, that the adoption of the Plaintiff was not valid, and that the Plaintiff was not and could never become entitled to the property belonging to the family of Devarao. The decree for maintenance obtained by Gangabai against the Defendant 1 was to continue permanently and the Plaintiff was to be paid a sum of ₹ 8,000 in a lump sum. 16. On a true construction of term No. 2 of this consent decree, Gangabai, as also the Plaintiff, declared that the right of adoption was lost to Gangabai from the very beginning. That was in our opinion a representation of fact that Gangabai had from the very beginning no right to adopt a son to her deceased husband Shankar. The sum of ₹ 8,000 was to be paid by the Defendant 1 to the Plaintiff as a consideration for this declaration and it was because of this declaration that she in fact paid the sum of ₹ 8,000 to the Plaintiff a day before the court passed the decree in terms of the award. It was this representation of fact made by Gangabai as well as the plaintiff which induced the Defendant 1 to believe it to be true a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, there are cases where the courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuity of action. Authority for this position is to be found in the following passage from Bigelow on Estoppel', 6th Edition, pp. 639-640: Situations may arise, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and a circuity of action. In the case before us Gangabai as well as the Plaintiff could be deemed to have agreed that Gangabai would not take a son in adoption to her deceased husband Shankar in the future, for the consideration of ₹ 8,000 paid by the Defendant 1 to the Plaintiff. The Defendant 1 acted upon this position to her detriment and paid in fact a sum of ₹ 8,000 to the Plaintiff. The Plaintiff, accepted this sum of ₹ 8,000 and relinquished all rights which he then had or which he could ever have had in the future to the property belonging to the family of Devarao. Gangabai continued to accept maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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