Back
2000(5) Supreme 621
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Majmudar & Umesh C. Banerjee, JJ.
Rajendra Kumar -Appellant
versus
Kalyan (Dead) by LRs. -Respondents
Civil Appeal No. 1738 of 1990
Decided on 2-8-2000
Counsel for the Parties :
For the Appellant : J.D. Jain, Sr. Advocate, Anand Singh, Satyapal Khushal Chand Pasi, Advocates.
For the Respondents : V.A. Mohta, Sr. Advocate, Manoj Wad and Ms. J.S. Wad, Advocates.
(ii) Code of Civil Procedure, 1908 -Explanation VIII to Section 11-Res judicata-Explanation VIII introduced by 1976 amendment Act applicable to suit pending as on date of commencement of amendment-Matters of procedure are presumed to be retrospective unless there is an express bar on its retrospectivity.
Seems to be well settled that no person has, in fact, a vested right in procedural aspect - one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending excepting as altered by the new legislation. (Para 22)
(iii) Hindu Adoption and Maintenance Act, 1956-Section 12-Adoption-Effect of-Widow adopting son in 1967-Husband died in 1919-Claim a adopted son that by legal fiction he took interest of widow s husband on his death on which date he should be deemed to have been born-Not tenable-Adopted son s could only claim by succession to widow and not as a coparcener on basis of legal fiction.
Held : It was very strongly contended that the Plaintiff by a legal fiction takes the interest of Mahadeo in 1918 when he is deemed to be born, though, in fact however, he was born in 1951. We however, cannot lend any concurrence to the submission of Mr. Sampath. The plaintiff can only claim by succession to Radhabai and not as a co-parcener on the basis of a legal fiction. The entitlement is only if there be any, through Radhabai and not independently of Radhabai. The legal fiction sought to be introduced cannot be accepted. Further vesting in any event cannot take place in favour of an unborn person and vesting must be viz-a-viz a living person and the legal fiction pertaining to vesting to an unborn person would not arise. "To vest , generally means to give a property in", (per Brett L.J. Coverdale v. Charlton 48 L.J.Q.B. 132: Stroud s Judicial Dictionary 5th Edition. Vol. VI). Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorisation cannot however but be termed to be a contingent event: To vest , cannot be termed to be an executory devise. Be it noted however, that vested does not necessarily and always mean vest in possession but includes vest in interest as well. (Paras 25, 27 and 28)
(iv) Code of Civil Procedure, 1908-Section 11-Res judicata-Object and principles of doctrine-Effect of insertion of Explanations VII and VIII in 1976-Expression Court of limited jurisdiction-Meaning of.
The doctrine of res judicata has received a statutory sanction in the Code as a matter of prudence and to give due weightage to a finding or a decision so as to reach a finality in the matter of a dispute between the same parties or litigating under the same parties. The doctrine thus is to achieve finality of dispute between the parties being a principle of prudence so as to give efficacy to a finding of the Court rather than permit the parties to go to trial more or less on the same issues over again and thus introducing a possibility of conflict of views. Judicial, verdict has its special sanctity and cannot be the subject matter of discussion at any future time involving identical or similar issues. 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. The doctrine of res judicata or constructive res judicata predominantly is a principle of equity, good conscious and justice. It would neither be equitable nor fair nor in accordance with the principles of justice that the issue concluded earlier ought to be permitted to be raised later in a different proceeding. (Paras 14, 16 and 17)
The expression Court of limited jurisdiction ought not to be given a limited or restrictive interpretation and as noticed above but widest possible amplitude ought to be given, on to the expression above. (Para 19)
(v) Code of Civil Procedure, 1908 -Section 11-Res judicata-Suit against denial of claim for possession of property-Property belonging to ML -Plaintiff claiming to be adopted by R in 1967 widow of M-M was, according to plaintiff, adopted son of ML-M predeceased ML-Defendant s claim was that he was adopted by ML in 1923 and adoption of plaintiff by R was not valid-Earlier suit by K , widow of ML on ground that R had no right to property because M was not adopted son of ML -That suit was decreed in favour of K -In K s suit adoption of M by ML was negatived but adoption of defendant in present suit was accepted-Decision in K s suit binding on plaintiff-Finding in K s suit that M was not adopted son of ML acts as res judicata-Suit barred by principles of res judicata-Rightly dismissed. (Paras 23 to 30)
JUDGMENT
Banerjee, J.-The cardinal issue m this appeal by the grant of special leave against the judgment of Bombay High Court (Nagpur Bench) pertains to the applicability of the doctrine of Res judicata or Constructive Res judicata envisaged under Section 11 of the Code of Civil Procedure read with the Explanation including Explanation VIII thereto in terms of the provisions of Amendment Act of 1976.
2. In order, however, to appreciate the issues as above, it would be convenient to advert to the contextual facts at this juncture. The facts disclose that the plaintiff/appellant herein instituted a civil litigation being Suit No. 13 of 1974 against the denial of claim for possession of the property. The plaintiff alleged that he was taken in adoption by one Radhabai on 25th April, 1967 who however was married to Mahadeo. Admittedly Mahadeo died on 1st August, 1919 and the property being 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/appellant s 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 Mohanlal s widow and Radhabai who, according to the plaintiff, was Mohanlal s predeceased s son Mahadeo s widow. The first defendant Ramgopal claimed to be adopted son of Mohanlal, though according to the plaintiff, there was, in fact, no adoption.
3. 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 Ramgopal s 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 Mahadeo s line was to be continued by his widow Radhabai taking in adoption a suitable boy at any time beyond Kisnibai s life-time. A kararnama was also got executed on December 10,1923 with the recitals to the above effect.
4. Factual score depicts that Radhabai on June 29, 1926 gave a public notice declaring that Ramgopal was in fact the son of Ramden alias Kalyanrao and was not the adopted son of Mohanlal and had no interest in the property of Mohanlal. A deed of partition was executed between the parties. Subsequently, a civil suit bearing No. 87 of 1929 was instituted by Kisnibai for setting aside the deed of partition on the ground that Radhabai should not get any right to the property belonging to Ramgopal because Mahadeo was not Mohanlal s adopted son. Ramgopal s adoption was also challenged in the suit. Ramgopal, however, asserted that he was adopted by Mohanlal himself in Marwad which however, run counter to the recital in the deed of adoption. The suit (No. 87 of 1929) was decreed against Radhabai and an appeal taken therefrom to the Court of the Judicial Commissioner, being appeal No. 19 of 1932 was also dismissed. According to the plaintiff herein the decision in that suit did not bind the plaintiff since his claim is lodged through Mahadeo and not his heir Radhabai and the observations of the learned Additional Commissioner, that Radhabai was entitled merely to maintenance and not to any interest or share in the property would not bind him. Be it noted, however, that Ramgopal, was joined as a party thereto and it is the plaintiff s definite case that Radhabai having taken the plaintiff in adoption on April 25, 1967, the plaintiff became entitled to seek possession of the property left by Mohanlal and he therefore brought the present suit for possession of the properties as mentioned in the schedule to the plaint.
5. Incidentally, the records depict that Ramgopal also initiated a civil action being sui
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
