The judgment established the principle that failure to raise certain defenses in a previous suit can result in the bar of res judicata. It also clarified the interpretation of a vested estate under a will.

Mudholkar, J—This is a Plaintiff's second appeal from the dismissal of his suit for possession of the property comprised in the mortgage or in the alternative for a declaration that, he is entitled to redeem it by paying to the Defendant, after taking accounts, all that is due on the mortgage effected by the previous owner Gopalji.

2. It is common ground that the Plaintiff is the son of Lalji, who was the elder brother of Gopalji. Gopalji died leaving his widow Krishnabai. Before his death, he executed a will, Ex. P-10, dated 29-10-1919. I shall presently refer to the relevant portion of the will but it is sufficient at the moment to state that according to the Plaintiff this will conferred a life-estate on Krishnabai and that it provided that after her death the estate would go to him as reversioner.

3. The family is admittedly governed by the Mithila school of Hindu Law. According to the Plaintiff he was given in adoption to Gopalji in the Kritrima form and so he was entitled to inherit not only to his adoptive father Gopalji, but also to his natural fattier Lalji. Gopalji had mortgaged the property in suit with the Defendant by a mortgage deed, dated 24-4-1918. As the mortgage money was not paid the Defendant filed a suit for foreclosure. To that suit she joined only Krishnabai as Defendant. Later, on the application of the Defendant, Kamalanayan, the eldest brother of the Plaintiff, was also joined as Defendant. Eventually a preliminary decree for foreclosure was passed in that suit and the decree became final on 28-8-1931. The Defendant then took possession of the mortgaged property on 25-12-1931. Sometime thereafter Krishnabai died.

4. According to the Plaintiff this mortgage was without legal necessity and as such was not binding on him. It was on that ground that he claimed possession of the property. Further, according to him, the property covered by the mortgage was inalienable and so Gopalji could not mortgage it. His alternative claim for redemption is based by him on the ground that he was not made a Defendant to the mortgage suit and that therefore the decree passed in that case did not foreclose his right to redeem the mortgage.

5. The Defendant denied the adoption and also contended that the mortgage was for legal necessity. She also denied that the property was inalienable. She similarly contests the right of the Plaintiff to redeem the mortgage and says that the decree passed against Krishnabai and Kamalanayan operates as 'res judicata' against the Plaintiff. I may further mention that the Defendant contests the claim of the Plaintiff based on the will and says that the Plaintiff did not get any vested interest thereunder but only a contingent one and that the property having been foreclosed at the testator's death he was not entitled to redeem the mortgage.

6. Three questions fall to be decided in this appeal. The first is whether the foreclosure decree obtained by the Defendant operates as 'res judicata' against the Plaintiff; the second question is whether the property is alienable or not and the third is whether the Plaintiff is bound by the decree or is entitled to redeem the mortgage.

7. As regards adoption the finding of the two. Courts below, is against the Plaintiff and that finding being one of fact cannot be challenged is second appeal.

8. In order to appreciate the question regarding 'res Judicata' it is necessary to set out certain facts. One of the items of the property comprised in the mortgage was field No. 228. The Plaintiff took forcible possession of this field sometime after the Defendant obtained possession thereof. The Defendant then filed civil suit No. 63-A of 1937 against the Plaintiff for possession of this field and mesne profits. In that suit the defences laken by the Plaintiff were that he had inherited she field as a reversioner of Gopalji and that the suit was barred by time. On both these points the finding was against the Plaintiff, and the suit was decreed.

9. The Plaintiff h