Case: Sunderabai &amp; Another Vs. Devaji Shankar Deshpande

2. One Devarao had a son by name Shankar born to him by his wife Rangubai who died in about 1898). Shankar died in about 1902 leaving him surviving his widow Gangabai. Davarao died in the year 1904 leaving him surviving his widow Sunderabi, the defendant I. Devarao was the sole survivingof the family and after his death the Defendant I and Gangabai the widow of hisson Shankar were the only two members of the family surviving. Gangabai adopted Devaji the plaintiff as a son to her deceased husband Shankar on or about the 18th February, 1934, and disputes arose between Gangabai and the plaitniff on the one hand and the Defendant I on the other in regard 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 andand affection in the family and the property belogning 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 consideration will have to be given to them respectivelyfor all these purposesthe Defendant I shall pay to the plaintiff rupees 8,000 eight thousand in one lump sum. If the Defendant 1 does not pay the amount as aforesaid the Plaintiff shall recover the same from the property belonging to the family, lying in the Defendant Is possession.5. The decree for maintenance obtained by Gangabai against the Defendant I in the regular suit No. 224 of 1911 of the Gokak Subordinate Judges Court shall continue permanenlty.3. An application was made in the Court of the First Class Subordinate Judge at Belgaum which was registered as Suit No. 291 of 1937, to obtain a decree in terms of the award and the plaintiff having admitted the terms of the compromise and the award and the receipt of Rs. 8,000 the Court made a decree accordingly on the 6th August, 1937. The Defendant I continued to pay to Gangabai maintenance in accordance with the decree passed in her favour by the Subordinate Judges Court at Gokak and this position of affairs continued right up to December, 1943.4. The decision of their Lordships of the Privy Councilin Anant v. Shankar, AIR 1943 PC 196   (A), was pronounced on the 26th July, 1943, and some lawyer sems to have advised Gangabai that she could adopt the plaintiff again. Following the advice Gangabai adopted the Plaintiff as a son to her deceased husband Shankar again on the 12th December 1943. Coming to know of this adoption, the Defendant I adopted her daughters son, Jivaji, the Defendant 2 as a son to her deceased husband Davarao but it is alleged that shethe deed of adoption executed by her in his favour to the 28th November, 1943. The plaintiff thereupon filed on the 31st January, 1944, a suit being Regular Original Suit No. 330 of 1944 in the First Class Subordinate JudgesCourt at Belgaum against the Defendants 1 and 2 claiming possession of the properties belonging to the family, basing his claim to the same on his adoption by Gangabai on the 12th December 1943.5. In the plaint she contended that the adoption of the Defendant 2 by the Defendant I had not taken place on the 28th November, 1943, as alleged but on a date subsequent to the 12th December, 1943. The Defendant 2 was impleaded as a party defendant to the suit as some property out of the said property was in his possession. The Defendant I 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 plaintiffs claim was barrd by estoppel. The Defendant 2 filed his written statement adopting the contentions raised by the Defendant I 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, therefore, granted to the Plaintiff the declarations that he was the validly adopted son of Shankar, that the adoption of the Defendant 2 by the Defendant 1 as son to her deceased husband Devarao was invalid and that the Plaintiff was entitled to the possession of the suit properties on the death of the Defendant1. The Plaintiffs suit inother respects was dismissed. The learned Trial Judge in effect dismissed the Plaintiffs suit for possession merely granting to him the declarationsThe Defendants 1 and 2 appealed against this decree to the High Court of Judicature at Bombay the same being first appeal No. 344 of 1946. The High Court confirmed the decree and dismissed the appeal with costs. The Defendants 1 and 2 obtained from the High Court leave to appeal to the Federal Court and the present appeal has thus come for hearing and final disposal before this Court.

Reasoning: 9. Before we deal with these points of law we might deal with an argument which impressed the High Court, viz., that the plaintiff in the suit before us was claiming under a different title from the one which he put forward in the former suit No. 291 of 1937 and that therefore there was no bar of res judicata nor estoppel. Reliance was placed in support of this position on a decision of the High Court of Bombay reported inMahadevappa v. Dharmappa, AIR 1942 Bom 322  (B). In that suit one R, a distant agnate of S, brought a suit in 1928 for a declaration that the adoption of M by D, the widow of S. was invalid. A compromise decree was obtained by R declaring that adoption of M was null and void, as under the law of adoption then understood D had no power to adopt without authority of her husband S.Thus Mr. Justice Broomfield refused to entertain the bar of res judicata not on the ground, that the Plaintiff was not litigating under the same title but on the ground that the matter directly and substantially in issue in the subsequent suit had not been directly and substantially in issue in the former suit in a court competent to try such subsequent suit and had not been heard and finally decided by such court.11. The real ratio governing such class of cases is to be found in a decision of the Full Bench of the Lahore High Court inMt. Sardaran v. Shiv Lal, AIR 1944 Lah 282 (FB) (C), where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suit were different that the subsequent suit would not be barred as res judicata even though the property was identical. It is therefore clear that the Plaintiff in the case befoe us was litigating under the same title, i.e., in the same right as the adopted son of Shankar though that claim of his was sought to be based on a later adoption than the one in the former suit.12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in suit No. 291 of 1937 was a decree in terms of the compromise. The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply.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 Rs. 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 Rs. 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 I to believe it to be true and to act upon such belief to her detriment. But for her being induced in this manner she would not have paid to the Plaintiff the sum of Rs. 8,000. The Plaintiff in his turn having received the sum of Rs. 8,000, the representation was in fact acted upon and he could not be heard to deny the truth of that representation and subsequently assert that Gangabai had in fact the right to adopt a son to her deceased husband Shankar, she having lost that right from the verycontention however ignores the wording of term No. 2 which does not limit the declaration to any particular period but is quite general in its terms. It is not a declaration that Gangabai had no right to adopt in the past, it is not a declaration that she did not intend to adopt a son in the future, it is a clear representation that the right of adoption which was vested in her by virtue of her being the widow of her deceased husband Shankar was lost to her from the very commencement.This right could be lost in various ways and one of the ways in which it could be lost was the legal position as it obtained in the minority judgment of Rangnekar, J., in"AIR 1937 Bom 279 (FB) (D), abovementioned. The right could be lost also by reason of other circumstances and if the representation of the nature contained in term No. 2 was made it would be not merely a representation of intention or a representation of the legal position but a representation of fact in regard to the right of adoption which had vested in Gangabai as the widow of her deceasedare afraid that this position cannot avail him. Even though the matter may have passed from the stage of a representation into an agreement, there are cases where the courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuitry ofallow the Plaintiff to take up this position now would be to encourage a fraud or circuitry of action which according to the passage from Bigelow above quoted would be the last thing a court would ever countenance. Treating it therefore as an agreement or an undertaking given by Gangabai as well as the Plaintiff, even so the Plaintiff would be estopped from contending that Gangabai had not lost her right of adoption as set out in term No. 2 of the award and asserting that she could adopt the Plaintiff as a son to her deceased husband on the 12th December, 1943.19. Having regard to the observations which we have made above, we have come to the conclusion that the Plaintiff was estopped from contending that Gangabai had the right to adopt hiim as a son to her deceased husband on the 12th December, 1943. This estoppel prevails in spite of the fact that both the courts below have found that he was validly adopted by Gangabai as a son to her deceased husband on the 12th December, 1943.