Rambhau vs Vasant

S.B. Shukre, J.—By these appeals, the judgment and decree dated 4/11/2009 delivered in Regular Civil Appeal No. 147/2008 by the 1st Ad hoc District Judge, Nagpur have been challenged.

The challenges made to the impugned judgment and decree pose identical substantial questions of law arising between the same parties and, therefore, both these appeals are being disposed of by this common judgment.

Respondent no. 1 in both the appeals is the original plaintiff (hereinafter referred to as the "plaintiffs"). The appellant no. 1, Rambhau in Second Appeal No. 66/2010, who is respondent no. 5 in Second Appeal No. 213/2010, is the original defendant no. 1, while his sons, Prabhakar, Sudhakar, Keshav and Dilip are the original defendants no. 5 to 8 (hereinafter called as ''the main defendants). The genesis of the controversy involved in the appeal is a dispute relating to partition of joint family properties between these parties. Respondents no. 2 to 4 in Second Appeal No. 66/2010 are the original defendants no. 2 to 4. The parties, for the sake of convenience, are being referred to as plaintiff and defendants in the order in which they were arrayed as parties in the suit.

The plaintiff, Vasant Bulaji Fating, is claiming his share as a coparcener of the Hindu joint family of his grandfather Baulaji Fating and separate possession thereof. The properties making up the joint family property have been described in the schedules as A, B, C & D attached to the plaint. Bulaji Fating had two sons, Bulaji and Maroti and after his death the joint family property was held by the two brothers. Bulaji died in 1939 leaving behind his widow Bhulabai, one daughter Parvatibai and one son Raghunath, who were joint in status and in property with Maroti. While Raghunath died in the year 1957, Maroti died on 4/01/1973. Bhulabai continued to be a member of Hindu joint family even after the death of Raghunath in 1957 and Maroti in 1973.

As the years flow by, Bhulabai, the widow, became old. She felt the need to have a son and, therefore, decided to fulfill the desire by adopting a son. On 19.9.1982, she validly adopted the plaintiff, and also executed a deed of adoption subsequently with the biological prints of Vasant on 22/09/1982. It was registered in the Court of Sub-Registrar, Nagpur, on the same day.

It is the case of the plaintiff that upon death of Bulaji, the joint family property did not pass on solely to the sole surviving coparcener Maroti and the joint family property continued to retain its character as such with Bhulabai, the widow of Bulaji and Raghunath, the son of Bulaji continuing to be the members of coparcenary. The plaintiff contends that after his adoption by the widow of Bulaji, he became member of the coparcenary and entitled as such to all the rights of a coparcener being an adopted son of late Bulaji, the deceased husband of Bhulabai. He also contends that upon his adoption, as a son by surviving widow of Bhulaji, the coparcenary interest in the joint family property was created on or about 19/09/1982 and it stood vested in him in his capacity as adopted son of deceased Bulaji. He also claims that the suit property held by Maroti during his lifetime and after his death, by Rambhau, the sole surviving heir of Maroti, was not his separate property as it never vested in the surviving coparcener Maroti by devolution and there was no question of divesting the heirs of Maroti of shares in the joint family property. On these grounds, the plaintiff Vasant filed a suit for partition and separate possession of the suit properties. He also sought declaration of the agreement of sale dated 17/03/1991 entered into between defendant no. 1 Rambhau and defendants no. 3 & 4 for sale of the land bearing survey no. 96, one of the suit properties, as illegal and not binding upon him. He also sought a declaration that partition of the suit property effected between defendant no. 1 and his sons, defendants no. 5, 6, 7 & 8 was illegal.

Defendant no. 1 resisted the suit. He, however, did not deny that the suit property originally belonged to Bulaji Fating and that he had entered into an agreement of sale of property bearing survey no. 96 for its sale to defendants no. 3 & 4. It is his case that the alleged adoption deed is void ab initio being contrary to Section 10 of Hindu Adoption and Maintenance Act, 1956, as the age of the plaintiff Vasant as on the date of adoption was 20 years. He submits that age of the plaintiff has been falsely shown in the adoption deed as 15 years by suppressing his real date of birth. He also raised an objection that the suit as filed by the plaintiff was bad in law, being barred by application of principle of res judicata. He submits that after the death of Bhulabai, the plaintiff had filed an application to substitute his name as legal heir in Civil Suit No. 1263/1972 at the stage of pendency of Second Appeal being S.A. No. 370/1975 before this Court on the ground that he was adopted son of Bhulabai and Bulaji which application was allowed and the second appeal, thereafter, was prosecuted on merits by the plaintiff. He submits that in that appeal, the judgment and decree passed in Civil Suit No. 1263/1972 was challenged and that suit was also for partition and separate possession. The suit having not been decreed by the trial Court as well as first appellate Court, the said second appeal had been filed before the High Court. This appeal was finally dismissed by the High Court on 8/10/1989. Therefore, it is urged that the present suit is also liable to be dismissed.

While defendants no. 2, 3 & 4 did not file their written statements, defendants no. 5 to 8, the sons of original defendant no. 1 Rambhau, adopted the written statement filed by Rambhau.

The trial Court framed several issues and one of them was whether judgment and order in Second Appeal No. 370/1975 operated as res judicata in this case. After hearing parties, the learned Civil Judge by his judgment and decree dated 14/09/1999 dismissed the suit after recording a finding that the suit was barred by res judicata. In the first appeal filed against it, Ad hoc District Judge-1 Nagpur found that the suit was not barred by the principle of res judicata and the plaintiff Vasant being adopted son of Bulaji, was entitled to the partition and separate possession of his share in the suit property and, accordingly, setting aside the judgment and decree of the trial Court, decreed the suit directing partition and giving of separate possession of half share in the suit property to the plaintiff by his judgment and decree passed on 4/11/2009. It is the said judgment and decree which are under challenge in the present appeal.

This Court while admitting the appeals on 5/10/2010 formulated two substantial questions of law and later on formulated an additional substantial question of law as per the order passed on 10/12/2013. These substantial questions of law, as stated herein below, arise for my consideration.

(i) Whether the suit filed by the plaintiff was barred by the principle of res judicata?

(ii) Whether plaintiff Vasanta was validly adopted by Bhulabai in accordance with the provisions of the Hindu Adoption and Maintenance Act as also the Shastrik Law and if yes, whether the plaintiff can also claim to be the adoptive son of Bulaji, the deceased husband of Bhulabai?

(iii) In case it is held that plaintiff Vasant is adopted son of Bhulaji, would it lead to divesting the earlier legal heirs of their shares in the property of Bulaji vested in them prior to the date of adoption?

I have heard Shri S.V. Manohar, learned Senior Counsel for the main defendants, Shri R.L. Khapre, learned Counsel for the plaintiff, Shri Rohit Deo, learned Counsel for respondent no. 5 and Shri C.V. Kale, learned Counsel for respondent no. 6 in Second Appeal No. 66/2010. With their assistance, I have carefully gone through the impugned judgment and decree and the paper book of the appeal.

Learned Senior Counsel for main defendants has submitted that Second Appeal No. 370/1975 arose out of judgment and decree passed in Civil Suit No. 1263/1972, which suit was instituted by Bhulabai and Parvatibai for partition and separate possession in respect of their respective one third and one sixth share in the half undivided share of deceased Bulaji in the joint family property. He submits that in this suit, these appellants had claimed that they had interest in the half undivided share of deceased Bulaji in the joint family property by virtue of their being widow and surviving daughter of deceased Bulaji respectively and, accordingly, had claimed partition and separate possession of their respective shares in the said interest of deceased Bulaji. He submits that by judgment and decree passed on 29/07/1974, the suit was dismissed by the learned Civil Judge. He further submits that first appeal preferred against the said judgment and decree was also dismissed. He further submits that during the pendency of Second Appeal No. 370/1975 before the High Court, appellant no. 1, Bhulabai passed away and therefore on an application made by Vasant, the plaintiff in the present suit, for his substitution as legal representative of Bhulabai, he was substituted as a legal representative on the ground that he was adopted son of Bhulabai. Thereafter, he further submits, the appeal was finally heard and it was dismissed. He submits that the issue involved in the said appeal arising out of Civil Suit No. 1263/1972 being directly and substantially in issue in the present suit between the same parties and in the same capacity, the present suit is also barred by application of principle of res judicata u/s 11 CPC and this has been so held rightly by the learned Civil Judge, Senior Division, Nagpur.

Shri R.L. Khapre, learned Counsel for respondent no. 1/the original plaintiff disagrees. He submits that Civil Suit no. 1263/1972 was filed by Bhulabai and Parvatibai in a different capacity, as the legal heirs of deceased Bulaji, who continued to be joint in property and status with the surviving coparcener Maroti till the death of Raghunath, the son of Bulaji, in the year 1957 and even after his death they continued to be so with Maroti and that they had staked their claim in the suit property basically, as the legal heirs of Bulaji. He further submits that on such a basis, Bhulabai and Parvatibai had claimed partition and separate possession of their respective shares in the half undivided interest of Bulaji in the joint family properties. He further submits that the nature of right and basis of claim in the present suit, bearing Special Civil Suit No. 584/1987, filed by the original plaintiff Vasant is entirely different. He submits that this suit has been filed on the basis that after his adoption on or about 22/09/1982, the plaintiff became entitled to the same rights in respect of the coparcenary property as a natural son would be and, thus the suit has been filed by Vasant in his own right and independent capacity as a member of the coparcenary. Therefore, according to him, present suit is not at all barred by the doctrine of res judicata.

Learned Counsel for respondents no. 5 & 6 have adopted the argument of learned Senior Counsel for the main defendants.

In order to appreciate the rival arguments, it would be necessary for us to examine the nature of the issues involved in the previous suit bearing Civil Suit No. 1263/1972 and appeal proceedings arising out of it. Civil Suit No. 1263/1972 had been filed by Bhulabai and Parvatibai, adoptive mother and sister respectively of the plaintiff Vasant on the basis that after death of Bulaji, they together with Raghunath inherited the interest of deceased Bulaji in the joint family property and after the death of Raghunath in the year 1957, his mother Bhulabai succeeded to the share of Raghunath in the interest of deceased Bulaji and thus, Bhulabai and Parvatibai claimed partition and separate possession of the joint family property. It was also their case that the original defendant Maroti, the surviving brother of Bulaji, managed till his death the whole estate which was the ancestral property.

Prior to the aforestated suit, Bhulabai had also filed a civil suit being Civil Suit No. 529-A/59 (old No. 116-A/58) for partition and separate possession of her share in the joint family property. She had then submitted that after the death of her husband, the only heirs to the half undivided share of deceased Bulaji, were she herself and her son Raghunath and after the death of Raghunath, she was the only surviving heir to her husband''s estate. She also submitted that Maroti, the surviving coparcener had acted as a manager of the joint family properties. This suit, by the judgment delivered on 9/07/1959, was dismissed by the third joint Civil Judge, Junior Division, Nagpur. The learned Civil Judge found that the plaintiff therein, Bhulabai, was not entitled to partition and separate possession in respect of half undivided share of her husband in the joint family property as Raghunath, the male coparcener, had died in the year 1955, well before coming into force of the Hindu Succession Act of 1956, that is on 17/06/1956. The learned Civil Judge found that Bhulabai wanted to take advantage of proviso to Section 6 of the Hindu Succession act, 1956, but could not take so, as the male surviving coparcener from the line of succession of her husband Bulaji had died before coming into force of the Hindu Succession Act, 1956. It meant that the learned Civil Judge had held that after the death of Raghunath, as per the old Hindu Law, the coparcenary property had devolved upon the sole surviving coparcener Maroti by survivorship, in which deceased Bhulabai could not claim any interest by inheritance through deceased Bulaji. She was, therefore, not found to be entitled to partition and separate possession of half undivided share of deceased Bulaji in the coparcenary property. Said judgment and decree were not challenged by Bhulabai.

Later on, in the year 1972, Bhulabai together with her daughter Parvatibai brought another suit against Maroti and since during the pendency of the suit Maroti died, he was substituted by his only son and sole surviving heir Rambhau, the original defendant no. 1. In this suit also, the basis of claim of Bhulabai and Parvatibai for partition and separate possession was the same as was in the previous suit, Civil Suit no. 529/A/59. It was on the basis that the joint family property retained its nature and character to be the joint family property with the defendant therein being the manager of the joint family property and the plaintiffs being the surviving legal heirs of deceased Bulaji, were entitled to receive their respective shares i.e. one third share for Bhulabai and one sixth share for Parvatibai in the joint family property. This suit was resisted by Rambhau mainly on the ground that it was barred by principle of res judicata as the issue had already been decided in the previous suit of 1959 in favour of Maroti, his father. The learned Civil Judge upheld the objection and dismissed the suit. The learned Civil Judge held that the suit was barred by doctrine of res judicata against Bhulabai and by limitation under Article 65 of Limitation Act, 1963 against Parvatibai.

Bhulabai and Parvatibai being dissatisfied with the said judgment and decree preferred Civil Appeal No. 179/1974 before the Court of Second Extra Assistant Session Judge, Nagpur. In this appeal, it was claimed that the suit as against Bhulabai was not barred by principle of res judicata for the reason that the right of the widow Bhulabai to have the same interest in the coparcenary property as her husband had at the time of his death as per the provisions of Section 3(2) of the Hindu Women''s'' Right to Property Act, 1937 (herein after referred to as ''the said Act of 1937'') was ignored in the previous suit and there was also no issue framed on that aspect of the case and, therefore, the civil suit no. 1263/1972 was not barred by operation of principle of res judicata. The learned Extra Assistant Session Judge considered the objection and rejected it holding that even if it was assumed that Bhulabai was entitled under the old Hindu Law to succeed to interest of her deceased husband after the death of Raghunath, the fact remained that her claim that on the application of the provisions of old Hindu law she was entitled to inherit and take one half undivided interest of her husband Bulaji in the joint family property and seek partition on that basis, was rejected. Therefore, the learned Extra Assistant Session Judge found that previous decision operated as res judicata and, therefore, dismissed the appeal by his judgment and decree dated 5.8.1975.

The matter did not end there. Second appeal came to be filed against the said judgment and decree in the High Court. In this Second Appeal bearing No. 370/1975 also, this issue relating to entitlement of Bhulabai to have the same interest in the joint family property as her husband had at the time of his death in accordance with Section 3(2) of the said Act of 1937 was raised by the substituted party, the present plaintiff Vasant. This would be clear from the grounds no. 3 & 6 contained in the memo of appeal. It was also submitted in this appeal that even though the original plaintiff no. 1 Bhulabai had claimed interest in the one half undivided share of her deceased husband Bulaji on the basis that she had inherited his share, she being his widow, no finding had been recorded on this issue in the previous suit and the appellants being entitled to a finding on this legal issue, the subsequent suit filed in the year 1972 was maintainable.

During the course of the arguments advanced in Second Appeal No. 370/1975, it was contended on behalf of the plaintiff that the learned Civil Judge ought to have framed the legal issue whether the original plaintiff, i.e. Bhulabai, was entitled as a surviving heir, to her husband''s estate and the learned Civil Judge committed an error in holding that Bhulabai claimed share only though Raghunath and not as heir of her husband and that the learned Civil Judge also did not record a finding specifically on the said legal issue. It was also the argument of the plaintiff that the matter on this legal issue was left undecided and therefore the principle of res judicata did not operate. The argument, upon its due consideration, was rejected by this Court and ultimately the finding that previous suit of 1959 operated as a res judicata for the subsequent suit bearing Civil Suit No. 1263/1972 was confirmed and the appeal was dismissed. While dealing with the said argument canvassed on behalf of the appellants, this Court, in paragraph 5 of the judgment dated 14/05/1990, observed thus:

".... Shri Umre further contends that the learned Civil Judge ought to have framed the legal issue whether the plaintiff was entitled as a surviving heir of her bus band, a estate (sic. Husband to an estate). According to him, the learned Civil Judge has committed an error in that appellant no. 1 claimed share only through Raghunath and not of her husband and the leaned Civil Judge has given a complete go by to the pleadings of the case and he has not given proper reasoning and as there is no finding on the legal issue, the matter was left undecided and therefore, the principle of res-judicata does not operate. This suit was decided on 3/7/1959 and curiously enough, no appeal was preferred against the dismissal of this suit. This suit was decided on the crucial issue whether the provisions of Hindu Succession Act, 1956 were applicable in this case in view of the death of Raghunath having taken place before the commencement of the Act and on the admission of this issue, the decision was given, the learned Civil Judge in previous suit No. 529-A/59 has held that Raghunath died in the year 1955 before commencement of the Hindu Succession Act, 1956 and, therefore, the appellant no. 1 cannot take advantage of the provisions of Hindu Succession Act, 1956. The question is whether the learned Civil Court has framed a legal issue and has given any finding as contended. The issue no. 2 is whether the plaintiff appellant no. 1 was entitled to partition and separate possession of 1/2 share in all the property. Admittedly, Bhulaji died in the year 1940 and after two years of the death of Raghunath, appellant no. 1 had brought the suit. Even though the words to the effect that the appellant no. 1 was claiming the property through her husband are missing in this issue, to my mind, this issue was properly framed. This is a legal issue and there is a finding of the court on it, therefore, it cannot be said that the matter was left undecided and this decision cannot operate as res-judicata as against the appellant no. 1. Shri Umbre has relied on the decision in the case of Ragho Prasad Gupta Vs. Shri Krishna Poddar, It has been held in this case that the expression of opinion on question not in issue does not operate as res-judicata. Both the lower courts have held that this decision operates as res-judicata as against the appellant no. 1 and rightly so."

Thereafter, plaintiff Vasant and his adoptive sister Parvatibai, who were the appellants in the said second appeal filed a review application bearing no. 190/1992. They claimed that this Court overlooked the express provisions of the said Act of 1937 and committed an error and wrongly viewed the case in the light of provisions of the Hindu Succession Act, which were not relevant to the facts of the case resulting in mistake of law apparent on the face of record. It was also submitted that this Court should have held that Bhulabai had stepped into the shoes of her husband and should have held that she was entitled to half share of her husband in the joint family property. It was also submitted that this Court was in error in holding that the property of late Bulaji passed by survivorship to his late brother Maroti, when the original appellant no. 1 Bhulabai was a widow living and in possession of half undivided share of deceased Bulaji in the joint family property. These submissions were contained in the review application as grounds no. 2, 3 & 4. After hearing rival parties, this Court held, as seen from the findings recorded in paragraph 5 of the order passed on 8/12/1989, that there was no error apparent on the face of the record nor any mistake of law in passing the judgment in Second Appeal. These findings were recorded by this Court after having given anxious considerations to the rival contentions of the parties.

It would be clear from the above referred history of the litigation between the plaintiff and the main defendants that all throughout the claim of Bhulabai that she being the legal heir of deceased Bulaji had inherited his one half undivided interest in the joint family property, especially by virtue of her right u/s 3(2) of the said Act of 1937, had never been accepted and, therefore, the decision in the previous suit of 1959 operated as res judicata in the subsequent suit bearing Civil Suit No. 1263/1972. Although, there was no specific pleading taken in the previous suit of 1959 to the effect that Bhulabai was claiming her right in the joint family property by virtue of her having same interest as her husband had in the joint family property at the time of his death in accordance with the provisions of Section 3(2) of the said Act of 1937, her claim that she was entitled to partition and separate possession as a sole surviving legal heir of her husband under old Hindu law had been found to be not tenable. As per explanation 4 to Section 11 of CPC any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. At the time of filing of the suit in the year 1959, the ground of her having interest in the joint family property as a coparcener by virtue of Section 3(2) of the said Act of 1937 was available and it could have been included by a specific pleading in the plaint. Since it was not included, by virtue of the explanation 4 to Section 11, Civil Procedure Code, this ground would be deemed to have been a matter directly and substantially in issue in that suit. It must also be noted that there was a general pleading made by Bhulabai that she was entitled to inherit the interest of deceased Bhulabai as his sole legal heir and this general pleading by the deeming effect of explanation would also include the pleading as regards her right in respect of the joint family property u/s 3(2) of the said Act of 1937. Therefore, it can be said that the learned Civil Judge by holding that Bhulabai was not entitled to any share in the suit property in that suit has effectively held that she was also not entitled to claim any right to the joint family property under the provisions of the said Act of 1937.

In the subsequent suit bearing Civil Suit No. 1263/1972 also there was no specific pleading raised in respect of right of Bhulabai u/s 3(2) of the said Act of 1937. But, it was raised in the first appeal that was filed against the decree of dismissal of the said suit before the Court of Extra Assistant Session Judge, Nagpur, and as seen earlier, the learned Extra Assistant Session Judge held that even on this ground the decision in the 1959 suit operated as res judicata.

We have also seen that similar challenge was raised before this Court in Second Appeal No. 370/1975 of the plaintiff claiming to be legal representative of the deceased Bhulabai and it was upon due consideration rejected by this Court. Review application field by Vasant and Parvatibai also came to be rejected. This would mean that even though there was no specific plea raised in the first suit of 1959 to the effect that Bhulabai had inherited her deceased husband''s estate being his widow as per the provisions of Section 3(2) of the said Act of 1937, her claim that she was entitled to estate of her deceased husband as his sole surviving legal heir under old Hindu law, was found to have been sufficient to take within its fold the former pleading and decision upon it was therefore found to have operated as res judicata in the subsequent suit filed in the year 1972. The finding recorded by the learned Civil Judge in the subsequent suit of 1972 that the suit was barred by principle of res judicata by virtue of decision on the same issue between the same parties in the previous suit has been confirmed by the first appellate Court and further also by the High Court and as no appeal has been preferred against the judgment and order of the High Court dated 14/05/1990, same has attained finality between the parties. In the said second appeal before the High Court, present plaintiff Vasant was also a party and, therefore, decision in that appeal, would be also binding upon Vasant.

The net effect of the finding that Bhulabai was not entitled to inherit estate of her deceased husband being his sole surviving legal heir, is that after death of Raghunath in the year 1955, as conclusively found by the Courts in the previous litigations, the estate of deceased husband of Bhulabai passed by survivorship to the sole surviving coparcener Maroti and after his death, the whole coparcenary property devolved upon and stood vested in Rambhau, the sole surviving legal heir of Maroti. It is not in dispute that Maroti died on 1/04/1973. It would also mean that after death of Maroti on 1/04/1973, the joint family property lost its character to be so and it stood vested in the sole surviving coparcener, Rambhau and thereafter Bhulabai could not stake any interest in the joint family property as surviving widow and sole surviving legal heir of her husband deceased Bhulaji.

It is on the aspect that the joint family property lost its character as a coparcenary property and stood vested in the surviving legal heir after death of Maroti that learned Counsel for the original plaintiff, Vasant, has a serious objection. He submits that joint family property does not cease to be the joint family property when it passes through the hands of a sole surviving coparcener. He further submits that if the son is born to the said surviving coparcener, the property in his hands becomes a joint family property with the son becoming one of the coparceners. He further submits that the joint family property in the hands of sole surviving coparcener is liable to be shared by any other coparcener that might be inducted in the family by way of adoption of a son by a widow of deceased coparcener or by birth of a son in the family. He further submits that adoption of a son by a widow relates back to death of the adoptive father and, therefore, the adopted son can reopen partition which may have taken place after the death of the adoptive father. He further submits that in this case, by virtue of provisions of Section 3(2) of the said Act of 1937, deceased Bhulabai acquired interest of Bulaji upon his death in the joint family property and since this interest made the widow a member of the coparcenary, and though not in equal status and nature with the interest of a natural coparcener, she could seek partition and even alienate the interest for a legal necessity. He further submits that once the widow is introduced in the coparcenary, the right which the other coparceners would have under the Hindu law of Mitakshara School to take that interest by the rule of survivorship remains suspended so long as that estate enures. He further submits that her estate would merge into the coparcenary property only if she does not seek partition or when it is determined by her death. Therefore, he submits that in the instant case there has been no separation of joint family property by its vesting in the legal heir of deceased Maroti. In support, he places reliance upon the following cases:

(i) Dharma Shamrao Agalawe Vs. Pandurang Miragu Agalawe and Ors,

(ii) Controller of Estate Duty, Madras Vs. Alladi Kuppuswamy,

(iii) Y.K. Nalavade and Others Vs. Ananda G. Chavan and Others,

(iv) Jupudi Venkata Vijaya Bhaskar Vs. Jupudi Kesava Rao (died) and others,

(v) Manohar Lal Ganeriwal and Others Vs. Bhuri Bai and Others,

(vi) Satrughan Isser Vs. Smt. Subujpari and Others,

On the other hand, learned Senior Counsel for main defendants has submitted that the principle of relation back of adoption to the death of adoptive father is not an absolute principle and that it is subject to some limitations. One of the limitations, according to the learned Senior Counsel is that when the property by inheritance goes to collateral and, in such a case, the son adopted after the death of the collateral, cannot divest the property which has vested in the heir of the collateral. He further submits that once it was conclusively held in the previous suits that Bhulabai was not entitled to seek partition of the coparcenary property even on the basis that she was the sole surviving heir of deceased Bulaji, it meant that the coparcenary property devolved by survivorship upon the sole survivor coparcener Maroti, stood vested after the death of Maroti, in his sole surviving legal heir. He further submits that admittedly, the adoption of Vasant had taken place after the death of sole surviving collateral Maroti and, therefore, Vasant cannot divest Rambhau, the sole surviving legal heir of Maroti of the joint family property already vested in him. If this is the position emerging from the result of the previous litigations, the present suit based upon the claim that joint family property continued to be the joint family property entitling Vasant to claim partition and obtain separate possession of his share therein as adopted son of deceased Bhulaji and Bhulabai, would be barred by the operation of principle of res judicata. In support, he places his reliance upon the following cases:

(i) Namdev Vyankat Ghadge and Another Vs. Chandrakant Ganpat Ghadge and Others,

(ii) Jivaji Annaji Vs. Hanmant Ramchandra,

There is no quarrel about the principle that the joint family property in the hands of sole surviving coparcener retains its character to be joint family property and if the son is born to the sole surviving coparcener or son is adopted by a widow of the deceased coparcener, the said property becomes the joint family property in the hands of sole surviving coparcener and the naturally born son or adopted son. The only difference between the right of a manager of a Hindu joint family over the joint family property where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family property in his hands is that while the former can alienate the joint family property only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcener property as if it were a separate property as long as it is held by him as sole surviving coparcener and that he may even sell or mortgage the coparcenary property even though there is no legal necessity or family benefit accruing or may even make a gift of the coparcenary property. These attributes of a joint family property have been described by the Hon''ble Supreme Court in the case of Dharma Shamrao Agalawe (supra). Similarly, in the case of Y.K. Nalavade & Ors. (supra), Division Bench of this High Court has held that joint family property in the hands of the sole surviving coparcener is liable to be shared just by any coparcener that widow of a deceased coparcener might bring in the family by adoption at any time during her lifetime as by his own sons on their birth. It is held that the property devolved by survivorship upon the sole surviving coparcener is defensible on account of its character and incidence, and would be first defeated by birth of his sons and again defeated when a son is adopted by a widow of deceased coparcener and made a coparcener equal in status with the other coparceners. The reason being that such defeasance is the incidence, not of the adoption, but of the character of the property and the family and widow''s rights therein and therefore there would be no question of vesting the property in the sole surviving coparcener by survivorship or his being divested of it by induction of son by adoption in the joint family property.

In the case of Controller of Estate Duty (supra), it has been held that because of statutory substitution of interest of widow in the coparcenary property in place of her husband under the provisions of the said Act of 1937, the right which the other coparceners would have under the Hindu law of Mitakshara School of taking that interest by rule of survivorship remained suspended, so long as that estate enures. It is also held that by virtue of her acquiring interest in the coparcenary property, a Hindu widow can ask for partition and her husband''s interest would have to be worked out according to the circumstances obtaining in the family on the date of the partition. It is also held that if the widow does not choose to exercise her right of partition, there is no severance of the Hindu coparcenary and upon her death her interest will merge in the coparcenary property or lapse to the other coparceners. Same principles have been laid down in the case of Manoharlal Ganeriwalla & Ors. (supra) and Satrughan Isser (supra).

In the case of Jupudi Venkata Vijaya Bhaskar (supra), the Division Bench of Andhra Pradesh High Court has taken a view that the sole surviving coparcener can dispose of the coparcenary property as if it were his separate property as long as he remains the sole surviving coparcener, but not thereafter. It is further held that any alienation made before introduction of a son by birth or adoption in the Hindu coparcenary, would remain unaffected and the same cannot be objected to or challenged by the new coparcener by following the law laid down by the Hon''ble Apex Court in the case of Dharma Shamrao Agalawe (supra).

In the case of Namdev Vyankat Ghadge & Anr. (supra), which is a case later in point of time than the case of Dharma Shamrao Agalawe (supra), the Hon''ble Apex Court after distinguishing the facts of Dharma Shamrao Agalawe''s case, held that if the property by inheritance goes to a collateral and the adopted son is adopted after the death of the collateral, the adoption cannot have the effect of divesting the property which has vested in the heir of the collateral. The Hon''ble Apex Court found that in Dharma Shamrao Agalawe''s case adoption of Pandurang had taken place during the lifetime of a sole surviving coparcener Dharma and, as such, Pandurang had become member of coparcenary to claim the share in the joint family property. In the case of Namdev Vyankat Ghadge & Anr. (supra), the facts were different and the adoption of the son by widow of deceased coparcener Anand Rao had taken place after the death of Vyankat, the sole surviving coparcener, which made all the difference. Considering this difference, the Hon''ble Apex Court laid down the above referred principle and in doing so, it approved the view taken and principles laid down by the full bench of Bombay High Court in the case of Jivaji Annaji (supra) that even though an adoption relates back to the death of adoptive father, an adopted son must be looked upon as if he was in existence at the death of the adoptive father, that it is not the correct proposition to say that the rights of an adopted son are in all respect, identical with that of a naturally born son, that the principle of relation back is not an absolute principle but it has certain limitations, and that one of the limitations is that if the property in the hands of surviving sole coparcener goes by inheritance to his legal heirs and stands vested in them after his death and if the adoption takes place after the death of the surviving sole coparcener, the adoption cannot divest the property which has vested in the heir of the collateral or sole coparcener.

From the above referred cases, what can be culled out is that the present legal position is that principle of relation back of adoption to the death of the adoptive father is not an absolute principle. It is subject to limitations. For instance, one limitation could be that any lawful alienations made by the last absolute owner would be binding on the adopted son and a further limitation would be that if the property by inheritance goes to the heir of the surviving coparcener or collateral and no adoption takes place during the lifetime of the surviving coparcener, the property upon death of the surviving coparcener would stand vested in his legal heir and the adopted son inducted in the joint family after the death of surviving coparcener cannot divest such legal heir of the property which has stood vested in him. Further, by virtue of the provisions of Section 3(2) of the said Act of 1937, the Hindu widow acquires in the joint family property the same interest which her deceased husband had, if the death of husband had occurred after coming into effect of the said Act of 1937. On the basis of such a right, a Hindu widow can claim partition and separate possession of her deceased husband''s estate, but if she does not claim it or after having claimed it, is not found entitled to inherit undivided interest of her deceased husband in the joint family property, the property would pass by rule of survivorship to the surviving coparcener, which would be then subject to enlargement or reduction depending upon the addition of coparceners by birth or by adoption or death of the coparceners as the case may be. Once the property devolved upon the sole surviving coparcener by survivorship goes by inheritance to his legal heirs upon his death, it stands vested in them and any adoption of son made after the death of sole surviving coparcener cannot have the effect of divesting such legal heirs of the property which has vested in them.

In the instant case, as already stated, even though there was no issue framed in the suit of 1959 that Bhulabai had acquired her deceased husband''s estate on the basis of her right u/s 3(2) of the said Act of 1937, there was a pleading generally made that she was entitled to inherit her husband''s share in the joint family property and this pleading, as held earlier, has been found to be also including claim of Bhulabai in terms of the provisions of Section 3(2) of the said Act of 1937. Said general claim of Bhulabai, in all the proceedings right up to the High Court proceedings has been rejected and, therefore, same would operate as res judicata for the subsequent suit of the year 1972. If it was not taken in the first suit of 1959, it would mean that Bhulabai had either omitted to sue in respect of said claim or deemed to have raised it and, therefore, she was debarred thereafter to raise the said claim in a subsequent suit in view of the provisions of Order II Rule 2 read with Section 11, Explanation IV, of the Code of Civil Procedure, 1908. In a subsequent suit, as seen from the earlier discussion, the said claim was sought to be raised and it was rejected by the Courts with final rejection having come after the High Court dismissed the appeal bearing Second Appeal No. 370/1975. In the said appeal, the original plaintiff, Vasant was a party and, therefore, the decision that Bhulabai was not entitled to claim partition of the suit property on the basis of her right u/s 3(2) of the said Act of 1937 would be binding on the present plaintiff. Once it is held that Bhulabai did not have any interest under old Hindu Law in the joint family property, the joint family property stood vested in the sole surviving legal heir of the collateral, i.e. Maroti upon his death on 1/04/1973. It would also mean that any adoption taking place in the family after the death of Maroti would not relate back absolutely to the death of the adoptive father in the sense that it would not result in divesting the legal heir of the collateral of the property vested in him by inheritance, prior to the date of adoption. The original plaintiff, Vasant, adopted in the family after the death of Maroti, therefore, could not be allowed to say that being an adopted son of deceased Bulaji his adoption related back absolutely to the year 1939 when Bulaji died and, as a coparcener he had a right to seek partition and separate possession of his share in the joint family property, which in fact did not exist having been already vested in the sole surviving legal heir of the collateral, after his death. His claim in this regard deserves to be rejected.

It must be stated here that the instant suit filed in the year 1987 has been precisely based upon the claim of Vasant that his adoption absolutely related back to the death of his adoptive father making him a member of the coparcenary from that time onwards and conferring upon him a right, in the same manner as a natural son to seek partition and separate possession of his share in the joint family property. In other words, the plaintiff is asserting his independent right to the coparcenary property, which right became available to him only after his adoption in the year 1982, much later to the previous suits filed by Bhulabai. Therefore, the previous suits bearing Civil Suit No. 529-A/59 and Civil Suit No. 1263/75 would not operate as res judicata for the present suit filed in the year 1987 and to this extent the learned Ad hoc District Judge is right and learned Civil Judge, Sr. Dn., has fallen in error. But this would not lead to bringing of any relief to the plaintiff in view of the finding recorded earlier.

Learned Counsel for the original plaintiff, Vasant has referred to me the cases of Vidyawati Vs. Man Mohan and others, , Gajraj Vs. Sudha and Others, Shankarrao Dajisaheb Shinde (since deceased) by heirs Shankarrao Dejisaheb Shinde (Since Deceased) by Heirs Vs. Vithalrao Ganpatrao Shinde and Others, and Chandreshwar Prasad Narain Singh Vs. Bisheshwar Prasad Narain Singh, to support his argument that when there was no finding recorded by the High Court, specifically on the question as to whether or not the first suit had decided the issue that Bhulabai, widow of deceased Bhulaji, had no right of inheritance in respect of estate of the deceased husband by virtue of the Section 3(2) of the said Act of 1937, and when Vasant had based his suit of 1987 upon his independent claim as member of the coparcenary, there was no question of bar of subsequent suit by operation of res judicata.

Learned Senior Counsel for main defendants has submitted that since all the contentions taken in this behalf by the original plaintiff have been duly considered and rejected by the High Court while deciding the Second Appeal No. 370/1975, and, subsequently, the review application no. 190/1992, it would not be open now to contend that previous suit of 1959 did not operate as res judicata for the subsequent suits.

The principles laid down in the said cases relied upon by the learned Counsel for the original plaintiff are not in dispute and following these principles only that I have found that the previous suits did not operate as res judicata for the present suit. Thus, the first substantial question of law is answered as in the negative.

This takes us to the second substantial question of law regarding validity of adoption of Vasant by Bhulabai and his claim to be the adoptive son of Bulaji. This issue was involved in Second Appeal No. 375/1975 and upon consideration of the evidence recorded by the first appellate Court on this very issue, this Court by its judgment dated 14/05/1990 recorded a finding that Vasant is the son of Bhulabai by virtue of adoption, as held in paragraph 4 of the judgment. Parties to the present litigation being the same parties in the same capacity in Second Appeal No. 370/1975, the said finding would be binding upon the parties to the present appeal also. This finding has attained finality with no appeal having been filed against it by any of the affected parties, and now it would not be open to the defendants to re-agitate this issue. Therefore, it has to be held that Vasant was validly adopted by Bhulabai and, therefore, in view of Section 12 of the Hindu Adoption and Marriage Act, 1956, he shall be deemed to be the child of his adoptive father Bhulaji for all purposes with effect from the date of the adoption and, subject to limitations discussed earlier, his such adoption shall relate back to the date of death of Bulaji. Second substantial question of law is answered accordingly.

In respect of the second substantial question of law learned Senior Counsel for the main defendants and the learned Counsel for the original plaintiff have referred to me some cases which are enlisted as below:

(i) Kesharbai Jagannath Gujar Vs. The State of Maharashtra and Others,

(ii) Ramaji Batanji Vs. Manohar Chintaman and Others,

(iii) Bhimashya and Others Vs. Smt. Janabi @ Janawwa,

(iv) Mariammal Vs. Govindammal and Others,

(v) G. Appaswami Chettiar and Another Vs. R. Sarangapani Chettiar and Others,

(vi) Abhishek Sharma Vs. State of U.P. and Another,

(vii) AIR 1951 434 (Nagpur)

(viii) Abhiraj Kuer Vs. Debendra Singh,

However, in view of the answers given to substantial questions of law earlier, I do not think it necessary to consider these cases.

The third and the last substantial question of law is about effect of adoption of Vasant as son of deceased Bulaji upon the right of the legal heir of Maroti to retain the joint family property vested in him prior to the date of adoption of Vasant. I have already found, following the law laid down by the Hon''ble Apex Court in the case of Namdev Vyankat Ghadge & Anr. (supra), that since adoption had taken place after the death of Maroti, it would not have the effect of divesting the sole surviving legal heir of Maroti, original defendant no. 1 Rambhau, of the joint family property, which had vested in him by inheritance prior to adoption. Therefore, the substantial question of law is answered in terms that adoption of Vasant would not lead to divesting Rambhau of the joint family property which stood vested in him by inheritance before the adoption, same having lost the character of joint family property and having become separate property of the branch of Maroti.

Learned Counsel for original plaintiff, Vasant has also referred to me few more cases which are enumerated as follows:

(i) Udebhan Rajaram Vs. Vikram Ganu,

(ii) Shankarrao Sitaramji Satpute and Others Vs. Annapurnabai and Others,

(iii) Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another,

(iv) Raja Makund Deb Vs. Sri Jagannath Jenamoni,

(v) Mst. Param Pal Singh through Father Vs. National Insurance Company and Another,

(vi) The State of U.P. Vs. Ram Chandra Trivedi,

(vii) Kalyani (Dead) by Lrs. Vs. Narayanan and Others,

(viii) Potti Lakshmi Perumallu Vs. Potti Krishnavenamma,

(ix) Ramchandra Dagoji Rangari through L.Rs. (Smt. Lilabai Ramchandra and Others) Vs. Vishwanath Champat Naik,

The above referred cases are in respect of points and principles, which do not really arise for consideration in view of the findings recorded earlier and, therefore, I do not think it necessary to consider these cases.

In view of the above, I am of the opinion that there is merit in both the appeals and they deserve to be allowed.

Both the appeals stand allowed and the impugned judgment and decree dated 4/11/2009 passed in Regular Civil Appeal No. 147/2008 by First Ad hoc District Judge, Nagpur are hereby quashed and set aside. Resultantly, Special Civil Suit No. 587/1987 stands dismissed. Further, in the circumstances of the case, parties are directed to bear their own costs.

At this stage, learned Counsel for the respondent no. 1 submits that the appellants, during the pendency of the present appeals were restrained from creating any third party interest in the suit property and since the respondent no. 1, the original plaintiff, intends to challenge the present judgment and decree, same order be continued for a further period of ten weeks.

In view of the submission and also the fact that the said order was in operation during pendency of both the appeals, same order shall be continued for a further period of ten weeks from the date of the order.