Dulichand vs Nandibai

Newasker, J.—This appeal arises out of a suit for partition filed by Plaintiff Dulichand against his brother''s widow Nandibai.

The Plaintiff alleged that Kanaji was his grandfather. Kanaji had two sons Hira and Dayaram. Hira was the first to die leaving behind him his widow Kashibai. Dayaram had two sons Rupchand and Plaintiff Dulichand. After Hira''s death the land which had been recorded in the name of Hiraji and Dayaram was recorded in the name of Hira''s widow Kashibai in Hira''s place. Subsequently sometime in 1937 38 Dayaram died. In place of Dayaram the names of his two sons Dulichand and Rupchand were recorded. Kashibai''s name cotinued as before. Rupchand then died an year or two subsequent to the death of Dayaram leaving Nandibai as his heir. Nandibai''s name was recorded in his place. Kashibai then died some time in February or March 1955. She left movable property worth Rs. 585/- and agricultural land and house. The Plaintiff claimed the entire property as her reversioner. In spite of this, it is said, the Defendant Nandibai sought her name to be mutated in place of deceased over the land standing in her name. The Revenue Court directed the names of both the Plaintiff and the Defendant to be mutated and it was held that each of them was entitled to half share. According to Plaintiff be was in possession of land measuring 89 Bighas and 5 \\Biswas and the rest was in the possession of the Defendant. According to him he is entitled to Annas -/12/-in a rupee while the Defendant was entitled to Annas -/4/- only since the land and the house were in existence from the time of Kanaji. He therefore prayed for partition and separate possession of 3/4th share of the property.

The Defendant in her written statement contended that her husband was adopted by Hiraji. She denied that the land and the house was the ancestral property existing from the time of Kanaji. She denied knowledge about the dates of death of Hiraji and Dayaram. It was asserted that on the death of Hiraji the names of Kashibai and Rupchand were mutated. In Samvat Year 1995 Rupchand gave away half share from his land to Dulichand and Dayaram and on that occasion there had been it is said, a writing between Rupchand on the one hand and Dayaram and Dulichand on the other in which Dayaram had admitted Rupchand as the adopted son of Hiraji. The Plaintiff got possession of some property in pursuance of this family arrangement and the remaining property is in the possession of the Defendant. The parties as also Kashibai had become separate even from the days of Rupchand and Dayaram but the patta was joint. The Defendant and Kashibai tried to secure separate and exclusive pattas but as the Revenue Court had limited power of mutation they filed a suit for partition against the Plaintiff. This suit was decided against the Plaintiff. The property alleged by the Plaintiff to belong to deceased Kashibai in fact was hers. She also contended that in pursuance of partition arrangement of Samvat Year 1995 she was in exclusive possession of the property and there could not be any partition a second time. She pleaded res judicata limitation, estoppel and alto raised the question of court fees.

The trial Court on 24-3-1956 framed issues which included issues regarding res judicata as, issue No. 9 and court fees as issue No. 12. Arguments on both these were heard and the trial Court by its order dated 28-3-1957 found the issue of res judicata against the Plaintiff and the issue regarding Court fees against the Defendant. The Plaintiff''s suit was accordingly dismissed.

This appeal is directed against that decision.

It is contended that the decision of the Court below on the question of res judicata is not correct.

In order to appreciate this contention we have to see the nature of the previous suit and that was actually decided therein. That was a suit filed by Kashibai and Nandibai for a declaration that they were entitled to have their names separably recorded over the land measuring 92 Bighas assessed to the Revenue of Rs. 208-6-6, on the ground that Rupchand was the adopted son of Hiraji and that under a family arrangement between Dayaram on the one hand and Rupchand and his adoptive mother Kashibai on the other the aforesaid land had been in exclusive possession of both of them and latter had come into possession of Kashibai and Nandibai and that they were entitled to have their names exclusively recorded. This suit was decreed ex-parte and it was held established that Rupchand had been adopted by Kashibai and that there had been family arrangement under which Kashibai and Rupchand had become entitled to land measuring 92 Bighas as detailed out therein. It was also held that they were entitled to have their names recorded over the said land to the exclusion of Dulichand.

In this suit Plaintiff Dulichand seeks to assail the status of Rupchand as the adopted son of Hiraji. He also does not accept the family arrangement on the basis of which Rupchand and Kashibai had become entitled to land measuring 92 Bights and /claims. Twelve Annas share in the land on the assumption that the Plaintiff was entitled to the property of Kashibai as reversioner and that Nandibai as the widow of his deceased brother Rupchand was entitled to only four Annas share.

Now as regards Rupchand''s adoption that was the matter precisely decided in the former suit. It was also decided therein that by reason of a family arrangement between the present Plaintiff and Rupchand and Kashibai, the latter two Were entitled to 92 Bighas of land and a decree formulation of the exclusive names of Nandibai and Kashibai had already been passed. It therefore follows that the decision though ex-parte is res judicata even in the view expressed in 1939 Appeal Cases 1 New Brunswick Rly. Co, v. British and French Trust Corporation, which their Lordships of the Supreme Court referred to and distinguished in their decision in Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, . Moreover since the previous decision is based on the status of Rupchand by adoption the decision becomes res-judicata irrespective of the competency of the subsequent suit by the former Court in view of the pecuniary limits of that Court''s jurisdiction, vide Durjati Subbayya Vs. Anantaraju Nagayya and Others, , which followed the decision in ILR 29 Cal 707 Gokul Mendar v. Pudmanand Singh.

For these reasons the appeal is without force and is dismissed with costs.

H.R. Krishnan, J.

I agree.