1. The following genealogy will explain the relation between the parties to this litigation:
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Tatoba Ramchandra Atmaram Sitaram
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Dattoba Vasant Kashinath
(Died on (Deft. No. 1) (Deft. No. 2)
2. Dattoba, son of Ramchandra, died on 1-5-1935. Rajaram, had predeceased Dattoba, leaving him surviving his wife Chandrabai. After the death of Dattoba, Chandrabai adopted the plaintiff as a son to her deceased husband. The adoption was made on 15-5-1935. The family of the parties was originally resident of the former Kolhapur State. Dattoba was conducting the family shop at Sankeshwar (in the Belgaum district) which was opened sometime in the year 1917 and he was residing permanently in Sankeshwar. Sankeshwar is at a distance of about 14 or 15 miles from the village of Ainapur which was the place where the family originally resided.
It appears that Dattoba had migrated from Ainapur to Sankeshwar and was residing in Sankeshwar for attending to his business. He had set up a family house and his son Rajaram and even the defendants who arc the cousins of Dattoba were living at Sankeshwar. It appears that the family was possessed of properties some of which were at Sankeshwar, some in the town of Kolhapur and the remaining properties were in Ichalkaranji, Jahagir, which was also a part of the former Kolhapur State. The plaintiff's adoption was not recognised by the defendants and the plaintiff filed three suits for establishing his title to the properties of the joint family in which he was adopted.
The plaintiff filed suit No. 363 of 1942 in the Belgaum Court for a share in the properties at Sankeshwar. To that suit were impleaded as defendants Chandrabai the adoptive mother, and Vasant Atmaram and Kashinath Sitaram whom I will hereafter refer to as defendants Nos. 1 and 2. By that suit, the plaintiff claimed one-third share in the properties at Sankeshwar alleging that the properties were part of the estate of the joint family in which he was adopted. The plaintiff also filed suit No. 6 of 1942 in the Court of the First Class Subordinate Judge, Kolhapur, for partition and separate possession of his share in the Ishalkaranji property.
This suit was filed against defendants Nos. 1 and 2. The third suit was flled by the plaintiffon 5-6-1947, in the Court of the Subordinate Judge at Kolhapur for a share in the Karveer (Kolhapur) properties. That suit was filed also against defendants Nos. 1 and 2. Suit No. 363 of 1942 filed in the Court of the Joint First Class Subordinate Judge at Belgaum was decided in favour of the plaintiff. The Court held that the plaintiff was adopted by Chandrabai as a son to her husband Rajaram and that his adoption was valid. In that suit, defendants Nos. 1 and 2 who are the cousins of Dattoba, had contended that the plaintiff was not the adoped son of Rajaram, that neither Dattoba nor Rajaram had consented to Chandrabai adopting a son to her husband and that in any event Rajaram having predeceased Dattoba, Chandrabai had no right to adopt.
The learned Judge considered the evidence and held that the plaintiff was in fact adopted by Chandrabai and relying upon a judgment of the Privy Council in -- 'Anant Bhikappa v. Shankar Ramchandra', he upheld the plaintiff's adoption. The learned Judge passed a preliminary decree on 8-3-1944, declaring that the plaintiff was entitled to a third share in the immoveable and moveable properties in suit and in the business described in paras. (3) and (4) of the plaint and ordered an equitable partition. He gave certain directions to the Commissioner appointed by his order which are not material in this litigation. The decree provided that the plaintiff was permitted to sue for his share in the immoveable properties in Kolhapur and the Ichalkaranji Jahagir in the Courts having jurisdiction.
After this decree was passed, the parties arrived at certain terms of compromise which were recorded at exh. 58. By the compromise the plaintiff was given in lieu of his one-third share, properties described in sub-paras (A) and (B) of para. (1). It was then provided that defendants Nos. 1 and 2 should enjoy as owners all the remaining properties (including the house in respect of which an appeal was pending) excepting the property, described in para. (1) and the property and the cash amount awarded to the plaintiff and that the plaintiff had no claim of any sort over that property. By para, (3) it was provided that :
'By a preliminary decree, the Court has given liberty to the plaintiff for demanding the property of his share by filing a suit in a proper Court in respect of the property situate in the Kolhapur State and the Ichalkaranji Jahagir. That liberty is confirmed. If suits are instituted in respect of the property situated within the limits of the State, defendants Nos. 2 and 3 (defendants Nos. 1 and 2 in this suit) are at liberty to raise all kinds of contentions to those suits. There is no restriction at all of any kind to them to do in that way'.
This compromise was recorded by the Court, and on 28-1-1950. a final decree was passed thereon. In the meanwhile, the plaintiff had filed the two suits which I have referred to earlier for establishing his right to the properties in the Ichalkaranji Jahagir and in the town of Kolhapur. The two suits were decided in favour of the plaintiff. Suit No. 6 of 1942 was decided on 30-9-1950, and the plaintiff was awarded possession of one-third share in the lands in suit. Suit No. 52 of 1950, which was filed for partition of the Kolhapur properties, was decided on 15-2-1951, and the plaintiff was awarded one-third share in the properties mentioned in the schedule to the plaint. Against the decree passed in suit No. 6 of 1942,first appeal No. 224 of 1951 has been filed by defendants Nos. 1 and 2. Against the decree passed in the suit in respect of the Karveer properties, defendants Nos. 1 and 2 have filed appeal No. 424 of 1951.
3. Now, the trial Court in suit No. 52 of 1950 held that the decree passed in suit No. 363 of 1942 operated as 'res judicata' and barred the trial of the issue raised by the defendants that the plaintiff was not the adopted son of Rajaram; and the principal contention which has been raised in this appeal is that the Court below was in error in so holding.
In order to appreciate that contention, it is necessary to refer to a few facts which have a bearing on the plea of 'res judicata'. Prior to the year 1920, in the Kolhapur State there was no codified Hindu law. In 1920 the State of Kolhapur enacted the Digest of Hindu law. There is some dispute in this case as to the competence of the Ruler of Kolhapur to legislate in respect of the Ichalkaranji Jahagir area. But it is undisputed that for the Kolhapur town and certain other areas His Highness the Maharaja, of Kolhapur, had the right to legislate. By the Digest of Hindu law, it was enacted that a Hindu widow in a joint Hindu family could only adopt either under the express authority of her husband or with the consent of the surviving coparceners. It appears that prior to the year 1932, the law as understood in the Presidency of Bombay was also the same. But since the decision in -- 'Bhimabai v. Gurunathgouda' , of the Privy Council, it has been, held that a widow of a coparcener in a joint Hindu family is entitled to adopt without the consent of the surviving coparceners and even without express authority of her husband. The law, therefore, in the territory in the Bombay Province was different from the law as codified by the Digest of Hindu Law.
4. As I have stated earlier, the family of Dattoba was originally resident of Ainapur, but had migrated to Sankeshwar. There is no clear evidence on the record that since migration, the family had adopted the law of British India and had abandoned the law which governed the family in Kolhapur. The migration of the family to British India took place prior to the year 1920, but the family had substantial property in the former Kolhapur State and for the purpose of this appeal it may be assumed that the family was domiciled in the Kolhapur State and had by reason of migration not lost its original domicile and had not adopted the law which was prevalent in the British Indian territory in which it had settled down.
5. Now, it was the plaintiff's case that Chandrabai had adopted the plaintiff in pursuance of the express direction given by her husband and with the sanction and consent of Dattoba. At the trial of suit No. 52 of 50 it was conceded that the plaintiff was unable to prove that Chandrabai had made the adoption in pursuance of the express authority of Rajaram or with the consent of the surviving coparceners. It was also conceded that the property in which the plaintiff claimed a share was the property of the joint family of Dattoba, Rajaram and the defendants and that there had been no severance of the joint family status.
The defendants conceded that the plaintiff was adopted as a son by Chandrabai to her deceased husband. The plaintiff gave up the plea that he had raised that the properties in which he had claimed a share were the self-acquired properties of his branch. No oral evidence was led at the trial of the suit and the lawyers appearing for the parties proceeded to argue the claim made by theplaintiff and resisted by the defendants on an admitted statement of facts that the plaintiff had been, adopted by Chandrabai as a son to Rajaram and that the properties in which the plaintiff claimed a share were the properties of the joint family to which Rajaram belonged and that the plaintiff's adoption was not authorized by Rajaram, and that the surviving coparceners had not assented to the same.
The defendants relied upon the Digest of Hindu Law and contended that the plaintiffs adoption was invalid in so far as it related to the properties in Kolhapur State, and that by his adoption made at Sankeshwar, the plaintiff did not acquire any title to the properties in the Kolhapur State. The plaintiff contended that he was held to be duly adopted as a son to Rajaram by Chandrabai in suit No. 363 of 1942 by the Belgaum Court and that decision was binding between the parties to the suit. The defendants admitted that in suit No. 363 of 1942 by the preliminary decree it was declared that the plaintiff had been adopted as a son by Chandrabai to her deceased husband and that the adoption was valid, but they relied upon Clause 3 of the consent terms which were incorporated in the final decree passed in that suit.
They contended that it was open to the defendants, notwithstanding the adjudication by the civil Court at Belgaum to contend that the plaintiff was not adopted as a son to Rajaram and that in any event the adoption was invalid in so far as it related to properties in the Kolhapur State. They put strong reliance upon the statement in Clause 3 of the consent terms that if suits were instituted in respect 'of property situated within the limits of the State, defendants Nos. 2 and 3 (defendants Nos. 1 and 2 to this suit) were at liberty to raise all kinds of contentions' to those suits and 'there was no restriction at all of any kind to them to do in that way'.
6. The learned trial Judge held that the plaintiff's adoption was valid under the Hindu law as it prevailed in the Province of Bombay. He then pointed out that if the validity of the adoption were to be decided according to the Digest of Hindu Law, the plaintiff's adoption would be invalid as no consent either of Rajaram or Dattoba or of the defendants thereto was proved. But he observed that as the Belgaum Court at the date of the trial of the suit ceased to be a foreign Court 'quae' the Court in which the suit was pending for decision, the decision in suit No. 363 of 1942 operated as 'res judicata'. In support of that view he relied upon the decision of this Court in --'Chunilal Kasturchand v. Dundappa Damappa' : AIR1951Bom190 (C). He observed:
'It is true that the Belgaum Court was not competent to try this suit when it decided the former suit but now, as it ceased to be a foreign Court due to the merger, it must be deemed to have always been competent to try this suit. This competency is to be determined by its pecuniary jurisdiction and territorial jurisdiction is irrelevant.'
The learned Judge, holding that the decree of the Belgaum Court in suit No. 363 of 1942 operated as 'res judicata', passed a decree in favour of the plaintiff for partition and separate possession of his share in the suit property.
He held that even though the consent terms reserved all the pleas to the defendants regarding properties in the Kolhapur State, the direction could only mean that the defendants were permitted to raise contentions which were peculiar to the property in the Kolhapur State, so that for instance they could contend that those, or some of them,were their separate properties and that the plaintiff had no share therein, but it was not open to the defendants to contend that the very foundation of the decree in the Belgaum suit that the plaintiff was the validly adopted son of Rajaram, did not exist.
7. Mr. Kalagate on behalf of the defendants contends that the Civil Judge was in error in holding that the only contentions which the defendants could raise in the Kolhapur suit must relate to the peculiarity in the tenure of the property in the Kolhapur area and not to the validity of the plaintiff's adoption. He submits that the words used in Clause 3 of the consent terms are very wide and that the defendants are at liberty to raise all contentions without any restrictions as to their nature and a contention as to the validity of the plaintiff's adoption is one which can be raised as any other contention which defeats the plaintiff's suit.
Prima facie it appears that there is substance in the contention raised by Mr. Kalagate. The defendants were permitted to raise all contentions, whatever their nature, in the suits to be filed in the Kolhapur Court. We are unable to agree with the view of the trial Court that the defendants were prohibited from raising a contention as to the validity of the plaintiff's adoption. But that view about the effect of the consent terms does not in our judgment assist the defendants. Suit No. 363 of 1942 was filed in the Belgaum Court for a share in the Sankeshwar property. It is undisputed that the Belgum Court was competent to entertain the suit with regard to the Sankeshwar property, and on contest the Belgaum Court decided that the adoption of the plaintiff was valid. Now, adoption under the Hindu law is a matter of status. By the performance of religious ceremony, a son born in one family is transferred to the family of the adopting party. As soon as the adoption ceremony is performed and the boy to be adopted is given over by the natural family to the adopting family, the ties between the adopted son and the natural family are severed and fresh ties are created between the adopting family and the adoptee. For all purposes (except as to prohibition against marriage with a girl in the natural family whom he could not have married and as to prohibition against adoption of a boy from his natural family whom he could not have adopted) he becomes as if he were born into the family in which he is adopted. From its very nature, therefore, an adoption cannot be partially valid and partially invalid. It may be wholly valid or wholly invalid.
The plaintiff having been adopted by Chandrabai as a son to her deceased husband, the effect of that adoption was to transfer him from his natural family into the family of Rajaram and the other members of his coparcenary. Judged by the test of the Digest of Hindu Law, the adoption of the plaintiff by Chandrabai could not have been regarded as valid, but according to the law prevailing in the Belgaum district the adoption was valid.
The conflict on the question about the validity of the adoption had to be resolved by reference to the domicile of the adopting family. On the assumption that Dattoba had not given up his original domicile, the plaintiff's adoption under the law of the domicile of the adopting family could not he regarded as valid. But the Belgaum Court held that the adoption was valid. It was open to the defendants in that suit to contend that the plaintiff's adoption was not valid because Dattoba and Rajaram had their domicile in the Kolhapur State and that domicile had not been abandoned bythem and adoption of the plaintiff with due ceremony by Chandrabai without express authority of Rajaram or the assent of the surviving coparceners could not confer upon the plaintiff the status of an adopted son in view of the provisions of the Digest of Hindu Law. But no such contention was raised and that contention must now be regarded as barred by the rule of res judicata.
It is true that at the time when the Belgaum Court decided suit No. 363 of 1942, the Belgaum Court quae the Kolhapur Court was a foreign Court. But even the judgment of a foreign Court by reason of the provisions of Section 13 of the Civil Procedure Code (which was in substance the same as the Civil procedure Code of India) was binding upon the Courts of a country except in cases provided under Clauses (a) to (f) of Section 13. It is not suggested in the present case that the judgment of the Belgaum Court was delivered by a Court which was not competent to pronounce it or was not given on the merits or that it was otherwise vitiated for reasons mentioned in any of the clauses of Section 13. The judgment of the Belgaum Court, being a judgment delivered on contest, must be regarded as binding between the parties to the suit in the Kolhapur Court.
8. There is another aspect of the plea of res judicata which must also be considered. During the pendency of the suit in the trial Court, the. former State of Kolhapur merged with the Indian Union. At the date when the Kolhapur Court decided the suit on 15-2-1951, the Belgaum Court was not a foreign Court quae the Kolhapur Court. The binding effect of the judgment in the Belgaum suit is therefore traceable either to Section 11 of the Civil Procedure Code which incorporates the rule of res judicata or to Section 13 of the Civil Procedure Code which makes foreign judgments binding except in certain circumstances.
In either case, the judgment of the Belgaum Court must be regarded as binding upon the parties in the suit in the Kolhapur Court and it must be held that the question as to the validity of the plaintiff's adoption is res judicata in the present suit.
9. In this connection, it may be pertinent to point out that in matters of personal relations and status there is no lex loci in India and every person is governed by the law of his personal status. If a family governed by Hindu law migrates from a part of India where one school of law prevails to a place where another school of law prevails, in matters of succession to land as well as to purely personal relations of the members, the family will be governed by the law of the domicile and not by the lex loci (see Mayne's Hindu Law and Usage, 11th edn., at pp. 90-91).
It was held by a division bench of the Madras High Court in -- 'Nataraja Pillai v. Subbaroya Chettiar', AIR 1939 Mad 693 (D), that a foreign judgment declaring a person to be the adopted son of a Hindu widow is binding on British Indian Courts in a suit relating to immovable property in British India. In that case, the dispute arose with regard to the properties of one Vasavambal Ammal widow of one Calve Sadashiva Chetti, a French Hindu resident of Pondicherry. Vasavambal Ammal had adopted the plaintiff as a son and in a suit field by the plaintiff against the defendant, the validity of the plaintiff's adoption was upheld by the Pondicherry Court. It appears that Vasavambal Ammal had adopted the plaintiff without the consent of the sapindas of her husband and without express authority from her husband.
Under the Mitakshara law as administered in the Madras Province, a Hindu widow is entitled to adopt a son to her deceased husband only inpursuance of an express direction of her husband or with the assent of the sapindas of her husband. But the Court in 'Nataraja Pillai's case (D)', held that the Pondicherry Court having decided that the plaintiff was duly adopted as a son by Vasa-vainbal Ammal, even though to the adoption there was no assent of the sapindas, that decision must be accepted as binding quae the properties in what then was British India. Leach C.J., delivering the judgment of the Court observed (p. 697):
'Coming now to the main question it must he accepted that the judgments of the French Court declaring that the respondents is the validly adopted son of Vasavambal Animal cannot be regarded as judgments in rem within the meaning of Section 41 of the Indian Evidence Act, but a declaration by a Court affecting the status of a person domiciled within its territory is treated by the comity of nations as being analogous to a judgment in rem, as was pointed out by the Bombay High Court in the recent case of -- 'Messa v. Messa' AIR 1938 Bom 394 (E), and governs succession to movable property.
Immovable property stands on a different basis and international law does not recognize any power in a Court to adjudicate upon the title or the right to the possession of immovable property situate outside the country of the Court. Chattels can be taken away but land cannot. But in recognizing only the personal law of Hindus, Muhammadans, Buddhists, Sikhs and Jains in matters of succession British India has added an exception to the general principle that the lex situs must be applied in questions relating to immovable property and this is pointed out in Mayne's Hindu Law and Usage, tenth edition, page 96....So far as such persons are concerned the governing factor is the personal law.
Inasmuch as the Courts of British India recognize the validity of a declaration of status by a foreign Court in a matter of succession to movable property in British India because the personal law applies, it seems, to me that they must do the same in a matter of succession to immovable property where the law requires the personal law to be followed. No reason exists for making any distinction. Treating the personal law as part of the lex situs the Courts of the country of domicile are best able to decide questions of status.'
It is evident that in India in matters of personal relations such as adoption by Hindus, what governs is not the lex loci, but the personal law or the lex domicili of the adopter. Nataraja's case (D), was taken to the Privy Council and the judgment in that case is reported in -- 'Nataraja Pillai v. Subbaraya Chettiar AIR 1950 PC 34 (F). Their Lordships of the Privy Council upheld the judgment of the Madras High Court. They held that where the personal status of the adopted son of a Hindu widow domiciled in Pondicherry was established by the French law, the right of the adopted son cannot be assailed on the ground that in order to succeed to immovable property in British India an adopted child must have been validly adopted in accordance with the municipal law of British India and that adoption by a widow not being recognised by that law, it could not be relied on in a claim to such property.
It is true that in Nataraja's case (D), the adoption was made by the widow Vasavambal Animal to herself and that adoption was valid according to the law administered in the Pondicherry territory. Such an adoption is evidently not recognised by Hindu law. Relying upon the rule that immovable property in British India must devolve, according to the law in force in British India, if wasurged before their Lordships that the plaintiff could not inherit or succeed to the property of Vasavambal Ammal as an adopted child. In dealing with the argument, their Lordships observed (p- 37):
'......it is argued that in order to succeed toimmovable property in British India an adopted child must have been validly adopted in accordance with the municipal law of British India: and that adoption by a widow not being recognised by that law, it could not be relied on in a claim to such property. Their Lordships do not accept this argument. The personal status of the respondent as the heir of Vasavambal falls to be ascertained by reference to French law and for the reasons already given his status has been established.
Their Lordships have not been referred to any authority to the effect that some principle vaguely analogous to that which for special reasons governed in English law, i.e., that an heir to succeed to English real estate must have been born in wedlock, has the effect of disentitling the respondent from claiming as the adopted son by the taw governing his status; and they can see no reason in principle why a person who, by the law of his domicile and thus (as is admitted) by the law applicable in British India, must he regarded as the adopted son of the owner of immovable property in India should he regarded as incapable of succeeding thereto any more than he would be incapable of succeeding to movables.'
10. Mr. Kalagate referred us to Dicey's Conflict of Laws, 6th edn., Rules 123 and 127, in support of his argument that the validity of the adoption of the. plaintiff must he judged by reference to the law in force in the former Kolhapur State. Rule 123, Sub-rule (1) states (p. 511) :
'If a person adopts a stranger in blood, the law of the domicile of the adopter and of the person adopted at the date of the adoption, determines (semble) whether the adopted person has the status of an adopted child.'
and in the notes to that rule, it is stated on page 513:
'...In some countries the lex domicilii of the adopter governs, in the others the lex domicilii of the child; in the United States, it seems that adoption can be successfully accomplished by compliance with the lex domicilii of either party. The prevailing opinion abroad, however, seems to be that the lex domicilii of both parties must be considered, and this appears to be the most convenient solution. 'The adoption alters the status of both parties, and therefore to attract extra-territorial validity, it must be valid according to each lex domicilii'.'
Reference in support of that proposition is made to Cheshire's 'Private International Law' at p. 524. Now, it is difficult to extract any principle from the observations relied upon which might support the contention raised by Mr. Kalagate. Under the English or the American law adoption has incidents and consequences which are different from those under the Hindu law. Whereas by adoption under the Hindu law, the boy adopted acquires the Status of a son born in the family of adoption and acquires all the rights in the property of the joint family, adoption under the English or the American system of law creates merely a relation of parent and child to persons who are strangers in blood and gives rise to mutual rights of inheritance in the event of death of one or the other.
Adoption under the English law or the American law can be made only by an order of the Court, whereas intervention of the Court is notnecessary for effecting an adoption under the Hindu system of law. When the question as to the extra-territorial validity of an adoption made under the English system of law arises, in substance the question which falls to be determined is whether the Courts of one country will give to the adoption made under order of a Court of another country the effect which the Courts of the former country do not recognise.
Adoption under the Hindu Law primarily affects the status of the adopted son and for its validity and effect, it depends upon the existence of certain conditions and performance of certain religions ceremonies. Once those ceremonies are performed, the adopted son for all practical purposes is regarded as born in the adoptive family. That, however, is not the effect of an adoption made under the English or American system of law. The question as to the extra-territorial validity of an adoption under the English or the American system of law has to be judged by reference to the law of the domicile of the adopter or the adoptee or both. Such an adoption may be valid in one country and not in another.
The validity of an adoption under the Hindu system of law must be governed by the law of the domicile of the adopting family and adoption under that system cannot in the absence of express legislation be valid in one country and invalid in another. In rule 127 of Dicey's Conflict of Laws, it is stated that all rights over or in relation to immovable property are (subject to the exceptions mentioned in the rule) governed by the law of the country where the immovable property is situate. But that rule contemplates existence of a law of the country which governs immovables in respect of certain matters.
If in the matter of adoption the law of the country is the personal law, then evidently there is no conflict between the lex loci and the lex domicili. As we have already observed, there is nothing like a lex loci in India for Hindus, Muslims,- Jains, Buddhists and Sikhs and, therefore, disputes relating to personal relations between parties belonging to these communities, will have to be judged by reference to the law of the personal status. In the present case, as we have pointed out already, the law of the personal status was the law of Kolhapur, but the application of that law is excluded by reason of the rule of res judicata to which reference is already made.
(The rest of the judgment is not material to the report).
In that view of the case, it must he held that the decree passed by the learned trial Judge is correct and the appeal filed by the defendants must he dismissed with costs.
11. Appeal dismissed.