1. The property in dispute in this appeal originally belonged to Kenchegowda who, it is in evidence, died early in the year 1900 or in the early part of 1901. He left a widow by name Chikkamma and according to the case of the plaintiff, Mallegowda, father of Defendant 4 Karigowda is their adopted son, Karigowda hypothecated the property on 10-8-1927 to the plaintiff and the plaintiff obtained a decree against him and purchased the property in execution of that decree. The husband of the second defendant claimed to be the reversioner of Chikkamma and obtained a decree against Defendant 4 in O. S. No. 224 of 1935-36 on the file of the Munsiff, Madhugiri. The plaintiff-appellant has filed the suit now in appeal for a declaration of his title to the plaint schedule property and for possession of the same. Second defendant contends that Mallegowda, father of Defendant 4, was not the adopted son of Kenchegowda and Chikkamma and that after the death of Chikkamma, her husband became entitled to the property as reversioner. Second defendant also pleads that the adoption was found to be not true in the suit filed by her husband against the 4th defendant.
2. The first and most important point for consideration in this case is whether the decree obtained against defendant 4 in which it was declared that his father Mallegowda was not the adopted son of Kenchegowda and Chikkamma is binding on the plaintiff and whether the plaintiff is precluded by principles of 'res judicata' from reagitating the matter over again. It has to be noticed that the hypothecation in favour of the plaintiff was much earlier than the suit filed by the husband of the second defendant against 4th defendant. It cannot be said that defendant 4 could represent the interests of the plaintiff in that suit. If such a thing is possible, it is easy for a person to allow a decree to be passed against him declaring that be is not the owner of the property after hypothecating the property to the hilt with the result that the hypothecate would be left without any remedy. The law, however, does not give room for the rights of a person like the plaintiff being defeated by a decree against the person who can under no circumstances be said to represent him in the previous suit. As observed in a similar case in --'Ramachandra Dhondo v. Malkapa', AIR 1916 Bom 204 (A),
'as a mere mortgagee, the plaintiff would not be bound by the earlier decision, because his title arose prior to the suit in which the decree against his mortgagor was obtained, and the mortgagor possessing only the equity of redemption had not in him any such estate as would enable him sufficiently to represent the mortgagee in the suit instituted after the mortgage.'
The question as to whether the plaintiff is bound by the previous decision to which his mortgagor was a party depends upon the construction of Section 11, Civil P. C. which is as follows :
'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.'
3. The matter directly and substantially in issue in this suit is the adoption set up by plaintiff. It was directly and substantially in issue in the previous suit and was heard and finally decided in a Court competent to try the present suit. The section would however not be applicable unless the plaintiff could be said to be claiming under the 4th defendant in the previous suit filed against the latter and it could be said that the plaintiff is litigating under the same title as that of 4th defendant in the previous suit. In a sense, it could be said that the plaintiff is a person claiming under 4th defendant since in execution of the decree against the latter, he has purchased all the interests he had. But as observed by Mahmood J. in --'Sita Ram v. Amir Begam', 8 All 324 (B),
'The plaintiff in the present suit could not be treated as a party claiming under his mortgagors, within the meaning of Section 13 of the Civil Procedure Code, and that section must be interpreted as if, after the words 'under whom they or any of them claim', the words 'by a title arising subsequently to the commencement of the former suit' had been inserted.'
Mahmood J. relies on the observations of an American writer Mr. Bigelow. It is worthwhile referring to what that learned author says on this point.
'Having ascertained the effect of judgment estoppels upon the actual parties to the record, let us now inquire into the effect and operation of personal judgments against those who were not strictly or nominally parties to the former suit, but whose interests were in some way affected by it. And first of privity, which, by Lord Coke, is divided into privity in law -- i.e. by operation of law, as tenant by the courtesy; privity in blood, as in the case of ancestor and heir; and privity in estate -- i.e. by the action of the parties, as in the case of Feoffee and feoffee. These divisions are only important in defining the extent of the doctrine of privity; and as the rules of law are not different in questions of estoppel in these divisions, it will not be necessary to present them separately. But it should be noticed that the ground of privity is property and not personal relation. Thus an assignee is not estopped by judgment against his assignor in a suit by or against the assignor alone, instituted after the assignment was made, though if the judgment has preceded the assignment the case would have been different; hence privity in estoppel arises by virtue of succession. Nor is a grantee of land affected by judgment concerning the property against his grantor in the suit of a third person begun after the grant. Judgment bars those only whose interest is acquired after the suit, excepting of course the parties.'
The decision in --'AIR 1916 Bom 204 (A)', has been followed in a later decision viz., --'Mt. Katari v. Om Prakash' : AIR1935All351 . It has been held in -- : AIR1935All351 , as follows :
'Any decision obtained against a mortgagorafter the execution of a mortgage-deed cannot operate as 'res judicata' against themortgagee, if he (the mortgagee) was not aparty to the suit. Much less will a decisionbetween a transferee of the mortgagor anda third person operate as 'res judicata' between the mortgagee and such transfereewhen the same question arises in a subsequent suit. The mortgagee cannot be considered to be litigating under the same titlein the subsequent suit as the mortgagor didin the earlier suit. Nor can he be said tobe litigating under the same title as thetransferee Of the mortgagor.'
The plaintiff in this case can in no sense be said to have been represented by the 4th defendant in the suit filed by the second defendant's husband against him as that suit was filed long after 4th defendant hypothecated the suit property in favour of plaintiffs. It cannot also be said that he is litigating under the same title as the 4th defendant did in the former suit. So the decision in the former suit against 4th defendant after the latter hypothecated the property to plaintiff cannot operate as res judicata against the latter. It is open in this suit to reconsider whether Mallegowda was the adopted son of Kenchegowda and Chikkamma, as contended for the plaintiff.
4. On this aspect of the matter, it is difficult to expect any direct evidence as the adoption took place about half a century ago. The oral evidence adduced on the side of the plaintiff amounts to the existence of reputation that Mallegowda was the adopted son of Kenchegowda and Chikkamma. There is hardly any doubt that Mallegowda was known to be the adopted son of Kenchegowda and Chikkamma in the village as some of the D. Ws., themselves refer to this as true and D. W. 3 Kenchamma admits that Chikkamma wanted her husband to take Mallegowda in adoption. There is also the hard fact that Mallegowda, a man of totally a different village in Tumkur Taluk went and stayed with Kenchegowda and Chikkamma in Kotti village, Sira Taluk. He was in possession and enjoyment of the property. The khata of the land was changed to his name & he was described in the Revenue Records as the adopted son of Kenchegowda. It is also in evidence that Chikkamma made statements admitting the adoption and this is found from her statements made as late as 1927 in her petitions Exhibits P and Q to the Sub-Division Officer and the Deputy Commissioner respectively. Her statements are consistent with her earlier statement in Ex. F dated 18-2-1906 made to the Amildar referring to the fact that she had in an earlier application desired that the Khatha should be changed to the name of Mallegowda her adopted son.
5. It was urged before me as a ground of argument that in the year 1901 she made statements in Exts. VI and V that she had no children. It must be observed that the statement made in 1901 by Chikkamma that she had no children is not inconsistent with her later statement that Mallegowda is her adopted son, as Mallegowda might have been taken in adoption by Chikkamma after 1901. There is thus ample evidence to prove that Mallegowda's father, defendant 4 was the adopted son of Kenchegowda and Chikkamma, and the plaintiff who has obtained a decree against defendant 4 on the foot of a hypothecation deed executed by him and purchased the property in execution of the decree is therefore the rightful owner of the suit property.
6. It is contended that as husband of the second defendant had obtained a decree against the 4th defendant declaring that the former was the owner of the property and not the latter the former ought to have been made a party by the plaintiff in the suit filed by him on the hypothecation deed and that the decree obtained against the 4th defendant alone cannot affect the rights of the former. It is contended that if the 4th defendant had sold the property to the husband of second defendant, the decree obtained by plaintiff against the 4th defendant alone subsequent to the sale cannot bind the husband of the second defendant. This is no doubt so, but it cannot be said that the rights of the 4th defendant, whatever they might be were conveyed to the husband of the second defendant, in any manner. The plaintiff had the right toproceed against the property hypothecated by the 4th defendant who was the owner of the property and this right to recover his money by sale of the hypothecated property cannot in any way be affected by a mere decree obtained by a stranger against the hypothecator declaring that he is not the owner of the property. The following observations in --'AIR 1935 All 351 (C)', support this view. 'Mt. Katoria did not acquire the rights of Ram Chandar by virtue of the decree in Dal Chand's suit which merely created a bar against Dal Chand and those claiming under him.'
It is only necessary to state that the husband of the second defendant was in the position of Mt. Katori and that Ram Chandar was in the position of 4th defendant. Second Defendant's husband cannot be said to have acquired the rights of 4th defendant by virtue of a decree which declared that he had no rights. Second Defendant's husband was not a necessary party to plaintiffs suit as he had not acquired the rights of the hypothecator, i.e. of 4th defendant. Mallegowda the adopted son of Kenchegowda, was the rightful owner of the property. His son the 4th defendant became the owner after his death. 4th Deft, hypothecated the property to plaintiff and plaintiff has become the owner of the hypothecated property on his purchasing it in execution of the decree obtained by him against the 4th defendant. The suit filed against 4th defendant by second defendant's husband after 4th defendant had hypothecated the property to plaintiff cannot bind the latter. Plaintiff is entitled to a declaration that he is the owner of the suit property and for possession of the same. The learned Subordinate Judge was therefore wrong in dismissing plaintiff's suit, and allowing the appeal filed against the decision of the learned Munsiff who had decreed the plaintiff's suit as prayed for.
7. The appeal is allowed with costs, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff are restored.
8. Appeal allowed.