S.M. Samvatsar, J.
1. This appeal is filed by the defendants.
2. The plaintiff-respondent Sadashiv filed a suit against the defendants Surajbai, now deceased, and her daughter Gitabai, for possession of a house situated at Gotampura and some movable property. He alleged in the plaint that he was the adopted son of one Jugalkishore who died in the year 1918 leaving behind besides himself, his widow Kasturibai; that Kasturibai and the plaintiff remained in possession of the property left by the deceased Jugalkishore; that Kasturibai died on 17-9-1947 and that the defendant No. 1 who is the daughter of one Shankarlal, the deceased brother Jugalkishore and defendant No. 2, the daughter of defendant No. 1, taking advantage of the absence of the plaintiff, took unauthorized possession of the property in suit; that on being called upon to restore it, they refused to do so. Hence the plaintiff has filed this suit.
3. The defendant No. 2 was a minor on the date of the suit and was represented by a guardian-ad-litem who generally denied the plaintiff's claim. The defendant Surajbai filed a detailed written-statement in which she denied the adoption of the plaintiff by Jugalkishore and contended that he was kept with Jugalkishore by his father Narayan, only for the purpose of receiving education and for this reason the plaintiff always described himself as the son of Narayan. She denied that she was in possession of the movable property belonging to Jugalkishore and denied the plaintiff's allegation that the house in dispute belonged to the deceased Jugalkishore. She contended that the house was a temple and was ancestral property of deceased Jugalkishore and Shankarlal. The plaintiff had therefore no claim to it.
4. The defendant Surajbai further alleged that Kasturibai, the widow of deceased Jugalkishore had executed a will and had bequeathed all the property to the defendant No. 2. She also vaguely denied that the plaintiff's claim was within time.
5. In the special pleading, the defendant Surajbai contended that Jugalkishore was an Inamdar and that there could be no adoption in the family without the previous permission of the Government. She also alleged that she had filed a suit against the plaintiff in the Court of the Munsif, Hatod, being Civil Suit No. 48 of 1940, in which the issue of adoption was specifically raised and decided against the plaintiff, that this decision operated as res judicata and barred the trial of the plea that plaintiff was the adopted son of deceased Jugalkishore.
6. The trial Court decreed the plaintiff's claim. In doing so, it held that the plaintiff was proved to be the adopted son of Jugalkishore; that the claim was neither barred by res judicata nor by the law of limitation. It further held that the defendants were in possession of seven Chasmas of house belonging to Jugalkishore and that the plaintiff's claim with respect to the movable property was not proved. As regards the will executed by the deceased Kasturibai, it was held that Kasturibai being a Hindu widow, was not competent to bequeath the property and that the will was therefore inoperative and did not affect the plaintiff's claim.
7. Aggrieved by this decree the defendants have preferred this appeal.
8. The main contentions raised in this appeal by Mr. Patel, learned Counsel for the appellants were: (i) that the plaintiff was not proved to be the adopted son of deceased Jugalkishore; and (ii) that in any event, the decision of the Munsif Hatod, in Civil Suit No. 48 of 1940 on this issue was conclusive and debarred the plaintiff from raising it again. Mr. Patel also contended that the three Chasmas house attached to the temple was purchased by Jugalkishore and Shankarlal jointly and that in any event, a decree for exclusive possession of the seven Chesmas of the house passed by the trial Court could not be maintained.
9. The most important issue in this case is Issue No. 1 which is: Whether the plaintiff is the lawfully adopted son of deceased Jugalkishore? The defendants have denied the factum of adoption and have challenged the validity only on the ground that Jugalkishore was an Inamdar and that no adoption in his family could be validly made without the previous permission of the Government.
10. According to the plaintiff's case, Bis adoptioh took place sometime in the year 1915. To prove his case he examined some witnesses and also relied upon some documentary evidence. (After discussing oral as well as documentary evidence, his Lordship proceeded ;) In appreciating the evidence produced by the plaintiff in support of his adoption, it must be borne in mind that the alleged adoption took place in the year 1916, that is, about 40 years back, and has since then been acknowledged by the relations and members of Jugalkishore's family & has also been recognized by the public authorities. Being an adoption in an Inamdar's family, it required the sanction of the Government and it appears from Ex. P-8 and other documents that not only such sanction was given by the State but the adoption was also recognized as a valid adoption and effect was given to it by mutating the Inam lands of Jugalkishore in the name of the plaintiff.
11. It is no doubt true as held by the Privy Council in Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79 (A), that the onus of proving an adoption is on the party setting it up; but it is also true that if the plaintiff's adoption is an old one and the plaintiff had been treated as an adopted boy by the members of the family and in public transactions, then a presumption arises in his favour. In Venkata Scetharama Chandra v. Kanchumarthi Raju, AIR 1925 PC 201 (B), their Lordships observed:
''It stands to reason that after such a long term of years, and the variety of transactions of open life and conduct, upon one footing alone namely, that the adoption was recognised as a valid act, the burden, resting altogether apart from, the law of limitation, upon any litigant who challenges the authority of an admitted adoption, is indeed of the heaviest order.'
12. To the same effect are the observations of Mahajan J., as he then was, in Panna Lal v. Chaiman Parkas, AIR 1947 Lah 54 (C). The learned Judge has also held in that case that in respect of an old adoption strict proof of the performance of the ceremonies cannot be demanded.
13. The authorities thus seem to lay down that where the alleged adoption is an old one and has taken place many years ago, strict proof of giving and taking or performance of the ceremonies necessary to constitute valid adoption is not necessary and may be difficult to obtain. If the alleged adopted son has been treated as such for a large series of years, very slight evidence is sufficient to prove the adoption.
14. The adoption in the present case is an old one and has also been proved by the plaintiff by examining some of the witnesses who were present when the ceremonies were performed. There is also evidence to prove that Bhuribai, the widow of Shankarlal and Kasturibai, the widow of Jugalkishore acknowledged the adoption. Even the appellant Kaluram admitted that the plaintiff was adopted by Jugalkishore during his life-time. The adoption was sanctioned by the State Authorities and the plaintiff was recognized by them as the adopted son of Jugalkishore during the Inam Inquiry. They found that the plaintiff was the adopted son of Jugalkishore and mutated his name on the Inam lands which were at one time held by Jugalkishore. The evidence on record is thus sufficient to hold that the plaintiff is the adopted son of the deceased Jugalkishore.
15. The defendants have challenged the validity of adoption contending that being an adoption in an Inamdar's family, the plaintiff's adoption was not valid because it was made without obtaining the previous permission of the State. At the stage of arguments Mr. Patel, learned Counsel for the appellants, did not press this point. He frankly conceded that the sanction of the State was necessary only with respect to the Inam lands and that in the present case the State had by a post facto sanction, recognised the plaintiff's adoption and had directed his name to be mutated in place of deceased Jugalkishore as an Inamdar. The point having thus been conceded, no longer survives and needs no further consideration.
16. The next point that arises for consideration is, whether the decision in Civil Suit No. 48 of 1940 operates as res judicata and debars the plaintiff from contending in this suit that he was the adopted son of deceased Jugalkishore.
17. The principle of res judicata is that if the res or the thing directly and substantially in dispute has already been adjudicated upon by a competent Court, it cannot be litigated again. To apply this principle, it is therefore necessary that the Court which adjudicated upon the, dispute must be a Court of competent jurisdiction. For it cannot be disputed that a decree passed by a Court which had no jurisdiction to entertain the suit, is a nullity and binds no one. The first question that therefore arises for consideration is whether the Munsif Hatod who decided Civil Suit No. 48 of 1940 was competent to entertain it.
18. Section 9, Civil Procedure Code provides that the Courts shall have jurisdiction to try all suits of Civil nature excepting suits of which their cognizance is either expressly or impliedly barred. At the material time suits with respect to adoption, succession and maintenance in the families of Jagirdars and Inamdars were outside the jurisdiction of the Civil Courts. Section 99 of the Jagirdar Manual which was the law prevailing in Holkar State and which applied both to Jagirdars and Inamdars, provided as follows :
'Questions regarding adoption, succession and maintenance in a Jagirdar's family shall be outside the jurisdiction of Civil Courts. Such questions shall be decided departmentally.'
19. It was conceded by; Mr. Patel, learned counsel for the appellants during the course of his arguments that the suit filed by Surajbaiagainst the present plaintiff in the Hatod Court in the year 1940 was a suit with respect to the Inam lands. This is also borne out by the recitals in the plaint filed in that suit, copy of which is produced at Ex. D/3-2 and from, the written statement, copy of which is, produced at Ex. D/3-1. As a matter of fact the defendant had in his written statement specifically contended that the Court had no jurisdiction to entertain the suit, as it pertained to Inam lands. The question of adoption which was raised in that suit was raised vis-a-vis the Inam lands and in view of the provisions of Section 99 of the Jagirdar Manual, the Civil Court had no jurisdiction to adjudicate upon it. It was a matter which had to be dealt with de-partmentally. It appears from Ex. P-8 that the department had examined the question of plaintiff's adoption and had recognized it as valid. The Munsif, Hatod, was under thecircumstances not competent to adjudicate upon the issue involving the validity of adoption of the plaintiff. The decision of this issue cannot be regarded as a decision by a competent Court and treated as conclusive and binding on the plaintiff.
20. The matter can also be considered from another aspect. Section 11 of the Civil Procedure Code provides that in 'order that the previous decision should operate as res judicata, the Court deciding it must also be shown to be competent to entertain the subsequently filed suit. The value of the claim in the present suit was Rs. 6,500 whereas the value of the suit filed in the Hatod Court was 150. The present suit, even if it was filed in the Hatod Court, could not have been entertained by it. The decision of the Hatod Court in Civil Suit No. 48 of 1940 cannot under thecircumstances be held to be conclusive under Section 11, Civil Procedure Code.
21. Mr. Patel, learned Counsel for the appellants contended that the value of the property has gone high now and that if the suit for possession of the present property were to be instituted in the year 1940, the Hatod Court would have been competent to entertain it. This argument is based on surmises and not on any factual data. It may be that the price of the property has gone up but there is nothing on record to indicate that the value of the property in suit would in the year 1940 have been less than Rs. 3,000. Under thecircumstances the contention of Mr. Patel cannot be entertained.
22. The Munsif Hatod was not competent to try the issue relating to adoption in Civil Suit No. 48 of 1940. He also could not haveentertained the present suit and for both these reasons the decision given by that Court cannot be regarded as conclusive and binding. The rule of res judicata does not operate in the present case and the trial of the issue relating to adoption in the present case is not barred by Section 11, Civil Procedure Code.
23. The last point that arises for consideration is, whether the three Chasmas of house adjoining the temple which was purchased in the year 1898, vide D-17, was theproperty of Jugaikishore or was joint property of both Jugaikishore and Shankarial. The sale-deed which is produced at Ex. D-17 is in favour of both Jugaikishore and Shankarial and prima facie shows that the property belonged to both of them. The trial Court has however proceeded on the assumption that this property was assigned to Jugaikishore in the partition between Jugaikishore and Shankarial.
In this respect the lower Court appears to have laboured under some misapprehension, of facts. The property was purchased in the year 1898, whereas both the parties agree that the two brothers had separated long before, that is, in Samvat Year 1944. There was no subsequent partition between Jugaikishore and Shankarial and no basis for the assumption, that the whole of the seven Chasmas of house was assigned to Jugaikishore. The three Chasmas of house belonged to both the brothers and must now be treated as joint property of the plaintiff and the defendants.
On this view of the matter, the decree passed by the trial Court for possession of seven Chasmas of house in favour of the plaintiff cannot be supported and will have to be modified. I hold that the plaintiff is entitled to four Chasmas of house described as Temple. He is also entitled to one-half share in the remaining three Chasmas which were acquired by Jugaikishore and Shankarial, vide D-17. The plaintiff has not prayed for partition of this property but has asked for its exclusive possession. I think the plaintiff is not entitled to exclusive possession of this property but can be put in joint possession of it along with the defendants.
24. The result is that the appeal is partially allowed. The decree of the trial Court is maintained so far as the Temple property is concerned. So far as the remaining three Chasmas acquired, vide D-17, are concerned, the plaintiff's claim is decreed for joint possession. As the appellants have succeeded in part, I direct that they shall pay half the costs incurred by the respondent in this appeal and bear their own.
P.V. Dixit, J.
25. I agree.