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PETITIONER: RAJENDRA KUMAR

       Vs.

RESPONDENT: KALYAN (D) BY LRS.

DATE OF JUDGMENT:       02/08/2000

BENCH: S.B. Majumder., & Umesh C. Banerjee.

JUDGMENT:

BANERJEE,J.

The  cardinal issue in this appeal by the grant of special  leave against the judgment of Bombay High Court (Nagpur Bench) pertains to   the  applicability  of  the   doctrine  of  Resjudicata   or Constructive  Resjudicata envisaged under Section 11 of the  Code of   Civil   Procedure  read   with  the  Explanation   including Explanation  VIII thereto in terms of the provisions of Amendment Act  of  1976.   In order, however, to appreciate the  issues  as above,  it would be convenient to advert to the contextual  facts at    this    juncture.    The     facts   disclose   that    the plaintiff/appellant  herein  instituted a civil litigation  being Suit  No.13 of 1974 against the denial of claim for possession of the  property.   The  plaintiff  alleged that  he  was  taken  in adoption  by  one  Radhabai on 25th April, 1967 who  however  was married  to Mahadeo.  Admittedly Mahadeo died on Ist August, 1919 and  the property being the subject matter of the suit,  belonged to  one Mohanlal who died in 1923 leaving him surviving his widow Kisnibai  who died in 1951.  The plaintiff/appellants claim  was that  his  adoptive father Mahadeo, was adopted by Mohanlal as  a son  to him during his life time and after the death of Mohanlal, the  family  comprised of only two members, namely, Kisnibai  who was  Mohanlals  widow  and  Radhabai   who,  according  to   the plaintiff, was Mohanlals predeceaseds son Mahadeos widow.  The first  defendant Ramgopal claimed to be adopted son of  Mohanlal, though  according  to  the  plaintiff, there  was,  in  fact,  no adoption.   The factual score further depicts that the family  of Mohanlal had migrated from Jaipur and was governed by the Benaras School  of  Hindu Law.  The plaintiff contended  that  Ramgopals adoption  stands vitiated for want of authority from Mohanlal  to Kisnibai  to  adopt  a  son to him.  Ramgopal,  however,  as  the records  depict used to live with Kisnibai and Radhabai, and  had an  ante- adoption deed executed by Kisnibai on December 9, 1923. The  document  recited  that Ramgopal was to be adopted  only  in respect  of  half of the property of Mohanlal and Mahadeos  line was  to  be continued by his widow Radhabai taking in adoption  a suitable  boy  at  any  time   beyond  Kisnibais  life-time.   A kararnama  was  also  got executed on December 10,1923  with  the recitals  to  the  above  effect.   Factual  score  depicts  that Radhabai  on  June 29, 1926 gave a public notice  declaring  that Ramgopal  was  in fact the son of Ramden alias Kalyanrao and  was not  the  adopted  son  of Mohanlal and had no  interest  in  the property  of Mohanlal.  A deed of partition was executed  between the  parties.   Subsequently, a civil suit bearing No.87 of  1929 was  instituted  by  Kisnibai  for  setting  aside  the  deed  of

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partition on the ground that Radhabai should not get any right to the  property  belonging  to  Ramgopal because  Mahadeo  was  not Mohanlals  adopted son.  Ramgopals adoption was also challenged in  the suit.  Ramgopal, however, asserted that he was adopted by Mohanlal  himself  in  Marwad which however, run counter  to  the recital  in  the deed of adoption.  The suit (No.87 of 1929)  was decreed  against  Radhabai and an appeal taken therefrom  to  the Court  of the Judicial Commissioner, being appeal No.  19 of 1932 was  also  dismissed.   According  to the  plaintiff  herein  the decision  in that suit did not bind the plaintiff since his claim is  lodged  through  Mahadeo and not his heir  Radhabai  and  the observations  of  the  learned   Additional  Commissioner,   that Radhabai  was  entitled  merely  to maintenance and  not  to  any interest  or  share  in the property would not bind him.   Be  it noted,  however, that Ramgopal, was joined as a party thereto and it  is  the plaintiffs definite case that Radhabai having  taken the plaintiff in adoption on April 25, 1967, the plaintiff became entitled  to seek possession of the property left by Mohanlal and he  therefore  brought  the present suit for  possession  of  the properties as mentioned in the schedule to the plaint.

Incidentally,  the records depict that Ramgopal also initiated  a civil  action  being suit No.157A of 1935 wherein one  Balmukund, Kisnibai  and Radhabai were joined as defendants.  In the  action an  issue  pertaining  to  question  of  Ramgopals  adoption  to Mohanlal  was raised and the same was answered in the affirmative whereas  Ramgopals  adoption  to Kisnibai  was  negatived.   The records  depict  that  the said finding stands  affirmed  by  the Appellate Court in Appeal No.2A of 1939.

The  learned trial Judge in suit No.87 of 1929 upon consideration of  the evidence tendered in the suit concluded the following  on the factual score:

(i)  the first defendant was not proved to be the Kulmukhtyar  of Kisnibai in respect of Mohanlal’s property;

(ii) Mohanlal was governed by Benaras School of Hindu law and not the Bombay School of Hindu Law;

(iii)  Radhabai  was not living as a member of  Mohanlal’s  joint Hindu family;

(iv)  there  was no authorisation to Radhabai to adopt a  son  to Mahadeo and though the factum of plaintiff’s adoption by Radhabai was established, his adoption was not legal and valid;

(v)  the  partition between Radhabai and Kisnibai was not  proved and  it was also not proved that the first-defendant fraudulently got an adoption deed in his favour from Kisnibai;

(vi)  the adoption by Mohanlal of Ramgopal, the first  defendant, was held proved.

In the present suit, the learned Trial Judge, while rejecting the plea   that   the  suit  was  barred   by  time  and   that   the first-defendant  acquired title by adverse possession, held  that the  decision in Civil Suit No.87 of 1929 and First Appeal  No.19 of  1932, as well as the decision in Civil Suit No.  157 of  1935 and  the decision in Civil appeal No.2-A of 1939, operated as res judicata on the question of the adoption of Ramgopal by Mohanlal, and  Mahadeo not being the adopted son of Mohanlal and  dismissed the suit for possession.

The  dismissal  order,  however, was challenged in  first  Appeal

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No.13  of 1974 before the High Court (Nagpur Bench) but same also did  not  find favour with the Appellate Court,  resultantly  the appeal was dismissed and hence the appeal before this Court.  The issue  pertaining to the doctrine of res judicata thus calls  for discussion  at this stage.  The factual backdrop has already been noticed  herein  above  and as such, we  refrain  ourselves  from dilating  thereon  in detail but by reason of the specific  point for  discussion, the relevant issues raised in Suit No.87 of 1929 before  the  Sub-Judge, Betul, ought to be noticed.   The  issues relevant in the present context being :

I.  Whether the Plaintiff No.2 was adopted as a son by Mohan Lal?

IIA  Was  Mahadev the husband of the Defendant, adopted by  Mohan Lal 20 years ago at Tholai in the Jaipur Estate?

IIB Was Mahadev an orphan at the time of his adoption?

IIC Was his adoption vaild?

The  issue  No.I as above was answered in the affirmative by  the Trial  Judge and the issue Nos.IIA, IIB and IIC were answered  in the  negative.   Needless to say that the Plaintiff No.2  in  the Suit  was Ram Gopal and the Defendant was Radhabai.  The findings of  the learned Trial Judge in the suit of 1929 leaves no  manner of  doubt that Ramgopal was found to be the adopted son of  Mohan Lal  and  Mahadeos  stated  adoption was not  proved  and  hence answered  in the negative.  The 1939 appeal arising out of  Civil Suit  of  1935 though raises more or less similar issues  but  to avoid  prolixity  we  need not dilate thereon but deal  with  the issues  as  raised  in the 1968 Suit which has been found  to  be barred  by the doctrine of res judicata.  The relevant issues  of 1968 suit are:

I  Does the Plaintiff prove that Radhabai was authorised to adopt a son by Mahadeo?

II  Does the Plaintiff prove that he was adopted by Radhabai  and his adoption is valid and legal?

III Does the Plaintiff prove adoption of Mahadeo by Mohan Lal?

IV Does the Defendant No.1prove his own adoption by Mohan Lal?

V Is the adoption of Defendant No.1 by Mohan Lal valid and legal?

VI  Is the decision given in Civil Suit No.87 of 1929 binding  on the Plaintiff?  VII Is the decision given in Civil Suit No.157 of 1935 is binding on the Plaintiff?

The  learned  Trial Judge in the present suit, being the  subject matter of the appeal presently, answered the issues as below:

I  in  the affirmative.

II The factum of adoption is proved but the adoption is not legal and valid.

III .in the negative.

IV .in the affirmative.

V .in the affirmative.

VI .in the affirmative.

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VII .in the affirmative.

-  and  on the basis whereof dismissed the suit.  Records  depict that the Appellate Court confirmed the decree of dismissal of the suit.

The  Appellants  definite  assertion is that Mohan  Lal  adopted Mahadeo in 1910 much before his death in the year 1923.

Admittedly  Mahadeo  pre-deceased  Mohan Lal as he died  on  20th August, 1921 and the Appellants (Plaintiff) adoption by Radhabai is  said  to have taken place on 25th April, 1967.  There  is  in fact  a deed of adoption.  Exhibit 116 brought before the learned Trial  Judge corroborated such a state of affairs.  The deed also was  registered and by reason of registration and other available evidence  on record no exception can be taken to the observations of the learned Trial Judge that there is overwhelming evidence on record  to  prove  the  factum of adoption.   There  is  existing evidence  on  record as regards the adoption ceremony.   But  the issue herein does not pertain to the validity and legality of the adoption  in  terms  of  the registered deed  in  favour  of  the plaintiff  by  Radhabai  and  it is on  this  score  that  strong reliance  was  placed  on  Section 8 of the  Hindu  Adoption  and Maintenance  Act and it is on this count the provision of the Act (Section  8)  would not have any application since the widow  has undoubtedly  a  right to adopt the child for herself but  in  the event  the child was to be adopted to the husband the statute  is otherwise  silent  and  thus  the law as it stood  prior  to  the enactment  of the legislation as regards the adoption would  have to  be  taken recourse to for proper appreciation.  The  Shastric law  provides an express authority by the husband to the widow to adopt  a  child and in the contextual facts there is not even  an iota  of  evidence  in regard thereto as such adoption  has  been stated  to be not legal and valid by both the courts below and we do  also feel it inclined to accept the same.  The submissions of Mr.  Sampath on this score thus stands negatived.

The  discussion  above could have been omitted but by  reason  of judicial  ethics since very strenuous submission has been made by Mr.   Sampath in support of the Appeal, as regards the merits  of the matter.

The doctrine of res judicata has received a statutory sanction in the  Code as a matter of prudence and to give due weightage to  a finding  or a decision so as to reach a finality in the matter of a  dispute between the same parties or litigating under the  same parties.   The  doctrine thus is to achieve finality  of  dispute between  the parties being a principle of prudence so as to  give efficacy to a finding of the Court rather than permit the parties to  go  to trial more or less on the same issues over  again  and thus  introducing  a possibility of conflict of views.   Judicial verdict has its special sanctity and cannot be the subject matter of  discussion at any future time involving identical or  similar issues.   The  facts in issue is one where more than one  attempt has  been  made  to establish a fact and in  every  attempt  that particular  fact  stands  negated.  In the present  context,  the issue  is  placed before the Apex Court, and as  such  therefore, should  have  to be considered in its proper perspective so  that similar  issues are not raised before the Court for  adjudication on  occasions more than one since it has a salutory effect on  to the jurisprudential system of the country.  The 1976 Amendment to the  Code  and  the  introduction of Explanations  VII  and  VIII clarify  the  dual  objective as noticed  above.   The  objection howsoever  technical  it  may  be,  ought  not  to  outweigh  the

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reasonableness of the doctrine.  Raghubir Dayal, J.  speaking for the  majority  view in off cited Gulab Chands  case  (Gulabchand Chhotalal  Parikh  v.   State of Gujarat:  AIR 1965 SC  1153)  in paragraphs 60 and 61 observed:

As  a result of the above discussion, we are of opinion that the provisions  of  S.11 CPC.  are not exhaustive with respect to  an earlier  decision  operating  as res judicata  between  the  same parties on the same matter in controversy in a subsequent regular suit  and  that  on the general principle of  res  judicata,  any previous  decision on a matter in controversy, decided after full contest  or  after affording fair opportunity to the  parties  to prove  their case by a Court competent to decide it, will operate as  res  judicata  in  a  subsequent regular  suit.   It  is  not necessary  that  the  court  deciding   the  matter  formerly  be competent  to  decide  the  subsequent suit or  that  the  former proceeding  and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial.

We  do  not  see any good reason to preclude  such  decisions  on matters  in controversy in writ proceedings under Articles 226 or 32  of  the  Constitution  from  operating  as  res  judicata  in subsequent  regular  suits  on the same  matters  in  controversy between  the same parties and thus to give limited effect to  the principle  of the finality of decisions after full contest.   We, therefore,  hold that, on the general principle of res  judicata, the  decision of the High Court on a writ petition under  Article 226  on the merits on a matter after contest will operate as  res judicata  in  a subsequent regular suit between the same  parties with respect to the same matter.

The  doctrine  of  res  judicata  or  constructive  res  judicata predominantly  is  a  principle  of equity,  good  conscious  and justice.   It  would  neither  be   equitable  nor  fair  nor  in accordance  with  the  principles  of   justice  that  the  issue concluded  earlier ought to be permitted to be raised later in  a different proceeding.  It is on this context that the Trial Judge stated as below:

It  is  clear  from  the judgment in Civil  Suit  No.87/29  that Mahadeos  adoption  was the point in dispute.  Thus, it is  also clear  that the question of Mahadeos adoption is the  contention in  both  the suits.  Again we find that the other questions  are also  common  in  that  suit and in this  suit  the  question  of adoption  of present Defendant No.1 by Mohanlal, the question  of validity  of the adoption deed, dated 9th December, 1923 and  the question  of validity of the Kararnama, dated 10th December, 1923 were  also  directly or substantially in issue in the said  suit. This,  in  that suit the matter in controversy was decided  after full  contest and after affording fair opportunity to the parties to prove their case.  Hence despite the fact that Betul Court was not competent to try the suit before us the questions referred to above  which  were  decided  in that suit would  operate  as  res judicata,  by the general principles of res judicata, in view  of the  observations of the Supreme Court.  In that previous suit we find  that  it has been decided that Mahadeo was not the  adopted son  of  Mohanlal and secondly, the Defendant No.1  Ramgopal  was adopted  son  of Mohanlal.  Thirdly, the question  the  so-called validity  of adoption deed, dated 9th December, 1923 was  decided and  it was decided that Kararnama, dated 10th December 1923  and adoption  deed were not binding on the Defendant No.1 who was the plaintiff  No.2  in that case.  Hence all these questions  cannot now  be agitated in the suit before us and the decisions on those points   would  operate  as  res   judicata.   The   civil   Suit No.157-A/1935 was filed by the Defendant No.1 Ramgopal, as stated

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above,  against Kisanibai and Radhabai and three others, now  the question  is as to whether the decision in this Suit  No.157-A/35 operates  as  res judicata.  In that suit Radhabai was  a  party. The issues were

(1)  Whether  the  plaintiff  (Defendant No.1in  this  suit)  was adopted by Mohanlal?

(2)  Whether the adoption deed, dated 9th December, 1923 and  the Kararnama,  dated  10th  December,  1923   were  binding  on  the plaintiff (Defendant No.1 in this suit)?

It has been held that the Plaintiff (Defendant No.1 in this suit) was  adopted by Mohanlal.  Secondly, the adoption deed dated  9th December,  1923and  the Kararnama, dated 10th December 1923  were held  to be not binding on the plaintiff (Defendant No.1 in  this suit).   This decision was confirmed by the High Court in  Second appeal  No.466/1940 vide Exh.173 certified copy of the  judgment. In  my  view, the decision on these points would operate  as  res judicata against the plaintiff.  The reasons for my coming to the conclusions  are  the same which I have discussed while  deciding the  question  of res judicata regarding decision in  Civil  Suit No.87/1929.   I, therefore, hold that the decisions in Civil Suit No.87/29  and  Civil Suit No.157-A/1935 are binding on  plaintiff and  they  operate as res judicata.  I, therefore,  answer  issue Nos.  7,18 and 19 in the positive.

The Appellate Court also relying upon Explanation VIII to Section 11  of  the  Code,  negated  the  contention  of  the  Plaintiff- appellant herein.  The Appellate Court very rightly observed that the  general doctrine of res judicata could not be applied as has been  so applied by the learned Trial Judge but Explanation  VIII to  Section  11 as stated by the Appellate Court and  rightly  so makes  the  objection disappear by reason of its widest  possible conotation.   The  Explanation VIII as inserted by the  Amendment Act of 1976 reads as below:

Explanation VIII  an issue heard and finally decided by a Court of  limited  jurisdiction, competent to decide such issue,  shall operate  as  res judicata in a subsequent  suit,  notwithstanding that  such Court of limited jurisdiction was not competent to try such  subsequent  suit or the suit in which such issue  has  been subsequently raised.

The  expression  Court of limited jurisdiction ought not to  be given  a  limited  or restrictive interpretation and  as  noticed above  but widest possible amplitude ought to be given on to  the expression  above.   The  High  Court upon  reliance  on  various decisions of different High Courts of the country observed:

We  find  that  merely because in the present case  the  Courts, which  decided  the earlier suits could not have entertained  the present  suits,  the finding recorded by them would not cease  to operate  as  res  judicata,  in   view  of  the  introduction  of Explanation  VIII  to section11 of the Code of  Civil  Procedure. The submission, however, on this point on behalf of the plaintiff was  that  no  retrospective  operation could  be  given  to  the Explanation  VIII inserted by Act 104 of 1976 and the suit  which was  instituted  in the year 1968 would have to be decided as  if Explanation  VIII to section 11 was not on the statute book.  The question,  whether  retrospective  effect   should  be  given  to Explanation  VIII  would  depend on the provisions  of  the  1976 Amending  Act.  Section 97 of Act 104 of 1976, so far as relevant runs as follows:-

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97(1)  any  amendment  made, or any provision  inserted  in  the principal  Act by a State Legislature or a High Court before  the commencement  of  this  Act  shall,  except in  so  far  as  such amendment  or provision is consistent with the provisions of  the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of the Act have come into force  or the repeal under sub- section (1) has taken effect, and without  prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,

(a)  the  amendment  made  to  clause (2) of  Section  2  of  the Principal  Act  by  Section 3 of this Act shall  not  affect  any appeal  against  the  determination of any such  question  as  is referred  to  in section 47 and every such appeal shall be  dealt with as if the said section 3 had not come into force;

(b) ------------------------------to

(zb)   ---------------------------------.

(3)Save  as otherwise provided in sub-section (2), the provisions of  the  principal  Act, as amended by this Act, shall  apply  to every  suit,  proceeding, appeal or application, pending  at  the commencement,  notwithstanding the fact that the right, or  cause of action, in pursuance of which such suit, proceeding, appeal or application  is  instituted  or filed, had been acquired  or  had accrued before such commencement.

Obviously, the effect given to Explanations VII and VIII inserted in  Section  11 of the Code of Civil Procedure by the  amendment, would  act  come  within the sweep of sub-section  2(af)  of  the amending  Act  and it would be regulated by sub- section  (3)  of section  97.  As on the date of the commencement of the  Amending Act the present suit was pending in the Court of the Civil Judge, Senior  Division, Amravati, the amended provisions of section  11 would  apply  to  it.   Sub- section (2) of  section  97  of  the amending  Act regulates pending matters with reference to several provisions  of  the  principal  Act, but does not  refer  to  the amendment brought about in section 11 of the principal Act, which consequently  would  come within the sweep of sub-section (3)  of section  97  of  the  Amending Act  and  would,  therefore,  have retrospective  operation,  so  long as the matter  in  which  the question  of application falls to be considered in pending at the time of commencement of the Act.

We  do feel it expedient to record that the analysis as  effected by  the  High  Court  stands acceptable and as  such  we  refrain ourselves from dilating on this aspect of the matter any further. It  is pertinent to add in this context that some differentiation exists  between  a  procedural statute and statute  dealing  with substantive rights and in the normal course of events, matters of procedure  are  presumed to be retrospective unless there  is  an express  ban  on  to its retrospectivity.  In this  context,  the observations  of  this  Court in the case of Jose  Da  Costa  and Another  v.  Bascora Sadasiva Sinai Narcornim and Ors 1976 2  SCC 917  is  of  some relevance.  This Court in paragraph 31  of  the Report observed:

Before  ascertaining  the  effect of  the  enactments  aforesaid passed by the Central Legislature on pending suits or appeals, it

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would  be  appropriate  to  bear  in  mind  two  well-established principles.   The  first  is that while provisions of  a  statute dealing  merely  with matters of procedure may  properly,  unless that  construction be textually inadmissible, have  retrospective effect  attributed  to  them, provisions which touch a  right  in existence  at  the passing of the statute are not to  be  applied retrospectively  in the absence of express enactment or necessary intendment  (Delhi Cloth and General Mills Co.  Ltd.  v.   Income Tax Commissioner:  AIR 1927 PC 242).

The  second  is that a right of appeal being a substantive  right the  institution  of a suit carries with it the implication  that all  successive  appeals  available under the law then  in  force would be preserved to the parties to the suit throughout the rest of  the  career  of the suit.  There are two  exceptions  to  the application  of this rule, viz.  (1) when by competent  enactment such  right  of appeal is taken away expressly or impliedly  with retrospective  effect and (2) when the Court to which appeal  lay at  the  commencement  of the suit stands  abolished  (Garikapati Veeraya v.  N.  Subbiah Choudhary :  AIR 1957 SC 540 and Colonial Sugar Refining Co.  Ltd.  v.  Irving :  1905 AC 369).

Still  later  this  Court in Gurbachan Singh v.  Satpal  Singh  & Others  (  AIR  1990  SC 209) expressed in the  similar  vein  as regards  the element of retrospectivity.  The English Courts also laid  that the rule that an Act of Parliament is not to be  given retrospective  effect  applies only to statutes which affect  the vested  rights:   It does not apply to statutes which  alter  the form of procedure or the admissibility of evidence, or the effect which  the  courts  give  to evidence:  If the  new  Act  affects matters  of procedure only, then, prima facie, it applies to  all actions  pending  as  well  as future (see in  this  context  the decisions  of  the House of Lords in the case of Blyth v.   Blyth (1966)  1 All ER 524:  A.G.  v.  Vernazza:  (1960) 3 All ER).  In Halsburys  Laws of England (4th Edition:  Vol.44:  para 925 page 574)  upon  reference to Wright v.  Hale (1860) 6 H & N  227  and Gardner  v.  Lucas (1878) 3 Appeal Cases 582 alongwith some later cases including Blyth v.  Blyth (supra) it has been stated:  the presumption  against retrospection does not apply to  legislation concerned  merely  with matters of procedure or of evidence;   on the  contrary,  provisions of that nature are to be construed  as retrospective  unless  there is a clear indication that such  was not the intention of Parliament.

The  law  thus  seems to be well settled that no person  has,  in fact,  a vested right in procedural aspect  one has only a right of  prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an  Act  of  Parliament  one cannot possibly have  any  right  to proceed  with  the  pending  excepting  as  altered  by  the  new legislation  and  as  such we need not dilate on  the  issue  any further.

Before  we  proceed with the matter further, incidentally, be  it noted  that  on  the  factual score,  the  question  whether  the Plaintiff-  appellants  adoption  by   Radhabai  was,  in  fact, established  or not  there is no divergence of views between the Appellate  Court and the Trial Court:  The factum of adoption was established but whereas the trial Court doubted its legality, the Appellate  Court  in no uncertain term recorded:  there  was  no question  of any illegality attaching to the adoption on  account of absence of authority from the husband to adopt the child.  It is  noteworthy at this juncture that by reason of the  exposition of  law as above and since Mahadeos adoption was negated in  the earlier  suit,  question  of any further claim on  the  basis  of

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adoption  of  Mahadeo would not arise.  The Appellate Court as  a matter  of  fact laid emphasis on the question as to whether  the Plaintiff  by  virtue  of being Mahadeos adopted  son  would  be entitled  to  claim rights in the property which belong to  Mohan Lal  and  referred to Clause (c) of Proviso to Section 12 of  the Hindu  Adoption  and Maintenance Act.  For convenience  sake  the third proviso to Section 12 is noted hereinbelow:

12. Effects of adoption. provided that  -

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

It is on this aspect of the matter the Appellate Court observed:

The  whole  basis for claiming a right in the property  left  by Mohan  Lal is that Radhabai is the widow of Mahadeo alleged to be the  deceased  son of Mohanlal.  The argument was that after  the death  of Mohanlal and in the absence of Ramgopals adoption,  it would  be  Radhabai  who  would take the  property  belonging  to Mohanlal  to the exclusion, or otherwise, of Kisnibai who died in the  year 1951, as on the date of the adoption, i.e., 25th April, 1967,  Radhabai  was the only surviving member of the  family  of Mohanlal.   Succession  to Mohanlal opened in the year 1923  when the  Hindu  Womens  Rights to Property Act, 1937, had  not  been enacted.   The  most  that could be said in respect  of  Radhabai would  be  that  Radhabai, by virtue of her being  the  widow  of Mahadeo, would be entitled to take widows estate in the property left  by Mohanlal, and by virtue of the provisions of section  14 (1) of the Hindu Succession Act, her estate would be enlarged and she  would become a full owner of the property.  At the time when the  previous  suits  were  finally   decided,  the  position  of Radhabai, in pursuance of these judgments, was that she was not a member  of Mohanlals family;  and there is no dispute that  this finding  bound Radhabai personally.  The position on the date  of the  plaintiffs  adoption  would be, if the submission  of  Shri Udhoji  were to be accepted, in view of clause (c) of Proviso  to Section  12,  that  the  property  vested  in  Radhabai  as  full owner.

The  position  would, therefore, be that during the life time  of Radhabai,  the  plaintiff, even by virtue of his adoption,  could not  have  divested Radhabai if she were to have had  become  the absolute  owner  of Mohanlals property.  He could only claim  by succession  to Radhabai and not by virtue of his being an adopted son during his life time.  In view of this position of law, it is clear  that  the  plaintiff, in order to succeed in  the  present case, would have to claim under Radhabai and he would not get any rights,  by  virtue of section 12 only on the basis that  he  was Mahadeos  adppted son, having regard to the date of his adoption which was 25th April, 1967.

It  is  on the above observation that Mr.  Sampath very  strongly contended  that  the  Plaintiff  by a  legal  fiction  takes  the interest of Mahadeo in 1918 when he is deemed to be born, though, in  fact  however, he was born in 1951.  We however, cannot  lend any concurrence to the submission of Mr.  Sampath.  The plaintiff can only claim by succession to Radhabai and not as a co-parcener on  the basis of a legal fiction.  We feel it expedient to record that  the  analysis of the situation by the Appellate Court  that the Plaintiff would have to claim under Radhabai but by virtue of Section  12 of the Act of 1956, the plaintiff would not have  any

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right on the basis that he was Mahadeos adopted son.

Admittedly,  Radhabai  was  a party to the previous suit  on  the issue  regarding  Ramgopal  and Mohanlals adoption  having  been decided against Radhabai specifically, it cannot but be said that the plaintiff was litigating under the same title.

In  view  of  the discussion as above and having  regard  to  the provisions  of Section 11 read with Explanation VIII, the earlier decision  would operate as a res judicata in the present context. The adoption of Ramgopal has, as a matter of fact, declared to be a  valid adoption in any event, the same being a finding  against the  estate,  question of further accrual of any right would  not arise.   The Plaintiff cannot as a matter of fact lodge its claim independently  of Radhabai as a co-parcener by reason of being  a deemed son of Mahadeo.  As noted above the entitlement is only if there be any, through Radhabai and not independently of Radhabai. The legal fiction introduced by Mr.  Sampath unfortunately cannot find  favour  with  us, more so by reason of the  fact  that  the adoption of Mahadeo stands negated in the earlier suit.

Mr.  Mohta appearing for the respondents, however, relying on the earlier  judgment and the findings as regards the affirmation  of Ramgopals  adoption  and negation of Mahadeos adoption and  the factum  of  the  Plaintiff having been litigated under  the  same title  as Radhabai and since Radhabai was a party to the previous suit,  very  strongly contended that question of any doubt  being raised  as  regards  the  applicability of the  doctrine  of  res judicata  or constructive res judicata does not and cannot arise. Mr.   Mohta contended that vesting in any event cannot take place in  favour  of an unborn person and vesting must be  viz-a-viz  a living  person and the legal fiction pertaining to vesting to  an unborn  person  would  not arise.  We do  find  some  contentious substance in the contextual facts, since vesting shall have to be a  vesting  certain.   To vest, generally means  to  give  a property  in.   (per  Brett  L.J.   Coverdale  v.   Charlton  48 L.J.Q.B.   132:   Strouds  Judicial   Dictionary  5th   Edition. Vol.VI).   Vesting  in  favour of the unborn person  and  in  the contextual  facts  on  the basis of a subsequent  adoption  after about  50  years without any authorisation cannot however but  be termed  to be a contingent event:  To vest, cannot be termed to be  an executory devise.  Be it noted however, that vested does not necessarily and always mean vest in possession but includes vest in interest as well.

In  the  facts  of  the  matter  under  consideration  the  issue pertaining to vesting however does not call for any opinion, more so  by reason of the specific finding as regards the negation  of Mahadeos  interest  as  well  as  the  assertion  of  Ramgopals adoption  in the affirmative and as such the issue also loses its significance  and  we also express no opinion in regard  thereto, save what is noted hereinbefore.

On  the  wake  of  the  aforesaid we are  unable  to  record  our concurrence with the submission of Mr.  Sampath that the doctrine of  res judicata has no manner of application, on the contrary we record  our views that the second suit is barred by the  doctrine and  we  see  no  merit in the appeal as  such.   The  Appeal  is therefore dismissed, there shall however be no order as to costs.