Patna High Court
Chandi Charan Bandopadhyaya vs Nabagopal Sarkhel And Ors. on 13 February, 1957
Equivalent citations: AIR1957PAT365, AIR 1957 PATNA 365
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This is plaintiffs appeal, from the concurrent decisions of the Courts below dismissing his suit.
2. Three questions of law have been raised by Mr. R. S. Chatterjee, in support of the appeal; all of which turn on the construction of the compromise decree, dated the 6th February, 1928, passed in Title Suit 1 of 1927, brought by Girish Chandra Sarkhel, father of defendants 1 to 4, and, grandfather of defendants 5 to 7, against Kailash Basini; widow of Mahesh Chandra Sarkhel, in respect of the properties, which admittedly belonged to Mahesh, and, to which suit Haripada, the son of the present plaintiff, and, the adopted son of Mahesh, was also a party.
3. The questions of law which, therefore, arise for determination on the present appeal, are:
1. Whether the above, mentioned compromise decree operates as res judicata in the present suit?
2. Whether the plaintiff is estopped from maintaining the present suit in view of the aforesaid decree?; and
3. Whether the adoption of Haripada, who was cousin sister's son's daughter's son of Mahesh, was valid in law?
4. As these questions arise out of, and, are based on, the decree passed in Title Suit 1 of 1927, it is necessary to state some facts relating to this suit as briefly as possible.
5. Mafar and Jagat were own brothers, Jagat's son was Girish, the father, and, grandfather of the present defendants. Mafar had a son Gangaram, whose son was Mahesh, whose widow was Kailash Basini Debl Mahesh adopted Haripada, son of Chandi Gharan Bandopadhaya, the present plaintiff in 1918, Haripada married Shib Bala. Mahesh died in 1926, and his widow Kailash Basini died after him.
6. Mahesh was the original owner of the lands in dispute, and, in respect of the disputed land Haripada, the adopted son of Mahesb, and, the natural son of the present plaintiff, was recorded in the record of rights.
7. In 1927, after the death of Mahesh in 1926, Girish, the uncle of Mahesh, and, the nearest rever sioner of his properties, brought a title suit, which was registered as Title Suit 1 of 1927, against Kailash Basini Devi, the widow of Mahesh, claiming; the properties of Mahesh, on the ground that Kailash Basini was a leper, and, as such, she was not entitled to inherit the properties of her husband.
8. On the 26th February, 1927, the present plaintiff, on behalf of his natural son Haripada, who was then a minor filed a petition (Ex. B), in the above suit, for Haripada being added as a party to the suit, on the ground that Haripada was the adopted son of Mahesh. On the same day, the present plaintiff also swore an affidavit (Ex. K) in support of his above application. Haripada, accordingly, was added as defendant 2 to the suit.
9. Kailash Basini, the original defendant, also in her written statement (Ex. G) had raised the question of non-joinder of Haripada on the ground that he was the adopted son of her husband, Mahesh. On the 5th March, 1927, the plaint was amended by Girish, the plaintiff, as per petition (Ex. 3), and, he challenged the adoption of Haripada, as being invalid in law; firstly, because Mahesh was a leper, and, secondly, because Haripada's mother was the niece of Mahesh.
10. The written statement, Ex. C(1), on behalf of Haripada, the newly-added minor defendant 2, was filed on the 28th April 1927, and, verified by the present plaintiff. In the suit, Haripada, being a minor, was represented throughout by his natural father, the present plaintiff, who acted as his guardian and next friend.
10-A. The suit was thereafter referred to arbitration, and, before the arbitrator, the suit was compromised, and, the arbitrator made an award that the Suit should be decreed in terms of the compromise. In the compromise, the present plaintiff, represented Haripada, and, he, on his behalf, entered into the compromise. On the 6th February 1928, the suit was decreed by the Court in terms of the compromise, the Judgment of which is Ex, D. The decree, which is Ex. E, shows that Haripada was represented by the present plaintiff, this natural father.
11. One of the terms of the compromise, which formed a part of the decree, and ground which centres the main controversy in the present appeal, was to the following effect:
"Although the said Haripada Sarkhel is not the adopted son according to law, still for the good of the parties and for establishing peace and also to prevent the possibility of both the parties being ruined by litigation, we, the plaintiffs and defendant No. 1 accept (recognise) the defendant No. 2, the said Haripada Sarkhel, as the legally adopted son of the said Mahesh Chandra Sarkhel and the said Haripada Sarkhel is treated as the son born of the loins of the said Mahesh Sarkhel deceased."
12. Under this compromise, some lands, belonging to Mahesh Sarkhel were allotted to Haripada, and, the property in dispute in the present litigation is a part of the same, Haripada died issueless in Aghan 1347 B.S. : 1940, and his widow shib Bala died on the 11th February, 1948, and thereafter, the plaintiff instituted the present suit on the 17th June 1948.
13. The Court below dismissed the suit of the plaintiff. The learned District Judge on appeal found that the adoption of Haripada was not invalid on the ground that Mahesh was a leper, because, his leprosy was not of a virulent and disgusting nature, and, as such, Mahesh was competent to adopt Haripada, but, found his adoption to be Invalid on the ground that his mother being the daughter of a cousin of Mahesh, the marriage between Mahesh and the mother of Haripada was not possible under the Hindu Law. He further found that the compromise decree of Title Suit 1 o£ 1927 operated as res judicata between the parties to the present, suit He further found that although this decree did not operate as an estoppel within the meaning of Section 115 of the Evidence Act, against the plaintiff, yet he was estopped from reviving the controversy by his conduct, The learned District Judge, therefore, upheld the Judgment and decree of the first Court on the ground of both res judicata and estoppel.
14. It is conceded by the parties that if the adoption of Haripada by Mahesh is held to be invalid, the plaintiff would succeed; on the other hand, if it is found to be valid, he will fail, and the defendants would succeed.
15. On the question of res judicata, Mr. Chatterji has put forward his argument in two ways:
16. First, that the plaintiff has brought the present suit not in the same title in which he was a party to the decree of 1927, because Title Suit 1 of 1927 was between Girish, ancestor of the defendants, and, Kailash Basini Devi, widow of Mahesh, and, Haripada, the adopted minor son of Mahesh; and, the present plaintiff was a party to it only as guardian of the minor Haripada. But, in the present suit, the plaintiff has claimed to be entitled to the properties of Haripada, after his death, as his heir, being his natural father, in preference to the defendants, who are the nearest reversioners of Mahesh, after his widow, and, his adopted son Haripada. In support of his contention, he has strongly relied on a Bench decision of the Madras High Court in Vythilinga Muppanar v. Vijayathammal, ILR 6 Mad 43 (A),
17. Second, that the operative portion of the term of the decree (Ex. E), reproduced earlier, in the first paragraph in which it is mentioned that "Haripada Sarkhel is not the adopted son according to law", and, not the concluding paragraph which recites that Haripada was treated "as the legally adopted son" of Mahesh. In support of this contention, Mr. Chatterji relied on another Bench decision of the Madras High Court in Valliammal v. Palani Gounden, 1955-2 Mad LJ 211: ((S) AIR 1955 Mad 533)(B), which followed an earlier Bench decision of the same Court in Sarangapani Ayyangar v. Kandala Venkata Narasimhaoharyulu, 1951-2 Mad LJ 464: (AIR 1952 Mad 384) (C).
18. On the other hand, the contention put Forward by Mr. U. N. Sinha, for the respondents, was that the operative portion of the aforesaid term of the decree was the concluding part, in which Haripada was treated as the legally adopted son of Mahesh, and, as such, it was not now open to the plaintiff to reagitate, and, revive, the question of invalidity of the adoption of Haripada in the present suit.
19. In my judgment, both the grounds, taken by Mr. Chatterjee in support of his argument that there was no question of res judicata, have no substance, and, therefore, his contention that the present suit is not barred by the principles of res judicata must be overruled.
20. It is well settled that a consent decree has to all intents and purposes the same effect as res judicata as a decree passed per invitum, and this, notwithstanding the words "has been heard and finally decided" in Section 11 of the Civil Procedure Code. These words give ground for argument upon one point only, that is, whether the matter in issue has literally been heard by the Court It has been finally decided, indeed much more finally decided by a consent decree, than by a decree per invitum, for against the consent decree there is no appeal. When a party has raised his defences, and, has then consented to Judgment, it is the same thing as though he had abandoned his defences, and, admitted them to be untenable.
Carrying that one step further, it is the same thing as saying that his case has been heard, for, if a party chooses to admit that he is not in a position to sustain his defence as far as the Court is concerned that is practically the same thing as though he had adduced no evidence, and, decision had been taken against him on all those issues. A consent decree, therefore, come to between predecessors is interest of parties touching matters now substantially and directly in issue between them will be res judicata. Res judicata ousts the jurisdiction of the Court, and, it means nothing more than that a person shall not be heard to say something twice over.
Therefore, so long as a consent decree stands, tt is not open to either party thereto to give the go bye to it, even if it contains clauses bad in law: Bhaishankar Nanabhai v. Morarji Keshavji & Co., ILR 36 Bom 283 (D), which has been followed by a Bench of this Court in Rameshwar Singh v. Hitendra Singh, 6 Pat LJ 208: (AIR 1921 Pat 131) (E).
21. Here, in order to determine whether the principles of res judicata apply to the present suit, or not we have to ascertain first the scope and effect of the decree passed in the suit of 1927.
22. I may read here Section 11 of the Code of Civil Procedure, which embodies the principles of res judicata.
It is in the following terms:
"11. 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.
x x x"
23. In the instant case, in my judgment, all the conditions necessary for attracting the provisions of Section 11, of the Code, are present; because, first, the question of validity, or invalidity of the adoption of Haripada, which is in issue in the present suit, was an issue directly and substantially in the prior suit also; secondly, the earlier suit was between the predecessors-in-interest of the present parties, in that, the present plaintiff claims from and under Haripada, who was also a defendant to the decree of 1927, and, the present defendants are admittedly the representatives and success ors-in-interest of their ancestor Girish, who was the plaintiff in that suit, and, thirdly, this issue was heard and finally decided by the consent decree passed in the suit, There is, therefore, no doubt, that the matter in issue now between the parties, namely, the question of invalidity of Haripada's adoption, was, the matter, which was in issue between their predecessors-in-interest, in the previous suit in which the decree was passed, and, as such, my concluded opinion is that the consent decree of 1927 operated as res judicata in the present suit on the question of validity, or otherwise of the adoption of Haripada, "
24. Now, it is necessary here to consider as to which part of the term, above mentioned, incorporated in the consent decree, would operate as resjudicata, I cannot accept the argument of Mr. Chatterji that the first part which says that Haripada is not the adopted son according to law is the operative part, because that fact is mentioned only as statement of law, but, in the concluding portion, which, in my opinion, is the operative portion, it has been specifically mentioned that the parties to the suit recognised Haripada as th& legally adopted son of Mahesh, In my opinion, therefore, the second and concluding portion of the term of the decree, which says that the parties have recognised Haripada, defendant 2 of that suit, as the legally adopted son of Mahesh, is the operative portion, and, that is the decision which operates as res judicata in the present suit.
25. There is no substance in the second contention also of Mr. Chalterji that Section 11 will not apply, because the plaintiff was not litigating under the same title. The case of ILR 6 Mad 43 (A), relied upon by Mr. Chatterji, has also no application, here. In that case, it was held that the decision of a Court as to the validity of an adoption in a suit between A and B may, in any subsequent proceedings between A and those claiming under him on the one side, and B and those claiming under him on the other, estop the parties to such proceedings from again question the validity of the adoption, yet, in a suit where both the contesting parties claim under B such decision will not operate as an estoppel so as to prevent the validity of the adoption being again question by either party to such suit.
This case, in my opinion, instead of helping Mr. Chatterjee, goes against him, because, here the plaintiff claims from, and, under, Haripada, and the defendants claim from, and, under, Girish, who wers the original parties to the suit of 1927 arranged as plaintiff and defendant 2, and, as such, the question, which has arisen between the same parties or those claiming under them, but between two different parties, both of whom claim under two parties, who were the original parties to the suit of 1927, and, opposed to each other. In such a case, in my opinion, on this decision itself, the compromise decree here will operate as estoppel by res judicata.
26. The other contention put forward by Mr, Chatterjee that the plaintiff here was not claiming in the same title cannot also be sustained. He has relied in support of his argument on the Full Bench decision of the Lahore High Court in Mt. Sardaran v. Shiv LaJ, AIR 1944 Lah 282 (F). But, in my opinion, this case has no application here; it rather goes against Mr. Chatterjee. In this case, it was held that where the right claimed in both suits is the same, the subsequent suit will be barred as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the first suit. It would be only in those cases where the rights claimed, however, in the two suits were different, that the subsequent suit would not be barred as res judicata, even, though the properties are identical.
In the Lahore case, the first suit was only to establish a charge on a certain property, while the second suit was based on ownership, and, in those circumstances, it was held that the second suit was not a suit for the same right that was litigated upon in the first suit, and that not only were the grounds of title different from those of the first suit, but the right itself was different, that is, ownership in one case and a charge for maintenance in the other, and, therefore, it was held that the plaintiff could not be said to be litigating under the same title as in the first suit, simply because the house in respect of which the two. suits had been fought out was the same.
27. This Full Bench decision was approved by the Supreme Court in Sunderabai v. Devaji Sharikar Deshpande, AIR 1954 SC 82 (G). This case has been strongly relied upon by Mr. U. N. Sinha on the question of estoppel. This Supreme Court case was decided by Mahajan, Chandrasekhara Ayyar and Bhagwati, JJ., on the 3rd October 1952. His Lordship Bhagwati, J., who delivered the unanimous Judgment of the Court, made the following observation:
"The bar of 'res judicata' however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Civil Procedure Code would not be strictly applicable to the same, but the underlying principle of estoppel would still apply."
28. This observation of his Lordship was obviously only in the nature of an obiter, because, the appeal was decided mainly on the ground of estoppel. This view of mine, regarding the true scope and effect of the above observation of his Lordship Bhagwati, J., is supported by the subsequent decision of the Supreme Court in Shankar Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352 (H), which was decided by Mahajan, C. J, Bose and Ghulam Hasan, JJ., on the 12th April 1954. His Lordship Mahajan, C. J., was a party to both the decisions. In this case, the unanimous Judgment of the Supreme Court was delivered by Ghulam Hasan, J. His Lordship had to construe the effect of a consent decree passed in a partition suit in terms of a compromise entered into between the parties. His Lordship observed:
"The obvious effect of this finding' is that the plaintiff is barred by the principle of 'res judicata' from reagitating the question in the present suit. It is well settled that a consent decree is as binding, upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'."
29. It was, therefore, held that the compromise closed once for all the controversy between the parties, and, the plaintiff was bound by the terms of the compromise and consent decree following upon it.
30. It is not, therefore, correct to say that because a consent decree has been passed on a compromise, it does not operate as res judicata between the parties on the controversy between them, which has been dosed once for all by the compromise itself. This view is well established not only by the above decision of the Supreme Court, but also by earlier decisions of the Privy Council, such as Charles Hubert Kinch v. Edward Keith Walcott, AIR 1929 PC 289 (I), and, Mahomed Musa v. Aghore Kumar Ganguli, AIR 1914 PC 27: 42 Ind App 1 (J).
31. In the present case, the compromise decree of the Court (Ex. E), to the sufficiency of which no objection was taken in argument, was obtained upon one footing only, that is, that the parties to the suit had, in fact, arranged their rights in the property in terms of the Compromise. In Charles Hubert Kinch (I) (supra), Lord Blanesburgh, in delivering the opinion of the Board, observed:
"For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order, as was tersely observed by Byrne, J., in Wilding v. Sanderson, (1897) 2 Ch 534 (K).
'must when once it has been completed, obey ft unless and until he can get it set aside in proceedings duly constituted for the purpose.' In other words, the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal.''
32. In my judgment, therefore it cannot (be) said that the right claimed in both the suits was not the same, in that, there, as here, the validity of the adoption of Haripada was in question, and, Haripada got the properties, a portion of which forms the subject-matter of the present suit, on the ground that he was validly adopted by Mahesh. The present suit is, no doubt, in respect of a portion of the same property, but it is also, on the same ground, in the same right, because, the plaintiff here says that the adoption of Haripada was invalid, and, therefore, the property in suit, which was in possession of Haripada, would come to the present plaintiff as his natural father being his heir as he died issueless. In such circumstances, it cannot be said that the right claimed in both the suits is not the same, simply because the right in the subsequent suit is sought to be established on a ground different from that in the first suit.
In my opinion, therefore, the plaintiff claiming as he does, from, and, under, Haripada, as his heir, after his death, being his natural father, must be held to be litigating under the same title in the present suit as in the prior suit, and, therefore, the present suit would be barred by res judicata; and, as such, it is not open to the Court in the present suit to try again the issue of validity, or invalidity of the adoption of Haripada, since these issues are of fact and law, and the evidence and the law to support them, were identical with those in the earlier suit.
33. The case of 1955-2 Mad LJ 211: ((S) AIR 1955. Mad 533) (B), strongly relied upon by Mr. Chatterjee, also does not help him. He has relied on the following observation of Rajamahnar, C. J., who delivered the Judgment of the Bench:
''It is true that so nomine the plaintiff in the present suit was the plaintiff in the previous suit, and the 1st and 2nd defendants in this suit were parties to the prior 'suit. But in law, the plaintiff had brought the previous suit in a capacity different from that on the basis of which lie has instituted the present suit. In the prior suit he claimed to be the nearest presumptive reversioner to the estate on the death of Pavaji. In the present suit, on the death of Pavaji, he claims to bo the nearest reversioner entitled to succeed. 'A finding that on the date of the previous suit the plaintiff was the nearest presumptive reversioner, even though rendered in the presence of the present 1st defendant, cannot operate as res judicata in this suit for possession brought by the plaintiff, after the death of Pavaji Ammal. The issue who is the reversioner entitled to succeed on the death of Pavaji falls to be decided in this litigation."
The learned Chief Justice, further observed as follows:
"...........it is common ground that as the law stands at present the 1st defendant would be the person entitled to succeed on the death of Pavaji."
Here, in the prior suit, there was an issue as to whether Haripada had been vaiidly adopted by Mahesh. This issue was found in favour of Haripada by the decree based on the compromise and the award, between Haripada and his adoptive mother, widow of Mahesh, on the one side, and, Girish, the ancestor of the present defendants, on the other. The same issue is not (now?) sought to be raised by the present plaintiff. The title now put forward by the plaintiff is not different from, and, independent of the title put forward in the earlier suit, because, the plaintiff here claims under & from Haripada himself as his natural father.
There could, therefore, be no doubt that the compromise decree in the prior suit would have operated as res judicata on Haripada, and, as such, there seems to be no reason why it should not operate as res judicata as against the present plaintiff also when he claims from and under Ilaripada. The plaintiff, cannot, therefore, succeed unless the adoption of Haripada is found to be invalid. The decision on this question, in the earlier suit concludes it, and, therefore, it operates as res judicata against the . plaintiff also in the present suit,
34. For these reasons, the argument put forward by Mr. Chatterjee, on the question of res judicata, that the present suit was not barred by res judicata, on the grounds urged by him, must, therefore, be overruled.
35. On the question of estoppel by conduct, Mr. Chatterjee has submitted that the circumstances, which have been stated in the earlier part of the Judgment, and, winch have been strongly relied upon for founding the plea of estoppel by Mr. U. N. Sinha, are not sufficient to found, and sustain, the plea of estoppel. Mr. Chatterjee has placed strong reliance on Jagannath Prasad Singh v. Abdullah, AIR 1918 PC 35: 45 Ind App 97 (L); Dhanraj Joharmal v. Soni Bai, AIR 1925 PC 118: ILR 52 Cal 482 (M); ILR 6 Mad 43 (A); and Surendro Keshub Roy v. Doorgasoondary Dassee ILR 19 Cal 513: 19 Ind App 108 (PC) (N).
36. Mr. U. N. Sinha, however, pleaded the bar of estoppel, and in support of his plea placed strong reliance on the decision of the Supreme Court in AIR 1954 SC 82 (G), Sia Dasi v. Gur Sahai, ILR 3 All 362 (O), and, Cherukunneth Manukel Nilakandhen Nambudripad v. Vengunat Sivarupathil Padmanabha Ravi Varma Valia Nambidi, ILR 18 Mad 1: 21 Ind App 128 (PC) (P).
37. In my opinion, it is not necessary to consider the cases relied upon by Mr. Chatterjee in detail, firstly, because they have no application to the present case, and secondly, because the decision of the Supreme Court, relied upon by Mr. Sinha, is on all fours with the present case, and, it is impossible to distinguish it on any ground whatsoever. I therefore, propose to deal with the Supreme Court decision first in order to show that the bar of estoppel pleaded by Mr. Sinha is completely covered by that decision.
38. It is well established that an estoppel is a rule of evidence, and, the general rule is enacted in Section 115 of the Evidence Act. It lays down that when one person has, by his declaration, act or omission, intentionally caused, or permitted another person to believe a thing to be true, and to act upon such belief, neither he, nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. This is the rule of estoppel by conduct, as distinguished from estoppel by record, which constitutes the bar of res judicata.
39. The bar of estoppel pleaded by the defendants is based on the conduct of the present plaintiff in acting on behalf of his son, Haripada, in the prior suit (Title Suit 1 of 1927). The most important circumstances on which reliance has been placed by the respondents may be restated here. On the 26th February 1927, the now-plaintiff filed a petition in the suit on behalf of minor Haripada, to the effect that Haripada was the adopted son of Mahesh, and, therefore, he should also be added as a party to the suit.
In support of this petition, the now-plaintiff swore an affidavit, on behalf of the minor Haripada as his guardian. Later, a written statement was filed on behalf of Haripada, which was verified by the present plaintiff as his guardian. Subsequently, the suit was referred to arbitration, and, before the arbitrator, a compromise was filed, which was entered into on behalf of Haripada by the present plaintiff as his guardian, and, the consent decree in terms of, the compromise was passed by the Court in presence of the present plaintiff, who was a party to the consent decree itself. If, therefore, a consent decree was passed, whereby it was declared that Haripada was the adopted son of Mahesh, which position the present plaintiff himself took up from the very beginning of the suit, it is not open now to the now-plaintiff to say that this consent decree did not bind him.
The controversy between the parties to that suit was whether the adoption of Haripada was legal and in accordance with law. This was the real dispute between the parties, and, a compromise of the dispute was arrived at, which was incorporated in the decree which was passed in terms of the compromise and the award. The compromise declared that Haripada was the legally adopted son of Mahesh, and, that he should be considered to have been born of the loins of Mahesh. If the adoption was not valid, Haripada was not, and, could never have been entitled to the property belonging to Mahesh, which is now the subject-matter of the suit.
On a true construction of the terms, set out before, of this compromise decree, therefore it is clear that in presence of the ancestor of the defendants, Haripada, from and under whom, the now-plaintiff claims, his mother, widow of Mahesh, and, the present plaintiff himself, it was declared that Haripada was the legally adopted son of Mahesh. This was a representation of fact made both by the widow of. Mahesh, and, Haripada, through his guardian, and natural father, the present plaintiff which induced Girish, the ancestor of the defendants, to believe it to be true, and, to act upon such belief to his detriment, because but for his being induced in this manner, he would not have agreed, being the admitted next reversioner to the estate of Mahesh at least after the death of Mahesh & his widow, to give any property out of the properties of Mahesh to Haripada.
In my opinion, therefore, the consent decree raised an estoppel as much as a decree passed invitum. In the Supreme Court case, in almost similar circumstances, it was held that the underlying principle of estoppel was applicable. In the present case also, applying the said principles, it is clear that the plaintiff was estopped from contending that the adoption of Haripada was invalid.
40. The case of AIR 1918 PC 35: 45 Ind App 97 (L), in my opinion, does not support Mr. Chatterjee. In that case, it was held that if an owner of property causes third person to convey it to another, and, helps in completing the transfer, he and his son succeeding him are both estopped from challenging the transfer, because it was held that by so doing the owner caused the third person to change the position.
41. In the case of AIR 1925 PC 118 (M), it was held that the plaintiffs were not estopped from questioning the adoption, and, denying that the adopted son acquired any rights of collateral succession by the adoption, because the acts and representations of the plaintiffs which were set up as estopping them from questioning the adoption, related to the Agarwalla adoption, and not to a regular Brahminical adoption, which story was set up of the same person previous to the Agarwalla adoption, and, this story was invented with the object of giving to the latter adoption the rights of collateral succession. In such circumstances, it was held that the plaintiffs were not estopped,
42. In 19 Ind App 108 (PC) (N), the plea of estoppel was negatived. In doing so, Lord Hobhouse observed;
"They observe that the word 'estop' is often used in Indian cases very loosely to denote obligations which do not rest on estoppel at all. Such uses of the word are not countenanced by the definition of estoppel in Section 115 of the Indian Evidence Act."
43. Their Lordships, therefore, held that the younger Ranee, against whom estoppel was sought to be used, had caused none to believe something to be true which she now alleged not to be true, and, in such circumstances, she was held not to be estopped from denying the plaintiff's claim.
44. In the case of ILR 18 Mad 1: 21 Ind App 128 (PC) (P), the question raised between the parties was as to the effect of a compromise effected between the parties. It was held that as the right challenged in that suit was twice acquiesced in by the appellants, or their predecessors in legal proceedings in which the opportunity was afforded of a definite decision as to the rights of the respective families, and, as the compromise of their rights was entered into by the parties, it was binding upon them and their successors, and, therefore, could not now be re-opened upon any theory of the extent of the Melkoima right in the abstract, and, as such, the compromise was upheld.
45. Mr. U. N. Sinha relied very strongly on another case in ILR 3 All 362, (O), in support of his plea of estoppel against the plaintiff. In that case, an arrangement was arrived at between all the parties interested in the deceased's estate by which the estate was distributed between them. A remote reversioner to such an estate was a witness to such instrument, and took a prominent part in making such arrangement, and, the same had his full consent. In such circumstances, it was held that such remote reversioner was estopped by such conduct from after wards questioning the legality, and genuine character of such distribution, and the validity of assignments made by the persons who shared in such distribution.
46. In my opinion, the just mentioned case is also very much to the point, because the present plaintiff, throughout in the prior suit, acted on behalf of minor Haripadan & throughout represented that he was the legally adopted son of Mahesh, and, on that footing, entered into a compromise with Girish, the next reversioner of Mahesh, in respect of the properties of Mahesh and got a share in the property of Mahesh in favour of Haripada.
His acts and representations, referred to before, were accepted by the widow of Mahesh as well as Girish, the next reversioner of Mahesh, and, acted upon. The now plaintiff took a prominent part in the litigation by swearing an affidavit on behalf of minor Haripada, and, being a party to the compromise, which was signed on behalf of the minor and which had his full consent, and was made with the object of settling family disputes with the parties entitled to the properties of Mahesh. In such circumstances, the present plaintiff was completely estopped from challenging the adoption of Haripada and alleging now that his adoption was invalid in law. For these reasons, in my opinion, the plea of estoppel must be upheld, and, it must be held that the consent decree of 1927 operated also as an estoppel against the present plaintiff, and, therefore, the present plaintiff is not entitled to re-agitate, and, revive the controversy about the invalidity of the adoption of Haripada in the present litigation, when this controversy has been settled once for all by the compromise decree.
47. The question, whether Haripada was validly adopted by Mahesh, besides being barred by res judicata and estoppel, even on its merits, must be answered in the affirmative. It was argued, for the appellant, that adoption of Haripada by Mahesh was invalid in law, since the mother of Haripada was the daughter of a cousin of Mahesh, and, as such, the adoption was contrary to Niyog rule.
It is not necessary to consider at length whether the Niyog rule, which is based on certain original texts contained in Dattak Chandrika, should be invoked in order to ascertain who could or could not be adopted, in that this question has been considered by a Bench of this Court, in Sri Ram v. Chandreshwar Prasad, AIR 1952 Pat 438 (Q), to which my Lord the Chief Justice, Ramaswami, J., as he then was, was a party, and his Lordship has very elaborately, with reference to the original text books, considered this matter, and held that any legal objection raised to the validity of adoption as being contrary to Niyog rule cannot be sustained, because it has now become obsolete.
This case has been followed by another Bench of this Court, to which I was also a party, in Mt. Saraswati Kuer v. Debendra Singh, 1956 BLJR 482: (AIR 1956 Pat 340)(R), in which the Judgment of the Bench was delivered by my learned brother B. N. Rai, and, with whom I agreed. His Lordship dealt with this matter very elaborately, and, after a consideration of all the authorities on the point, came to the conclusion that the authority of Nanda Pandit in Dattak Mimansa is not an infallible guide in deciding as to who cannot be taken in adoption, where it deviates from the ancient Hindu Law givers.
He considered the expression "Putra chhaya waham", and, held that it meant that the boy, who was not the real son of the adopter, has now become related to him through the rites described in the text of Saunaka. In that case, the Bench held that the adoption of wife's sister's daughter's son was not null and void. The rule that no one can be adopted, whose mother the adopter could not have legally married, is confined to the specific instance of a daughter's son, sister's son & mother's sister's son, and, marriages, though disapproved on moral grounds, are valid in law.
The whole controversy centred round Nanda Pandit's comment of the expression ''Putra chhaya waham", bearing the reflection of a son. According to him, where it is not possible for the adopted child to be raised as an issue on another's wife by the process of Niyog, he cannot be said to "bear the reflection of a son." In my opinion, therefore, although a marriage between Mahesh, and, the mother of Haripada, who was the daughter of the cousin of Mahesh, could not be approved on moral grounds, still it was not invalid in law, and, therefore, the adoption of Haripada by Mahesh was perfectly valid.
In this respect, the learned District Judge has obviously misdirected himself, and has wrongly held that the adoption of Haripada by Mahesh was invalid, because the mother of Haripada could not have, in her maiden state, been married to Mahesh.
48. For these considerations, I would affirm the decision of the Court of appeal below on the question of res judicata and estoppel, and reverse its decision on the question of invalidity of the adoption. But, on the findings, I would affirm the Judgment and decree of the Court of appeal below.
49. In the result, the appeal fails, and is dismissed with costs.
Ramaswami, C.J.
50. I agree.