Allahabad High Court
Raj Nath Dubey And Another vs Dy. Director Of Consolidation And 12 ... on 8 November, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO. 18 RESERVED
AFR
Case:- WRIT- B No. 46506 of 2013
Petititoner:- Raj Nath Dubey And Another
Respondent:- Dy. Director of Consolidation And 12 Others
Counsel for Petititoner:- A.C. Pandey, Rajeev Mishra
Counsel for Respondent:- C.S.C., A.K. Mishra, Vindraban Mishra
Hon'ble. Ram Surat Ram (Maurya), J.
1.Heard Sri Rajeev Mishra and Sri A.C. Pandey, for the petitioners and Sri A.K. Mishra, Senior Advocate, assisted by Sri Vindraban Mishra, for the contesting respondents (hereinafter referred to as the respondents). There is no factual controversy, at this stage, as such the counsel for the respondents proposes not to file any Counter Affidavit. With the consent of the parties the arguments were heard at the admission stage and the writ petition is being decided finally.
2.The writ petition has been filed against the orders of Consolidation Officer (respondent-3) dated 01.12.2012, Settlement Officer Consolidation (respondent-2) dated 06.03.2013 and Deputy Director of Consolidation (respondent-1) dated 23.05.2013, passed in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act").
3.The dispute relates to the land of khatas 1, 3, 4 and 5 of village Sarai Aziz, talluka Harikishun, tahsil Phoolpur, district Allahabad, which were recorded in the names of the respondents, in basic consolidation record. The consolidation was started in the year 2000, in the village. Raj Nath Dubey (petitioner-1) filed an objection (registered as Case No. 18/19) for recording his name over 1/2 share of the disputed land, along with the respondents. It has been stated by the petitioner that the land in dispute was the property of Kishun, who had five sons namely, Bechai, Kanhai, Bindra, Pancham and Sheetal. Bindra, Pancham and Sheetal died issueless and the properties of Kishun was inherited by Bechai and Kanhai alone. The respondents are sons/grandsons of Bechai and the petitioners are sons of Kanhai as such they have 1/2 share in the land in dispute. Assistant Consolidation Officer, by order dated 22.02.2001, referred the dispute to the Consolidation Officer for decision on merits. Later on, Amar Nath Dubey (petitioner-2) filed an application dated 03.03.2001, alleging therein that his father Kanhai had three sons namely Jagannath, Amar Nath and Raj Nath, who jointly inherited Kanhai. He had also filed an objection in respect of the disputed land, before Assistant Consolidation Officer but the same was misplaced as such he may be impleaded as an objector in the objection of Raj Nath Dubey. The impleadment application moved by Amar Nath Dubey was allowed.
4.The respondents contested the objection on the grounds that Kanhai son of Kishun was unmarried and died issueless. His share in the land in dispute was inherited by them, who are sons/grand sons of Bechai, his brother. The petitioners were not the sons of Kanhai. They earlier filed an objection during consolidation, in respect of the land of village Chak Nuruddinpur alias Nagdilpur, pargana Sikandara, district Allahabad, in which it has been held that Jagannath, Amar Nath and Raj Nath were born to Smt. Ram Pyari due to her illegitimate relations with Kanhai and they being illegitimate sons, not entitled to inherit Kanhai. It was also held that the respondents were the heirs of Kanhai. The judgments of consolidation authorities in the previous proceedings operate as res-judicata between the parties and the objection of the petitioners was liable to be dismissed on this ground alone. On the basis of the pleadings of the parties, the Consolidation Officer, framed issues on 30.04.2005. Issue No. 3 was framed as to Whether the objection of the petitioners, claiming share of Kanhai, alleging themselves as his sons, is barred by res-judicata?
5.On the application of the respondents, the Consolidation Officer decided Issue No. 3 as a preliminary issue. The Consolidation Officer, by order dated 01.12.2012, held that in the previous objection filed in the year 1966, in respect of the land of village Chak Nuruddinpur alias Nagdilpur, pargana Sikandara, district Allahabad, between the same parties, the Consolidation Officer held that Jagannath, Amar Nath and Raj Nath were illegitimate sons of Kanhai and were not entitled to inherit his share as Kanhai was 'Brahmin' Hindu and this judgment has become final from the stage of revision as such judgments in previous proceeding operate as res-judicata. The claim of the petitioners as an heirs of Kanhai has already been decided against them in previous proceeding as such their fresh claim in respect of the property of another village on the same ground between the same parties was not maintainable. On these findings, Issue no. 3 was decided against the petitioners and the objection was dismissed, by order dated 01.12.2012.
6.The petitioners filed an appeal (registered as Appeal No. 1697) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation (respondent-2), who by his order dated 06.03.2013 held that in previous Case No. 1716, relating to the land of village Chak Nuruddinpur alias Nagdilpur, pargana Sikandara, district Allahabad, the Consolidation Officer by order dated 28.11.1965 held that Kanhai was un-married. Jagannath, Amar Nath and Raj Nath were born to Smt. Ram Pyari due to her illegitimate relation with Kanhai and they are not heirs of Kanhai. The appeal filed by Jagannath and others was dismissed by order dated 01.08.1966 and the revision was also dismissed by order dated 29.12.1966. In the present proceeding, the petitioners are again claiming themselves as the sons of Kanhai as such their claim is barred on the principles of res-judicata. On these findings the appeal was dismissed.
7.The petitioners filed a revision (registered as Revision No. 1056) from the aforesaid order. The Deputy Director of Consolidation (respondent-1), by order dated 23.05.2013, held that in the previous proceeding, the petitioners were not found as the sons of Kanhai and their claim for inheritance of the share of Kanhai, in the land of village Chak Nuruddinpur has not been accepted. The previous judgments are binding upon the parties and operate as res-judicata. On these findings, the revision was dismissed. Hence this writ petition has been filed.
8.The counsel for the petitioners submitted that findings of the consolidation authorities in the judgments in previous proceeding on the issues of facts alone operate as res-judicata. However, the findings that children born to Smt. Ram Pyari, due to her union with Kanhai were illegitimate children and an illegitimate son of a 'Brahmin' was not entitled to inherit the properties of his father are findings on the legal issues. The previous judgments in this respect is illegal as such the judgments in this respect will not operate as res-judicata in respect of other properties. The rule of res-judicata is a rule of procedure and cannot supersede the law of the land as held by the Supreme Court in Mathura Prasad Sarjoo Jaiswal Vs. Dossibai N. B. Jeejeebhai, AIR 1971 SC 2355. Kanhai was unmarried as such the children born to Smt. Ram Pyari, after her becoming widow, with the union of Kanhai, were the children of Kanhai under the Hindu law. Judgements of the consolidation authorities in previous proceedings, holding Jagannath, Amar Nath and Raj Nath as the illegitimate sons of Kanhai are illegal. In any case, Kanhai left behind him neither his widow, nor any issue as such their claim for inheritence of Kanhai has priority over the brother's sons. He further submitted that the word "son" occurring under Section 171 of U.P. Act No. 1 of 1951 will include illegitimate son also. The exclusion of illegitimate son from inheritance under Section 171 of U.P. Act No. 1 of 1951 will not be automatically inferred, in the absence of statutory exception. Full Bench of this Court in Raj Narain Saxena Vs. Bhim, AIR 1966 All 84 (FB), which has been approved by Supreme Court in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra, (2011) 2 SCC 705, held that exclusion clause must be specific under the statute. He further submitted that right of inheritance in tenancy holdings of an illegitimate son of 'Shudra' (Hindu) has been recognized through out, by this Court, as held in Tej Pal Vs. Roop Chand, 1969 RD 10. There is no basis to carve out a separate class of illegitimate son of 'Shudra' (Hindu) and illegitimate son of 'Brahmin' (Hindu). As Kanhai died after enforcement of the Constitution as such classification based on caste without any object is arbitrary and violative of Article 14 of the Constitution. The orders of respondents-1, 2 and 3 are illegal and liable to be set aside.
9.In reply to the aforesaid arguments, the counsel for the respondents submitted that doctrine of res-judicata is applicable in consolidation proceedings also as held by this Court in Smt. Kanizan Vs. Ghulam Nabi, 1967 RD 101, Sukhbir Singh Vs. Khacheru 1971 RD 48. Supreme Court in Kalinga Mining Corporation Vs. Union of India, (2013) 5 SCC 252 held that principles of res-judicata is applicable in respect of issue relating to the facts and law both. In the previous judgments between the same parties, it has been held that Jagannath, Amar Nath and Raj Nath were illegitimate sons of Kanhai and being illegitimate sons, they would not inherit, Kanhai who was Brahmin (Hindu). Subsequent objection of the petitioners on the same ground is barred by res-judicata. He submitted that Constitutional Bench of Supreme Court in Gulraj Singh Vs. Mota Singh, AIR 1965 SC 605 held that "child", "son" and "daughter" occurring in the Hindu Succession Act, 1956 would include only legitimate children i.e. born in wedlock of legitimate relation of husband and wife. There was no custom of remarriage of 'Brahmin' (Hindu) widow as such it has been rightly held in the previous proceedings that remarriage of Smt. Ram Pyari to Kanhai was not possible under the law nor it was proved. The children born to Smt. Ram Pyari after her becoming widow due to illegitimate relation with Kanhai were illegitimate children. Division Bench of this Court in Meghu Vs. DDC and others, 1971 RD 44 (DB) held that right of inheritance of an illegitimate son of 'Shudra' is confined to the self acquired properties of his father. Supreme Court in Jinia Keotin Vs. Kumar Sitaram Manjhi, (2003) 1 SCC 730, and Bharatha Matha Vs. R. Vijaya Renganathan, (2010) 11 SCC 483 held that even under Section 16 of the Hindu Marriage Act, 1955, children born of void marriage were entitled to inherit the self acquired property of their father. In the present case, admittedly the land in dispute is coming from the time of Kishun, father of Bechai and Kanhai and not the self acquired property of Kanhai. The judgements of consolidation authorities do not suffer from any illegality and no interference is required by this Court.
10. I have considered the arguments of the counsel for the parties and examined the record. Although Section 11 C.P.C. is not applicable to the proceedings under the Act but principle of res-judicata, constructive res-judicata and estoppel are applicable to the proceedings under the Act as held by this Court in Smt. Kanizan Vs. Ghulam Nabi, 1967 RD 101 and Sukhbir Singh Vs. Khacheru Singh, 1971 RD 48. Supreme Court in Gangai Vinayagar Temple v. Meenakashi Ammal, (2009) 9 SCC 757, held that res judicata is an ancient doctrine of universal application and permeates every civilised system of jurisprudence. This doctrine encapsulates the basic principles in all judicial systems which provide that an earlier adjudication is conclusive on the same subject-matter between the same parties. The principles of res judicata reflect "a wisdom that is for all time". Privy Council in Sheoparsan Singh v. Ramnandan Singh, 43 Indian Appeal 91, traced the principle of res judicata from the old Hindu text of Katyayana. Res judicata was also expounded in Greek custom and also by the Roman jurists. The maxims: res judicata pro veritate accipitur (a thing adjudicated is received as the truth); The maxims: "si judicio tecum actum fuerit sive in rem sive in personam, nihilominus ob id actio durat, et ideo ipso jure posteo de eadem re adversus te agi potest: sed debes per exceptionem adjurari": if a defendant omits, either intentionally or negligently, to raise a question of res judicata by an exception, no such question will be submitted whereas, if such a question is properly raised, it must be considered whether the issue has been rendered res judicata pro veritate accipitur. The principle of res-judicata is founded upon the maxims "1. nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause;2. interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and 3. res judicata pro veritate accipitur: a judicial decision must be accepted as correct. Thus the principle of res-judicata is applicable to the consolidation proceedings.
11. The counsel for the petitioner submitted that the previous judgment is erroneous on the question of law as such so far as issue relating to law, it will not operate as res-judicata in the subsequent proceeding, for different property. While the counsel for the respondents submitted that principles of res-judicata will apply in even in case of an erroneous judgment on the question of law. In order to appreciate the controversy in this respect Section 11 C.P.C. are quoted below:
Section 11.- Res-judicata.- 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.
12. In order to operate a judgment of previous suit as res-judicata, the judgment must be of a Court of competent jurisdiction and has been heard and finally decided by such Court. Section 44 of the Evidence Act, 1872, permits a party to the suit to show that the previous judgment was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. If a party is able to prove that the previous judgment was not delivered by a Court competent to deliver it or was obtained by fraud or collusion, then bar of res-judicata will not apply.
13. So far as a judgment erroneous on the issue of law is concerned, Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee, AIR 1953 SC 65, held that at the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him did the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution court had no jurisdiction to execute the decree. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction-purchaser who has entered into possession. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. Thus in this case the correctness of the decision in the previous execution case between the parties was challenged in a subsequent suit on the ground that the matter was not within the competence of the executing court. Supreme Court found that as this objection was not raised by the judgment debtor as such erroneous judgment of the executing court is binding on the parties. Supreme Court again in State of W.B. v. Hemant Kumar Bhattacharjee, AIR 1966 SC 1061, held that a wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The same principle has again been propounded in Kalinga Mining Corporation Vs. Union of India, (2013) 5 SCC 252.
14. The question as to whether the erroneous judgment on the point of law between the parties operates as res-judicata in subsequent suit for different property came for consideration before Supreme Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 in which Supreme Court held as follows:-
"11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."
15. This judgment has been again followed in Isabella Johnson (Smt.) Vs. M.A. Susai, AIR 1991 SC 993. Same view has been taken by Supreme Court in Union of India Vs. Pramod Gupta, (2005) 12 SCC 1 and Viswanath Prasad Singh Vs. Rajendra Prasad, AIR 2006 SC 2965. House of Lord in Arnold Vs. National Westminster Bank Plc., (1991) 2 AC 93, noticed the distinction between "cause of action" "estoppel" and "issue estoppel". Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, prevent the latter from being reopened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also bar is complete to relitigation but its operation can be thwarted under certain circumstances:-
"But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion, your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.
Next question for consideration is whether the further relevant material which a party may be permitted to bring forward in the later proceedings is confined to matters of fact, or whether what may not entirely inappositely be described as a change in the law may result in, or be an element in special circumstances enabling an issue to be reopened.
Your Lordships should appropriately, in my opinion, regard the matter as entire and approach it from the point of view of principle. If a Judge has made a mistake, perhaps a very egregious mistake, as is said of Walton, J.'s judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject-matter, from reopening that issue?
I am satisfied, in agreement with both courts below, that the instant case presents special circumstances such as to require the plaintiffs to be permitted to reopen the question of construction decided against them by Walton, J., that being a decision which I regard as plainly wrong."
16. Supreme Court in Mohanlal Goenka, Hemant Kumar Bhattacharjee, and Kalinga Mining Corporation (supra) considered the binding effects of the judgments of previous suit between the parties. These judgments are not an authority in respect of judgment erroneous in law will operate as res-judicata in subsequent suit based upon different cause of action for different property. The judgments in Mathura Prasad Bajoo Jaiswal, Isabella Johnson, Pramod Gupta and Viswanath Prasad Singh (supra) specifically held that previous judgment on the question of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order on the ground of res judicata, as the rule of procedure cannot supersede the law of the land. The petitioners in this case state that the previous judgments holding Jagannath, Amar Nath and Raj Nath as an illegitimate sons of Kanhai are erroneous in law as such it will not operate as res-judicata in subsequent proceedings.
17. The findings in the previous judgments that Kanhai was 'Brahmin' (Hindu) by caste and died unmarried; The petitioners failed to prove that Smt. Jhulari was the wife of Kanhai and they were sons of Smt. Jhulari and Kanhai; Jagannath, Amar Nath and Raj Nath were born to Smt. Ram Pyari, who was widow of Ram Nath, due to her illegitimate relation with Kanhai as remarriage of a widow was not permitted in 'Brahmin' (Hindu), are the findings are findings on issues relating to the facts and operate as res-judicata. However, the findings that children born to Smt. Ram Pyari, due to her union with Kanhai were illegitimate children and an illegitimate son of a 'Brahmin' was not entitled to inherit the properties of his father are findings on the legal issues and the judgments in this respect would not operate as res-judicata, in the subsequent proceedings, in respect of other properties.
18. Now the question arise as to whether Jagannath, Amar Nath and Raj Nath, who were born to Smt. Ram Pyari, (who was widow of Ram Nath), due to her union with Kanhai, were the illegitimate sons of Kanhai? Remarriage of a 'Brahmin' widow was not permitted either under Hindu law or under the custom prevalent in the caste. The parties are governed by Mitakshara Law of Benaras School. Sri Ganga Nath Jha, in his book 'Hindu Law In Its Sources' and Maynes in 'Hindu Law & Usage' (Tenth Edition) on the basis of the various text found that under ancient Hindu Law there were thirteen varieties of the sons, which are quoted below:-
VARIETIES OF SONS (I) AURAS-THE BODY-BORN SON- That born ones own lawfully married wife is the body born son.
(II) PURTIKAPURTAM-THE SON OF THE APPOINTED DAUGHTER- The father, having no son, having made offerings to Agni and Prajapati, shall give away the appointed daughter, after having made the agreement that the son born to her would be his son.
(III) KSHETRAJ- If a son is born of the wife of a man, by another person who has been duly authorized by the husband or elders of the husband is Kshetraj son (soil born son).
(IV) GUDHAJA-THE SECRETLY BORN SON- If a son born in a man's house and it is not known whose son he is-this son secretly born in the house shall belong to him of whose wife he is born.
(V) KANINA-MAIDEN BORN -If the secretly born son is of a maiden- he belongs to his mother's father or to the man who marries her.
(VI) PUNARBHAVA- BORN OF A REMARRIED WOMAN- When a woman having abandoned her husband who is impotent or an outcast takes another husband- such son is called punerbhava and this son belonged to progenitor.
(VII) DUTTAK-ADOPTED- That son whom his mother or father gives away is dattak and belongs to a man to whom he has been given away.
(VIII) KRITA-PURCHASED- If a man buys a boy from his mother and father with a view of making him his son is called krita.
(IX) KRTRIMA-APPOINTED- When a man appoints a son who is worthy, capable of discerning right and wrong and endowed with filial virtues- that son is called as Krtrima.
(X) SVAYAMDATTA-SELF OFFERED- If a boy, being deprived of his parents or being abandoned without cause, offer himself to a man-he is declared to be a self offered son.
(XI) SAHODHA-OBTAINED WITH THE WIFE- The son obtained in the womb is the Sahodhar- If a son is born to a girl married while pregnant- he belongs to the man who espouses the girl.
(XII) APAVIDDHA- CAST -OFF- On being abandoned by his mother or by his father, if the son is taken up by another man, he belongs to this man.
(XIII) PARASHAVA- THE LIVING CORPSE- Parashava is the son born, through lust to a Brahmana from a Shudra woman- that son is a living corpse.
In paragraph-79 of Maynes in 'Hindu Law & Usage', it has been mentioned that amongst Auras son, the son of the remarried wife and son of the Sudra wife were of course, a man's own actual sons, just like Auras, though of inferior status. In paragraph-88, it has been mentioned that these thirteen varieties of the sons have been broadly categorized as two kinds of sons by Dr. Jolly, namely 'AURAS' (body born son) and DUTTAK (adopted son). Auras, Punarbhava and Parashava are the body born sons while Putrikaputram, Kshetraj, Gudhaj, Kanina, Duttak, Krita, Krtrima, Swayamdutta, Sahodha, Apavidha are adopted sons.
19. Supreme Court in Shyam Sunder Prasad Singh v. State of Bihar, AIR 1981 SC 178 held that "Aurasa" is the son procreated by a man himself on his wife married according to sacramental forms prescribed by sastra. "Putrika-putra" is the son of an appointed daughter. "Kshetraja" is the son begotten on the wife of a person by another person -- sagotra or any other. "Gudhaja" is the son secretly Bom in a man's house when it is not certain who the father is. "Kanina" is the son Bom on an unmarried girl in her fathers house before her marriage. "Paunarbhava" is the son of a twice married woman. "Dattaka" is the son given by his father or mother. "Krita" is the son bought from his father and mother or from either of them. "Kritrima" is the son made (adopted) by a person himself with the consent of the adoptee only. "Svayamdatta" is a person who gives himself to a man as his son. "Sahodhaja" is the son Bom of a woman who was pregnant at the time of her marriage. "Apavidha" is a person who is received by another as his son after he has been abandoned by his parents or either of them. There is one other kind of son called "Nishada" who is the son of a Brahmin by a Sudra who is not referred to in the above quoted text of Yajnavalkya.
21. Supreme Court in K.V. Muthu v. Angamuthu Ammal, (1997) 2 SCC 53 held as follows:-
"Son" as understood in common parlance means a natural son born to a person after marriage. It is the direct blood relationship which is the essence of the term in which "son" is usually understood, emphasis being on legitimacy. In legal parlance, however, "son" has a little wider connotation. It may include not only the natural son but also son's son, namely, the grandchild, and where the personal law permits adoption, it also includes an adopted son.
Section 3(57) of the General Clauses Act defines "son" as under:
" ''son' in the case of anyone whose personal law permits adoption, shall include an adopted son."
Relying upon this definition, the Lahore High Court in Divi Ditta, In re AIR 1931 Lahore 661held that where the personal law of the parties permits adoption, the word "son" will include an adopted son. In Adit Narayan Singh v. Mahabir Prasad Tiwari, 48 Indian Appeals 86, the Privy Council held that "sons" in Mitakshara Chapter II 6(1) include a grandson. In the ancient Hindu Law, twelve sons are mentioned by the truth-seeing sages all of whom need not be mentioned here. The attempt only is to indicate that the term "son" itself is a flexible term and may not be limited to the direct descendant. Its true meaning, like the term "family" discussed above, will depend upon the context in which it is used. Even illegitimate son may be treated as legitimate, as for example, the "son" referred to in Section 16 of the Hindu Marriage Act, as originally enacted.
Coming now to "foster son", it may be pointed out that a "foster son" is a son who is not the real son or direct descendant of a person after his marriage.
In Shorter Oxford Dictionary, "foster son" is defined as "one brought up as a son though not a son by birth". The word "foster", in the same dictionary, is indicated to mean, to supply with food; to nourish, feed, support; to bring up with parental care; to nurse, tend with care, to grow.
"Foster Brother" is a male child nursed at the same breast as, or reared with, another of different parentage. "Foster Father" is described as one who performs the duty of a father to another's child. "Foster Mother" is indicated to mean a woman who nurses and brings up another's child, either as an adoptive mother or as a nurse, while "Foster Sister" means a female child nursed at the same breast as, or reared with, another of different parentage.
These definitions indicate that a "foster child" need not be the real legitimate child of the person who brings him up. He is essentially the child of another person but is nursed, reared and brought up by another person as his own son.
If a child comes to a person or is found by that person as forlorn child or the parents of that child, may be, on account of their poverty or their family circumstances, bring that child to the other person and request him to bring up that child which is accepted by that person and such child is brought up from the infancy as the own son by that person who loves that child as his own, nourishes and brings him up, looks after his education in the school, college or university and bears all the expenses, such child has to be treated as the son of that person particularly if that person holds the child out as his own. Care, therefore, in rearing up the child need not always be parental. It can be even that of a "foster father". In such a situation, the son so brought up would be the "foster son" of that person and since the devotion with which he was brought up, the love and care which he received from that person were like those which that person would have given to his real son, the "foster son" would certainly be a member of the family.
20. The arguments of the counsel for the petitioners that as the illegitimate son is not excluded specially under Section 171 of U.P. Act No. 1 of 1951 as such his exclusion cannot be inferred, is not liable to be accepted. Supreme Court in Vanguard Fire & General Insurance Company Ltd. Vs. Fraser & Rose, AIR 1960 SC 971 held that when a word is defined to mean such and such, the definition is prima facie restrictive and not exhaustive. Under Section 171 of U.P. Act No. 1 of 1951, the word "son" has been used. The son is a restrictive heir. The case law of Raj Narain Saxena (supra) relied upon by the counsel for the petitioners related to the procedural law and has no application in substantive law.
21. Kanhai was unmarried and issueless and had no son of the varieties of the sons from (I) to (XII) above. As such Jagannath, Amar Nath and Raj Nath who were born to Smt. Ram Pyari, after her becoming widow comes either in the category of Punerbhava or Parasava and were his body born sons. Supreme Court in S P S Balasubramariyam Vs. Suruttayan, AIR 1992 SC 756, Challamma Vs. Tilaga, (2009) 9 SCC 299 and Madan Mohan Singh Vs. Rajni Kant, (2010) 9 SCC 209 held that living in relation for long time and giving birth to a child, raise a presumption of marriage. The Hindu Widow's Remarriage Act, 1856 has come in to force as such Smt. Ram Pyari, being a widow was not disable to remarry. In the absence of widow and Auras son of Kanhai, Jagannath, Amar Nath and Raj Nath are entitled to inherit Kanhai. Supreme Court in Amireddi Raja Gopala Rao v. Amireddi Sitharamamma, AIR 1965 SC 1970 held that a concubine was not disqualified from claiming maintenance by reason of the fact that she was a Brahmin. The claim of a concubine who was a respectable woman of the Brahmin caste and her illegitimate sons for maintenance was allowed. No doubt, a Pratiloma connection is denounced by the Smriti-writers and the Commentators, and before the Hindu Marriages Validity Act, 1949 (Act 21 of 1949) Pratiloma marriages between a Sudra male and a Brahmin female were declared invalid but even those cases recognise that a Brahmin concubine in the exclusive and continuous keeping of a Sudra until his death was entitled to claim maintenance.
In this case, if Smt. Ram Pyari was a Brahmin, then she belongs to same caste and in other case, there was Anuloma connection and not pratiloma.
22. In view of the aforesaid discussions, the writ petition succeeds and is allowed. It is held that the findings in the previous judgments that Kanhai was 'Brahmin' (Hindu) by caste and died unmarried; The petitioners failed to prove that Smt. Jhulari was the wife of Kanhai and they were sons of Smt. Jhulari and Kanhai; Jagannath, Amar Nath and Raj Nath were born to Smt. Ram Pyari, who was widow of Ram Nath, due to her illegitimate relation with Kanhai, are the findings on issues relating to the facts and operate as res-judicata. However, the findings that children born to Smt. Ram Pyari, due to her union with Kanhai were illegitimate children and not entitled to inherit Kanhai are findings on the legal issues and the previous judgments in this respect would not operate as res-judicata, in the subsequent proceedings, in respect of other properties. The impugned orders of Consolidation Officer (respondent-3) dated 01.12.2012, Settlement Officer Consolidation (respondent-2) dated 06.03.2013 and Deputy Director of Consolidation (respondent-1) dated 23.05.2013 are modified accordingly. The Consolidation Officer (respondent-3) is directed to conclude trial on other issues and pass final order after allowing the parties to lead their evidence.
Order Date 08.11.2013 mt