Sunderabai W/O Devrao Deshpande And... vs Devaji Shankar Deshpande

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 3 October, 1952

Coram: Bhagwati, J.

In this appeal, the Court considered the judgment and decree of the High Court of Bombay that had affirmed a decree originally passed in favour of the plaintiff by the Civil Judge, Senior Division of Belgaum. The factual background involved Devarao, who had a son named Shankar by his wife Rangubai; Rangubai died around 1893. Shankar died about 1902, leaving his widow Gangabai as his surviving spouse. Devarao himself died in 1904, and his surviving widow was Sunderabai, who was identified as Defendant 1. At the time of Devarao’s death he was the sole surviving coparcener of the family, and after his death only Defendant 1 and Gangabai, the widow of the pre-deceased son Shankar, remained as members of the family. On or about 18 February 1934, Gangabai adopted Devaji, the plaintiff, as a son of her deceased husband Shankar. This adoption gave rise to disputes between Gangabai and the plaintiff on one side and Defendant 1 on the other regarding the validity of the adoption. The parties referred these disputes to a sole arbitration conducted by V. D. Belvi, a pleader at Belgaum. The arbitrator entered upon the reference, expressed his opinion on the plaintiff’s status as an adopted son of Shankar, and suggested that the parties attempt an amicable settlement. An award was subsequently made in terms of a compromise. The award declared that the adoption of the plaintiff was not valid, that the right of adoption had been lost to Gangabai from the very beginning, and that the plaintiff could not become entitled to any property belonging to the family of Devarao Bapuji Deshpande. Nevertheless, in order to preserve peace, goodwill and affection within the family, the arbitrator ordered Defendant 1 to pay the plaintiff a lump sum of eight thousand rupees. The award further stipulated that if Defendant 1 failed to make this payment, the plaintiff could recover the amount from the family property that was in Defendant 1’s possession. Finally, the award confirmed that the decree for maintenance obtained by Gangabai against Defendant 1 in regular suit No 224 of 1911 before the Gokak Subordinate Judge’s Court would continue permanently.

An application was thereafter filed in the Court of the First Class Subordinate Judge at Belgaum, and this application was recorded as Suit No 291 of 1937. The purpose of the application was to obtain a decree that would give effect to the terms of the arbitrator’s award. The plaintiff admitted the terms of the compromise and the award and acknowledged receipt of the eight thousand rupees. Accordingly, the Court issued a decree on 6 August 1937 in accordance with the award. Following the decree, Defendant 1 continued to make the maintenance payments to Gangabai as ordered in the earlier decree passed by the Gokak Subordinate Judge’s Court, and this arrangement persisted without interruption up to December 1943.

In the suit that had been entered as Suit No 291 of 1937 before the First Class Subordinate Judge at Belgaum, the plaintiff sought a decree based on the award, admitted the terms of the compromise and the award, and acknowledged receipt of Rs 8,000; consequently the Court issued a decree on 6 August 1937. Following that decree, Defendant 1 continued to pay maintenance to Gangabai in accordance with the decree granted by the Subordinate Judge’s Court at Gokak, and this arrangement persisted until December 1943. The Privy Council rendered its decision in Anant v. Shankar on 26 July 1943, after which a lawyer advised Gangabai that she could again adopt the plaintiff; acting on that advice, Gangabai adopted the plaintiff as a son of her deceased husband Shankar on 12 December 1943. Upon learning of this adoption, Defendant 1 adopted her daughter’s son Jivaji, identified as Defendant 2, as a son of her deceased husband Devarao, allegedly back-dating the deed of adoption to 28 November 1943. Consequently, the plaintiff instituted a regular original suit—Suit No 330 of 1944—on 31 January 1944 in the First Class Subordinate Judge’s Court at Belgaum against Defendants 1 and 2, claiming possession of the family property on the basis of his adoption on 12 December 1943. In his plaint, the plaintiff asserted that the adoption of Defendant 2 by Defendant 1 had not occurred on the alleged date of 28 November 1943 but rather after 12 December 1943; Defendant 2 was impleaded because certain property was in his possession. Defendant 1 filed a written statement, inter alia contending that the suit was barred by res judicata from the decree in Suit No 291 of 1937 and that the plaintiff’s claim was barred by estoppel. Defendant 2’s written statement adopted Defendant 1’s contentions. The trial judge held that the suit was not barred by res judicata, that the plaintiff’s adoption by Gangabai on 12 December 1943 was proven and valid, and that the adoption of Defendant 2 by Defendant 1 was also proven, although the judge did not determine the exact date of that adoption. Nevertheless, the judge concluded that the plaintiff was estopped from claiming possession of the property from Defendant 1, and that he was entitled to possession only after Defendant 1’s death, and further held that the adoption of Defendant 2 by Defendant 1 was invalid.

In this case the trial judge observed that the adoption of the plaintiff by Gangabai occurred earlier in time than any subsequent adoption and consequently he concluded that the plaintiff was the lawfully adopted son of Shankar. Accordingly the judge issued declarations that the plaintiff was a validly adopted son of Shankar, that the adoption by Defendant 1 of Defendant 2 as the son of her late husband Devarao was invalid, and that the plaintiff was entitled to possession of the suit properties upon the death of Defendant 1. Apart from those declarations the plaintiff’s suit for possession was otherwise dismissed. In effect the trial judge threw out the plaintiff’s claim for possession and limited his relief to the aforementioned declarations. Defendants 1 and 2 appealed this decree before the Bombay High Court, the appeal being recorded as first appeal number 344 of 1946. The High Court affirmed the trial judge’s decree and dismissed the appeal, ordering the appellants to bear costs. The High Court then granted the appellants leave to bring the matter before the Federal Court, and the present appeal is before this Court for final determination. The factual findings made by both the trial judge and the High Court were not disputed before us. Both courts held that the adoption of the plaintiff by Gangabai on 12 December 1943 was proved and that it was a valid adoption. Both courts also held that the adoption of Defendant 2 by Defendant 1 occurred after the plaintiff’s adoption and was therefore invalid, and no appeal was filed by Defendant 2 against that finding. The only issues that were raised before this Court were points of law: first, whether the present suit was barred by res judicata on the ground of the consent decree issued in suit number 291 of 1937, and second, whether the plaintiff’s claim was barred by estoppel. Before addressing these legal questions, the Court considered an argument that had impressed the High Court, namely that the plaintiff in the present suit was asserting a different title than the one he had asserted in the earlier suit number 291 of 1937, and therefore neither res judicata nor estoppel should apply. The High Court had relied on a Bombay High Court decision reported as Mahadevappa v. Dharmappa, AIR 1942 Bom 322, in which a distant relative R sued in 1928 for a declaration that the adoption of M by D, the widow of S, was invalid. A compromise decree declared the adoption void because, under the law of adoption then, D lacked authority to adopt without her husband S’s consent. In 1932 the law of adoption changed, and in 1935 M was again adopted by D, leading M to bring a suit for a declaration that he was the adopted son of S. The High Court had ruled that M was not litigating under the same title in the two suits because the titles derived from different transactions, even though the nature of the claim was the same.

In the earlier dispute, the Defendant raised the plea of res judicata, asserting that the plaintiff, identified as M, was not litigating under the same title in the two suits. The court observed that the title sought by M in each suit was said to arise from distinct transactions, and therefore, on a preliminary view, the titles, although similar in nature, were considered different. The two separate adoptions of M by D, the widow of S, were treated as separate transactions, each conferring a different title upon the plaintiff in the respective suit, even though the substantive claim in both suits was essentially the claim to be recognized as the adopted son of S. The facts of that earlier case closely mirrored those of the present matter, yet the essential reasoning of the decision was drawn from the judgment of Justice Broomfield, who remarked:

“It is true that ‘litigating under the same title’ has generally been interpreted to mean ‘in the same capacity.’ The plaintiff here is litigating in the same capacity in this suit as in the suit of 1928, namely, in the capacity of an adopted son. All the same, I doubt very much whether he can be said to be litigating under the same title. One of the matters to be considered must, I think, be whether the claim put forward in the second suit could have been put forward in the first, and obviously the plaintiff could not have set up his adoption in 1935 in the suit of 1928.”

Justice Broomfield therefore declined to apply the bar of res judicata, not on the ground that the plaintiff was litigating under a different title, but because the matter that was directly and substantially in issue in the later suit had not been directly and substantially litigated in the earlier suit before a court competent to determine that issue, and consequently it had not been finally decided by such a court. The prevailing principle for this class of cases was later affirmed by a Full Bench of the Lahore High Court in Mt. Sardaran v. Shiv Lal, AIR 1944 Lah 282 (FB). That decision held that when the right claimed in both suits is the same, the subsequent suit is barred by res judicata even if the later suit seeks to establish the right on a different ground. Only where the rights claimed in the two suits are different does the later suit escape the bar of res judicata, despite the property involved being identical. Accordingly, it was evident that the plaintiff in the present case was litigating under the same title—that is, the same right as the adopted son of Shankar—although his claim was founded on a later adoption than the one addressed in the former suit.

In this case, the Court observed that the defence of res judicata could not be applied in the strict sense because the decree issued in Suit No 291 of 1937 was a decree that arose out of a compromise. Consequently, the provisions of section 11 of the Civil Procedure Code were not directly applicable, although the underlying principle of estoppel remained relevant. The Court referred to Sir Dinshaw Mulla’s commentary on section 11, which explained that the section does not expressly cover consent decrees because such decrees cannot be said to involve matters that have been “heard and finally decided” within the meaning of the statute. Nonetheless, Sir Dinshaw Mulla noted that a consent decree has, for all practical purposes, the same effect as res judicata because it operates as an “in invitum” decree and thereby creates an estoppel comparable to that arising from a decree passed in invitum.

The learned Attorney-General, representing the first defendant, argued vigorously that the plaintiff was estopped from claiming that Gangabai retained the right to adopt him as a son of her deceased husband Shankar on 12 December 1943. The Court explained that estoppel is a rule of evidence embodied in section 115 of the Evidence Act. That section provides that when a person, by declaration, act, or omission, causes another to believe a certain state of affairs to be true and to act upon that belief, neither the person nor his representative may later deny the truth of that matter in any suit between them.

This rule of estoppel by conduct differs from estoppel by record, which constitutes the bar of res judicata. In the present matter, the first defendant relied on the allegation set out in paragraph 6 of the plaintiff’s written statement, which claimed that the plaintiff’s claim was barred by estoppel because he had received eight thousand rupees as consideration for accepting the terms of the compromise. The defence asserted that the compromise was lawful, that the plaintiff had induced the defendant to pay the sum on the understanding that Gangabai had lost her right to adopt, and that, consequently, the plaintiff was estopped from later alleging that Gangabai had not lost that right.

The Court further noted that the terms of the consent decree, particularly term 2, declared that the right of adoption was lost to Gangabai from the very beginning. The defence contended that this representation of fact meant that any right Gangabai might have had to adopt a son to her deceased husband Shankar was extinguished at its root, leaving her with no adoption right whatsoever.

In this proceeding the learned Solicitor-General, appearing for the plaintiff, drew the Court’s attention to the wording of the award. The award stated that the parties did not dispute the facts of the case, but they differed only on legal questions. The legal questions presented were whether the plaintiff’s adoption was valid and, assuming it was valid, whether the plaintiff could become entitled to the property of the family. The arbitrator’s record also referred to the Bombay High Court decision in Balu v. Lahoo, wherein a minority judgment of Rangnekar, J. held that, under the circumstances described, the power to adopt terminated and the widow could not validly adopt a son to her deceased husband. If that view were correct, the adoption of the plaintiff by Gangabai would be illegal and the plaintiff would never acquire any right to the family property. This disagreement formed the basis of the dispute between the parties, and the parties eventually reached a compromise that was incorporated into the terms of the award. As part of that compromise it was declared that the right of adoption was lost to Gangabai “its very root or from its very-commencement”, that the plaintiff’s adoption was not valid, and that the plaintiff could not and would never become entitled to the property belonging to the family of Devarao. The decree for maintenance obtained by Gangabai against Defendant 1 was ordered to continue permanently, and the plaintiff was to receive a lump-sum payment of Rs. 8,000.

When the Court examined term No. 2 of the consent decree, it observed that both Gangabai and the plaintiff, by their own declaration, affirmed that the right of adoption was lost to Gangabai from the very beginning. That declaration constituted a factual representation that Gangabai had never possessed the right to adopt a son to her deceased husband Shankar. The sum of Rs. 8,000 was to be paid by Defendant 1 to the plaintiff as consideration for this declaration, and indeed Defendant 1 paid the amount a day before the decree was formally passed in accordance with the award. The representation made by Gangabai and the plaintiff induced Defendant 1 to believe that the declaration was true and to act on that belief to her detriment. Had Defendant 1 not been so induced, she would not have paid the Rs. 8,000 to the plaintiff. Having received the payment, the plaintiff was bound by the factual representation; he could not later repudiate the truth of that representation and claim that Gangabai actually retained the right to adopt a son to her deceased husband, a right that she had ostensibly lost from the very commencement.

The Plaintiff denied the truth of the representation and afterwards claimed that Gangabai actually possessed the right to adopt a son to her deceased husband Shankar, despite the earlier assertion that she had lost that right from the very beginning. The learned Solicitor-General, appearing for the Plaintiff, argued that the statement in question was not a factual representation but merely an expression of Gangabai’s intention not to adopt the Plaintiff as a son to her late husband. He further contended that a mere statement of intention could not give rise to estoppel. This argument, however, overlooks the wording of term No 2, which is not confined to any specific period but is expressed in a broad and general manner. The term does not simply declare that Gangabai lacked the right to adopt in the past, nor does it state that she lacked any intention to adopt a son in the future; rather, it clearly represents that the right of adoption vested in her by virtue of being the widow of Shankar was lost to her from the very commencement.

The loss of that right could occur in several ways. One possible manner of loss was the legal position set out in the minority judgment of Rangnekar, J., as previously mentioned. The right might also be forfeited for other reasons. If the representation contained in term No 2 was indeed made, it would constitute not merely a statement of intention or a statement of legal position but a factual representation concerning the adoption right that had vested in Gangabai as the widow of her deceased husband.

In addition, the Solicitor-General contended that, when correctly construed, term No 2 showed that Gangabai had agreed not to adopt a son to her deceased husband Shankar, thereby elevating the matter from a simple representation to an agreement, which could potentially give rise to a breach of contract claim. The Court found that this line of reasoning could not succeed. Even if the matter had progressed from a representation to an agreement, the courts are sometimes empowered to uphold an estoppel claim to prevent fraud or a circuitous legal action. Authority for this position is drawn from Bigelow on Estoppel, 6th Edition, pages 639-640, which states that situations may arise where a contract should be treated as an estoppel, especially where, without the estoppel, only an inadequate remedy would be available to the injured party, and the estoppel may be employed to prevent fraud and a circuitous action. Consequently, in the present case, both Gangabai and the Plaintiff could be regarded as having agreed that Gangabai would not take a son

In the present case the parties agreed that the plaintiff would be adopted as a son to Gangabai’s deceased husband, Shankar, at a future date, and that the consideration for this adoption would be eight thousand rupees to be paid by Defendant 1 to the plaintiff. Defendant 1 relied on this agreement, acted to her detriment, and indeed transferred the sum of eight thousand rupees to the plaintiff. The plaintiff accepted the payment, and by doing so he relinquished any present or future rights that he might have claimed in respect of the property belonging to the family of Devarao.

Subsequently Gangabai continued to receive maintenance in accordance with the decree for maintenance that had been passed in her favour, and both parties acted upon the agreed arrangement for a considerable period. This conduct persisted until the plaintiff’s counsel, relying on the Privy Council decision in Anant v. Shankar, advised Gangabai that she could again adopt the plaintiff. permitting the plaintiff now to assert that adoption would occur would, in the Court’s view, encourage a fraud or a circuit of action, a result that the passage from Bigelow on Estoppel explicitly warns courts never to permit.

Consequently, even if the arrangement is characterised as an agreement or undertaking made by both Gangabai and the plaintiff, the plaintiff is estopped from claiming that Gangabai had not lost her right of adoption as set out in term No. 2 of the award and from asserting that she could adopt the plaintiff as a son to her deceased husband on 12 December 1943. Having regard to the observations above, the Court concluded that the plaintiff was barred by estoppel from contending that Gangabai possessed such a right on the said date. This estoppel remains effective notwithstanding the findings of the lower courts that the adoption had been validly effected on that date.

The final effect of the estoppel is that the plaintiff’s suit is barred, he is not entitled to any of the relief claimed in his plaint, and the decree originally passed by the trial court in his favour, which was subsequently confirmed by the High Court, must be set aside. Accordingly, the appeal is allowed, the High Court decree is reversed, and the plaintiff’s suit is dismissed with costs awarded throughout.