Holding

The adoption by the widow to her deceased husband was invalid and the plaintiff's claim is barred by res judicata under Explanation VIII to Section 11 CPC, so the appeal is dismissed.

Summary

The appellant Rajendra Kumar claimed possession of property left by Mohanlal, asserting that he had been adopted by Radhabai, the widow of Mahadeo, who was allegedly an adopted son of Mohanlal. The lower courts held that the adoption of a child by a widow to her deceased husband under Section 8 of the Hindu Adoptions and Maintenance Act, 1956, requires express authority from the husband and was therefore illegal, and that the plaintiff's claim was barred by the doctrine of res judicata. The Supreme Court examined whether the earlier decisions in suits of 1929 and 1935 operated as res judicata under Explanation VIII to Section 11 of the Code of Civil Procedure, 1908, and whether the 1976 amendment had retrospective effect. It also considered the validity of the legal fiction of vesting property in an unborn person. The Court held that the earlier judgments were binding, the adoption was invalid, and the appeal was barred by res judicata, dismissing the appeal.

Issues considered

Whether a widow can adopt a child to her deceased husband under Section 8 of the Hindu Adoptions and Maintenance Act, 1956 without express authority from the husband.
Whether the plaintiff's adoption by Radhabai is legal and confers any right to the suit property.
Whether the doctrine of res judicata, including Explanation VIII to Section 11 CPC, bars the present suit.
Whether the 1976 amendment to the CPC, introducing Explanations VII and VIII, applies retrospectively to pending suits.
Whether vesting of property in an unborn person through legal fiction is permissible.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. Explanation VII, s. Explanation VIII
General Clauses Act, 1897s. 6
Hindu Adoptions and Maintenance Act, 1956s. 12(c), s. 8
Hindu Succession Act, 1956s. 14(1)

Subjects

adoptionHindu lawres judicataconstructive res judicataCode of Civil ProcedureSection 11 CPCExplanation VIIIlegal fictionvestingsuccession

Judgment

A RAJENDRA KUMAR
v.
KALYAN (DEAD) BY LRS.

AUGUST 2, 2000

B [S.B. MAJMUDAR AND U.C. BANERJEE, JJ.]

Hindu law:

Hindu Adoptions and Maintenance Act, 1956 :

c Section 8-Adoption-By widow to her husband-Held, Shastric law is
applicable in such cases.

Adoption-By widow to her husband-Pre-requisites-Held, the Husband
should expressly authorise his widow, under Shastric law, to adopt a child to
D him-Adoption of a child without such express authority rightly held illegal
by courts below.

Section 12(c}-Adoption-Commencement of-Widow adopted to her
deceased husband a child who was born after his death-Child's claim that
by a legal.fiction he inherited the property ofhis deceased adoptive father from
E the date of his death-Rejected.

Property-Vesting of-Succession-Taking place-Meaning-Explained.

Code of Civil Procedure, 1908 : Section 11 Explns. VII & Vlll.

F Res judicata-Constructive res judicata-Principles-Applicability of-
Plaintiff claimed that he was adopted by a widow to her deceased husband-
The deceased husband was allegedly the predeceased adopted son of the
owner of suit property-Plaintiff. however, claimed possession of the suit
property of the deceased owner-Plaintiff also claimed that one RG was not
the adopted son of the said owner-Widow of the said owner and RG filed a
G
suit against R-Trial court, held that R was not a member of the joint Hindu
family of the said owner; that the plaintiff's adoption by R was illegal for want
of authority from her deceased husband and that the adoption of RG by the
said owner was proved-RG filed a subsequent suit against the said owners
widow and R in which it was held that RG was the adopted son of the said
H owner-Held, under these circumstances, the High Court rightly held that the
114
RAJENDRA KUMAR v. KALYAN 115
suit is barred, not by the principles of the general doctrine of res judicata, but A
by Expln. VIII to S.11 CPC.

Res Judicata-Principles and objects o.f-Expluined.

Section 11 Expln. VJ/J (as inserted by Act 104 of 1976)-Retrospective
operation-Held, High Court rightly held that Expln. Vlll is applicable to a
B
suit pending on the date of commencement of the amending Act.

Interpretation of Statutes :

Procedural law-Retrmpective operation of-Held, unless there is an
express ban on its retrospectivity a statute dealing with matters of procedure
is retrospective-However, some differentiation exists between a procedural C
statute and a statute dealing with substantive rights.

Statute Law :

Legal.fiction-Widow adopted to her deceased husband a child who was
born after his death-Child claimed succession to the property of the deceased D
husband, by a legal .fiction, from the date of his death-Held, such a claim
cannot be accepted.

Ethics :
Judicial ethics-Adoption under Hindu law-Question of validity-
Found barred by principles of res judicata-Plaintiff made very strenuous E
submission in this regard mz the basis of S.8 of the Hindu Adoptions and
Maintenance Act-~Held, in view of such strenuous submission, the matter
reconsidered on merits on the principies o.f judicial ethics-However, on facts,
S. 8 not applicable.
Words and Phrases : F

"Res Judicata" and "Court o.f limited jurisdiction "-Meaning o.f-In
the context of Expln. Vlll to S.11 o.f the Code o.f Civil Procedure, 1908.

Constructive res judicata-Meaning o.f.

"Vest", "vesting", "vested", "vest in possession" and "vest in interest"- G
Meaning of-In the context o.f Hindu Law :

Doctrines :

Doctrines of "res judicata" and "constructive res judicata "-Meaning
and applicability o.f. H
116 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A The plaintiff-11ppellant instituted a civil litigation in 1968 against the
denial of his claim for possession of the suit property. The suit property
belonged to one ML who died in 1923 leaving behind his widow R. The
Plaintiff-appellant alleged that he was taken in adoption in 1962 by one
R who was married to M. Admittedly, M died in 1919. The plaintiff.
appellant's claim was that his adoptive father M was adopted by ML as
B
a son to him during his lifetime and after the death of ML, the family
comprised of only two members, namely, K who was ML's widow and R
who, according to the plaintiff, was ML's predeceased's son M's widow.
The first defendant RG claimed to be the adopted son of ML, though
according to the plaintiff, there was in fact, no adoption. The plaintiff
c contended that RG's adoption stood vitiated for want of authority from
ML to K to adopt a son to him.

The deed of partition executed between K and R was challenged by
K in 1929 on the ground that R had no right to the property because M
D was not ML's adopted son. RG's adoption was also challenged in the suit.
But RG, who was impleaded in the suit, asserted that ML himself adopted
him. The trial court held that (i) R was not a member of ML's joint Hindu
family; (ii) there was no authorisation to R to adopt a son to Mand though
the factum of the plaintiff's adoption by R was established, his adoption
was not legal and valid and (iii) the adoption by ML of RG was proved.
E The suit was, therefore, decreed against R and the decree was affirmed in
appeal.

RG also instituted a civil suit in 1935 in which K and R were
impleaded as defendants. In that suit the issue of RG's adoption to ML
F was raised and the same was answered in the affirmative whereas RG's
adoption to K was negatived.

Subsequently, the plaintiff-appellant instituted a suit for possession
contending that the decision in the suit of 1929 did not bind the plaintiff
since his claim was lodged through M and not through R and the
G observations of the appellate court that R was entitled merely to
maintenance and not to any interest or share in the property would not
bind him. The trial court held that the decision in the suits of 1929 and
1935 operated as res judicata on the question of adoption of RG by ML
and, M not being the adopted son of ML, dismissed the suit for possession.
H This decision was affirmed by the High Court. Hence this appeal.
RAJENDRA KUMAR v. KALYAN 117
On behalf of the plaintiff-appellant, it was contended th'at the A
plaintiff by a legal fiction took the interest of M in 1919 when the plaintiff
was deemed to be born, though, in fact, however, the plaintiff was born
in 1951 and that the legality of the plaintiff's adoption by R was proved
under Section 8 of the Hindu Adoptions and Maintenance Act, 1956.

On behalf of the respondents-defendants, it was contended that B
vesting in any event could not take place in favour of an unborn person
and vesting must be vis-a-vis a living person and the legal fiction pertaining
to vesting to an unborn person would not arise.

Dismissing the appeal, the Court
c
HELD : 1. Section 8 of the Hindu Adoptions and Maintenance Act,
1956 would not have any application since the widow has undoubtedly a
right to adopt the child for herself but in the event the child was to be
adopted to the husband the statute is otherwise silent and thus the law as
it stood prior to the enactment of the legislation as regards the adoption D
would have to be taken reconrse to for proper appreciation. The Shastric
law provides an express authority by the husband to the widow to adopt
a child and in the contextual facts there is not even an iota of evidence in
·regard thereto as such adoption has been rightly stated to be not legal and
valid by both the courts below. The submissions of the appellant on this
score thus stands negatived. The above discussion could have been omitted
E
but reason of judicial ethics since very strenuous submission has been
made by the appellant in support of the appeal, as regards the merits of
the matter. [125-B-C]

2.1. The doctrine of res judicata has received a statutory sanction in F
the Code of Civil Procedure, 1908 as a matter of prudence and to give due
weightage to a finding or a decision so as to reach a finality in the matter
of a dispute between the same parties or litigating under the same parties.
The doctrine thus is to achieve finality of dispute between the parties being
a principle of prudence so as to give efficacy to a finding of the Court rather
than permit the parties to go to trial more or less on the same issues over G
again and thus introducing a possibility of conflict of views. Judicial verdict
has its special sanctity and cannot be the subject matter of discussion at any
future time involving identical or similar issues. The fact in issue is one
where more than one attempt has been made to establish a fact and in every
attempt that particular fact stands negated. [125-E-F] H
118 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 2.2. The 1976 Amendment to the Code and the introduction of
Explanations VII aud VID clarify this dual objective. The objection,
howsoever technical it may be, ought not .to outweigh the reasonableness
of the doctrine of res judicata. [125-H]

Gulabchand Chhotalal Parikh v. State of Gujarat, AIR (1965) SC 1153,
B relied on.

3. The doctrine of res judicata or constructive res judicata
predominantly is a principle of equity, good conscience and justice. It
would neither be equitable nor fair nor in accordance with the principles
of justice that the issue concluded earlier ought to be permitted to be
c raised later in a different proceeding. [126-F]

4. The appellate Court also relying upon Explanation VIII to Section
11 of the Code, negated the contention of the plaintiff-appellant. The
Appellate Court very rightly observed that the general doctrine of res
judicata could not be applied as has been so applied by trial judge but
D
Explanation VIII to Section 11, as stated by the appellate Court and
rightly so, makes the objection disappear by reason of its widest possible
connotation. [128-B]

5. The expression 'Court of limited jurisdiction' occurring in
E Explanation VIII to Section 11 CPC ought not to be given a limited or
restrictive interpretation but widest possible amplitude ought to be given
to the expression. [128-D]

6. The High Court also rightly held that the effect given to
Explanations VII and VIII inserted in Section 11 of the Code by the
F amendment would act and come within the sweep of sub-section 2ta) of
the amending Act and Section 97(3) would regulate it. The High Court
also rightly held that as on the date of the commeucemeut of the Amending
Act the present suit was pending in the Court of the Civil Judge, Senior
Division, the amended provisions of Section 11 would apply to it. However,
G some differentiation exists between a procedural statute and a statute
dealing with substantive rights and in the normal course of events, matters
of procedure are presumed to be retrospective unless there is an express
ban on to its retrospectivity. [129-E-F; 130-A]

Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, [1976] 2 SCC 917
H and Gurbachan Singh v. Satpal Singh, AIR (1990) SC 209, relied on.
RAJENDRA KUMAR v. KALYAN 119
Blyth v. Blyth, (1966) 1 All ER 524; AG v. Vernazza, [1960] 3 All ER; A
Wright v. Hale, (1860) 6 H & N 227; Gardner v. Lucas, (1878] 3 AC 582
and Halsbury's Laws of England 4th Edn. Vol. 44, para 925, p.574, referred
to.

Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner,
AIR (1927) PC 242 and Garikapati Veeraya v. N. Subbiah Choudhary, AIR B
(1957) SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving, (1905] AC 369,
cited.

7. The law is well settled that no person has, in fact, a vested right
in procedural aspect - one has only a right of prosecution or defence in
the manner as prescribed by the law for the time being and in the event
c
of any change of procedure by an Act of Parliament one cannot possibly
have any right to proceed with the pending proceedings excepting as
altered by the new legislation. [131-C]

8.1. The plaintiff can only claim by succession to R and not as a co- D
parcener on the basis of a legal fiction. The appellate court rightly held
that the plaintiff would have to claim under R but by virtue of Section 12
of the Act of 1956, the plaintiff would not have any right on the basis that
he was M's adopted son. [133-B]

8.2. Admittedly, R was a party to the previous suit on the issue E
regarding RG and ML's adoption having been decided against R specifically,
it cannot but be said that the plaintiff was litigating under the same title.
(133-C]

9. Having regard to the provisions of Section 11 read with Explanation
VIII CPC the earlier decision would operate as a res judicata in the present F
context. The adoption of RG has, as a matter of fact, declared to be a valid
adoption in any event, the same being a finding against estate, question
of further accrual of any right would not arise. The plaintiff cannot, as
a matter of fact, lodge his claim independently of R as a co-parcener by
reason of being a deemed son of M. The entitlement, if there be any, is only G
through R and not independently of R. The legal fiction introduced by the
appellant is not acceptable, more so by reason of the fact that the adoption
of M stands negated in the earlier suit. [133-D-E]

10.1. Vesting cannot take place in favour of an unborn person and
vesting must be vis-a-vis a living person and the legal fiction pertaining to H
120 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A vesting to an unborn person would not arise. Vesting shall have to be a
'vesting' certain. "To 'vest', generally means to give a property in". [133-G]

Coverdale v. Charlton 48 LJQB 132 and Stroud's Judicial Dictionary
5th Edn. Vol. VI, referred to.

B 10.2. Vesting in favour of the unborn person and in the contextual
facts on the basis of a subsequent adoption after about 50 years without
any authorization cannot, however, but be termed to be a contingent event.
To 'vest', cannot be termed to be an executory devise. However, 'vested'
does not necessarily and always mean 'vest in possession' but includes
C 'vest in interest' as well. [133-H; 134-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1738 of 1990.

From the Judgment and Order dated 12.1.88 of the Bombay High Court
in F.A. No. 13 of 1974.
D
J.D. Jain, Anand Singh and Satyapal Khushal Chand Pasi for the
Appellant.

V.A. Mohta, Manoj Wad and Ms. J.S. Wad for the Respondents.

E The Judgment of the Court was delivered by

BANERJEE, J. The cardinal issue in this appeal by the grant of special
leave against the juagment of Bombay High Court (Nagpur Bench) pertains
to the applicability of the doctrine of Res judicata or Constructive Res judicata
envisaged under Section 11 of the Code of Civil Procedure read with the
F Explanations including Explanation VIII thereto in terms of the provisions of
Amendment Act of 1976.

In order, however, to appreciate the issues as above, it would be
convenient to advert to the contextual facts at this juncture. The facts disclose
that the plaintiff/appellant herein instituted a civil litigation being Civil Suit
G No.29 of 1968 against the denial of claim for possession of the property. The
plaintiff alleged that he was taken in adoption by one Radhabai on 25th April,
1967 who, however, was married to Mahadeo. Admittedly, Mahadeo died on
Ist August, 1919 and the property being the subject matter of the suit, belonged
to one Mohanlal who died in 1923 leaving him surviving his widow Kisnibai
H who died in 1951. The plaintiff/appellant's claim was that his adoptive father
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.] 121
Mahadeo, was adopted by Mohanlal as a son to him during his ljfe time and A
after the death of Mohanlal, the family comprised of only two members,
namely, Kisnibai who was Mohanlal's widow and Radhabai who, according
to the plaintiff, was Mohanlal's predeceased's son Mahadeo's widow. The first
defendant Ramgopal claimed to be adopted son of Mohanlal, though according
to the plaintiff, there was, in fact, no adoption.
B
The factual score further depicts that the family of Mohanlal had
migrated from Jaipur and was governed by the Banaras School of Hindu Law.
The plaintiff contended that Ramgopal's adoption stands vitiated for want of
authority from Mohanlal to Kisnibai to adopt a son to him. Ramgopal,
however, as the records depict used to live with Kisnibai and Radhabai, and c
had an ante- adoption deed executed by Kisnibai on December 9, 1923. The
document recited that Ramgopal was to be adopted only in respect of half of
the property of Mohanlal and Mahadeo's line was to be continued by his
widow Radhabai taking in adoption a suitable boy at any time beyond
Kisnibai's life-time. A kararnama was also got executed on December 10,1923
D
with the recitals to the above effect.

Factual score depicts that Radhabai on June 29, 1926 gave a public
notice declaring that Ramgopal was in fact the son of Ramden alias Kalyanrao
and was not the adopted son of Mohanlal and had no interest in the property
of Mohanlal. A deed of partition was executed between the parties. Subsequently, E
a civil suit bearing No.87 of 1929 was instituted by Kisnibai for setting aside
the deed of partition on the ground that Radhabai should not get any right to
the property belonging to Ramgopal because Mahadeo was not Mohanlal's
adopted son. Ramgopal 's adoption was also challenged in the suit. Ramgopal,
however, asserted that he was adopted by Mohanlal himself in Marwad which
F
however, run counter to the recital in the deed of adoption. The suit (No.87
of 1929) was decreed against Radhabai and an appeal taken therefrom to the
Court of the Judicial Commissioner, being appeal No. 19 of 1932 was also
dismissed. According to the plaintiff herein the decision in that suit did not
bind the plaintiff since his claim is lodged through Mahadeo and not his heir
Radhabai and the observations of the learned Additional Commissioner, that G
Radhabai was entitled merely to maintenance and not to any interest or share
in the property would not bind him. Be it noted, however, that Ramgopal was
joined as a party thereto and it is the plaintiff's definite case that Radhabai
having taken the plaintiff in adoption on April 25, 1967, the plaintiff became
entitled to seek possession of the property left by Mohanlal and he, therefore,
H
122 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A brought th~ present suit for possession of the properties as mentioned in the
schedule to the plaint.

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

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

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

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

(iii) Radhabai was not living as a memberof Mohanlal's joint Hindu
family;

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

(v) the partition between Radhabai and Kisnibai was not proved
and it was also not proved that the first-defendant fraudulently
got an adoption deed in his favour from Kisnibai;
F
(vi) the adoption by Mohanlal of Ramgopal, the first defendant, was
held proved.

In the present suit, the learned Trial Judge, while rejecting the plea
G that the suit was barred by time and that the first-defendant acquired title
by adverse possession, held that the decision in Civil Suit No.87 of 1929
and First Appeal No.19 of 1932, as well as the decision in Civil Suit No.
157 of 1935 and the decision in Civil appeal No.2-A of 1939, operated as
res judicata on the question of the adoption of Ramgopal by Mohanlal, and
Mahadeo not being the adopted son of Mohanlal and dismissed the suit for
H possession.
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.] 123
The dismissal order, however, was challenged in first Appeal No.13 of A
1974 before the High Court (Nagpur Bench) but same also did not find favour
with the Appellate Court, resultantly, the appeal was dismissed and hence the
appeal before this Court.

The issue pertaining to the doctrine of res judicata thus calls for
discussion at this stage. The factual backdrop has already been noticed herein B
above and as such, we refrain ourselves from dilating thereon in detail but by
reason of the specific point for discussion, the relevant issues raised in Suit
No.87 of 1929 before the Sub-Judge, Betul, ought to be noticed. The issues
relevant in the present context being :

I. Whether the Plaintiff No.2 was adopted as a son by Mohan Lal?
c
IIA. Was Mahadeo the husband of the Defendant, adopted by Mohan
Lal 20 years ago at Tholai in the Jaipur Estate?

IIB. Was Mahadeo an orphan at the time of his adoption?
D
IIC. Was his adoption vaild?

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

Does the Plaintiff prove that Radhabai was authorised to adopt
a son by Mihadeo?
G
II Does the Plaintiff prove that he was adopted by Radhabai and
his adoption is valid and legal?

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

IV Does the Defendant No. I prove his own adoption by Mohan H
124 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Lal?

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

VI Is the decision given in Civil Suit No.87 of 1929 binding on the
B Plaintiff?

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

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

......... .in the affirmative.

II ........ .The factum of adoption is proved but the adoption is not
legal and valid.
D
III ...... .in the negative.

IV ...... .in the ~.ffirmative.

v ...... .in the affirmative.
E VI ...... .in the affirmative.

VII ...... .in the affirmative.

and on the basis whereof dismissed the suit. Records depict that the Appellate
Court confirmed the decree of dismissal of the suit.
F
The Appellant's definite assertion is that Mohan Lal adopted Mahadeo
in 1910 much before his death in the year 1923. Admittedly, Mahadeo pre-
deceased Mohan Lal as he died on 1st August, 1919 and the Appellant's
(Plaintiff) adoption by Radhabai is said to have taken place on 25th April,
G 1967. There is in fact a deed of adoption. Exhibit 116 brought before the
learned Trial Judge corroborated such a state of affairs. The deed also was
registered and by reason of registration and other available evidence on record
no exception can be taken to the observations of the learned Trial Judge that
there is overwhelming evidence on record to prove the factum of adoption.
There is existing evidence on record as regards the adoption ceremony. But
H the issue herein does not pertain to the validity and legality of the adoption
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.J 125
in terms of the registered deed in favour of the plaintiff by Radhabai and it A
is on this score that strong reliance was placed on Section 8 of the Hindu
Adoption and Maintenance Act and it is on this count the provision of the Act
(Section 8) would not have any application since the widow has undoubtedly
a right to adopt the child for herself but in the event the child was to be adopted
to the husband the statute is otherwise silent and thus the law as it stood prior
B
to the enactment of the legislation as regards the adoption would have to be
taken recourse to for proper appreciation. The Shastric law provides an express
authority by the husband to the widow to adopt a child and in the contextual
facts there is not even an iota of evidence in regard thereto as such adoption
has been stated to be not legal and valid by both the courts below and we do
also feel it inclined to accept the same. The submissions of Mr. Jain on this C
score thus stands negatived.

The discussion above could have been omitted but by reason of judicial
ethics since very strenuous submission has been made by Mr. Jain in support
of the Appeal, as regards the merits of the matter.
D
The doctrine of res judicata has received a statutory sanction in the Code
as a matter of prudence and to give due weightage to a finding or a decision
so as to reach a finality in the matter of a dispute between the same parties
or litigating under the same parties. The doctrine thus is to achieve finality of
dispute between the parties being a principle of prudence so as to give efficacy E
to a finding of the Court rather than permit the parties to go to trial more or
less on the same issues over again and thus introducing a possibility of conflict
Jf views. Judicial verdict has its special sanctity and cannot be the subject
matter of discussion at any future time involving identical or similar issues.
The facts in issue is one where more than one attempt has been made to
establish a fact and in every attempt that particular fact stands negated. F

In the present context, the issue is placed before the Apex Court, and
as such therefore, should have to be considered in its proper perspective so
that similar issues are not raised before the Court for adjudication on occasions
more than one since it has a salutory effect on to the jurisprudential system
of the country.
G

The 1976 Amendment to the Code and the introduction of Explanations
VII and VIII clarify the dual objective as noticed above. The objection
howsoever technical it may be, ought not to outweigh the reasonableness of
the doctrine. Raghubir Dayal, J. speaking for the majority view in off cited H
126 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Guiab Chand's case (Gulabchand Chhotalal Parikh v. State of Gujarat, AIR
(1965) SC 1153) in paragraphs 60 and 61 observed:

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

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

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

"It is clear from the judgment in Civil Suit No.87/29 that Mahadeo's
G adoption was the point in dispute. Thus, it is also clear that the
question of Mahadco's adoption is the contention in both the suits.
Again we find that the other questions are also common in that suit
and in this suit the question of adoption of present Defendant No. I
by Mohanlal, the question of validity of the adoption deed, dated 9th
H December, 1923 and the question ·Of validity of the Kararnama, dated
RAJENDRA KUMAR ~- KALYAN [BANERJEE, J.] 127
10th December, 1923 were also directly or substantially in issue in A
the said suit. Thus, in that suit the matter in controversy was decided
after full contest and after affording fair opportunity to the parties to
prove their case. Hence despite the fact that Betul Court was not
competent to try the suit before us the questions referred to above
which were decided in that suit would operate as res judicata, by the
B
general principles of res judil:ata, in view of the observations of the
Supreme Court. In that previous suit we find that it has been decided
that Mahadeo was not the adopted son of Mohanlal and secondly, the
Defendant No.l Ramgopal was adopted son of Mohanlal. Thirdly, the
question, the so-called validity of adoption deed, dated 9th December,
1923 was decided and it was decided that Kararnama, dated 10th c
December 1923 and adoption deed were not binding on the Defendant
No.l who was the plaintiffNo.2 in that case. Hence all these questions
cannot now be agitated in the suit before us and the decisions on those
points would operate as res judicata. The civil Suit No.157-Nl935
was filed by the Defendant No. I Ramgopal, as stated above, against D
Kisnibai and Radhabai and three others, now the question is as to
whether the decision in this Suit No.157-N35 operates as res
judicata. In that suit Radhabai was a party. The issues were -

(I) Whether the plaintiff (Defendant No.I in this suit) was adopted
~~~? E
(2) Whether the adoption deed, dated 9th December, 1923 and the
Kararnama, dated 10th December, 1923 were binding on the plaintiff
(Defendant No. l in this suit)?

It has been held that the Plaintiff (Defendant No. l in this suit) was F
adopted by Mohanlal. Secondly, the adoption deed dated 9th December,
1923 and the Kararnama, dated 10th December 1923 were held to be
not binding on the plaintiff (Defendant No. l in this suit). This
decision was confirmed by the High Court in Second appeal No.466/
1940 vide Exh.173 certified copy of the judgment. In my view, the
decision on these points would operate as res judicata against the
G
plaintiff. The reasons for my coming to the conclusions are the same
which I have discussed while deciding the question of res judicata
regarding decision in Civil Suit No.87/1929. I, therefore, hold that the
decisions in Civil Suit No.87/29 and Civil Suit No.157-Nl935 are
binding on plaintiff and they operate as res judicata. I, therefore, H
128 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A answer issue Nos. 7,18 and 19 in the positive."

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

The Explanation VIII as inserted by the Amendment Act of 1976 reads
as below:

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

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

"We find that merely because in the present case the Courts, which
decided the earlier suits could not have entertained the present suits,
E
the finding recorded by them would not cease to operate as res
judicata, in view of the introduction of Explanation VIII to section! 1
of the Code of Civil Procedure. The submission, however, on this
point on behalf of the plaintiff was that no retrospective operation
could be given to the Explanation VIII inserted by Act 104 of 1976
F and the suit which was instituted in the year 1968 would have to be
decided as if Explanation VIII to section 11 was not on the statute
book. The question, whether retrospective effect should be given to
Explanation VIII would depend on the provisions of the 1976
Amending Act. Section 97 of Act 104of1976, so far as relevant runs
as follows:-
G
"97(1) any amendment made, or any prov1s1on inserted in the
principal Act by a State Legislature or a High Court before the
commencement of this Act shall, except in so far as such amendment
or provision is consistent with the provisions of the principal Act as
amended by this Act, stand repealed.
H
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.] 129
(2) Notwithstanding that the provisions of the Act have come into A
force or the repeal under sub-section ( l) has taken effect, and without
prejudice to the generality of the provisions of Section 6 of the
General Clauses Act, 1897,

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

(b) _ _ _ _ _ _lo
c
(zb) _ _ _ _ __

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

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

We do feel it expedient to record that the analysis as effected by the High
Court stands acceptable and as such we refrain ourselves from dilating on this H
130 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A aspect of the matter any further. It is pertinent to add in this context that some
differentiation exists between a procedural statute and statute de1ling with
substantive rights and in the normal course of events, matters of procedure are
presumed to be retrospective unless there is an express ban on to its
retrospectivity. In this context, the observations of this Court in the case of
Jose Da Costa and Another v. Bascora Sadasiva Sinai Narcornim and Ors.,
B
[ 1976] 2 SCC 917 is of some relevance. This Court in paragraph 31 of the
Report observed:

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

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

Still later this Court in Gurbachan Singh v. Satpal Singh & Others, AIR
(1990) SC 209 expressed in the similar vein as regards the element of
G retrospectivity. The English Courts also laid that the rule that an Act of
Parliament is not to be given retrospective effect applies only to statutes which
affect the vested rights: It does not apply to statutes which alter the form of
procedure or the admissibility of evidence, or the effect which the courts give
to evidence: If the new Act affects matters of procedure only, then, primafacie,
H it applies to all actions pending as well as future (see in this context the
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.j 131
decisions of the House of Lords in the case of Bly1h v. Bly1h, ( 1966) I All ER A
524: A.G. v. Vernazza, (1960) 3 All ER). In Halsbury~ Laws of England (4th
Edition: Vol.44: para 925 page 574) upon reference to Wright v. Hale, (1860)
6 H & N 227 and Gardner v. Lucas, (1878) 3 Appeal Cases 582 alongwith
some later cases including Blyth v. Blyth (supra) it has been stated: "the
presumption against retrospection does not apply to legislation concerned
B
merely with matters of procedure or of evidence; on the contrary, provisions
of that nature are to be construed as retrospective unless there is a clear
indication that such was not the intention of Parliament".

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

Before we proceed with the matter further, incidentally, be it noted that D
on the factual score, the question whether the Plaintiff- appellant's adoption
by Radhabai was, in fact, established or not - there is no divergence of views
between the Appellate Court and the Trial Court: The factum of adoption was
established but whereas the trial Court doubted its legality, the Appellate Court
in no uncertain term recorded: "there was no question of any illegality E
attaching to the adoption on account of absence of authority from the husband
to adopt the child". It is noteworthy at this juncture that by reason of the
exposition of law as above and since Mahadeo's adoption was negated in the
earlier suit. question of any further claim on the basis of adoption of Mahadeo
would not arise. The Appellate Court as a matter of fact laid emphasis on the
question as to whether the Plaintiff by virtue of being Mahadeo's adopted son F
would be entitled to claim rights in the property which belong to Mohan Lal
and referred lo Clause (c) of Proviso to Section 12 of the Hindu Adoption and
Maintenance Act. For convenience sake the third proviso to Section 12 is noted
hercinbelow:

"12. Effecls of adoplion .
G

....................... prO\ ided that -

H
132 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A (c) the adopted child shall not divest any person of any estate which
vested in him or her before the adoption''.

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

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

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

H It is on the above observation that Mr. Jain very strongly contended that
RAJENDRA KUMAR v. KALYAN [BANERJEE, J.] 133
the Plaintiff by a legal fiction talces the interest of Mahadeo in 1919 when he A
is deemed to be born, though, in fact however, he was born in 1951. We
however, cannot lend any concurrence to the submission of Mr. Jain. The
plaintiff can only claim by succession to Radhabai and not as a co-parcener
on the basis of a legal fiction. We feel it expedient to record that the analysis
of the situation by the Appellate Court that the Plaintiff would have to claim
B
under Radhabai but by virtue of Section 12 of the Act of 1956, the plaintiff
would not have any right on the basis that he was Mahadeo's adopted son.

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

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

Mr. Mohta appearing for the respondents, however, relying on the earlier
judgment and the findings as regards the affirmation of Ramgopal's adoption
and negation of Mahadeo's adoption and the factum of the Plaintiff having F
been litigated under the same title as Radhabai and since Radhabai was a party
to the previous suit, very strongly contended that question of any doubt being
raised as regards the applicability of the doctrine of res judicata or constructive
res judicata does not and cannot arise. Mr. Mohta contended that vesting in
any event cannot talce place in favour of an unborn person and vesting must G
be viz-a-viz a Ii ving person and the legal fiction pertaining to vesting to an
unboi;n person would not arise. We do find some contentious substance in the
contextual facts, since vesting shall have to be a 'vesting' certain. "To 'vest',
generally means to give a property in". (per Brett L.J. Coverdale v. Charlton,
48 L.J.Q.B. 132: Stroud's Judicial Dictionary 5th Edition. Vol.VI). Vesting in
favour of the unborn person and in the contextual facts on the basis of a H
134 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A subsequent adoption after about 50 years without any authorisation cannot,
however, but be termed to be a contingent event: To 'vest', cannot be termed
to be an executory devise. Be it noted, however, that 'vested' does not
necessarily and always mean ·vest in possession' but includes 'vest in interest'
as well.

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

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

V.S.S. Appeal dismissed.