CPC Case Brief – Sundar Bai v Devaji (Litigating under the same title rule for S. 11)

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Facts: – Devrao had two wives Sunderbai and Rangubahi . He had a son by name Shankar born to him by his wife Rangubai who died in about 1893. Shankar died in about 1902 leaving him surviving his widow Gangabai. Devarao died in the year 1904 leaving him surviving his widow Sunderabai, the Defendant 1. Devarao Was the sole surviving coparcener of the family and after his death the Defendant 1(Sunderabai) and Gangabai the widow of his pre-deceased son Shankar were the only two members of the family surviving. Gangabai adopted Devaji the plaintiff as a son to her deceased husband Shankar on or about the 18th February, 1934, and disputes arose between Gangabai and the plaintiff ( Devaji) on the one hand and the Defendant 1 ( Sunderbai ) on the other in regard to the validity of the adoption of the Plaintiff.( Devaji )

The dispute was referred to arbitrator who declared the following award

  • It is declared that the adoption of the plaintiff is not valid.
  • It is declared that the right of adoption is lost to Gangabai from the very beginning.
  • It is declared that the Plaintiff is not and can never become entitled to the property belonging to the family of Devarao Bapuji Deshpande.
  • Nevertheless, with the object of maintaining peace and good-will and affection in the family and the Defendant 1 (Sunderbai ) shall pay to the plaintiff rupees 8,000, eight thousand in one lump sum
  • The decree for maintenance obtained by Gangabai against the Defendant 1( Sunderbai ) shall continue permanently.

The Court made a consent decree accordingly on application filed by both the parties on 6th August, 1937 . Acting on some lawyer advice Gangabai again adopted the Devaji on 12th December, 1943 Coming to know of this adoption, the Sunder bai adopted her daughter’s son, Jivaji, the Defendant 2 as a son to her deceased husband Devarao. In regard of which Plaintiff/ Respondent, Devaji filed a suit for claiming possession of the properties belonging to the family in capacity of an adopted son to deceased Shankar. The Defendant 1/ Appellant in the written statement contended the plea of “Doctrine of Res- Judicata”

Issue :  Whether the present suit was barred by ‘res judicata’ by reason of the consent decree

Holding : Court held that the plaintiff, Devaji was “ Litigating under the Same title” .

Referring to ratio of Mt. Sardaran v. Shiv Lal, where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as ‘res judicata’ though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as ‘res judicata’ even though the property was identical. It is therefore clear that the Plaintiff in the case before us was litigating under the same title, i.e., in the same right as the adopted son of Shankar though that claim of his was sought to be based on a later adoption than the one in the former suit.

The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the suit but the underlying principle of estoppel would still apply and plaintiff suit is liable to be set aside.

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