PRABHAKARI v. SHAMLAL GULABLAL — 1970 DIGILAW 91 (KAR)

HONNIAH, J. ( 1 ) THE appellate Prabhakarlal is the first defendant in the suit. The first respondent Shamlal is the plaintiff. Shamlal brought the suit out of which this appeal arises, against the first defendant and five others in the court of the Civil Judge. Sr. Dn. , Belgaum (suit No. 14 of 1959 ). for setting aside the decree obtained by the first defendant in Spl. Suit No. 159 of 1940 of the Court of the First Class Subordinate Judge. Belgaum and in FA. No. 84 of 1943 of the High Court of Bombay on the ground that at the time when the previous suit was filed he and his brother Bhansilal, who were defendants 1 and 2 respectively in the previous suit, were minors and the decree had resulted from grosws neglience of the guardian and from fraud and collusion. ( 2 ) THP learned trial Judge found that there was no gross negligence of the guardian. However, he was of the view that fraud was practised by the other defendants and one Babanna and Ramlal the genitive father of the first defendant on the Court as well as on the guardian. He also held that there was evidence of collusion between the defendants. Ramlal and babanna and held that the decree in the previous suit was not binding on the plainliff and directed the Special Suit No. 159 of 1940 to be re-opend and to be heard afresh. This appeal is filed by the 1st defendant, Prabhakarlal, against the said decree ( 3 ) IN order to understand the dispute arising in this appeal, we think it necessary to set forth the relationship of the parties with reference to the pedigree in the plaint, which is not disputed ( 4 ) THERE was a man called Bachulal who had two sons Jurkhanlal and Hiralal. Jurkhanlal had six sons, Ramlal, Mohanlal, Rajaram, Nandalal, madarilal and Ramshaya. Madarilal and Ramshaya appear to have died issueless. Four of the sons viz. , Ramlal, Mohanlal, Rajaram, Nandalal are the ancestors of the parties to this suit. Plaintiff and defendant no. 2 are the grandsons of Ramlal. Defendant No. 1 is the adopted son of Mohanlal. Defendant No. 3 is the daughter of Jawarlal. Defendant no. 4 is the son of Rajaram. Defendant No. 5 is the son of Nandalal and defendant No. 6 is his grandson. Plaintiff and defendant no. 2 are the grandsons of Ramlal. Defendant No. 1 is the adopted son of Mohanlal. Defendant No. 3 is the daughter of Jawarlal. Defendant no. 4 is the son of Rajaram. Defendant No. 5 is the son of Nandalal and defendant No. 6 is his grandson. During the pendency of the suit, Sangamlal (defendant 4) died and his heirs are brought on record as defendants 4 (a) to 4 (d ). Ratanlal also died and his heirs defendants 5 (a) to 5 (d) are brought on record. ( 5 ) JURKHANLAL died in about the year 1895 and his divided brother hiralal had predeceased him. ( 6 ) IT appears mat during the life time of Hiraial, he filed a suit no. 176 of 1893 against his brother Jurkhanlai and Jus sx sons, claiming partition of the family properties. The defence was that mere was a partition earlier between the brothers in which the suit properties tell to the share or jurknanial the suit was dismissed. ( 7 ) JURKHANLAL moved to Beigaum sometime prior to 1893. Ramlal died in 1920 and Rajaram died in 1917. Gulabram, me father ot the plaintiff and defendant No. 2, had married a woman called Sitabai Medubai alias Umabai was the widow of Mohanlal, who adopted the first defendant to her husband on 14-10-1937. ( 8 ) RAJARAM's branch is represented by defendant No. 3 and the legal representatives of defendant No. 4; Nandalal's branch is represented by defendant No. 6 and other legal representatives of Ratanlal. ( 9 ) IN 1937, Rajaram's second son Sangamlal and his wife filed CS. No. 449 of 1937, on the file of the Civil Judge, Bagalkot for partition of the family properties. The representatives of all the branches were impleaded as defendants, including Madubai the widow of Monanlal madubai filed a written statement in which she averred that she had adopted the present first defendant to her husband on 14- 10-1937. The plaint was however, returned for presentation to the proper Court. It was accordingly presented to the Court at Beigaum. This suit had been filed a few months earlier to the said adoption. The plaint was however, returned for presentation to the proper Court. It was accordingly presented to the Court at Beigaum. This suit had been filed a few months earlier to the said adoption. Because Madubai had averred in her written statement that she had adopted the first defendant to her husband, Sangamlal thereupon made an application in the Court at Belgaum, after he presented the plant, for the amendment of the plaint to implead the first defendant. The suit, however, was eventually rejected for non-payment of deficit Court fee. It is relevant at this point to mention that Madubai died in December 1938. ( 10 ) IN the year 1940, on behalf of Prabhakarlal, who was a minor then, his natural father Ramlal, as the next friend, filed a suit OS. No. 159 of 1940 in the Court of First Class Subordinate Judge, Beigaum against the plaintiff and second defendant and other defendants who were all the members of the family, for partition and possession of 1/4 share in what he alleged to be joint family properties, on the basis that Prabhakarlal was the adopted son of Mohanlal. Gulabram's sons Bansilal and Shamlal who are defendant 2 and plaintiff respectively in the present suit were defendants 1 and 2 respectively in that suit. They were minors at that time. By then, the mother Sitabai had been appointed as the guardian to the person of the minors and the Deputy Nazir of Beigaum had been appointed as guardian of their property in proceedings No. Misc. 32 of 1938 on the file of the Assistant Judge, Beigaum. In that suit, they were represented by their guardian ad litem the Deputy Nazir, Beigaum. ( 11 ) JAWARLAL, Sangamlal, Motilal and Ratanlal were defendants 3 to 6 respectively in OS. 159/1940. Ratanlal's son Pursatlal was impleaded as defendant 7. In that suit, defendants 1 and 2 are the only defendants who contested the suit. The other defendants did not dispute the question of adoption but contended that the properties that were in their possession were self acquisitions and were not liable for partition and that the suit properties being joint family properties were liable for partition. On behalf of defendants 1 and 2, various pleas were put forward by their guardian the Deputy Nazir. The other defendants did not dispute the question of adoption but contended that the properties that were in their possession were self acquisitions and were not liable for partition and that the suit properties being joint family properties were liable for partition. On behalf of defendants 1 and 2, various pleas were put forward by their guardian the Deputy Nazir. The most important plea related to the factum and validity of adoption and the character of the suit schedule properties, viz. , whether they were joint family properties or self acquired properties of ramlal and Gulabram. The suit was decreed, except in relation to some, items of property which were held to belong exclusively to defendants 1 and 2. This decree was challenged in FA. No. 84 of 1843 in the High Court of Bombay by defendants 1 and 2, represented by their guardian, the deputy Nazir, as they still continued to be minors. But, by the time the appeal was disposed of on July 10, 1947 Bansilal (the first defendant in that suit) had become a major. It may be mentioned that during the pendency of the suit, the Deputy Nazir, on the advice of the Counsel, filed a pursis (a memo) stating that in view of the fact that the plaintiff was ready with his witnesses to prove the factum of adoption and also that there were a registered adoption deed and a yadi executed by Madubai, he was not contesting the factum of adoption, leaving open the validity of adoption to be decided by the Court. On the basis of that pursis and the prevailing law then, a decree was passed, holding that the plaintiff in that suit was the adopted son of Medubai and that it was a valid adoption. In the said appeal, on behalf of the minors two senior Advocates were engaged by the Deputy Nazir and from the records it could be gathered that Babanna also accompanied the Deputy Nazir to instruct him in filing the appeal. The High Court of Bombay, in regard to the question of adoption, has stated thus:"in the suit the plaintiff's adoption as well as its validity were disputed but the learned Judge found the plaintiff's adoption proved and held that the adoption was valid. The question of plaintiffs' adoption and its validity is no longer in controversy in this appeal. The High Court of Bombay, in regard to the question of adoption, has stated thus:"in the suit the plaintiff's adoption as well as its validity were disputed but the learned Judge found the plaintiff's adoption proved and held that the adoption was valid. The question of plaintiffs' adoption and its validity is no longer in controversy in this appeal. "in regard to the contentions raised by the defendants that some of the properties held by them were self acquired properties, the Court confirmed the decree of the trial Court but stated that:" It will be open io plaintiff or defendants 1 and 2 to bring in the suit the properties which have been disclosed in the answers to the interrogatories given by defendants 3, 4, 6 and 7 as also such other properties as may be disclosed hereafter. "subject to this variation, the High Court confirmed the decree of the trial court. ( 12 ) BANSILAL the elder brother of the plaintiff, who had attained majority later on, filed Spl. Suit No. 27 of 1950 on the file of the Joint civil Judge, Sr. Dn. , Belgaum, for getting the decree in Suit No. 159 of 1940 and the FA. No. 84 of 1963 mentioned above set aside and also for setting aside the pursis (memo) dt. 5-8-1942 passed by the Deputy Nazir, by which he conceded the factum of adoption of Prabharkarlal, on the ground of gross negligence of the Deputy Nazir, fraud committed by other defendants in the earlier suit and Babanna and Ramlal on the Deputy nazir and also on the Court and collusion amongst them. In that suit, all the parties to the earliar suit viz. OS. No. 159 of 1940, including the present plaintiff, were arrayed as parties. In that suit, the present plaintiff was represented by the then Deputy Nazir, as he was still a minor. He filed his written statement on behalf of the minor contending, inter alia that his predecessor in office had conducted the case with due care and diligence and denied that there was any gross negligence on his part. It was also pleaded that to the knowledge of then Deputy Nazir there was no collusion and that no fraud was committed either on the Deputy Nazir or on the Court in the conduct of that suit. It was also pleaded that to the knowledge of then Deputy Nazir there was no collusion and that no fraud was committed either on the Deputy Nazir or on the Court in the conduct of that suit. It was urged on his behalf that he had no objection to the pursis and the decree being set aside on the plaintiff in that suit establishing the allegations in the plaint. The other defendants supported the contention of the present appellant. In substance, their case was that Medubai adopted Prabharkarlal and the decree was not liable to be set aside. It is necessary here to set out the relevant issues raised in the suit filed by Bansilal. They are as follows: (1) Does plaintiff prove that one Babanna Mallappa Paraji colluded with the guardian of defendants I and 3 to 7? (2) Does plaintiff prove that the Deputy Nazir and Sitabai passed the pursis dt. 5-8-1942 in OS. No. 159/1940 under misrepresentation and fraud practised upon them by Babanna and defendants 1 and 3 to 7 through the agency of Babanna ? (3) Does plaintiff prove that his guardian acted with gross negligence in OS. No. 159/1940? (4) Is the decree in OS. 159/1940 vitiated by fraud and gross negligence? the trial Court negatived the contentions of the plaintiff Bansilal, with the result the suit came to be dismissed. Against this decree, Bansilal filed an appeal to the High Court of Bombay, which stood transferred to this court under the provisoins of the States Reorganisation Act, and which was numbered as RA. (B) 31 of 1956 on the file of this Court. During the pendency of the appeal, the present plaintiff Shamlal attained majority and he was represented by his own Advocate. As stated earlier, the Deputy nazir on behalf of the present plaintiff had filed a written statement denying the plaint allegations of Bansilal in suit No. 27 of 1950 that the previous suit had been conducted by the guardian, viz. , the Deputy Nazir without due care. He contended that in the event of the suit being decreed, the present plaintiff should also have the benefit of the decree. On attaining majority during the pendency of the" appeal, the present plaintiff was entitled to adopt the stand taken by his guardian or to take an independent stand. , the Deputy Nazir without due care. He contended that in the event of the suit being decreed, the present plaintiff should also have the benefit of the decree. On attaining majority during the pendency of the" appeal, the present plaintiff was entitled to adopt the stand taken by his guardian or to take an independent stand. It could be gathered from the judgment in the appeal before this court that the Advocate on behalf of the present plaintiff stated that he fully supported his brother Bansilal. This Court came to the conclusion that there was no substance in the contention of Bansilal that there was any collusion between Babanna and Shamlal and other defendants. The court also held that there was no gross negligence in the conduct of the minors' defence in the previous suit by the guardian. This Court also held that no fraud had been committed either on the Deputy Nazir or on the court, as alleged by Bansilal. In that view, this Court confirmed the decree of the trial Court, by dismissing the appeal. The appeal was dismissed on August 19, 1958. It is, thereafter that Shamlal the present plaintiff has filed a suit on the very identical grounds on which his elder brother had earlier filed Special Suit No. 27 of 1950 for setting aside the decree in suit No 159 of 1940 and the FA. No. 84 of 1943. ( 13 ) THE main grounds stated in the plaint for vacating the judgment and decree in OS. No. 159/40 and FA. 84/43 are that the Deputy Nazir was grossly negligent in conducting the defence, and that fraud was practised on the Deputy Nazir and the court by Prabhakarlal and his genitive father with the assistance of one Babanna, who was said to be working as a clerk under the father of the plaintiff and of the other defendants in that suit. ( 14 ) THE Deputy Nazir who conducted O. S. 159/40 is not a party in this suit and was not a party in the previous suit filed by the plaintiffs brother on identical grounds. The defence in this case is more or less the same as the one taken up in the suit filed by Bansilal. ( 14 ) THE Deputy Nazir who conducted O. S. 159/40 is not a party in this suit and was not a party in the previous suit filed by the plaintiffs brother on identical grounds. The defence in this case is more or less the same as the one taken up in the suit filed by Bansilal. In substance the defence is that there was no gross negligence on the part of the Deputy nazir nor was there any fraud or collusion as alleged by the plaintiff. It was further pleaded that the present suit was barred by the rule of res judicata since the earlier suit for identical reliefs filed by Bansilal to which the plaintiff was a party had been dismissed. Bansilal remained ex-parte but the other defendants who were parties in the earlier suit, filed written statements contending that Medubai had adopted Prabhakarlal. ( 15 ) ON the above pleadings, issues were raised and the relevant issues are as follows: (i) Does he prove that the purshis dated 5-8-1942 filed in R. O. S. No. 159/40 was procured by fraud practised on plaintiff's guardian by defendant's father and other defendants in that suit and Babanna' acting in collusion with each other? (ii) Does he prove that his guardian-ad-litem acted with gross negligence in the said suit? (iii) Is the decree in O. S. No. 159/40 (confirmed in F. A. No. 84/1943) void and not binding on the plaintiff? in effect and substance, the issues in this case are the same as the issues raised in Special Suit No. 27 of 1950 filed by Bansilal. ( 16 ) FOUR witnesses were examined on behalf of the plaintiff. The trial Judge, except making a reference to the evidence of the Finger Print expert V. S. Deshpande, P. W. 1, has not referred to any other evidence. P. W. 2 is the photographer who. took the photographs of the thumb im pressions found on the yadi Ext. 113 and the adoption deed Ext. 119 said to have been executed by Medhubai evidencing adoption and the thumb impression found on the torn written statement filed by Medhubai in O. S. No. 449 of 1937 on the file of the Civil Judge, Junior Division, Bagalkot. PW. 3 is the power of attorney holder of the plaintiff for about six years prior to his examination, which took place in the year 1966. PW. 3 is the power of attorney holder of the plaintiff for about six years prior to his examination, which took place in the year 1966. P. W. 4 is a resident of Hirelal near Bagalkot, who claims to be the servant of sangamlal for some years. P. W. 3's evidence was read to us and we are of the opinion that the whole of the evidence is hear-say. He has absolutely no personal knowledge of what took place both in regard to adoption as well as the conduct of the suit on behalf of the minors by the Deputy nazir. P. W. 4's evidence is that the genitive father of Prabhakarlal was the maternal-uncle of Sangamlal and Jawarlal. It is in evidence that jawarlal was residing at Sholapur and he had no male issue. According to him one Mahadevappa Kalal informed Babanna when he had come to bagalkot that no adoption took place and at that time this witness was sitting on the pial of Mahadevappa and over-heard the talk. He informed this fact to Sangamlal, who asked him to bring Babanna. Accordingly he took Babanna to Sangamlal's house where a talk took place beween them and Babanna agreed that he will consent to the adoption in the civil court. From this evidence, it is difficult to hold that any conspiracy took place between Babanna and Sangamlal, in that, Babanna should consent to the adoption while in fact it was not so. It is possible to infer that when this witness informed sangamlal about what he heard about the talk between Babanna and Mahadevappa, sangamlal might have sent for Babanna and appraised him about the true state of affairs and that Babanna might have agreed to consent to the adoption in the court. It may be noted that Sangamlal's share to certain extent would have got diminished by his agreeing to the adoption. Therefore, it is unlikely that if them was no adoption, he would have induced babanna to consent to the adoption in the civil court which would have gone against his own interest. There is absolutely no evidence that ramalal, the genitive father of Prabhakarlal, at any point of time either colluded or conspired with Sangamlal to establish adoption even though medhubai had not in fact taken in adoption Prabhakarlal. There is absolutely no evidence that ramalal, the genitive father of Prabhakarlal, at any point of time either colluded or conspired with Sangamlal to establish adoption even though medhubai had not in fact taken in adoption Prabhakarlal. In these state of affairs at any rate, there is no evidence proving that there was no adoption as alleged by the plaintiff or that there was collusion between babanna and Sangamlal in putting forward the adoption falsely. In cross-examination p. W. 4 has merely stated that he does not know anything when he was questioned with respect to the relevant matters. Apart from his own assertion, there is no evidence either direct or circumstantial to probabilise that he was Sangamlal's servant. The learned trial Judge has relied upon the evidence of the Finger-print Expert to come to the conclusion that the thumb impression on the adoption deed, yadi and the torn written statement are bv different persons. In the course of the judgment at para 41 this is what the trial Judge savs :"the expert is of the opinion that the thumb mark 'a' is of the whorl type, the thumb mark 'b' of the loop type and the thumb mark 'c' of the composite type. So there is a difference in the primary patterns. The expert states that no twin prints will be identical unless they belong to the same person and the same finger. "after taking into account a certified copy of deposition of one Yelgurd jivaji Kulkarni who had given evidence in Special Suit No. 27/50, he comes to the conclusion that the thumb impression on the torn written statement Ext. 117 is the admitted thumb impression of Medhubai and that this witness had written the endorsement before the thumb mark. Yelgurd jivaji Kulkarni has not been examined in this case, but his deposition in special Suit No. 27 of 1950 has been marked as exhibit in this case. It is not shewn by Mr. Albal, the learned counsel for the plaintiff, in this Court, how the deposition of a witness in a previous suit is admissible in evidence when he is not called as a witness in the present case. It is also not shown that this person is either dead or is otherwise not available. So his deposition is not admissible either under S. 32 or 33 of the Indian Evidence Act, as contended by Sri Albal. It is also not shown that this person is either dead or is otherwise not available. So his deposition is not admissible either under S. 32 or 33 of the Indian Evidence Act, as contended by Sri Albal. Therefore, the trial Judge was in error in holding that the thumb impression found on Ext. 117 is that of Medhubai and on that basis in coming to the conclusion that the thumb impression found on the yadi and adoption deed prima facie are not genuine. He has also not expressed any firm opinion and this is what he savs in respect of the adoption deed and the vadi, "however, I am not giving a final decision in this suit that the adoption yadl and the adoption deed are forced instruments. " because he held that prima facie the adoption deed and the yadi are not genuine, he comes to the following conclusion:"the Chief perpetrators of the fraud were, Sangamlal and Ratanlal. The other members of the family were not interested in challenging the adoption of defendant-1, because a tacit assurance was given to them that their properties would not be brought info the common hotch-pot. So defendant-1 has obtained a decree by committing fraud upon the plaintiff and defendant-2 as well as upon the court. "this finding of the learned Judge is based on no evidence, but it appears to us that this is his surmise. However he negatived the contention of the plaintiff of gross negligence on the part of the Deputy Nazir in conducting o. S. No. 159/40 in view of the decision of this Court in R. F. A. (B) No. 31 of 1956. ( 17 ) REGARDING the question of res judicata raised by Prabhakarlal in this suit, an issue was raised and tried as a preliminary issue and the trial court came to the conclusion that this suit was not barred by tke principles of res judicata. ( 18 ) MR. V. KRISHNAMURTHY, the learned counsel for the appellant contended that there was no gross negligence on the part of the Deputy nazir in conducting the defence in OS. No. 159/40; that no evidence has been placed on record to show that extrinsic fraud was committed on the nazir and the court in the said suit; and, that the suit was barred by the principles of res judicata. No. 159/40; that no evidence has been placed on record to show that extrinsic fraud was committed on the nazir and the court in the said suit; and, that the suit was barred by the principles of res judicata. ( 19 ) SO far as the first point is concerned, the contention of Mr. Albal was that the Deputy Nazir did not take due care and caution in examining the documents relevant for the defence; that the court certainly would have viewed the evidence regarding adoption very strictly in view of the fact that every adoption would result in the introduction of a stranger to the family into which adoption is made; that the thumb impressions on the adoption deed and the vadi would appear to the naked eve as of two different persons; that the Nazir in having not examined them, did not conduct the defence properly; and, thai the Nazir did not take proper steps to obtain documents which would have proved the case of the minors that the properties of which they were in possession were the self-acquisitions of their father and grand-father, and, at any rate, that they were not joint family properties. ( 20 ) IN order to appreciate the contention raised by Mr. Albal, it is necessary to determine the true scope and effect of the decision in Special suit No. 27/1950 filed by the brother of the present plaintiff. In that suit similar contentions were raised and it was held that there was no gross negligence on the part of the Deputy Nazir in conducting the defence of the minors. In that suit the thumb impressions found on the adoption deed and the yadi were examined by an expert and he was of the view that the thumb impressions on the adoption deed and the yadi were of different persons. The question however is whether the adoption deed which is a registered document, is a forged one. In that suit the thumb impressions found on the adoption deed and the yadi were examined by an expert and he was of the view that the thumb impressions on the adoption deed and the yadi were of different persons. The question however is whether the adoption deed which is a registered document, is a forged one. S. 60 (2) of the Indian Registration act while dealing with the certificate endorsed on a registered instrument under S. 60 (1) of the Act states that, "such certificate shall be sighed, sealed and dated by the registering officer and shall then be admissible for the purposes of proving that the document has been duly registered in manner provided by this Act and that the facts mentioned in the endorsements referred to in S. 59 have occurred as therein mentioned. " The endorsement on the adoption deed by the Sub-Registrar is to the effect that the executant, namely, Medhubai admitted execution in his presence and to that effect he has made an endorsement. It is quite probable that medhubai had appeared before the Sub-Registrar as mentioned therein. There is nothing to show that it could not have been so. It is necessary here to reier to the evidence of the Finger-Print Expert. In the course of his cross-examination he has stated that the thumb impressions found on exts. 118 and 119, yadi and the registered adoption deed, are rolled impressions and that found on Ext. 117, namely, written statement is not a completely rolled impression, but a partially rolled one. To a question put to him whether the thumb impression found on the written statement is a partial impression, his answer was that it was a partially rolled impression and the complete impression is not there i. e. the lower portion of the thumb is not there. From this evidence, it is clear that the thumb impression found on the written statement Ext. 117 is not a full thumb impression. For the reasons stated already by us, there is no evidence that that thumb impression on Ext. 117 is that of Medhubai. This is the only additional evidence placed on record in this suit. . From this evidence, it is clear that the thumb impression found on the written statement Ext. 117 is not a full thumb impression. For the reasons stated already by us, there is no evidence that that thumb impression on Ext. 117 is that of Medhubai. This is the only additional evidence placed on record in this suit. . Regarding the thumb impression found on the registered adoption deed and the vadi this is what this Court said in the appeal which arose out of the suit filed by bansilal the elder brother of the present plaintiff,"it is urged for the appellant, however, that as the patterns themselves were different the thumb impression on the vadi was of the whorl pattern and those on the adoption deed were of the loop pattern, there was no need for such comparison. Even if this be so. it is to be noticed that the possibility of either one or the other of the documents having been executed by Medhubai cannot be excluded. Further, the conduct of the guardian or the pleaders at the time the previous suit was being proceeded with cannot be judged on the basis of the information obtained after the termination of the suit. We have to see whether at the time the guardian and the pleaders filed a memo conceding the factum of adoption the knowledge they had or could gather of the facts of the case could be such as to render such a concession an act of gross negligence. "having stated so, this Court came to the conclusion that there was no gross-negligence on the part of the Deputy Nazir. As long as the admitted thumb impression was not available for comparison, one has got to look into the registered adoption deed which has been duly executed by medhubai in the absence of any other evidence to doubt its genuineness. The Deputy Nazir on the day he passed the pursis, it could be gathered from the contents of the pursis itself, knew that Prabhakarlal had taken steps to examine about eight witnesses to prove the factum of adoption and also produced the registered adoption deed and the yadi. From the list of witnesses that he had cited to prove this fact, it is seen that majority of them were connected with the adoption deed. From the list of witnesses that he had cited to prove this fact, it is seen that majority of them were connected with the adoption deed. It was also a fact that in the earlier suit the other defendants, who would be affected by the adoption, had filed written statements admitting the adoption of Prabhakarlal by Medhubai. It could be gathered from the records that the Nazir was taking instructions from Babanna who, as already stated, was said to be the clerk under the father of the minors and also Seethabai, mother of the minors. He had also had the advice of two senior advocates of the Belgaum bar, who were defending the minors. Taking all these circumstances into consideration, it is difficult to hold that the Deputy Nazir was grossly negligent in passing the pursis, admitting the factum of adoption. There is no evidence that Babanna or anvbody else misled the Deputy Nazir. As a matter of fact the Deputy Nazir had taken all care and caution while filling the written statement and in fact had questioned the validity of the adoption of Prabhakarlal at the earliest point of time. He had taken the advice of senior counsel at Belgaum. If in those circumstances, the Deputy nazir passed the pursis conceding the factum of adoption but leaving open the validity of the same, it cannot be said by anv stretch of imagination that he was grossly negligent in defending the minors. This is also the view that this Court took in R. A. (B ). 31 of 1956. ( 21 ) MR. Albal urged that the genitive father of Prabhakarlal in collusion with Babanna and other defendants committed fraud on the Nazir and on the court in not disclosing the true state of affairs to the Nazir as to the factum of adoption and in respect of the claim of the minors that the properties that were in their possession were self acquisitions of their father and grand-father. There is not an iota of evidence in this case to hold that any extrinsic fraud was committed either on the Nazir or on the court either by the genitive father of Prabhakarlal or Prabhakarlal of anyone else. The law relating to the setting aside of earlier judgments and decrees is not an exception to the rule of res judicata, but is an independent one. The law relating to the setting aside of earlier judgments and decrees is not an exception to the rule of res judicata, but is an independent one. The true principle is that the correctness of the judgment of a court of competent jurisdiction cannot be impeached ordinarily but it must be shown in order to get rid of it that the value of the judgment assuming it to be correct, is destroyed bv collateral or extrinsic fraud in the obtaining of it. It stands to reason that the unsuccessful party cannot be allowed a fresh suit nor to make a fresh attempt in order to show that the evidence which was insisted on bv his opponent as true was in reality false and to characterise such insistence as fraud in obtaining the judgment. This is exactlv what the plaintiff wants to do in this case. Having placed no material to prove that there was any collusion or that any extrinsic fraud was committed by anyone either on the Nazir or on the Court, he cannot be allowed to reagitate the same matter. ( 22 ) REGARDING the last contention of Mr. Krishnamurthy that this suit is barred by the principles of res judicata, there cannot be any doubt that it is so. It may be stated here that the interest of the plaintiff and bansilal were identical in Spl. Suit No. 27/50, and in R. A. (B ). 31/56 on the file of this Court. The plaintiff in this suit was a co-defendant with prabhakarlal in those proceedings. The question involved in both the suits and the issues raised in both the suits are substantially the same. The subject matter is also the same. It was necessary for the court to decide the same issues as between the present plaintiff and Prabhakarlal in the earlier proceedings, there being conflict of interest between them. It was necessary to do so to give relief to the plaintiff in the earlier suit. The said issues were finally decided in the earlier proceedings. In the appeal, the present plaintiff after attaining majority conducted the case through his own Counsel. The contention of the appellant is based on the principle laid down by the Privy Council in Maung Sein Done v. Ma Pan Nyom, AIR. 1932 PC. The said issues were finally decided in the earlier proceedings. In the appeal, the present plaintiff after attaining majority conducted the case through his own Counsel. The contention of the appellant is based on the principle laid down by the Privy Council in Maung Sein Done v. Ma Pan Nyom, AIR. 1932 PC. 161 wherein it is held that the statement of the doctrine of res judicata, contained in s. 11 is not exhaustive and therefore recourse may properly be had to decisions of the English Courts for the purpose of ascertaining the general principles governing the application of the doctrine; and, that if a plaintiff cannot get at his rights without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants also will be bound by the decree so made; but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceedings which may be necessary only to the decree the plaintiff obtains. The Supreme Court in Shashi Bhushan Prasad Misra v. Babuji rai, AIR. 1970 SC. 809 has referred to the circumstances when an earlier judgment operates as res judicata between co-defendants in a subsequent suit between the same parties. They are, (i) there should be conflict of interests between them; (ii) it should have been necessry to decide that conflict in order to give the plaintiff the reliefs claimed by him; and, (iii) the question between the co-defendants must have been finally decided. In the present case, all the three conditions are established by merely referring to the pleadings and the issues raised and tried in the suit filed by Bansilal the elder brother of the present plaintiff, who was in the same position as that of the plaintiff in this case. As a matter of fact, the plaintiff during the pendency of the appeal filed by his elder brother against the decree of the trial court in his suit, attained majority and as stated earlier supported bansilal in that appeal. In this case there is no allegation against the Deputy nazir who conducted the case on behalf of the present plaintiff in the suit filed by his brother Bansilal. Therefore, we are of the view that the present suit is barred by the principles of res judicata. In this case there is no allegation against the Deputy nazir who conducted the case on behalf of the present plaintiff in the suit filed by his brother Bansilal. Therefore, we are of the view that the present suit is barred by the principles of res judicata. ( 23 ) LASTLY Mr. Albal tried to get over the judgment in Spl. Suit No. 27 of 1950 winch was confirmed in R. A. (B) No. 31 of 1956 by this Court by filing an application (I. A. IV) at the time of arguments in this appeal with a prayer to permit him to amend the plaint to tne effect that the judgment in that suit and appeal are a nullity inasmuch as in the suit filed by bansilal, he had made allegations against the Deputy Nazir that due to his gross negligence and fraud committed on him and the court, Prabhakarlal obtained a decree against the present plaintiff, and, therefore, as he Deputy Nazir was appointed as the guardian of the present plaintiff, there was conflict of interest between the minor and the guardian, and, therefore, that is a good reason to hold that the judgment in the suit filed by Bansilal, confirmed on appeal, is a nullity. There is no substance in the contention. It is admitted that the Deputy Nazir who conducted the suit filed by Prabhakarlal was one Nargundkar and the Deputy Nazir who defended the present plaintiff in the suit filed by Bhansilal was one Chavdi. The argument of Mr. Albal is that the office being the same, whoever may be the incumbent, the prejudice was occasioned. It is difficult to accept this argument because two different persons, though holding the same office, conducted the litigation at different times and in different suits. There was no adverse interest in the suit filed by Bansilal as the Deputy nazir who defended the present plaintiff was different from the one who defended the earlier suit. Therefore, we find no good reason at this late stage to allow the amendment application. Hence, we reject I. A. No. IV. ( 24 ) FOR the foregoing reasons, we allow this appeal, set aside the judgment and decree of the trial court and dismiss the suit of the plaintiff with costs throughout. --- *** --- .