Rajendrakumar Mahadeo Sakone Khandewal v. Kalyan Ramdeo Marwadi Khandewal & others — 1988 DIGILAW 15 (BOM)

JUDGMENT - DESHPANDE M.S., J.:—This is plaintiff's appeal from the dismissal of his claim for possession. 2. The plaintiff brought the suit alleging that he was taken in adoption by one Radhabai on 25th April, 1967. Radhabai was married to Mahadeo who died on 1st August, 1919. The property, which is the subject-matter of the suit, admittedly, belonged to one Mohanlal who died in 1923 leaving surviving him his widow Kisnibai who died in 1951. The basis for the plaintiff's claim was that his adoptive father-Mahadeo, who died on 1st August, 1919, had been adopted by Mohanlal as a son to him, during his life-time. After the death of Mohanlal, the family comprised of only two members – Kisnibai who was Mohanlal's widow and Radhabai who, according to the plaintiff, was Mohanlal's predeceased son Mahadeo's widow. The 1st defendant Ramgopal claimed to be adopted son of Mohanlal, though according to the plaintiff there was, in fact, no adoption. He foisted himself on the two widows and fraudulently got an adoption-deed executed from Kisnibai in his favour on 19th December, 1923 with a view to grabbing the property belonging to Mohanlal. The family of Mohanlal had migrated from Jaipur and was governed by Banaras School of Hindu Law. Ramgopal's adoption, if any, was vitiated for want of authority from Mohanlal to Kisnibai to adopt a son to him. Ramgopal, who used to live with Kisnibai and Radhabai, got an ante-adoption deed executed from 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 with the recitals to the above effect. Radhabai, who was a young widow, could not raise her voice against any of these happenings, and after she became aware of the designs of the first defendant Ramgopal, she gave a public notice on June 29, 1926, declaring that Ramgopal was really the son of one Ramdeo who bore the name Kalyanrao and was not the adopted son of Mohanlal and had no interest in the property of Mohanlal. 3. 3. Thereafter quarrels ensued and Ramgopal got Civil Suit No. 87 of 1929 instituted by instigating Kisnibai to file it for setting aside the deed of partition dated 30th January, 1929, 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 that suit. Ramgopal asserted that he was adopted by Mohanlal himself in Marwad, a stand which was contrary to the recitals made in the deed of adoption, dated December 9, 1923. This suit came to be decreed against Radhabai, and an appeal taken to the Court of the judicial Commissioner, being Appeal No. 19 of 1932, was dismissed by the learned Additional Judicial Commissioner. According to the plaintiff, the decision in that suit did not bind him, because he claimed not under Radhabai but through Mahadeo, as his adopted son, and the observations by the learned Additional Commissioner, that Radhabai was entitled merely to maintenance and not to any interest or share in that property, would not bind him. The issue regarding Ramgopal's adoption was not necessary to be decided in that suit, because Ramgopal was only incidentally joined as a party thereto. 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, brought the present suit for possession of the properties described in Schedules A, B, and C to the pliant. 4. The suit was contested by defendants Nos. 1 to 6, the defendant No. 2 being the wife of the first defendant Kalyan alias Ramgopal and defendants Nos. 3 to 5 being the sons of Ramgopal while defendant No. 6, daughter of Ramgopal. While denying the allegations regarding Mahadeo's adoption by Mohanlal and the first defendant Ramgopal's adoption by Kisnibai, it was urged that Ramgopal was adopted, by Mohanlal on 6th or 7th December, 1922. It was denied that the family was governed by Banaras School of Hindu Law and there was any occasion for Kisnibai to take Ramgopal in adoption or to have the authority from Mohanlal, to enable her to adopt him. It was urged that the ante-adoption deed, the Kararnama and the partition-deed dated 30th January, 1929, were brought into existence by Radhabai original defendant No. 7 who died during the pendency of the suit. It was urged that the ante-adoption deed, the Kararnama and the partition-deed dated 30th January, 1929, were brought into existence by Radhabai original defendant No. 7 who died during the pendency of the suit. The name of Laxmibai, her daughter, was substituted as her legal representative in her place. It was urged that Civil Suit No. 87 of 1929, which was brought by Kisnibai and Ramgopal to set aside the partition-deed dated 30th January, 1929, was decreed and the issue regarding Mahadeo's adoption was directly and substantially in issue in that suit, the trial Court and the Appellate Court both therein holding that Mahadeo was not the adopted son of Mohanlal and that Ramgopal., the first defendant, was adopted by Mohanlal in December, 1922. While denying the other allegations relating to the merits, it was contended that there were several documents brought about in respect of Mohanlal's property by Radhabai and her several relations with a view to appropriating the property owned by Mohanlal. One of the contentions raised on behalf of defendant Nos. 1 to 6 was that even if the adoption is proved, first defendant Ramgopal cannot be divested of the property, as section 12(c) of the Hindu Adoption and Maintenance Act would operate and the suit for possession of the property against the defendants was not maintainable. 5. Radhabai, the 7th defendant, filed a written-statement. She was not at issue with the plaintiff, and all that she claimed was that she would also be entitled to a share in the property, in the event of a decree for possession. 6. The learned trial Judge, upon a consideration of the evidence which was led before him, recorded several findings which may be stated thus : That the first defendant was not proved to be the Kulmukhtyar of Kisnibai in respect of Mohanlal's property, that Mohanlal was governed by Banaras School of Hindu Law and not the Bombay School of Hindu Law, that Radhabai was not living as a member of Mohanlal's joint Hindu family, that there was no authorisation to Radhabai to adopt a son to Mahadeo, and though the factum of plaintiff's adoption by Radhabai was established, his adoption was not legal and valid. The learned trial Judge held that 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. The learned trial Judge held that 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. The adoption by Mohanlal of Ramgopal, the first defendant, was held proved. While rejecting the plea that the suit was barred by time and that the first- defendant acquired title by adverse possession, the learned trial Judge 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 in Civil Appeal No. 2-A of 1939, operated as res judicata on the question of the adoption of Ramgopal and by Mahadeo, and Mahadeo not being the adopted son of Mohanlal. In this view of the matter, the learned trial Judge dismissed the suit for possession. 7. Before us, Shri B.A. Udhoji, learned Counsel for the appellant-plaintiff, strenuously contended that the finding on the question of res judicata recorded by the learned trial Judge, in view of the decision in the two previous suits, was erroneous, firstly because the plaintiff was not claiming through Radhabai who was a party to the earlier two suits, but through Mahadeo who was the adopted son of Mohanlal, and the finding recorded against Radhabai cannot be a bar to his reagitating the same plea by this suit and secondly, on the ground that the decisions in the two earlier suits were recorded by Sub-Judge, 1st Class, Betul, who would not have been competent to entertain the present suit, the pecuniary value of which exceeded Rs. 10,000/-. 8. It is necessary to consider what were the pleas in Civil Suit No. 87 of 1929 decided by the Sub-Judge, 1st Class, Betul, on 26th October, 1931, against which the First Appeal No. 19 of 1932, was filed in the Court of the Judicial Commissioner, Central Provinces, Nagpur, and came to be decided by the learned Additional Judicial Commissioner on 31st December, 1935. The allegations there were that Mohanlal, who died on 18-4-1923, was survived by his widow Kisnibai and an alleged adopted son – Ramgopal. Before his death, Mohanlal had executed a Will on 15-9-1929 by which he had made a disposition of certain land in favour of Radhabai for her maintenance. The allegations there were that Mohanlal, who died on 18-4-1923, was survived by his widow Kisnibai and an alleged adopted son – Ramgopal. Before his death, Mohanlal had executed a Will on 15-9-1929 by which he had made a disposition of certain land in favour of Radhabai for her maintenance. Radhabai's husband Mahadeo died in 1918 and quarrels arose between the parties after Mohanlal's death, and they sought the advice and guidance of certain persons who were closely related to Kisnibai, including one Narayandas who was alleged to have colluded with Radhabai and misrepresented to Kisnibai that Radhabai was entitled to a share in Mohanlal's property and suppressed Mohanlal's will and induced her to execute two documents, namely, a deed of agreement to partition, dated 10th December, 1923 and a deed of adoption, dated 9th December 1923, on the basis of which the partition-deed, dated 30-1-1929, which was sought to be set aside by that suit, came to be executed. Radhabai denied in that suit that Ramgopal was Mohanlal's adopted son and set up the adoption of her husband Mahadeo by Mohanlal. She denied Mohanlal's Will, alleging it to be a forged document, and alleged alternatively that in supersession of the Will, Mohanlal had orally expressed his wishes three or four days before his death that his property should be divided equally between her and plaintiff therein-Kisnibai, and had also authorised each of them to adopt a son to himself. She denied that the deed of partition, dated 30th January, 1929, or the agreement dated 10th December, 1923, or the deed of adoption, dated 10th December, 1923, was a result of any fraud, misrepresentation or under influence, and pleaded that the transactions represented by these documents were family arrangements intending to put an end to the disputes. In the reply, the plaintiff therein affirmed Ramgopal's adoption to Mohanlal and denied that of Mahadeo. They also denied the oral Will alleged to have been made by Mohanlal, and in the alternative pleaded that Mohanlal was not in a sound and disposing state of mind and that he was incompetent to dispose of his property to Mahadeo, as he was joint with his son. The findings recorded by the trial Court in that suit in its Judgment, which is produced at Exhibit 169, were affirmed by the learned Additional Judicial Commissioner in appeal by his judgment at Exhibit 170. The findings recorded by the trial Court in that suit in its Judgment, which is produced at Exhibit 169, were affirmed by the learned Additional Judicial Commissioner in appeal by his judgment at Exhibit 170. Those findings were that Ramgopal was the adopted son of Mohanlal but Mahadeo had not been adopted by him. It was held that Mohanlal executed a Will, dated 15-9-1921, and there was no subsequent oral Will as alleged by the defendants; that the agreement of partition, dated 10-12-1923, the deed of adoption dated 9-12-1923 and the partition deed dated 30-1-1929, were the outcome undue influence, misrepresentation and fraud on the part of Narayandas and Motilal who were in collusion with Radhabai. It was found that the partition deed dated 30-1-1929, was not a bona fide family settlement and that it could not operate on property situated in the Central Provinces as it was registered in Berar. It is unnecessary for us to refer to the detailed reasoning given by the trial Court as well as by the learned Additional Judicial Commissioner. The self-same evidence, which was considered there, was sought to be adduced at the present trial. 9. Shri Udhoji, the learned Counsel for the appellant-plaintiff, contended that it was not necessary for him to show that the findings were erroneous, because that will have no bearing on the question of res judicata, but he urged that the finding, particularly the one on the question of adoption of Mahadeo, was not necessary to be given in that case, and for this purpose he referred to para 6 of the judgment of the learned Additional Judicial Commissioner (in Appeal No. 19 of 1932-Exhibit-170) in which after stating that there could be no doubt that the finding on the question of Mahadeo's adoption was correct, he observed that the fact of Mahadeo's adoption by Mohanlal was not very material, because even if he had been adopted, his widow Mst. Radhabai, the defendant therein, would not be entitled to inherit the property since Mahadeo predeceased Mohanlal. 10. Radhabai, the defendant therein, would not be entitled to inherit the property since Mahadeo predeceased Mohanlal. 10. We have, however, pointed out what were the material pleadings on which the issues came to be framed in Civil Suit No. 87 of 1929, and issue No. 3 which was framed by the trial Court, as is apparent from the judgment (Exhibit-169), was whether Mahadeo, the husband of Radhabai, was adopted by Mohanlal twenty years ago a Thaolai in Jaipur State, was Mahadeo an orphan a the time of his adoption and was his adoption valid? Issue No. 2 related to adoption of Ramgopal by Mohanlal. As is apparent from the summary of the pleadings which we have given, these issues came to be framed because the points raised therein were directly and substantially in issue. The parties led evidence on those points, and after a detailed consideration of the evidence led therein, the concurrent findings came to be recorded by the trial Court as well as the learned Additional Judicial Commissioner. In these circumstances, merely because there was a stray observation in Para 6 of the learned Additional Judicial Commissioner's judgment regarding the position flowing from Mahadeo having predeceased Mohanlal, it would not follow that the matter was not directly and substantially in issue in that case. That was one of the important points which came to be considered in the previous suit and the appeal, and if the parties to the present suit can be held to be litigating under the same title, evidently there would be a bar to the fresh decision of the very same issues, under section 11 of the Code of Civil Procedure. This is the position that emerges from (Lonankutty v. Thomman)1, A.I.R. 1976 S.C. 1645. In view of this proposition, we find it difficult to agree with Shri Udhoji's contention that the trial Court fell into an error in holding that section 11 of the Code of Civil Procedure applied to the facts of the present case. 11. We may also refer to the decision rendered in Civil Suit No. 157-A of 1935 decided on 22nd December, 1937 and the appellate decision therein in Civil Appeal No. 2-A of 1939 decided by the 3rd Additional District-Judge, Amravati on 4-5-1940. 11. We may also refer to the decision rendered in Civil Suit No. 157-A of 1935 decided on 22nd December, 1937 and the appellate decision therein in Civil Appeal No. 2-A of 1939 decided by the 3rd Additional District-Judge, Amravati on 4-5-1940. The subject-matter there was a suit brought by Ramgopal, the present defendant No. 1, against one Balmukund, and Kisnibai and Radhabai who were joined as defendant Nos. 3 and 4. Upon the pleadings of the parties in that suit, the issues, which were framed by the learned Additional District Judge for decision in appeal, were whether Ramgopal was the adopted son of Mohanlal, which was answered in the affirmative; whether Ramgopal was adopted by Kisnibai on 9-12-1923, which was answered in the negative; whether the adoption by Kisnibai was subject to certain conditions, which was not necessary because the question did not arise in view of the earlier findings; and whether Ramgopal was entitled to the reliefs claimed in that suit, which came to be answered in the affirmative. The question of Mahadeo's adoption did not arise in that suit. However, what was material was that Ramgopal's adoption was very much in issue and the decision of the suit there depended upon that issue being answered in his favour. 12. Shri Udhoji urged that the question of competency of the two courts which decided the two earlier suits was not correctly decided by the trial Court, because it referred to the general principles of res judicata in applying the law under section 11 of the Code of Civil Procedure, overlooking that the only provision which would govern suits was the statutory provision of section 11 and not the general principles of res judicata. We find that the learned trial Judge relied on the observations in (Gulabchand v. State of Gujarat)2, A.I.R. 1965 S.C. 1153 but the point, which arose for consideration there, was whether decision in earlier writ petitions on merits could bar a subsequent suit involving the same question and for same reliefs upon general principles of res judicata, and it was held that on the general principles of res judicata the decision of the High Court on writ petition under Article 226 of the Constitution on the merits of a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. But in (L. Jankirama Iyer v. P.M. Nilakanta Iyer)3, A.I.R. 1962 S.C. 633, it was pointed out that where the plaintiffs in the earlier suit and the later suit are not the same or parties who claim through each other section 11 in terms cannot apply. Where section 11 is thus unapplicable, it would not be permissible to rely upon the general doctrine of res judicata. Where the Court is dealing with a suit, he only ground on which res judicata can be urged against such a suit can be the provisions of section 11 and no other. 13. Though we find that Shri Udhoji is right in his submission that the general doctrine of res judicata could not be applied in the circumstances of the present case and the learned trial Judge was not right in applying it, in view of the introduction of Explanation VIII to section 11 of the Code of Civil Procedure, the position has considerably changed. Explanation VIII, which has been inserted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) is as follows: “Explanation VIII.—An issue heard and finally decided by a Court 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.” 14. One of us (Deshpande, J.) sitting singly has taken the following view in (Purushottam Rambhao Khandwekar v. Gangadhar Mansingrao Wagh)4, 1987 Mh.L.J. 41: “In view of the provisions of Explanation-VIII which came to be added to the provisions of section 11 of the Code of Civil Procedure (Amendment) Act, 1976, it is clear that the principle of res judicata is fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such issues cannot be allowed to be reagitated by such parties or persons claiming through them in a subsequent litigation. The expression “Court of limited jurisdictions is wide enough to include a Court whose jurisdiction is subject to a limited pecuniary jurisdiction and it will not be right to interpret such expression as connoting only a Court other than Civil Courts. The expression “Court of limited jurisdictions is wide enough to include a Court whose jurisdiction is subject to a limited pecuniary jurisdiction and it will not be right to interpret such expression as connoting only a Court other than Civil Courts. Merely because by virtue of the valuation, the suit could not be entertained as subsequently filed by the Court which had earlier recorded a finding on a particular issue, the finding as recorded in the previous proceedings does not cease to operate as res judicata.” 15. Shri Udhoji urged that in the context of a difference amongst several High Courts as to how the expression “Court of limited jurisdiction” should be construed, the matter should be reconsidered. After having heard Shri Udhoji on the point further and in every detail, we find it difficult to subscribe to the limited interpretation put on that expression, and we are in respectful agreement with the wider interpretation put by the High Courts of Kerala, Rajasthan and Orissa in (Puthen Veettil Nolliyodan Devoki Amma v. Puthen Veettil Nolliyodan Kunhi Nair)5, A.I.R. 1980 Kerala 230; (Hari Singh v. Smt. Shringar Kanwar)6, 1981 Rajasthan Law Weekly page 190; and (Kumarmoni Sa v. Himachal Sahu)7, A.I.R. 1981 Orissa 177, respectively, and we find that merely because in the present case the courts, which decided the earlier suits, could not have entertained the present suits, the finding recorded by them would not cease to operate as res judicata, in view of the introduction of Explanation VIII to section 11 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, 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. 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 104 of 1976, so far as relevant, runs as follows : “97(1) Any amendment made, or any provision 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 of provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) 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 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).............................................................................................................to (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 the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.” Obviously, the effect given to Explanations VII and VIII inserted in section 11 of the Code of Civil Procedure by the amendment, would not come within the sweep of sub-section (2)(a) 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. 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. 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, 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. 16. Apart from this clear provision, the position as noticed in (Central Bank of India v. Their Workmen)8, A.I.R. 1960 S.C. 12, is well settled, namely, that for modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word “declared” as well as the word 'enacted'. A remedial Act, on the contrary, is not necessarily retrospective; it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment. The Amending Act, 1976 evidently is not a remedial piece of legislation in its application to section 11 of the Code of Civil Procedure. 17. Shri Udhoji relied on (Workmen of M/s. Firestone Tyre Rubber Co. of India P. Ltd. v. The Management)9, A.I.R. 1973 S.C. 1227, in support of his contention that the provisions of Explanation VIII to section 11 cannot be regarded as retrospective. There, the decision turned on the provisions of section 11-A of the Industrial Disputes Act itself, the Court holding that section 11-A is prospective in its operation because the proviso to section 11-A uses the expression “in any proceeding under the section”. Our attention was also drawn on behalf of the plaintiff to the observations in (Mohd. There, the decision turned on the provisions of section 11-A of the Industrial Disputes Act itself, the Court holding that section 11-A is prospective in its operation because the proviso to section 11-A uses the expression “in any proceeding under the section”. Our attention was also drawn on behalf of the plaintiff to the observations in (Mohd. Ahmed Khan v. Shah Bano Begum)10, A.I.R. 1985 S.C. 945, where it was held that the Explanation to the second Proviso to section 125(3) of the Code of Criminal Procedure confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 to 4 other marriages, which showed unmistakably, that section 125 overrides the personal law, if there is any conflicts between the two. We do not see, however, how this observation can assist the plaintiffs contending that retrospective operation cannot be given to an explanatory or procedural provision inserted by amendment, because in the case under reference, no such question was raised before the Supreme Court and the Supreme Court gave effect to the right created by the Explanation, while construing its provisions. 18. In (Blyth v. Blyth)11, 1966(1) All.E.L.R. 524, Lord Denning observed that the rule that an Act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statute which only alter the form of procedure, or the admissibility of evidence, or the effect which the courts give to evidence. It follows that if the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future. Maxwell in interpretation of Statutes, 11th Edition, Page 216, has noted that no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. 19. The change brought about in section 11 by the insertion of Explanations VII and VIII cannot be treated otherwise than explanatory, because even the Amending Act describes the new provisions as Explanations. 19. The change brought about in section 11 by the insertion of Explanations VII and VIII cannot be treated otherwise than explanatory, because even the Amending Act describes the new provisions as Explanations. Even though a limited right not to have a finding challenged before a Court of identical pecuniary jurisdiction were to be available earlier, it is difficult to see how by the amendment as existing right is being taken away. The effect of the provisions of section 11 before the amendment was that finality could be attached to a finding recorded by a Court with the same jurisdiction if the matter were to be reagitated in any Court with the same jurisdiction, but if the matter were to be raised in a Court with a wider jurisdiction, finality did not attach to the finding recorded by the Court of limited pecuniary jurisdiction. The variation in the applicability of the provisions would not confer any right upon a party, much less no such right which could not be taken away by a competent legislative body. We are, therefore, not impressed by the submission of Shri Udhoji that retrospective operation cannot be given to the provisions of Explanations VII and VIII to section 11 of the Code of Civil Procedure because of the limited advantage the plaintiff would have had under the unamended provisions. We are satisfied that in view of the provisions of section 97(3) of the Amending Act, the provisions of Explanations VII and VIII to Section 11 of the Code of Civil Procedure operate retrospectively and the finding recorded by even a Court of limited pecuniary jurisdiction, if it answered the other requirements to section 11 of the Code of Civil Procedure, would operate as res judicata in the present suit. 20. Shri Udhoji, however, urged that the parties were not litigating under the same title in the earlier suit. Though he conceded that to both the previous suits Kisnibai, Radhabai and Ramgopal were parties, he urged that the plaintiff, who was taken in adoption by Radhabai, was not claiming through Radhabai or for that matter even through Mahadeo, the adoptive father, and that though his right to the property flowed as a son of Mahadeo, it was a right which he would have on par with that of a natural born son, by virtue of his adoption. It is true that the plaintiff would not have claimed under the old Shastrik Law as an adopted son through Radhabai, he would have a right to the property as if he was born in the family by virtue of his adoption as the son of Mahadeo, if Mahadeo's adoption were to be valid. 21. Before we deal with this submission, we will consider the question whether plaintiff's adoption by Radhabai was established. The trial Court holding that the factum of adoption was established relied on the evidence of plaintiff-Rajendrakumar (Exhibit 150), the adoption-deed (Exhibit 116) and the evidence of three witnesses Bhanulal (Exhibit 115), Govind (Exhibit 122) and Gaurishankar (Exhibit 123). They all stated that they had signed the adoption-deed (Exhibit 116). The trial Court was not disposed to raise the presumption under section 16 of the Hindu Adoption and Maintenance Act, because that required the document apart from being registered, to be signed by the person giving and the person taking the child in adoption, and the adoption deed (Exhibit 116) was not signed, in the present case, by Mohanlal, the natural father of the plaintiff. We find that though the presumption under Section 16 could not be raised; the evidence of the aforesaid witnesses and that of Laxminarayan (Ex. 139) established the factum of giving and taking and the factum of adoption. This position was not challenged before us on behalf of the respondents Nos. 1 to 6, nor was the position that the parties were governed by Banaras School of Hindu Law questioned before us. 22. The trial Court did not accept the legality of the adoption, because in its view the authority from the husband to adopt a son was necessary for a valid adoption by the wife. Section 8 of the Hindu Adoption and Maintenance Act provides that any female Hindu, who is of sound mind, who is not a minor, and who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. On the date of the adoption of the plaintiff, i.e. 25th April, 1967, Mahadeo was dead and Radhabai was, therefore, competent to adopt the plaintiff, and the question of the husband's consent would not arise, if the requirements of section 8 of the Act were fulfilled, in view of the overriding effect of the Act given by section 4 thereof which says that save as otherwise expressly provided in this Act,– (a) any text, Rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect of any, matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. The requirement, therefore, which had its origin only in its customary usage that the husband should authorise the wife to adopt a son, was not applicable on the date of the plaintiff's adoption. As observed at page 1096 of Hindu Law by Mulla, 15th Edition, the effect of adoption by a widow of a son or daughter will be to clothe the adopted son or daughter with all the rights of a natural born son or daughter in the adoptive family and to create all the ties of the child in the family, as provided by section 12 of the Act. The adoptee, in effect becomes the son or daughter not only of the widow but of her deceased husband as well and acquires the same status as that of a natural born child with all the consequences and incidents of that status. Disagreeing with the leaned trial Judge, we therefore, hold that by virtue of his adoption by Radhabai, the plaintiff became the adopted son of Mahadeo as well, and there was no question of any illegality attaching to the adoption on account of absence of authority from the husband to adopt the child. 23. However, the real question for consideration in this case is whether by virtue of being Mahadeo's adopted son, the plaintiff would be entitled to claim rights in the property which belonged to Mohanlal, and his result would not follow, unless it was shown that Mahadeo was Mohanlal's adopted son. 23. However, the real question for consideration in this case is whether by virtue of being Mahadeo's adopted son, the plaintiff would be entitled to claim rights in the property which belonged to Mohanlal, and his result would not follow, unless it was shown that Mahadeo was Mohanlal's adopted son. Returning to the point raised by Shri Udhoji that the plaintiff can lay his claim, despite the earlier decisions, to the property left by the Mohanlal, it must be noted that the effect of Clause (c) of Proviso to section 12 of the Hindu Adoption and Maintenance Act is that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. The whole basis for claiming a right in the property left by Mohanlal 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 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 the property left by Mohanlal, and by virtue of the provisions of section 14(1) 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 those judgments, was that she was not a member of Mohanlal'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. 24. We may refer to (Kesharbai Jagannath Gujar v. State of Maharashtra)12, 1981 Bom.C.R. 362 : A.I.R. 1981 Bom. 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. 24. We may refer to (Kesharbai Jagannath Gujar v. State of Maharashtra)12, 1981 Bom.C.R. 362 : A.I.R. 1981 Bom. 115, where a Full Bench of this Court, in the context of conversion of widow's limited estate into full ownership on commencement of the Hindu Succession Act, held that the character of estate as joint Hindu family property is changed and the son adopted subsequent to commencement of the Act does not have the right to claim partition of estate, because the doctrine of relation back of adoption has no application. It was observed that though the adopted son is not deprived of the status given to him of a natural born son as section 12 of the Hindu Adoption and Maintenance Act, 1956 provides, it is only where the natural born son could get a right by birth, the adopted son would, and if the natural son had no right by birth, the adopted son cannot also claim any such right. The Full Bench observed that if a son adopted by a Hindu male person could not claim any right in the self-acquired property how can a son adopted by a Hindu female now claim a right by birth in the independent property of the female which is akin to the self-acquired property. The position would, therefore, be that during the life-time of Radhabai, the plaintiff, even by virtue of his adoption, could not have divested 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 her life-time. In view of this position of law, it is clear that the plaintiff, 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 Mahadeo's adopted son, having regard to the date of his adoption which was 25th April, 1967. 25. 25. Once this position is resolved, it would follow that the plaintiff must, in this suit, litigate under the same title as Radhabai as he would be claiming through her, and since Radhabai was a party to the previous suits, and the issues regarding Ramgopal's and Mahadeo's adoption having been decided against her, by virtue of the provisions of section 11 of the Code of Civil Procedure read with Explanation VIII thereto, the decision on those questions would operate as res judicata. The consequence would be that the plaintiff would not be entitled to lay any claim to Mohanlal's property, by virtue of his being the adopted son of Mahadeo since Mahadeo himself was held not to be the adopted son of Mohanlal. 26. In the view we are taking on the question of the applicability of section 11 of the Code of Civil Procedure, it would not be open to us to decide the other issues upon which evidence was led before the trial Court, as the trial would be barred by res judicata. We must notice that the trial Court has considered the evidence on the other issues, despite the bar under section 11 of the Code of Civil Procedure and independently held against the plaintiff on those issues. We say nothing about the decision on merits because we are clear that the trial of the other issues, which have been decided on merits by the trial Court, would be barred by res judicata. 27. In the result, we see no merit in the appeal and dismiss it. 28. With regard to the costs, Shri Udhoji urges that in view of our finding and with regard to the validity of the plaintiff's adoption and the insertion of Explanations VII and VIII in section 11 of the Code of Civil Procedure during the pendency of the suit, the plaintiff may not be saddled with costs. We must notice that quite a few important changes in the position of law have been brought about during the pendency of the suit and there are also a few complexities in this matter. The learned Counsel for the respondents Nos. 1 to 6 stated that the she would leave the matter of costs to the discretion of the Court. We must notice that quite a few important changes in the position of law have been brought about during the pendency of the suit and there are also a few complexities in this matter. The learned Counsel for the respondents Nos. 1 to 6 stated that the she would leave the matter of costs to the discretion of the Court. We find, in the circumstances of the present case, that it would be only proper to direct that the parties shall bear the costs of this appeal as incurred. The costs of the suit would abide the order passed by the trial Court. The appeal is dismissed with costs of the appeal to be borne by the parties, as incurred. Appeal dismissed.