# Raj Nath Dubey & Anr v. D.D.C. Allahabad & Ors

- **Citation:** (2014) 1 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-11-08
- **Case number:** Civil Misc. Writ Petition No.46506 of 2013
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-nath-dubey-anr-v-d-d-c-allahabad-ors-42898
- **Pages:** 12

## Headnote

C.P.C.-Section 11-Principle of 'resjudicata'-
earlier decision about facts regarding
illegitimate son being finding of factbarred by resjudicata-but even being
illegitimate
son
of
Kanhai-who
died
issuless-having illegitimate relation with
mother of petitioner-entitled to succeednot
barred
by
resjudicata-order
of
consolidation
authorities
modified
accordingly.

Held: Para-22
In view of the aforesaid discussions, the
writ petition succeeds and is allowed. It is
held that the findings in the previous
judgments that Kanhai was 'Brahmin'
(Hindu) by caste and died unmarried; The
petitioners failed to prove that Smt. Jhulari
was the wife of Kanhai and they were sons
of Smt. Jhulari and Kanhai; Jagannath,
Amar Nath and Raj Nath were born to Smt.
Ram Pyari, who was widow of Ram Nath,
due to her illegitimate relation with Kanhai,
are the findings on issues relating to the
facts and operate as res-judicata. However,
the findings that children born to Smt. Ram
Pyari, due to her union with Kanhai were
illegitimate children and not entitled to
inherit Kanhai are findings on the legal
issues and the previous judgments in this
respect would not operate as res-judicata,
in the subsequent proceedings, in respect of
other properties.

Case Law discussed:
AIR 1971 SC 2355; AIR 1966 All 84 (FB);
(2011) 2 SCC 705; 1969 RD 10; 1967 RD 101;
1971 RD 48; (2013) 5 SCC 252; (2003) 1 SCC
730; (2010) 11 SCC 483; 1967 RD 101; 1971
RD 48; (2009) 9 SCC 757; AIR 1953 SC 65;
AIR 1966 SC 1061; (2013) 5 SCC 252; AIR
1971 SC 2355; (2005) 12 SCC 1; AIR 2006 SC
2965; (1991) 2 AC 93; AIR 1981 SC 178;
(1997) 2 SCC 53; AIR 1960 SC 971; AIR 1992
SC 756; (2010) 9 SCC 209; AIR 1965 SC 1970.

## Text

_Characters 0–39,893 of 40,116. This is a partial read: ask again with offset=39893 for what follows._

1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
207
so as to attract sub-section (1) of Section
31 nor at any point of time any abstract of
instrument
was
placed
before
him.
Therefore, in my view, here is not a case
where Section 31 could have been
invoked.

23. Since in the present case no such
instrument
was
ever
placed
before
authority concerned, in my view, exercise
of power by ADM (F&R) by passing
impugned order without having any
instrument before him, is patently illegal
and without jurisdiction.

24. In the result, the writ petition is
allowed. The impugned order dated
25.02.2012 is hereby quashed.

25. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2013

BEFORE
THE HON'BLE RAM SURAT RAM (MAURYA), J.

Civil Misc. Writ Petition No.46506 of 2013

Raj Nath Dubey & Anr... .Petitioners
Versus
D.D.C. Allahabad & Ors.... Respondents

Counsel for the Petitioners:
Sri A.C. Pandey, Sri Rajeev Mishra

Counsel for the Respondents:
C.S.C., Sri A.K. Mishra, Sri Vrindaban
Mishra

C.P.C.-Section 11-Principle of 'resjudicata'-
earlier decision about facts regarding
illegitimate son being finding of factbarred by resjudicata-but even being
illegitimate
son
of
Kanhai-who
died
issuless-having illegitimate relation with
mother of petitioner-entitled to succeednot
barred
by
resjudicata-order
of
consolidation
authorities
modified
accordingly.

Held: Para-22
In view of the aforesaid discussions, the
writ petition succeeds and is allowed. It is
held that the findings in the previous
judgments that Kanhai was 'Brahmin'
(Hindu) by caste and died unmarried; The
petitioners failed to prove that Smt. Jhulari
was the wife of Kanhai and they were sons
of Smt. Jhulari and Kanhai; Jagannath,
Amar Nath and Raj Nath were born to Smt.
Ram Pyari, who was widow of Ram Nath,
due to her illegitimate relation with Kanhai,
are the findings on issues relating to the
facts and operate as res-judicata. However,
the findings that children born to Smt. Ram
Pyari, due to her union with Kanhai were
illegitimate children and not entitled to
inherit Kanhai are findings on the legal
issues and the previous judgments in this
respect would not operate as res-judicata,
in the subsequent proceedings, in respect of
other properties.

Case Law discussed:
AIR 1971 SC 2355; AIR 1966 All 84 (FB);
(2011) 2 SCC 705; 1969 RD 10; 1967 RD 101;
1971 RD 48; (2013) 5 SCC 252; (2003) 1 SCC
730; (2010) 11 SCC 483; 1967 RD 101; 1971
RD 48; (2009) 9 SCC 757; AIR 1953 SC 65;
AIR 1966 SC 1061; (2013) 5 SCC 252; AIR
1971 SC 2355; (2005) 12 SCC 1; AIR 2006 SC
2965; (1991) 2 AC 93; AIR 1981 SC 178;
(1997) 2 SCC 53; AIR 1960 SC 971; AIR 1992
SC 756; (2010) 9 SCC 209; AIR 1965 SC 1970.

(Delivered by Hon'ble Ram Surat Ram
(Maurya), J.)

1. Heard Sri Rajeev Mishra and Sri
A.C. Pandey, for the petitioners and Sri
A.K. Mishra, Senior Advocate, assisted
by Sri Vindraban Mishra, for the
contesting
respondents
(hereinafter
referred to as the respondents). There is
no factual controversy, at this stage, as
such the counsel for the respondents
proposes
not
to
file
any
Counter
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Affidavit. With the consent of the parties
the
arguments
were
heard
at
the
admission stage and the writ petition is
being decided finally.

2. The writ petition has been filed
against the orders of Consolidation Officer
(respondent-3)
dated
01.12.2012,
Settlement
Officer
Consolidation
(respondent-2)
dated
06.03.2013
and
Deputy
Director
of
Consolidation
(respondent-1) dated 23.05.2013, passed in
title proceedings, under U.P. Consolidation
of Holdings Act, 1953 (hereinafter referred
to as "the Act").

3. The dispute relates to the land of
khatas 1, 3, 4 and 5 of village Sarai Aziz,
talluka
Harikishun,
tahsil
Phoolpur,
district Allahabad, which were recorded
in the names of the respondents, in basic
consolidation record. The consolidation
was started in the year 2000, in the
village. Raj Nath Dubey (petitioner-1)
filed an objection (registered as Case No.
18/19) for recording his name over 1/2
share of the disputed land, along with the
respondents. It has been stated by the
petitioner that the land in dispute was the
property of Kishun, who had five sons
namely, Bechai, Kanhai, Bindra, Pancham
and Sheetal. Bindra, Pancham and Sheetal
died issueless and the properties of
Kishun was inherited by Bechai and
Kanhai alone. The respondents are
sons/grandsons
of
Bechai
and
the
petitioners are sons of Kanhai as such
they have 1/2 share in the land in dispute.
Assistant Consolidation Officer, by order
dated 22.02.2001, referred the dispute to
the Consolidation Officer for decision on
merits. Later on, Amar Nath Dubey
(petitioner-2) filed an application dated
03.03.2001, alleging therein that his father
Kanhai had three sons namely Jagannath,
Amar Nath and Raj Nath, who jointly
inherited Kanhai. He had also filed an
objection in respect of the disputed land,
before Assistant Consolidation Officer but
the same was misplaced as such he may
be impleaded as an objector in the
objection of Raj Nath Dubey. The
impleadment application moved by Amar
Nath Dubey was allowed.

4. The respondents contested the
objection on the grounds that Kanhai son
of Kishun was unmarried and died
issueless. His share in the land in dispute
was
inherited
by
them,
who
are
sons/grand sons of Bechai, his brother.
The petitioners were not the sons of
Kanhai. They earlier filed an objection
during consolidation, in respect of the
land of village Chak Nuruddinpur alias
Nagdilpur, pargana Sikandara, district
Allahabad, in which it has been held that
Jagannath, Amar Nath and Raj Nath were
born to Smt. Ram Pyari due to her
illegitimate relations with Kanhai and
they being illegitimate sons, not entitled
to inherit Kanhai. It was also held that the
respondents were the heirs of Kanhai. The
judgments of consolidation authorities in
the previous proceedings operate as resjudicata between the parties and the
objection of the petitioners was liable to
be dismissed on this ground alone. On the
basis of the pleadings of the parties, the
Consolidation Officer, framed issues on
30.04.2005. Issue No. 3 was framed as to
Whether the objection of the petitioners,
claiming
share of Kanhai,
alleging
themselves as his sons, is barred by resjudicata?

5. On the application of the
respondents, the Consolidation Officer
decided Issue No. 3 as a preliminary
issue. The Consolidation Officer, by order
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
209
dated 01.12.2012, held that in the
previous objection filed in the year 1966,
in respect of the land of village Chak
Nuruddinpur alias Nagdilpur, pargana
Sikandara, district Allahabad, between the
same parties, the Consolidation Officer
held that Jagannath, Amar Nath and Raj
Nath were illegitimate sons of Kanhai and
were not entitled to inherit his share as
Kanhai was 'Brahmin' Hindu and this
judgment has become final from the stage
of revision as such judgments in previous
proceeding operate as res-judicata. The
claim of the petitioners as an heirs of
Kanhai has already been decided against
them in previous proceeding as such their
fresh claim in respect of the property of
another village on the same ground
between the same parties was not
maintainable. On these findings, Issue no.
3 was decided against the petitioners and
the objection was dismissed, by order
dated 01.12.2012.

6. The petitioners filed an appeal
(registered as Appeal No. 1697) from the
aforesaid order. The appeal was heard by
Settlement
Officer
Consolidation
(respondent-2), who by his order dated
06.03.2013 held that in previous Case No.
1716, relating to the land of village Chak
Nuruddinpur alias Nagdilpur, pargana
Sikandara,
district
Allahabad,
the
Consolidation Officer by order dated
28.11.1965 held that Kanhai was unmarried. Jagannath, Amar Nath and Raj
Nath were born to Smt. Ram Pyari due to
her illegitimate relation with Kanhai and
they are not heirs of Kanhai. The appeal
filed by Jagannath and others was
dismissed by order dated 01.08.1966 and
the revision was also dismissed by order
dated
29.12.1966.
In
the
present
proceeding, the petitioners are again
claiming themselves as the sons of Kanhai
as such their claim is barred on the
principles of res-judicata. On these
findings the appeal was dismissed.

7. The petitioners filed a revision
(registered as Revision No. 1056) from
the aforesaid order. The Deputy Director
of Consolidation (respondent-1), by order
dated 23.05.2013, held that in the
previous proceeding, the petitioners were
not found as the sons of Kanhai and their
claim for inheritance of the share of
Kanhai, in the land of village Chak
Nuruddinpur has not been accepted. The
previous judgments are binding upon the
parties and operate as res-judicata. On
these
findings,
the
revision
was
dismissed. Hence this writ petition has
been filed.

8. The counsel for the petitioners
submitted
that
findings
of
the
consolidation authorities in the judgments
in previous proceeding on the issues of
facts
alone
operate
as
res-judicata.
However, the findings that children born
to Smt. Ram Pyari, due to her union with
Kanhai were illegitimate children and an
illegitimate son of a 'Brahmin' was not
entitled to inherit the properties of his
father are findings on the legal issues. The
previous judgments in this respect is
illegal as such the judgments in this
respect will not operate as res-judicata in
respect of other properties. The rule of
res-judicata is a rule of procedure and
cannot supersede the law of the land as
held by the Supreme Court in Mathura
Prasad Sarjoo Jaiswal Vs. Dossibai N. B.
Jeejeebhai, AIR 1971 SC 2355. Kanhai
was unmarried as such the children born
to Smt. Ram Pyari, after her becoming
widow, with the union of Kanhai, were
the children of Kanhai under the Hindu
law. Judgements of the consolidation
210 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities
in
previous
proceedings,
holding Jagannath, Amar Nath and Raj
Nath as the illegitimate sons of Kanhai
are illegal. In any case, Kanhai left behind
him neither his widow, nor any issue as
such their claim for inheritence of Kanhai
has priority over the brother's sons. He
further submitted that the word "son"
occurring under Section 171 of U.P. Act
No. 1 of 1951 will include illegitimate son
also. The exclusion of illegitimate son
from inheritance under Section 171 of
U.P. Act No. 1 of 1951 will not be
automatically inferred, in the absence of
statutory exception. Full Bench of this
Court in Raj Narain Saxena Vs. Bhim,
AIR 1966 All 84 (FB), which has been
approved by Supreme Court in Rajendra
Prasad Gupta Vs. Prakash Chandra
Mishra, (2011) 2 SCC 705, held that
exclusion clause must be specific under
the statute. He further submitted that right
of inheritance in tenancy holdings of an
illegitimate son of 'Shudra' (Hindu) has
been recognized through out, by this
Court, as held in Tej Pal Vs. Roop Chand,
1969 RD 10. There is no basis to carve
out a separate class of illegitimate son of
'Shudra' (Hindu) and illegitimate son of
'Brahmin' (Hindu). As Kanhai died after
enforcement of the Constitution as such
classification based on caste without any
object is arbitrary and violative of Article
14 of the Constitution. The orders of
respondents-1, 2 and 3 are illegal and
liable to be set aside.

9. In reply to the aforesaid
arguments,
the
counsel
for
the
respondents submitted that doctrine of
res-judicata is applicable in consolidation
proceedings also as held by this Court in
Smt. Kanizan Vs. Ghulam Nabi, 1967 RD
101, Sukhbir Singh Vs. Khacheru 1971
RD 48. Supreme Court in Kalinga Mining
Corporation Vs. Union of India, (2013) 5
SCC 252 held that principles of resjudicata is applicable in respect of issue
relating to the facts and law both. In the
previous judgments between the same
parties, it has been held that Jagannath,
Amar Nath and Raj Nath were illegitimate
sons of Kanhai and being illegitimate
sons, they would not inherit, Kanhai who
was
Brahmin
(Hindu).
Subsequent
objection of the petitioners on the same
ground is barred by res-judicata. He
submitted that Constitutional Bench of
Supreme Court in Gulraj Singh Vs. Mota
Singh, AIR 1965 SC 605 held that
"child", "son" and "daughter" occurring in
the Hindu Succession Act, 1956 would
include only legitimate children i.e. born
in wedlock of legitimate relation of
husband and wife. There was no custom
of remarriage of 'Brahmin' (Hindu) widow
as such it has been rightly held in the
previous proceedings that remarriage of
Smt. Ram Pyari to Kanhai was not
possible under the law nor it was proved.
The children born to Smt. Ram Pyari after
her becoming widow due to illegitimate
relation with Kanhai were illegitimate
children. Division Bench of this Court in
Meghu Vs. DDC and others, 1971 RD 44
(DB) held that right of inheritance of an
illegitimate son of 'Shudra' is confined to
the self acquired properties of his father.
Supreme Court in Jinia Keotin Vs. Kumar
Sitaram Manjhi, (2003) 1 SCC 730, and
Bharatha
Matha
Vs.
R.
Vijaya
Renganathan, (2010) 11 SCC 483 held
that even under Section 16 of the Hindu
Marriage Act, 1955, children born of void
marriage were entitled to inherit the self
acquired property of their father. In the
present case, admittedly the land in
dispute is coming from the time of
Kishun, father of Bechai and Kanhai and
not the self acquired property of Kanhai.
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
211
The
judgements
of
consolidation
authorities do not suffer from any
illegality and no interference is required
by this Court.

10. I have considered the arguments
of the counsel for the parties and
examined the record. Although Section 11
C.P.C.
is
not
applicable
to
the
proceedings under the Act but principle of
res-judicata, constructive res-judicata and
estoppel are applicable to the proceedings
under the Act as held by this Court in
Smt. Kanizan Vs. Ghulam Nabi, 1967 RD
101 and Sukhbir Singh Vs. Khacheru
Singh, 1971 RD 48. Supreme Court in
Gangai Vinayagar Temple v. Meenakashi
Ammal, (2009) 9 SCC 757, held that res
judicata is an ancient doctrine of universal
application and permeates every civilised
system of jurisprudence. This doctrine
encapsulates the basic principles in all
judicial systems which provide that an
earlier adjudication is conclusive on the
same subject-matter between the same
parties. The principles of res judicata
reflect "a wisdom that is for all time".
Privy Council in Sheoparsan Singh v.
Ramnandan Singh, 43 Indian Appeal 91,
traced the principle of res judicata from
the old Hindu text of Katyayana. Res
judicata was also expounded in Greek
custom and also by the Roman jurists.
The maxims: res judicata pro veritate
accipitur (a thing adjudicated is received
as the truth); The maxims: "si judicio
tecum actum fuerit sive in rem sive in
personam, nihilominus ob id actio durat,
et ideo ipso jure posteo de eadem re
adversus te agi potest: sed debes per
exceptionem adjurari": if a defendant
omits, either intentionally or negligently,
to raise a question of res judicata by an
exception, no such question will be
submitted whereas, if such a question is
properly raised, it must be considered
whether the issue has been rendered res
judicata
pro
veritate
accipitur. The
principle of res-judicata is founded upon
the maxims "1. nemo debet bis vexari pro
una et eadem causa: no man should be
vexed twice for the same cause;2. interest
republicae ut sit finis litium: it is in the
interest of the State that there should be
an end to a litigation; and 3. res judicata
pro veritate accipitur: a judicial decision
must be accepted as correct. Thus the
principle of res-judicata is applicable to
the consolidation proceedings.

11. The counsel for the petitioner
submitted that the previous judgment is
erroneous on the question of law as such
so far as issue relating to law, it will not
operate as res-judicata in the subsequent
proceeding, for different property. While
the counsel for the respondents submitted
that principles of res-judicata will apply in
even in case of an erroneous judgment on
the question of law. In order to appreciate
the controversy in this respect Section 11
C.P.C. are quoted below:

Section 11.- Res-judicata.- No Court
shall try any suit or issue in which the
matter directly and substantially in issue
has been directly and substantially in
issue in a former suit between the same
parties or between parties under whom
they or any of them claim, litigating under
the same title, in a Court competent to try
such subsequent suit or the suit in which
such issue has been subsequently raised
and has been heard and finally decided by
such Court.

12. In order to operate a judgment of
previous suit as res-judicata, the judgment
must be of a Court of competent
jurisdiction and has been heard and finally
212 INDIAN LAW REPORTS ALLAHABAD SERIES
decided by such Court. Section 44 of the
Evidence Act, 1872, permits a party to the
suit to show that the previous judgment
was delivered by a Court not competent to
deliver it or was obtained by fraud or
collusion. If a party is able to prove that
the previous judgment was not delivered
by a Court competent to deliver it or was
obtained by fraud or collusion, then bar of
res-judicata will not apply.

13. So far as a judgment erroneous
on the issue of law is concerned, Supreme
Court in Mohanlal Goenka Vs. Benoy
Krishna Mukherjee, AIR 1953 SC 65,
held that at the various stages through
which the execution proceedings passed
from time to time will show that neither at
the time when the execution application
was made and a notice served upon the
judgment-debtor, nor in the applications
for setting aside the two sales made by
him did the judgment-debtor raise any
objection to execution being proceeded
with on the ground that the execution
court had no jurisdiction to execute the
decree. The failure to raise such an
objection which went to the root of the
matter precludes him from raising the plea
of jurisdiction on the principle of
constructive res judicata after the property
has been sold to the auction-purchaser
who has entered into possession. There is
ample authority for the proposition that
even an erroneous decision on a question
of law operates as res judicata between
the parties to it. Thus in this case the
correctness of the decision in the previous
execution case between the parties was
challenged in a subsequent suit on the
ground that the matter was not within the
competence of the executing court.
Supreme Court found that as this
objection was not raised by the judgment
debtor as such erroneous judgment of the
executing court is binding on the parties.
Supreme Court again in State of W.B. v.
Hemant Kumar Bhattacharjee, AIR 1966
SC 1061, held that a wrong decision by a
court having jurisdiction is as much
binding between the parties as a right one
and may be superseded only by appeals to
higher tribunals or other procedure like
review which the law provides. The same
principle has again been propounded in
Kalinga Mining Corporation Vs. Union of
India, (2013) 5 SCC 252.

14. The question as to whether the
erroneous judgment on the point of law
between the parties operates as resjudicata in subsequent suit for different
property came for consideration before
Supreme Court in Mathura Prasad Bajoo
Jaiswal v. Dossibai N.B. Jeejeebhoy, AIR
1971 SC 2355 in which Supreme Court
held as follows:-

"11. It is true that in determining the
application of the rule of res judicata the
Court
is
not
concerned
with
the
correctness or otherwise of the earlier
judgment. The matter in issue, if it is one
purely of fact, decided in the earlier
proceeding by a competent Court must in
a subsequent litigation between the same
parties be regarded as finally decided and
cannot be reopened. A mixed question of
law and fact determined in the earlier
proceeding between the same parties may
not, for the same reason, be questioned in
a subsequent proceeding between the
same parties. But, where the decision is
on a question of law i.e. the interpretation
of a statute, it will be res judicata in a
subsequent proceeding between the same
parties where the cause of action is the
same, for the expression "the matter in
issue" in Section 11 of the Code of Civil
Procedure means the right litigated
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
213
between the parties i.e. the facts on which
the right is claimed or denied and the law
applicable to the determination of that
issue. Where, however, the question is
one purely of law and it relates to the
jurisdiction of the Court or a decision of
the Court sanctioning something which is
illegal, by resort to the rule of res judicata
a party affected by the decision will not
be
precluded
from
challenging
the
validity of that order under the rule of res
judicata, for a rule of procedure cannot
supersede the law of the land."

15. This judgment has been again
followed in Isabella Johnson (Smt.) Vs.
M.A. Susai, AIR 1991 SC 993. Same
view has been taken by Supreme Court in
Union of India Vs. Pramod Gupta, (2005)
12 SCC 1 and Viswanath Prasad Singh
Vs. Rajendra Prasad, AIR 2006 SC 2965.
House of Lord in Arnold Vs. National
Westminster Bank Plc., (1991) 2 AC 93,
noticed the distinction between "cause of
action" "estoppel" and "issue estoppel".
Cause of action estoppel arises where the
cause of action in the later proceedings is
identical to that in the earlier proceedings,
the latter having been between the same
parties or their privies and having
involved the same subject-matter. In such
a case, the bar is absolute in relation to all
points decided unless fraud or collusion is
alleged, such as to justify setting aside the
earlier judgment. The discovery of new
factual matter which could not have been
found out by reasonable diligence for use
in the earlier proceedings does not,
according to the law of England, prevent
the latter from being reopened. Issue
estoppel may arise where a particular
issue forming a necessary ingredient in a
cause of action has been litigated and
decided and in subsequent proceedings
between the same parties involving a
different cause of action to which the
same issue is relevant, one of the parties
seeks to reopen that issue. Here also bar is
complete to relitigation but its operation
can
be
thwarted
under
certain
circumstances:-

"But there is room for the view that
the underlying principles upon which
estoppel is based, public policy and
justice have greater force in cause of
action estoppel, the subject-matter of the
two proceedings being identical, than they
do in issue estoppel, where the subjectmatter is different. Once it is accepted that
different considerations apply to issue
estoppel, it is hard to perceive any logical
distinction between a point which was
previously raised and decided and one
which might have been but was not.
Given that the further material which
would have put an entirely different
complexion on the point was at the earlier
stage unknown to the party and could not
by
reasonable
diligence
have
been
discovered by him, it is hard to see why
there should
be a
different
result
according to whether he decided not to
take the point, thinking it hopeless, or
argue it faintly without any real hope of
success. In my opinion, your Lordships
should affirm it to be the law that there
may be an exception to issue estoppel in
the special circumstances that there has
become available to a party further
material
relevant
to
the
correct
determination of a point involved in the
earlier proceedings, whether or not that
point was specifically raised and decided,
being material which could not by
reasonable diligence have been adduced
in those proceedings. One of the purposes
of estoppel being to work justice between
the parties, it is open to courts to
recognise that in special circumstances
214 INDIAN LAW REPORTS ALLAHABAD SERIES
inflexible application of it may have the
opposite result.

Next question for consideration is
whether the further relevant material
which a party may be permitted to bring
forward in the later proceedings is
confined to matters of fact, or whether
what may not entirely inappositely be
described as a change in the law may
result in, or be an element in special
circumstances enabling an issue to be
reopened.

Your Lordships should appropriately,
in my opinion, regard the matter as entire
and approach it from the point of view of
principle. If a Judge has made a mistake,
perhaps a very egregious mistake, as is
said of Walton, J.'s judgment here, and a
later judgment of a higher court overrules
his
decision
in
another
case,
do
considerations of justice require that the
party who suffered from the mistake
should be shut out, when the same issue
arises in later proceedings with a different
subject-matter, from reopening that issue?

I am satisfied, in agreement with both
courts below, that the instant case presents
special circumstances such as to require the
plaintiffs to be permitted to reopen the
question of construction decided against
them by Walton, J., that being a decision
which I regard as plainly wrong."

16. Supreme Court in Mohanlal
Goenka, Hemant Kumar Bhattacharjee,
and Kalinga Mining Corporation (supra)
considered the binding effects of the
judgments of previous suit between the
parties. These judgments are not an
authority
in
respect
of
judgment
erroneous in law will operate as resjudicata in subsequent suit based upon
different cause of action for different
property. The judgments in Mathura
Prasad Bajoo Jaiswal, Isabella Johnson,
Pramod Gupta and Viswanath Prasad
Singh (supra) specifically held that
previous judgment on the question of law
and it relates to the jurisdiction of the
Court or a decision of the Court
sanctioning something which is illegal, by
resort to the rule of res judicata a party
affected by the decision will not be
precluded from challenging the validity of
that order on the ground of res judicata, as
the rule of procedure cannot supersede the
law of the land. The petitioners in this
case state that the previous judgments
holding Jagannath, Amar Nath and Raj
Nath as an illegitimate sons of Kanhai are
erroneous in law as such it will not
operate as res-judicata in subsequent
proceedings.

17. The findings in the previous
judgments that Kanhai was 'Brahmin'
(Hindu) by caste and died unmarried; The
petitioners failed to prove that Smt.
Jhulari was the wife of Kanhai and they
were sons of Smt. Jhulari and Kanhai;
Jagannath, Amar Nath and Raj Nath were
born to Smt. Ram Pyari, who was widow
of Ram Nath, due to her illegitimate
relation with Kanhai as remarriage of a
widow was not permitted in 'Brahmin'
(Hindu), are the findings are findings on
issues relating to the facts and operate as
res-judicata. However, the findings that
children born to Smt. Ram Pyari, due to
her union with Kanhai were illegitimate
children and an illegitimate son of a
'Brahmin' was not entitled to inherit the
properties of his father are findings on the
legal issues and the judgments in this
respect would not operate as res-judicata,
in the subsequent proceedings, in respect
of other properties.
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
215

18. Now the question arise as to
whether Jagannath, Amar Nath and Raj
Nath, who were born to Smt. Ram Pyari,
(who was widow of Ram Nath), due to her
union with Kanhai, were the illegitimate
sons of Kanhai? Remarriage of a 'Brahmin'
widow was not permitted either under
Hindu law or under the custom prevalent in
the caste. The parties are governed by
Mitakshara Law of Benaras School. Sri
Ganga Nath Jha, in his book 'Hindu Law In
Its Sources' and Maynes in 'Hindu Law &
Usage' (Tenth Edition) on the basis of the
various text found that under ancient Hindu
Law there were thirteen varieties of the
sons, which are quoted below:-

VARIETIES OF SONS

(I)
AURAS-THE
BODY-BORN
SON- That born ones own lawfully
married wife is the body born son.

(II) PURTIKAPURTAM-THE SON
OF THE APPOINTED DAUGHTER-
The father, having no son, having made
offerings to Agni and Prajapati, shall give
away the appointed daughter, after having
made the agreement that the son born to
her would be his son.

(III) KSHETRAJ- If a son is born of
the wife of a man, by another person who
has been duly authorized by the husband
or elders of the husband is Kshetraj son
(soil born son).

(IV) GUDHAJA-THE SECRETLY
BORN SON- If a son born in a man's
house and it is not known whose son he
is-this son secretly born in the house shall
belong to him of whose wife he is born.

(V) KANINA-MAIDEN BORN -If
the secretly born son is of a maiden- he
belongs to his mother's father or to the
man who marries her.

(VI) PUNARBHAVA- BORN OF A
REMARRIED WOMAN- When a woman
having abandoned her husband who is
impotent or an outcast takes another
husband- such son is called punerbhava
and this son belonged to progenitor.

(VII) DUTTAK-ADOPTED- That
son whom his mother or father gives
away is dattak and belongs to a man to
whom he has been given away.

(VIII) KRITA-PURCHASED- If a
man buys a boy from his mother and
father with a view of making him his son
is called krita.

(IX)
KRTRIMA-APPOINTED-
When a man appoints a son who is
worthy, capable of discerning right and
wrong and endowed with filial virtues-
that son is called as Krtrima.

(X)
SVAYAMDATTA-SELF
OFFERED- If a boy, being deprived of
his parents or being abandoned without
cause, offer himself to a man-he is
declared to be a self offered son.

(XI)
SAHODHA-OBTAINED
WITH THE WIFE- The son obtained in
the womb is the Sahodhar- If a son is born
to a girl married while pregnant- he
belongs to the man who espouses the girl.

(XII) APAVIDDHA- CAST -OFF-
On being abandoned by his mother or by
his father, if the son is taken up by
another man, he belongs to this man.

(XIII) PARASHAVA- THE LIVING
CORPSE- Parashava is the son born,
216 INDIAN LAW REPORTS ALLAHABAD SERIES
through lust to a Brahmana from a Shudra
woman- that son is a living corpse.

In paragraph-79 of Maynes in 'Hindu
Law & Usage', it has been mentioned that
amongst Auras son, the son of the
remarried wife and son of the Sudra wife
were of course, a man's own actual sons,
just like Auras, though of inferior status.
In paragraph-88, it has been mentioned
that these thirteen varieties of the sons
have been broadly categorized as two
kinds of sons by Dr. Jolly, namely
'AURAS' (body born son) and DUTTAK
(adopted son). Auras, Punarbhava and
Parashava are the body born sons while
Putrikaputram, Kshetraj, Gudhaj, Kanina,
Duttak, Krita, Krtrima, Swayamdutta,
Sahodha, Apavidha are adopted sons.

19. Supreme Court in Shyam Sunder
Prasad Singh v. State of Bihar, AIR 1981
SC 178 held that "Aurasa" is the son
procreated by a man himself on his wife
married according to sacramental forms
prescribed by sastra. "Putrika-putra" is the
son of an appointed daughter. "Kshetraja"
is the son begotten on the wife of a person
by another person -- sagotra or any other.
"Gudhaja" is the son secretly Bom in a
man's house when it is not certain who the
father is. "Kanina" is the son Bom on an
unmarried girl in her fathers house before
her marriage. "Paunarbhava" is the son of
a twice married woman. "Dattaka" is the
son given by his father or mother. "Krita"
is the son bought from his father and
mother or from either of them. "Kritrima"
is the son made (adopted) by a person
himself with the consent of the adoptee
only. "Svayamdatta" is a person who
gives himself to a man as his son.
"Sahodhaja" is the son Bom of a woman
who was pregnant at the time of her
marriage. "Apavidha" is a person who is
received by another as his son after he has
been abandoned by his parents or either of
them. There is one other kind of son
called "Nishada" who is the son of a
Brahmin by a Sudra who is not referred to
in the above quoted text of Yajnavalkya.

21. Supreme Court in K.V. Muthu v.
Angamuthu Ammal, (1997) 2 SCC 53
held as follows:-

"Son" as understood in common
parlance means a natural son born to a
person after marriage. It is the direct
blood relationship which is the essence of
the term in which "son" is usually
understood,
emphasis
being
on
legitimacy. In legal parlance, however,
"son" has a little wider connotation. It
may include not only the natural son but
also son's son, namely, the grandchild,
and where the personal law permits
adoption, it also includes an adopted son.

Section 3(57) of the General Clauses
Act defines "son" as under:

" ''son' in the case of anyone whose
personal law permits adoption, shall
include an adopted son."

Relying upon this definition, the
Lahore High Court in Divi Ditta, In re
AIR 1931 Lahore 661held that where the
personal law of the parties permits
adoption, the word "son" will include an
adopted son. In Adit Narayan Singh v.
Mahabir
Prasad
Tiwari,
48
Indian
Appeals 86, the Privy Council held that
"sons" in Mitakshara Chapter II 6(1)
include a grandson. In the ancient Hindu
Law, twelve sons are mentioned by the
truth-seeing sages all of whom need not
be mentioned here. The attempt only is to
indicate that the term "son" itself is a
flexible term and may not be limited to
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
217
the direct descendant. Its true meaning,
like the term "family" discussed above,
will depend upon the context in which it
is used. Even illegitimate son may be
treated as legitimate, as for example, the
"son" referred to in Section 16 of the
Hindu
Marriage
Act,
as
originally
enacted.

Coming now to "foster son", it may
be pointed out that a "foster son" is a son
who is not the real son or direct
descendant of a person after his marriage.

In Shorter Oxford Dictionary, "foster
son" is defined as "one brought up as a
son though not a son by birth". The word
"foster", in the same dictionary, is
indicated to mean, to supply with food; to
nourish, feed, support; to bring up with
parental care; to nurse, tend with care, to
grow.

"Foster Brother" is a male child
nursed at the same breast as, or reared
with, another of different parentage.
"Foster Father" is described as one who
performs the duty of a father to another's
child. "Foster Mother" is indicated to
mean a woman who nurses and brings up
another's child, either as an adoptive
mother or as a nurse, while "Foster Sister"
means a female child nursed at the same
breast as, or reared with, another of
different parentage.

These definitions indicate that a "foster
child" need not be the real legitimate child
of the person who brings him up. He is
essentially the child of another person but is
nursed, reared and brought up by another
person as his own son.

If a child comes to a person or is
found by that person as forlorn child or
the parents of that child, may be, on account
of
their
poverty
or
their
family
circumstances, bring that child to the other
person and request him to bring up that
child which is accepted by that person and
such child is brought up from the infancy as
the own son by that person who loves that
child as his own, nourishes and brings him
up, looks after his education in the school,
college or university and bears all the
expenses, such child has to be treated as the
son of that person particularly if that person
holds the child out as his own. Care,
therefore, in rearing up the child need not
always be parental. It can be even that of a
"foster father". In such a situation, the son
so brought up would be the "foster son" of
that person and since the devotion with
which he was brought up, the love and care
which he received from that person were
like those which that person would have
given to his real son, the "foster son" would
certainly be a member of the family.

20. The arguments of the counsel for
the petitioners that as the illegitimate son
is not excluded specially under Section
171 of U.P. Act No. 1 of 1951 as such his
exclusion cannot be inferred, is not liable
to be accepted. Supreme Court in
Vanguard Fire & General Insurance
Company Ltd. Vs. Fraser & Rose, AIR
1960 SC 971 held that when a word is
defined to mean such and such, the
definition is prima facie restrictive and
not exhaustive. Under Section 171 of U.P.
Act No. 1 of 1951, the word "son" has
been used. The son is a restrictive heir.
The case law of Raj Narain Saxena
(supra) relied upon by the counsel for the
petitioners related to the procedural law
and has no application in substantive law.

21. Kanhai was unmarried and
issueless and had no son of the varieties of
218 INDIAN LAW REPORTS ALLAHABAD SERIES
the sons from (I) to (XII) above. As such
Jagannath, Amar Nath and Raj Nath who
were born to Smt. Ram Pyari, after her
becoming widow comes either in the
category of Punerbhava or Parasava and
were his body born sons. Supreme Court in S
P S Balasubramariyam Vs. Suruttayan, AIR
1992 SC 756, Challamma Vs. Tilaga, (2009)
9 SCC 299 and Madan Mohan Singh Vs.
Rajni Kant, (2010) 9 SCC 209 held that
living in relation for long time and giving
birth to a child, raise a presumption of
marriage. The Hindu Widow's Remarriage
Act, 1856 has come in to force as such Smt.
Ram Pyari, being a widow was not disable to
remarry. In the absence of widow and Auras
son of Kanhai, Jagannath, Amar Nath and
Raj Nath are entitled to inherit Kanhai.
Supreme Court in Amireddi Raja Gopala
Rao v. Amireddi Sitharamamma, AIR 1965
SC 1970 held that a concubine was not
disqualified from claiming maintenance by
reason of the fact that she was a Brahmin.
The claim of a concubine who was a
respectable woman of the Brahmin caste and
her illegitimate sons for maintenance was
allowed. No doubt, a Pratiloma connection is
denounced by the Smriti-writers and the
Commentators, and before the Hindu
Marriages Validity Act, 1949 (Act 21 of
1949) Pratiloma marriages between a Sudra
male and a Brahmin female were declared
invalid but even those cases recognise that a
Brahmin concubine in the exclusive and
continuous keeping of a Sudra until his death
was entitled to claim maintenance.

In this case, if Smt. Ram Pyari was a
Brahmin, then she belongs to same caste
and in other case, there was Anuloma
connection and not pratiloma.

22. In view of the aforesaid
discussions, the writ petition succeeds and is
allowed. It is held that the findings in the
previous
judgments
that
Kanhai
was
'Brahmin' (Hindu) by caste and died
unmarried; The petitioners failed to prove
that Smt. Jhulari was the wife of Kanhai and
they were sons of Smt. Jhulari and Kanhai;
Jagannath, Amar Nath and Raj Nath were
born to Smt. Ram Pyari, who was widow of
Ram Nath, due to her illegitimate relation
with Kanhai, are the findings on issues
relating to the facts and operate as resjudicata. However, the findings that children
born to Smt. Ram Pyari, due to her union
with Kanhai were illegitimate children and
not entitled to inherit Kanhai are findings on
the legal issues and the previous judgments
in this respect would not operate as resjudicata, in the subsequent proceedings, in
respect of other properties. The impugned
orders of Consolidation Officer (respondent-3)
dated
01.12.2012,
Settlement
Officer
Consolidation (respondent-2) dated 06.03.2013
and
Deputy
Director
of
Consolidation
(respondent-1) dated 23.05.2013 are modified
accordingly.
The
Consolidation
Officer
(respondent-3) is directed to conclude trial on
other issues and pass final order after allowing
the parties to lead their evidence.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No.59939 of 2013

Ram Deen......