SHINGHAL, J. - (1.) THIS second appeal is by Ramgopal, defendant No. 1 in a suit which was instituted by Smt. Ram Kunwari on October 8, 1954, in the court of Munsiff, Sikar. The plaintiff arrayed her mother Smt, Patasi as the other defendant in the suit, and impleaded her sister Smt. Ladi as a proforma defendant. It appears that Smt. Ladi was later on transposed as a plaintiff at her own request because she apprehended that her sister Ram Kunwari had colluded with defendant Ramgopal. The learned Munsiff decreed the suit in part, but it has been decreed in toto by the learned Senior Civil Judge of Sikar on December 22, 1958 on an appeal by Smt. Ladi and this is why defendant Ramgopal has, in his turn, come up in this second appeal.
(2.) IN order to appreciate the controversy, it is necessary to give some salient facts. Surajmal, the father of the plaintiffs and the husband of defendant Smt. Patasi, was a resident of Sikar. He had a brother named Narayan and defendant Ram Gopal is Narayan's son. Defendant Ramgopal claims that Surajmal took him in adoption on Phalgun Sud 2, Svt. 1983 (March 5, 1927 ). Surajmal admittedly died on Mangsar Sud 3, Svt. 2003, leaving behind two daughters Smt. Ram Kunwari and Smt. Ladi, the plaintiffs, and his widow Smt. Patasi. It was alleged by the plaintiffs that, some two years before the institution of the suit, defendant Ramgopal, in collusion with Smt. Patasi, gave himself out as the adopted son of Surajmal and began to make efforts to dispose of a 'nohra' of Surajmal in that capacity. According to the plaintiffs, Ramgopal had never been adopted by Surajmal and they therefore prayed for a declaration that he was not the adopted son of Surajmal, and for an injunction restraining Ramgopal from alienating the 'nohra' or any other property of Surajmal. Ramgopal pleaded, on the other hand, that he was the duly adopted son of Surajmal and that the suit had really been filed at the instigation of Smt. Patasi, against whom he had secured a decree, a little earlier, declaring that he was the adopted son of Surajmal. According to Ramgopal, since that decree, which is dated September 17, 1952 and has been marked Ex. A. 1, was binding on Smt. Patasi, she could not herself get over it, and so she had asked her daughters, who are both married, to challenge the adoption by means of this suit. Some other pleas were taken in the written statement, but it is not necessary to refer to them. No written statement was, however, filed by Smt. Patasi. The learned Munsiff reached the conclusion that Ramgopal's adoption had been proved satisfactorily but he was under the impression that as the Hindu Succession Act of 1956 had come into force in the meantime the plaintiffs as well as the defendants were all heirs of Surajmal and were equally entitled to inherit his property. The learned Munsiff therefore decreed the suit only to the extent of restraining Ramgopal from alienating more than his share of the property. Smt. Ladi preferred an appeal against that decree but Ramgopal felt satisfied with it and did not file an appeal or a cross-objection. When the matter came up before the learned Senior Civil Judge, he took the view that Ramgopal had not been able to prove that he had been adopted by Surajmal. Accordingly, he allowed the appeal and decreed the suit in its entirety as mentioned earlier. This is how the present second appeal of defendant Ramgopal has arisen. Ramgopal has prayed for the dismissal of the suit out-right and a preliminary objection has been raised by Mr. G. M. Lodha, learned counsel for Smt. Ladi, that Ramgopal is not entitled to any such relief as he cannot go behind the decree of the learned Munsiff inasmuch as he felt satisfied with it and did not prefer any appeal or cross-objection even though an appeal had been preferred by Smt. Ladi. Mr. P. N. Datt learned counsel for the appellant has frankly conceded that there is force in this contention and he has therefore prayed that the appeal may be taken for the purpose of restoring the decree of the trial court. The question, therefore, which falls for decision is whether the finding of the learned Judge of the lower appellate court that defendant Ramgopal was not taken in adoption by Surajmal, is correct. This was principally the subject matter of issue No. 1 and, as has been stated, the finding of the trial court in Ramgopal's favour has been reversed by the lower appellate court. It has been argued by Mr. Datt that the finding of the learned Senior Civil Judge on this important point of controversy has been vitiated by a serious defect of procedure inasmuch as that learned Judge rejected the earlier Judgment Ex. A. 1 dated September, 17, 1952, which had been given in a suit between Ramgopal and Smt. Patasi, although it was admissible in evidence and was of considerable value. On the other hand, Mr. Lodha has argued that as the plaintiffs were not parties to that judgment, it was wholly irrelevant and could not be said to be admissible in evidence. Thus the question is whether the aforesaid judgment Ex. A. 1 could be said to be relevant and therefore admissible in evidence even though Smt. Ram Kunwari and Smt. Ladi were not parties to it. The judgment was given in a suit which had been instituted by the present defendant Ramgopal against Smt. Patasi and one Brijmohan, on November, 9, 1951. In the suit, Ramgopal pleaded that he was the adopted son of Surajmal and that Smt. Patasi had herself admitted that this was so in two documents of 1949 and 1951, both of which were tendered in evidence during the course of the trial and were marked as exhibits in the case. Accordingly, Ramgopal challenged the adoption of Brijmohan by Smt. Patasi in 1951. Smt. Patasi and Brijmohan disputed Ramgopal's claim and an issue was framed on the question whether Ramgopal was the adopted son of Surajmal. It so happened, however, that Smt. Patasi subsequently made an application admitting Ramgopal's claim in the suit, and Brijmohan did not contest the suit thereafter, so it was decreed by judgment Ex. A. 1 in Ramgopal's favour on September 17, 1952. It is this judgment of which the evidentiary value has now to be decided. Secs. 40 to 43 of the Evidence Act deal with the relevancy of judgments of courts of justice. Of these secs. 40, 41 and 42 are not applicable because there is no judgment has not been given in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction and it does not relate to matters of a public nature. It is not the case of any party that the judgment was delivered by a court which was not competent to deliver it or that it was obtained by fraud or collusion and so sec. 44 is also not applicable. The question is whether the remaining sec. 43 could be said to be attracted. That section reads as follows: "43. Judgments, orders or decrees, other than those mentioned in secs. 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act. " As has been mentioned, secs. 40, 41 and 42 are not applicable and so the relevancy of judgment Ex. A-l will depend upon the question whether (i) its existence is a fact in issue, or (ii) it is relevant under some other provision of the Evidence Act. The existence of the aforesaid judgment was not a fact in issue in the case and so it remains to consider whether it could be said to be relevant under some other provision of the Evidence Act. The only relevant cross-reference for purposes of this case is to sec. 13 of the Evidence Act which provides as follows - "13. Where the question is as to the existence of any right or custom, the following facts are relevant: - (a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; (b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from. " Under clause (a) of this section any transaction by which the disputed right or custom was, inter alia, recognised or denied would be relevant, while under Cl. (b) thereof the particular instances in which such a right was recognised or disputed would be of relevance. But it cannot be disputed that the words "transaction" and "right" have been used in a wide sense, so that they have to be construed liberally and the right of a person as the adopted son of another would, in my opinion, fall within the purview of both the clauses of sec. 13. Therefore, any transaction or instance by or in which such a right was recognised, or was denied or disputed would be a relevant fact. It is also beyond doubt that a judgment not inter partes is a transaction or instance within the meaning of sec. 13 if any right could be shown to have been recognised by or in it, as the case may be. In this view, I am fortified by the high authority of two decisions of their Lordships of the Supreme Court in Srinivas Krishnarao Kango Vs. Narayan Devji Kango (l) and Sital Das Vs. Sant Ram (2 ). It would follow that such a judgment, even though it is not inter partes, would be admissible in evidence under sec. 13 for corroboration of a fact asserted by a party in oral evidence. It is true that the judgment would not bind those who are not parties to it and it is equally true that it is not the correctness of the decision but the fact that there has been a previous decision which is established by the judgment. But it can nonetheless be used for the purpose of showing that a particular right was asserted on an earlier occasion and that it was recognised even though it was denied or disputed by the other party. I have no doubt therefore that it was open to defendant Ramgopal to show that he asserted his right as the adopted son of Surajmal in 1951, that such a right was denied and disputed by Smt. Patasi and another and that the right was upheld by the court concerned by its judgment Ex. A-l dated September 17, 1952. That judgment could therefore be received in evidence under sec. 13 and although it was by no means conclusive, it could and should have been used in evidence and it had some intrinsic evidentiary value of its own, which had to be assessed and determined with due regard to the other evidence on the record. In taking a contrary view and in rejecting the judgment as inadmissible in evidence, the learned Judge of the lower appellate court apparently committed an error of law and procedure. His finding on the question of Ramgopal's adoption must therefore be held to be vitiated and cannot be binding on this Court. It has, therefore, become necessary for me to reappraise the evidence for myself. As has been mentioned, issue No. 1 covers the question whether Ram Gopal had not been adopted by Surajmal. The plaintiffs examined five witnesses, while defendant Ramgopal examined seven witnesses and produced judgment Ex. 1 as well. I have considered the evidence and I have no doubt that Ramgopal has been able to prove that he is the adopted son of Surajmal and I shall now state the reasons for this conclusion. Of the plaintiffs' witnesses, Baijnath P. W. I is not reliable as the trial court as well as the court of first appeal have discarded his testimony. The witness has stated that he knows Smt. Patasi from S. 2005, whereas adoption is said to have taken place in S. 1983. He could not therefore be said to be familiar with the family of Surajmal so as to be likely witness of any adoption that might have taken place. Besides, this Baijnath is a tenant of Smt. Patasi who is interested in defecting Ram Gopal's claim. His testimony has therefore been rightly rejected. Suwalal P. W. 2 and Badrinarayan P. W. 5 have stated that no turban was tied on the head of Ramgopal on Surajmal's death. Suwalal is the attorney of Smt. Ladi, the plaintiff, and he is a relation of Smt. Patasi. He is therefore a partisan witness. Badri Narayan is the son of Gajanand. He is also a relation of Smt. Patasi and it is nothing surprising that he should have sided with her. This witness appears to have been examined for the purpose of contradicting Ramgopal's assertion that it was Gajanand who tied the turban on his head when Surajmal died. But, as has been admitted by Smt. Patasi, Gajanand was alive and the proper course for the plaintiffs was to have produced him in evidence if they wanted to rebut Ramgopal's aforesaid assertion. I am therefore not persuaded that the statement of Badri Narayan should be held to be reliable. Ranglal P. W. 3 and Bhuramal P. W. 4 do not belong to the family of Surajmal. They do not even belong to his caste and appear to be made up witnesses. Even so, Ranglal has admitted that he had seen Ramgopal living in Surajmal's house after his death. Bhuramal claims to be a neighbour, but he does not appear to be on terms of much familiarity with the family of Surajmal as he could not even recollect whether he was invited to the wedding of Smt. Ladi which took place much later. Thus the evidence of the plaintiffs is quite unsatisfactory. I am driven to this conclusion for the further reason that the plaintiffs have not ventured to examine themselves and it is apparent that they were afraid of facing the cross-examination. Smt. Ram Kunwari was quite grown up at the time of the alleged adoption and there is no reason why she should have stayed away from the witness box if her claim in the suit was genuine and true. Smt. Ladi may not have been born in Smt. 1983 when the adoption is said to have taken place as she has claimed that she was born at about that time. But she could certainly have stated what she had seen regarding the relationship of Surajmal and Smt. Patasi with Ramgopal. At any rate, she was about 13 years old at the time of the death of her father Surajmal and she could have deposed whether the funeral rites were performed by Ramgopal and whether 'pagri' was tied on his head as claimed by him. As there is no satisfactory reason why the plaintiffs have not examined themselves, there is nothing wrong in the trial court's view that this factor should also weigh against them. Coming to the evidence of defendant Ramgopal, it appears that he got recorded his own statement and examined Badrinarain DW 2, Mahadeo DW 3, Motilal DW 4, Shiv Prasad DW 5, Hari Prasad DW 6 and Shri Kishan DW 7. The learned Senior Civil Judge has noticed that all these witnesses have consistently stated that they witnessed the adoption of Ramgopal by Surajmal in Smt. 1983, but he has rejected their testimony for other reasons. Ramgopal's statement has been disbelieved by the learned Senior Civil Judge because he did not produce, or obtain from Smt. Patasi, the deed of adoption which is said to have been written out in Smt. 1983, and also because Ramgopal holds a certificate under which he carries on his practice as a 'vaidya' in the name of his natural father Narayan. So far as the adoption deed is concerned, it is true that Ramgopal has not produced it and he has not led secondary evidence in regard to it. But this appears to be due to the fact that Ramgopal did not think it necessary to produce that document as he was under the impression that the earlier judgment Ex. A-1 made out a clear and unanswerable case for him. I am led to this conclusion by the fact that, as has been mentioned earlier,ramgopal tendered two documents of 1949 and 1951 during the course of the trial of the earlier suit (which had been raised by him ), and although both those documents went to show that Smt. Patasi had admitted his adoption by Surajmal, they were not utilised for purposes of the present suit. There can be little doubt that if those documents had been obtained from the court concerned, they would have benefited Ramgopal's case considerably. It would not therefore be reasonable to reject Ramgopal's evidence merely because he failed to produce secondary evidence of the execution of the adoption deed. The argument of Mr. Dutt that Smt. Patasi was so hostile to Ramgopal that she would not have produced the adoption deed, is not without force. The extent to which Smt. Patasi could resort to falsehood to defeat Ramgopal's claim would be apparent from the fact that when she was cross-examined with regard to her admission of Ram Gopal's claim in the earlier suit and the consequent judgment Ex. A. 1, she had the audacity to deny that there was any such case at all or that she ever knew Brijmohan. As regards the existence of a certificate in the name of Ramgopal's natural father Narayan under which Ramgopal was practising as a 'vaidya', it may be stated that because Narayan was himself a 'vaidya', Ramgopal might have thought it convenient to continue the same certificate particularly as Narayan did not leave any son who could take up his practice. This is also not a sufficient reason to reject Ramgopal's testimony. The only other reason for which the learned Senior Civil Judge did not accept Ramgopal's evidence was that although he claimed that a 'pagri' was sent by the 'thikana' on Surajmal's death, no evidence was led to show, by way of corroboration, that the 'thikana' actually did so. It has been argued by Mr. Lodha that the 'thikana' record should have been produced in evidence. This argument is again futile because there is nothing to show that it was the practice in the 'thikana' in question to note down the name of the person on whose head the 'pagri' was to be tied, and in the absence of any such evidence, it cannot be said that it was necessary for Ramgopal to have produced any record of the 'thikana' by way of corroboration, It follows therefore that the criticism against Ramgopals' testimony is not justified. Coming to Badri Narayan D. W. 2 he has clearly stated that Surajmal took Ramgopal in adoption in his presence in Smt, 1983 and that the 'pagri' was tied on the head of Ramgopal when Surajmal died in Smt. 2003. It is urged that the evidence of the witness is not reliable because there are discrepancies about the age of Ramgopal on the date of the alleged adoption and on the question whether he was seated in the lap of Surajmal or of Smt. Patasi. The discrepancies are minor and are of no consequence and there is no reason to disbelieve the statement of Badri Narayan as well. Then there are the statements of Mahadev D. W. 3, Motilal D W. 4, Shiv Prasad D. W. 5, Hari Prasad D. W. 6 and Shri Kishan D. W. 7 against which no criticism has been levelled by Mr. Lodha.
(3.) IT appears to me therefore that the parol evidence on the record is quite sufficient to prove that Ramgopal was taken in adoption by Surajmal, as claimed by him. Then there is the judgment Ex. A-1 dated September 17, 1952, to which reference has been made earlier. For reasons which need not be repeated, that judgment is admissible in evidence by way of corroboration of the fact that Ram Gopal asserted his right as the adopted son of Surajmal in 1951 and that it was recognised even though it was initially denied and disputed by Smt. Patasi herself That judgment lends assurance to the parol evidence of Ramgopal. The evidence taken as a whole makes out a clear case for Ramgopal. I am therefore of the view that Ramgopal should be held to have proved that he was the adopted son of Surajmal and the contrary finding of the learned Senior Civil Judge is reversed. As has been mentioned, this cannot lead to the comp-lete dismissal of the suit of the plaintiffs because Ramgopal did not care to challenge the judgment and decree of the trial court so that his success in the appeal will be limited to the restoration of the decree of the learned Munsiff dated August 30, 1958 The appeal is allowed to this extent and the judgment and decree of the learned Senior Civil Judge dated December 22, 1958 are set aside. In the circumstances, the parties are left to bear their own costs throughout. .;