1. The dispute in this appeal relates to property left by Jangi who died on 18-8-1933. The facts briefly are that before his death Jangi adopted his daughter's son Duni as his son. The adoption ceremony appears to have been performed in November 1928. In June 1933 Jangi executed a will leaving his entire property to his adopted son Duni. After Jangi's death his property was mutated in favour of his brothers on the ground that they were his collaterals. Duni claiming to be both the adopted son of Jangi and the legatee of the will executed by him filed a suit for possession. In that suit the brothers of Jangi raised a plea that the property in dispute was ancestral. The suit was decreed In favour of Duni on the ground that he had succeeded in proving his adoption by Jangi. The defence plea that the land was ancestral was held not to Have been proved, but the trial Court observed that the same result would have followed, had the land been ancestral. This decision was upheld on appeal and the result was that Duni took possession of the property and remained in possession till his death. After the death the land was mutated in favour of his mother Rodi. Then the plaintiffs brought the present suit for possession alleging that the land was ancestral and on the death of Duni who left no issue the land should revert to them as collaterals. The defence raised on behalf of Rodi was that the finding in the previous suit regarding the nature of the land acted as 'res judicata'. In the previous suit it had been held that the land was not ancestral and this finding having been given in a suit between the same parties could not now be challenged. All the Courts have held that the finding on this issue must be treated as 'res judicata' and that the plaintiffs cannot now allege or seek to prove that the land is ancestral and on this finding the plaintiffs' suit was dismissed. This is the only point requiring our decision now.

2. It is argued by Mr. Daya Krishan Mahajan on behalf of the plaintiffs that the nature of the land was not a relevant consideration in the previous suit and that Duni was bound to succeed if he proved himself to be the adopted son of Jangi, whether the land was ancestral or not. Similarly the defendants in that suit would have succeeded if they had been able to disprove the adoption relied upon. In this view of the matter (so it was argued) the issue relating to the nature of the land was not a matter substantially and materially in issue in that suit and any decision given upon it cannot be treated as 'res judicata'. On the other hand it was argued by Mr. Karam Chand Nayar on behalf of Rod! that the plea with regard to the ancestral nature of the land was raised and a decision in respect of it was invited. A decision was in fact given and that decision cannot now be questioned.

3. It is clear that before a decision in a previous suit can be held to be 'res judicata', the conditions laid down in Section 11, Civil P. C. must be satisfied. The section reads "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 * * *". It is clear that in the present suit the ancestral nature of the land is a matter directly and substantially in issue, but the question is whether it was directly and substantially in issue in the previous suit brought by Duni. Duni's claim at that time was in effect this "I have been adopted by Jangi as a son and as his adopted son I am entitled to succeed to his property whether it is ancestral or non-ancestral. I am also the legatee under his will, This will take effect quite apart from the factum of adoption if the property is non-ancestral. But the will may be taken as evidence of adoption and then it will entitle me to succeed to Jangi's ancestral property also." In this view of the matter Duni's claim could have been decreed regardless of whether the property were ancestral or non-ancestral. All that Duni had to prove was that he had been lawfully adopted by Jangi. The reply of the defendants in that case was "The adoption is bad and therefore Duni is not entitled to succeed to Jangi. The land in dispute is ancestral and such land must come to us if the adoption is held not to be proved."

The defendants, therefore, had to prove two things before they could succeed. They must prove in the first place that Jangi had not lawfully adopted Duni. In the second place, they had to prove that the land was ancestral. Had the land been non-ancestral, Duni could have succeeded to it on the basis of the will quite apart from the adoption. Therefore it is clear that as long as Duni could prove adoption, his suit had to be decreed in respect of ancestral and also non-ancestral land. It follows, therefore, that the issue with regard to the ancestral nature of the land was not a matter directly and substantially in issue in the previous suit. The learned Judge decreed the suit in favour of Duni holding (1) the adoption of Duni was good, (2) the land was non-ancestral and (3) that Duni would have succeeded even if the land had been ancestral. In the circumstances it must be held that the decision of that Court cannot act as 'res judicata'. (4) Mr. Karam Chand Nayar has put forward the view that a consideration of the question of adoption necessarily involves a finding that the land claimed by the adopted son is ancestral. He has drawn our attention to Section 7 of Punjab Act, 2 of 1920. Section 7 says

"Notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom"

5. Mr. Nayar argues that the question of adoption is so intimately tied up with the ancestral nature of property that the two are entirely inseparable and the notion of an adopted child cannot be entertained without assuming that the land which he claims is ancestral. Prom this premise Mr. Nayar sought to argue that Duni could not have maintained his suit for possession of the land left by Jangi without asserting that the land was ancestral or at any rate without basing his claim upon such an assumption. The argument of learned counsel is however, without any force. The notion of adoption has nothing whatever to do with the nature of the land. Adoption under Customary law may be described as a relationship between two individuals which gives rise to certain consequences. If the relationship is recognized by law, the adoptee will inherit ancestral as well as non-ancestral property of the adopter. If the relationship is not recognized, then the adoptee would not inherit his property. If there is a will in his favour he will inherit the non-ancestral property only. In adoption, therefore, there are two matters which must be considered CD the factum that certain relationship was established, and (2) what was the nature of that relationship and these matters have nothing whatever to do with whether the adopter is possessed of ancestral property or not. An adoption may be valid even if the adopter possesses only non-ancestral property. This means that a proprietor has the right to adopt as his son a person according to the Customary law governing his tribe. For instance, Jangi was authorised to adopt his daughter's son and he could do so whether he was possessed of ancestral property, non-ancestral property or not property at all and, therefore, the fact that Duni claimed to be Jangi's adopted son is a matter which may be considered by itself Irrespective of the nature of Jangi's property. If the adoption is proved, Duni must be held entitled to inherit ancestral as well as self-acquired property of Jangi, but if the adoption is not proved then Duni cannot lay claim to any property left by Jangi. He would then have to rely upon the will and this will could only give him a right to the self-acquired property of Jangi. Kapur, J. has observed in his judgment

"Two questions arise whenever an adoption is made under custom, (1) whether in fact there was an adoption and (2) whether the adoption was valid in accordance with custom. The first question is not hit by the nature of the property, but in order to decide the question whether the adoption is valid or not, the question of the ancestral nature of the property is a relevant consideration"

Kapur, J.

then cited Section 7 of Punjab Act 2 of 1920. With great respect I must hold that the learned Judge was mistaken in the view he took. The question whether there was an adoption or not and the validity of the adoption are not in any way affected by the nature of the property. The property may be affected by a valid adoption. The question of adoption must be decided upon wholly different considerations, namely whether in a particular tribe adoption is permitted and if the consent of the collaterals was required such consent was or was not obtained and if the adopted person can only be within certain degrees of consanguinity whether he actually fulfils such requirements. These questions have no bearing upon whether the adopter is or is not possessed of ancestral property. But it must be remembered that collaterals have the right to inherit even self-acquired property in the absence of other heirs and an adopted son's claim to non-ancestral property may fail if he cannot prove his adoption. It is the adoption which affects the ancestral property and not the ancestral property which affects adoption. Therefore it is wrong to say that the question of ancestral nature of the property is a relevant consideration in deciding the validity of the adoption.

6. In -- 'Asrar Ahmad v. Durgah Committee Ajmeer', A. I. R. 1947 P. C. 1, a suit was brought against the Mutawalli of the Durgah for his dis missal from office on account of incompetency, dishonesty, neglect of duty, etc. The plea raised in defence was that the Mutawalli had a heredi tary right to remain in office. This point was decided in the Mutawalli's favour but the Muta walli was removed on the ground that he was incompetent and dishonest. It was held that in a subsequent suit the finding with regard to the hereditary right of the Mutawalli was not 'res judi cata' because in the previous suit the issue rais ed by the plaintiff was as to the competency of the defendant to remain in office "an issue to which it was irrelevant whether he had a heredi tary right". Mr. Nayar relied upon -- Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy', 51 Cal. 631 (P. C.). In that case an issue was held material by the appellate Court although the trial Court had not dealt with it. The facts of that case were, however, somewhat peculiar. A certain issue raised in the trial Court was not dealt with in the judgment of the trial Court. In appeal the appellant directly insisted on the point being tried and adjudicated upon. In the cir cumstances it was held that the decision must be treated as 'res judicata' because the appellant had insisted on obtaining a decision upon it and a decision was in fact given. The pre sent case is clearly distinguishable from the

-- 'Midnapore Zamindary Co. Ltd. case.

7. In the present case it is clear that Duni's suit succeeded not because the land was held to be non-ancestral but because he was able to prove a valid adoption by Jangi. The question of the ancestral nature of the land, therefore, was not directly and substantially in issue in that suit and that being so the finding given by the trial Court in Duni's suit cannot be held to be 'res judicata'. I may mention here that the defendants in that case were unable to prove their assertion because they were unable to get revenue excerpts which showed that the land in possession of Jangi was ancestral. Be that as it may, the present appeal must succeed for the reasons given above. I would, therefore, allow this appeal and remand the case to the trial Court for decision on merits. The appellants will recover costs of appeal in this Court.

(8) Parties have been directed to appear before the trial Court on 5-1-1953.

Falshaw, J.

9. I agree.