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Kalova Kom Bhujangrav Vs. Padapa Valad Bhujangrav - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom248
AppellantKalova Kom Bhujangrav
RespondentPadapa Valad Bhujangrav
Excerpt:
.....by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - the legislature seems distinctly to have recognized the right of a person to bring a suit to set aside an adoption as a substantive proceeding, independent of any claim to property, and to have fixed a special court fee for such a suit (act vii of 1870, schedule ii, article 17, clause v. ); and in the new limitation act (ix of 1871), article 129, the right to bring such a suit has since been again distinctly recognized......to the property of the deceased bhujangrav, we think that he is within time to maintain against balapa this suit to set aside his adoption, which took place in 1872, the year in which this suit was instituted; clause 16 of section 1 of act xiv of 1859 being the enactment applicable to such a case previously to the coming into force of act ix of 1871, schedule ii, article 129, as decided by the high court of calcutta in mrinmoyee dabea v. bhoobunmoyee dabea (15 beng. l.r. 1, s.c., 23 cal. w.r. 42 civ. rul.). it has been argued that, inasmuch as the fact, that the plaintiff is the son of bhujangrav, was, with regard to immoveable property, disputed in the christian year 1849 before the collector, this suit must be regarded as barred by lapse of time; but this is not a suit to recover.....
Judgment:

Michael Westropp, C.J.

1. Independently of any claim which the plaintiff may now have, or may, by lapse of time, have lost, to the property of the deceased Bhujangrav, we think that he is within time to maintain against Balapa this suit to set aside his adoption, which took place in 1872, the year in which this suit was instituted; Clause 16 of Section 1 of Act XIV of 1859 being the enactment applicable to such a case previously to the coming into force of Act IX of 1871, Schedule II, Article 129, as decided by the High Court of Calcutta in Mrinmoyee Dabea v. Bhoobunmoyee Dabea (15 Beng. L.R. 1, S.C., 23 Cal. W.R. 42 Civ. Rul.). It has been argued that, inasmuch as the fact, that the plaintiff is the son of Bhujangrav, was, with regard to immoveable property, disputed in the Christian year 1849 before the Collector, this suit must be regarded as barred by lapse of time; but this is not a suit to recover the immoveable property, and we do not intend to decide in it whether or not the plaintiff is barred from recovering that property. Possibly he may be so, as to a part or as to the whole, but we do not say whether he is so or not. The nature of the possession since Bhujangrav's decease should be considered whenever that question may be properly raised. It may be that the two widows of Bhujangrav have been in joint possession. It may be that the plaintiff has been maintained out of the rents and profits of the property. It may be that until 1851 neither widow was from the death of Bhujangrav in possession of the sequestrated property, or that both widows were originally so, and were deprived of possession on the sequestration, and were restored to joint possession upon its removal. Whether or not there was, or could have been, any exclusively adverse possession by the widow Kalova under the foregoing circumstances, so as to set time running against the plaintiff, will be a question to be determined when the proper occasion may arise. Independently of any claim to the property of Bhujangrav we think that a suit to set aside the adoption of Balapa would lie for the plaintiff, if he be the son of Bhujangrav, inasmuch as, if the claim of the plaintiff to the property were, as against Kalova, barred by lapse of time, and the plaintiff bring, as he has done, his suit to set aside the adoption within time against Balapa, the plaintiff would been titled to obtain an injunction against any intervention of Balapa in performing the shraddh or other ceremonies for the benefit of Bhujangrav, or assuming the status of adopted son of Bhujangrav. The Legislature seems distinctly to have recognized the right of a person to bring a suit to set aside an adoption as a substantive proceeding, independent of any claim to property, and to have fixed a special Court fee for such a suit (Act VII of 1870, Schedule II, Article 17, Clause v.); and in the new Limitation Act (IX of 1871), Article 129, the right to bring such a suit has since been again distinctly recognized. For all of these reasons we think that the objections founded by Mr. Gokuldas, on behalf of his client Kalova, on Section 15 of Act VIII of 1859, and the decisions of the Courts thereon, as to declaratory suits and the possibility of consequential relief, cannot be permitted to prevail here. We, therefore, affirm the decree of the Assistant Judge. Upon the retrial of the case the retrying Court should determine the question whether the plaintiff is the son of Bhujangrav. Should that question be determined in favour of the plaintiff, the retrying Court should proceed to consider and determine the validity of the adoption of Balapa, as to which question it may be desirable to refer that Court to the decisions of this Court in Bashetiappa v. Shivlingappa (10 Bom. H.C. Rep., 268), The Collector of Surat v. Dhirsingji (10 Bom. H.C. Rep. 235) and Balvantrav Bhaskar v. Bayabai (6 Bom. H.C. Rep., 83 O.C.J.); and of the Madras Court in Subbaluvammal v. Ammakutli Ammal (2 Mad, H.C. Rep., 129). The costs of the regular and special appeals in this suit must be costs in the cause, and must depend on the final result of the retrial.


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