1. The property in dispute originally belonged to one Balwant Venkatesh, who died childless on the 12th of November 1881, leaving as his heiress his widow, Gopikabai. She having died on the 12th of April 1901, the suit resulting in the present appeal was brought on the 14th of January 1908 by the appellant in the Court of the Subordinate Judge, First Class, Belgaum, claiming the properties as reversionary heir of Balwant Venkatesh. The first respondent, who was the first defendant, is the son of one Venkatesh who as the adopted son of Balwant Venkatesh sold the properties to the other respondents. The real contesting parties, both in the Court below and here, are the appellant and respondents 2 to 4. These latter, both at the trial and here, defended their right to and possession of the properties under a title derived from the father of the first respondent. They also pleaded limitation.
2. The first question on appeal is, whether the adoption of the first respondent's father, relied on by the other respondents in support of their title to the properties, is proved in fact and is valid in law. The Subordinate Judge has found in the negative on that question, holding on the evidence that at the time the adoption is alleged to have taken place the first respondent's father was an orphan. If he was an orphan, there was no adoption valid in law : Balvantrav Bhashar v. Bayabai and Chintaman Maddan (1869) 6 Bom. H.C.O.C.J. 83 and Bashetiappa bin Baslingappa v. Shivlingappa bin Ballapar (1878) 10 Bom. H.C.R. 268.
3. The question, therefore, is whether the natural mother of Venkatesh, father of the first respondent, known as Keshav, the name given to him in his natural family, was alive on the 29th of January 1884 when the adoption is alleged to have been made by Gopikabai, widow of Balwant Venkatesh, at Nipani, where she lived. It is common ground that at that date the natural father of Venkatesh was not living ; and the case of the respondents is that it was the natural mother who gave Venkatesh in adoption to Gopikabai.
4. The Subordinate Judge has found that the natural mother was not alive at the date of the alleged adoption. The evidence, both oral and documentary, being, as usual in such cases, conflicting, we must appreciate it by the light of the central fact, the evidence as to which is convincing and which-the Subordinate Judge himself has found in distinct terms in another connection, namely, in dealing with the question of limitation. The fact so found, and in my opinion rightly, is that for years, from January 1884 down to his death in October 1908, Venkatesh was treated by Gopikabai as her adopted son and was either known or dealt with as such by the family and by outsiders both at Nipani, where he and Gopikabai lived together, and elsewhere. In the first place, the evidence established to the satisfaction of the Subordinate Judge, and it also satisfies fist us, that there was an adoption ceremony, attended by many persons, that at it pan supari was distributed, and that at its conclusion a dinner was given. The Subordinate Judge is also of opinion that in consequence of the adoption Gopikabai celebrated the marriage of Venkatesh, that her own brother's daughter was given in marriage to him, and that he lived with his wife and son born of the marriage with his adoptive mother Gopikabai. So far the weight of the evidence is substantially one way and there is no serious contradiction of it. It is also proved and the Subordinate Judge too has held that Venkatesh, as Gopikabai's adopted son, and as the only male member representing her deceased husband's' branch of the family, took the leading part at and directed the annual car festival in connection with the temple of the family god, Shri Venkoba. The evidence to the contrary adduced by the appellant is more or less of a negative character. It was argued before us on the strength of a document, Ex. 612, that Anantacharya, manager of the temple, directed the festival. That is a deed executed by Gopikabai, settling some lands of her husband on the manager for the purposes of the temple, on the 9th of August, 1887. It is not clear how this document was admitted in evidence without proof required by law. But as it went in apparently without objection taken by the respondents at the trial, we may treat it as duly admitted. It cannot, however, help the appellant's case on the point I am discussing, because the donee under the deed as the officiating priest would naturally officiate at the ceremonies of the temple; but such officiation is different from direction of the festival. The direction as of right comes in such cases from the leading male member of the family of the founder of the temple, and such member is called the Yajman or master. The officiation , is purely a function of ministerial character. The positive evidence adduced by the respondents shows that Venkatesh acted as Yajman at the festival and that could only be because none but a leading male member of the family would, according to Hindu usage, direct such occasions. Moreover his son, the first respondent, was admitted into the school which he attended as son of Venkatesh, the name assumed after adoption, whereas his name in the natural family had been Keshav. Venkatesh executed deeds as the adopted son of Gopikabai; and 1 to certain documents executed by her he joined as consenting party. Though the lands of the family continued in Gopikabai's name in the Collector's register, the houses were transferred to his name in the Municipal records and the Municipal taxes were paid in his name and by his hand.
5. Mr. Jayakar for the appellant has before us strenuously dwelt on the fact of the khata or entry of the lands continuing to stand in the name of Gopikabai after the alleged adoption down to the time of her death in April 1901 as an important circumstance showing either that she had made no adoption, or that if she had made one, it was null and void for want of validity in law. Apart from the question of validity, with which I shall presently deal, the fact of the continuance of Gopikabai's name in the Collector's register cannot be regarded as necessarily proving that there was no adoption made and that Venkatesh was not treated and recognised as her adopted son. That register is purely for the purposes of Government revenue; its entries are not evidence of title ; and it is not rare to find Hindu widows, who have adopted sons, continuing as khatedars of the lands of their deceased husbands, either on grounds of personal dignity or because of the inconvenience to which a woman has to submit when she has to transfer the hhata in the Collector's books from her name to the name of some other person. The circumstance of more vital importance is that in several transactions by way of mortgage or sale of lands, Venkatesh joined Gopikabai as assenting party. It was contended that these transactions were all more or less with respondent No. 2 ; but even then the fact stands that Gopikabai dealt with an outsider so as to declare by her words and conduct that Venkatesh had been adopted by her and was as such entitled to the lands. And that circumstance gains in weight when we have the further fact that in 1896 both Gopikabai and Venkatesh joined in the execution of a deed of mortgage in favour of her brother for Rs. 2,500 (Ex. 485). In the same year Gopikabai made over by a deed (Ex. 603) certain lands to her brothers as trustee for the performance of certain ceremonies, and Venkatesh joined as consenting party (see Ex. 486). On the 23rd of July 1896 Venkatesh executed a registered deed of maintenance (Ex. 167) in favour of Gopikabai, assigning certain lands to her. As to this deed, it is true that, as argued by Mr. Jayakar, there is no positive evidence to show that Gopikabai assented to and was a party to it, or that it was brought to her knowledge. The deed was presented for registration by Venkatesh, and even after its execution and registration the lands continued in the Collector's register in the name of' Gopikabai. From these circumstances we are asked to infer that the deed was the doing of Venkatesh alone and that Gopikabai had no knowledge of it. But as against that we have the fact that from the partition in the natural family of Venkatesh as between his natural brothers he was excluded and no share was given to him on the ground of his adoption into the family of Gopikabai's husband. At Nipani, where he and Gopikabai lived jointly in the same house, and elsewhere, he was known and recognised as her adopted son (see Ex. 475.)
6. All this is proved by the evidence of witnesses and of unimpeachable documents. By the light of the pregnant presumption arising from the central fact established by that evidence in support of the /action and recognition of the adoption for several years, we must appreciate the evidence bearing directly on the question as to whether the natural mother of Venkatesh was alive at the date of the adoption so as to have been able to make a gift of him to Gopikabai. Datto Abaji, a witness for the respondents (Ex. 470), deposes that Venkatesh, named Keshav in his natural family, was a son of Tarabai, paternal aunt of the witness ; that she died of asthma in 1887 or 1888 in the village of Vagrate, in the Native State of Kolhapore, whereas, on the other hand Vaman Shrinivas (Ex. 170) examined for the appellant states that she died four or five years before her husband. The central fact in the case to which I have adverted warrants us in crediting the story of the former. The Subordinate Judge's adverse comment on his testimony is that he is not corroborated as to the year of Tarabai's death and that ' the fact ' to which the witness deposes ' ought to have been proved from the death register.' As to corroboration, the probabilities and surrounding circumstances are strongly in support of the statement. The ceremony of adoption took place with due publicity in the presence of a large number of people. Nearly all the witnesses who attended the ceremony say that, besides Gopikabai, who received the boy in adoption, there was a woman beside her who gave him and who was talked about on the occasion as the natural mother of the boy. The appellant (plaintiff) and his family lived in a house opposite to that of Gopikabai where the ceremony took place ; and, as observed by the Subordinate Judge himself, ' it would be highly improbable to suppose that plaintiff's natural father and brother and plaintiff also (who had not then been given in adoption) who occupied the next door house should have remained ignorant of these facts.' If Tarabai were not alive, then we must presume that some woman was falsely set up for the occasion as the natural mother of Venkatesh. But such a presumption is opposed to the probabilities and to the undoubted circumstances surrounding the adoption. The ceremony was not a hole and corner affair; it was attended by a number of people; and if Venkatesh had been an orphan and a false woman had been made to do duty as his natural mother, exposure would have most probably followed and the adoption would have become a matter of adverse comment, seeing that secrecy in such matters is not easy unless the conspiracy to set up an orphan as an adopted son had been designed with unusual care, of which there are no indications in the evidence. And that would have been all the more so when we have the fact that appellant's branch of the family resided next door and had soon after the death of Gopikabai's husband set up their right to his property. Gangadharrao, natural uncle of the appellant, had then moved to take possession of the property (see Ex. 174). He had come forward and claimed the property not only under an alleged will of Balwant but also as one the whose family had been joint with Balwant (see Exs. 588 and 578). Gopikabai had resisted that claim and applied to the Court for a certificate of heir ship to her deceased husband. Her application had been strenuously opposed by Gangadharrao. She had won and got the certificate. It is evident that the appellant's branch at that time had their eyes on the property of Balwant inherited by his widow, Gopikabai. With this state of hostile feeling between her and her rivals, it was to be expected that every movement of hers would be watched ; and, if she was taking an orphan in adoption, it is probable that steps would have been taken to thwart her; at any rate, an adoption so repugnant to the Hindu sense as that of an orphan given by a woman disguised as his natural mother would have become the common talk of the place. The idea that an orphan cannot be adopted is rooted in the Hindu community. The fact that Venkatesh's adoption ceremony passed off with all due publicity to the knowledge of all, including the members of the natural family of the appellant, and that Venkatesh was recognised and dealt with as the adopted son of Gopikabai is consistent with the theory that presumably nothing had taken place to make it invalid and that everything had been done regularly as required by the Shastras. The appellant and his natural brothers never raised any objection; not that they were bound in law to raise it or that they are chargeable with either estoppel or acquiescence merely because they kept silent and looked on. But it is a question of inference to be drawn from the probabilities and the conduct of the parties after the lapse of so many years. Is it likely that if Venkatesh were an orphan, the fact could or would have remained unknown and not talked of Is it probable that appellant and his relations, who had been so keen to get hold of the property either as Balwant's heirs or co-parceners soon after his death in 1881, would have remained quiet and allowed Venkatesh to be recognised, treated, and dealt with publicly for nearly eighteen years, as Balwant's adopted son 1 Respondent No. 2 has sworn (see Ex. 102) that he was a personal friend of Ramrao, elder brother of the appellant, and that before lending money to Gopikabai and her adopted son, Venkatesh, he had consulted Ramrao, and that Ramrao had advised him to lend. The Subordinate Judge has declined to believe respondent No. 2's story on the ground that at that time Ramrao's father was alive and that the father would have been the proper person to consult. Why 1 The respondent's story is that Ramrao, not his father, was the respondent's friend; so he would naturally have consulted the son not the father, and it was the same which of the two was consulted, because presumably the son had equal means of knowledge with the father and equal interest in the question as to the validity of Venkatesh's adoption. But the Subordinate Judge's criticism in this respect is based on mere assumption that Ramrao's father was alive when respondent No. 2 consulted Ramrao. The will (Ex. 500) of Gangadharrao, younger brother of Govind, Ramrao's father, attested inter alia by respondent No. 2, is dated the 26th of July 1884. IQ that we Ramrao's father Govind is referred to as deceased. He must have died some time before July 1884. The loan advanced by respondent No. 2 to Gopikabai and her adopted son Venkatesh after consultation with Ramrao was in March 1884 (see Ex. 37), and Govind must have died long before that, in at least 1882, because when Gopikabai's husband Balwant . had died in 1881, the man who had come forward in February 1882 to claim his property on behalf of his branch of the family on the ground that they and Balwant had been members of a joint Hindu family was Gangadhar, not Govind (see Ex. 578). Had Govind been alive on the 14th of February 1882, as the eldest male member of his branch, of which Gangadhar was in that event a younger member, he would have represented the branch instead of Gangadhar in the matter of the claim to Balwant's property. These facts, which, in our opinion, are proved by the oral evidence and probabilities, warrant our finding that Gopikabai received and Tarabai gave Venkatesh in adoption. The case upon those facts falls within the principle of the decision of the Privy Council in Rajendra Nath Holdar v. Jogendra Nath Banerjee (1871) 14 M.I.A. 67 and the decision of this Court in Anandrav Shivaji v. Ganesh Eshvant (1863) 7 B.H.C.R. Appx. 33.
7. That principle applies to this case all the more when we have regard to the time when and the circumstances under which the appellant brought this suit.' Venkatesh, the adopted son of Gopikabai, died in October, 1901. The appellant applied then to the Revenue authorities for the transfer of the khata of the lands to his name in the Collector's register. Vaman, father-in-law of Venkatesh and maternal grandfather of the first respondent, then a minor, opposed appellant's application and prayed for a transfer to the minor's name (see Ex. 438). This fm latter application was granted and the khata was accordingly transferred to the first respondent's name in April 1902. From 1902 to 1906 the appellant did nothing and when Vaman, who apparently knew all about the family, died, the appellant sued the 1st respondent making Balaji Ramchandra the latter's guardian. Balaji is the witness whose collusion with the appellant has been commented on by the Subordinate Judge.
8. We must now consider the evidence and the probabilities dwelt on by the Subordinate Judge in his judgment in support of his decision negativing the adoption, and emphasised by the learned counsel for the appellant.
9. The Subordinate Judge has declined to accept the testimony of the witness Datto Abaji (Ex. 470) upon the ground that as to the year 1887 or 1888, which he gives as the year of Tarabai's death, he is not corroborated by the evidence of any death register. But even if such corroboration had been forthcoming, it would have been a question whether any weight should be attached to it in face of the probabilities and direct evidence, and having regard to the well known fact, of which the Court can take judicial notice, that vital statistics in tins country, especially in villages, are yet in a more or less imperfect stage, and that death registers, when and where they are kept, are more or less inaccurate. In 1861 it must have been even more so. The appellant, in support of his case that Venkatesh's natural mother had died in 1861, relies on an entry in a death register, Ex. 590. No name of the woman deceased is given there ; she is mentioned merely as ' wife of Ragho Pillo Kulkarni, caste Brahmin.' Vaman Shrinivasa witness (Ex. 170) examined for the appellant, deposes that Venkatesh's natural mother died four or five years before his father. We have already referred above to his evidence.
10. The appellant also relies on the fact evidenced by the genealogical table, Ex. 474. This forms part of a proceeding initiated by the Desai of Nanadi with reference to certain lands in the village of Uamrani, which belonged to the Desai as Inamdar but which stood in the name of Gopikabai's husband Balwantrao. The whole proceeding is held by the Subordinate Judge to have been 'a dodge of the Desai ' to get hold of the lands because 'he evidently coveted them.' The circumstances attending the proceeding support the Subordinate Judge's conclusion on that head. The proceeding resulted in a sale of the lands by Gopikabai to the Desai with the consent of Venkatesh. Veukatesh's consent to the transfer could only have been required and given because of the fact of his adoption having been valid in law. A statement (Ex. 278) purporting to be that of Gopikabai made in the course of the proceeding initiated by the Desai is in evidence. That statement represents her as having denied the adoption. The paper containing the statement does not form part of the proceeding; it has not come from the Desai's records; it is a mere copy, which the witness Balaji Ramchandra (Ex. 277) produced. He is a witness whose conduct as guardian of the first respondent during the minority of the latter exposes him to the suspicion of bias and collusion and the Subordinate Judge has rightly held that Ex. 278 cannot be treated as evidence of any value. The witness says he made the copy (Ex. 278) from the original; why, when and wherefore, he does not say ; and he does not satisfactorily explain how he came to preserve so carefully this copy, though it was not among the documents he had been summoned to produce. As to the genealogy (Ex. 474) purporting to have been produced by Gopikabai on the 17th of January 1891 in the proceeding started by the Desai of Nauadi, it does not mention Venkatesh- as her adopted son. But Ramchandra Waman, who proves it as its writer, says that he wrote the genealogy at the dictation, not of Gopikabai, whom he did not know, but of one Shivrampant and some gentleman at Mhaisal. It is clear that there is no proof that Gopikabai had this genealogy brought to her knowledge or that it was written with her consent.
11. Mr. Jayakar has also relied on the fact that Annaji, elder brother of Venkatesh in the latter's natural family, who was alive during the trial of the suit, was not called by respondents to prove that Tarabai the natural mother of Venkatesh had been alive in 1884 and had given Venkatesh in adoption. It appears from the record that the appellant, as plaintiff in the suit, had taken out a summons to examine Annaji as his witness. But he was not examined for the appellant. The respondents then took out a subpoena calling him as their witness to produce a deed of partition (Ex.475). Annaji sent the document with another person who has been examined (Ex. 470). Under these circumstances, both parties having omitted to insist upon Annaji's examination on the question of the year of Tarabai's death, we do not think that any inference- adverse to the respondents can be drawn in face of the presumption from other , circumstances that Tarabai was alive when the adoption ' ceremony took place.
12. Nor do we think we should attach any weight to the argument that it is improbable that any adoption as a fact was made on the 29th of January 1884, because the Hindu almanac shows that that was the day of vyatipata, an inauspicious day, when it is customary among orthodox Hindus not to perform any ceremony requiring omens of good fortune and success. That is a question of religious sentiment and would have stood out as a circumstance throwing serious doubt on the allegation that the adoption ceremony took place on such an inauspicious day, were it not for the preponderating weight of the other circumstances disclosed by the direct evidence and probabilities in support of the adoption. The appellant's counsel has also laid emphasis on the fact that his client in other suits against the 1st respondent succeeded in obtaining decrees negativing the adoption. To none of these suits were respondents a to 4 parties; therefore, they are not evidence against there
13. Upon the whole then, we must hold that Venkatesh was the validly adopted son of Gopikabai. The Subordinate Judge's view that the adoption was ' nominal/' and was the result of a conspiracy on the part of the brothers and a nephew of Gopikabai, got up for the purpose of securing her property for themselves, is founded on the evidence of her nephew Balaji (Ex. 277), whose conduct, as deposed to by himself, makes him out to have been an untrustworthy man. His testimony must be received with considerable caution, seeing that he has sworn that Balwant owed no debts at his death except Rs. 2,000, whereas the undisputed facts prove that he died indebted to the extent of Rs. 7,000. It is not probable that such a conspiracy as this witness speaks to would have remained undetected and unexposed when the appellant's brothers, who had, according to the Subordinate Judge's finding, knowledge of the adoption, were interested in the property as reversionary heirs of Gopikabai's husband and had, on his death, actually set up their right to it. The Subordinate Judge accounts for their quiescence in face of an invalid adoption made to their knowledge in this wise. He thinks that they ' kept silent under an erroneous impression that it was not necessary to move in the matters till the death of Gopikabai ' and that ' they knew also that the adoption was invalid and were sure of success at any time.' It is as likely that they kept silent because the adoption was valid. Where the two presumptions are equally balanced, we must prefer that which best accords with the fact that Venkatesh was treated for years as a validly adopted son. ' Perhaps, ' says the Subordinate Judge, the appellant and his brother 'did not like to contest the adoption during the life-time of Gopikabai because had the adoption been declared invalid there was the chance of Gopikabai making another adoption.' All this is speculation. The fact stands that Venkatesh was treated and dealt with as the duly adopted son of Gopikabai to the knowledge of the appellant and his natural brothers; and if the latter looked on, without protest t or objection, especially after the eldest of them, Gangadharrao, had on their behalf set up a claim to the property as co-parceners of the deceased Balwant, their silence and inaction after the lapse of eighteen years must be presumed to have been due to the fact that the adoption was valid in every essential respect.
14. Turning now to the question of limitation, the Subordinate ' Judge has found on the evidence that the appellant had knowledge of the adoption when it was made in January, 1884, and that on the authority of the decision of a Full Bench of this Court in Shrinivas v. Hanmant I.L.R. (1899) Bom. 260 : 1 Bom. L.R. 799 the present suit is barred under Article 118 of the Limitation Act. The Subordinate Judge's finding is amply supported by the evidence, which I have discussed in the foregoing part of this judgment. The only question is whether the Full Bench ruling is still good law or whether it must be taken to have been overruled by the decisions of the Judicial Committee of the Privy Council in Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh (1906) L.R. 33 IndAp 156, and Muhammad Umar Khan v. Muhammad Niaz-ud-din Khan . Mr. Jayakar, counsel for the appellant, strongly relies on the following observations in the judgment of their Lordships, delivered by Sir John Edge, in the latter case (p. 25):-
Although their Lordships consider that the question of an adoption was an immaterial issue, they think it advisable to say that the omission to bring within the period prescribed by Article 118 of the Second Schedule of the Indian Limitation Act, 1877, a suit to obtain a declaration that an alleged adoption was invalid, or never, in fact, took place, is no bar to a suit like this for possession of property. Their Lordships need only refer to Thakur Tirbhuwan Bahadur Singh v. Rameshar Bakhsh Singh. Under the general Mahomedan law an adoption cannot be made ; an adoption, if made in fact by a Mahomedan, could carry with it no right of inheritance.
15. Though this is obiter, yet as the definite expression of their '' Lordships' opinion, it is binding upon us. But does that opinion mean that their Lordships disapprove of the principle of the Full Bench ruling of this Court in Shrinivas v. Hanmant In the first place their Lordships make the guarded statement that Article 118 has no application to a suit like the one before them for possession of property. That was a suit between Mahomedans, and, as their Lordships studiously point out, the Mahomedan law does not recognise adoptions. To such a case the Article has no application. So far their Lordships' obiter does not touch Shrinivas v. Hanmant. But it is argued that the reference in the judgment to their Lordships' decision in Tirbhuwan Bahadur Singh v. Rameshar Bakhsh Sing makes it clear beyond doubt that Shrinivas v. Hanmant is overruled. In Tirbhuwan Bahadur Singh v. Rameshar Bakhsh Singh, the facts were that the so called adoption had been made in 1858 by a widow, who had become, on her husband's death, Taluqdar in her own right. She died in 1893 and the adopted son claimed to succeed as her heir. The suit was brought by her husband's reversionary heir in 1899, within three years after ' he had attained majority in 1896. It is obvious so far that the Limitation Act of 1877 did not apply. Under it, according to Article 118, the plaintiff had to sue within six years from the date when he had become aware of the adoption. So long as he was a minor such knowledge could not be imputed to him. He arrived at the age of majority in 1896 and the suit was brought within the period allowed by law in such a case. The so-called adopted son had, therefore, to fall back and rely upon a title acquired under the Limitation Act of 1871 and before the Act of 1877 came into force. And he relied on Article 129 of the former Act, which in the case of a suit to establish or set aside an adoption prescribed a period of twelve years from the date of the adoption, or, (at the option of the plaintiff), from the date of the death of the adoptive father. The Article merely prescribed a period for the right to sue ; but a right of action is not necessarily the same as the acquisition of title to property: see Thakurya v. Sheos Singh Rao I.L.R. (1880) All. 872 and Zulfikar Husain v. Munna Lal I.L.R. (1880) All. 148. Whether the two rights coalesce in a given are must depend upon its circumstances. If an adoption is made by the owner of a property, the adopted son from the mere fact of adoption acquires no title to it. The apparent J adoption in the Privy Council case under discussion gave no title to property to the so-called adopted son, so long as the widow, who was alleged to have made the adoption, was alive and remained owner of the property in her own right. His title to the property could accrue only on her death as her heir and successor; she died in 1893, long after the Limitation Act of 1871 had ceased to be law and while the Act of 1877 was in force.
16. This seems to me to be the meaning and effect of Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh (1906) L.R. 33 IndAp 156. The Madras High Court has construed that decision otherwise in Velaga Mangamma v. Bandlantudi Veerayya I.L.R. (1907) Mad. 308. But that Court, with all deference, seems to me to have over-looked the distinction between right of action and the acquisition of title carrying with it the right to sue for possession of property within a prescribed a period of limitation. It is significant also that though Shrinivas v. Hanmant and the decisions in accord with it were cited in argument at the Bar in Thakur Tirbhuwan Bahadur Singh v. Raja & Rameshar Bakhsh, yet their Lordships have abstained from referring to them in their judgment. Having regard to the conflict of authority among the High Courts in India on the point decided in Shrinivas v. Hanmant, it is highly improbable that, if their Lordships had held the latter decision to be are because, they would have left their meaning to mere implication, instead of putting an end to the conflict by overruling that decision in explicit language, giving rise to no misconstruction. That improbability gains in weight still further when regard is had to the fact that in a previous judgment of their Lordships (Malkarjun v. Narhari delivered by Lord Hobhouse, there are clear dicta at p. 228 of the report, bearing on and in substantial harmony with the reasoning and principle of the Full Bench decision of this Court in Shrinivas v. Hanmant. Under these circumstances I am constrained to hold that the Judicial Committee has not overruled Shrinivas v. Hanmant and that it is still the governing authority for this Presidency in adoption cases. On this ground the appellant's claim must be held barred by limitation.
17. The result is that the appeal fails and the decree must be confirmed with costs.
18. Separate sets of costs.
Basil Scott, C.J.
19. I have read and considered the judgment of my learned brother and I concur in his conclusions. I will only add a few words to express my opinion independently on the much argued question whether the dictum of the Judicial Committee in Muhammad Umar Khan v. Muhammad Niaz-Ud-din Khan must be taken as disapproving of the Full Bench decision of this Court in Shrinivas v. Hanmant I.L.R. (1899) Bom. 260. In my opinion it should not. The dictum in Muhammad Umar Khan v. Muhammad Niaz-Ud-din Khan is expressly based upon Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh (1906) L.R. 33 IndAp 156, but no reference was made to Jagadamba Chowdhrani v. Dakhina Mohun Mohesh Narain v. Taruck Nath and Luchmun Lal Chowdhry v. Kanhya Lal Nowar upon which the decision in Shrinivas v. Hanmant I.L.R. (1899) Bom. 260 was based.
20. The effect of Jagadamba's case was stated by Lord Hobhouse many years later in the following passage in Malkarjun v. Narhari .
In the case of Jagadamha (Jhawdrani v. Dahhina Mohun, the plaintiffs were reversionary heirs of a deceased Hindu, subject to the interest of his widows. They brought suits not long after the surviving widow's death to recover the estate. But adoptions had been made in 1853 and 1856, either of which, if valid, would displace the plaintiffs. The law of limitation applicable to the case (the Act of 1871) provided that a suit to set aside an adoption must be brought within twelve years after the date of the adoption. The plaintiffs sued, not to set aside the adoptions, but to recover the estate j and they argued that their title was good until an adoption was set up ; that those who set it up must prove its validity, which accordingly might be controverted by the plaintiffs. There was difficulty in the case, because the expression ' set aside an adoption' is inaccurate; an adoption cannot be set aside, though its validity may be impeached j and, in fact, the language was altered in 1877 before the appeal was heard. This Board found, however, that the expression had been frequently used in legal documents, and was known to Indian lawyers as a short way of denoting any process in which the fact or the validity of an adoption was disputed. On that ground they held that the Legislature must have intended to place the specified limit on suits for these purposes. Then the suit, being rightly described as one to set aside an adoption, attracted the consequence that the time for suing ran from the date of the adoption, and that the suits of 1873 and 1874 were barred.
21. And later he said :
In the adoption case just cited from 13 I. A. this Board remarked that there was no principle on which simple declarations of invalidity should be barred by the lapse of twelve years after the adoption, while the very same issue, if only mixed up with a suit for the possession of the same property, is left open for twelve years after the death of the widow. Their Lordships make the same remark now.
22. In Mohesh Narain v. Taruck Nath, the Judicial Committee adopting the reasons of jagadamba's case said : ' It was more than doubtful if the altered word in section 118 of the Act o 1877 would prove of any advantage to the plaintiff.'
23. In Luchmnn Lal v. Kanhya Lal, the defendant's case was discussed on the footing that in a suit for possession the defendant might successfully plead an adoption not declared invalid within six years under Article 118 of the Act of 1877.
24. In Thahur Tirbhuwan v. Raja Rameshar, it is clear that there was no disposition to throw any doubt on ' the Jagadamba case or the other cases which followed it.' It appears to me that the decision in that case has been misunderstood. The adoption in question was not an adoption in fact but only an adoption of a person as the heir of a woman absolutely entitled, ' other words an adoption in a popular sense.' The adoption alleged, even if proved, could not alter the status in Hindu Law of the person adopted by removing him from his natural family.
25. In Muhammad Umar Khan v. Niaz-Ud-din , the alleged adoption was among Mahomedans; again an adoption in a popular sense and not in the sense of an adoption of a Hindu into another family.
26. The dictum in the last mentioned case really goes no further than the dictum in Luchmun v. Kanhya Lal where their Lordships say, ' If the adoption was really made by Bhuina Chowdhrain of a son to herself and not to her husband, which the High Court has held to be the true construction of the deed of adoption produced, the plea of limitation could have no application in this suit, which relates entirely to the husband's estate.'
27. I agree with my learned brother that the explanation of the passage in Thakur Tirbhuwan v. Raja Rameshar (1906) L.R. 33 IndAp 156 relating to the admission of Mr. Cohen that if the Act of 1877 applied his client was out of Court, is to be found in the fact that the plaintiff was suing within three years of attaining majority, and, if time had not commenced to run against him from the date of the adoption under the Act of 1871 so as to create a new title in 1p defendant, the plaintiff would not be barred by Article 118 of the Act of 1877.