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Ramchandra Vinayak Kulkarni and ors. Vs. Narayan Balaji and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom400
AppellantRamchandra Vinayak Kulkarni and ors.
RespondentNarayan Balaji and ors.
Excerpt:
limitation act (xv of 1877), schedule ii, article 118 - adoption--declaration that the adoption is invalid--knowledge--death of adopter--date from which limitation runs. - - 248, distinctly recognised the right of a person to bring a suit to set aside an adoption as a substantive proceeding independent of any claim to property by fixing a special court-fee for such a suit and providing a special period for it in the limitation act, but it is urged, though such a suit could have been brought, it could only have been brought by some person entitled to dispute the adoption, whereas the plaintiffs could claim no such title during bajaji's life-time......suit against any person denying his title to such character. now, what were the circumstances when bajaji adopted defendant bajaji had no issue expect daughters. the daughters could not, according to law, beocome entitled to the watan property on his dath. therefore, in the absence of any adoption, the property on bajaji's death would have gone to the widow first and to the plaintiffs as reversioners after widow's death. there was the chance of the widow predeceasing bajaji and the plaintiffs becoming entitled to the property on bajaji's death. it may therefore be taken that the plaintiffs during bajaji's life-time were prima facie clothed with the legal character of apparent reversioners, and they could have brought a suit against defendant 1, attacking his adoption, because the moment.....
Judgment:

Chandavarkar, J.

1. The point of law which arises in this case is, whether this suit to set aside the adoption of defendant 1 is barred under article 118 of the Limitation Act, and fails within the principle of the Full Bench ruling of this Court in Shrinivas v. Hanmant (1899) 24 Bom. 260.

2. The facts are shortly these. One Bajaji who was entitled to certain watan property adopted on the 17th March, 1891, defendant 1 who was his daughter's son. Bajaji died on the 30th March, 1897. The plaintiffs brought this suit in 1899 for a declaration that the adoption of defendant 1 by Bajaji was invalid. Both the lower Courts have dismissed the suit on the ground that it ought to have been brought within six years from the date when the plaintiffs came to know of the adoption.

3. It is contended before us that the period of limitation of six years prescribed by article 118, Limitation Act, cannot apply to the facts of the present case, because the adoption having been made by Bajaji himself, defendant 1 did not become entitled to any property until Bajaji's death, and that it was upon the happening of that event, i.e., Bajaji's death, and not before, that a cause of action accured to the plaintiff to contest the validity of the adoption. The suit is within six years from the date of Bajaji's death.

4. The question, therefore, is whether the plaintiffs could have attacked, and if they could, whether they were bound to attack the adoption during Bajaji's life-time?

5. The argument for the appellants (plaintiffs) before us assumes that a person cannot contest an adoption in a Court unless the adopted person sets up a right to property. That argument, however, is answered by the fact that the Legislature have, as pointed out by Westropp, J., in Kalova v. Padapa (1876) 1 Bom. 248, distinctly recognised the right of a person to bring a suit to set aside an adoption as a substantive proceeding independent of any claim to property by fixing a special Court-fee for such a suit and providing a special period for it in the Limitation Act, But it is urged, though such a suit could have been brought, it could only have been brought by some person entitled to dispute the adoption, whereas the plaintiffs could claim no such title during Bajaji's life-time. But the answer to that is that the plaintiffs filled the character of apparent reversioners when Bajaji made the adoption as much as they fill it now. It is beyond doubt that had Bajaji died without making an adoption, and had his widow adopted a boy, the plaintiffs as presumptive reversioners could have sued to set it aside. The fact that Bajaji made the adoption himself can make no difference as to the plaintiffs' title as presumptive reversioners when he was alive.

6. Section 42 of the Specific Relief Act says that any person entitled to any legal character may institute a suit against any person denying his title to such character. Now, what were the circumstances when Bajaji adopted defendant Bajaji had no issue expect daughters. The daughters could not, according to law, beocome entitled to the watan property on his dath. Therefore, in the absence of any adoption, the property on Bajaji's death would have gone to the widow first and to the plaintiffs as reversioners after widow's death. There was the chance of the widow predeceasing Bajaji and the plaintiffs becoming entitled to the property on Bajaji's death. It may therefore be taken that the plaintiffs during Bajaji's life-time were prima facie clothed with the legal character of apparent reversioners, and they could have brought a suit against defendant 1, attacking his adoption, because the moment defendant 1 was adopted be became Bajaji's heir interested in denying the title of the plaintiffs to succeed Bajaji as reversioners. It is true there was no immediate injury to this status of apparent reversioners which the plaintiffs held, but that could not affect the question whether a suit for a declaration that the adoption was invalid could lie at their instance during Bajaji's life-time. 'A wrong, though its practical effects are wholly in the future, still gives a claim to relief, and that claim cannot be met by an allegation of no immediate palbale injury.' Per West, J., in Ramchandra v. Anant (1883) 8 Bom. 25. It follows from this that the plaintiffs could have maintained a suit against defendant 1 for a declaration that this adoption was invalid. If they could, the case falls within the principle of the Full Bench ruling in Shrinivas v. Hanmant (1899) 24 Bom. 260 Limitation Act within six years from the time when the adoption of defendant 1 became known to them. The fact that the Legislature has prescribed that the period of limitation for such a suit should run from the time when the adopted boy succeeds to the property of his adoptive father is decisive of the question of limitation and supports the view taken by the lower Courts in this case. The same view was taken by Davies, J., in Parvathi v. Saminatha (1896) 20 Mad. 40.

7. For these reasons we confirm the decree of the lower Appellate Court with costs.


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