John Beaumont, C.J.
1. This is a second appeal from the Assistant Judge of Satara. The plaintiff, as a son adopted by one Dhondai to her deceased husband, claims to recover possession of the suit property on the ground that alienations by the widow were not for legal necessity. The husband died in 1900, and the plaintiff was adopted in 1934. The alienations took place between 1901 and 1904. There was also an alienation in 1908 in favour of defendant No. 1, but he has not appealed and I am only concerned with two alienations, one in 1901 and the other in 1904. The trial Judge raised two issues, which are relevant for the present purpose. The first is issue No. 1:
Does the plaintiff prove that he has been duly and validly adopted by Dhondai?
The other is issue No. 3:
Is the suit barred by time?
2. The only allegation relating to limitation in the written statement was that the plaintiff and his predecessors had not been in possession within twelve years from the date of the suit and hence the plaintiff's suit was out of time.
3. Now, on the first issue as to whether the adoption was valid, the learned trial Judge held that the fact of adoption was proved, but then he notices a legal objection raised as to its validity, namely that the widow's power to adopt had been extinguished by a previous adoption of a son who had attained the age of ceremonial competence. On that point the learned Judge observes:--
It is admitted that prior to the present adoption Dhondai had adopted a cousin of Dadu Tukaram, who passed away in 1918 unmarried in his twenties. It is argued that because of the ceremonial competence this adopted son had attained, Dhondai's right to further adopt had terminated.
4. The learned Judge held that that point was not a sound one and that the widow's power of adoption had not been exhausted by this prior adoption.
5. On the issue of limitation the learned trial Judge held that so far as survey No. 165 was concerned, the defendants had been in possession since 1917, and the suit was out of time. He does not say why the plaintiff's title, which only accrued in 1934, should be barred.
6. In appeal the question of limitation was sought to be put upon a different ground. It was said that this prior adopted son had been validly adopted and had attained majority long after these assignments, which are challenged and that he had a right to challenge these assignments, and as against him time had run, and that the plaintiff could not acquire a fresh cause of action to set aside the assignments in respect of which time had already run. The learned Assistant Judge refused to go into that point, because, he said, it had not been raised in the Court below and was a mixed quest on of law and fact. I entirely agree with the lower appellate Court that it would not be right in appeal to allow a point of law to be raised, which depended on questions of fact which the party relying on the point of law had not chosen to raise in the lower Court, and certainly I should not allow such a point to be raised in second appeal. The difficulty, however, in the plaintiff's way is that the questions of fact about the prior adoption were raised and answered in the lower Court, though not in connection with the issue of limitation. The defendants in the lower Court alleged that by reason of this prior adoption and of the age attained by the adopted son, the right of the widow to adopt had come to an end, and, therefore, the plaintiff's adoption was invalid, and it was clearly open to the plaintiff on that issue to dispute the prior adoption, which he did not do. I do not think it would make any difference whether the prior adopted son had attained majority or not. Even if he had not attained majority when he died, I think that the effect of Sub-section 6, 7, 8 and 9 of the Indian Limitation Act would be to bar his right to sue. It is not disputed that if the right of the prior adopted son was barred by limitation, no further right to sue in respect of these assignments could accrue to the plaintiff.
7. I cannot agree with the lower appellate Court that this question was not raised in the trial Court. The question as to the adoption was raised, and the plaintiff had an opportunity of challenging the facts. As soon as the learned trial Judge found as a fact, in connection with the issue as to the validity of the plaintiff's adoption, that there had been a prior adoption by the widow of a son who died in 1918 unmarried in his; twenties, it was the duty of the learned Judge under Section 3 of the Indian Limitation Act to raise this point of limitation. It is true that he did not raise the point, nor did the parties raise it. But there was actually an issue as to limitation, and the learned Judge ought to have pointed out that on the facts found by him there was a ground of limitation in addition to the ground which had been raised in the written statement. Had the learned Judge taken that view of the matter and observed that there was this further ground of limitation, I think he would have been bound to hold that the plaintiff's suit was barred. When the point was raised in the District Court, I think the learned Assistant Judge ought to have done what the trial Judge should have done and said that on the facts found the suit was barred. In second appeal I must adopt that course and say that on the facts found in the trial Court the plaintiff's suit is undoubtedly barred as against the appellants.
8. I must, therefore, allow the appeal. With regard to costs, I think probably if this point had been raised in the trial Court, it would have been decided in favour of the defendants, and there would have been no necessity of any appeal. In my opinion, the proper order will be to allow the appeal and direct that the plaintiff's suit be dismissed as against defendants Nos. 2 to 6, who are the present appellants, and that the plaintiff pay the costs of defendants NOB. 2 to 6 of the trial, but I allow no costs of the appeal to the lower appellate Court or to this Court.