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Chanbasappa BIn Dodappa Desai Vs. Kaliandappa BIn Ayappa Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Judge
Reported in(1917)ILR41Bom728
AppellantChanbasappa BIn Dodappa Desai
RespondentKaliandappa BIn Ayappa Desai and ors.
Excerpt:
.....invalid by hindu law and malkamma's power of adoption may have been already exhausted, nevertheless the law of limitation will effectively defeat the plaintiff's claim: a 30. 13. in answer to the argument that the plaintiff is not concerned with an adoption to dodappa who was not the last male holder, it is to be observed that the property in dispute is an ancestral estate and that dodappa as well as madivallappa was an ancestor of the plaintiff.basil scott, kt., c.j.1. the property to which this appeal relates is chiefly vatan property which consists of deshgat and gaudki or patilki vatans. it also relates to certain non-vatan property specified in schedule c to the plaint. until his death in or about 1878 the property was held by dodappa desai. he left two widows and a daughter but no son. in 1880 malkamma the senior widow adopted a son madivallappa and the collector in consequence entered the name of madivallappa as holder of both classes of vatans.2. in or about 1886, on the application of malkamma, madivallappa's name was removed from the deshgat vatan register on the ground that he was not a bhauband of dodappa in whom under the sanad the deshgat vatan would vest. prior to this event malkamma had been appointed legal.....
Judgment:

Basil Scott, Kt., C.J.

1. The property to which this appeal relates is chiefly Vatan property which consists of Deshgat and Gaudki or Patilki Vatans. It also relates to certain non-Vatan property specified in Schedule C to the plaint. Until his death in or about 1878 the property was held by Dodappa Desai. He left two widows and a daughter but no son. In 1880 Malkamma the senior widow adopted a son Madivallappa and the Collector in consequence entered the name of Madivallappa as holder of both classes of Vatans.

2. In or about 1886, on the application of Malkamma, Madivallappa's name was removed from the Deshgat Vatan Register on the ground that he was not a Bhauband of Dodappa in whom under the Sanad the Deshgat Vatan would vest. Prior to this event Malkamma had been appointed legal guardian of Madivallappa's property under Act XX of 1864 and managed both classes of Vatan property till after his death a minor in 1895. He left a widow who became entitled on his death as his heir and was entered as holder in the Gaudki Vatan register.

3. In 1898, Malkamma (the 2nd defendant) applied to the Collector and got the name of Madivallappa's widow removed in October 1899.

4. On the 14th of December 1901, Malkamma purported to adopt the 1st defendant as son to Dodappa and from that date the trial Court finds that the 1st defendant has been in possession of both classes of Vatan property and also the property described in Schedule C. Madivallappa's widow died in 1903.

5. This suit was instituted on the 2nd of July 1912 by the plaintiff claiming as the nearest reversionary heir of Madivallappa.

6. The adoption of Madivallappa is not disputed in this appeal.

7. The learned trial Judge has decided the case as to the Vatan lands in favour of the plaintiff.

8. Two points only have been argued in appeal both based upon the law of limitation; first, that the plaintiff's claim is barred by adverse possession: secondly that the plaintiff cannot obtain relief without challenging the adoption of the 1st defendant upon which the latter's enjoyment rests and that it is now too late to do so having regard to Article 118 of the Indian Limitation Act: for the plaintiff knew of the 1st defendant's adoption not later than the 11th February 1902 as is shown by his application of that date, Exhibit 154 D.

9. As regards adverse possession we think the learned Judge was right in holding that time would begin to run against the plaintiff from the death of Madivallappa's widow in 1903 and that therefore there has been no adverse possession sufficient to bar the plaintiff's suit.

10. The plea that the suit is barred under Article 118 is more serious.

11. It is contended for the plaintiff that he claims as reversionary heir of Madivallappa and not of Dodappa and that the adoption of the 1st defendant to Dodappa who was not the last male holder is negligible and does not concern the plaintiff. It concerns him however in two ways: first, because the 1st defendant enjoys his possession, which is challenged by the plaintiff, as son of Dodappa and not otherwise; and secondly, because if the plaintiff is barred by time from suing to challenge the defendant's adoption the defendant must the taken to be the brother of Madivallappa and therefore a nearer heir than the plaintiff.

12. It has been argued that the decision in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 shows that the widow of Dodappa had no authority to make an adoption after the estate had vested in Madivallappa's widow. That however was not a case in which the law of limitation came up for consideration. The adoption of the defendant may be clearly invalid by Hindu law and Malkamma's power of adoption may have been already exhausted, nevertheless the law of limitation will effectively defeat the plaintiff's claim: see Mohesh Narain Moonshi v. Taruck Nath Moitra (1892) L.R. 20 I. A 30.

13. In answer to the argument that the plaintiff is not concerned with an adoption to Dodappa who was not the last male holder, it is to be observed that the property in dispute is an ancestral estate and that Dodappa as well as Madivallappa was an ancestor of the plaintiff. The remarks of Lord Hobhouse in distinguishing Jagadamba Chowdhrani's case from Raj Bahadoor Singh v. Achumbit Lal which was relied on for the plaintiff here are in point. He said 'to apply the remarks there made, in somewhat general terms, to a case in which the heir cannot possibly get at the ancestor's property without disturbance of a title... founded on adoption to that ancestor, is to put upon them a meaning they were never intended to bear.'

14. We set aside the decree of the lower Court and dismiss the suit with costs throughout.


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