1. (After stating the facts and pleadings His Lordship proceeds.)
2. It is the contention of Mr. Dalvi that the present suit contains a prayer for declaration of ownership of the plaintiffs on the basis of the gift deed. This gift, deed was challenged as far back as June 30, 1962 and a suit for declaration ought to have been filed within 3 years or 6 years thereof depending upon which article applied. The present suit having been filed about 7 years thereafter is beyond time. According to Mr. Shah the article applicable is Article 144 of the old Limitation Act of 1908, and therefore, limitation will be of a period of 12 years from the date when the possession of the defendants became adverse to the plaintiffs. Mr. Dalvi contends, based on averments in the plaint and particularly paragraphs 5 to 7 of the plaint, that the real nature of the suit is a suit for declaration. He relies on Bhagirthibai Patloo Chavan v. Appa Dada Shinde (1933) 36 Bom. L.R. 185. In that case one Tukaram had three wives, of which two had no issues, the third wife Laxmi had a son Dada and two daughters Bhagirathi and Gita (defendants Nos. 2 and 3). Tukaram had a mistress Yelli by whom he had an illegitimate son Ganu (defendant No. 5). Dada was married to Savitri but he died within two or three months of the marriage. On June 10, 1901 Savitri adopted Appa (plaintiff) and executed a deed of adoption on August 5, 1901. Dada's lands were however entered in Savitri's name, who managed them till her death, which took place on September 22, 1917. Thereafter, the lands were transferred to Lakshmi. On June 21, 1920 Lakshmi gave away a portion of the property in gift to her daughters Bhagirathi and Gita and to Ganu by three deeds. She adopted Dayasu on August 31, 1921. On December 27, 1926, the plaintiff Appa sued for declaration that he was the adopted son of Dada and for possession of the property belonging to Dada. After the adoption Savitri had applied that Appa's, name should be entered as her deputy instead of Ganu. This was on September 21, 1901 but the revenue authorities refused to make this alteration. Ganu defendant No. 5, had objected to the name of the plaintiff being entered in the register. He was given notice to appear on March 31, 1902 but nothing was done and the name of the adopted son was not entered. Thereafter, Savitri continued in possession of her husband's property. The learned Subordinate Judge had found on the evidence that Savitri's possession was in pursuance of an agreement between her and the plaintiff and that the plaintiff lived with her and he also held that there was no interference by Savitri with the right of the adopted son i.e. the plaintiff, inasmuch as she did not deny the adoption till her death which occured in 1917. It was contended that the objection by Ganu in 1902 was an interference with the rights of the adopted son and that the limitation under Article 119 would run from that date. The main point however pressed in the appeal was that on the death of Savitri in 1917 the plaintiff asked to have the land entered in his name and was opposed by Lakshmi and after enquiry the District Dy. Collector refused to enter the plaintiff's name in the Records of rights on February 4, 1918. This was treated as clear interference with the rights of the adopted son and the question was whether the suit which was brought in December 1926 was barred under Article 119 of the Indian limitation Act, 1908 or whether the period was 12 years within which the plaintiff could sue from the date of Savitri's death in 1917. The entire question ultimately resolved into, whether ruling of the Privy Council in Kalyandappa v. Chanbasappa : (1924)26BOMLR509 p.c. applied to Article 119 as well as Article 118 or to Article 118 only. It was decided by the Bombay High Court that, that decision applied to Article 118 and consequently must apply also to Article 119. However, it is further held in that judgment as follows:
In Kalyandappa v. Chanbasappa the Privy Council held that Article 118 of the Indian Limitation Act applies only to a suit under Section 42 of the Specific Relief Act for a declaratory decree that an adoption is invalid or did not take place, and the article applicable to a suit by a reversioner for possession of immovable property on the death of a Hindu female is Article 141, even if it is necessary to decide in the suit whether an adoption was or was not valid.
3. It was consequently held that the article applicable was Article 141 of the Act of 1908. Article 141 is now part of Article 65 of the Limitation Act, 1963 which relates to a suit for possession of immoveable property, explanation (b) to which provides that where the suit is by a Hindu or Muslim relating to possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies. Article 144 which would normally have applied in the present case became unnecessary because of the new Article 65 and therefore, the present suit will be covered by new Article 65 on the same principle as laid down in this judgment. In my view therefore, this judgment does not help Mr. Dalvi in his contention.
4. Mr. Dalvi then relied on Privy Council's decision in Raja Jagatjit Singh v. Raja Partab Bahadur Singh : (1942)44BOMLR868 . In that case in a proceeding under Section 145 of the Criminal Procedure Code 1908, there had been no order of possession of land in dispute in favour of one party or the other. In another proceeding under Section 145, Tahsildar was appointed as receiver of the suit plots pending disposal of the proceedings. Before the decision under Section 145 was given, the Deputy Commissioner of Kheri as 'Manager of the Courts of Wards' filed a suit against appellant praying for a declaratory decree that he was the rightful proprietor of the land in suit. The dismissal of the suit by the Additional Subordinate Judge was set aside by the Chief Court and the suit was decreed from which the defendant filed an appeal to the Privy Council. It is to be noted in that case that the only prayer was for declaration and there was no prayer for possession. In these circumstances, it was held by the Privy Council that Article 47 of the Limitation Act did not apply as there was no order of possession by the Magistrate under Section 145 of the Criminal Procedure Code. It was further held that as the suit was one for declaration of title it seemed clear that Article 142 and 144 did not apply and that the suit was governed by Article 120. It is to be noted that this was so held in view of absence of prayer for possession! which was rightly not made. It should be further noted that it was not really necessary to decide the question as to whether Articles 142 and 144 applied or not as even under Article 120 the suit was within time since it was filed within 6 years of the arising of the cause of action. Unlike in the Privy Council case, in the appeal before me there is a prayer for possession and obviously therefore, the article that will apply is Article 65 and not Article 113 as contended by Mr. Dalvi.
5. Mr. Dalvi also cited Francis Legge v. Rambaran Singh I.L.R. 20 All. 35. A suit was filed for declaration of right to and of actual possession in immovable property. The suit was, therefore, for declarations of right to possession and not for possession. It was in that context held that the suit was governed by Article 120. However, while pointing out the difference between the two types of suits, it is observed by the Full Bench of the Allahabad High Court as follows:
The respondents seek, oh the other hand to bring the suit, though expressly described as a suit for a declaration of right to and of possession in immovable property, under Article 144, which provides for suit for possession of immovable property or of any interest therein. It seems to us that there is the widest possible difference between a suit for a declaration such as is asked for in this suit and a suit for actual possession of immovable property. In a suit to which Article 144 would apply, there must be a prayer express or implied for the dispossession of some one from the property or from the interest in it which the suit claims. In the present suit the plaintiffs have most distinctly asserted that they are and have all along been in possession of the property. There is no one to be dispossessed from it or from any interest in it. All that they want removed is a cloud, which they say was cast upon their title almost twelve years before the institution of the suit.
Therefore, even according to this judgment whenever there is a suit for declaration as well as for possession it would be governed by Article 144, (now by Article 65) In the circumstances, I see no substance in the contention of Mr. Dalvi that the suit is barred by limitation when there is a specific prayer for possession of the part of the property which is in possession of the defendant. No doubt, so far as the declaration is concerned, the suit will be barred in so far as the rest of the property is concerned. However, even if the relief of declaration is confined to the part of the property of which possession is sought, it will be immaterial inasmuch as in a suit for possession based on title, the question of title of the plaintiff is only one of the issues and it is not necessary that there should be a prayer for declaration of title. In a suit for possession, declaration of title is not at all necessary. Therefore, even if the declaration is confined to the portion which is in possession of the defendants, it will not hinder the plaintiffs nor will it help the defendants.
(The rest of the judgment is not material for this report).