Stuart and Sulaiman, JJ.
1. This is a defendant's appeal arising out of a suit for recovery of certain property including a 5 anna 4 pie zamindari share in village Patora Kalan and a 6 pie share in Lalitpur. The plaintiffs' case, as set forth in the plaint, was that the property in dispute was given to one Musammat Sarawan Dulaiya under an award dated the 12th of July, 1891, that she was to have possession, of it for her life, and, under the said award, the property was to revert to the plaintiffs' family, and that she died on the 3rd of May, 1908, on which date the plaintiffs became entitled to recover possession of this property.
2. The claim was contested mainly by the present defendant appellant, Musammat Radha Dulaiya, who pleaded that in fact there was no valid and binding award in existence, and further, that her deceased husband, Damodar Das, had been adopted by Musammat Sarawan Dulaiya and had been in possession of the property as such; and, lastly, that the claim was barred by time. Both the courts below have decreed the suit. The defendant appellant has come up in second appeal to the Court, and, on her behalf, the findings of the learned District Judge are challenged.
3. The points for determination before us are really two. One is as to the validity of the transaction of 1891, and the second is the question of limitation.
4. It appears that one Janki Prasad had four sons by his first wife and five sons by the second. About the year 1891 two of the sons by the first wife had died leaving two widows, Musammat Ojhari and Musammat Sarawan Dulaiya. There were three sons by the second wife alive at this time. As the learned District Judge has remarked, it was with the object of securing peace for the family that there was a reference made to certain arbitrators by Janki Prasad and his three sons by the second wife, on the one hand, and Ram Prasad and Har Das, the sons by the other wife, acting for themselves and as guardians of the two minor widows of their deceased brothers, on the other. The arbitrators made an award on the 12th of July, 1891, under which half the property went to one branch and the other half was divided between Ram Prasad and Har Das and the two widows. The widows were to retain porsession of the quarter share given to each for their lives in lieu of maintenance and, on their death, the properties were to revert to Ram Prasad and Har Das and their sons. There was, however, a provision in the award that the widows had power to adopt in writing a son from among the descendants of Janki Prasad, Ram Prasad and Har Das, and that in case any such adoption was made, the adopted son would become the owner of the property given to the widows. At the time when this award was made, Musammat Sarawan Dulaiya was a minor and she does not appear to have attained majority till sometime about the year 1900.
5. It is conceded before us that inasmuch as Musammat Sarawan Dulaiya was a minor at the time and had not been properly represented, the award as an award is not binding on her, but both the courts below have come to the conclusion that this transaction was really in the nature of a family settlement and, as such, was binding on all the members of the family, even though some of them were minors at the time. About the year 1902 Musammat Sarawan Dulaiya and the other widow applied to the Revenue Court for mutation of names in respect of the share in village Patora. The passage in the judgment of the first court shows that the names of Sarawan Dulaiya as well as Damodar Das were recorded jointly and Damodar Das was described as a minor under the sarparasti or management of Sarawan Dulaiya. In the village Lalitpur, the defendants did not obtain possession till after the year 1910, and that was under a will left by Janki Prasad.
6. In our opinion there can be no doubt that Musammat Sarawan Dulaiya obtained possession of the share in village Patora in pursuance of the arrangement of 1891. In the first place, there is a finding to that effect by the learned District Judge which, in our opinion, cannot now be disturbed. Furthermore, her own conduct in applying to the Revenue Court in the years 1902 and 1904 shows that she was endeavouring to obtain possession of the share given to her by the award. We are of opinion that so long as she was alive, her possession, therefore, in the circumstances cannot be deemed to have been adverse to the other members of the family. The finding of the learned District Judge is clearly to the effect that she obtained possession in pursuance of the arrangement arrived at between the various members of the family in the year 1891. It is true that her name was not actually recorded till long after 1891, but that may be explained by the circumstance that she had not attained majority till about the year 1900.
7. On the question of limitation the learned advocate for the appellant first of all contended that the claim was barred by the 3 years rule as contained in Article 113 of the Limitation Act and he relied on the case of Talewar Singh v. Bahori Singh (1904) I.L.R. 26 All. 497. In our opinion Article 113 has no application whatsoever to the case. This is not a claim for the specific performance of any contract and that article is inapplicable.
8. Next it was contended that the claim in substance is for a declaration that the adoption set up by the defendant was invalid and that, therefore, it is barred by Article 118 of the Limitation Act. On the question of adoption the learned District Judge has come to a finding of fact that in reality no adoption had taken place and all that had happened was that Musammat Sarawan Dulaiya had declared in the deed of 1902 that the defendant's husband Damodar Das was her adopted son. It is, however, contended that whether the adoption did in fact take place or not, the claim is barred by Article 118 and reliance is placed on a case of this Court reported in Chunni Lal v. Sita Ram (1911) I.L.R. 34 All. 8. In the first place, in the plaint the plaintiffs did not seek any relief as to a declaration that the alleged adoption is invalid. The present suit was instituted after the death of Musammat Sarawan Dulaiya when the plaintiffs, according to the case set forth in the plaint, were entitled to recover possession of the property. The suit is not merely a suit for a declaration that the defendant's adoption is invalid. This view is supported by a case of this Court in Basdeo v. Gopal (1886) I.L.R. 8 All. 644. The case relied upon by the learned advocate for the defendant, namely, Chunni Lal v. Sita Ram (1911) I.L.R. 34 All. 8, however, is not conclusive. In the first place, it is directly opposed to the rule of law laid down in the earlier case quoted; and, in the next, the learned Judges themselves did not decide the point finally, for, at page 12, they remark: 'As the trend of authorities in this Court is the other way and as it is unnecessary to discuss that point in the present appeal, we refrain from entering into that question.'
9. The view taken in Chunni Lal v. Sita Ram (1911) I.L.R. 34 All., 8 has been followed by other Courts also. In our opinion the present claim, therefore, not being a claim merely for a declaration that the defendant's adoption is invalid, is not barred by Article 118 of the Limitation Act.
10. As to the question of the claim being barred by 12 years' adverse possession, we are of opinion that that contention also is without force. The present suit was instituted on the 23rd of April, 1920, and Musammat Sarawan Dulaiya died on the 3rd of May, 1908, that is to say, just within 12 years of the institution of the suit. If the possession of Musammat Sarawan Dulaiya during her lifetime was with the consent and acquiescence of the other members of the family and in pursuance of the award of 1891, it is clear that her possession can in no sense have been adverse to the other members of the family. The right to recover possession arose on the death of the widow, and from that date the claim is well within time.
11. On behalf of the defendant, reliance has been placed on the ruling of their Lordships of the Privy Council in Sham Koer v. Dah Koer (1902) I.L.R. 29 Calc. 664 but in that case it is to be noted that their Lordships were distinctly of opinion that it had not been proved that the widow had obtained possession of the property in suit under any family arrangement at all. The evidence being nil and the widow not being entitled to actual possession of the property, their Lordships held that her possession must be deemed to have been adverse. In the present case we have already remarked that the finding of the learned District Judge is that the widow did obtain possession of this property under the award which embodies the arrangement arrived at by the various members of the family. The Privy Council case, therefore, is distinguishable. The plaintiffs' case thus is not barred by time. We think, therefore, that the view taken on both these points by the Lower Appellate Court is correct. The appeal fails and is hereby dismissed with costs.