1. This is a defendant's First Appeal arising out of a suit for declaration of title and recovery of possession of certain immovable properties, and perpetual injunction restraining the defendant from disturbing the plaintiff's enjoyment of the suit property.
2. The plaintiff Mt. Radhabai is the widow of Ballabhdas who died on 8-4-1928 (wrongly stated as 1929 in the plaint). Before his death Ballabhdas executed a will whereby he bequeathed his property to Narayandas. This devolution was, however, not to take effect till the death of Mt. Radhabai. Narayandas, the father of the defendant-appellant, died in 1942. During the minority of the defendant the plaintiff executed a will in his favour, but she subsequently cancelled it. The plaintiff alleged that after the death of her husband she maintained Narayandas and allowed him to manage her property, which he did till his death in 1942. After Narayandas's death she maintained the defendant, and by way of 'precaution', executed a will in his favour. The defendant, however, misappropriated the rents realised by him and also got rent-notes executed in his own favour. On being apprised of these facts the plaintiff cancelled her will in his favour. In that will the defendant had obtained an incorrect admission from the plaintiff to the effect that she had adopted his father. The plaintiff alleged that the defendant and his father were the agents of the plaintiff and managed the property in that capacity. But taking advantage of his position the defendant usurped some of the property, The plaintiff, therefore, sued for declaration of her title, recovery of possession and mesne profits.
3. The defendant pleaded that the plaintiff had adopted his father Narayandas to her deceased husband Ballabhdas, and that after his adoption Narayandas acquired title to the property left behind by Ballabhdas, and he remained in possession ,of it in this capacity till his death. Thereafter the defendant inherited the property from his father, and continued his possession of the same as an owner thereof. The defendant contended that Narayandas had throughout his life managed the property in his own right and recovered rent from the tenants. The defendant pleaded that the plaintiff was estopped from challenging the adoption of his father; since she herself had effected it -and had from time to time admitted having done so. The defendant's father had, on the faith of the plaintiff's representations, given up his natural father's family and his claim to the property of his natural father. Lastly the defendant set up the plea that he and his father Narayandas had been in adverse possession of the suit property for more than 12 years.
4. The trial Court held that Narsyandas's real father and mother had died before the adoption; that Narayandas was already married and his thread ceremony also had been performed prior to the alleged adoption, and that Ballabhdas's widow had no authority from her husband to adopt a son. These findings were not challenged by the learned counsel for the appellant before this Court.
5. In support of the appeal it was urged by the learned counsel for the appellant that the plaintiff was estopped from challenging the fact of Narayandas's adoption; ' and that the suit was barred by limitation. On the first ground the learned counsel referred to several documents. To begin with he invited our attention to Ex. P/1 in which the plaintiff had admitted that she had adopted Narayandas as her son. It has to be observed in this connection that in this will Mt. Radhabai referred to the will executed by her late husband Ballabhdas on 20-4-1927, according to which she was to be the owner of all his property on his death. She no doubt observed therein that after she had succeeded to her husband's estate, she had adopted Narayandas as her son. But she has nowhere stated therein that she had any authority from her husband to adopt him, or that she adopted Narayandas as a son to her deceased husband. She merely stated that she had adopted Narayaridas as her son.
It appears that Narayandas having died during Radhabai's lifetime, it was realised that the will executed by Ballabhdas in his favour could not take effect, and Radhabai made a separate will on 29-6-1942 in favour of the present appellant merely with a view to give effect to her husband's intention. She made it clear in her will that her intention in executing it was to avoid any dispute regarding her property arising after her death. It is clearly provided therein that Radhabai would remain in possession of all movable and immovable properties till her death, and that the present appellant will succeed to them only after her death. Read- ing this will as a whole it cannot be implied that Radhabai had relinquished her right to the property left behind by her husband, by reason of the alleged adoption by her of Narayandas. If anything, a contrary intention is expressly stated in the document Ex. P/l.
6. The so-called admission in. Ex. P/l could not amount to an estoppel because it was not made in the lifetime of Narayandas and he did not, in fact could not, alter his own position acting on faith of the representation made thereby.
7. It was next urged that Radhabai by her conduct in (1) allowing her deceased husband's 'pagdi' to be tied to Narayandas, (2) performing Narayandas's second marriage at her own expenses, (3) substituting Narayandas's name in various cases pending in Court in place of Ballabhdas, (4) allowing Narayandas to get rent-notes (Exs. P/4 dated 1-6-36 and P/5 dated 1-2-41) executed in his own favour, (5) bringing up Jamunadas as her own grandson and getting him married, and (6) herself performing Narayandas's 'Shradha' at Gaya, would show that she all along recognised Narayandas as her adopted son. When the facts are once ascertained, presumption arising from conduct cannot establish . a right which the facts themselves disprove. See Tayammaul v. Sashachalla Naicker, 10 Moo Ind App 429 (PC) cited with approval by their Lordships of the Supreme Court in Kishorilal v. Mt. Chalttbai, AIR 1959 SC 504.
8. In the present case Narayandas very well knew that his father and mother were both dead at the time when the ceremony of his adoption took place. It was admitted by D.W. 2 -- Shravanprasad Shastri that Narayandas was given in adoption by Gokulprasad Jyotishi, and that Narayandas's thread ceremony and marriage had been performed prior to his adoption. It is also not contested that Narayandas's parents were not alive, and there was no one to give him in adoption. That is why a stranger I had to perform the act of giving. All these facts were known to Narayandas. They have the effect of rendering the adoption altogether devoid of legal force. Any statement by the plaintiff or her conduct whereby she treated the adoption as valid would amount to a representation on a point of law relating to the validity of the plaintiff's adoption. In Baba Kartarsingh Bedi v. Dayaldas, AIR 1939 PC 201 the question was whether a statement as to the validity of a nomination of the plaintiff as a 'chela' could operate as an estoppel against the person making the statement. It was held that there could be no estoppel on a statement of law relating to the validity of nomination of a person as a 'chela' under the terms of a will.
9. It was held by a Division Bench of this Court in Nainsuhhdas v. Gowardhandas, AIR 1948 Nag 110 that in order to operate as an estoppel the representation must be of a fact and not on a matter of law.
10. In Dhanrai v. Sonibai, 52 Ind App 231 : (AIR 1925 PC 118) the plaintiff had brought the appellant from his, village) and been a witness to the deed of adoption. The adopted son was allowed to perform the cremation ceremony of the adoptive father, and at the time of his marriage he was represented to be the adopted son of the deceased. The Privy Council held that these facts did not create an estoppel. Their Lordships cited with approval the following observations made in an earlier case:
'It has been argued on the part of the appellant that the defendants in this case are estopped from setting up the true facts of the case, or even asserting the law in their favour, inasmuch as they have represented in former suits and in various ways, by letters and by their actions, that Luchminjee was the adopted son of Damodurjee adopted by Damodurjee's widow, his mother. But it appears to their Lordships that there is no estoppel in the case. There has been no misrepresentation on the part of Luchminjee or the defendant on any matter of fact. They are alleged to have represented that Luchminjee was adopted. The plaintiff's case is that Luchminjee was in fact adopted. So far as the fact is concerned there is no misrepresentation; it comes to no more than this that they have arrived at a conclusion that the adoption which is admitted in fact was valid in law, a conclusion which in their Lordship's judgment is erroneous; but that creates no estoppel whatever between the parties.'
11. I am, therefore, of the opinion that the plaintiff in this case is not estopped from challenging the validity of Narayandas's adoption. He had no natural parents who could give him in adoption. By reason of his being married and his thread ceremony having already been performed, he was disqualified from being adopted; and the widow who adopted him had no authority from her husband to do so. These facts render the adoption invalid in law, and estoppel, which is a mere rule of evidence, cannot render an invalid adpotion valid.
12. If the oral evidence in a case shows that there was an adoption and there is nothing to show that a valid adoption, in accordance with law could not take place, evidence of conduct which goes to show that the adoption was recognised by the family of the adoptive father for a long time would lend support to the inference that the adoption had in fact been made. In such circumstances a person who made a representation of fact, relying on which the adopted son relinquished his claim on the family of his natural parents, would be estopped from challenging the adoption. But the representation must be as to a matter of fact, and not a matter of law, such as the validity of an adoption.
13. As already pointed out by me above the facts which render the adoption in the present case void in law were known to Narayandas. It was observed by their Lordships of the Supreme Court in Kishorilal's case, AIR J959 SC 504 (supra) as follows:
'The correct rule of estoppel applicable in the case of adoption is that it does not confer status. It shuts out the mouth of certain persons if they try to deny the adoption, but where both parties are equally conversant with the true state of facts this doctrine has no application.'
In that case the fact that the widow had allowed the defendant to perform the obsequies of her husband, and the performance of the deceased's marriage by the widow as his adoptive mother, were held not to add to the efficacy of the plea of estoppel which otherwise was inapplicable.
The case of Rani Dharam Kunwar v. Balwantsingh, 39 Ind App 142 (PC) is distinguishable on facts from the present case, In that case the Rani had nerself in a previous proceeding pleaded that she had authority to adopt, and the Privy Council was of the opinion that the question could be decided on its own facts without recourse to the doctrine of estoppel, although they did not differ from the view of the Courts below as to the applicability of the doctrine of estoppel. As observed by their Lordships of the Supreme Court in Kishorilal's case, AIR 1959 SC 504 (supra) that was not a case of the party being equally conversant with the true facts, and further there was a finding that the person claiming to be the adopted son was as a matter of fact adopted.
Admissions made by the widow seeking to set aside: her alleged adoption during her widowhood, while she was entirely in the power of her adopted son would necessarily carry much less weight than if made at an earlier period See Padmala v. Fakira Debya, AIR 1931 PC 84.
14. The conduct of the plaintiff in allowing Narayandas to manage her property, in allowing Narayandas to perform the 'shradha' ceremony of her husband and allowing him to manage her property, must be viewed in the background that under her husband's bequest Narayandas was to succeed to her entire property after her death. He was for all practical purposes like a son to her. But such conduct alone could not suffice to prove an adoption.
15. On the point of limitation it was argued by the learned counsel for the appellant that the suit was governed by Art. 118 of the Limitation Act, It was held by the Privy Council in Kalyandappa v. Chanbasappa, ILR 48 Bom 411; : (AIR 1924 PC 137) that Art. 118 of the Limitation Act, 1908 had no application to a suit by the widow for recovering her husband's properties from the defendant, who was in possession as an alleged adopted son. This case was followed by the Privy Council in AIR 1931 PC 84.
16. The claim, in the present suit is not in substance one for declaring invalid an adoption as was the case in Vithoba v. Vithal, AIR 1958 Bom 270. It is in substance a suit for recovery of possession of immovable property. The question as to the validity of the adoption, under which the defendant claims the property, is merely incidental to the principal relief claimed in the suit.
In Janikamma v. Mattareddi, (S) AIR 1956 Andhra 141 (FB), the suit was by a reversioner for a declaration that the alienation made by the adopted son is not binding on the reversion. It was observed by Viswanatha Shastri, J. in this case that it is only an adoption purporting to be made to the last male owner that attracts the operation of Art. 118. If an adoption of a son by a widow to herself has been made, the Article would have no application. Reliance was placed for this proposition on Tirbhuwan v. Rameshwar, ILR 28 All 727 (PC) and Raj Bahadoor v. Achumbitlal, 6 Cal LK 12 (PC), as explained by the Judicial Ccmmittee in Jagadamba v. Dakhina Mohun, ILR 13 Cal 308 (PC), It was further observed that the omission to bring a declaratory suit will not stand in the way of the nearest reversioner recovering possession of the property on the death of the female limited owner by a suit filed within the time prescribed by Art. 141 of the Limitation Act, and in such a suit it will be open to the reversioner to establish that the alleged adoption was untrue or invalid and that the adopted son was no better than a trespasser.
17. The present suit is not one by a reversioner for declaring that an alienation made by an adopted son is invalid. It is a suit for possession simpliciter by the widow. I am of the opinion that to such a suit the following observations made by the Judicial Committee in AIR 1924 P C 137 at p. 143 would directly apply:
'The adoption of the first defendant was void, and the plaintiff is entitled to brush it aside and sue for the possession to which he has a right. His time limit is 12 years from the death of the Hindu widow, and he was in time.'
18. In the present suit the widow has stated that Narayandas managed the properties of her husband on her behalf, that he collected the rents from the tenants, and gave it to her. Even his son Jamunadas has not denied that he used to give the collected rent to the lady. The widow was in possession of the property in her own right under her husband's will. She did not at any time relinquish possession of the property in favour of Narayandas. There is no evidence that Narayandas at any time claimed the property exclusively to himself or adversely to the plaintiff. Simply by getting one or two rent-notes executed in his own favour, he could not divest the plaintiff of her possession and control over the entire property. As long as it is not shown that Narayandas retained the rent of the property to himself or refused to account for it to the widow in open assertion of his right as an adopted son the arrangement would amount to a mere convenience. The widow could not obviously go herself to collect rents or fight cases to which her husband was a party. She, therefore, allowed Narayandas to do so. But she herself remained in control of the property and enjoyed the fruits of the litigation.
19. In such state of things it cannot he said that the possession of Narayandas, or his son, was adverse to the plaintiff, or that the plaintiff had herself relinquished possession or control of her husband's estate. The suit was brought within a very short time after Jamunadas started appropriating the rents to himself and set up his claim to the property on the strength of his father's adoption.
We agree with the finding of the trial Court that the possession of Narayandas, and his son Jamunadas, was permissive in nature, and that Narayandas throughout acted in managing the property as an agent of the plaintiff. In this context there can be no bar of limitation.
20. The result is that this appeal has no force. It is hereby dismissed. In the peculiar circumstances of this case, we shall make no order as to costs incurred in this appeal.
The cross-objections must fail in view of our finding that the possession of Narayandas and his son Jamunadas was in the capacity of agents of Mt. Radhabai. There is no evidence to show how much rent Jamunadas has misappropriated. No criteria are thus established by the evidence for assessment of mesne profits. The cross-objections are, therefore, dismissed without any order as to costs.