S.K. Ray, J.
1. The unsuccessful defendants 1 to 5 are the appellants. This appeal arises out of a suit for partition in which the plaintiff has also sought for a declaration that he is the adopted son of late Mohan, which has been decreed.
2. The plaintiff and defendants are members of one family. The family genealogy is set out hereinbelow :--
Dayanidhi alias Danara
| | |
Mohana (dead) Bhubana Sujana
=Surya (dead) | |
| ---------------------- -------------------------------
Bhaga (Plff.) | | | | | | |
(Adopated son) Gouranga Lochana Baida Bhaga Talabyasa Tikunu Bishnu
(D.1) (D.2) (D.3) (Adopted) (D.6) (D.4) (D.5)
The plaintiff claims to be the adopted son of Mohan a and, therefore, wants to partition his one-third share in the entire joint family properties described in schedules A, B and C of the plaint. He further claims that his adoptive father Mohan got his Jyesthansa which he has separately mentioned in schedule G and that he is in possession of the properties set out in schedules D, E and F which may be allotted towards his share in the partition by metes and bounds.
3. Defendant No. 6 did not contest end has been, set ex parte. The other defendants jointly filed a written statement. Their case is that even though all the parties are joint in mess and property and are in possession of different parcels of land for the sake of convenience, there has been no partition of the family properties by metes and bounds. Mohana never adopted live plaintiff and, as such, the plaintiff is not Mohana's adopted son and Surya, widow of late Mohana, never executed any document in favour of the plaintiff, and even if (here is any such document, the same is fraudulent and not genuine. They deny that Mohan was given any Jyesthansa at any time. So they plead that the suit properties should be- partitioned, but the plaintiff should be given l/8th share as the natural son of late Sujana. They contend that the movables of the joint family were never partitioned previously and as in this suit the plaintiff has not included the movables of the family, the suit is defective and the plaintiff is not entitled to any relief. They admit that the plaintiff is in possession only of the properties stated in schedule A of their written statement and not the properties stated in schedules D, E and F of the plaint. They pray that the suit properties should be partitioned into two equal shares along with movables as shown in Sche-dule B of the written statement and one share should be allotted to defendants 1 to 3 and the plaintiff should be allotted 1/8th share. Though not specifically raised in the written statement, an issue was framed as to if the suit was barred by limitation.
4. In decreeing the suit, the Subordinate Judge rendered the following findings :--
(a) The plaintiff is the adopted son of Mohana.
(b) The suit is not barred by limitation.
(c) The plaintiff is not entitled to get Jyesthansa which has become obsolete in Hindu Law and there is no proof of any custom. In partitioning the suit properties in Schedules A, B and C, the properties in schedules D, E and F, of which the plaintiff is in possession, should be adjusted towards his share.
(d) The movable properties having been previously partitioned, the suit is maintainable in the absence of inclusion of movable properties in the hotchpot. There is no partition by metes and bounds of the immovable properties in suit. Claim for Jyesthansa cannot be entertained as the theory of Jyesthansa as understood in ancient Hindu Law has become obsolete.
5. Mr. K.N. Jena, learned counsel for the appellants, raised only three contentions, viz:--
(a) The finding of adoption rendered by the trial Court is erroneous;
(b) The suit is barred by limitation; and
(c) In the absence of bringing the joint family movable properties into hotchpot for partition, the suit for partial partition must fail.
6. I will now take up the question of adoption. As the evidence stands, the adoption appears to have taken place in the year 1932. The evidence of adoption was being led during the second part of the year 1968. So even though the normal rule is that one who seeks to deflect the natural line of succession to property by alleging adoption must discharge that heavy burden, in cases of ancient adoption every allowance for the absence of evidence to prove such fact must be favourably entertained. Where there is a long lapse of years between the adoption and the time when it is being questioned and during that period of interregnum a variety of transactions of open life and conduct upon the footing that the adoption was a valid act have taken place, the initial burden necessarily shifts to the person who challenges its validity. The law on this point is stated in Mulla's Hindu Law, 13th Edn, Article 512 at page 519 as follows:--
'But when there is a lapse of 55 years between the adoption and its being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained. It stands to reason that after a very long term of years, and, a variety of transactions of open life and conduct upon the footing that the adoption, was a valid act the burden must rest heavily upon him who challenges its validity.'
This dictum has been approved by the Supreme Court in the case of Voleti Venkata Ramarao v. Kesaparagada Bhaska-rarao, AIR 1969 SC 1359. The method of appreciation of evidence regarding old adoption has been noticed by the Privy Council in the case of Tammanna Shivappa Kori v. Parappa Girimallappa Kori, AIR 1945 PC 111. In that case the trial Court disbelieved the evidence of adoption on the ground that it was discrepant in many materials. High Court reversed that judgment and the Privy Council affirmed the High Court's decision observing as follows:--
'..... They (discrepancies) were mainly discrepancies as to the respective positions occupied by the parties and witnesses during the ceremony in the house where it took place; but all the witnesses agreed as to the vital facts necessary to establish an adoption.... Their Lordships agree with the learned Judges of the High Court in thinking that in the circumstances there was no sufficient ground for rejecting the evidence in support of the adoption ceremony, and that the discrepancies in such evidence can be explained by the length of time which had elapsed between the ceremony and the date when the witnesses were called upon to give evidence.....'
The plaintiff has examined six witnesses, including himself to prove adoption. (After considering the evidence his Lordship proceeded.)
It is significant to note that the genuineness of Exts. 1 and 2 has not been challenged. No evidence has been given regarding circumstances improbabilising the story of adoption. Considering the entire evidence on record, both documentary and oral, and the variety of transactions of open life and conduct upon the footing of adoption coupled with the weakness of the defence evidence, and absence of any casteman or relative coming forward in support of the defence case, it is impossible to say that the finding of the trial Court that the plaintiff is the adopted son of Mohana is erroneous. That finding, therefore, is confirmed.
7. Next question is the question of limitation. Relying upon Article 58 of the Limitation Act, 1963, it is argued that the suit is barred by limitation as it has not been instituted within three years from the date of the order in Ext. B. Ext. B is dated 16-5-1959 and, as the suit has been instituted on 18-3-1967, more than three years thereafter, it is barred under Article 58. Article 58 provides a period of three years for a suit to obtain, any other declaration from the time when right to sue first accrues. There is no other Article like Article 57 providing any limitation for a suit for declaration or an adoption having taken place in fact. The question, therefore, is whether on passing of the order (Ext. B) any right to sue first accrued to the plaintiff and secondly, the suit being principally a suit for partition in which the question of adoption incidentally and collaterally arises, whether Article 58 can be attracted.
Under the old Limitation Act Article 118 was identical with Article 57 of the new Limitation Act except that the period of limitation of six years under the old Act has been abridged to three years under Article 57, Article 119 of the old Act provided a limitation of six: years for suits to obtain a declaration that an adoption is valid and the period of limitation was to run from the time right', of the adopted son as such are interfered with. This Article has been omitted in the new Limitation Act and appears to have been merged in Article 58 which provides for suits to obtain any other declaretion which would obviously include to obtain a declaration that an adoption is valid or that an adotion, in fact, took place. The starting point of limitation under the old Article was when the rights were interfered with. In its place the commencement of limitation is when the right to sue first accrues. For suits to obtain a declaration that an adoption took place, the starting point of limitation would be when the rights to such adoption are interfered with and that is when the right to sue must be deemed to have first accrued. Merely on account of shouts from the house-tops that the adoption never took place without actually interfering with the adopted son's right to property or with his actual enjoyment or pos-session of the property, right to sue to the adopted son cannot be said to have accrued, inasmuch as his rights as adopted son have not been actually interfered with. Mere verbal declarations do not amount to interference with the rights. Under Article 120 the expression 'right to sue accrues' has been interpreted by the Supreme Court in the case of C. Mohammad Yunus v. Syed Unnissa. AIR 1961 SC 808, Their Lordships said that under Article 120 (old) there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a dear and unequivocal threat to infringe that right. It, therefore, appears that mere denials of the right of the plaintiff will not set the period of limitation running against him. There is no evidence of actual infringement or even unequivocal threat to infringe the right of the plaintiff. The defendants allege that they have disputed the plaintiffs status as adopted son in mutation proceedings, and that would set the period or limitation run against him, Mutation proceedings are not judicial proceedings in which the title to and proprietary rights in immovable properties are determined. Therefore, merely raising a controversy as to adoption in a mutation proceeding does not amount to infringement of the right to property of the adopted son or an unequivocal threat to such right and, on such, the right to sue cannot be said to have accrued to the plaintiff. This appears to be the view of the Privy Council in a number of cases. In the case of Nirman Singh, v. Thakur Lal Rudra Pratap Naraia Singh, AIR 1926 PC 100, the plaintiff sued for partition. The Judicial Commissioner of Oudh reversed the decision of the Subordinate Judge on the point of limitation on the ground that the plaintiffs should have come within 12 years when their right in the mutation proceeeding was denied. Disagreeing with this view, the Judicial Committee of the Privy Council said: --
'.....its (Judicial Commissioner's) judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined .....'
According to their Lordships, mutation proceedings are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Such proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim. Therefore, nothing in Ext. B could be construed as infringement or unequivocal threat of infringement of the plaintiffs right as adopted son of Mohana. In the case of Radhoba Baloba Vaga v. Aburso Bhagwant-rao Shirole, AIR 1929 PC 231 their Lordships of the Judicial Committee were considering the question of limitation in a partition suit and held that mere denial of the right of the plaintiff did not prove exclusion from the joint family property. In other words, the implication of this decision is that mere denial does not amount to infringement of right so as to give rise to accrual of the cause of action to sue. For limitation to begin to run for a suit for partition, there must be complete exclusion of the plaintiff from enjoyment of the joint family properties Where exclusion is partial, cause of action does not accrue for a partition suit. In the present case it is admitted by the defendants that the plaintiff was in possession of about 20 acres of joint family property and, therefore, there was no complete exclusion so as to start lime running against him for the purpose of instituting a suit for partition.
Considering the aforesaid decisions, I am of opinion that for a suit to obtain a declaration that an adoption in fact took place, limitation will be set in motion only when, the adopted son's right has been infringed or there is an unequivocal threat of infringement of such right. Mere mutation proceedings in which the status of adoption is challenged would not amount to infringement of right, because the revenue authorities have no jurisdiction to decide the proprietary rights of the disputants to the immovable properties in question. Even applying Article 58, it cannot be said that the right to sue ever accrued to the plaintiff more than three years before the institution of the present suit. The point of limitation has been rightly negatived.
There is another aspect of the matter. This is not a pure suit for a declaration that The plaintiff's adoption in fact took place. It is in essence a suit for partition, though incidentally a declaration has been claimed as one of the reliefs. The plaintiff may not have claimed that relief and yet that question must, of necessity, have arisen for determination, before the relief of partition could be granted. Article 58 will apply only to a suit which is a suit for declaration simpliciter and not to a suit for partition in which a declaration of the kind envisaged in Article 58 is also appended as one of the reliefs. It is not the contention of the defendants that the suit as a partition suit is barred by limitation. If considering the true nature of the suit as a partition suit, it is in time, then the suit cannot be dismissed on the ground of limitation. Even if the suit is considered to be for ancillary reliefs also, it would be a composite suit to which Article 58 would not be applicable.
It has been held in the case of Asa Ram y. Mt. Fatima Begum, AIR 1939 Lah 135, that old Article 118 which is equivalent to new Article 57 applies only to a suit for a declaratory decree. On parity of reasoning, Article 58 of the new Limitation Act would be attracted in case of a suit for a declaratory decree only and not to a suit for partition. Their Lordships of the Lahore High Court for this view of theirs relied upon the case of Kalyandappa v. Chanbasa-ppa, AIR 1924 PC 137. Similar view has been expressed in 1959 MPLJ (N) 86 where old Article 119 was being considered in relation to a suit for declaration of possession on the ground that the plaintiff is the validly adopted son. It was held that old Article 119 did not apply to suit for possession even though the plaintiff had to establish his adoption in order to succeed.
To sum up, old Article 119 has been omitted from the new Limitation Act and it appears to have merged in the general Article 58. Since the limitation begins to run under the old Article 119 from the time when the adopted sons's right is interfered with, the same meaning is to be attributed to the expression 'when the right to sue accrues' under Article 58 of the new Limitation Act So no right to sue would accrue for the purpose of Article 58 unless there was actual interference with the plain-tiffs right, not by a mere denial nor by mere oral protests which have no apparent connection with the actual exercise of the right of enjoyment of the property.
For the aforesaid reasons, I am of opinion that this point that the suit is barrod by limitation must be negatived.
8. The last contention wag that the movable properties of the joint family not having been brought into hotchopt, the suit is a suit for partial partition and consequently, the plaintiff must be non-suited, Relying upon the testimony of D. W. 1 the trial court has come to a finding that all movable properties of the family were previously partitioned and, as such, there was no joint movable property available to be brought into hotchpot for partition. The suit, therefore, cannot be said to be a suit for partial partition and on that account can not be held to be not maintainable. This contention has, therefore, been rightly negatived.
9. All the three contentions raised having been negatived as aforesaid, there is no merit in this appeal which is, accordingly dismissed with costs.
The appeal is dismissed with costs.