1. This appeal arises from a judgment and decree of the High Court of Madhya Pradesh dismissing an appeal by the defendant appellant and upholding the claim of the plaintiff-respondent to declaration of her title and for possession of the suit property.
The facts are as follows. One Balladhdas, husband of the plaintiff-respondent had made a will on April 20, 1917 whereby Narain Das, father of the appellant Jamnadas, was to have the property left by the Ballabhdas after the death of Radhabai. Ballabhdas died in 1928. There is no dispute that Narain Das was brought up as her son by Radhabai. The respondent Narain Das died in the year 1942 and thereafter Radhabai brought up and maintained Jamna Das as she would have done a grandson. It cannot be disputed that at one time Radhabai intended that Jamna Das should get all the property left by Ballabhdas after her death. She executed a will on June 29, 1944 wherein it was recited that she was the owner of all the movable and immovable property left by Ballabhdas and that she had adopted Narain Das as her son There was a further recital that the rent deeds of her houses had been executed in favour of Narain Das during his lifetime and after his death she bad got the rent deeds executed in favour of Jamna Das who was still a minor. The will further recited that after the death of Narain Das, Jamna Das alone had the right to inherit the property but as he was still a minor and incapable of managing his affairs the will was being executed to the effect that so long as she was alive Radhabai would continue to be in possession of the entire property and after her death Jamna Das would inherit the same. This was followed up by various rent notes being executed in favour of Jamna Das. Similar rent notes had been executed by the tenants in favour of Narain Das during his lifetime wherein he was described as the son of Ballabhdas. Radhabai fell out with Jamna Das and cancelled the will on November 5, 1962. She filed a suit out of which this appeal has arisen on December 24, 1952.
3. The respondent stated most of the above facts in her plaint. Her substantial complaint against the appellant was that the latter by practising deception had brought deeds of lease executed in his favour in respect of the suit properties and was misappropriating the rental income from the year 1949. The prayers in the plaint were for a declaration of her right of ownership and possession and an injunction against the defendant-appellant from interfering with her rights thereto. In the body of the plaint she made a statement that her husband had never adopted nor declared Narain Das as his son and Narain Das had never acquired any right over the properties left by her husband. There was a further statement to the effect that she herself had been continuing uninterruptedly in possession of the properties left by her husband.
4. The defendant traversed most of the averments in the plaint and stated in his written statement that the plaintiff herself had taken Narain Das in adoption and the whole ceremony of adoption was gone through by her Further due to this conduct on the part of the plaintiff Narain Das had given up his relationship with his own family and the property to which he would otherwise have been entitled and had entered the family of the plaintiff's husband and performed the funeral rites of Ballabhdas in his capacity as a son. All this, according to the defendant, estopped the plaintiff from challenging the adoption. The only other point raised in the written statement was that the suit was barred by limitation under Article 118 of the Act of 1908.
5. The trial Judge held that Narain Dag's parents were not alive at the date of his alleged adoption. Moreover, Narain Das was already married at that time. There was no evidence that the plaintiff had authority from her husband to adopt a son to him after his death. No special rites and customs of the community regarding adoption had been proved. Consequently Narain Das could not have been validly adopted as a son of Ballabhdas. He also negatived the plea of estoppel as also that of limitation.
6. There was a further plea of adverse possession which was turned down by the trial court.
7. All these findings were upheld by the High Court. The High Court also recorded that the possession of Narain Das and his son, Jumna Das was permissive in nature and Narain Das had throughout managed the property as an agent of the plaintiff.
8. Before this Court learned counsel for the appellant argued that the respondent was estopped from challenging the adoption and in support thereof relied on the will executed by the respondent and some of the rent notes already referred to. It was contended that the case was within Section 115 of the Evidence Act inasmuch as Radhabai by her declaration in the will and her acts in getting the rent notes executed in favour of Narain Das intentionally caused or permitted him to believe that the adoption was true and to act upon such belief and in the circumstances of this case she should not be allowed to deny the factum or validity of adoption. There can be no doubt that even if the respondent had gone through a ceremony of adoption as alleged in the written statement, Narain Das could not have been validly adopted as a son to Ballabhdas. The only question therefore is, did the respondent by her declaration permitted the defendant to believe the adoption to be true and to act upon such belief; and did Narain Das act in any way to his prejudice by acting upon his belief. Learned counsel however conceded that there was no evidence of Narain Das acting to his prejudice and the question therefore narrows down to the binding character of the declaration by the respondent. The declaration so far as documentary evidence is concerned rests mainly on the recital in the will of 1944 It is extremely doubtful as was pointed out by the Judicial Committee of the Privy Council in Hubart P. James v. Gulam Hussain Pakseem (1) whether the will of a living person can ever be relevant to support a legal claim, and as their Lordships pointed out, a will took effect on the death of the executant and during his lifetime was an ambulatory document, revocable at any moment and having no legal effect what so ever. In that case also the will had been revoked as in the instant case. Quite apart from that, the doctrine of estoppel as pointed out by this Court in Shri Kishori Lal v. Mst. Chaltibai (2) has no application where both parties are equally conversant with the true state of facts. In Kishori Lal's case the facts were somewhat similar to the case before us. Chaltibai, the widow of one Lakshminarayan, filed a suit for declaration of title and possession of the properties left by her husband. The appellant Kishori Lal had contested the suit on the ground that Lakshminarayan had adopted him as his son six months before his death. He also alleged that he performed the obsequies of Lakshminarayan as such adopted son and that after Lakshminarayan's death he was taken by the respondent in her lap, It was stated further that the respondent had performed his marriage and had recognised him as the adopted son of Lakshminarayan. The appellant further pleaded that the respondent was estopped from challenging his adoption by the representation in previous legal proceedings and in various ways by execution of documents and on account of the fact that he had by the adoption lost his share of the properties in his natural family. The respondent denied both the adoption and the treatment and acceptances of the appellant as the adopted son. The trial court had dismissed the suit holding the adoption true but on appeal the High Court held that the adoption was not true and decreed the suit. Both the courts had held that the respondent was not estopped from challenging the adoption This Court upheld the findings of the High Court observing inter alia that the oral evidence of witnesses deposing the factum of adoption was both insufficient and contradictory. There were also documents executed during the lifetime of Lakshminarayan which negatived the claim for adoption. It was however contended on behalf of the appellant Kishori Lal that even though the evidence as to adoption was unsatisfactory Chaltibai was estopped from setting up the true facts of the case inasmuch as she had represented in documents and legal proceedings and in various other ways that the appellant was the adopted son of the deceased Lakshminarayan and thereby caused him to change his position by being transferred from the family of Badri Narayan to that of Lakshminarayan. On the facts of that case the Court observed :
'It cannot be said that the respondent by her own word: or conduct wilfully caused the appellant to believe the existence of a certain state of things i. e. adoption by Lakshminarayan and induced him to act on that belief so as to alter his position and therefore she could not be concluded from averring a different state of things as existing at the same time.' Arguments similar to these advanced in Kishori Lal's case were put forward before us. In Kishori Lal's case it was said that the doctrine of estoppel was inapplicable when both parties were equally conversant with the true facts of the case and the same holds good here. At the time at the alleged adoption, Narain Das was not only an orphan but a married man whose adoption could not be valid under the law. There could be no giving and taking as required under the law nor could a married man whose thread ceremony had already beef] performed be adopted. We have already observed that there was no evidence of Narain Das having acted to his prejudice as a result of any declaration by Radhabai, Narain Das was treated as the son of Ballabhdas by Radhabai inasmuch as under the will of Ballabhdas Narain Das was to get all his property and Radhabai maintained Narain Das after her husband's death. The fact that some rent notes were executed in favour of Narain Das would not therefore improve the situation so far as he was concerned. As was pointed out by this Court in Kishori Lal's case:
'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.'
The rent notes in favour of Narain Das were all executed by the tenants and they did not contain declarations by the respondent. The declaration in her will dated June 20, 1944 was made after the death of Narain Das and it could not be said, even if reference to the will be permissible, that there was any declaration by Radhabai during the lifetime of Narain Das which the latter had acted upon.
9. In our view the decision is Rani Dharam Kunwar v. Balwant Singh (3) to which reference was made at the Bar has no application. There the appellant, the widow of one Raja Raghubir Singh, had sued the defendant to obtain a declaration that she had not adopted him as a son to her deceased husband and that if in fact any ceremony of adoption had been performed, it was invalid, owing to the absence of authority on her part to make such adoption. It was found that the appellant's husband had given formal and emphatic directions to his wife in regard to the adoption of a son and the Judicial Committee observed in reviewing the facts of the case that the question might be decided as one of fact on the Rani's own statements without recourse to the doctrine of estoppel The Board further observed that :
'In their view she was speaking the truth in Balwant Singh's action when she was pleading as to her authority' and added :
'The estoppel pleaded against the Rani must be taken as purely personal.' Here as already pointed out no similar question arises.
10. On the question learned counsel argued that the suit was in effect one to obtain a declaration that the adoption of Narain Das was invalid or in fact had never taken place and as such it was incompetent after the lapse of six years from the date of the alleged adoption. It was said that inasmuch as Narain Das had been adopted before 1944 the suit was barred by 1952 when it was filed. In our view the mere statement in the plaint that the respondent's husband had never adopted Narain nor declared him to be his son did not attract the application of Article 118 of the Limitation Act of 1908. The respondent's real complaint was against the defendant for interfering with her possession when he had no legal right to do so, but was merely managing her affairs as an agent. The fact that it was necessary to decide the question of Narain Das's adoption in the suit did not bring it within the purview of Article 118 of the Limitation Act. In Kalyandappa v. Chandasappa (4) the appellant had sued to recover as the nearest reversioner to the last male holder certain waste lands from the respondent who made title thereto as the adopted son of the adoptive father of the last male holder and disputed the title of the last male holder. The plaint originally contained a prayer for a declaration that the adoption relied on was invalid, but that prayer was deleted by permission of the court. On the question as to the period of limitation, the Judicial Committee observed :
'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 twelve years from the death of the Hindu widow and he was in time.'
Our attention was however drawn to the case of Vithoba v. Vithal (5) where it was said :
'It is a suit in substance for a declaration that an adoption is invalid, the mere fact that he ignores the adoption and bases his right on some other act consequential on the adoption will not enable him to escape the period of limitation, for the adoption would be in the way of his getting consequential relief.'
In our opinion the suit in this case was not one to declare an adoption invalid. The main object of the suit was declaration of title of the respondent as owner and wresting of possession from the appellant. The object of the suit was not to obtain a declaration that the adoption of Narain Das was invalid.
11. In the result the appeal fails and must be dismissed withcosts.