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Ratnamasari Vs. Akilandammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported in(1903)13MLJ27
AppellantRatnamasari
RespondentAkilandammal and ors.
Cases ReferredJagadamba Chowdrani v. Dakhina Mo
Excerpt:
- - in the judgments that i have referred to, shown clearly that they are not prepared to make any distinction. i am bound to follow and accept the clearly expressed opinion of their lordships, notwithstanding that no one of their judgments can be considered, as i have already observed, to amount to an absolutely conclusive decision on the matter at issue in the present case. i mention this for the reason that, if the statement made in paragraph 4 of the plaint be well founded, it may be that article 119 would be inapplicable to the suit, even if it were otherwise applicable, for, in that case, it would be unnecessary for the plaintiff to establish again in this suit, his status as adopted son of arunachala asari, if he had already obtained in a previous suit a decree declaratory of.....moore, j.1. the plaintiff's suit has been dismissed as being barred by limitation under article 119 of the second schedule attached to the limitation act. there is practically no dispute as to the facts of the case. the adoption is alleged to have taken place in 1886. the rights of the plaintiff as adopted son were interfered within 1889 and this suit was not brought till 1897 in the plaint the plaintiff prays for a declaration that he is the adopted son of arunachala asari and also for the recovery of certain properties which he claims to be entitled to as such adopted son. it is clear that under article 119 this suit, in so far as the prayer for a declaration is concerned, is barred. it is, however, urged, that the plaintiff has 12 years within which to bring his suit for the recovery.....
Judgment:

Moore, J.

1. The plaintiff's suit has been dismissed as being barred by limitation under Article 119 of the second schedule attached to the Limitation Act. There is practically no dispute as to the facts of the case. The adoption is alleged to have taken place in 1886. The rights of the plaintiff as adopted son were interfered within 1889 and this suit was not brought till 1897 In the plaint the plaintiff prays for a declaration that he is the adopted son of Arunachala Asari and also for the recovery of certain properties which he claims to be entitled to as such adopted son. It is clear that under Article 119 this suit, in so far as the prayer for a declaration is concerned, is barred. It is, however, urged, that the plaintiff has 12 years within which to bring his suit for the recovery of the property.

2. The decisions of the several High Courts in India on the important question thus raised are most conflicting, and it cannot be said that the matter has been conclusively decided by the Privy Council. The decisions of their Lordships bearing on this point which have to be considered are Jagadamba Chowdhrani v. Dakhina Mohun L.R. 13 IndAp 84 : I.L.R. 13 C. 308. Mohesh Narain Moonshi v. Taruck Nath Moitra L.R. 20 IndAp 30 and Luchmun Lal Chowdhry v. Kanhya Lal Mowar L.R. 22 I.A 51. The case dealt with in the 13th vol. of the I.A. was one which came under Article 129 of Act IX of 1871 which was as follows:

Description of suit. Period of Time from which period

limitation. begins to run.

129. To establish or 12 years The date of the adoption or

set aside an adoption. (at the option of the

plaintiff) the date of the

death of the adoptive

father.

3. As to the wording of this Article their Lordships observe that the expression ' suit to set aside an adoption' is not quite precise as applied to any suit. 'An adoption may be established but can hardly be set aside though an alleged or pretended adoption may be declared to be no adoption at all.' It is further pointed out that the expression 'set aside an adoption' has been for years applied to ''proceedings which bring the validity of an alleged adoption under question and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature.' Reference is then made the alteration introduced in theLimitation Act of 1877 where the two following Articles take the place of Article 129 in the Act of 1871:

118. To obtain a decl- 6 years. When the alleged adoption

aration that an alleged becomes known to the plai-

adoption is invalid or ntiff.

never in fact took

place.

119. To obtain a decla- 6 years. When the rights of the

ration that an adoption adopted son as such are

is valid. interfered with.

4. Alluding to these new Articles their Lordships observe that whether the alteration of the language denoted a change of policy or how much change of law it effected were questions not then before them, adding however that they might 'fairly infer that the Legislature considered the expression 'suit to set aside an adoption' to be one of a loose kind and that more precision was desirable'. Their Lordships proceed as follows: 'If then the expression is not such as to denote solely, or even to denote accurately, a suit confined to a declaration that an alleged adoption is invalid in law or never took place in fact, is there anything in the scope or structure of the Act to prevent us from giving to it the ordinary sense in which it is used, though it may he loosely by professional men? The plaintiff's counsel were asked, but where not able, to suggest any principle on which suits involving the issue of adoption or no adoption must, if of a merely declaratory nature, be brought within six years from the adoption, while yet the very same issue is left open for twelve years after the death of the adopting widow it may be fifty years more, if only it is mixed up with a suit for the possession of the same property. It seems to their Lordships' that the more rational and probable principle to ascribe to an Act whose language admits of it is the principle of allowing only a moderate time within which such delicate and intricate questions as those involved in adoptions shall be brought into dispute, so that it shall strike alike at all suits in which the plaintiff cannot possibly succeed without displacing an apparent adoption by virtue of which the defendant is in possession.'

5. The next decision to be considered is that of Mohesh Narain Moonshi v. Taruck Nath Moilra L.R.20 IndAp 30. In that case the plaintiff who had been in possession of one half of an immoveable estate as the adopted son of one Shib Narain sued for the recovery of the possession of the remainder of that estate. The defendant who was in possession of the property sued for. maintained that he was entitled to it as the adopted son of Shib Narain. Their Lordships observed: 'The present is not a suit in which the plaintiff expressly asks for a decree to 'set aside' the defendant's adoption or to obtain a declaration that the 'adoption was in valid', which would probably be a more apt expression to use. The plaintiff merely asks for a declaration of his right, and that possession may be given to him of the properties in dispute. But this, in the circumstances, obviously involves the setting aside of the defendant's adoption, or in effect a judgment or finding by the Court that the adoption is invalid, for the defence of possession founded on the adoption directly involves the decision of the question--was the adoption invalid? 'Their Lordships therefore following the decision in Jagadamba Chowdhrani v. Dakhina Mohun L.R. 13 IndAp 84 held that the plaintiff's suit was barred by limitation. Towards the conclusion of their judgment their Lordships, in refusing to adopt a suggestion that had been made befor them that the question of limitation should be decided by them With reference to the provisions of the Act of 1877 and not of 871, remark that it seemed to them to be more than doubtful ether, if the case then before them was to be decided as if the words of the Act applicable to the case where 'to obtain a declaration that an alleged adoption is invalid or never in fact took place' in lieu of the phrase 'to set aside an adoption', the plaintiff would thereby take any advantage. The last decision of the Privy Council that has to be considered is that of Luchmun Lal Chowdhury v. Kanhya Lal Mowar. L.R. 22 IndAp 51 The case there dealt with is the only case in which the effect of Article 118 of the Act of 1877, in a suit for possession, can be deemed to have come up for decision before the Privy Council. The case was argued before their Lordships with reference to Article 118 which was assumed to govern the case. In their Judgment it was pointed out by their Lordships that if the adoption there under consideration was one made by the widow of a son to herself and not to her husband which the High Court had held was the right construction of the deed of adoption produced, the plea of limitation could have no application to the suit which was one brought for the recovery of the husband's estate. Their Lordships however, went on to observe that the suit was not barred by limitation on the ground that it had not been shown that the alleged adoption became known to the plaintiff (respondent) within six years of the institution of the suit. Here it is clear that their Lordships dealing with a suit by a reversioner seeking possession of an estate on the death of a widow and being met by the plea of the defendant in possession that he had been adopted by the widow as a son to her husband, held that such a case would be governed by the provisions of Article 118 in the second schedule attached to the Act of 1877. As to the view that should be taken of the effect of this judgment I agree with the opinion of Jenkins, C.J. (at p. 278) and Candy, J. (at pp. 279--281) of the judgment in Shrinivas v. Hanmant I.L.R. 24 B. 260. Reading these three decisions of the Privy Council carefully, it appears to me to admit of no reasonable doubt that the view that their Lordships take is that, where the plaintiff cannot obtain a decree without getting a decision that an adoption is invalid or never in fact took place, or, on the other hand a decision that an adoption is valid, the question as to whether his claim is barred by limitation must be decided with reference to the provisions of Articles 118 and 119 of the Act of 1877 just as in the case of similar cases brought before that Act was passed, the question of limitation had to be dealt with under the provisions of Article 129 of the Act of 1871. Article 141 of the Act of 1877 can be applied only in cases where the plaintiff can succeed without impugning the validity of an adoption or obtaining a decision that an adoption is valid. There is, in fact, as it appears to me, no distinction that can possibly be drawn between a suit to set aside an adoption and a suit to get a declaration that an adoption is invalid except that the former is a loose and inaccurate expression, while the latter is the correct phrase to use. If their Lordships of the Privy Council had drawn a distinction between the two classes of cases, we should, of course, be bound to accept this view taken by them but they have, on the other hand, as it appears to me. in the judgments that I have referred to, shown clearly that they are not prepared to make any distinction. I am bound to follow and accept the clearly expressed opinion of their Lordships, notwithstanding that no one of their judgments can be considered, as I have already observed, to amount to an absolutely conclusive decision on the matter at issue in the present case. The question in short, is, in ray opinion, decided by authority. I assent to the view taken as to this matter by our own Court (Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M.40 and Bombay (Srinivas v. Hanmant I.L.R. 24 B. 260 and dissent from the decision arrived at by Calcutta (Jagnnath Prasad Gupta v. Runjit Singh I.L.R. 25 C. 351 and Allahabad (Lali v. Murli Dhar I.L.R. 24 A 195. This appeal should, in my opinion, be dismissed with costs.

Bhashyam Aiyangar, J.

6. The facts admitted or found or that one Arunachala Asari, who was the owner of the bungalow for the recovery of which this suit is brought, died in June 1885, leaving him surviving a widow, whom, shortly before his death, he authorized by word of mouth to adopt as his son the plaintiff, his daughters' son, and that in May 1886 the plaintiff was duly adopted by the widow of Arunachala Asari. On the death of Arunachala Aasri, his nephew Ariyaputra. claiming as his undivided nephew, applied for a certificate for the collection of debts due to Arunachala and, on his death in March 1886, two of his widows, the 1st defendant and one Chinna Angammal, new deceased, continued the proceedings and obtained a certificate for the collection of the debts. And on the strength of such certificate the 1st defendant has been collecting the rent due by the tenant in occupation of the bungalow from 1889 and appears to have taken actual possession of the bungalow from the tenant in 1896. The present suit was instituted on the 4th May 1897 for recovery of possession of the bungalow and was dismissed by the Subordinate Judge as barred by the law of limitation under Article 119 of Schedule II to Act XV of 1877. And the question for consideration in this appeal is whether Article 119 of Schedule II to the Limitation Act is applicable to the case.

7. It appears from paragraph 10 of the judgment of the Subordinate Judge that the plaintiff was a minor in 1889 when the 1st (sic) began to collect the rent and thus reduced the bungalow into her possession. I presume that the suit was not instituted within three years after the plaintiff attained the age of majority. For, if it was instituted within three years after attaining majority, the suit can in no view be barred by the law of limitation. In paragraph 4 of the plaint it is stated that the plaintiff's status as adopted son was finally adjudicated on in Civil Suit No. 416 of 1895 on the file of the District Munsif of Namakal 'though the 1st defendant contested it' ; the judgment in the said suit does not appear to have been filed in the case and no argument has been founded upon it on behalf of the plaintiff in connection with the question of limitation either before us or in the Court below. I mention this for the reason that, if the statement made in paragraph 4 of the plaint be well founded, it may be that Article 119 would be inapplicable to the suit, even if it were otherwise applicable, for, in that case, it would be unnecessary for the plaintiff to establish again in this suit, his status as adopted son of Arunachala Asari, if he had already obtained in a previous suit a decree declaratory of such title (Chagan Lal v. Bapu Bhai I.L.R. 5 B. 68. The Subordinate Judge relying principally on the decision of this Court in Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M.40 held that as the rights of the plaintiff as adopted son were interfered with by the 1st defendant in 1899, more than six years before date of suit, the plaintiff's suit was barred under Article 119 of the Limitation Act, notwithstanding that the plaintiff does not seek in this suit for a bare declaration of his right as an adopted son under Section 42 of the Specific Relief Act but for recovery of possession of property to which he is entitled by virtue of his adoption. I am unable to concur in this view. And in my opinion Article 119 is applicable only to a suit of the character defined by Section 42 of the Specific Relief Act for a declaration that the plaintiff is entitled to a status or legal character as adopted son. In the present case the plaintiff being out of, and the defendant in, possession ever since 1889, the plaintiff could not maintain a suit for a mere declaration of a title and the only suit he could maintain is the present and the Article of the Limitation Act governing the suit is, in my opinion, Article 14 4.

8. The decision of this Court in Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M.40 relates to Article 118 of the Limitation Act. and not to Article 119, though one of the learned Judges who took, part in that decision expressed an opinion that a suit like the present would be governed by Article 119. The only decisions in which the application of Article 119 to a suit brought by a person claiming by virtue of his adoption to recover possession of immoveable property had to be considered are those reported in Jagannath Prasad Gupta v. Runjit Singh I.L.R. 25 C 354 and Lali v. Mnrli Dhar I.L.R. 20 M. 40 . And in both these cases it was held that Article 119 was applicable only to a rr.ere declaratory suit when such a suit could be brought under Section 42 of the Specific Relief Act. The reasoning on which the above two decisions proceed, in which I fully concur, will be equally applicable to Article 118, and in both of them the decision of this Court in Parvathi Ammal v. Saminatha Gurukal I.L.R. 26 C. 354 was dissented from. Though the present case may be distinguished from Parvathi Ammal v. Saminatha Guruka1 I.L.R. 26 C. 354 on the ground that that decision turned on Article 118, yet I confess that the reasoning on which it proceeds would be equally applicable to Article 119. In the view which 1 take both the Articles (118 and 119) refer only to mere declaratory suits which are sanctioned by Section 42 of the Specific Relief Act. Article (118 provides a period of limitation for a suit which forms illustration (f) to Section 42 of the Specific Relief Act and Article 119 provides the same period of limitation for a suit which is the converse of illustration (f) corresponding to illustration (h) to Section 42 of the Specific Relief Act.

9. If the question to be decided in this case were governed by a ruling of the Privy Council, we should of course be bound to implicitly follow it. The only decision of the Privy Council which can be regarded as a ruling is the case of Jagadamba Chowdhrani v. Dakhina Mohan Roy L. R 13 IndAp 84 in which it was held that a suit to recover possession of immoveable property from a person who was in possession claiming title as an adopted son is in the ordinary language of Indian lawyers a suit to ' set aside adoption' within the meaning of Article 129 of the Limitation Act IX of 1871, and that such a suit was therefore barred by the law of limitation, the same having been instituted more than 12 years after the date of the adoption notwithstanding that the suit was brought within 12 years after the death of the widow who made the adoption, on whose death the succession opened in favour of her husband's heirs, who were the plaintiffs in the case. This ruling is of course decisive in regard to a question of adoption which is governed by Act IX of 1871, though the suit in which such question arises may have been instituted after the coming into operation of Act XV of 1877 (vide Section 2, Act XV of 1877) ; but, in my opinion, that ruling is not applicable to cases governed by Article 118 or 119 of the new Limitation Act, corresponding to Article 129 of the old Limitation Act IX of 1871. Article 118 and 119 of Act XV of 1877 are radically different from Article 129 of Act IX of 1871 in every respect, viz., (1) the phraseology in column 1 descriptive of the suit. (2) the period of limitation prescribed in column 2 and (3) the starting point for the period of limitation. Article 129 of Act IX of 1871 was applicable as well to a suit to ' establish ' an adoption as to a suit to 'set aside' an adoption, and the ruling of the Privy Council above referred to expounded only the meaning of the phrase 'to set aside an adoption ' and the case was one in which the suit was brought against the adopted son and not one by an adopted son to establish his adoption. The said Article No. 129, was split into two Articles in Act XV of 1877, viz., 118 'to obtain a declaration that an adoption is invalid &c.; &c.;' ; 119 'to obtain a declaration that an adoption is valid.' The High Court of Calcutta in Jugannath Prasad Gupta v. Runjil Singh I.L.R. 25 C. 354 already referred to held that Article 119 was applicable to a mere declaratory suit, both on the ground that the decision of the Privy Council in Jagadamba Chowdh-rani v. Dakhina Mohun Boy L.R. 13 I.A, 84 was inapplicable to cases governed by Act XV of 1877 and also on the ground that the said ruling did not warrant the conclusion that the experession 'suit to establish an adoption ' which was a part of Article 129(which part corresponds to Article 119 of Act XV of 1877) included also a suit for the possession of immoveable property upon a title by adoption. It is true that there has been no decision of the Privy Council, or, so far as I am aware, of any High Court in India, in which it was decided that a suit brought by an adopted son to recover possession of immoveable property 'must be regarded as a suit to establish the plaintiff's adoption within the meaning of Article 129 of Act IX of 1871 and that, as such, it was governed by the said Article and not by Article 142 or 144 of that Act. But in my opinion the expression 'establish' is in the ordinary language of Indian lawyers, the correlative of the expression 'set aside ' and applies, like its correlative, as I shall show hereafter by reference to various Articles of the Limitation Act ' quite indiscriminately to suits for possession of land and to suits of a declaratory nature.' If the ruling of the Privy Council in Jagadamba Chowhrani v. Dakhina Mohun Roy L.R. 13 I.A 84 is a binding authority as to cases falling under Article 118 of Act XV of 1877, it will, in my opinion, be equally applicable to a suit like the present governed by Article 119 ; but after bestowing my best consideration on the point 1 am satisfied that the question for determination in this appeal is not concluded by any ruling of the Privy Council and I am equally satisfied that there is no considered dictum of that tribunal bearing on the question. The earliest Privy Council case is that of Jagadamba Chowdhrani v. Dakhina Mohun Roy L.R. 13 I.A 84 and the latest Privy Council case in which the ruling in the above case was expounded in considering a cognate question governed by Article 12(a) of the Limitation Act, viz., to set aside a sale in execution of a decree of a Civil Court, is Malkarjun v. Narhari I.L.R. 25 B. 337 A reference to the judgment in the, former case clearly shows that the application of Article 129 turned entirely upon the peculiar meaning in which the expression 'set aside an adoption' is used in the ordinary language of Indian lawyers and in several reported cases therein cited, however inaccurate such expression may be from a judicial point of view as was pointed out by Lord Blackburn in the course of the argument when he addressed the appellant's Counsel as follows: 'How do you make them out to be suits to set aside adoptions?' The seek to recover possession and may admit the adoptions while denying their efficacy to pass title.' After adverting to those cases their Lordships of the Privy Council expressed their conclusion as follows at page 94: 'It thus appears that the expression ' set aside an adoption' is and has been for many years applied in the ordinary language of Indian lawyers to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature. It is worth observing that in the Limitation Act of 1877, which superseded the Act now under discussion, the language is changed. Article 118 of the Act of 1877, which corresponds to Article 129 of the Act of 1871, so far as regards setting aside adoptions, speaks of a suit ' to obtain a declaration that an alleged adoption is invalid or never in fact look place,' and assigns a different starting point to the time that is to run against it. Whether the alteration of language denotes a change of policy, or how much change of law it effects, are questions not now before their Lordships. Nor do they think that any guidance in the construction of the earlier Act is to be gained from the latter one, except that we may fairly infer that the Legislature considered the expression 'suit to set aside an adoption,' to be one of a loose kind, and that more precision was desirable.'

If then the expression is not such as to denote solely, or even to denote accurately, a suit confined to a declaration that an alleged adoption is invalid in law or never took place in fact, is there anything in the scope or structure of the Act to prevent us from giving to it the ordinary sence in which it is used, though it may be loosely, by professional men? The plaintiff's counsel were asked, but were not able, to suggest any principle on which suits involving the issue of adoption or no adoption must, if of a merely declaratory nature, be brought within twelve years from the adoption, while yet the very same issue is left open for twelve years after the death of the adopting widow, it may be fifty years more, if only it in mixed up with a suit for possession of the same property. It seems to their Lordships that the more rational and probable principle to ascribe to an Act whose language admits of it, is the principle of allowing only a moderate time within which such delicate and intricate questions as those involved in adoptions shall be brought into dispute, so that it shall strike alike at all suits in which the plaintiff cannot possibly succeed without displacing, an apparent adoption by virtue of which the defendant is in possession.

10. From the above extract it is abundantly clear that their Lordships of the Privy Council guarded themselves at every step against expressing any opinion as to the effect of the change introduced in the Indian Limitation Act of 1877, and they observe that the later act cannot be any guidance in the construction of the earlier Act, and their observations as to the principle on which Article 129 is founded ' of allowing only a moderate time within which such delicate and intricate questions as those involved in adoptions shall be brought into dispute' are expressly based upon the expression ' suit to set aside adoption' which they say ' is not such as to denote solely or even to denote accurately a suit confined to a declaration that an alleged adoption is invalid in law or never took place in fact' and they observe that there is nothing in the scope of structure of the Act to prevent them from giving to the expression the ordinary sense in which it is used, though it may be loosely, by professional men. Lord Hobhouse who delivered the judgment of the Committee in the above case, expounded the same as follows in the case of Mallikarjun v. Narhari I.L.R. 25 B. 337: 'In the case of Jagadamba Chowdhrani v. Dakhina Mohun Roy L.R. 13 IndAp 84 the plaintiffs were reversionary heirs of a deceased Hindu subject to the interest of his widows. They brought suits not long after the surviving widow's death to recover the estate. But adoptions had been made in 1853 and 1856, either of which, if valid, would displace the plaintiffs. The law of limitation applicable to the case (the Act of 1871) provided that a suit to set aside an adoption must be brought within twelve years after the date of adoption. The plaintiffs sued, not to set aside the adoptions, but to recover the estate ; and they argued that their title- was good until an adoption was set up; that those who set it up must prove its validity, which accordingly might be controverted by the plaintiffs. There was difficulty in the case because the expression ' set aside an adoption' is inaccurate ; an adoption cannot be set aside, though its validity may be impeached; and in fact the language was altered in 1877 before the appeal was heard. This Board found, however, that the expression had been frequently used in legal documents and was known to Indian lawyers as a short way of denoting any process in which the fact or the validity of an adoption was disputed. On that ground they held that the Legislature must have intended to place the specified limit on suits for these purposes. Then the suit being rightly described as one to set aside an adoption, attracted the consequence that the time for suing ran from the date of the adoptions, and that the suits of 1873 and 1874 were barred.' It will be noted that Lord Hobhouse specially refers to the rul- ing in the case reported in 13 Indian Appeals as one under the Act of 1871 and he explains that the ratio decidendi of the decision in that case was that the Judicial Committee found that the expression 'set aside an adoption' ' had been frequently used in legal documents and was known to Indian lawyers as a short way of denoting any process in which the fact or validity of an adoption was disputed' and that 'on that ground they held that the legislature must have intended to place the specified limit on suits for these purposes' and he concludes by saying 'then the suit being rightly described as one to set aside an adoption attracted the consequence that the time for suing ran from the date of the adoption and that the suits of 1873 and 1874 were barred.' (The italics are mine). It seems to me perfectly clear from the above explanation of the ruling in the case of Jagadamba Chowdhrani v. Dakhina Mohun Roy L.R. 18 IndAp 84 that that ruling is the result of the suit being described in Article 129 as one to set aside an adoption and of the technical meaning which that expression has in Indian legal phraseology and that it cannot apply to the corresponding Articles 118 and 119 in the Act of 1877, in both of which Articles the expression 'set aside' and 'establish' were eliminated and the suits described as declaratory suits, The decision of the Privy Council in Malkarjun v. Narhari I.L.R. 25. B. 337 was given in the latter part of 1900 and it was subsequent to the decison of this Court in Parvathi Ammal v. Saminatha Gurukkal I.L.R. 20 M. 40 and also to the Full Bench decison of the Bombay High Court in Shrinivas v. Hanmant I.L.R. 24 B. 260 which followed the decision of this Court in Parvathi Ammal v. Saminatha Gurukkal. I.L.R. 20 M. 40 In both these cases reliance is placed upon the Privy Council cases of Mohesh Narain Munshi v. Taruck Nath Moitra I.L.R. 20 C. 487 and Lachman Lal Chowdhri v. Kanhaya Lal Mowar I.L.R. 22 C. 609 which were intermediate between Jagadamba Chowdhrani v. Dakhina Mohun Roy L.R. 18 IndAp 84 and Malkarjun v. Narhari I.L.R. 25. B. 337.

11. In Mohesh v. Taruck I.L.R. 20 C. 487 it was held that though the suit was brought in 1885, yet according to Section 2 of that Act and the ruling of the Privy Council in Appmami Odayar v. Subramania Odayar I.L.R. 12 M. 26 the question of the validity of the defendant's adoption therein was Governed by Article 129 of Act IX of 1871, inasmuch as the period of 12 years after the defendant's adoption expired in 1863, long before the Act XV of 1877 came into operation. Following, therefore, the ruling in Jagadamba Chowdhrani v. Dakhma Mohun Roy I.L.R. 13 C. 308 it was held that the suit was one to set aside an adoption within the meaning of Article 129 of Act IX of 1871 and that the suit was therefore barred by limitation. Lord Shand, in delivering the judgment of the Committee in that Case, after alluding to the suggestion made on behalf of the appellant that the Act of 1871 having been superseded by the Act of 1877, the question of limitation should be determined with reference to the provisions of the later statute, which argument was eventually overruled, observed as follows: 'It seems to be more than doubtful whether if these ('to obtain a declaration; 'that an alleged adoption is invalid or never in fact took place') were the words of the statute applicable to the case the plaintiff would thereby take any advantage.' Both in Jagannath Prasad Gupta v. Runjit Singh I.L.R. 25 C. 354 and in Ramchendra Mukerji v. Runjit Singh I.L.R. 27 C. 242 the meaning of the above passage in the judgment of the Privy Council was considered and explained as follows: 'What their Lordships considered to be more than doubtful, even if the language of the old law (Article 129 of Act IX of 1871) were the same as that of the present law (Article 118 of Act XV of 1877,) was not whether that would make any change in the law, but whether the plaintiff would take any advantage, that is, whether the plaintiff in the case before their Lordships would succeed under the circumstances of the case. That this is the meaning of the above passage appears to us to be clear not only from the language used, but also from the fact that the High Court held that the suit was barred by adverse possession and their Lordships in an earlier part of the judgment say that they decide the question upon the construction of Article 129 of Act IX of 1871, without expressing any dissent from the view of the High Court, that the suit was barred by adverse possession.' It is possible that this may be the right interpretation, but I am by no means convinced of it and I prefer to construe it as it has been construed both by this Court and by the Bombay High Court, viz., that in the opinion of the Judicial Committee, whose judgment was delivered by Lord Shand, it was more than doubtful whether, if the language of Article 129 of Act IX of 1871 had been the same as that of the Act of 1877, the result would have been different, that is, whether the plaintiff's suit would not have been barred by limitation. Assuming this to be the correct interpretation of the passage, what does this amount to? It amounts only to the expression of a doubt, and no more than a strong doubt, as to whether Article 118 may not apply to a suit which is not merely one for declaration of the invalidity of the defendant's adoption. The expression of such doubt cannot be regarded as carrying the weight even of an Obiter dictum which must at least be the expression of an opinion ' by the way.'

12. The next case Lachman Lal Chowdri v. Kanhaya Lal Mowar I.L.R. 22 C. 609 is one which was carried in appeal to the Privy Council and in which the counsel for the appellant (defendant who Claimed by virtue of an adoption made by a widow) on the assumption that Article 118 of Act XV of 1877 was applicable to the suit notwithstanding that it was not a mere declaratory suit, argued that the suit was barred by limitation under that Article and that the widow must be understood to have purported to adopt the defendant as son to her husband and not simply to herself as held by the High Court. Counsel for the respondent was not called upon and Lord Shand, in delivering the judgment of the Committee, held that, if the adoption of the defendant was really made by the widow as a son to herself and not to her husband, which the High Court has held to be the true construction of the deed of adoption produced, the plea of limitation could have no application in this suit which related entirely to the husband's estate. His Lordship then added that, in the opinion of their Lordships, there was another ground in respect of which also the defence clearly failed, viz., that it has not been proved that the alleged adoption did become known to the respondent (plaintiff) till the death of the widow which occurred within 2 years of the institution of the suit, If the adoption was not to the husband, and the question involved in the suit was the right to inherit the husband's estate, neither Article 129 of IX of 1871 nor Article 118 of Act XV of 1877 would apply to such a suit. That, therefore, was a complete answer to the argument urged by the appellant's Counsel and on the assumption on which he argued the case, viz., that Article 118 was applicable to the case, and he could therefore rely on it in defence of the suit ; their Lordships made another complete answer to his argument, vis., that it was not proved that the plaintiff had knowledge of the adoption more than 6 years before date of the institution of the suit. No question at all was raised or considered as to whether Article 118 would apply to a case which was not merely one for declaration, And the Counsel for the respondent, in whose interest it would have been to raise the contention that Article 118 would govern only suits for a mere declaration, was not called upon, for the obvious reason that even on the assumption on which the appellant rested his case, viz., that Article 118 was applicable to the case, the appeal failed on the two grounds already mentioned. I may also note here that it is distinctly stated in the judgment of the privy Council at page 614 that the adoption was alleged to have been made, by the widow two years after the death in (sic) of her husband. If this were so the law of limitation applicable to the alleged adoption even if it had been made to the husband, which it was not, would be Article 129 of Act IX of 1871. Under all these circumstances it is impossible to regard the judgment of the Privy Council in this case as a decision that Article 118 would be applicable even if the suit was not one for mere declaration but one for recovery of possession of immoveable property from one claiming to be in possession as adopted son and I venture to state that it cannot be regarded even as a dictum, The pronouncement of the Judicial Committee on a question of law which was argued and considered, though such pronouncement may not have been necessary to the decision of the case, is of course entitled to the highest weight, and so far as this Court is concerned will stand nearly on the same footing as an authoritative ruling. In Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M. 40. Shephard, J. did not rely upon this judgment of the Privy Council either as a decision or dictum in support of his. conclusion, for he refers to it as a later case in which ''it appears to have been assumed that notwithstanding the change a plaintiff suing for possession must bring his suit within 6 years of his knowledge of the defendant's adoption.' In the Bombay Full Bench case, however, Jenkins, C. J , strongly relies upon the decision of the Privy Council in this case and says that ' the judgment does not profess to proceed on an as- sumption made merely for the purpose of the decision and I think it must be left for their Lordships alone to distinguish the case on the ground that has been suggested at the bar if it be necessary. It certainly does not appear to me to be paying due respect to their Lordships' considered judgment, for such it was, to say that they either overlooked a point which must have been brought to their notice or that without so expressing themselves they decided on an Article of the Limitation Act which had no application'. With all deference I am compelled to express my dissent from this view. If the judgment of their Lordships in the case had been that the suit was barred under Article 118, it would then certainly be a decision on the point ; and it would not be paying due respect to their Lordships' Judgment to say that they either overlooked a point which ought to have been, but was not, brought to their notice by the respondent's Counsel or that without so expressing themselves they decided that the suit was barred by an Article of the Limitation Act which Article had no application to the case and that therefore it is not a binding authority. It is a matter of almost daily experience in courts of appeal that when the arguments of the appellant's Counsel fail even on the assumption on which he bases his arguments, the appeal is dismissed without the respondent's Counsel being called upon and without consideirng or deciding whether the assumption on which the appellant's Counsel has proceeded is well-founded in law or not. As pointed out already by me, the slender inferences which may be drawn in support of the decision of this Court in Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M. 40 and of the Bombay High Court in Shrinivas v. Hanmant I.L.R. 24 B. 260 from certain passages detached from their context in the three judgments of the Privy Council above referred to and a casual remark by way of illustration, made in the judgment of the Privy Council in Sri Balasu Gurulingaswami v. Ramalakshmamtna I.L.R. 22 M. 398 as to the six years' rule of limitation enacted by the Legislature in regard to adoption, are sufficiently repelled by the explanation given in the latest Privy Council decision in Mdlkarjun v. Narharo I.L.R. 25 B. 337 of the ruling in the leading case of Jagadamba Chow- dhrani v. Dakhina Mohnn Roy I.L.R. 13 C. 308 Both the Calcutta High Court and the Allahabad High Court have, after a consideration of the three decisions of the Privy Council above referred to, come to the conclusion that the ruling of the Privy Council in Jagadamba Chowdhrani v. Dakhina Mohun Roy 2 is applicable only to a case in which the question of adoption is governed by Article 129 of Act IX of 1871 and that neither that decision nor the decision in either of the two subsequent cases is an authority that Articles 118 and 119 govern a suit for the recovery of possession of immoveable property when the title to such possession involves the determination of the invalidity of an adoption relied upon by the defendant or the validity of an adoption relied upon by the plaintiff and they have dissented from the decision of this Court in Parvathi Ammal v. Saminatha Gurukal I.L.R. 20 M. 40 and the decision of the Bombay High Court in Shrinivas v. Hanmant I.L.R. 24 B. 260.

13. I shall now proceed to consider the question with reference to the provisions of the three Limitation Acts, viz., Act XIV of 1859, IX of 1871, and XV of 1877 and the provisions of the Specific Relief Act, 1877, which have a most important bearing upon the construction of Articles 118 and 119 of Act XV of 1877. Under Act XIV of 1859 declaratory suits in respect of adoption were governed by Clause 16 of Section I which prescribed a limitation of six years, to commence with the time when the cause of action arose, to all suits not specially provided for and it was held that the period of six years ran from the date of adoption Mrino Moyee Debia v. Bhoobun Moyee Debia 23 W.R. C.R. 42 and it was undoubted under that Act that suits for the recovery of immoveable property were governed by the 12 years' period of limitation prescribed by Clause 12 of Section I, notwithstanding that such suits involved the validity of an adoption relied upon by the plaintiff or the invalidity of an adoption telied upon by the defendant Sreenath Gangooley v. Mohesh Chunder Roy 4 B.L.R.F.B. This Act was superseded by Act IX of 1871 which provided in Schedule II various periods of limitation ranging from 30 days to 60 years for different classes of suits described respectively in 150 Articles. The first column of schedule describes the nature of the suit, the second column specifies the period of limitation and the third column the time when such period begins to run. The phrase 'to set aside' Was fully used in describing several classes of suits, for example, in Articles 14, 15, 16, 92, 96, 125 and 129. The same expression 'to set aside' is used in several Articles prescribing a period of limitation under the head of 'applications'. A reference to those Articles will clearly show that, in most of those cases at any rate, the suits would comprise not only suits for a mere declaration of the validity or the invalidity of certain sales, orders, decisions, acts or instruments, but also suits for the recovery of immoveable property in which the validity or otherwise of a sale, order, decision, act or instrument may be involved. There were also certain articles in that very act describing certain suits as suits to obtain a declaration (see for example Articles 93 and 146), Article 118 prescribed a period of six years for suits not otherwise provided for. In certain Articles the suits therein referred to are described as suits to void or contest something, apparently in the same sense as the expression 'set aside'. The Article which had to be construed by the Privy Council in the leading case of Jagadamba Chowdhrani v. Dakhina Mohun Roy I.L.R. 13 C. 308 was Article 129 and there was certainly no reason why the expression 'set aside' in that Article should be construed in a sense different from that in which it was used in most of the other Articles in the same schedule, a sense in which the expression has been for many years used in the ordinary language of Indian lawyers, as appeared from the various reported cases referred to by the Privy Council. Whether the provision made in Article 129 in regard to suits involving the question of adoption was scientific or not, the prescribing of 12 years as the period of limitation leads strongly to the inference that it was the intention of the legislature that Article 129 should apply also to suits for the recovery of immoveable property, in which suits the question of adoption was involved. If Article 129 had been intended to govern suits for mere declaration in respect of adoption, it is extremely unlikely that the period of six years which was applicable thereto under the Act of 1859 would have been changed and assimilated to the period of twelve years, which both under the Act of 1859 and the Act of 1871 is the general period of limitation for suits for the recovery of immoveable property. When the Act of 1871 was superseded by the Act XV of 1877 the phrase 'set aside' was retained in all the articles corresponding to the above Arts, in the Act of 1871, except in Article 118 corresponding to Article 129 of the Act of 1871. Article 44 was also added providing three years as the period of limitation for a suit by a ward who has attained majority 'to set aside' a sale by his guardian, such period to be reckoned from the time of the ward's attaining majority. It was held by the Privy Council in Malkarjun v. Narahari I.L.R.25 B. 337 differing from the decision of the Bombay High Court in Baghvant Govind v. Kondi I.L.R. 14 B. 279 that this Article in which the expression 'set aside' is used would apply to a suit for redemption for which the period of limitation is sixty years, when such suit was brought more than three years after the plaintiff had attained majority and the mortgagee resisted the claim for redemption by relying upon a sale of the equity of redemption made by the ward's mother and guardian during his minority. Shortly before Act XV of 1877 was passed on the 19th of July 1877, the Specific Relief Act had been passed into law on the 7th February 1877 and the law as to declaratory decrees was laid down by Section 42 of that Act with a number of illustrations appended thereto. The illustration (f) relating to adoption runs as follows:

A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may in a suit against the adopted son obtain a declaration that the adoption was invalid.

14. Article 129 of the Act of 1871 was split into two Articles 118 and 119 in the new Act and expressions 'establish' and 'set aside' were dropped, notwithstanding that such expressions were retained in other Articles and the period of limitation was cut down from 12 to 6 years and the starting point was also altered from the date of adoption to the date of plaintiff's knowledge of the alleged adoption or the date of interference with the rights of the adopted son. Article 118 embraced two classes of suits, viz., suits to obtain a declaration that an alleged adoption is invalid and suits to obtain a declaration that an alleged adoption never in fact took place. Article 129 of the old could not apply to the latter class of suits, for the expression 'set aside' cannot apply to a case in which there was in fact no adoption at all and therefore there was nothing to set aside. Such suits therefore even under the Act of 1871 would have been governed by the six year's rule prescribed for suits not otherwise provided for by Article 118 corresponding to Article 120 of the Act of 1877. Article 119 of the Act of 1877 corresponds to the first part of Article 129 of the Act, 1871, i.e., a suit to establish an adoption. Unlike Article 118, Article 119 does not separately provide for a suit to obtain a declaration that an alleged adoption in fact took place, for the simple reason that the mere factum of adoption will not entitle one to a legal character unless the adoption is also valid. A plaintiff, therefore, will have to sue for a declaration that his adoption is valid whether the factum itself is denied or the factum is admitted but the validity is challenged. Taking into consideration that the expressions ' establish' and ' set aside' where dropped in Articles 118 and 119 and that the language descriptive of the two classes of suits is identical with the language of Section 42 of the Specific Relief Act and illustration (f) thereto and that the period of 12 years was reduced to six years which was the period generally applicable to suits for mere declaration under Act XIV of 1859 and was the period applied to suits for declaration in respect of adoption under that Act (Mrino Moyee Debia v. Bhoobun Moyee Debia 23 W. R.C.R. 42 it is impossible to resist the conclusion that the Legislature deliberately departed from the policy of Article 129 of the Act of 1871 and confined the operation of Articles 118 and 119 of the new Act to mere declaratory suits as defined in Section 42 of the Specific Relief Act. It is most unlikely that the change of the policy was only to reduce to six years the period of 12 years provided by the Act of 1871 (Art. 129) and to fix a different starting point. In Parvathi Ammal v. Saminatha Gurukkal I.L.R. 20 M. 40 Shephard, J. adverting to this point observes that ' there was no need for the abbreviation of the period or indeed for the retention of any special article if it was intended only to apply to cases in which the plaintiffs seek for a mere declaration and nothing more.' If Articles 118 and 119 had . not been enacted in the Act of 1877 the result would have been that the general Article 120 prescribing a period of six years from the date of the cause of action would govern such suits and the period of six years would reckon from the date of adoption as was held to be the case under the Act of 1859 and not from the date of the plaintiff's knowledge of the alleged adoption or from the date of interference with plaintiff's rights as adopted son, as provided in the third column of Articles 118 and 119. The retention of Articles 118 and 119 was therefore necessary in view of the provision made in the third column thereof as to the time from which the period of six years was to run. On the hypothesis that Article 118 and 119 relate to mere declaratory suits and that a plaintiff wishing to avail himself of the extraordinary and equitable relief to be obtained in such suits should be vigilant, the curtailment of the period of limitation from twelve to six years becomes perfectly intelligible and the provision made in the third column that the period of six years is to be reckoned from the date of knowledge or interference strongly supports the conclusion that the suits to which the Arts, relate are declaratory suits of the character defined in Section 42 of the Specific Relief Act. This conclusion derives further support from the general scheme of the 2nd Schedule to the Limitation Act. I shall for example refer to Articles 92, 93 128, 129 and 131 of the 2nd Schedule. After providing a period of limitation in Article 91 for a suit to set aside an instrument not otherwise provided for--an Article which has given rise to numerous conflicting decisions as to the class of suits for the recovery of immoveable property to which it is applicable (Janki Kunwar v. Ajit Singh I.L.R. 15 C. 58 Articles 92 and 93 prescribe a period of limitation of 3 years for a suit to obtain a declaration that a certain instrument issued, registered or attempted to be enforced against the plaintiff is a forgery. As in the case of Articles 118 and 119, the period of limitation is to be reckoned from the date of the plaintiff's knowledge or from the date of the attempt to enforce the instrument. Can it be contended that a suit brought for redemption or recovery of immoveable property or for the recovery of a debt within the period of limitation prescribed for such suits would be governed by Articles 92 and 93 and barred thereunder, if the defendant resists the suit by relying upon a forged instrument of' conveyance or a receipt and proves that the plaintiff had knowledge of its issue or registration more than 3 years before the date of the suit? If the interpretation placed by this Court and by the High Court of Bombay on Articles 118 and 119 be sound, the above contention as to Articles 92 and 93 ought also to prevail.

15. Article 129 of Act XV of 1877 provides a period of 12 years to be reckoned from the time when the right is denied, to obtain a declaration of one's right to maintenance. If such suit were not a mere declaratory one how are we to account for Article 128 which prescribes a period of 12 years for a suit for recovery of arrears of maintenance. Reading Articles 128 and 129 together, it is obvious that though the right to maintenance may have been denied long before 12 years of the date of suit, the suit for recovery of arrears of maintenance for 12 years preceding the suit can be maintained. Article 131, however, which provides a period of 12 years in respect of a periodically recurring right does not relate to a mere declaratory suit and the expression used in that Article is not 'for a declaration ', but 'to establish,'--which latter expression also occurs in Article 11 and, as already pointed out is used in the Limitation Act as the correlative of 'set aside' (Raoji v. Bala I.L.R. 15 B. 135 Ramnad Zemindar v. Dorosamy I.L.R. 7 M. 341 This seems to account for the absence of an Article providing a period of limitation, as in the case of arrears of maintenance (Art. 128), for recovery of arrears of amount due in respect of a periodically recurring right.

16. The compendious expressions ' set aside' and 'establish,' which occur in several Articles of the 2nd schedule have, in no few instances, led to various conflicting rulings by the different High Courts and it is to be sincerely hoped that when Act XV of 1877 is revised these expressions will be dropped and the suit to which they relate, in the various Articles will be described with greater precision and completeness.

17. If Articles 118 and 119 are to be construed as curtailing the periods of limitation prescribed by Articles 141, 142, 144, 147 and 148 for recovery of immoveable property or for foreclosure or redemption of a mortgage, in cases in which the title will depend on the validity of an adoption relied on by the plaintiff or the invalidity of an adoption relied on by the defendant, it will follow that, in the like cases, Articles 118 and 119 will have the effect of enlarging the shorter periods of limitation prescribed by Articles 10(one year), 32 (two years), 48 and 49 (three years) of the 2nd schedule. Suits for a declaratory decree are excepted from the cognizance of Courts of Small Causes by Article 19 of the 2nd schedule of the Provincial Small Cause Courts Act of 1877. That Article has always been construed as referring to mere declaratory suits of the character defined in Section 42 of the Specific Relief Act and when a suit prays for a declaration of right accompanied by a consequential relief, which relief is within the cognizance of a Court of Small Causes, it has invariably been held, that the prayer for a declaration of right is merely ancillary to the consequential relief and therefore the suit is not excepted from the cognizance of the Court of Small Causes.

18. If Articles 118 and 119 are otherwise construed and made applicable to suits in which the relief or consequential relief claimed is recovery of immoveable property, such construction will be attended with numerous anomalies and great hardship. If a party remains and continue to remain in possession of immoveable property notwithstanding that, to his knowledge, an adoption is alleged, which if valid would disentitle him to the property, the only suit he could maintain would be a mere declaratory one under Section 42 of the Specific Relief Act; but it would be entirely in the discretion of the Court to entertain and decree such a suit. If, therefore, he does not bring such a suit or if such suit is brought, but dismissed in the exercise of the discretion of the Court, and if before he has been in possession for the statutory period, he should be dispossessed by the person claiming as adopted son or by some one claiming under him a suit which he may have to bring in ejectment against either of such persons will be barred under Article 118. A declaratory decree is not a matter of course and the Privy Council has in several suits relating to adoption refused to give a declaratory decree. So recently as 1890, in Rani Pirthi Pal Kunwar v. Rani Guman Kunwar L.R. 171. A. 107 where the only object of a declaratory suit was to prevent a defendant who claimed property under an alleged adoption, from obtaining posssession after the plaintiff's death, it was held that the suit Was properly dismissed. In that case, the plaintiff, the Mother-in-law of the 1st defendent, prayed for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid and that a proposed transfer to him of certain property was ineffectual. The plaintiff, besides being in possession of some property for life as a provision for maintenance, was the reversionary heir entitled to succeed to the whole estate on the death of her daughter-in-law, the 1st defendant, if the 2nd defendant's adoption, which was made in 1883, two years before the suit, was invalid. Sir Barnes Peacock, in delivering the judgment of the committee, stated as follows, quoting from Sree Narain Mitter v. Sree Mutty Kishen Soondary Dossee L.R.IndAp Supp. 149: 'It is not a matter of absolute right to obtain a declaratory decree, It is discretionary with the Court to grant it or not and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under the circumstances of the case, to grant the relief prayed for. There is so much more danger than here, of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be in converted into a new and mischievous source of litigation' ***. 'All that is suggested by the learned Counsel on the part of the appellant in support of a declaratory decree is this ; that, at some time or other, after the death of the present plaintiff, the person who, according to the plaintiff's contention) is not an adopted son, may, by some means, either by an act of Government or otherwise, obtain possession as an adopted son. The only object therefore of having a declaratory decree is to prevent him being put into possession. Their Lordships cannot assume that the Government, if petitioned to put the person claiming to be an adopted son into possession, would do so unless they saw that he had a right to that possession. The officers of Government would, in ordinary course, if there were and doubt as to the title, refer the parties to the Civil Court. If the person claiming to have been adopted brings an action to enforce his title, the question will be investigated whether he was validly adopted or not.'

19. It is perfectly clear from the above extract that the declaratory decree would not have been refused, in the exercise of judicial discretion, if the law were that a future suit for rossession would be barred under Article 118, on the ground that the suit was not brought within six years of the date of the knowledge of the alleged adoption.

20. It is also settled law that a suit for declaration of the invalidity of a defendant's alleged adoption can be brought only by the presumptive reversionary heir, unless the presumptive reversionary heir is in collusion with the widow or has precluded himself from questioning the adoption [Rani Anund Koer v. The Courts of Wards L.R. 8 IndAp 14. In Tekait Doorga Persad Singh v. Tekaitni Doorga Konwaree L.R. 5 IndAp 149 their Lordships of the Judicial Committee, in the exercise of their discretion, declined to remand the case for adjudication as to whether the plaintiff was the presumptive reversionary heir, with a view to his obtaining the declaratory decree sought for, and in so doing observed as follows (at page 163): 'Such an inquiry would be attended with considerable expense, and would cause great delay, and if the inquiry should result in a finding favouable to Joy Mungal, the decision might not be final in his favour, because the present plaintiff might die in the lifetime of the widow and the estate might never come to him. Further, there are others who might prove a preferable title to the plaintiff and to the defendant No. 1 and who would not be bound by any decision in this or in the former suit to which they are no parties. It appears, therefore, to their Lordships that they would not be exercising a sound discretion in sending the case for a further inquiry, which after causing considerable expense and delay would not be binding upon the whole family.' Having regard to these decisions it will be most unreasonable to construe Articles 118 and 119 as relating to suits other than suits for mere declaration of the invalidity or validity of an adoption as the case may be. If limitation begins to run in favour of an alleged adoption under Article 118, it will run not only against the presumptive reversionary heir, but also against the person who may be the actual reversionary heir at the date of the death of the widow, and if a suit of a declaratory character cannot be maintained during the widow's lifetime by a remoter reversionary heir in the absence of collusion between the widow and the nearer reversionary heirs, the actual reversionary, heir may find himself barred by limitation under Article 118, when he sues to recover possession on the death of the widow. If we turn to Article 119 the anomalies are not the less. In this very case, the plaintiff's rights as adopted son of Arunachala Asari were interfered with in 1889. Has limitation been running against him from 1889 only in respect of his claim to recover possession of his adoptive further's estate or also in respect of any claim which may hereafter accrue to him to recover possession of the properties of any agnate or cognate relation of Arunachala Asari to whom he would be entitled to inherit if he had been the born son of Arunachella Asari? In all the cases in which the question has hitherto been considered, it was assumed that the party seeking to invalidate the adoption would have to do so only in view to his succeeding to the estate of the deceased husband as his reversionary heir after the death of the widow--an estate which after all may be nominal or very inconsiderable. It was overlooked that the alleged adopted son (including his descendants) would, if his adoption were valid, become the heir or a possible heir to each of the numerous agnate or cognate relations of the alleged adoptive father, the estate possessed by some of whom might be very considerable. Can each of them bring, and if so, ought each to bring, a declaratory suit under Section 42 of ths Specific Relief Act, within six years, after knowledge of the alleged adoption? If no such suit has been brought, is it to be held that if he or any of his descendants manages to get into possession of all or of any of the properties of any such agnate or cognate relation on or after his death, the person who would be his heir, if the adoption never took place in fact or if it did take place was invalid, would be barred by Article 118 from successfully maintaining a suit against the alleged adopted son or a descendant of his in possession of the property? Would a decree obtained by only one of such agnate or cognate relations of the alleged adoptive father declaring the invalidity of the adoption, enure to the benefit of the other agnate or cognate relations, to each of whom the alleged adopted son would be in the line of heirs if the adoption were true and valid? The alleged adopted son himself may deny the factum of adoption or its validity, and claim a share in the property belonging tothe family in which he was born--vide Bireswar Mukerji v. Ardhachander Roy I.L.R. 19 C. 452 and if he brings a suit for partition of such property on the ground that he has been excluded therefrom is the suit to be governed by the 12 years' period prescribed by Article 127 or the six years' period prescribed by Article 118? When the language of Articles 118 and 119 is plain especially when those Articles are read in the light thrown upon them by other Articles in the same schedule and by Section 42 of the Specific Relief Act which was passed contemporaneously with the Limitation Act of 1877, I fail to discover any justification for adopting a construction which results in the anomalies already pointed out and numerous other anomalies and complications which can be mentioned. Even if grammatically Articles 118 and 119 are suspectible of either of the two constructions, there can be little doubt as to Which of the two constructions ought to prevail. In the Full Bench Bombay decision I.L.R. 24 B. 260 Jenkins, C.J. observes as follows (at page 274): 'Thus I take it to be clear that a man can with requisite leave combine in one suit a claim to establish status as an adopted son where his rights as such had been interfered with and a claim to recover possession of property, his title to which depends on a devise and no one would I imagine in so obvious a case think of suggesting, that the suit so far as it sought a declaration that the adoption was valid did not fall within Article 119.' The leave of the Court referred to above is evidently the one contemplated by Section 44 Rule (a)(C.P.C.) The italics in the above extract are mine and I fully concur in the proposition of law therein laid down. It only illustrates that two causes of action may, with the leave of the Court, be combined in one suit though one of them is purely of a declaratory character and the other for recovery of possession of property to which his title is founded upon a different cause of action, viz., his right as devisee of a testator. The law of limitation applicable to the former is Article 119, and the law of limitation applicable to the latter is Article 144 ; but if the property claimed in the suit was one to which he would be entitled by reasons of his status as an adopted son, then, in that case the suit is founded only upon one cause of action and the suit is not one in which two causes of action are combined. The declaration of his' status as an adopted son is then simply an ancillary one. The Article of the law of limitation applicable to it will be only one Article, viz., Article 141 or 142 or 144 as the case may be and the prayer for declaration of his status as adopted son is only ancillary to the proof of his title to the immoveable property which he seeks to recover from the defendant. The next instance mentioned by Jenkins, C.J., at the same page is exactly the same in principle and stands on the same footing as the first illustration given by him. But can it be contended that a suit for the recovery of immoveable property barred by limitation because it was brought more than six years after the cause of action for declaration of title accrued? In such a suit if the plaintiff succeeds, the plaintiff's right is declared and delivery of the property decreed. Indeed, as a general rule, the plaint in such a suit contains an express prayer for declaration of title as ancillary to the consequential relief by delivery of property. As regards Article 119, I am, with all respect, unable to concur in the reasoning of the learned Chief Justice which has led him to the conclusion that the suit contemplated by Article 119 cannot be a mere declaratory suit, but that it must almost necessarily be one including a claim for relief 'at least to an injunction.' The reasoning, as I understand it, is that inasmuch as the starting point from which the period of six years runs is the date when the rights of the adopted son as such are interfered with, therefore the suit is one in which the plaintiff is almost necessarily entitled to some consequential relief, by reason of the supposed interference and that, therefore, having reference to the proviso to Section 42 of the Specific Relief Act, the suit contemplated by Article 119 cannot be a mere declaratory one. If the interference was, as in this case, an interference by taking possession of the property to which the plaintiff was entitled as adopted son, the suit cannot be one for mere declaration under Section 42 of the Specific Relief Act, but must be in ejectment, as the present case is. In Jagnath Prasad Gupta v. Runjit Singh I.L.R. 25 C. 355 and Lali v. Murlidrar I.L.R. 24 A. 195 which are the only two cases in which the question as to the application of Article 119 arose, the interference with the rights of the adopted son, which took place during the lifetime of the widow, was not such as to have entitled the plaintiff to any relief further than a mere declaration of his status as an adopted son. The interference may no doubt in some cases besuch as to induce the Court to give relief by way of injunction,--if such relief were applied for, andnot merely relief by way of declaration of title. Whether injunction will be given or not will rest entirely in the discretion of the Court, in the exercise of which discretion the Court will be guided by the principles and rules enacted in Chapter 10 of the Specific Relief Act. If a party claiming as adopted son brings a suit to obtain an injunction against the defendant, and not a mere declaration of his legal character as adopted son the article of the Limitation Act applicable thereto will not be Article 119, but the general Article 120, though so far as the question of limitation goes it will make no difference in the majority of cases, whether the one article or the other is applied to the suit. I am not aware that a person who is actully in possession of property, but whose possession is interfered with--it may be casually or repeatedly--cannot content himself with a declaratory suit, but must sue for an injunction. If he is ousted then no doubt he must sue in ejectment as that is the necessary relief he is entitled to in law consequent upon the declaration of his legal character as adopted son. If the interference was by way of trespass which, however, was only casual, he may get a declaratory decree, but it is hardly likely that an injunction will ever be given. Even if the interference was by repeated trespass, I do not think it has ever been held that that circumstance is a bar to his contenting himself with a mere declaratory decree. The further relief referred to in the proviso to Section 43 of the Specific Relief Act cannot in my opinion apply to an equitable injunction which the Court may or may not, having regard to all the circumstances of the case, grant. However that may be, it does not affect the construction of Article 119 as relating only to a declaratory suit. If the interference be such as would compel the adopted son--as in the present case--to seek further relief than a mere declaration he ought to shape his suit accordingly and the limitation Article 119 will not apply to such a suit. The Legislature in using the expression 'interfered with' has chosen the mildest expression which would denote some overt act denying the adoption and in my Opinion such expression was advisedly chosen as the suit contemplated by Article 119 is a mere declaratory suit In my opinion the language of Articles 118 and 119 is unambiguous and denotes a declaratory decree of the character defined by Section 42 of the Specific Relief Act and it is impossible to regard the decision of the Privy Council in the leading case of Jagdamba Chowdhrani v. Dakhina Mohun Roy I.L.R. 13 C. 308 as applicable to cases governed by the new Limitation Act when in that very judgment their Lordships of the Privy Council expressly say that it is unnecessary to consider or express any opinion as to whether the alteration of language introduced in the Act of 1877 denotes a change of policy or how much change of law it effects. For the reasons above given I am unable to concur in the reasoning on which the decision of this Court in Parvati Ammal v. Saminatha Gurukul I.L.R. 20 M 40 proceeds, as to the application of Article 118 to a suit brought against an alleged adopted son and by logically extending that reasoning to Article 119, to hold that the present suit which is brought by an alleged adopted son, is barred by limitation. 1 would, therefore, allow the appeal and reversing the decree appealed against give a decree in favour of the plaintiff as prayed for, the findings on the issues relating to the merits of the case being all in favour of the appellant.

Benson, J.

21. If the question were res Integra I should attach great weight to the arguments put forward by my learned brother, whose judgment has just been delivered, to show that Article 119 is applicable only to a suit where a declaration without further relief is sought ; but I do not consider myself free to disregard what appears to be the necessary consequence of the judgment of the Privy Council in the case of Jagadamba Chowdrani v. Dakhina Mo hum Roy I.L.R. 13 C. 308 and of the reasoning by which that judgment is supported.

22. I therefore concur in the conclusion of my learned brother Moore, J., and dismiss the appeal with costs. It is much to be desired that where, as in this case, there is a direct conflict between the rulings of the several High Courts on matters of great and general importance, the Legislature should take an early opportunity of so amending the law as to remove doubts as to its true meaning.


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