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Neelamraju Venkatanarasimhayya Vs. Neelamraju Rajya Lakshmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Family
CourtChennai
Decided On
Reported inAIR1931Mad273; (1930)59MLJ949
AppellantNeelamraju Venkatanarasimhayya
RespondentNeelamraju Rajya Lakshmamma and ors.
Cases ReferredBonomali Roy v. Jagat Chandra Bhowmick
Excerpt:
- .....suit filed by him as a reveirsioner to the estate of one nilamraju butchayya for possession of the suit property. this property was by ex. xiv sold in the year 1889 to one nilamraju bajamma by ademma, the adoptive mother of butchayya. the alienee is the 14th defendant in the suit in 1905 ademma adopted butchayya, then a minor boy. he died in 1909 being then still a minor, as has been found by the district munsif, although there is no finding upon the point of minority by the lower appellate court. on his adoption he divested his adoptive mother of the property and it became invested in mm. artier his death his adoptive mother got his estate as his legal representative. she died in 1921 and the appellant then filed this suit to set aside the sale under ex. xiv. it will thus be seen that.....
Judgment:

Horace Owen Compton Beasley, C.J.

1. The plaintiff is the appellant in this second appeal which arises out of a suit filed by him as a reveirsioner to the estate of one Nilamraju Butchayya for possession of the suit property. This property was by Ex. XIV sold in the year 1889 to one Nilamraju Bajamma by Ademma, the adoptive mother of Butchayya. The alienee is the 14th defendant in the suit In 1905 Ademma adopted Butchayya, then a minor boy. He died in 1909 being then still a minor, as has been found by the District Munsif, although there is no finding upon the point of minority by the Lower Appellate Court. On his adoption he divested his adoptive mother of the property and it became invested in Mm. Artier his death his adoptive mother got his estate as his legal representative. She died in 1921 and the appellant then filed this suit to set aside the sale under Ex. XIV. It will thus be seen that the suit was filed fourteen years after the death of the adopted son Butchayya.

2. In the District Munsif's Courrt the claim was held not to be barred; and Sreeramulu v. Kristamma I.L.R. (1902). M. 143 : 12 M.L.J. 197 was there relied upon. That case decided that where a Hindu widow alienates immoveable property belonging to her husband's estate and then adopts a son, the son cannot sue to recover possession of the property until the termination of her widowhood. A twelve years' period of limitation was under Article 141 of (the Limitation Act given and time was reckoned from the .date of her death. In the judgment of the Lower Appellate Court it is pointed out that Sreeramulu v. Kristasmma I.L.R. (1902) M. 143 : 12 M.L.J. 197 which was decided in 1902, must be taken to be overruled by a Full Bench case in 1917 Valdyanatha, Sastri v. Savithri Animal I.L.R. (1917) M. 75 : 33 M.L.J. 387. In that case a Hindu widow alienated certain properties for a purpose not binding on the inheritance and thereafter adopted a son and it was held by the Full Bench that the alienation was not binding on the adopted son and that he could sue, during the lifetime of the widow, to sett aside the alienation and recover the properties so alienated, his cause of action arising from the time of his adoption. In the course of the judgment of Sir John Wallis, C.J., reference is made to Bonomali Roy y. Jagat Chandra Bhowmick a decision of the Privy Council. Sir John Wallis says at page 85 as follows:

Their Lordships, however, appear to have held expressly that the adopted boy's cause of action for the recovery of the alienated property arose on the date of his adoption, and that time began to run against him in 18S6 on his attaining majority, and that the suit became barred in twelve years under Regulation II of 1803 and Act XIV of 1859.

3. The facts in Bonomali Roy v. Jagat Chandra Bhowmick3 were that in 1837 the widow of the owner of a zamindari granted a lease to the predecessors of the defendants as manager for the widow of her adopted son. The latter widow in 1846 adopted a son, who was the father of the plaintiff. He attained majority in 1856 and died in 1880. The suit was brought in 1897 to set aside the lease and it was held that if the lease was void the period of limitation ran from its date and if it was voidable only by the adopted son his right of action arose on his adoption and time would begin to run against him from the date when he attained his majority in 1856. There were, therefore, two dates taken by their Lordships, namely, the date of the adoption and the date of the attainment of majority. With regard to the former they held that the right of action arose then and for the purposes of limitation they held that limitation commenced to run from the latter date.

4. Applying that judgment to this case, it is quite clear that the cause of action arose in 1905, the date of the adoption, and that had the adoptive son lived, the starting point of limitation would be the date when he attained his majority. But he died, as before stated, a minor. The learned Subordinate Judge has found that it is clear from Vaidyanatha Sastri v. Savithri Ammal I.L.R. (1917) M. 75 : 33 M.L.J. 387 that the suit became barred by limitation twelve years from the date of Butchayya's adoption. That is certainly not the way I read that case and is certainly not what the Privy Council decided in Bonomali Roy v. Jagat Chandra Bhowmick for the reasons I have already given. If, the sale had been void, then the starting point of limitation would have been the date of the sale, but this sale was not void but voidable. The learned Government Pleader contends on the other hand that the starting point of limitation was the date of the adoption. It was on that date he argues that possession commenced to be adverse because the adoptive mother had ceased to have any right to the property she had become divested of and it had vested entirely in the adopted son. But with great respect to that argument, I cannot see how the fact that she had become divested of the property by reason of the adoption can affect the question of limitation. The adopted son could, through a guardian, have claimed possession of the property. He had his cause of action but he was a minor and subject to a disability. He was not bound to sue and the period of limitation is not abridged by reason of Section 6 of the Limitation Act as is contended for by the learned Government Pleader who argues that by reason of that section and Section 8 time ran from the date of the adoption but an extension of three years after the attainment of majority is all that is given to the minor. With great respect I do not agree with that contention and it is certainly not the view taken by Sir John Wallis, C.J., in Vaidya-natha Sastri v. Savithri Ammal 2 or by the Privy Council in Bonomali Roy v. Jagat Chandra Bhowmick 3? I must, therefore, hold that the learned Subordinate Judge was wrong in holding that time commenced to run against the adopted son from 1905. He died a minor, his adoptive mother succeeded to the estate and as regards her I think it is clear that she could not be in a position to dispute her previous alienation. She died in 1921 and the present appellant filed the suit in 1923.

5. In my view, the suit was not barred by limitation and this appeal must be allowed with costs and the case remanded to the Lower Appellate Court to decide all the other questions raised in the appeal and undecided by reason of the decision that the suit was barred by limitation.


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