1. These are appeals from the decree of the Subordinate Judge of Negapatam in a suit brought by the plaintiffs to recover the suit properties as next reversioners of the last male owner whose widow died in 1902. The defendants relied on long possession under an adoption made by the widow in 1862 and pleaded that the suit was barred by limitation and res judicata. The Subordinate Judge overruled both pleas and gave the plaintiffs a decree against which several of the defendants have appealed. We propose to deal, in the first place, with Appeals Nos. 206 and 207 of 1908 filed by the defendants Nos. 7 and 8 who are alienees from the heirs of the alleged adopted son. The main facts are not now in dispute, and may be briefly stated. Arunachala, the last male owner, died in 1849 leaving a widow Chokkamal. In 1862, Chokkammal adopted one Alagasundara, a younger brother of her deceased husband. This adoption was afterwards impeached on the ground that Alagasundara was not given in adoption by his father who was dead at the date of the adoption and that consequently it was bad. Alagasundara was put in possession of the properties which had not been already alienated, with the exception of certain properties which were retained by Chokkammal for her maintenance, and continued in possession till he died in 1864 leaving a widow Murugathal, the fourth defendant. Murugathal adopted one Thiyagaraja who enjoyed the properties until 1876 when he appears to have been dispossessed by Arunachala's widow Chokkammal. He died in 1881 leaving a widow who died in 1882. On her death his adoptive mother Murugathal, the fourth defendant, became his heiress and instituted Original Suit No. 9 of 1887 on the file of the Court of the Subordinate Judge of Negapatam against Chokkammal to recover the properties of which she had dispossessed him in 1876. In this suit it was held that the adoption on which Murugathal relied was invalid on the ground that Alagasundara was an orphan at the date of his adoption in 1862, but that he and his heirs had acquired a title by adverse possession and a decree was accordingly given in her favour, and affirmed by the High Court in Chokkammal v. Murugathal Appeal No. 114 of 1890.
2.In this state of things, Mr. A. Krishnaswami Ayyar for the appellants the defendants (Nos, 7 and 8) alienees from the fourth defendant, contended that the suit was barred both by limitation and by res judicata, and also desired to raise the question of estoppel, but, as there was no issue raising the question of estoppel as regards the properties concerned in these appeals and as the point was not taken in the Court below, we declined to go into it.
3. The question of res judicata was argued at great length on both sides and many cases were cited, but we think it may be disposed of very briefly. The suit of 1887 was a suit against the widow Chokkammal and was decided against her, as we understand the case, on the ground that she had been out of possession for more than twelve years from 1862 when she took Alagasundara in adoption and put him in possession, and that consequently her right to sue to recover possession became barred under Act IX of 1871 and her title became extinguished at the same time under Section 29 of that Act, and thereupon Alagasundara's heirs who were in possession acquired a title as against her, and became entitled to recover the properties from her within twelve years of her dispossessing them in 1876. In these circumstances, no question arose, or can be said to have been decided in that suit, as to the right of her husband's reversioners to sue after her death. The case is distinguishable from Hari Nath Chatterji v. Mothoor Mohun Goswami I.L.R. (1894) Calc. 8 in which, after the death of the widow Pearimoni, Sampurna, one of the reversioners, brought a suit to recover possession of the estate from one Mathoor Mohun which was dismissed on the ground of limitation, a decision which their Lordships held to be res judicata in a subsequent suit by another reversioner against the same Mathoor Mohun. This decision, as we understand it, proceeded on the ground that Sampurna when she sued after the death of the widow to recover, as reversioner to her deceased father, the properties in possession of the defendant represented the estate, and a decision that was necessary for the decision of that suit was res judicata when the same question arose again in a suit by a subsequent reversioner.
4. Having disposed of the question of res judicata, we have next to consider the question whether the present suit should be held to be barred by limitation. Mr. A. Krishnaswami Ayyar who appeared for the appellants formally raised the contention that the suit is barred under Article 118 of the Act of 1877 which was in force when it was brought, but in the state of the authorities in this Court, he rested his case mainly on the contention that it became barred under Article 129 of Act IX of 1871, which was in force in 1874 when the prescribed period of twelve years from the date of adoption expired without the adoption having been set aside.
5. Under Act XIV of 1859, in a suit by a reversioner to recover the estate from an alleged adopted son, time did not run against the reversioner until his right to possession accrued on the death of the widow, as held by the Privy Council in Rajendro Nath Holdar v. Jogendro Nath Banerjee (1871) 15 W.R. 41. This was the general rule applied by Article 142 of Act IX of 1871 to suits for possession of immoveables by reversioners of the last male owner entitled to succeed to the estate on the death of a Hindu female; but Article 129, which prescribed for suits to establish or set aside an adoption a period of twelve years from the date of adoption, was held in effect to have introduced an exception to the general Article 142 in cases where possession could not be obtained by the reversioner without successfully questioning an adoption. Articles 118 and 119 were substituted in the Act of 1877 for Article 129 of Act IX of 1871; and, as is well known, there have been divergent decisions in India as to whether these articles, which speak of obtaining a declaration that an adoption is invalid or never took place or that it is valid, merely reproduced the substance of Article 129 of the Act of 1871, or are limited to declaratory suits, as distinct from suits for possession which depend on the validity of an adoption, in which case the effect of the change as regards this latter class of suits was simply to restore the law as it was under the Act of 1859. The arguments for the first view are forcibly stated in the Full Bench judgments of the Bombay High Court in Shrinivas v. Hanmant I.L.R. (1897) Bom. 260 and for the latter view in Sir V. BASHYAM AYYANGAR'S judgment in Batnamasari v. Akilandam mal I.L.R. (1903 Mad. 291 His view has been accepted in this Court since the decision of the Privy Council in Tirubhuwan Bahadur Singh v. Rameshar Bakhsh Singh I.L.R. (1906) All. 727 and is in accordance with the more recent pronouncement of their Lordships in Muhammad Umar Khan v. Muhammad Niaz-ud-din Khan (1912) I.L.R. 39 Calc. 418
6. We have therefore only to deal with the contention that under Article 129 of the Limitation Act of 1871 both the widow Chokkammal and her husband's reversioners became barred and their title to the suit lands extinguished in 1874 when the period of twelve years from the date of the adoption expired, and the heirs of the adopted son acquired a title as against them. This question has been argued before us mainly with reference to the decisions of the Privy Council as to Article 129 and it is therefore necessary to examine carefully those decisions. In the first case--Raj Bahadoor Singh v. Achumbit Lal (1879) 6 I.A. 110--the widow in 1860 had executed a deed purporting to adopt two brothers and to make over her properties to them, but the gift was not to take effect until her death. Their Lordships held that this could not be treated as a serious attempt to adopt a son or sons as heirs to her husband. The question therefore as to Article 129 did not arise, but their Lordships made certain observations which appeared to be susceptible of the meaning that Article 129 was no bar to suits for possession. In the next case, however--Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. (1886) Calc. 308--their Lordships distinguished this case and pointed that it was:
not a case in which the heir cannot possibly get at the ancestor's property without disturbance of a title and of possession founded on adoption to that ancestor.
7. And they laid down in the clearest terms that in such cases Article 129 of Act IX of 1871 was a bar to the suit as follows at page 95:
The plaintiffs' 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 inertly 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 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.
8. In this passage their Lordships raised the question whether, in the case of an adoption by the widow, it must have been questioned under the Act of 1871 within twelve years of the date of the adoption or might be questioned in a suit for possession after the date of the adopting widow, it may be fifty years later; and they laid down that Article 129 struck at all suits in which the plaintiff could not possibly succeed without displacing an apparent adoption by which the defendant was in possession. This case seems to show that, in their Lordships' opinion, no suit could be brought while the Act of 1871 was in force for possession after the death of the widow unless the adoption had been set aside within the time prescribed by Article 129. In that case, the adoptions in question were in 1853 and 1856, and the suits were brought by the persons who were the reversioners of the last male owner at the death of his surviving widow in 1868. Act IX of 1871 was in force when that suit was brought, but the same principles were apparently applied by their Lordships in a later case--Mohesh Narain Munshi v. Taruck Nath Moitra I.L.R. (1896) Calc. 487 where the suit was brought after Act XV of 1877 had been substituted for Act IX of 1871. In that case, their Lordships considered it unnecessary to determine whether the defendant had been in possession of the estate from the date of the adoption through his adoptive mother and guardian or she herself had been in possession under a deed executed by her husband. They held it sufficient that the right of the defendant to the status of an adopted son of Shib Narain, the last male owner, had been openly and constantly asserted, not only in all actings connected with the estates, but also in his daily life in family with the plaintiff. They pointed out that twelve years from the date of the defendant's adoption expired in 1803 when the plaintiff had come of age, and held that his suit became barred under Article 129 of the Act of 1871, and that the Act of 1877 could not revive his suit which had become barred under the Act of 1871.
9. The respondents, however, rely mainly on the more recent decision of the Privy Council in Tirubhuwan Bahadur Singh v. Rameshar Bakhsh Singh I.L.R. (1906) All. 727 and the main question in the case is as to the interpretation to be put upon that judgment. The estate which was the subject of the suit had been confiscated in 1858 and subsequently settled upon the widow of the last male owner in her own right and as her separate property. The defendant took possession after her death claiming that she had adopted him in 1858, and was sued for possession by the plaintiff who claimed to be the next heir of the lady under the Oudh Estates Act, 1869. The defendant pleaded that that Act did not apply, and that, if it did, he as the adopted son was the next heir to the lady, and that at all events the plaintiff was not entitled to oust him from possession of the estate without having obtained a declaration that the adoption was invalid, and that a suit for such a declaration was barred. It may also be mentioned that, during the widow's lifetime and while Act IX of 1871 was in force, the defendant sought to recover possession of the estate from the widow on the footing of the adoption and the Judicial Commissioner in 1878 found against the adoption and dismissed his suit a finding which their Lordships intimated at the close of the case was res judicata against him, though they did not rest their decision on that ground but on the question of limitation, which had been mainly relied on in the argument.
10. Mr. Cohen for the defendant-appellant relied on the cases to which we have referred and contended that, as the right to sue to set aside the defendant's adoption had become barred under Article 129 of the Act of 1871 while that Act was in force, the defendant had acquired a title within the meaning of Section 2 of the Act of 1877 which by the terms of the section was not to be affected by the passing of that Act. Their Lordships disposed of this contention very briefly. 'Giving full effect' they said:
to the Jagadamba case--Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. (1886) Calc. 308--and the other cases which followed it, they do not think that the immunity, such as it is, gained by the lapse of twelve years after the date of an apparent adoption amounts to acquisition of the title within the meaning of Section 2 of the Act of 1877. Their Lordships think that the appeal may be disposed of on this short ground, whether the alleged adoption was or was not an apparent adoption to which the ruling in the Jagadamba case would apply if the Act of 1871 were now in force.
11. This judgment is summarized in the head note to Tirubhuwan Bahadur Singh v. Rameshar Bakhsh Singh I.L.R. (1906) All. 727 as a decision that Act IX of 1871 had no application to that case which was governed by the provisions of the Act of 1877 which was in force when the suit was brought. It appears to contain an express ruling that the fact that a suit to set aside the defendant's adoption became barred under Article 129 of the Act of 1871 while that Act was in force did not amount to an acquisition of title which would be protected by Section 2 of the Act of 1877, a ruling which if applicable would be fatal to the appellant. But, as regards this question of acquisition of title, their Lordships' observations must be taken to have been made with reference to the case before them, and are in our opinion inapplicable to a case like the present in which the heirs of the alleged adopted son claiming under him were in possession of the lands which are the subject of these appeals in 1874 when the right to sue to set aside the adoption became barred under Article 129 of the Act of 1871 which was then in force. Section 29 of that Act provided that, at the determination of the time hereby limited to any person for instituting a suit for possession of any land, his right to such land should be extinguished. To take, in the first instance, the case of the widow, Chokkammal who in 1874 was the next heir of her husband, the last male owner, her right to sue for possession of these lands became barred in 1874 according to the decision of their Lordships in Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. (1886) Calc. 308 when the period limited to her under Article 129 expired, and thereupon her right to these said lands became extinguished under the section, and the heirs of the adopted son who were then in possession acquired a title against her on the strength of which they subsequently recovered possession from Chokkammal after she had ousted them in 1876. There was thus clearly an acquisition of title by the heirs of the adopted son at any rate against her while the Act of 1871 was in force, and the title so acquired was not to be affected by the enactment of Act XV of 1877.
12. The only other question then is, whether the suit for recovery of the lands now in suit became barred while Act IX of 1871 was in force, not only against the widow who was then the nearest heir, but also against all other heirs of the last male owner including the present plaintiffs; as, if it did, we think the effect of Section 29 was to confer upon the heirs of the adopted son who were in possession when such suits became barred a title against such heirs also which was not affected by the passing of Act XV of 1877. In our opinion, while Act IX of 1871 was in force, time ran against all the reversioners of the last male owner from the date of the adoption, and they all became barred on the expiry of that date. The object of the legislature in that enactment was that all questions relating to adoption, including suits for possession of land depending on questions of adoption, should be determined within twelve years, and not after the death of the widow of the last male owner, it might be fifty years later, as observed by their Lordships in Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. (1886) Calc. 308. Further the point has been expressly decided in India in Harnabh Pershad v. Mandil Dass I.L.R. (1900) Calc. 379 and the same view was taken by the Bombay High Court in Shrinivas v. Hanmant I.L.R. (1897) Bom. 260 under the Act of 1877, which, in their opinion, reproduced Article 129 of the Act of 1871, and by Sir Subrahmanya Ayyar, J. in his Order of Reference in Chiruvolu Punnamma v. Chiruvolu Perrazu I.L.R. (1906) Mad. 390. Our attention has been called to the fact that in Tirubhuwan Bahadur Singh v. Rameshar Bakhsh Singh I.L.R. (1906) All. 727 as in the present case, the reversioners bringing the suit were not in existence when the twelve years limited under Article 129 expired, and reliance has been placed on that fact for the respondents. Their Lordships in their judgment make no reference to the fact that the plaintiffs who were the nearest reversioners at the death of the widow were not the nearest reversioners when the period limited under Article 129 expired, and we do not think their judgment can be treated as proceeding on any such ground. What we understand their Lordships to have decided was that, although the right to sue to set aside the defendants adoption became barred under Article 129 while the Act of 1871 was in force, that fact did not of itself, and without possession, confer title to the suit lands on the defendant, or prevent the plaintiff from suing for them when Act XV of 1877 was in force within the time limited by that Act. Their Lordships seem to have recognized that the defendant had acquired an immunity from a suit by the plaintiff of the kind specified in Article 129 of Act IX of 1871, in other words, that the plaintiff's right to bring such a suit was barred.
13. It may be that the provisions of the Act of 1871 were considered to involve some hardship to persons in the position of the present plaintiffs, and that may have been the reason for altering those provisions by the Act of 1877, but Section 2 of the Act of 1877 expressly saved titles acquired under the repealed Act, and we are of opinion, for the reasons already given, that the title of the heirs of the adopted son and those claiming under them to the lands which are the subject of the appeals was among the titles so saved. Appeals Nos. 206 and 207 of 1908 are allowed and the suit dismissed as against the appellants therein with costs throughout.
14. The fourth defendant and some of the other defendants who are alienees from her have not appealed, but we think the suit against them ought also to be dismissed by us under Order XLI, Rule 33, Civil Procedure Code for the reasons given by Subrahmanya Ayyar, J., in Kulaikada Pillai v. Viswanatha Pillai I.L.R. (1915) Mad. 229 and in accordance with the recent decision in Subbarayalu Naidu v. Papammal (1915) 29 I.C. 579. The point decided in Kandasamy Chetty v. Annamalai Chetty I.L.R. (1915) Mad. 67 does not arise and it is unnecessary to consider that decision now. The decree will be reversed and the suit dismissed against the fourth defendant and all the other defendants claiming under her as alienees including the fifth defendant who has appealed on another point.
15. [Their Lordships in disposing of Appeal No. 10 of 1909, found that the items in dispute originally belonged to the estate of Arunachala and were alienated by his widow Chokkammal in 1855 without any legal necessity, and proceeded on the plea of limitation as follows:]
16. As regards the question of limitation which has been argued in the other appeals in the case, the heirs of the adopted son admittedly did not acquire the title to the suit lands while the Act of 1871 was in force. In these circumstances, we are unable to distinguish this case from Tirubhuwan Bahadur Singh v. Rameshar Bakhsh Singh I.L.R. (1906) All. 727 the most recent decision of their Lordships and following that case, we think the plea of limitation was rightly overruled. The appeal is dismissed with costs.
17. [Their Lordships in disposing of Appeal No. 11 of 1909, found that the property in question did not belong to the estate of Arunachala and allowed the appeal. As regards some of the appellants who died during the pendency of the appeal and whose legal representatives were not brought on the record, their Lordships held as follows:]
18. The twentieth and twenty-second defendants died after the appeal had been preferred and their representatives have not been brought on the record. It has been argued that as the appeal has abated as regards these appellants the decree of the Lower Court cannot be modified as far as their interests are concerned. The grounds of appeal in which the appellants have succeeded are common to all the appellants and we think the terms of Order XLI, Rule 4 of the Code of Civil Procedure are wide enough to cover this case--Chintaman v. Gangabai I.L.R. (1903) Bom. 284--and enable this Court to set aside the decree as regards the whole of the plaintiff's claim and not merely in respect of the interest of those appellants whose appeals have not abated. Any other conclusion would lead to 'incongruity in judicial decisions on the same facts': vide, Dhuttaloor Subbayya v. Paidigantam Subbayya I.L.R. (1907) Mad. 470
19. The appellants in Appeal No. 14 of 1909 are the plaintiffs in Original Suit No. 26 of 1905 on the file of the Court of the Subordinate Judge of Negapatam. Although our decision in Appeals Nos. 206 and 207 of 1908 governs this appeal, we think that as the questions involved have been argued before us, it is desirable that we should give findings on the questions raised. The grounds of appeal relate firstly to the findings of the Subordinate Judge as to the property comprised in the ninth to fourteenth schedules attached to the plaint. Mr. T. Rangachariyar did not press the appeal as far as these items of property are concerned.
20. The second question concerns the rights of the first defendant. She is the widow of Bava Krishnaswami Mudali. He was a reversioner to the estate of the late Arunachala Mudali and stood in the same degree of relationship as the plaintiffs to the last male holder. Under ordinary circumstances, the first defendant would be entitled to one-fourth share of the estate recovered by the reversioners. The case of the plaintiffs--appellants however is that Bava Krishnaswami had severed his connexion with his family by having 'renounced the world and entered the order of religious ascetics known as tambirans.' If. is farther alleged that by this act 'he forfeited all rights of property and all future rights of succession as a member of the secular family to which he belonged.' It has not been disputed in appeal that Bava Krishnaswami did enter the order of Sudra ascetics known as tambirans. It is however clear on the authorities that the texts as to disinheritance applicable to yathi or sanyasi do not apply to a Sudra ascetic unless a usage to this effect is established; Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai I.L.R. (1899) Mad. 302 and Harish Chandra Roy v. Alir Mahmud I.L.R. (1913) Calc. 545. In the Court of first instance an attempt was made to prove that Bava Krishnaswami belonged to a special class of Sudras who may according to some agamas be admitted into the order of sanyasis. This contention was rejected by the Subordinate Judge and has not been advanced before us.
21. The Subordinate Judge has also found against the existence of any usage such as is referred to in the cases cited above. We agree with this finding. The forty-sixth and forty-seventh witnesses for the plaintiffs are both heads of Sudra mutts. The latter is Pandarasannadhi of the Dharmapuram Athinam which Bava Krishnaswami joined. He admitted that he was unable to state positively what the custom is regarding property belonging to a Sudra ascetic prior to his admission to the order. He knew of no case in which a contention had been raised that a tambiran could not succeed to property of his family. It may be noted that Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai I.L.R. (1899) Mad. 302 relates to this institution and that no attempt was made at that time to set up any special custom, Plaintiffs' witness No. 46 was unable to give any opinion without referring to the shastras as to whether a tambiran has rights to family property after becoming a tambiran. This evidence coming from the side of the plaintiffs and from persons holding the position these witnesses do is a strong indication that no custom exists of the kind which the appellants seek to establish. Numerous instances appear in the evidence on both sides of dealings with family property of tambirans which are inconsistent with their having lost their rights in it and with any consciousness on the part of those dealing with them that there was anything unusual in such transactions. In no case do they appear to have been questioned. As far as the evidence before us goes, we have no doubt that the plaintiffs have failed to establish that Sudra ascetics are by custom subject to the same disabilities as sanyasis. The appeal must be dismissed with, costs of the respective respondents.
22. The only question argued in the memorandum of cross objections filed, by the first respondent in this appeal relates to costs. The first defendant has been directed to bear her own costs in the contest with the plaintiffs as to her husband's position. We see no reason to interfere with the discretion the Subordinate Judge has exercised in making this order. The memorandum of cross-objections is dismissed with costs.