1. This is an application to amend the plaint by adding a prayer for possession and to convert the suit into a suit for possession. The suit was filed by the reversioners for a declaration that a certain adoption is invalid and that certain alienations made by the adopted son are also invalid and not binding against them. The Subordinate Judge held that the suit was barred by limitation as it was brought more than six years after the date of the alleged adoption was known to plaintiffs. He did not go into the question of fact whether there was in fact an adoption and whether such an adoption was valid and legal. Pending this appeal the widow died about two or three months ago and the present application is to amend the plaint as we have stated above.
2. It is clear from the decision of the Privy Council in Muhammad Omar Khan v. Muhammad Niazuddin Khan [l912] 39 Cal. 418, and Kalyandappa v. Chan Basappa A.I.R. 1924 P.C. 137, that a suit for recovery of possession would not be barred even though a suit for a bare declaration that an adoption was invalid or never in fact took place might be barred under Article 118, Lim. Act. The question, therefore, is whether we should allow the amendment instead of driving the parties to a separate suit, because even assuming that we confirm the decree on the ground that the prayer for a declaration is barred, the appellants can still file a regular suit and will be in time. Having regard to the fact that the suit was filed as long ago as 1922, and that the question relating to the adoption has yet to be decided, we think it will be in the interests of justice to allow the amendment and to send the case back to the lower Court with directions to try the issues of fact raised by the amendment as, in our opinion, even assuming that the Judge was right in holding that a claim for a bare declaration is barred by limitation, the death of the widow has so altered the circumstances that the Court would have to go into the question, as to the validity of the adoption and the validity of the alienations impeached in a claim for possession. In this view,, it is unnecessary to decide whether the claim for a bare declaration is barred or not. Even if it is barred, a suit for possession would lie and it would not be barred and in a suit for possession the question as to the factum and validity of the adoption will have to be gone into. In these circumstances, we allow the plaint to be amended as prayed. We set aside the decree dismissing the suit and direct that on the amendment of the plaint the necessary issues be raised and the suit disposed of on the amended plaint. The lower Court will pass necessary orders for filing additional written statements and frame the necessary issues thereon. The petitioner will pay the additional court-fee in the lower Court within the time to be fixed by the learned Judge.
3. As regards costs, we think the proper order to make is to direct the appellants to pay the costs of defendant 6 in the lower Court which have been taxed at Rs. 80-1-0. As regards the costs of the appeal, they will abide and follow the result.