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Kodali Bapayya Vs. Kodali Akamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.255
AppellantKodali Bapayya
RespondentKodali Akamma and ors.
Cases ReferredGovinda Pillai v. Thayammal
Excerpt:
limitation act (ix of 1908), schedule i, articles 118, 120, 125 - alienation by hindu, widow and her adopted son--reversioner, suit by, to declare alienation invalid--bar of right to declare adoption invalid--suit, maintainability of--declaration--discretion of court--specific relief act (i of 1877), section 42, illus. (d), (e) and (f)--reversionary right, nature of. - .....case raises the question whether a reversioner, who has allowed his right of suit to declare an alleged adoption invalid to become barred under article 118 of the limitation act, is entitled, when subsequently the alleged adopted son in conjunction with a widow of the last male owner executes a mortgage of the estate, to sue the mortgagor and mortgagee for a declaration that the mortgage is not binding on the reversioner. the right to sue for a merely declaratory decree is now regulated by section 42 of the specific relief act, which allows of such a suit by any one entitled to any legal character or to any right as to any property against any one denying or interested to deny such legal character or right of property in cases where consequential relief is not obtainable, and leaves.....
Judgment:

John Wallis, C.J.

1. This case raises the question whether a reversioner, who has allowed his right of suit to declare an alleged adoption invalid to become barred under Article 118 of the Limitation Act, is entitled, when subsequently the alleged adopted son in conjunction with a widow of the last male owner executes a mortgage of the estate, to sue the mortgagor and mortgagee for a declaration that the mortgage is not binding on the reversioner. The right to sue for a merely declaratory decree is now regulated by Section 42 of the Specific Relief Act, which allows of such a suit by any one entitled to any legal character or to any right as to any property against any one denying or interested to deny such legal character or right of property in cases where consequential relief is not obtainable, and leaves it in the discretion of the Court whether the decree should be passed or not. The section must be construed liberally and illustrations (e) and (f) show that it includes suits by the presumptive reversioner for a declaration that alienations by the widow are not binding on the reversioner and also suits to declare an adoption invalid. In the suit to declare the widow's alienation invalid, it would seem to be the reversioner's right to the property in question on the death of the widow rather than his character of presumptive reversioner that, is called in question by the alienation and brings the case within the section Although in the language of English Law the reversioner has a mere expectancy, which under Section 6 of the Transfer of Property Act is a right incapable of transfer, being a mere spes successions, as it is said, yet it must be considered a right to property within the meaning of the section; and the observations pointing the other way in Sarnarendra Chandra Deh Barman Barathdkw v. Btrendra Eishore Deb Barman 8 C.L.J. 1 : 12 C.W.N. 777, appear to me to go too far and to be inconsistent with the section as interpreted by the illustrations thereto. The interest of the next reversioner is undoubtedly of a substantial character, and it must also be borne in mind that in these suits it is now settled that he represents the whole body of reversioners. Similarly a suit to declare the adoption invalid may also be considered to involve the plaintiff's presumptive right to succeed to the property, and also what is much the same thing, his legal character as heir presumptive to the last male owner. These suits resemble old English bills quia timet or suits in equity for the perpetuation of testimony, but they are subject to two restrictions--they must be brought within the periods prescribed by the Limitation Act, and the Court in the exercise of its discretion and following a long line of precedents will not ordinarily make such a declaration in favour of any one but the next reversioner, though it may do so in favour of a more remote reversioner when the occasion calls for it. Govinda Pillai v. Thayammal 14 M.L.J. 209.

2. The reason for restricting the period within which such suits can be brought would appear to be to afford an inducement to bring the suit when the memory of the events in question is still fresh and reliable evidence is available, but if the reversioner neglects to sue for a declaration within the statutory period, he does not, it is now well-settled, lose his right to question the alienation or adoption on the death of the widow of the last male owner by instituting a suit for possession to dispute the alienation or adoption on such evidence as may then be available. The question now before the Court must be dealt with in the light of these considerations.

3. The question whether the present plaintiff is entitled to sue to question the widow's alienation itself depends, according to the ordinary practice of the Court, on the question whether he is the nearest reversioner, which again involves the question of the alleged adoption, but it may be disregarded as the defendants are willing to submit to a declaration that the alienation by the widow confers no title on the alienee and we may, therefore, confine ourselves to the claim as regards the alleged adoption. The first prayer in the plaint is for a declaration that the adoption is invalid and this is ' clearly barred as against the widow and the boy under Article 118. The plaintiff, however, claims that the alienation by the alleged adopted son gave him a fresh cause of action against the latter and against the alienee. As regards the adopted son, this alienation does not involve any further denial of the plaintiff's legal character or right of property than was involved in setting up the adoption in the first place, and' the plaintiff must, in my opinion, be held to be barred by law from claiming a declaration against him after the time prescribed under Article 118 has elapsed. It might, of coarse, have been provided that the starting point of limitation in declaratory suits of this nature should be the time when the person claiming to be adopted took some steps in that character, but that is not the starting point in the Article, and I do not see my way to applying it. It may, however, be contended in the view I have taken that the action of the mortgagee in taking the mortgage from the alleged adopted son involves a denial of the next reversioner's title by the mortgagee and gives rise to a fresh cause of action, at any rate, as against him. This contention appears to ma to be well-founded, but the remedy provided by Section 42 is discretionary, and so long as the Court is debarred by law from making a declaration as to the adoption which would be binding on the adopted son himself, it would, I think, be well advised in refusing to make such a declaration against or in favour of the mortgagee alone, and to leave the question of the validity of adoption to be gone into once and for all on the death of the widow when the plaintiff's right to sue for possession as next reversioner accrues.

4. The question is novel and difficult, but on the whole I think this is the best solution of the difficulty. I would, therefore, dismiss the appeal with costs.

5. Coutts Trotter, J.

6. I regret to say that I have found myself unable to come to the same conclusion as my Lord; and as the matter is one with which I am necessarily unfamiliar, involving as it does questions of Hindu Law and procedure under the Indian Statutes, I express my opinion with great diffidence. But I have formed a decided view in favour of the appellant and he is entitled to the benefit of my reasons for it.

7. The plaintiff is the nephew and reversionary heir of one Kodali Ramayya, who died some 25 years ago. The first defendant is Ramayya's widow. The second defendant is a person whom the widow purported to adopt to her deceased husband, and the third defendant is the mortgagee of certain of the properties left by Ramayya under a mortgage-deed executed jointly by the first and second defendants. The only question that has been discussed before us is whether the plaintiff's suit is barred by limitation. The mortgage-deed in favour of the third defendant was executed on the 30th June 1910 and the suit was started on the 30th of August 1911. But the adoption of the 2nd defendant is alleged to have taken place on the 17th March 1894, and it is not disputed that if the period of limitation against the plaintiff is to be taken to run from the time when the fact that an adoption was alleged became known to him or his father, who was the nearest reversioner to Ramayya before him, this suit is barred by limitation. The plaintiff as a reversioner ' cannot, of course, sue for possession of the properties, nor can the facts of the present suit in any way affect any right he may have to bring a suit for possession of the properties if he should survive the first defendant. His cause of action, if any, is admittedly only for a declaratory decree. In his plaint his prayer is for two declarations: (a) that the 2nd defendant is not the adopted son of the late Ramayya, (b) that the mortgage-deed of the 30th June 1910 does not in any way affect the reversionary right of the plaintiff and others after the death of the first defendant. His cause of action for declaration (a) is, as 1 have said, admittedly statute-barred; but while ready to abandon that, he contends that it is nevertheless open to him to obtain declaration (b). Now the only ground on which he can ask the Court to grant him declaration (b) is on the footing that the purported adoption of the 2nd defendant was invalid. The respondents contend, and the Subordinate Judge has upheld the contention, that the distinction between the two declarations is illusory and that the only way in which the plaintiff can clothe his cause of action in legal language is by asking for declaration (a). To this the plaintiff replies that so to hold would be to put upon him the necessity of upsetting the alleged adoption at a time when no actual act of waste is committed, under pain of being compelled to sit by when for the first time the alleged adoptee takes steps adverse to his reversionary interest. He contends that he has of remedy while the adoption is a mere possibility of danger to him, and a fresh and separate remedy when the danger actually takes concrete form and the widow seeks to use the adoption as means to alienate the estate.

8. The matter is really one of first impression and though various cases were cited to us, none of them, in my opinion, are of any real assistance. The case really tarns on the true construction of Section 42 of the Specific Relief Act which is at follows:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or 'interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled.'

9. Illustration (f) to the section deals with the case of a Hindu widow purporting to adopt a son to her deceased husband and gives the reversioner the right to sue for a declaration that the adoption is invalid. It will be observed that there is here no question of any alienation by the widow-but only of an adoption without any tangible dealing with the property. By illustrations (d) and (e) rights are given to the reversioner to bring a declaratory suit where a widow purports' to alienate the whole title to the property in which she has merely a life-interest, and the right is given to sue not only the widow but the alienee. It, therefore, follows that as against the alienee a cause of action must arise for the first time upon alienation being made. It is suggested that the cause of action is limited to a declaration that the alienee only takes the widow's life-interest and not the whole estate. This seems to me to be fallacious. I do not think it is open to the alienee to limit the ca,use of action against himself by reason of matters which have taken place between the reversioner, the widow and the alleged adoptee, to which he was no party. I think it is open to the plaintiff to show that the alienation is wholly bad as against the alienee and to show it by proving that the alleged adoption was invalid. If I am right in holding that this cause of action exists against the alienee I think it is only logical to hold that it is also available against the alienors.

10. This, in my view, is the proper construction of the Statute, and I should be reluctant to be driven to any other construction because I think it would work a great hardship upon the reversioner. I think a reversioner ought to be entitled to keep quiescent until there is a definite and material invasion of his reversionary rights and I do not think that the Legislature can have intended to force a reversioner into litigation in consequence of an adoption which may do him no harm, under pain of finding himself time-barred when a definite act of waste is committed against the estate.

11. The learned Subordinate Judge found all the other issues in the case in favour of the plaintiff and the respondent does not challenge those findings. In my opinion the appeal should be allowed, and the plaintiff is entitled to a decree that the mortgage-deed of the 30th June 1910 is invalid, except in so far as it purports to hypothecate the life-interest of the first defendant and in no way affects the rights of the reversioner after the death of the first defendant.

12. In the result the appeal is dismissed with costs.


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