1. This is an appeal against an order of the Subordinate Judge of Bhagalpore, dated the 6th June, 1907.
2. The appeal arises out of a suit brought to enforce a promissory-note, said to have been executed by the defendant on the 20th September, 1902, in favour of Babu Saheb Ram and Lachmi Narayan Marwari. The suit on the basis of this note was first instituted by the plaintiff Saheb Ram alone and a decree was obtained ex parte against the defendant. On the application of the defendant the ex parte decree was set aside and the case restored. On the 27th January 1906 the defendant filed a written statement. He denied the genuineness of the promissory-note and urged that the suit was bad by reason of the non-joinder of Lachmi Narain the son of Saheb Ram as a party. Then Lachmi Narain was made a co-plaintiff on the 26th March 1906. After that the defendant contended that the suit by Lachmi Narain, having been brought more than 3 years after the date of the promissory-note, was barred by limitation and as the plaintiff Saheb Ram was incompetent to sue alone, the whole suit must be held to be barred by limitation.
3. The Munsif held that this contention was valid; and he dismissed the suit.
4. An appeal was preferred to the Subordinate Judge, who held that the Munsif was in error in dismissing the suit as barred by limitation. He goes on to say: 'Lachmi Narain is admittedly the adopted son of Saheb Ram. Now, according to the Mitakshara the rights of an adopted son are quite distinct from the rights of a son born of one's own loins. In the former case the right does not accrue except after the death of the adoptive father, while in the other case the right accrues immediately with birth.' Then he holds that the suit was properly brought by Saheb Ram alone as Lachmi Narain had no right to the promissory-note till after the death of Saheb Ram, and that the suit was not barred; and he accordingly remanded the case for enquiry into the merits.
5. The defendant appeals to this Court and urges that the Subordinate Judge's views as to the rights of an adopted son under the Hindu Law are entirely erroneous; that according to the Mitakshara there is no difference between the rights of an adopted son and a natural-born son, and that consequently the Subordinate Judge is wrong in holding that the suit is not barred by limitation.
6. We are constrained to admit that the learned Subordinate Judge is wrong in his view of Hindu Law. It has been laid down by Mr. Mayne in his work On Hindu Law and Usage,' paragraph 343, that 'an adopted son stands in exactly the same position as a natural-born son and has the same right to object to his father's alienations.' Then he goes on to discuss the rights of sons, whether adopted or natural, to self-acquired property; and he points out that self-acquisition ex-vi termini does not belong to the co-heirs. Then, after discussing the various rulings on the point by various Courts, he says: The High Court of Bangal on a full examination of all the native texts said that the apparent conflict between the passages of the Mitakshara is reconciled if the rights of the sons in the self-acquired-property of the father is treated as an imperfect right, incapable of being enforced.' And he winds up by saying that the; Judicial; Committee, on a review of all the texts and rulings, held that the father of an undivided family subject to the Mitakshara Law had full power of disposition over his self acquired immovable property. The rights of natural-born and adopted sons are exactly the same. They have only an incomplete right. The father can dispose absolutely at pleasure, of self-acquired property. Now, that being so, it seems to us to be necessary to remand the case for a finding as to whether the promissory-note was self-acquired property or not. If it was, then Saheb Ram had a right to sue alone on the promissory-note. If it was not, then, no doubt, the right to sue is barred by limitation.
7. The respondent, however, contends that it is unnecessary to remand the case, because the judgment of the Subordinate Judge seems to imply that the promissory-note was, self-acquired property. The learned Subordinate Judge says: 'The evidence of the defendant clearly proves that Saheb Ram alone was the person from whom the defendant used to borrow money, and not from Lachmi Narayan. The promise to pay was made by the defendant to Saheb Ram alone. 'The mere fact of the mention of the names of two persons will not show that both Saheb Ram and Lachmi Narayan jointly made the contract with the defendant and, once admitted that Lachmi Narayan is the adopted son of Saheb Ram, it is impossible to hold that Lachmi Narayan has any interest in the subject-matter. 'Then he says:' The position of Saheb Ram is not the position of a karta of a joint family, as Saheb Ram seems to have been wrongly advised in the lower Court to admit. His position is that of an absolute owner, and I should add that of an exclusive owner of the money covered by the promissory-note. The firm, though in the names of the father and the adopted son, belongs exclusively to the father. The adopted son's name stands with that of the father simply by way of courtesy and for the purpose, I believe, of letting the world at large know that Lachmi Narayan is Saheb Ram's adopted son, or is in some way connected with the estate of Saheb Ram. The real person interested in the money and the real person with whom the defendant made the contract was Saheb Ram, and Saheb Ram alone. Lachmi Narayan has no interest whatever in the promissory note. Saheb Ram is the lender of the money and the money belongs to him exclusively. That being so, Saheb Ram was alone competent to bring the suit.
8. Further, the pleader for the respondent calls attention to the fact that in the defendant's petition for being declared an insolvent, Saheb Ram alone was mentioned as one of the scheduled creditors and not the names of Saheb Ram and Lachmi Narayan; and the scheduled debt is, from the defendant's own showing, a part of the consideration of the promissory-note. These passages in the judgment of the Subordinate Judge, do not, however, seem to us clearly to show that he meant to hold that the property was the self-acquired property of Saheb Ram, and in these circumstances it will be more satisfactory to remand the case to the Subordinate Judge to come to a clear finding on this point. We accordingly remand the case to him to come to such a finding and to dispose of the case in accordance therewith. The Subordinate Judge may allow the parties to adduce fresh evidence, if he thinks it necessary to do so.
9. The costs will abide the result.