1. The suit, out of which this appeal arises, was brought by the plaintiff-respondent to recover possession and mesne profits of certain properties, seven in number, namely, two revenue-paying estates (in one of which only an 8 annas share is claimed), two dwelling houses, a temple and a garden, and a tank. The material allegations on which the plaintiff bases his suit are shortly these: That the properties in dispute originally belonged to Kumar Ram Chunder, the adopted son of Rajah Udmanta Singh, who was the brother of Rajah Hanumant Singh; that the plaintiff was the great grandson by adoption of the said Rajah Hanumant Singh, having been duly adopted on the 24th of August 1866 by the widow of Rajah Kirti Chand, grandson of Rajah Hanumant Singh; that Kumar Ram Chunder, having dedicated properties Nos. 1 and 2 of the schedule to the pLalnt (that is the two revenue-paying estates) to the worship of a certain idol, and having appointed Rani Annapurna, widow of Rajah Udmanta Singh, to be the shebait, died, leaving him surviving his widow Rani Ananda Moye and the said Rani Annapurna; that Rani Annapurna purported to make a gift of a 2 annas share of property No. 2 in favour of the defendant, who claims to be her sister's adopted son; that by her last will and testament, dated the 6th July 1877, Rani Annapurna purported to dedicate property No. 1, and the remaining six annas of property No. 2, to certain idols, and to appoint Rani Ananda Moye as shebait; that on the death of Rani Annapurna, Rani Ananda Moye obtained probate of the said will and remained in possession of the properties in dispute; that on the death of Rani Ananda Moye in September 1883, the defendant and the Court of Wards, on behalf of the plaintiff who was then a minor, made separate applications for letters of administration to the estate, and the application of the defendant was granted, while, owing to the neglect of the manager under the Court of Wards to adduce evidence, the application on behalf of the plaintiff was disallowed; that the defendant has since then grad(sic)illy taken possession of the properties in dispute, and has been misappropriating the profits of the endowed properties; and that according to the Hindu law of the Benares School, which governs the family, the plaintiff, as the reversionary heir to Kumar Ram Chunder after the death of his widow Rani Ananda Moye, is entitled to the properties in dispute. And the plaintiff seeks to recover possession of the said properties as the heir to Kumar Ram Chunder. And he makes an alternative prayer that if it be held that the properties Nos. 1 and 2 were the absolute property of Rani Annapurna, he may be awarded possession of property No. 1 and of a six annas of property No 2 as heir of the said Rani and as shebait of the idols to whom she dedicated those properties.
2. The defendant pleaded limitation and res judicata in bar of the suit, denied the adoption of the plaintiff and his title as heir to Kumar Ram Chunder and to Rani Annapurna, and alleged that the properties in dispute were the stridhana or absolute property of Rani Annapurna, and that the defendant as her sister's adopted son was entitled as her heir to all of them except No. 7, which had been dedicated by her to public use. He also denied the charge of misappropriation of the profits of the endowed properties. There were certain other points raised in the defence which are not necessary to be considered for the purposes of this appeal.
3. Upon these pleadings several issues were framed in the Court below; and that Court has held that the suit is not barred by limitation or by the principle of res judicata; that the plaintiff' is the validly adopted son of Rajah Kirti Chand, and the defendant the validly adopted son of Annapurna's sister; that the plaintiff is the heir of Kumar Ram Chunder and of Rani Annapurna in preference to the defendant; that the defendant has committed waste of the income of the endowed property; that the properties Nos. 1, 2 and 3 belonged absolutely to Annapurna, who made a gift of 2 annas of No. 2 to the defendant and dedicated No. 1 and the remaining 6 annas of No. 2 to the idols Lakshminarayan and Radhamohun; that the remaining properties belonged to Kumar Ram Chunder; and that the plaintiff had no cause of action against the defendant as regards property No. 7. And in accordance with these findings, the lower Court has given the plaintiff a decree for possession of properties Nos. 1 and 3 and a 6 annas share of property No, 2 as shebait of Thakurs Lakshminarayan and Radhamohun, and for possession of the remaining properties in suit except a 2 annas share of property No. 2 in his own right, the claim for an account having been abandoned.
4. Against this decree the defendant has preferred this appeal, and the plaintiff has filed a cross appeal.
5. At the hearing, the cross-appeal was not pressed. In the appeal of the defendant, the only grounds pressed are, first, that the Court below should have held that the whole suit was barred by limitation under Article 119 of Schedule II of the Limitation Act; second, that the Court below should have held that the suit, so far as the plaintiff sought to oust the defendant from the office of, shebait and to recover possession of the endowed properties as shebait, was barred by limitation under Article 120 of Schedule II of the Limitation Act; third that the Court below should I we held that the suit, so far as the plaintiff seeks to recover possession of properties other than those of Rani Annapurna, was barred by limitation under Article 144 of the said Schedule; fourth, that the Court below should have held that the defendant was the heir to the stridhana of Rani Annapurna in preference to the plaintiff; fifth, that the Court below should have held that the charge of waste and misappropriation of the income of the endowed property was not established against the defendant, and that the plaintiff was not entitled to oust the defendant from the office of shebait; and, sixth, that the Court below should have held that the defendant had acquired a valid title to property No. 6 under his purchase at a sale in execution of decree.
6. We shall consider these grounds in the order in which they have been stated above. In support of the first ground, the learned Vakil for the appellant argued that, as the plaintiff could not, in any view of the case, succeed without establishing the validity of his adoption, and as a suit to obtain a declaration that his adoption was valid was barred under Article 119 of schedule II of the Limitation Act by reason of the time allowed by that article having expired, the whole suit must be held to be barred by limitation, and he relied upon the cases of Jagadamba Chaodhrani v. Dakhina Mohan Roy Ohaodhri (1886) I.L.R. 13 Cal. 308 Mohesh Narain Munshi v. Taruck Nath Moitra (1892) I.L.R. 20 Cal. 487 and Parvathi v. Saminatha (1896) I.L.R. 20 Mad. 40. On the other hand, it was contended for the respondent that Article 119 applied only to a suit to obtain a declaration that an adoption was valid, and that it had no application to a suit like the present for possession of immoveable property, and in support of this contention the case of Fannyama v. Manjaya, (1895) I.L.R. 2 Bom. 159 and the cases therein cited were referred to.
7. After giving our best consideration to the point, we come to the conclusion that the contention of the appellant is not correct.
8. If Article 119 applied to this suit it would be barred, assuming that the rights of the plaintiff', as the adopted son of Rajah Kirti Chand, were interfered with by the order of the High Court dated the 11th September 1885, granting the defendant's application for letters of administration to the estate of Rani Annapurna, and refusing that of the plaintiff, as the present suit was brought more than six years after that date, and more than three years after the plaintiff attained majority. But we do not think that Article 119 applies to a suit like the present, which is brought for recovery of possession of immoveable property, though the plaintiff has to establish the validity of his adoption as the basis of his title. That article, as its language shows, applies only to a suit to obtain a declaration that an adoption is valid. The view contended for by the learned Vakil for the appellant is not only opposed to the pLaln language of the article in question, but would lead to obvious anomaly and hardship. Thus, while a son claiming the immoveable property of his father from a person who denies his legitimacy has twelve years within which to bring his suit, an adopted son making a similar claim against a person who denies the validity of the adoption would in that view have only six years allowed to him. Again, an adopted son claiming by inheritance the immoveable property of a collateral kinsman by adoption years after his adoption took place, would in that view have only six years from the time the succession opens within which to bring his suit, whereas if he had been a blood relation of his deceased kinsman, he would have had the ordinary Period of twelve years. We do not think it reasonable to suppose that the Legislature could have intended this.
9. It was argued by the learned Vakil for the appellant that his view was supported by the cases he cited. Two of these being decisions of the Privy Council, if they are in point, we are bound to follow them. But they were both cases in which the contention was that the suit was barred by limitation because it was too late for the plaintiff 'to set aside' the adoption of the defendant, or, in other words, to displace the title by adoption under which the defendant claimed to hold the immoveable property in dispute; whereas the contention in the present case is, that the suit is barred by limitation, because it is too late for the plaintiff to 'establash' his adoption, or, in other words, to have it declared that his title by ad(sic)ption under which he seeks to recover the immoveable property in dispute, is valid. The provision of law relied upon in the two cases cited was that portion, of Article 129 of Act IX of 1871, which corresponds to Article 118 of Act XV of 1877, and not the portion corresponding to Article 119, upon which the present appellant's contention rests. Though these two articles of the Present Act into which Article 129 of the former Act has been broken up, relate to cognate matters, and though the two contentions mentioned above are in some respects analogous, it is by no means clear that precisely the same considerations apply to both. The reasons which led their Lordships of the Privy Council in Jagadamba Chaodhrani v. Dakhina Mohun Boy (1886) L L. R. 13 Cal. 308 to conclude that the expression 'suit to set aside an adoption' includes a suit for possession of land after displacing a title by adoption, as well as a suit for a declaration that an adoption was invalid, do not warrant the con' elusion that the expression suit to establish an adoption' includes also a suit for possession of immoveable property upon a title by adoption, when the property claimed is, as it is in this case, that of a collateral relation by adoption.
10. Moreover, both the cases referred to were cases governed by the old law (Act IX of 1871), the language of the corresponding provision of which (Article 129,) was very different. In the earlier of the two cases, Jagadamba Chaodhrani v. Dakhina Mohun Ron (1886) I.L.R. 13 Cal. 308 which was a suit by a reversioner after the death of the widows of the last full owner, to recover possession of immoveable property from the defendant who was holding it as his adopted son, their Lordships observe: 'It thus appears that the expression 'set aside an adoption' is, and has been, for many years applied in the ordinary language of Indian lawyers to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature. It is worth observing that in the Limitation Act of 1877, which superseded the Act now under discussion, the language is changed. Article 128 '(evidently a misprint for 118) 'of Act XV of 1877, which corresponds to Article 129 of 1871, so far Daas regards setting aside adoptions, speaks of suits 'to obtain a declaration that Pr(sic)an alleged adoption is invalid or never in fact took place,' and assigns a Indifferent starling point to the time that is to run against it. Whether the alteration of language denotes a change of policy, or how much change of law pLalt affects, are questions not now before their Lordships. Nor do they think that any guidance in the construction of the earlier Act is to be gained from the later one, except that we may fairly infer that the Legislature considered the expression suit to set aside an adoption' to be one of a loose kind, and that more precision was desirable.
11. 'If then the expression is not such as to denote solely, or even to denote accurately, a suit confined to a declaration that an alleged adoption is invalid in law or never took place in face, is there anything in the scope or structure of the Act to prevent us from giving to it the ordinary sense in which it is used, though it may be loosely by professional men?' And this question is answered in the negative. This shows that, though their Lordships did not decide what the effect of the change in the law was, they decided that a suit for possession which could succeed only if a title by an alleged adoption was displaced, was governed by Article 129 of the earlier Act, because the loose expression 'suit to set aside an adoption' used in that article, applied indiscriminately to suits for possession of land and to suits of a declaratory nature, and did not denote solely or even accurately a suit of the latter description. Can the same thing be said of Articles 118 and 119 of the present Act, which taken together correspond to Article 129 of the Act of 1871? Evidently not. The language is altered and made more precise so as to apply only to suits of a declaratory nature, and the time is reduced from twelve years (which is the period generally allowed in the enactments for suits for possession of immoveable property) to six years, a much shorter period. To our minds their Lordships' observations quoted above go to support the view taken of Article 119 of the present Limitation Act in the argument for the respondent rather than that taken on the other side.
12. The learned Vakil for the appellant argued that the next case cited, Mohesh Narain Munshi v. Taruck Nath Moitra (1892) I.L.R. 20 Cal. 487 went clearly to support the View taken by him of the meaning and effect of Article 119 of the Act of 1877; and the passage in the judgment most strongly relied upon is the one in which their Lordships say: 'It was suggested that the Act of 1871, having been superseded by the Act of 1877, the question of limitation should be determined with reference to the provisions of the later statute, in which the language used is somewhat different, the suit there referred to as necessary to save the limitation being described as one 'to obtain a declaration that an alleged adoption is invalid or never in facttook place.' It seems to be more than doubtful whether if these were the words of the statute applicable to the case, the plaintiff would thereby take any advantage.' We do not think that the concluding sentence in the above passage, which is only a dictum in guarded language and not a decided opinion of their Lordships, hears out the appellant's contention that the change in language adopted in Articles 118 and 119 of Act XV of 1877 has not effected any change in the law. 'What their Lordships considered to be more than doubtful even if the language of the old law (Article 129 of Act IX of 1871) were the same as that of the present law (Article 118 of Act XV of 1877) was not whether that would make any change in the law, but whether the plaintiff would take any advantage, that is, whether the plaintiff in the case before their Lordships would succeed under the circumstances of the case (quoted, in 27 Cal. 2-55).' That this is the meaning of the above passage appears to us to be clear, not only from the language used, hut also from the fact that the High Court held that the suit was barred by adverse possession, and their Lordships in an earlier part of the judgment say that they decide the question upon the construction of Article 129 of Act IX of 1871 without expressing any dissent from the view of the High Court that the suit was barred by adverse possession.
13. The case of Parvathi v. Saminatha (1896) I.L.R. 20 Mad. 40 no doubt is in favour of the appellant. But as against that case there has been a strong current of decisions the other way. See Lala Parbhu Lal v. Mylne (1887) I.L.R. 14 Cal. 401 Basdeo v. Gopal (1886) I.L.R. 8 All 644 Ganga Sahai, v. Lakhraj Singh (1886) I. L. B. 9 All. 253 Natthu Singh v. Gulab Singh (1895) I. L. B 17 All 167, Podajiran v. Ramrav (188) I.L.R. 13 Bom. 160 Fannyama v. Manjaya (1895) I. L. B. 21 Bom. 159 and Hari Lal v. Bat Bewa (1895) I. L. B. 21 Bom. 376.
For the reasons given above, and upon the authority of the cases we have referred to, we must respectfully dissent from the case of Parvathi v. Saminatha (1896) I.L.R. 20 Mad. 40 and hold that Article 119 of Schedule II of Act XV of 1877 applies only to a suit (sic) a declaratory decree, and that the present suit, which is one for possessions of immoveable property, is not barred under that article.
14. The second ground of appeal, namely, that the suit, so far as the plaintiff seeks to oust the defendant from the once of shebait and to recover possession of the endowed properties, should have been held as barred under Article 120 of Schedule II of the Limitation Act, is based upon the case of Jagannath Daas v. Bir Bhadra Das (1892) I.L.R. 9 Cal. 776. But that case is quite distinguishable from the present. Wh(sic) ( was held there was that a suit to oust a shebait from his office which is not hereditary, and the appointment to which is made by nomination, is governed b(sic) the six years' rule of limitation under Article 120. In the present case the la(sic))ri shebait Rani Ananda Moye, not having appointed her successor as provided in the will of the founder, Rani Annapurna (Ex. B), and there being no other provisions for the appointment of shebait, the management of the endowment must revert to the heirs of the founder, Bee Jai Bansi Kunwar v. Chattardhari Singh (1870) 5 B. L. R. 181; 13 W. R. 396 Gossamee Sree Greedharreeje v. Rumanlolljee Gossamee (1889) L. R. 16 I. A. 139; I.L.R. 17 Cal. 3 and the office of shebait henceforth must be hereditary in the founder's family. The limitation applicable to a suit for possession of such an office is twelve years under Article 124, and not six years under Article 120, and the suit being brought within twelve years from the date when the defendant took up the management of the endowed properties, is well within time.
15. In support of the third ground, namely, that the suit, so far as it is one for possession of properties other than those of Rani Annapurna, should have been held as barred under Article 144 of Schedule II of Act XV of 1877, the learned Vakil for the appellant argued that as Kumar Ram Chunder died in 1859, it was possible for his widow Rani Ananda Moye to have been, barred by limitation under Act XIV of 1859, before Act IX of 1871, which superseded that Act and allowed the reversioners to reckon limitation from the date of the widow's death, came into operation, that is, before April 1873; and if the widow was so barred, the reversioner was also barred under the old law (see Nobin Chunder Chuckerbutty v. Gurupersad Dots (1868) B. L. R. Sup. Vol. 1008; 9 W. R. 505 and his right, being once barred could not be revived by Act IX of 1871 or Act XV of 1877 as is expressly provided by Section 2 of the latter Act. The view of the law upon which this argument proceeds is correct, see Drobomoyi Gupta v. Davis (1887) I.L.R. 14 Cal. 323 Shamlall Mitra v. Amarendro Nath Base (1896) I.L.R. 23 Cal. 460 but the argument assumes that Rani Ananda Moye's possession within twelve years before April 1873 is not proved-an assumption which is disproved by the admission of the defendant in paragraph 10 of his written statement. No doubt the admission is qualified; but except as heir to her husband we fail to see how Rani Ananda Moye could have been in possession of these properties which belonged to her husband, and had not been dedicated to the idols. That being so, the third ground before us must fail.
16. Upon the fourth ground, namely, that the defendant ought to have been held to be the heir of Rani Annapurna's stridhana in preference to the plaintiff, the argument on behalf of the appellant is two-fold. In the first place, it is argued that if Annapurna had been married in one of the disapproved forms, the defendant as her sister's son was unquestionably her heir in preference to the plaintiff, her husband's kinsman; and as the burden of proof lay on the plaintiff, and he had adduced no evidence on the point, his claim should be dismissed; and in the second place it is contended that even if the marriage of Annapurna be assumed to have (sic)en in an approved form, still the defendant, as her sister's adopted son, was her heir in preference to the plaintiff. We shall consider these two branches of the argument separately.
17. Upon the first branch of the argument, it is suggested that the marriage of Rani Annapurna took place in the disapproved form called Asura, allowable for the Vaisya or mercantile caste to which the parties belong. But though the parties may belong to the Vaisya caste, as stated by one of the plaintiff's witnesses, Mohant Krishnanand Ram Goswami, and though some consider the Asura, form of marriage allowed for that caste, Manu is strong in his condemnation of it, and he prohibits it altogether: see Manu III, 25 51, IX, 98. As Rajah Udmanta Singh, the husband of Rani Annapurna, belonged to a highly respectable Hindu family, as is shown by the fact of his having the title of Rajah, it is improbable that he should have contracted a marriage in the Asura form. It would be unreasonable, therefore, to assume, in the absence of evidence (and it was admitted in the argument that there was no evidence on the point) that the marriage of Rani Annapurna took place in the Asura or in any other disapproved form. In Thakoor Deyhee v. Rai Baluk Bam (1866) 11 Moo. I. A. 139 in which a similar question arose, their Lordships of the Privy Council, in the absence of evidence to the contrary, held that the marriage in dispute was according to one of the four approved forms. And the same view was taken by the Bombay High Court in the recent case of Gojabai v. Shahajirao Maloji Raye Bhosle (1892) I.L.R. Bom. 114 in which Telang, J., observed: 'It must be assumed, as in the absence of all evidence it was rightly assumed by the Subordinate Judge, that Anundbai's marriage was in one of the approved forms.'
18. The first branch failing, it becomes necessary to consider the second branch of the argument upon the fourth ground, namely, that if Annapurna was married in one of the four approved forms, even then the defendant was the heir to her stridhana in preference to the plaintiff. The parties are admittedly governed by the Hindu law of the Benares School; and there can be no question that the Mitakshara is the highest authority in that school; and the Mitakshara in chapter II, Section XI, paragraph 11, says: 'Of a woman dying without issue as before stated and who had become a wife by any of the four modes of marriage denominated brahma, daiva, arsha and prajapatya, the (whole) property as before described belongs in the first place to her husband. On failure of him it goes to his nearest kinsman (sapinda). But in the other forms of marriage called asura, gandharva, rakshasa and paisacha, the property of a childless woman goes to her parents, that is to her father and mother. The succession devolves first (and the reason has been before explained on the mother who is virtually exhibited (first) in the elliptical phrase pitrigami, implying that it goes (gachhati) to both parents (pitarau) that is to the mother and to the father. On failure of them, their nearest kinsman takes the succession.' This clearly shows that if the marriage of Annapurna was, as in the absence of evidence we must assume it was, in one of the four approved forms, the plaintiff, who is the nearest kinsman of her husband now living, and not the defendant who is her father's kinsman, is her heir.
19. But it is argued by Babu Golap Chunder Sarkar for the appellant that, though the Mitakshara is clear on the point, a doubt arises as to the correctness of the rule Laid down in the passage quoted above, by reason of that rule being in conflict with a text of Brihaspati quoted in the Viramitrodaya (G. C. Sarkar's Translation, page 243), a text of a sage which is recognised as an authority; and there being a doubt thus raised, the Viramitrodaya, which is a work of authority in the Benares School, should, as observed by the Privy Council in Gridhari Lal Boy v. The Government of Bengal (1868) I. B. L. R. P. C. 44: 10 W. R. P. C. 31 be followed, and following the Viramitrodaya, the defendant should be held to be the heir of Annapurna's stridhana in preference to the plaintiff. In support of this argument the case of Thakoor Deyhee v. Rai Baluk Bam (1866) 11 Moo. I. A. 139 is cited as furnishing an instance in which a text of the sage, Katyayana, not referred to in the Mitakshara, was followed upon a point on which the Mitakshara lays down a different rule.
20. We are unable to accept this argument as sound. What their Lordships of the Privy Council said in the case of Gridhari Ball Boy v. The Government of Bengal (1868) 1 B. L. E. P. C. 44: 10 W. R. P. C. 31 was that, when the text of the Mitakshara was doubtful upon any point, the Viramitrodaya as a work of authority in the Benares School might be referred to for the purpose of removing the doubt. But their Lordships do not say, and there is neither reason nor authority for saying, that where the Mitakshara is as it is here, clear on the point, the text of any sage, which is in conflict with the rule therein Laid down, can be referred to for the purpose of creating a doubt, as the learned Vakil for the appellant contends. To allow such a course would be to upset altogether the Hindu Law of the Benares School, and indeed of every other school. The Mitakshara is the guiding authority of the Benares School, and we cannot, in administering the law of that (sic)uool, question the correctness of that authority because of its conflict with the text of some ancient sage. Nor is the case of Thakoor Deyhee v. Rai Baluk Ram (1866) 11 Moo. I. A. 139 cited for the appellant at all a case in point. There Katyayana's well known text was referred to upon the question as to the widow's right to alienate the property inherited by her from her husband, because upon that question the Mitakshara is silent, or at best doubtful. We should add that upon the question of succession to the stridhana of a childless woman, the Viramitrodaya, following the text of Brihaspati referred to above, places in the line of heirs certain kinsmen on the father's side (the sister's son being one of them) before several near relations of the husband, and thus gives an order altogether inconsistent with that given in the Mitakshara. The view we take is in accordance with the opinion of the Bombay High Court in Gojabai v. Shahajirav Malaji Raye Bhosle (1892) I.L.R. 17 Bom. 114.
21. We must in this case follow the Mitakshara, and hold that the plaintiff is the heir to the property of Rani Annapurna in preference to the defendant.
22. Coming now to the fifth ground, namely, that the charges of waste and misappropriation of the endowed property have not been established, and that the plaintiff is not entitled to oust the defendant from the office of shebait, we are of opinion that the first part of it is immaterial, even if it be well founded, and the second part is altogether untenable.
23. Granting that the charges of waste and misappropriation of endowed property are not established against the defendant, that does not materially affect the result. The late shebait, who was authorized to appoint her successor, having omitted to do so, and there being no other provision on the point in the deed of dedication, the management, as has been said above, reverts to the heirs of the founder, see Jai Bansi Kunwar v. Chattardhari Singh (1870) 5 B. L. R. 181: 13 W. R. 396 and Gossamee Sree Greedhareejee v. Rumanlolljee Gossamee (1889) L. R. 16 I. A. 137: I.L.R. 17 Cal. 3. The plaintiff as the next heir to Rani Annapurna is therefore entitled to be appointed shebait.
24. It was contended for the appellant that the grant of letters of administration to the defendant by the order of the High Court, dated the 11th of September 1885, is a bar to the appointment of the plaintiff as shebait, so long as the grant of administration is not revoked. We do not consider this contention to be of much force. The order granting letters of administration to the defendant is, under Section 41 of the Evidence Act and Section 59 of the Probate and Administration Act, conclusive proof of the representative title of the defendant against all debtors of the deceased, Rani Annapurna, and all persons holding property which belonged to the deceased. But the object of the proceedings under the Probate and Administration Act is to determine only the question of representation of the deceased for the purpose of administering the estate, and not for the purpose of determining any question of inheritance or of the right to be appointed as shebait. A reference to Sections 2, 3, 4, 6 and 37 of the Probate and Administration Act, which authorize the grant of letters of administration to persons who may not be the heirs of the deceased, well bears out the view we take, which also receives support from the observations in the judgment of this Court in Arunmoyi Dasi v. Mohendra Nath Wadadar (1893) I.L.R. 20 Cal. 888. The order granting letters of administration to the defendant is therefore no bar to this suit, the decree in which will surpersede the grant.
25. The sixth ground, namely, that the defendant has acquired a valid title to property No. 6 by his purchase at a sale in, execution of a decree, need not detain us long. The Court. (sic)w on this point says: 'Now it has been decided before, and defendant has himself admitted that Sri Narain Singh was not validly adopted by Rani Anandmoyi, so the purchase by defendant of his son's right cannot avail him.' This view is, we think, quite correct, and no reason has been shown to induce us to dissent from it.
26. The grounds urged before us, therefore, all fail, and the appeal must consequently be dismissed with costs. The cross-appeal not being pressed, must also be dismissed with costs.
27. The above is the joint judgment of Mr. Justice Banerjee and myself. I only wish to add one word on the second point. I entertain some doubt whether the defendant can, upon this particular point, successfully set up the Statute of Limitation as against the present plaintiff. The defendant was never appointed, and never was, shebait, He held the property and managed it as administrator, and as administrator alone, and in fact stood in a fiduciary position towards the parson who was legally entitled to be shebait. The plaintiff is that person, and when the plaintiff comes forward and as shebait claims the property, I feel a difficulty in saying that the defendant, holding it as he did, in a fiduciary capacity, can successfully set up the Statute of Limitation as against him. The point was urged before us by Mr. Banerjee for the respondent, and though it is unnecessary to decide it, I refer to it, to show that it has not escaped me. In making these observations, I am not unmindful of the decision in the case of Balwant Rao v. Puran Mal (1883) I.L.R. 6 All. 1.