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Kumar Bhagabat Pershad Vs. Murari Lal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.427
AppellantKumar Bhagabat Pershad
RespondentMurari Lal
Cases ReferredJanoki Debt v. Gopal Acharjia
Excerpt:
limitation act (xv of 1877), schedule ii, articles 118, 141 - suit for possession--declaration that adoption is invalid--hindu law--adoption--power to adopt son, meaning of--whether adoption of second boy after death of first, valid--adoption of orphan given by elder brother, whether valid. - 1. the suit, out of which this appeal arises, was brought by kumar bhagabat prasad as reversioner to recover certain family ancestral properties after the death of the last female proprietor. kumar hira lal had two sons, baij bahadur and sukhraj bahadur. baij bahadur died on the 18th november 1866 having, it is alleged, executed on the 6th october 1866 the will, exhibit c. prior to the execution of this will, baij bahadur and his brother sukhraj bahadur are alleged to have separated and to have ceased to form a joint family. by that will, power to adopt was given to baij bahadur's widow jarina bibee and, on the 1st december 1863, it is alleged that she adopted one sadho narain as her husband's son. sadho narain died a few days after on the 16th december 1868 and it is alleged that.....
Judgment:

1. The suit, out of which this appeal arises, was brought by Kumar Bhagabat Prasad as reversioner to recover certain family ancestral properties after the death of the last female proprietor. Kumar Hira Lal had two sons, Baij Bahadur and Sukhraj Bahadur. Baij Bahadur died on the 18th November 1866 having, it is alleged, executed on the 6th October 1866 the Will, Exhibit C. Prior to the execution of this Will, Baij Bahadur and his brother Sukhraj Bahadur are alleged to have separated and to have ceased to form a joint family. By that Will, power to adopt was given to Baij Bahadur's widow Jarina Bibee and, on the 1st December 1863, it is alleged that she adopted one Sadho Narain as her husband's son. Sadho Narain died a few days after on the 16th December 1868 and it is alleged that thereafter, on the 17th April 1873, Jarina Bibi adopted Murari Lal, the present defendant, as the adopted son of her husband, and changed his name to Kumar Jairaj. It is alleged that, since that date, Murari Lal, the defendant, has been in possession of the properties, left by Baij Bahadur, as his adopted son. On the 28th October 1903 Jarina Bibi died.

2. Sukhraj Bahadur died on the 9th May 1884 leaving him surviving his widow Musammat Dulhari Bibi and a son Kumar Bhagabat Prasad, born in August 1876. Bhagabat Prasad was the original plaintiff in the present suit, which was instituted on the 2nd August 1906. Bhagabat, however. died on the 24th April 1907 and his mother Dulhari Bibi was substituted as the plaintiff in his place on the 8th July 1907.

3. After the death of Baij Bahadur, a dispute arose between his widow Jarina Bibi and his brother Sukhraj Bahadur in 1868 Jairna Bibi applied on the 6th June 1868 for a certificate under Act XXVII of 1860 for the collection of the debts due to her deceased husband's estate. In her application, she stated that it was made by her under her right of inheritance and under the Will of her husband dated the 6th October 1866 empowering her to adopt a son. The Will itself appears to have been filed in those proceedings on the 8th June 1868. Sukhraj Bahadur contested that application, denying the genuineness of the Will set up by the lady and alleging that there had been a reunion between the brothers prior to the death of Baij Bahadur. The District Judge granted the application of Jarina Bibi, and, on the 2nd September 1868, directed a certificate to be issued in her favour. The Judge declined to go into the question whether the Will was genuine or not ; but, finding that there had been no re-union between the two brothers antecedent to the death of Baij Bahadur, he held that the lady was entitled to the certificate prayed for, as the heiress of her husband. There was an appeal to the High Court; but, on the 10th April 1869, the appeal was dismissed, the High Court holding that the defendant Sukhraj had failed to prove that there had been any re-union and that, therefore, the District Judge was right in granting the certificate. On the 8th December 1873, Sukhraj Bahadur instituted a suit against Jarina Bibi and Kumar Jairaj alleging that there had been a re-union between Baij Bahadur and himself prior to the execution of the alleged Will, that the Will produced was a fabricated document and that, even if the Will was genuine, it only authorized the widow Jarina Bibee to take one son in adoption, and not two, and therefore, the alleged adoption of Kumar Jairaj alias Murari Lal, was invalid. Further, it was contended that the adoption was bad in law as Murari Lal was an orphan at the time and his brother had no legal power to give him in adoption. In that suit, the plaintiff asked for a declaration that the adoption was invalid and for possession of the estate of the deceased Baij Bahadur. The suit was decided on the 5th October 1874. The Subordinate Judge held, first, that the plaintiff had failed to prove that there was any re-union between the brothers, and, secondly, that the plaintiff was not entitled to a declaration that the Will was false because his suit was brought more than three years after the date of the production of the Will, and was, therefore, barred under Article 93 of Schedule II of Act IX of 1871. He, however, went into the question whether the Will was a genuine document or not and held that, on the evidence, it was proved to be the genuine Will of Baij Bahadur. Thirdly, he held that the plaintiff was entitled to a declaration that the adoption of Murari Lal alias Kumar Jairaj was invalid, and holding that the adoption was bad in law because Murari Lal was an orphan and was given in adoption, by his brother, he gave the plaintiff a declaration that the adoption was invalid. Jarina Bibi applied for a review on the 2nd December 1874 but her application was rejected. Both sides afterwards appealed to the High Court and the appeals were disposed of on the 13th September 1876. The High Court affirmed the finding of the Subordinate Judge that there was no re-union between the brothers before the death of Baij Bahadur. The learned Judges then considered the question whether the plaintiff was in that suit entitled to a declaration that the adoption of Murari Lal was invalid under the Hindu Law and whether the Subordinate Judge was right in giving the plaintiff a declaration that the adoption was invalid. They referred to the case of Nogendra Chandra Mitira v. Kishen Soondery Dossee 19 W.R. 133 : 2 B.L.R.A.C. 279 : 11 W.R 190, in which their Lordships of the Privy Council had laid down that it was not a matter of absolute right to obtain a declaratory decree. They then pointed out that there was no charge against the, widow of alienation or waste, no allegation of any present wrong, that Sukhraj was at the very best only a presumptive heir at that time and that his right was not only a future right but also a contingent right. In these circumstances, they were of opinion that the plaintiff was not entitled to ask for any declaration with reference to the Will of the late Baij Bahadur or the adoption of Murari Lal.

4. On the 26th August 1900, Bhagabat Prasad, the son of Sukhraj Bahadur, instituted a second suit against Jarina Bibi and Murari Lal alias Kumar Jairaj. He claimed the same relief's as were claimed by his father Sukhraj in the previous suit instituted in 1873. The Subordinate Judge disposed of the case on the 30th June 1903. In defence to the suit, it was pleaded that the suit was barred under the provisions of Article 118 of Schedule II of the Limitation Act (XV of 1877). The Subordinate Judge, in dealing with this plea, held that the limitation provided by that article applied to that suit and that, in order to determine whether the suit was barred or not, it was necessary first of all to ascertain when the plaintiff came to know of the adoption of the defendant Kumar Jairaj. The case for the plaintiff was that he had first come to know of the adoption in May or June 1898. The learned Subordinate Judge, however, came to the conclusion that the plaintiff must have known of the adoption at any rate in 1889, if not, earlier. The plaintiff attained majority on the 5th August 1897 and, as the suit was instituted on the 26th August 1900, more than three years after that date, the learned Judge held that it was barred by limitation. He further held that the suit had been barred by limitation daring the life-time of Kumar Sukhraj Bahadur, the plaintiff's father, and that the plaintiff was not entitled to say that a fresh cause of action arose on the death of his father. The suit being barred by limitation, the learned Judge noticed that it was unnecessary for him to dispose of the other issues; but, at the same time, he expressed his opinion that the first adoption of Sadho Narain as well as the second adoption of Murari Lal were both invalid in law, that in consequence the properties of Baij Bahadur vested in his widow absolutely under the terms of the Will and that, therefore, the plaintiff had no title to come in and bring a suit as reversioner. There was an appeal on behalf of the plaintiff to the High Court, but Jarina Bibi died before the appeal came on for hearing. The plaintiff-appellant applied to have her name expunged and to make some amendments in the plaint ; but, the High Court having held that this prayer could not be granted, the plaintiff was allowed to withdraw the suit on the 19th January 1906 with liberty, to bring a fresh suit on the same cause of action. The present suit was instituted on the 2nd August 1906.

5. In the plaint in the present suit, the allegations made were practically the same as those made in the previous suits. It was alleged that the plaintiff Bhagabat Prasad was the next reversionary heir of Baij Bahadur and that, after the death of Musammat Jarina Bibi, he became the rightful owner of the property left by Baij Bahadur, and, as such, entitled to recover possession of it. He denied that Baij Bahadur had executed any Will and that Kumar Jairaj was his adopted son. In the alternative, however, it was alleged that, even if the Will was genuine and had been executed by Baij Bahadur then, as Jarina Bibi had exhausted the power of adoption given to her by the Will by adopting Sadho Narain, the subsequent alleged adoption of Murari Lal alias Kumar Jairaj was invalid. The second, adoption was also impeached on the ground that Murari Lal was an orphan and that his brother had no authority, under the Hindu Law, to give him in adoption. In defence, it was pleaded that the Will relied on was the genuine Will executed by Kumar Baij Bahadur before his death, that there had been no valid adoption of Sadho Narain by Jarina Bibi after his death and that the defendant Murari Lal was validly adopted by Jarina Bibi as the son of her deceased husband. Further, it was alleged that, if the adoption was invalid, Musammat Jarina Bibi had, under the terms of the Will, acquired an absolute interest in the properties inherited by her from her husband and that, as she had transferred all her interest to the defendant by a deed, Exhibit H, dated the 11th August 1903, the defendant had a good and valid title to all the property in suit.

6. Twelve issues were fixed by the Court of first instance but the only questions which have been raised in this appeal are with reference to the following findings of the lower Court. In the first instance, the Subordinate Judge found that the Will produced was a genuine document, secondly, he found that the adoption of Sadho Narain by Jarina Bibi as the son of her deceased husband was a valid adoption. The third question he had to consider was whether the defendant Jairaj Bahadur was adopted by Musammat Jarina Bibi and, if so, whether the adoption was valid in law, and, on this point, he held, that, under the terms of the Will, the power of adoption was not restricted to one son only but that Jarina Bibi had power to adopt a second son. He held, however, that the adoption of the defendant Murari Lal was invalid because, at the time of the adoption, he was a minor and his brother had no power to give him in adoption ; and, in support of this view, he relied on the case of Papamma v. Venkatadri Appa Rau 16 M. 384. The fourth question which he took up for consideration was whether by reason of the invalidity of the adoption of Murari Lal alias Jairaj Kumar, Jarina Bibi acquired an absolute interest in the estate of her husband Baij Bahadur, by virtue of the terms of the Will. The learned Judge was of opinion that, after Musammat Jarina Bibi had adopted Jairaj, Bahadur and had placed him in possession as the adopted son of her husband Jairaj held the property adversely to her over 35 years and that, in consequence, he had obtained an absolute title by adverse possession of the property. That being so, by the deed of transfer executed by her in favour of Kumar Jairaj Bahadur on the 11th August 1908, she conveyed no fresh right to him as he already possessed an absolute interest in the property. Lastly, he took up the question of limitation and came to the Conclusion that the suit was barred under the provisions of Article 118 of the Limitation Act (XV of 1877), it not having been brought within six years from the date when the plaintiff became aware of the adoption. In support of this finding, the learned Subordinate Judge relied on the cases of Harnabh Pershad v. Mandil Dass 27 C. 379 and Srinivas Murar v. Hanmant Chavdo Deshpande 24 B. 260 and the decision of the Privy Council in the case of Jagadamba, Choudhrain v. Dakhina Mohun Roy Chaudhury 13 C. 308 : 13 I.A. 84. It was urged before him that the principle laid down in the latter case had been overruled by their Lordships of the Privy Council in their subsequent decision in the case of Thakur Tirbhuwan Bahadur Singh v. Raja Rameshwar Bakhsh Singh 10 C.W.N. 1065 : 33 I.A. 156 : 8 Bom. L.R. 722 : 16 M.L.J. 440 : 3 A.L.J. 695 : 4 C.L.J. 405 : 1 M.L.T. 265 : 9 O.C. 377 : 28 A. 727 and that their Lordships of the Madras High Court had held this to be so in the case of Velaga Mangamma v. Bandlamudi Veerayya 30 M. 308 : 2 M.L.T. 178 : 17 M.J. 182. The learned Subordinate Judge, however, held that, unless the plaintiff could prove that he could recover possession without setting aside the adoption, then the limitation applicable would be that laid down by Article 118 of Schedule II of the Limitation Act and not Article 141, as was suggested on behalf of the plaintiff ; and this view he considered was supported by the decision of this Court in the case of Bejoy Gopal Mukerjee v. Krishna Mahishi Debi 34 C. 329 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329. He accordingly came to the conclusion that the plaintiff's suit was barred by limitation and that it must, on that account, fail. He, therefore, dismissed the suit with costs and the plaintiff has appealed to this Court.

7. In support of the appeal, the following contentions have been advanced:

(1) That the lower Court has erred in holding that the suit is barred by limitation under the provisions of Article 118 of Schedule II of Act XV of 1877. In support of his finding that the suit is so barred, the learned Subordinate Judge relies on the decision of the Privy Council in the case of Jagadamba Chaudhrain v. Dakhina Mohun Roy Chaudhry 13 C. 308 : 13 I.A. 84 and the case of Harnabh Pershad v. Mandil Dass 27 C. 379 and Srinivas Murar v. Hanmant Chavdo Deshpande 24 B. 260, in which, it has been held that the principle laid down by the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun Roy Chaudhry 13 C. 308 : 13 I.A. 84, though it had reference to the provisions of Article 129 of Schedule II of the old Act IX of 1871, would equally apply to the effect of Article 118 of Act XV of 1877 in the case of suits brought after the passing of the later Act. It has been argued that the view taken by the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun Roy 13 C. 308 : 13 I.A. 84 has been subsequently modified by the judgment of their Lordships in the case of Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh 10 C.W.N. 1065 : 33 I.A. 156 : 8 Bom. L.R. 722 : 16 M.L.J. 440 : 3 A.L.J. 695 : 4 C.L.J. 405 : 1 M.L.T. 265 : 9 O.C. 377 : 28 A. 727 and that this is so is supported by the view taken by the Madras Court in the case of Velaga Mangamma v. Bandlamudi Verayya 30 M. 308 : 2 M.L.T. 178 : 17 M.J. 182. This view, it is urged, is also supported by the decision of the Privy Council in the case of Bejoy, Gopal, Mukherjee v. Krishna Mahishi Debi 34 C. 329 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329 and by the judgment of the Madras Court in the case of Ratnam Assari v. Akilandamnal 26 M. 291 : 13 M.L.J. 27 (F.B.). It has also been urged that in the case of Jugannath Prasad Gupta v. Ranjit Singh 25 C. 354 at p. 363 and in the case of Ram Chandra Mukerjee v. Ranjit Singh 27 C. 242 at p. 254 : 4 C.W.N. 405, where the effect of the decision of the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohan Roy 13 C. 308 : 13 I.A. 84 has been considered, it has been held that, in suits similar to the present, where the relief sought is the recovery of possession and not merely a declaration that the adoption is invalid, the provisions of Article 118 of Schedule II of the Limitation Act do not apply. In the case of Baikanta Chandra Roy Chowdhury v. Kali Charan Roy Chowdury 9 C.W.N. 222, in which the question as to what limitation would apply to suits brought by reversioners to set aside leases granted by females having a widow's estate was considered, it was held that Article 141 of Schedule II of the Limitation Act would apply and that the limitation would be twelve years. It is contended that by analogy the same limitation would apply to suits brought by reversioners to recover possession on a declaration that an adoption by a widow is invalid:

(2) That if the adoption of Murari Lal be held to be invalid, then the present suit would be in time as it was brought within three years from the 11th August 1903 when Jarina Bibi, the widow, executed the deed of transfer in favour of Murari Lal alias Kumar Jairaj:

(3) That the Will is not genuine and, therefore, the widow had no power to adopt and:

(4) That even if the Will was valid, then the widow never took an absolute estate as the contingency contemplated in the Will never arose because she, in compliance with the terms of the Will, adopted Sadho Narain as a son of her husband and so complied with the terms of the Will. After the death of Sadho Narain, she only took a mother's estate in the property of her husband and it is urged that this view is supported by the decision of this Court in the case of Amrito Lall Dutt v. Surnomoni Dasi 25 C. 662 : 2 C.W.N. 389.

8. On behalf of the respondent it has been contended:

(1) that the Subordinate Judge was right in holding that the suit was barred under the provisions of Article 118 of Schedule II of the Limitation Act (XV of 1877). It is contended that the decision of the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun Roy Chaudhry 13 C. 308 : 13 I.A. 84 has not been modified in any way by the subsequent decision of that Council in the case of Thakur Tribhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh 10 C.W.N. 1065 : 33 I.A. 156 : 8 Bom. L.R. 722 : 16 M.L.J. 440 : 3 A.L.J. 695 : 4 C.L.J. 405 : 1 M.L.T. 265 : 9 O.C. 377 : 28 A. 727. It is urged that the view taken by the High Court of Bombay in the case of Srinivas Murar v. Hanmant Chavdo Deshpande 24 B. 260, is right and that the contrary view taken by the Madras Court in the case of Valaga Mangamma v. Bandlamudi Veerayya 30 M. 308 : 2 M.L.T. 178 : 17 M.J. 182 cannot be accepted. Reliance is also placed on the decision of this Court in the case of Harnabh Pershad v. Mandil Dass 27 C. 379. Further, in support of this point, it has been argued that it is not now open to the plaintiff, after the long lapse of time since the adoption, to re-open the question. It is pointed out that Murari Lal alias Kumar Jairaj was adopted on the 17th April 1873 and that he has been in possession of the property as such adopted son ever since. Jarina Bibi died in 1903. It is contended that the principle laid down by their Lordships of the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun Roy Chaudhry 13 C. 308 : 13 I.A. 84 must be taken to apply and that the principle should be followed of allowing only a moderate time within which such delicate and intricate questions as those involved in adoption shall be brought into dispute.

(2) That from the provisions of the Will, it is clear that the intention of the testator was to provide against any contingency by which his property should fall into the hands of his brother's branch of the family with whom he was on terms of enmity, that the evidence to prove the adoption of Sadho Narain is insufficient and that, therefore, under the terms of the Will, the widow took an absolute estate in the property left by her husband or, if both the adoptions be held to be invalid, or if the first be held to be valid and the second invalid, then as there was no son natural or adopted to take over the estate of her husband, she, under the terms of the Will, took an absolute estate and that the transfer of her estate to Murari Lal was valid and it gave him a good title, if not as the adopted son of her husband, as her. transferee:

(3) That the lower Court has erred in holding that the adoption of Murari Lal was illegal. It is contended that all that the Hindu Law lays down is that it is undesirable that an orphan should be adopted and that, as pointed out by Lord Hob house in the case of Rao Balwant Singh v. Rani Kishore 25 I.A. 54 at p. 69 : 2 C.W.N. 273, it should be borne in mind that in Hindu Law religious and moral considerations not being positive laws are often mixed up with rules intended for positive laws and that it by no means follows that because an act has been prohibited, it should, therefore, be considered to be illegal. This view, it is suggested, has been accepted by the Bombay Court in the case of Sham Singh v. Santabai 25 B. 551 : 3 Bom. L.R. 89, where a Rajput father after having become a convert to Christianity, delegated to his brother the power to give his son in adoption and such delegation was held to be Valid. In the present case, it is pointed out that the adoption of Murari Lal took place when he was a boy ; that the result has been that he has lost all rights in his natural family and that it would be most unjust now to allow the plaintiff to succeed and to defeat the effects of an adoption, which has been in force for no less than 48 years.

9. We will deal first with the question of limitation ; and, in taking this question into consideration, we think it necessary in the first place to invite attention to the fact, which seems to have been lost sight of in some of the judgments which we have been referred to, namely, that the period of limitation fixed by Article 129 of Schedule II of Act IX of 1871 was twelve years whereas the limitation fixed by Articles 118 and 119 of Schedule II of Act XV of 1877 was only half of that period, namely, six years. We are also of opinion that, in the present case, it is impossible to lose sight of what has happened after the date of the alleged adoption, and of the result of the suits which were brought by Kumar Sukhraj Bahadur, the father of the original plaintiff, and Kumar Bhagabat Pershad, the original plaintiff. The decision of their Lordships of the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun, Roy Choudhry 13 C. 308 : 13 I.A. 84 dealt mainly with the construction to be given to Article 129 and it was then held that that article must be taken to apply to all suits in which the validity of an adoption was brought into question and, therefore, included a suit for possession dependent on that issue as well as a suit to declare its invalidity and that that article applied to all suits in which the plaintiff could not succeed without displacing an apparent adoption by virtue of which the defendant was in possession. We have already noticed that the repealing Act XV' of 1877 substituted in the second Schedule of that Act Articles 118 and 119 for the old Article 129 of Schedule II of the Act of 1871. The wording of those two articles was essentially different from that of the old Article 129 and the period of limitation was reduced by half. In those two articles it was distinctly provided that the suit was a suit to obtain a declaration. No mention whatever was made of a suit for possession. In the case of Harnabh Pershad v. Mandil Dass 27 C. 379, in which the effect of the decision of the Privy Council in the case of Jagadamba Choudhrain v. Dakhina Mohun Roy Chaudhury 13 C. 308 : 13 I.A. 84, was considered, the facts were entirely different from those of the present case. In that case, the father of the plaintiff was found to have taken an active part in the negotiations for the adoption of the person, whose adoption was called into question and in arranging for his subsequent marriage and this circumstance appears to have strongly influenced the learned Judges in arriving at their decision. In the case of Srinivas Murar v. Hanmant Chavdo Deshpande 24 B. 260, the change in the period of limitation does not appear to have been noticed and the view taken in that case does not appear to have been adopted by this Court. The decision in the case of Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh 10 C.W.N. 1065 : 33 I.A. 156 : 8 Bom. L.R. 722 : 16 M.L.J. 440 : 3 A.L.J. 695 : 4 C.L.J. 405 : 1 M.L.T. 265 : 9 O.C. 377 : 28 A. 727 did not turn on the question whether or not Article 118 would apply to a case like the present and, though their Lordships of the Privy Council were apparently prepared to accept the view that, if the Act of 1877 applied, the defendant had no case that the suit was barred by limitation, the point on which they decided that the suit was not barred was that the defendant had failed to make out any title by adverse possession. In these circumstances, we do not think it is necessary for us to consider the question whether or not that decision in any way modified their decision in the previous ease of Jagadamba Choudhrain v. Dakhina Mohun Roy Chaudhry 13 C. 308 : 13 I.A. 84, which we have already said dealt only with the effect of Article 129 of the second Schedule of the Limitation Act of .1871. The learned Judges of the Madras High Court in the case of Velaga Mangamma v. Bandlamudi Veerayya 30 M. 308 : 2 M.L.T. 178 : 17 M.J. 182, it is true, were of opinion that, in that later decision, their Lordships of the Privy Council accepted the view that Article 118 of the Limitation Act (XV of 1877), was applicable only to declaratory suits and they held that the period of limitation applicable to a suit like the present for recovery of possession of immovable property on a declaration that the rights of the plaintiff were not affected by the adoption would be that prescribed by Article 141 of Schedule II of the Limitation Act. In the case of Jagannath Pershad Gupta v. Ranjit Singh 25 C. 354 at p. 363, a Bench of this Court held that the limitation in a suit brought by a plaintiff on the allegation that he was a grandson by adoption in which he sought not only a declaratory decree as to the validity of the adoption bat also for recovery of possession of the property was not that provided by Article 119 of Schedule II but was that provided by Article 141 of the same schedule of the Limitation Act. It was pointed out that to adopt the contrary view would involve the acceptance of an unreasonable conclusion, viz., that an adopted son claiming by inheritance the immovable property of a collateral kinsman by adoption would have only six years from the time the succession opened within which to bring a suit whereas, if he had been a blood relation of his deceased kinsman, he would have had the ordinary period of twelve years. In the case of Ram Chandra Mukerjee v. Ranjit Singh 27 C. 242 at P. 254 : 4 C.W.N. 405, attention was invited to the change in the language used in Article 118 of the repealing Act as compared with that used in Article 129 of the old Act and the reduction in the period of limitation, and the view was adopted that Article 118 of Schedule II of the Limitation Act did not apply to a suit for possession of immovable property, though it might be necessary for the plaintiff to prove the invalidity of an adoption. In the case of Buikuntha Chandra Roy Chowdhury v. Kali Churn Roy Choudhary 9 C.W.N. 222, a similar view was adopted as to the limitation applicable in a case brought by reversioners to recover immovable properties by a declaration that an Anumalipatra executed by a Hindu widow did not affect their rights. In our opinion, the balance of authorities is in favour of the view which we adopt that, in a suit like the present in which the plaintiff seeks to recover possession as reversioner on the allegation that his rights have not been affected by the adoption which he alleges to be invalid, the limitation applicable is that provided by Article 141 of Schedule II of the Limitation Act (XV of 1877) and not Article 118 and, as in such a suit the cause of action cannot arise until the death of the widow, and the right to possession accrues to the plaintiff, we are of opinion that the limitation mast be taken to run from the date when the cause of action arises entitling the plaintiff to sue for possession.

10. We are strongly of opinion that, in the present case, having regard to what had previously happened, it would not be possible to hold that the present suit is barred by limitation. On the 8th December 1878, certainly well within the period of twelve year's limitation, if that applied, Sukhraj Bahadur, the then reversioner and the father of the original plaintiff, brought a suit to have it declared that the adoption of Murari Lal alias Kumar Jairaj was invalid and, though that suit was dismissed for other reasons, the Court held that the plaintiff was entitled to a declaration that the adoption was invalid. There was an appeal to the High Court and that Court, while confirming the decision of the Court of first instance, expressed the opinion that the suit brought by Sukhraj, so far as he sought a declaratory decree, could not succeed on the ground that, at that time, there were no allegations of waste against the widow or of any present wrong done to the plaintiff and that Sukhraj Bahadur was then only a presumptive heir and his right was not only a future right but a contingent right and it was held that Sukhraj was not entitled to any declaration with regard to the validity of the adoption. Sukhraj died in 1884 and, on the 26th August 1900, his son Bhagabat Prasad instituted another suit against the present defendant and his adoptive mother in which he also sought for a declaration that the adoption was invalid. The suit was dismissed; but, at the same time, the lower Court held that the adoptions of both Sadho Narain and Murari Lal were invalid and, therefore, the widow had an absolute estate under the terms of the Will. There was an appeal to the High Court; but, in the end, the plaintiff was allowed to withdraw the suit with leave to bring a fresh suit. It cannot, therefore, be said in the present case that the father of the original plaintiff ever assented to the adoption and it is clear that both of them, as soon as they were able to do so, brought suits in order to obtain declaratory decrees that the adoption was invalid. Those suits failed, it is true on other grounds ; but it was held by this Court that the suits were premature and that no declaratory decree could be granted unless the plaintiff could prove waste on the part of the widow or some present wrong done to himself. In fact, the result of those suits was that the plaintiff in each case was told that no cause of action for any such suit would arise until the succession opened to him and his alleged rights to recover possession of the property accrued. The learned Subordinate Judge in dealing with, this question of limitation was further of opinion that, after the adoption of Murari Lal by the widow, she parted with her -interest in the property in his favour and, as Murari Lal had held possession of the property by virtue of adverse title for more than 35 years, therefore, he had acquired an absolute right. This view seems to us, however, to be opposed to that taken by their Lordships of the Privy Council in the case of Thakur Tirbhuwan Bahadur Singh v. Raja Rameshwar Singh 10 C.W.N. 1065 : 33 I.A. 156 : 8 Bom. L.R. 722 : 16 M.L.J. 440 : 3 A.L.J. 695 : 4 C.L.J. 405 : 1 M.L.T. 265 : 9 O.C. 377 : 28 A. 727. We must, therefore, hold, disagreeing with the learned Subordinate Judge, that the present suit is not barred by limitation.

11. We will next take the third point in which the genuineness and the validity of the Will is called into question. We may observe that the Will was executed long before the Probate and Administration Act was passed and it was in the form of what was then called a wasiatnamah. The arguments, which have been advanced to show that the Will was not properly executed or attested, therefore, appear to us to have no weight. The evidence clearly proves that the Will was executed by the deceased and. that, after its execution, it was sent round to all the principal people in the village in order that they might attest it and bear witness to its having been duly executed. All the Courts, before which the question of the genuineness and validity of this Will ' has previously been raised, have accepted it as valid and genuine and we think that, on the evidence adduced before the learned Subordinate Judge, he was perfectly right in coming to the conclusion that the Will was a genuine and valid document. This point, therefore, is decided against the appellant.

12. The remaining points raised by both the parties may conveniently be considered together. They involve the questions whether he adoption of Murari Lal by Jarina Bibee was a valid adoption and, if not, what was the effect on the estate which the widow took under the Will of her husband and how far did that affect the deed of transfer executed by her in favour of Murari Lal on the 11th August 1903 We agree with the learned pleader for the respondent that the terms of the Will leave no doubt that the intention of the testator was to provide, if possible, against any contingency by which his property would come into the hands of his brother with whom he had been for sometime at bitter enmity. The Will gave the widow power to adopt son to the deceased and, as no special words are used restricting that power to one adoption, we think that the Subordinate Judge was right in the view that, under the terms of the Will, Jarina Bibi was empowered to make a second adoption in the event of the death of the son first adopted. We are of opinion, therefore, that the widow had power to adopt Murari Lal as a son to her deceased husband after the death of Sadho Narain, the boy first adopted.

13. We are unable to accept the contention advanced on behalf of the respondent that the adoption of Sadho Narain was not proved. The evidence on this point including that of the mother and other relations of the boy and Musammat Jarina Bibi herself and Hazari Lal leaves, in our opinion, no doubt that Sadho Narain was adopted and that the adoption was valid. This is the view which the learned Subordinate Judge has accepted and we see no reason to differ from him.

14. The question then is whether the adoption of Murari Lal was a valid adoption or not ; and, if it was not a valid adoption, what would be the result as regards the title which Jarina Bibi would have had in the property left by her deceased husband The learned Subordinate Judge has come to the conclusion that this adoption was invalid on the ground that the brother, Hazari Lal, could not, under the Hindu Law, give Murari Lal in adoption.

15. In support of the adoption, it has been argued that, even though under the strict rules of Hindu Law no one but a parent can give a son in adoption, still as adoption is rather a temporal than a religious institution, the strict rule of law should not be applied so as to invalidate an adoption made of a boy during his infancy and which, as in the present case, has been recognized for 48 years. In the case of Wooma Daee v. Gocoolanund Das 3 C. 587, where the question ralsed was whether the omission to adopt a brother's son was an objection which at law invalidated an adoption otherwise regularly made, and so destroyed the civil status of the person thus adopted even after years of recognition, their Lordships of the Privy Council were not prepared to hold that the adoption could be invalidated on that ground and in support of their conclusion pointed, out that in Bengal the maxim 'quod fieri non debet, factum valst' had been held to apply to cases of adoption, and referred to the cases of Chinna Gaundan v. Kumara Gaundan 1 M.H.C.R. 54 and Raje Vyankatrav v. Jayavantrav 4 B.H.C.R.A.C. 191, as showing that a similar view had been adopted by the High Courts of Madras and Bombay. The same view was taken by this Court with regard to the adoption of an eldest son as not being invalid in the case of Janoki Debt v. Gopal Acharjia 2 C. 365. It is argued that 'where a transaction is unexceptionable in a temporal point of view but is forbidden solely for a spiritual reason it is the fittest case for the application of the maxim (Hindu Law of Adoption, Sarkar, page 305). No doubt, the opinion has been expressed by the same author (at page 367) that, adoption under the Hindu Law being in the nature of a gift, it contains three elements:--Capacity to give, capacity to take and the capacity to be the subject of adoption--which are essential to the validity of the transaction and, as such, are beyond the scope of the doctrine of factum valet. In the oases to which we have referred above, the maxim appears to have been held to be applicable where the capacity of the subject for adoption was in question and it seems to be open to consideration whether it might not be applied in a case like the present where the question of the capacity to give in adoption is raised. In the present case, the adoption was manifestly for the temporal benefit of Murari Lal and the only defect in the adoption is that the gift was made by the brother, both the father and mother being dead.

16. To disturb the adoption now would, we think, be to do grave injustice to the person adopted, Murari Lal, by destroying his civil status after it had been, accepted for 40 years, and we are, therefore, led to the conclusion, though not without considerable hesitation, that in the present case the maxim may be applied and that we should not hold that the adoption was invalid because it was made by the elder brother, the father and the mother of the person adopted being then dead. On this ground, therefore, we are of opinion that the suit must fail.

17. It remains to consider, even if it were to be admitted that the adoption of Murari Lal was invalid, what estate the widow had in her husband's property after the death of the first adopted son Sadho Narain Under the terms of the Will, it is provided that, in the event of no natural or adopted son being alive or surviving the testator at the time of his death, the absolute right to the property would go to his wife. It gave her power to adopt a son in case of there being no natural issue. Then the Will provided that, if she did not adopt a son, the wife should continue to be in possession of the entire movable and immovable properties of the testator as her stridhan. The intention of these clauses in the Will appears to us to be that, in the event of the failure of a natural or adopted son the entire estate of the testator in his movable and immovable properties was to go to his wife absolutely and that she was to hold possession of those properties as her stridhan. In the present case, the adopted son appears to have died almost immediately after the adoption and we think that, having regard to the terms of the Will and the contention of the testator we should hold that, on the death of that adopted son and the failure of any issue, the entire movable and immovable properties of the deceased would have passed to Jarina Bibi as her stridhan. In such circumstances, she would have had an absolute estate at the time when she executed the deed of transfer in favour of Murari Lal alias Kumar Jairaj on the 11th August l903 and that being so, under the terms of that document, the title to the property in suit would have passed absolutely to Murari Lal alias Kumar Jairaj and the plaintiff would not be entitled to recover the property in the present suit.

18. The result, therefore, is that, though we differ from the conclusion of the learned Subordinate Judge as regards the title of the defendant, we are of opinion that the defendant has a good title to the lands in suit and that the plaintiff is not entitled to recover possession of them in the present suit. The appeal is, therefore, dismissed with costs.


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