KRISHNA AYYAR Vs. GOMATHI AMMAL AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff in the Court of the learned Subordinate Judge of Tinnevelly with the main purpose of obtaining a declaration, that the adoption of defendant 2 is untrue in fact and, in any case, invalid. The plaintiff is the son of the sister of one Sundaram Ayyar, who died in April 1925. Besides his sister, defendant 6, Sundaram Ayyar left a widow, defendant 1, and is said to have left a will by the terms of which he authorized his widow to adopt a son. It is the case of the widow, defendant 1, and the alleged adopted son, defendant 2, that defendant 2 was, in fact, adopted on 13th September 1925 in pursuance of this authority so given. The plaintiff's case is that there was no actual adoption on 13th September 1925, or at any other time, and that the will itself is not genuine, and, therefore, there was no such authority conferred by Sundaram Ayyar on his widow. The plaintiff states that he was born on 16th July 1920 and therefore, as he became of age in July 1938 and has brought this suit in June 1941, he contends that it is not barred by the law of limitation. It must now be stated that the question of the fact and validity of defendant 2's adoption has already been brought in issue in a previous suit. This suit was filed in 1931 by plaintiff's mother, defendant 6, and there is now no dispute on the question of the status of defendant 6 and her right to bring the suit, or upon the fact that the suit was brought within six years of the time at which defendant 6 became aware of the adoption. That suit was eventually dismissed in 1933 as the result of a compromise between defendant 6, who was then the plaintiff in the suit and the present defendant 2. By the terms of that compromise, defendant 6 was given properties worth Rs. 7000. The plaintiff now alleges in his plaint that this compromise was brought about in fraud of his own possible future interests in the property and he asserts that the existence of this fraud in the matter of the compromise provides him with a new cause of action accruing from its date.

(2.) NOT less than 18 issues were framed in the present suit. Issue 8 was whether the suit is barred by limitation; and as the learned Judge points out, the consideration of this issue was taken up as a preliminary measure by the Court at the instance of the vakils for the contesting defendants. The Court has decided the issue after a consideration of the main point of law whether defendant 6 in bringing the suit in 1931 can be considered a representative of the reversion as a whole and therefore representative of her son, the present plaintiff. He answers this point in the affirmative, and holds consequently that the plaintiff can have no independent right to bring a fresh suit on the same cause of action. In any case, the suit which has been brought by the plaintiff is at a time more than six years after the adoption must have become known to his predecessor -in -interest and therefore is barred under Article 118, Limitation Act. Except for the two formal issues 9 and 10, the other issues have not been considered and the suit has naturally been dismissed with costs on this finding on this question of limitation. Against that decree the plaintiff has now appealed.

(3.) WE do not, we think, consider that there is any need to analyse in detail the various rulings to which our attention has been called in the hearing of this appeal. One significant point, however, we must stress at this stage. We have already stated that there were no precise allegations of fraud by any of the parties in the cases which have been dealt with; but there are sporadic references to fraud in more than one of these decisions, and it is quite clear from these references that the decisions to which the various learned Judges have come, would very probably have been modified if the question of fraud had entered into the facts of the case. The first of such references is to be found on pages 403 and 404 of Chiruvolu Ponnamma v. Chiruvolu Perraju, (1906) 29 Mad. 390. There, their Lordships are quoting from a judgment delivered by Sir Barnes Peacock and what he says is this: