RAMCHANDRA JIVAJI Vs. LAXMAN SHRINIVAS

JUDGEMENT

(1.) THIS is an appeal from a decree dated March 17, 1937 of the High Court of Judicature at Bombay, which reversed a decree dated April 23, 1932, of the Court of the First Class Subordinate Judge of Belgaum and dismissed the plaintiff's suit.

(2.) THE question for the determination in the appeal is whether the plaintiff's (appellant's) suit for recovery of possession of the suit properties is barred by Article 91 of the Indian Limitation Act, 1908, (Act No. IX of 1908). This article prescribes a period of "three years" for a suit "to cancel or set aside an instrument not otherwise provided for" and time begins to run "when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.

(3.) DEFENDANT No. 1 is the husband of a sister of Appaji named Shakuntalabai alias Akkubai deceased, and defendant No. 2 is their son. In the joint written statement which they filed, they stated that the plaintiffs were adopted by Ramachandra I in the genealogical table, that defendant No. 2 was adopted by Tungabai after the death of Appaji, and that he was therefore a nearer heir to Appaji as he became his brother by Tungabai's adoption. As regards this plea, it may be stated at once that the Courts in India have held that Jiwaji was not the adopted son of Ramachandra I. It would, therefore, follow that the alleged adoption of defendant No. 2 was in law invalid for the reason that in the presence of the plaintiffs, the grandsons of Tammaji, his widow had no power to make any adoption to him. These questions are not now before the board.