RATNAMASARI Vs. AKILANDAMMAL

JUDGEMENT

(1.) The plaintiff's suit has been dismissed as being barred by limitation under Art. 119 of the second schedule attached to the Limitation Act. There is practically no dispute as to the facts of the case. The adoption is alleged to have taken place in 1886. The rights of the plaintiff as adopted son were interfered within 1889 and this suit was not brought till 1897 In the plaint the plaintiff prays for a declaration that he is the adopted son of Arunachala Asari and also for the recovery of certain properties which he claims to be entitled to as such adopted son. It is clear that under Art. 119 this suit, in so far as the prayer for a declaration is concerned, is barred. It is, however, urged, that the plaintiff has 12 years within which to bring his suit for the recovery of the property.

(2.) The decisions of the several High Courts in India on the important question thus raised are most conflicting, and it cannot be said that the matter has been conclusively decided by the Privy Council. The decisions of their Lordships bearing on this point which have to be considered are Jagadamba Chowdhrani V/s. Dakhina Mohun L.R. 13, I.A. 84 : I.L.R. 13 C. 308. Mohesh Narain Moonshi V/s. Taruck Nath Moitra L.R. 20 I.A. 30 : 20 C. 487 and Luchmun Lal Chowdhry V/s. Kanhya Lal Mowar L.R. 22 I.A 51 : 22 C. 609. The case dealt with in the 13 vol. of the I.A. was one which came under Art. 129 of Act IX of 1871 which was as follows:

(3.) As to the wording of this Art. their Lordships observe that the expression " suit to set aside an adoption" is not quite precise as applied to any suit. "An adoption may be established but can hardly be set aside though an alleged or pretended adoption may be declared to be no adoption at all." It is further pointed out that the expression "set aside an adoption" has been for years applied 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." Reference is then made the alteration introduced in the Limitation Act of 1877 where the two following Articles take the place of Art. 129 in the Act of 1871: