MOHESH NARAIN MOONSHI Vs. TARUCK NATH MOITRA

JUDGEMENT

(1.) THE Plaintiff is in possession, as proprietor, of one moiety of the estate moveable and immoveable of the deceased Shib Narain, and in this suit he seeks to have it declared that he is entitled as proprietor to possession of the other moiety of that estate. The Plaintiff's undisputed right to the half of the estate in his possession arises from the fact that Shib Narain, who died in 1850, had adopted him as his son in 1848. The principal Defendant, Girish Narain (hereinafter referred to as the Defendant), in possession of the other half of the estate, maintains his right to continue in possession, and to have the plaint dismissed on the ground (1.) that he also is an adopted son of the late Shib Narain, having been adopted as such by Tripura Soondari Belt, the second of two surviving wives of Shib Narain, who made the adoption by authority of her husband, alleged to have been conferred in a deed of anumati patra granted by him in 1844, about six years before he died, and (2.) that in any view the suit is barred by limitation on two separate and independent grounds, one being the Defendant's possession of the property claimed for upwards of twelve years before the present suit was instituted, the other the lapse of twelve years after the Defendant's adoption without any suit having been raised to set the adoption aside. The Subordinate Judge held that the suit was not barred by limitation on either of the grounds now stated, and gave a decree in favour of the Plaintiff; but on appeal to the High Court this decree was reversed, and the suit was dismissed, the Court having held that the suit was barred by limitation on each of the separate grounds pleaded.

(2.) THE validity of the Plaintiff's adoption has not been disputed in this appeal. On the other hand, it is clear that the adoption of the Respondent was invalid, for it has been long settled, according to the Hindu law of adoption and succession, that a valid second-adoption cannot be made when a son under a previous adoption is alive: Rungama v. Atchama 4 Moore's Ind. Ap. Ca. 1. The Plaintiff accordingly would be entitled to succeed, if his suit were not barred by limitation; and on the question of limitation the decision of the appeal depends.

(3.) MUCH of the argument on the appeal related to the points just mentioned, and involved a critical examination of the provisions of the anumati patra, and the actings of the parties, particularly as bearing on the character of the alleged possession of the widows. Their Lordships have, however, come to the conclusion (without expressing any dissent from the view of the High Court that the suit is barred by adverse possession) that it is unnecessary to form any opinion on these questions, for their Lordships are satisfied that the defence of limitation has been clearly established on the other ground, viz., the long unchallenged adoption of the principal Defendant, notwithstanding his assertion of the status and right of an adopted son, and his enjoyment, with the complete knowledge of the Plaintiff, of the advantages which that status gave him.