BHAGIRTHIBAI PATLOO CHAVAN Vs. APPA DADA SHINDE

JUDGEMENT

(1.) This appeal raises a difficult point of law. There is not, much dispute as to the facts. The plaintiff, alleging himself to be the adopted son of one Dada Tukaram Shinde, sued for a declaration that he was the owner of the suit property and for possession of it. The First Class Subordinate Judge of Satara awarded the plaintiff's claim. The defendants appeal.

(2.) The plaintiff alleges that he is the adopted son of deceased Dada Tukaram Shinde, being adopted by his widow Savitri on June 10, 1901. Defendant No. 1 Lakshmi is the mother of Dada. Defendants Nos. 2 and 3 are her daughters. Defendant No. 4 is a son adopted by Lakshmi the widow of Tukaram after the death of Savitri. Defendant No. 5 Ganu is an illegitimate son of Tukaram. Defendants Nos. 6 and 7 are persons in possession. The adoption was denied, but in appeal the learned advocate for the appellants admits that he cannot dispute the factum of the adoption, which is supported by an adoption deed Exh. 55, p. 47, registered, and by Exh. 56, dated October 27, 1901, which is an application of Savitri to the revenue authorities that she has adopted the plaintiff and that his name should be entered in her place in the patilki watan register. It was suggested that Savitri was a minor at the date of the adoption and not capable of understanding the nature of her act, but that argument has not been pressed, and in view of the application by Savitri, Exh. 56, in her own name, she seems to have been a major in 1901, the year of the adoption. In addition to this there is evidence to which the Subordinate Judge has referred, and it may be taken that the plaintiff was adopted by Savitri on June 10, 1901. Prior to this, on August 16, 1899, Lakshmi, as guardian of her minor daughter-in-law Savitri, had made a statement before the revenue authorities nominating Ganu, son of her husband's mistress, to officiate for Savitri. Savitri's husband was an eight anna sharer in the patilki watan, and on his death as the widow of the last male holder Savitri's name was entered in his stead, and a deputy had to be appointed and Ganu was accordingly adopted as deputy of Savitri for ten years from September 15, 1899, to September 14, 1909, or till the minor Savitri attained majority if this happened earlier, Exh. 42, p. 45. After the adoption, by Exh. 56, as already mentioned, Savitri applied that the plaintiff's name should be entered as her deputy instead of Ganu. This was on October 27, 1901, but the revenue authorities re-fused to make this alteration, because no report had been made to the Collector of the adoption under Section 34 of the Watan Act, and she was asked to produce the certificate of a civil Court. This order was dated June 9, 1903, Exh. 57, p. 50. The watan register remained unaltered, the eight annas share of Dada bin Tukaram being entered in the name of his widow Savitri, Exh. 33, p. 39. Ganu, defendant No. 5, objected to the name of the plaintiff being entered in the Watan register. He was given a notice to appear on March 31, 1902, Exh. 36, p. 40, but nothing was done, and the name of the adopted son was not entered. It appears that the plaintiff made an application to the civil Court under Regulation VIII of 1827, Exh. 20, which he withdrew, and it was dismissed on August 9, 1904. Thereafter Savitri continued in possession of her husband's property. Ganu continued to officiate as Patil till 1909, but the learned Subordinate Judge has found on the evidence that Savitri's possession was in pursuance of an agreement between her and the plaintiff, and that the plaintiff lived with her, and he also held that there was no interference by Savitri with the rights of the adopted son inasmuch as she did not deny the adoption till her death, which occurred in 1917. It has been contended that the objection by Ganu in 1902 was an interference with the rights of the adopted son, and that limitation under Art. 119 would run from that date. But the principal point which has been pressed in appeal is that on the death of Savitri in 1917 the plaintiff asked to have the lands entered in his name, and was opposed by Lakshmi, and after inquiry the District Deputy Collector refused to enter the plaintiff's name in the record of rights on February 4, 1918, Exh. 31, p. 37. This has not been referred to by the learned Subordinate Judge. This is a clear interference with the rights of the adopted son, and the question in this appeal is whether the present suit, which was brought in December, 1926, is barred by Art. 119 of the Indian Limitation Act, or whether, as held by the learned Subordinate Judge, the plaintiff had twelve years within which to sue from the date of Lakshmi's death in 1917, and ultimately this question resolves itself into this, whether the ruling of the Privy Council in Kalyandappa V/s. Chanbasappa (1924) I.L.R. 48 Bom. 411 applies to Art. 119 as well as Art. 118, or to Art. 118 only. This is a point of some difficulty, and has been argued at considerable length-Kalyandappa V/s. Chanbasappa is a case under Art. 118 of the Indian Limitation Act, and it is contended on behalf of the respondent that it will, not apply to a suit under Art. 119, as the present suit is. The learned advocate for the appellants has relied on Ningawa V/s. Ramappa (1903) I.L.R. 28 Bom. 94 in which it was held that Art. 119 of the Indian Limitation Act applies to a suit to obtain a declaration that an adoption is valid, and there are no words in it making it applicable to a suit for a declaration that an alleged adoption did take place. That view, however, was subsequently modified in Laxmana V/s. Ramappa (1907) I.L.R. 32 Bom. 7, where it was held that it applies to suits in which either the factum or validity of an adoption is denied. That, however, is a minor point which does not affect the main point in Ningawa V/s. Ramappa which is that the Article applies where there has been an interference which amounts to an absolute denial of the status of adoption held by the plaintiff and an unconditional exclusion of him from the enjoyment of his rights in virtue of that status, and it is contended that in this case there was such an interference in 1918. Again, in Gangabai V/s. Tarabai (1902) I.L.R. 26 Bom. 720 it was held that Art. 119 applies to a case where the plaintiff has no title except one based on an adoption of disputed validity. The plaintiff is a stranger to the family in this case, and his title depends entirely on his adoption. Reference is further made to the decision in Ratnamasari v. Akilandammal (1902) I.L.R. 26 Mad. 291 in which, when the plaintiff's rights as the adopted son of A were interfered with in connection with certain immoveable property in 1889, and in 1897 the plaintiff sued for a declaration that he was the adopted son of A, and sought to recover the property, it was held by a majority of the bench, Bhashyam Ayyangar J. dissenting, that the suit was barred under Art. 119 of Schedule II to the Indian Limitation Act. It is contended that all these decisions are still good law, and they are the only decisions under Art. 119. The view of the majority of the bench in the Madras High Court is based to some extent on Shrinivas V/s. Hanmant (1899) I.L.R. 24 Bom. 260. which was a case under Art. 118 and was overruled by the Privy Council decision in Thakur Tirbhuwan Bahadur Singh V/s. Raja Rameshwar Bakhsh Singh (1906) I.L.R. 33 I.A. 156 S.C. 8 Bom. L.R. 722-vide Doddawa V/s. Yellawa (1921) 24 Bom. L.R. 158 F.B.. Now, although Kalyandappa v. Chanbasappa is a case under Art. 118 it is contended by the respondent that it applies also to Art. 119. All the earlier decisions under Art. 118 are now overruled by Kalyandappa v. Chanbasappa, and if it is held that that decision applies also to Art. 119, Ningawa v. Ramappa and the majority decision in Ratnamasari V/s. Akilandammal are no longer law. In Kalyandappa V/s. Chanbasappa the Privy Council held that Art. 118 of the Indian Limitation Act applies only to a suit under Section 42 of the Specific Relief Act for a declaratory decree that an adoption is invalid or did not take place, and the Art. applicable to a suit by a reversioner for possession of immoveable property on the death of a Hindu female is Article 141, even if it is necessary to decide in the suit whether an adoption was or was not valid. The judgment of the Privy Council proceeded on the difference between the words of the old Article 129 of the Indian Limitation Act of 1871 and the Arts. 118 and 119 under the Acts of 1877 and 1908, and it was held that while the words used in the Act of 1871 had no technical meaning, and were treated as expressing popular language, in the Acts of 1877 and 1908 the matter is otherwise. The words "a suit to obtain a declaration" are terms of art, and relate back to the Specific Relief Act passed in the same year, 1877, as the Indian Limitation Act, and have reference to Section 42 of the Specific Relief Act. Now, although the illustration given, (f), to Section 42, and the remarks on p. 426 as to the awkward results which would follow by holding that a suit for a declaration that an adoption is invalid must be brought within six years of the knowledge of the plaintiff, have no doubt reference to Art. 118, still Art. 119 is in identical terms, so far as regards the declaration, the only difference being as to the period from which limitation is to be counted, which in the case of Art. 119 is when the rights of the adopted son are interfered with. As, therefore, the decision of the Privy Council overruling the previous decisions of all the High Courts on the question is based on these specific words " a suit to obtain a declaration ", I cannot see any reason why a distinction should be made between Art. 118 and Art. 119 in a suit like the present, where the plaintiff sues to recover possession of property on the death of a Hindu widow on the strength of his adoption. The facts of the present case are of a very peculiar nature. Ordinarily speaking the plaintiff would have been entitled to possession as adopted son from the date of his adoption. But owing to an arrangement with his adoptive mother her name continued in the watan register, and she was in possession of the watan property and other property till her death The learned Subordinate Judge has found on the evidence that this arrangement is proved, and this finding appears to be correct as there is no evidence worth the name to contradict it. Therefore, the plaintiff's right to claim compensation arose on the death of the widow in 1917, and if Art. 119 does not apply, then the Art. applicable is Art. 141. In view of the fact that the old Art. 129 of the Indian Limitation Act of 1871 has now been replaced by Articles 118 and 119, both of which use the same word "Declaration". I am of opinion that the ruling of the Privy Council which applies to Art. 118 would apply to Article 119 also, and therefore Art. 119 does not apply to the present case, and therefore the plaintiff's suit is not barred by limitation.

(3.) The result is that the decree of the lower Court will be confirmed, and the appeal dismissed with costs.