KODALI BAPAYYA Vs. KODALI AKAMMA

JUDGEMENT

(1.) This case raises the question whether a reversioner, who has allowed his right of suit to declare an alleged adoption invalid to become barred under Article 118 of the Limitation Act, is entitled, when subsequently the alleged adopted son in conjunction with a widow of the last male owner executes a mortgage of the estate, to sue the mortgagor and mortgagee for a declaration that the mortgage is not binding on the reversioner. The right to sue for a merely declaratory decree is now regulated by Section 42 of the Specific Relief Act, which allows of such a suit by any one entitled to any legal character or to any right as to any property against any one denying or interested to deny such legal character or right of property in cases where consequential relief is not obtainable, and leaves it in the discretion of the Court whether the decree should be passed or not. The section must be construed liberally and illustrations (e) and (f) show that it includes suits by the presumptive reversioner for a declaration that alienations by the widow are not binding on the reversioner and also suits to declare an adoption invalid. In the suit to declare the widow s alienation invalid, it would seem to be the reversioner s right to the property in question on the death of the widow rather than his character of presumptive reversioner that, is called in question by the alienation and brings the case within the section Although in the language of English Law the reversioner has a mere expectancy, which under Section 6 of the Transfer of Property Act is a right incapable of transfer, being a mere spes successions, as it is said, yet it must be considered a right to property within the meaning of the section; and the observations pointing the other way in Sarnarendra Chandra Deh Barman Barathdkw v. Btrendra Eishore Deb Barman 35 C. 777 at p. 794 : 8 C.L.J. 1 : 4 M.L.T. 27 : 12 C.W.N. 777, appear to me to go too far and to be inconsistent with the section as interpreted by the illustrations thereto. The interest of the next reversioner is undoubtedly of a substantial character, and it must also be borne in mind that in these suits it is now settled that he represents the whole body of reversioners. Similarly a suit to declare the adoption invalid may also be considered to involve the plaintiff s presumptive right to succeed to the property, and also what is much the same thing, his legal character as heir presumptive to the last male owner. These suits resemble old English bills quia timet or suits in equity for the perpetuation of testimony, but they are subject to two restrictions-- they must be brought within the periods prescribed by the Limitation Act, and the Court in the exercise of its discretion and following a long line of precedents will not ordinarily make such a declaration in favour of any one but the next reversioner, though it may do so in favour of a more remote reversioner when the occasion calls for it. Govinda Pillai v. Thayammal 28 M. 57 : 14 M.L.J. 209.

(2.) The reason for restricting the period within which such suits can be brought would appear to be to afford an inducement to bring the suit when the memory of the events in question is still fresh and reliable evidence is available, but if the reversioner neglects to sue for a declaration within the statutory period, he does not, it is now well-settled, lose his right to question the alienation or adoption on the death of the widow of the last male owner by instituting a suit for possession to dispute the alienation or adoption on such evidence as may then be available. The question now before the Court must be dealt with in the light of these considerations.

(3.) The question whether the present plaintiff is entitled to sue to question the widow s alienation itself depends, according to the ordinary practice of the Court, on the question whether he is the nearest reversioner, which again involves the question of the alleged adoption, but it may be disregarded as the defendants are willing to submit to a declaration that the alienation by the widow confers no title on the alienee and we may, therefore, confine ourselves to the claim as regards the alleged adoption. The first prayer in the plaint is for a declaration that the adoption is invalid and this is " clearly barred as against the widow and the boy under Article 118. The plaintiff, however, claims that the alienation by the alleged adopted son gave him a fresh cause of action against the latter and against the alienee. As regards the adopted son, this alienation does not involve any further denial of the plaintiff s legal character or right of property than was involved in setting up the adoption in the first place, and" the plaintiff must, in my opinion, be held to be barred by law from claiming a declaration against him after the time prescribed under Article 118 has elapsed. It might, of coarse, have been provided that the starting point of limitation in declaratory suits of this nature should be the time when the person claiming to be adopted took some steps in that character, but that is not the starting point in the Article, and I do not see my way to applying it. It may, however, be contended in the view I have taken that the action of the mortgagee in taking the mortgage from the alleged adopted son involves a denial of the next reversioner s title by the mortgagee and gives rise to a fresh cause of action, at any rate, as against him. This contention appears to ma to be well-founded, but the remedy provided by Section 42 is discretionary, and so long as the Court is debarred by law from making a declaration as to the adoption which would be binding on the adopted son himself, it would, I think, be well advised in refusing to make such a declaration against or in favour of the mortgagee alone, and to leave the question of the validity of adoption to be gone into once and for all on the death of the widow when the plaintiff s right to sue for possession as next reversioner accrues.