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Madras High Court
Parvathi Ammal vs Saminatha Gurukal And Ors. on 24 November, 1896
Equivalent citations: (1897) ILR 20 Mad 40
Author: Shephard
Bench: Shephard, Davies


Shephard, J.

1. There is no doubt that the plaintiff knew of the first defendant’ adoption as long ago as in 1885, that is more than six years before the institution of the present suit. The Subordinate Judge finds that since the death of Swarna Gurukal, the adoptive father, the defendant has been in possession, though for a time after his father’s death his possession was disturbed. In 1890, a suit was brought by the plaintiff, alleging that she had all along, since her husband’s death, been in possession of all his property. It was found in that suit that the plaintiff was not and never had been in possession of the property. It was necessary for the Judge to find whether the plaintiff was in possession at the date of that suit, because she asked for a declaration of her title. It having been found that she was not in possession, the suit was dismissed on the 28th February 1891. In her present plaint, she alleges that she was dispossessed in that very same month. No attempt is made to prove this allegation, which in itself is most improbable, but it is suggested that the evidence shows that the plaintiff was in possession before 1890 and that it is open to her, notwithstanding the decree in the suit of 1890, to establish that possession. It is argued that, if she was in possession between 1881 and 1890, there was no occasion for her to challenge the first defendant’s adoption and therefore Article 118 cannot properly be applied. Whatever weight may be due to this argument in a case in which, the plaintiff can show an undisturbed possession in defiance of the alleged claim by adoption, the point does not really arise in the present case, because it is clear that the plaintiff’s possession was at the best an interrupted and incomplete possession. The evidence seems to show rather that there was a constant struggle for possession on her part than that she was in actual enjoyment.

2. Holding, then, that the plaintiff is seeking to recover property of which she, since her husband’s death, has not been in possession, and which has been all along claimed by the defendant in virtue of his alleged adoption, we have to consider whether the suit is barred by limitation. On the facts stated, it unquestionably would be barred, if the Act of 1871 still remained in force, for it has been decided by the Judicial Committee with reference to Article 129 in the schedule of that Act that a plaintiff, whose claim is met by the assertion of an adoption and cannot be made good without negativing the adoption, must bring this suit -within the time fixed in that article. It is contended that the ruling of the Judicial Committee is not applicable to. cases governed by the existing Act, or, in other words, that the law as it stood under the earlier Act has been altered by the passing of the Act of 1877.

3. Comparison between Article 129 in the schedule of the repealed Act and Article–118 of the Act of 1877 shows that an alteration of the language has been effected in all three columns. The period has been reduced from twelve years to six; the starting point has been altered by substituting the date when the plaintiff knows of the adoption for the date of the adoption; the description of the suit has been altered. This last alteration is the only one material to the present question, for it cannot be suggested that the other alterations affect the applicability of the article. To support the plaintiff’s contention, it is necessary to show that the change in the language descriptive of the suit points to a change of policy on the part of the legislature and to the intention to restrict the application of the article to suits in which a mere declaration is sought for. Unfortunately for this contention, we know the reason for the change of language and can, therefore, account for it fully without ascribing any change of policy to the legislature. It is plain, as is pointed out by the Judicial Committee in Jagadamba Ckaodhrani v. Dahhina Mohun Roy Chaodhri I.L.R. 13 Cal. 318 and it also seems to have been pointed out before 1877, that the phrase ” a suit to set aside an adoption ” is an inaccurate one. Hence the substitution in the 118th article of the expression–“suit to obtain a declaration that an alleged adoption is invalid or never took place. “I am at a loss to understand how this substitution, which is in accordance with the observations of the Judicial Committee, though not consequent upon them, can be taken to effect a change of law in favour of the plaintiff. The observations of the Judicial Committee apply to the suit of a person in the present plaintiff’s position, whether it is incor¬rectly called a suit to set aside an adoption or correctly called a suit to declare an adoption invalid. In Mohesh Narain Munshi v. Taruck Nath Moitra I.L.R. 20 Cal. 494 there is a strong dictum to the effect that the plaintiff’s position has not been altered for the better by the change of expression and in a later case, it appears to have been assumed that, notwithstanding the change?, a plaintiff suing for possession must bring his suit within six years of his knowledge of the defendant’s adoption. Lachman Lal Choivdhri v. Kanhay Lal Mowar I.L.R. 22 Cal. 609 A string of oases was cited in which a different view of the law has been taken by other High Courts. I do not find in the judgments in those cases any sufficient reason given for attributing to the Legislature an intention, which in itself is most improbable, when it is remembered that before the Act of 1871 was repealed, the interpretation put by the Judicial Committee on Article 129 had not been enunciated.

4. An argument is founded on the fact that the language descriptive of the suit has not been changed in Article 91 corresponding to Article 92 of the Act of 1871. Natthu Singh v. Gulab Singh I.L.R. 17 All. 167. The reason for this is plain, The phrase “suit to cancel or set aside an instrument” is not an inaccurate one, and therefore there was no need to alter the language in the now Act. If it had been the object of the Legislature to place parties challeng¬ing or maintaining an adoption in a position more favourable than that assigned to them by the Act of 1871, as interpreted by the Judicial Committee, the simplest course would have been to repeal Article 129 and leave declaratory suits, relating to adoption to be governed by the general article. The pre¬servation of the special provision for suits in which such questions are raised shows that the policy which actuated the Legislature in 1871 was still maintained in 1877. The reduction of the period from twelve years to six in cases in which the plaintiff has from the first knowledge of the alleged adoption or of the fact that the adoption is denied, points to the desire to restrict, as far as possible, the time within which such questions may be raised. There was no need for the abbreviation of the period or indeed for the retention of any special article, if it was intended to apply only in cases in which the plaintiff seeks a declaration and nothing more.

5. For these reasons, I am of opinion that the law has not been altered so as to make Article 118 inapplicable to the present suit and that, therefore, in the circumstances above stated, the suit is barred by the law of limitation.

Davies, J.

6. I concur in the conclusion of my learned colleague, as id appears clear, for the reasons stated by him, that the plain ruling of their Lord¬ships of the Privy Council has not been in any way affected by the mere change in the wording as to the character of the suit in the new article. It has been urged, however, that the effect of that ruling may not have been foreseen and that it may lead to unnecessary litigation on the one hand or to a denial of justice on the other.

7. The case is put for instance that supposing the widow here had been in actual possession, there was no occasion for her to sue until she was ousted, and yet if that ouster had taken place more than six years after the adoption became known to her, she would not, under the present ruling, have been able to contest it. This result, it is contended, involved either her bringing a suit at a time when none was necessary, or the hardship that when it did become necessary, it was not allowed.

8. But the obvious answer to the first part of the’ argument is that it was not unnecessary for her to sue, for it was necessary for the purpose of complet¬ing her title, which, so long as the adoption stood in the way, was a bad one. and the answer to the second part of the argument is that the widow would be in no worse a position than the adopted son, for, if her six years possession had begun with a denial of his adoption, ho would, after the lapse of that time, be equally debarred under the next Article (119) from suing to establish it.

9. Another case put is that of a reversioner, say a brother, entitled to inherit hits divided brother, estate but for an adoption made by the latter. Supposing that adoption to have been made six years before his death, is the brother, it is asked, bound to sue to declare the adoption invalid before his right to inherit accrues, and when if be should happen to predecease his brother, it would never accrue. The answer must be in the affirmative and not unreasonably, for although the litigation may, in a case here and there, turn out to have been in vain, that disadvantage is small compared with the advantage to the community generally in the security of titles, if they are not challenged within a reasonable time, The principle has always been the same. The only differ¬ence now is that the time for impeaching an adoption has been changed from twelve years from the date of it absolutely, to six years from the time that it became known to the party ready to dispute it. This is indeed a more favourable starting point for him than the old one.

10. The only case that could arise of a supposed denial of justice might be the case of a remote reversioner suddenly finding himself in the position of next reversioner but too late to sue. It could be answered to him that it was owing to his want of. due diligence be safeguard his rights, while there was yet time.

11. It is pointed out that to no other status than that of adoption is this six years’ rule applicable, That seems to be so, but it is open to the Legislature, 1 presume, to extend the provision to the cases of marriage and legitimacy, if it so pleased.

12. The appeal is accordingly dismissed with costs.

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