Judgement

Appeal (No. 52 of 1922) from a decree of the High Court (April 13, 1917) reversing a decree of the First Class Subordinate Judge at Bijapur.

The suit was brought in 1912 by the appellant, to recover as the nearest reversioner to the last male holder certain watan lands from the respondent, who made title thereto as the adopted son of the adoptive father of the last male holder. The plaint originally contained a prayer for a declaration that the adoption relied on was invalid, but that prayer was deleted by permission of the Court.

The facts appear from the judgment of the Judicial Committee.

Substantially the only question in the appeal was whether art. 118 of the Indian Limitation Act, 1908, applied. By that article the period of limitation for a suit " to obtain a declaration that an alleged adoption is invalid, or never, in fact, took place," is six years, the time from which the period begins to run being " when the alleged adoption becomes known to the plaintiff."

By art. 141 the period in the case of a suit for possession of immovable property " by a Hindu or Mahomedan entitled to possession of immovable property on the death of a Hindu or Mahomedan female " is twelve years, and the period begins to run from " when the female dies."

The Subordinate Judge found that the alleged adoption of defendant No. 1 was invalid, and that the adoption of Madivalappa was valid. He made a decree for possession of the lands in suit.

The High Court reversed the decree. The learned judges (Scott C.J. and Allison J.) agreed with the findings above stated, but held that the suit was barred by art. 118. To a contention that art. 118 did not apply, because the respondent did not claim to have been adopted by the last holder, they replied that if the plaintiff was barred by time from suing to challenge the adoption of the defendant, the defendant must be taken to be the brother of Madivalappa and therefore a nearer heir to him than the plaintiff.

1924. Feb. 7, 8, 11. E. B. Raikes for the appellant. The decision that the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 118, was erroneous. The suit falls within art. 141, under which the period of limitation is twelve years from the death of the female holder. Art. 118 in terms applies only to a suit for a declaration as to the invalidity of an adoption. Art. 118 being in the same terms as in the Act of 1877 the judgments of the Privy Council in Tirbhuwan v. Rameshar Bakhsh Singh (( 1906) L. R. 33 I. A. 156.) and Muhammad Umar Khan v. Muhammad Niaz-ud-din Khan (( 1911) L. R. 39 I. A. 19.) show at least that the article does not apply to this case, the adoption relied on by the defendant being a mere nullity. Further, the article does not apply, because the alleged adoption was not to the last holder. Jagadamba v. Dakhina Mohun Roy (L. R. 13 I. A. 84.) and Mohesh Narain v. Taruck Nath Moitra (L. R. 20 I. A. 30.) were decided under the Limitation Act, 1871, Sch. II., art. 129, which refers to a suit " to establish or set aside an adoption" ; the decisions therefore are not applicable. A suit for a declaratory decree under s. 42 of the Specific Relief Act, 1877, or under the law previously existing, is a special class of suit ; art. 118 applies only to that class of suit. The Limitation Act prescribes the time within which each of the specified kinds of suits and proceedings must be commenced ; in applying the articles the nature of the suit only has to be considered. In the present case the High Court was bound by its decision in Shrinivas Sarjerav v. Balwant Venkatesh (I. L. R. 37 B. 513.), in which it was held that the judgments of the Privy Council in 1906 and 1911 did not show that the terms of art. 118 of the Act of 1877 did not render the earlier decisions under the Act of 1871 inapplicable. The Full Bench decision in Shrinivas v. Hanmant (( 1899) I. L. R. 24 B. 260.) was there followed, but that decision was before the two decisions of this Board. In Velaga Mangamm