A suit for possession and declaration of right that requires deciding the validity of an adoption used as a defense is a "suit to set aside an adoption" subject to the twelve-year limitation period. Rights barred under the Limitation Act of 1871 are not revived by the Act of 1877.

Judgement

Appeal from two decrees of the High Court (Sept. 4, 1889, and Feb. 25, 1890) reversing a decree, so far as it was favourable to the Appellant, of the Subordinate Judge of Pubna and Pogra (June 14, 1887), and dismissing the Appellants suit as barred by limitation.

The facts are stated in the judgment of their Lordships.

The first Court held that the Plaintiff had a good title as adopted son, and that the Defendant had no title, either by adoption or estoppel, or as the son of his adoptive mother. He held upon the construction of the anumati patra that it was a will which conferred life estates upon Shib Narain’s mother and his widows successively, with remainders in fee to the adopted sons ; and that this disposition was not revoked by the subsequent acts of Shib Narain in the matter of the Plaintiffs adoption, or by the conduct of the widows in applying for a certificate. The result, therefore, would be, that the Plaintiffs right to one moiety held by Tripura did not arise till her death in 1884, and was therefore not barred by arts. 140, 141 of Act XV. of 1877, nor by art. 129 of Act IX. of 1871, as interpreted by the Judicial Committee in Jagadamba Chwdhrani v. Dakhina Mohun (Law Rep. 13 Ind. Ap. 84.).

The High Court arrived at a different conclusion from that of the original Court as to the effect of the anumati patra. They considered that that document, if it stood alone, would have interposed life estates of the widows before the interests of the adopted sons arose; they thought, however, that this intention had been changed so early as June, 1845, when Shib Narains petition was presented to the Deputy Collector, and that the documents which were exchanged at the time of the Plaintiffs adoption excluded the idea that his estate as heir to his father was to be postponed to that of the widows. The subsequent petition to the Collector, in May, 1848, did not revive the anumati patra in its entirety, but merely repeated the authority it gave for a second adoption. That being so, the Plaintiffs title accrued at the death of Shib Narain in 1850, and the adverse possession of Tripura Soondari and her son, accrued at the latest in 1869, when the separation between the widows took place. The result was that the suit was barred by art. 141 of Act XV. of 1877.

The High Court also considered that long before the Act of 1877 came into force the suit had been barred by art. 129 of Act IX. of 1871, inasmuch as the Plaintiff could not have recovered the whole property at any time after the second adoption in 1851, without setting it aside, and therefore, according to the decision in Law Rep. 13 Ind. Ap. 84, the statute ran from the date of the adoption.

Doyne, and G. W. Arathoon, for the Appellant, contended that the suit was not barred by limitation ; either by adverse possession of over twelve years by the Defendant No. 1, or by reason of the Appellant not having challenged the adoption within twelve years of its taking place within the meaning of art. 129, Act IX. of 1871. The case falls under art. 141 of Act XV. of 1877, so far as that Act applies, and not under art. 118. Reference was made to Raj Bahadoor Singh v. Achumbit Lal (Law Rep. 6 Ind. Ap. 110.). This is a suit to recover possession of property within the meaning of that case, and it is brought within twelve years from the time when the right accrued. It was brought in 1885, and Tripura Soondari, whose possession w as in her own right as a person entitled for life under the anumati patra, and therefore not adverse to the Plaintiff, died in 1884. Till that year the Plaintiff had no cause of action. There is a distinction between the Acts of 1871 and 1877. This is not a suit to set aside an adoption, within the meaning of the former Act and of Jagadamba Chowdhrani v. Dakhina Mohun (Law Rep. 13 Ind. Ap. 84.). Even if it were, that Act has been superseded by the Act of 1877, which contains different words on this subject. Reference was made to Basdeo v. Gopal (Ind. L. R