Sir John Wallis—

The parties in the case belong to a Brahmin family of good standing who carried on a money-lending business in the District of Cuttack in Orissa and acquired moveable and immovable property valued at two lakhs of rupees. The defendants are the sons and grandsons of Narsingh, who belonged to the senior branch of the family and died in 1914, and the plaintiff, Fakira, is the widow of Abhimanyu, the posthumous son of Kulamoni, who belonged to the junior branch. According to the defendants Kulamoni before his death in 1877 adopted Narsingh's second son Udaya, and similarly in 1903 Kulamoni's son Abhimanyu twelve years before his death in 1915, adopted Udaya's eldest son Padmalav, defendant 1.

In June 1924, nine years after her husband's death, the plaintiff, Fakira, filed the present suit in the Court of the Subordinate Judge of Cuttack to recover her husband's share in the suit properties. She alleged that before her husband's death Narsingh's son, Udaya, had set up a false case that he had been adopted by Kulamoni and that for the sake of peace and to avoid litigation, it had been settled that he should have a one-fourth share of the properties which would otherwise have fallen to her husband, and accordingly she only claimed the remaining three-fourths. She denied that the adoption of defendant 1, Padmalav, by her deceased husband, Abhimanyu, had ever taken place, and alleged that she had been terrorized by some of the defendants and others into signing under a threat of criminal proceedings a deed of settlement under which she was only to be entitled to maintenance.

There were other issues, but the main question in both the lower Courts was as to the factum of the adoptions set up by the defendants. The Subordinate Judge found that both adoptions were proved and dismissed the plaintiff's suit. The plaintiff thereupon appealed in forma pauperis to the High Court at Patna. Das, J., who delivered the judgment of the Court, expressed grave doubts as to the earlier adoption, but did not record a formal finding, as the plaintiff had not disputed Udaya's right to the one-fourth share which was all he would in any case have been entitled to on partition with the plaintiff's husband, a natural son born after the adoption. As regards the second adoption, he held that it was clouded with suspicion which the defendants had failed to dispel, and accordingly the High Court reversed the decree of the lower Court and decreed the plaintiff's suit.

From this decree the defendants preferred the present appeal to His Majesty in Council on the grounds, as stated in the appellant's case, that the judgment of the High Court is largely based on suspicion for which there is no justification; that the judgment of the Subordinate Judge is based on the credibility of witnesses examined before him which the High Court had not given any cogent reasons for disbelieving; that the weight Of the evidence is in favour of the appellants; and that the suit is barred by limitation.

As regards limitation the Subordinate, Judge had held that the suit was barred under Art. 116, Lim. Act, but, as pointed out in the judgment of the High Court, it is now finally settled by the judgment of the Board in Kalyandappa v. Chanbasappa, AIR 1924 PC 137=79 IC 971= 51 IA 220=48 Bom. 411 (PC), that this article is inapplicable, and consequently the suit is not barred.

For better understanding of the case it appears desirable in the first place to show the state of the family in the absence of the alleged adoptions.

It is common ground that for nearly forty years before his death in 1914 Narsingh was the karta of the joint family, and the plaintiff's husband, Abhimanyu, was the sole representative by birth of the junior branch, and was at any time after attaining majority entitled to separate, and if there had been no adoption by his father Kulamoni, to take half of the family property on partition, leaving the other half for Narsingh, his five sons and their issue. Furth