S.P. Kotwal, J.
1. This appeal arises out of a suit for a declaration that certain alienations were not binding upon the plaintiffs (the first and second respondents) who were revisioners entitled to the property of one Moti Patil. the suit was decreed by the trial court and the legal representatives of the alienee are the appellants.
2. In order to explain the relationship of the plaintiffs with the deceased Moti Patil, of whose estate they claim to be reversioners, it is necessary to set forth the following genealogical tree :-
PUNJOO (dead)
|
-------------------------------------------------------
| | | |
zapri (d) Mt. Sagni=Moti=Rukh Kesheo (d) Raghu (d)
| | | |
--------------------- Mt. punal(d)
| | | |
Mohan Bapu (d) Dasru ---------------
=Bega alias | |
Gahena Vithal Santosh
(plff.1) (plff. 2)
The plaintiffs claimed that Moti Patil who was separate from his brothers died on 28-9-1912, leaving considerable movable and immovable property mentioned in Schedule A attached to the plaint. Moti Patil was twice married and his two wives were Sagni and Rukhi. By the first wife he had a daughter, Punai, and the plaintiffs Vithal and Santosh are the sons of Punai. Plaintiff No. 1 was alleged to have been bom on 16-9-1919. Mst. Punai, their mother, died in 1927. Moti Patil's second wife Mst. Rukhi or Rukhmabai was the first defendant in the suit.
3. Moti Palil had three brothers, Zapri, Kesheo and Raghu. Kesheo died and his son Manikrao who was taken in adoption by Moti Patil also died. Raghu had a son called Hari, but both Raghu and Hari died before the date of suit. The third brother Zapri is also dead but he left behind three sons Mohan, Bapu and Dasru. It was this Bapu, the second son of Zapri, who, as is shown below, was alleged to have boon adopted by Moti Patil. Bapu was also dead on the date of suit and was represented by his widow Eega alias Gahena, the second defendant. It may at this stage also be noted that this lady Mst. Gahena was the sister of Mst. Rukhmabai, the second wife of Moti Patil and the first defendant in the suit.
4. The plaintiffs alleged that the entire property of Moti Patil was held and owned by his widow Mst. Rukhi as a life estate but that she acted all through in a manner most prejudicial to the right of the plaintiffs as reversicners; that she led a very luxurious life beyond her legitimate means, and without legal necessity incurred loans and alienated property in her possession; that she was under the influence of Bapu and incurred debts only in order to benefit him; and that the debts were imprudent and unnecessary. They also alleged that the creditors knew all the facts and, nevertheless continued to advance loans without justification.
5. The two alienations which they claimed were not binding upon the estate were a mortgage dated 11-7-1919 in favour of one Dhansing, and another mortgage dated 25-7-1929 (Ex. D-11) in favour of one Bhanji. The mortgage dated 11-7-1919 in favour of Dhansing, father of the original third defendant Tarachand, was for a sum of Rs. 10,000/-. On the basis of this mortgage Tarachand had obtained a decree in Civil Suit No. 21 of 1932, in the Court of the Second Additional District Judge, Nagpur, on 19-9-1935. With this alienation, however, we are not concerned in the present appeal because it appears that the trial Court had in its finding on preliminary issues, delivered on 7-8-1942, held that the suit for obtaining a declaration that this alienation was not binding upon the plaintiffs was barred by time and had discharged the third defendant from the suit. Against that finding; the plaintiffs did not appeal and therefore that finding has now become final.
6. The other alienation dated 25-7-1929 which was the subject of challenge in the suit and in this appeal was a mortgage executed by Mst. Rukhi and Bapu in favour of one Bhanji Kunbi for a sum of Rs. 20,000/-. Bhanji died after the alienation and defendants 4 to 7 (the present appellants) arc his sons.
7. This was the shape of the suit as it emerged after several amendments thereof by the plaintiffs. It will be noticed that in the amended plaint there is no reference whatsoever to any adoption.
8. In the original plaint the plaintiffs had alleged that because Rukhi was the sister of Gahena wife of Bapu Patil, she was more favourably inclined towards Bapu Patil and was hostile to the plaintiffs who were her daughter's sons, and in Order to defeat their reversion as the grandsons of Moti Patil, she falsely put forward Bapu Patil as the adopted son of Moti Patil. They denied that Bapu Patil was ever adopted by Moti Patil as the latter was unconscious for several days before his death on 28-9-1912.
9. Of the defendants in the suit, the first defendant Mst. Rukhi, remained absent and the suit proceeded ex parte against her. The second defendant Mst. Bega was given up as stated above. The third defendant Tarachand son of Dhansing was also given up after the adverse findings referred to above that the suit against him was barred by time. The only contesting defendants who remained were therefore defendants 4 to 7, sons of Bhanji Kunbi, the original mortgagee upon the mortgage dated 25-7-1929. They alleged that Moti had adopted Bapu before his death, and since the mortgage in favour of their father was executed jointly by Mst. Rukhi and Bapu, the plaintiffs claiming as reversioners could not challenge the alienation. They also alleged that after the death of Moti disputes arose in mutation proceedings and a family settlement was arrived at wherein Bapu was admitted to be the adopted son of Moti and that family settlement was binding; upon the plaintiffs and could not be challenged. Alternatively, they pleaded that the alienations in favour of their father were for legal necessity and binding on the plaintiffs. They also pleaded that Bapu was throughout treated as an adopted son by the family of Moti and the plaintiffs were estopped by their conduct. In any event, alleged, Bapu was throughout in possession of the property in suit and the rights of the plaintiffs have been lost by adverse possession. As a further alternative they pleaded that Moti had executed a will dated 27-9-1912 in favour of Bapu and therefore the plaintiffs have no right to claim back the property. Defendants 4 to 7 also invoked section 41 of the Transfer of Property Act, in their favour & they alleged that the mortgage deed was executed in favour of their father by Bapu as an ostensible owner of the property.
10. The trial Court held that the adoption of Bapu as the son of Moti was not proved; that, the will dated 27-9-1912, of Moti in favour of Bapu was also not proved and therefore it did not confer any rights upon Bapu. It also held that the alleged family arrangement, though it took place, did not bind the plaintiffs and therefore after the lifetime of Moti his widow Rukhi, the first defendant, held the estate as a limited owner. As to the mortgage dated 25-7-1929, the trial Court held that it was not justified by legal necessity, that no enquiries had been made by Bhanji when he advanced the moneys, and that therefore the alienation was not binding upon the plaintiffs. The trial Court also negatived the plea of adverse possession advanced by the defendants 4 to 7 as also their claim to be protected under section 41 of the Transfer of Property Act. In the result, the trial Court decreed the plaintiffs' suit.
11. On behalf of the appellants Mr. Halve principally raised two contentions. In the first place he attacked the finding as to adoption and in the second place he urged that the plaintiffs' suit as amended could not He because on the date of the amended plaint their right to claim a declaration that the adoption of Bapu Patil was invalid and had become barred by time, and when once that right was barred the plaintiffs could not, ignoring the adoption, make a claim simpliciter, that the alienations were not binding upon them.
12. On the question of adoption, apart from the oral evidence to which we shall presently advert, the trial Court was impressed by two important circumstances, viz. (1) the documentary evidence in the case and (2) that some of the appellants' witnesses admitted that Bapu was a married man.
13-24. (After discussion of the documentary and oral evidence their Lordships proceeded :)
In our opinion, however, the effect of the documentary evidence is so overwhelming that it is not necessary to rely upon oral evidence to prove the adoption, though that evidence does support the documentary evidence. We would also add that the adoption, on the date on which evidence was taken in the suit, was at least thirty years' old and in these circumstances we are of opinion that in the words of the Judicial Committee of the Privy Council In Rajendro Nath v. Jogendro Nath 14 Moo Ind App. 67
'every allowance that can be fairly made for the loss of evidence during this long period, by death or otherwise -- every allowance which can, account for any imperfection in the evidence--ought to be made.'
25. The other circumstance on the question of adoption by which the trial Court was impressed, was that some of the contesting defendants' witnesses, namely, Ganpat (4-7 D W. 1). Kanho (4-7 D. W. 11), and Dasrao (4-7 D. W. 12), admitted in cross-examination that Bapu Patil was on the date of his adoption married. The trial Court seized upon this circumstance to hold that the adoption was invalid in law because, except under the Bombay School of Hindu law, a married man cannot be taken in adoption and the parties were admittedly governed by the Banares School of Hindu law.
26. It seems to us that this finding of the teamed trial Judge cannot be sustained' in law. The defendants had in answer to the suit pleaded the adoption of Bapu Patil during the lifetime of his father Moti Patil. Any legal plea as to the invalidity of the adoption ought to have been raised by the plaintiffs. The plaintiffs never alleged that the adoption was invalid for the reason that Bapu Patil was a married man. The defendants could in answer to such a plea have raised the contention that by the custom in their caste a married man could be taken in adoption. As a matter of fact, two of their witnesses Kanho (4-7 D. W. 11) and Dasrao (4-7 D. W: 12) did depose to some customs governing adoption in their caste, but the trial Court brushed aside their evidence, holding that 'there is no pleading of the defendants that there is a special custom in the caste which requires only Chandan Tikka and sugar distribution and not other ceremonies as are done under the Hindu law.'
27. Apart from the evidence we have referred to above, there is considerable evidence of the conduct of Bapu and of statements made in documents maintained by third parties, showing that they described and treated him as the son of Moti. As we have shown above, a compromise took place in the dispute which arose in the mutation proceedings and the family settlement that was arrived at was recorded on 7-6-1913. (Vide Exhibits P-13 and P-14). Thereafter, Bapu has consistently described himself as the son of Moti Patil and the documents which show these facts are as follows :
28. On 8-6-1913, Bapu executed a bond in favour of Tarachand son of Dhansing describing himself as Bapu son of Moti Patil. The document is Ex. 4-D-4 and is proved by the evidence of Tarachand himself (4 D. W. 5). Ex. 4-D-6 are the account books of one Shankarrao, a money-lender of the village Pardi, with whom Moti Patil had considerable dealings. After the adoption and after the death of Moti Patil Bapu undertook to pay the debts of Moti and the khata continued in the name of Bapu son of Moti Patil. The account books are proved by the evidence of Khushalpuri (4D. W. 9), the diwanji of Shankarrao. There is no reason whatsoever to doubt the authenticity of these accounts. Ex. 4-D-12 is a letter written by Bapu to Bhanji Patil, acknowledging the receipt of a certain amount of money sent to him through the former's mukhtyar Narayan Daryaji. Therein also Bapu described himself as son of Moti Patil. The letter is proved by the evidence of Sadasheo (4 D. W. 13) who has also proved that this amount was taken. It was in order to pay off the previous indebtedness of his adoptive father Moti. Ex. 4-D-13 is a lease in perpetuity granted on 7-6-1919, to one Patideo son of Deodeo Raghvi. Mohandeo, son of Patideo, has been examined as 4 D. W. 14 and proves the grant of the lease in favour of his father. The document was again signed by Bapu as the son of Moti Patil. Similarly Ex. 4-D-14 is a registered sale deed dated 8-10-1920, executed in favour of one Thunnudeo son of Laludeo Raghvi. Ex. 4-D-18 is a certified copy of an order sheet in a revenue case commenced by one Manikrao against Bega alias Gahena, the wife of Bapu and Bapu himself. In that case, it appears from the order sheet that Bapu (non-applicant in the case) was described by the applicant as the son of Zapri & Bapu applied to the Court to have this description of him corrected, stating that he 'having been adopted by his uncle Moti he may henceforth be described as Bapu son of Moti.' Similarly, Ex.4-D-19 is an oral statement made by Bapu in the Revenue case referred to above, and therein also ho stated his name as 'Bapu son of Moti.'
29. It would thus appear that after the termination of the mutation proceedings and the settlement dated 7-6-1913, Bapu throughout described himself and acted as the adopted son of Moti Patil and was so accepted by various persons including the creditors and persons who took transfers of immovable property from him. This evidence, in our opinion, is of considerable importance and very relevant to show that from 1913, right down to the end of 1929, Bapu was regarded by everyone connected with him in business or otherwise as the son of Moti Patil. It has not been shown that there were any disputes pending as to the claim of Bapu to be Moti's adopted son, so as to cast any doubt on the genuineness of the documents or his conduct.
30. The trial Court paid little or no attention to all this evidence. It does not appear to have wasted much time in considering these documents or their evidentiary value, but it generally discarded them by a casual observation in paragraph 28 of its judgment as follows :
'It has been sugggested that Bapu Patil has been executing various documents along with Rukhi as son of Moti and this goes to prove the fact of adoption. As discussed above these documents came to be executed when Bapu had begun to live with Rukhi, after marrying her sister. The mere execution of the document cannot go to prove the factum of adoption.'
Though the learned Judge states 'As discussed above' it does not appear that he has discussed any of these documents in any previous paragraph of his judgment. The documents, in our opinion, were relevant in considering the question of adoption, especially in a case where the adoption was being challenged after a lapse of nearly 30 years and having regard to the fact that considerable evidence must have disappeared during that time. We do not think that they could be brushed aside in the summary manner in which the trial Court has chosen to deal with them.
31. Another circumstance, which in the view of the trial Judge militated against the fact of adoption, was that Bapu relied upon a will alleged to have been executed by Moti in, his favour. As to this, we have already shown that the will does not in any way militate against the claim of Bapu to be the adopted son of Moti because the will itself recites the fact of adoption and bequeaths all the property to Bapu as the adopted son of Moti. It appears to us that it was a case of lay people trying to make an accomplished fact doubly sure, and that the will came to be executed as a matter of abundant caution in case someone disputed Bapu's adoption. The parties may have also considered that it would be easier to prove a will than to prove an adoption.
32. For these reasons, disagreeing with the trial Court, we hold that there is sufficient evidence to prove that Bapu was the adopted son of Moti and that there is no legal impediment or bar to the validity of that adoption.
33. Upon this finding the plaintiffs' suit would fail and that 'would be sufficient to dispose of this appeal. But there is, in our opinion, a legal ground on which the plaintiffs' suit ought to fail and that is the question of limitation. As we have already indicated above, the plaint after amendment shows that the plaintiffs were merely suing for a declaration that the alienations referred to in the plaint were not binding upon them after the death of defendant No. 1 Rukhi. There was no reference whatsoever in the plaint, as amended, to the adoption of Bapu. It was only in the written statement of the second defendant that the question of adoption of Bapu by Moti was raised and the second defendant pleaded in paragraph 7 that
'The present suit for setting aside adoption of Bapu or for a declaration that Bapu was never adopted is long barred by time. That Bapu's adoption has been openly claimed during the mutation proceedings by the production of the will and Bapu was all along acting as the adopted son since 1912'.
34. This question was decided in the trial Court by the order dated 7-8-42 of the then presiding Judge Mr. S. Elahi Baksha, who gave certain findings on preliminary issues and the view which the trial Judge took may be shortly expressed in his own words as follows:
'There is nothing in the language of this finally amended plaint, to suggest -- and the prayer clause is very clear -- that the plaintiffs seek to set aside Bapu's adoption if any, or to claim a declaration that Bapu's adoption is invalid or in fact never took place.........The declaration sought, if granted, will not, by any stretch of imagination, have the effect of nullifying Bapu's adoption if any, or Moti's will, if any. Even if the decree to be granted can be construed to adjudicate upon these points, the absence of Bapu and his legal representative Mst. Bega from this suit will not bring any fruit to the plffs. in regard to those matters. The fears of the defendants Nos. 3 to 7 are unfounded and not of any avail'.
The learned Judge then went on to hold that in the present suit the plaintiffs merely seek to obtain a declaration 'as to the non-binding nature of the two transactions only so far as their connection with the widow's acts is concerned. Such a suit therefore remains a declaratory suit pure and simple, when Bapu or Bapu's legal representative are not on record, nor any relief is claimed in respect of the execution of the mortgage by Bapu also'.
35. This finding has been challenged by Mr. P. A. Halve on behalf of the appellants and he relied upon a Full Bench decision of the Andhra High Court in Janikamma v. Mattareddi AIR 1956 Andh 141, while Mr. Mangalmurti on behalf of the respondents relied upon the Privy Council cases in Kalyandappa v. Chanbasappa ILR 48 Bom 411 : AIR 1924 PC 137 and Padmalav v. Fakira Debya .
36. The point of law which thus arises between the parties may be stated (as it was stated by Lord Phillimore in Kalyandappa's case (C) at p. 417 (of ILR Bom) : (at p. 138 of AIR) ) as follows:
Plffs. say 'we deduce a good title. We are the maternal grandsons of Moti, the last male holder and so entitled to the reversion on the death of his wife Rukhi. We are entitled to sue during her lifetime for a declaration that the alienations made by her are void except for her lifetime or until her remarriage. We bring our suit within 12 years, that being the period allowed by Article 125 of the First Schedule to the Limitation Act which provides that such a suit may be brought within 12 years from 'the date of the alienation''.
The defendants say 'You can try to put it in that way, but in truth your suit is governed by Article 118, being one 'to obtain a declaration that the alleged adoption is invalid or never in fact took place' for which you have only six years from the date' when the alleged adoption becomes known to the plaintiff; and as regards knowledge, we can show, you knew of our claim; you knew that Bapu claimed to be the adopted son of Moti more than six years before the date of suit'.
37. Articles 118 and 113 of the First Schedule to the Limitation Act run as follows:
'118. Toobtain a de-clarafcion that an alleged adoption is Invalid, or never in fact, took place.
Six yearsWhen the alleged adoption becomes known to the plaintiff.
'119. Toobtaina, declaration that an adoption is valid
Six yearsWhen the rights-of the adopted son, as such, are interfered with.'
These Articles were first enacted by the Indian-Limitation Act (XV of 1877). Prior to that Act the corresponding Article was a composite Article, Article 129 of Act IX of 1871, which ran as follows:
'129, To establish or set aside an adoption
Twelve years.The date of the adoption or at the option of the plaintiff the date of the death of the adoptive father.'
Consequent upon the enactment of Articles 118 and 119 there prevailed for a number of years much difference of opinion among High Courts in India as to whether Article 118 which speaks of a suit 'to obtain a declaration' applied only to suits where a declaration simpliciter was asked for, or whether it also applied to a suit for possession where the plaintiff could not succeed except by displacing an alleged adoption and consequently having to ask for a declaratory relief that the adoption was invalid or void. The controversy was set at rest by the Privy Council decision in Kalyandappa s case (C) where their Lordships of the Privy Council laid down: that Article 118 of Schedule I to the Indian Limitation Act applies only to a suit under section 42 of the Specific Relief Act, 1877, for a declaratory decree that an adoption is invalid or did not take place. Their Lordships came to this conclusion because they held that Article 118 was introduced as a logical consequence of the introduction of section 42 of the Specific Relief Act by Act I of 1877, and that therefore when the Legislature used the words in Article 118 'to obtain a declaration' they meant to use it as a term of art with reference to the earlier enacted section 42 of the Specific Relief Act.
38. In Kalyandappa's case (C) the Privy Council disapproved of an earlier case of this Court in Shrinivas Sarjerao v. Balvant Venkatesh ILR 37 Bom 513 which took the view that Article 118 of the Limitation Act did not merely apply to a suit for declaration but also applied to a suit for possession where the plaintiff could not succeed except by displacing an alleged adoption. It must, however, be noted that on the date on which the Privy Council overruled Shrinivasa Sarjerao v. Balvant Venkatesh (E), it was really unnecessary to do so because a Full Bench of the Bombay High Court had already done that in Doddava v. Yellawa ILR 46 Bom 776: AIR 1922 Bom 223. Unfortunately, it does not appear that the last named case was brought to the notice of their Lordships of the Privy Council in Kalyandappa's case (C).
39. In the light of these cases, we have then to see whether the plaintiffs' suit in the present case was one which was exclusively a suit for a bare declaration that the alienation is not binding upon them, or whether, in essence, it is a suit for any further and better relief. In Order to decide this it wilt be necessary to scan the allegations in the plaint with some care and analyse the substance of the 'plaintiffs' claim. In order to see the substance of the plaintiff's claim it is not enough for a Court to consider the mere allegations that the plaintiff has chosen to make but the Court must go behind the mere form and verbiage of the plaint and ascertain what indeed is the true relief which the plaintiff is asking for.
40. Now, as we have said, on the face of the plaint as it emerged after the several amendments which it underwent, there is no reference whatsoever to any adoption or claim made or relief asked in respect thereof. On the mere verbiage of the plaint, the allegations are that Rukhi (Rukhmabai) and Bapu executed the mortgage of 25-7-1929 in favour of their creditor Dhansing, that Rukhi was under the influence of Bapu & all the debts incurred by her were not for legal necessity or for the benefit of the estate of her deceased husband Moti Patil but for the benefit of Bapu under whose influence Rukhi was, and the only relief claimed is that the alienations referred to be declared not binding upon the plff.'s reversioners after the death of Rukhi.
41. It seems to us, however, that though the formal relief asked for is only a declaration that the alienations made are not binding on the plaintiffs, the claim was in substance one for a declaration that the adoption of Bapu was invalid. The impugned alienations were made both by Rukhi and Bapu. They could not be set aside unless both Rukhi and Bapu had no authority, in law to make them. The authority or title upon which Bapu claimed to make these alienations was the fact that he claimed to be the adopted son of Moti. Otherwise, he could have no possible right or claim to the property of Moti Patil. Therefore, it seems to us that implicit in the challenge to an alienation by Bapu was also the claim that Bapu had no status as the adopted son of Moti to alienate the latter's property. In the Andhra case referred to above. Chief Justice Subba Rao observed at page 147:
'For different kinds of suits, specific periods of limitation are prescribed and if a suit falls in effect and in substance under one or the other of the articles of limitation, it is not open to a party to evade or elude that article by using clever phraseology or adopting a device to circumvent it. It is therefore, necessary to ascertain in each case when a reversioner files a declaratory suit, the real scope of the suit.
If it is a suit in substance for a declaration that an adoption is invalid, the mere fact that he ignores the adoption and bases his right on some other act consequential on the adoption will not enable him to escape the period of limitation, 'for the adoption would be in the way of his getting consequential relief' (underlining (here into ' ') is ours).
We are in respectful agreement with these remarks of the learned Chief Justice, and reading the plaint before us in the light of this rule of construction, we cannot but conclude that what the plaintiffs were in substance asking the Court to do in the present case was to declare the adoption of Bapu invalid or void.
42. In this respect we cannot but refer to the plaint as it was originally filed, in paragraph 4 of which the plaintiff's had made the following significant pleadings:
'The alleged adoption of Bapu has all the same created a cloud on the right of reversion of the plaintiff and it is therefore necessary for them to seek a declaration that Bapu who died on 26-3-1937 leaving a widow Mt. Bega (defendant No. 2) was not the adopted son of Moti Patil.'
They also claimed the first relief in the suit that a decree be passed declaring that the plaintiffs were the next reversioners of Moti Patil after the death of Rukhi (defendant No. 1) as Bapu son of Zapri was never taken in adoption by the deceased Moti Patil. This was in substance their claim and the plaintiff's knew that without making such a claim they could not possibly have the alienations which they were questioning set aside. That by using the device of amendment they apparently made the suit appear as if it were a suit for a declaration simpliciter to set aside an alienation cannot justify a Court in ignoring the substance of their claim. Nor does it appear to us that it would make any difference to the nature of the plaintiffs' claim that by this manoeuvre the plaintiffs drove the defendants to the necessity of first raising the question of adoption of Bapu.
43. On behalf of the respondents Mr. Mangalmurti relied very strongly upon Kalyandappa's case (C), cited above, and upon the second of the two propositions laid down in that case (the first we have already adverted to) that ''the article applicable to a reversioner for possession of an immovable property on the death of a Hindu female is Article 141 oven if it is necessary to decide in a suit whether an adoption was or was not valid'. Mr. Mangalmurti urged that even in Kalyandnppa's case (C) the plaintiff had originally claimed a declaration that the defendant had not been validly adopted but later on amended his plaint and struck out that part of his claim making the suit a plain one for possession, and their Lordships at page 417 of the report did not consider that that necessarily brought the suit under Article 118.
44. Kalyandappa's case (C) was considered by the Full Bench of the Andhra High Court in Janikamma's case (B) and their Lordships were content to distinguish it on the short ground that the suit which the Privy Council was considering was a suit for possession of immovable property after the death of a Hindu female and not a suit (as here and before the Andhra High Court) for a declaration to set aside an alienation during the life-time of the alienating female. After quoting a passage at page 143 of the Privy Council report. Chief Justice Subba Rao shortly stated the point of distinction as follows:
'This passage no doubt indicates that a reversioner can ignore the adoption as a nullity and wait to recover possession till the death of the widow. But these observations cannot, in my view, be invoked to circumvent the period of limitation prescribed for a declaratory suit for a limited purpose'.
We are in respectful agreement with this point of distinction and would follow it. But we would also add that there is a substantial point of difference in principle between a suit for a declaration simpliciter and a suit to recover possession after the death of a Hindu widow, and the distinction is that in a suit for declaration simpliciter during the lifetime of a Hindu widow to set aside an alienation made by her the claim of the plaintiff as a reversioner rests on a mere spes successions, namely, his right to take it as a reversioner, whereas in the case of a suit for possession after the widow's death the plaintiffs claim rests upon an interest which has vested in him. The former class of suits would be suits for a declaration simpliciter falling under Article 118, while the latter partakes of the nature of a suit contemplated by Article 141, whether an adoption has to be set aside or not. In our opinion, the principle of the decision in Janikamma's case (B), with which we are in respectful agreement, fully applies to this case. Following it, we must hold that the present suit falls under Article 118 of the Limitation Schedule.
45. It wag not disputed at the hearing before us that if the suit was governed by Article 118, the plaintiffs had knowledge of the alleged adoption more than six years before the date of the suit. Indeed, it seems to us that it would be impossible for the plaintiff to urge to the contrary in view, of the allegations in paragraph 4 of the unameaded plaint. In that paragraph plaintiffs had alleged facts and circumstances which existed on the date of Bapu's alleged adoption by Moti Patil.
46. In view of the decisions we have referred to above, it is unnecessary for us to go back to the long catena of cases of the several High Courts prior to the decision in Kalyandappa's case (C) to which some reference or the other was made by either counsel. Nor need we go into the other points argued at the Bar as to whether the transaction impugned was justified on the ground of legal necessity or benefit to the estate.
47. Mr. Mangalmurti then sought to distinguish Janikamma's case (B) upon the facts. He urged that in that case it was the adopted son who had himself alienated. Hero Bapu's alienations alone are not in question. With him is joined his mother Rukhi, and so far as the plaintiffs are concerned, they only seek to attack the alienations so far as Rukhi has made them. Moreover, he urged, in the present case Bapu also claimed on the basis of a will by his deceased father Moti and not simply on the ground that he was the adopted son.
48. We do not see how these points of distinction matter so far as the principle laid down, in Janikamma's case (B) was concerned. Though no doubt, Rukhi has in the instant case joined with Bapu in the alienations, the alienations cannot be set aside unless both the right of Bapu and the right of Rukhi to alienate is adjudicated upon. The alienations can only be set aside if the Court negatives the title of both Bapu and Rukhi and to the extent that the suit involves a question as to whether Bapu had a right to alienate or not, the suit, as we have explained above, would fall under Article 118 of the Limitation Schedule. We do not think that the suit, having regard to the cause of action, could possibly be split UD into two parts and the alienations made by Rukhi dealt with separately from the alienations made by Bapu as urged by Mr. Mangalmurti.
49. As to the second point of distinction which the learned counsel has drawn, the will was only pleaded as an alternative ground by the defendants though the main ground was that Bapu was the adopted son of Moti; and even considering that the claim was under the will, the will itself, as we have said, gave Bapu the property of Moti because he was his adopted son. Therefore, the question of adoption would still remain to be considered and would bring the present case within the rule laid down in Janikamma's case (B).
50. It was then urged that plaintiff No. 2 was a minor on the date of suit and could bring the suit within three years of attaining majority. Upon the view we have taken, the point cannot, in our opinion, arise. We have already held that the present suit claiming a declaration simpliciter that certain alienations were not binding on the plaintiffs could not lie and that plaintiffs were bound to ask for a relief to set aside the adoption of Bapu -- one of the alienators. In view of that finding it is immaterial whether one or more of the plaintiffs be subject to a disability like minority.
51. Moreover, on this point the decision in Kalyandappa's case (C) is, in our opinion, conclusive of the matter. A similar argument was repelled by their Lordships of the Privy Council at p. 422 (of ILR Bom.): (at pp. 140-141 of AIR) as follows:
'This language looks at first sight conclusive in favour of the plaintiff in the 'present suit; but it has been thought in subsequent cases in India, and has been argued before their Lordships, that the decision of this point was unnecessary, because the plaintiff, being a minor, had three years after attaining majority to bring his suit, and that this provision in his favour superseded the protection given to the defendant by Article 118 and left, the matter open to be decided according to Article 141. This fine of reasoning seems to assume that you cannot impute knowledge to a minor -- a view which is certainly not in accordance with the facts of human nature'.
We are of opinion that the minority of the plaintiff cannot affect the mandatory provision of third column of Article 118 of the Limitation Schedule, which requires that the suit must be brought within six years from the date when the alleged adoption becomes known to the plaintiff.
52. Further, the plaintiffs have also not alleged or proved the date of knowledge of the minor plaintiff.
53. We hold that the plaintiffs, who claim as reversioners, not having filed a suit for a declaration that the alleged adoption of Bapu was not binding on the reversion, within the time prescribed under Article 118 of the Limitation Schedule, they cannot now ignore the said adoption and sue merely for a declaration that the alienation made by Bapu is not binding on the reversion. Upon this view, the plaintiffs' suit must be dismissed. We allow the appeal, set aside the judgment and decree of the trial Court, and instead pass a decree dismissing the plaintiffs respondents' suit with costs throughout.
54. Appeal allowed.