Full Judgment
John Edge, Kt., C.J. and Banerji, J.
1. This appeal has been heard with First Appeal No. 117 of 1893. In First Appeal No. 93 of 1893, the defendant Natthu Singh is the appellant, and in First Appeal No. 117 of 1893, Gulab Singh, plaintiff, is appellant. The suit was for possession of shares in a village which were in the possession of the defendant Natthu Singh at the commencement of the suit. The plaintiff was entitled to the decree which he got in the Court below, if Natthu Singh was not adopted, as alleged by him, by one Tarsi Ram. Tarsi Ram was one of the five sons of Zorawar Singh. Gulab Singh, the plaintiff, was one of those sons. Natthu Singh's case was that Tarsi Ram and Tarsi Ram's then wife, Musammat Lachcho, adopted Natthu Singh about two years before Tarsi Ram died. The plaintiff's case is the utter negation of any such adoption. The adoption is said to have taken place about 1863. In 1876 (Zorawar Singh having died in 1864), Musammat Lachcho, the widow of Tarsi Ram, who had predeceased his father Zorawar Singh, presented an application to the Revenue Court asking for mutation of names in respect of a certain share in the village to be made in favour of Natthu Singh. She alleged in the proceedings on that application that her deceased husband had adopted Natthu Singh when the latter had been about one year old. As a matter of fact that application was opposed by, amongst others, the plaintiff in this suit, and Musammat Lachcho's name was entered in the revenue papers and Natthu Singh's was not entered.
2. On the fact of that application having been made in 1876, and opposed by the present plaintiff, Mr. Abdul Raoof, for the defendant Natthu Singh, has contended that this suit is barred by limitation. He relies on Article 118 of Schedule ii of the Indian Limitation Act, 1877, and in support of his contention further relies on the judgments of their Lordships of the Privy Council in Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. 13 Cal. 308; Mohesh Narain Munshi v. Taruck Nath Moitra I.L.R. 20 Cal. 487, and on a judgment of this Court in Inda v. Jehangira Weekly Notes. 1890, p. 241, The last mentioned case was undoubtedly decided on Article 118 of Schedule ii of Act No. XV of 1877; the two cases before their Lordships of the Privy Council were decided upon the former Limitation Act, No. IX of 1871. The article especially referring to adoptions was, in Act No. IX of 1871, Article 129 of Schedule 11. The two articles of Act No. XV of 1877 which especially refer to suits relating to adoption are Articles 118 and 119 of Schedule ii. Article 129 of Act No. IX of 1871 in words related to suits 'to establish or set aside an adoption.' It is true that their Lordships of the Privy Council, in the cases to which we have referred, treated the words 'to set aside an adoption,' in 'that article, as referring to suits for a declaration that an adoption was invalid. We find also that when the Legislature passed Act No. XV of 1877, they did not use the language of Article 129 of Act No. IX of 1871, but used language in Articles 118 and 119 which, according to the ordinary construction, would limit those articles to suits, in the one case to obtain a declaration that an alleged adoption was invalid or never in fact took place, and in the other case to obtain a declaration that an adoption was valid. The Legislature in other parts of the schedule, for example, in Article 91 of Schedule ii, of Act No. XV of 1877, followed the wording of Article 92 of Act No. IX of 1871, which had reference to suits 'to cancel or set aside an instrument not otherwise provided for.' We assume that by departing from the language of Article 129 of Act IX of 1871, and by using language in Articles 118 and 119 of the schedule of the present Act, which can only refer to suits for declarations, it was intended that those articles should apply only to suits in which such declarations were sought. In this view we are supported by the decision of this Court in Basdeo v. Gopal I.L.R. 8 All. 644, and Ghandharap Singh v. Lachman Singh I.L.R. 10 All. 485; by a decision of the Bombay High Court in Padajirav v. Ramrav I.L.R. 13 Bom. 160, and by a decision of the Calcutta High Court in Lala Parbhu Lal v. Mylne I.L.R. 14 Cal. 401. This being the case, and the present suit not having been one for a declaration, we hold that Article 118 does not apply and that the suit is not barred by limitation.
3. We now come to the merits of the suit. Zorawar Singh, the head of this family, died in 1864. His son, Tarsi Ram, whose widow Musammat Lachcho was, predeceased Zorawar. At the time that,, Musammat Lachcho's name was' entered in the revenue papers as representing a one-fifth share in the property left by Zorawar, Zorawar's son, Shib Singh, was alive. Shib Singh was the father of three sons, one of whom was Natthu Singh, who was alleged to have been adopted by Tarsi Ram. It is impossible to believe that, if this adoption had in fact taken place, Shib Singh would not, on the death of Zorawar Singh, have insisted on the right of his own natural son Natthu Singh to have his name entered as the grandson of Zorawar and as the adopted son of Tarsi Ram. He did not insist on anything of the kind. Musammat Lachcho's name was entered. There is another thing which in our opinion is fatal to this alleged adoption. If the adoption had in fact taken place, Natthu Singh ceased to have any share in the interest of his natural father, Shib Singh; but, on the death of Shib Singh, Natthu Singh took an equal share in Shib Singh's property with his brothers and continued to cultivate the air of Shib Singh. Another fact which goes against the adoption is that; Musammat Lachcho up to the time of her death in 1891 continued to be not only recorded in respect of the one-fifth share, but actually cultivated it.
4. There is evidence on the record which we believe, which shows that Tarsi Ram died some years before Natthu Singh was born. Natthu Singh's case depends on his proving that the adoption alleged by him took place in Tarsi Ram's lifetime. Musammat Lachcho, as the widow of Tarsi Ram, was allowed by the family to be entered in the revenue papers in respect of the one-fifth share for her maintenance, though she was not entitled to be so entered. It is very possible that in 1876, owing to some ill-feeling amongst the members of the family she was disposed to put forward Natthu Singh as the adopted son of Tarsi Ram, Whatever was the cause of her line of conduct at that time her subsequent conduct was inconsistent with any adoption having taken place. On these grounds we dismiss First Appeal No. 93 of 1893, with costs.