Decided on August 02,1944

Gomathi Ammal And Ors. Respondents


King, J. - (1.) THIS appeal arises out of a suit brought by the plaintiff in the Court of the learned Subordinate Judge of Tinnevelly with the main purpose of obtaining a declaration, that the adoption of defendant 2 is untrue in fact and, in any case, invalid. The plaintiff is the son of the sister of one Sundaram Ayyar, who died in April 1925. Besides his sister, defendant 6, Sundaram Ayyar left a widow, defendant 1, and is said to have left a will by the terms of which he authorized his widow to adopt a son. It is the case of the widow, defendant 1, and the alleged adopted son, defendant 2, that defendant 2 was, in fact, adopted on 13th September 1925 in pursuance of this authority so given. The plaintiff's case is that there was no actual adoption on 13th September 1925, or at any other time, and that the will itself is not genuine, and, therefore, there was no such authority conferred by Sundaram Ayyar on his widow. The plaintiff states that he was born on 16th July 1920 and therefore, as he became of age in July 1938 and has brought this suit in June 1941, he contends that it is not barred by the law of limitation. It must now be stated that the question of the fact and validity of defendant 2's adoption has already been brought in issue in a previous suit. This suit was filed in 1931 by plaintiff's mother, defendant 6, and there is now no dispute on the question of the status of defendant 6 and her right to bring the suit, or upon the fact that the suit was brought within six years of the time at which defendant 6 became aware of the adoption. That suit was eventually dismissed in 1933 as the result of a compromise between defendant 6, who was then the plaintiff in the suit and the present defendant 2. By the terms of that compromise, defendant 6 was given properties worth Rs. 7000. The plaintiff now alleges in his plaint that this compromise was brought about in fraud of his own possible future interests in the property and he asserts that the existence of this fraud in the matter of the compromise provides him with a new cause of action accruing from its date.
(2.) NOT less than 18 issues were framed in the present suit. Issue 8 was whether the suit is barred by limitation; and as the learned Judge points out, the consideration of this issue was taken up as a preliminary measure by the Court at the instance of the vakils for the contesting defendants. The Court has decided the issue after a consideration of the main point of law whether defendant 6 in bringing the suit in 1931 can be considered a representative of the reversion as a whole and therefore representative of her son, the present plaintiff. He answers this point in the affirmative, and holds consequently that the plaintiff can have no independent right to bring a fresh suit on the same cause of action. In any case, the suit which has been brought by the plaintiff is at a time more than six years after the adoption must have become known to his predecessor -in -interest and therefore is barred under Article 118, Limitation Act. Except for the two formal issues 9 and 10, the other issues have not been considered and the suit has naturally been dismissed with costs on this finding on this question of limitation. Against that decree the plaintiff has now appealed. There can be no doubt that the learned Judge is right in holding that this suit is barred, apart from the question of fraud. It is agreed by both sides that the learned Judge has rightly interpreted the law on this question that Article 118 gives a right, which is strictly limited to a period of six years, to the then representative of the reversion to obtain a declaration that a particular adoption is untrue or invalid. Two things follow. If no suit is filed within the period of six years, then no succeeding reversioner can file any such suit. If a suit has been filed, the decision in that suit must be binding upon the succeeding reversioner. As we say, there is no dispute at all upon this point. The only dispute is as to whether these principles apply to a case in which a specific allegation of fraud is made by a succeeding reversioner. On this point, various authorities, to which reference has been made both by the learned Judge and in the argument before us, afford no direct guidance, because in every one of the cases it is clear that no definite question of fraud arose. It is argued against the appellant that it may well be that the inactivity or negligence of a reversioner within the six years permitted by Article 118, Limitation Act, may be due to fraud and that there is, therefore, no logical inconsistency in extending the protection afforded to an adopted son of this kind to the case of a reversioner, who has not failed to file a suit but has negligently or fraudulently allowed a suit to be dismissed. We are not prepared to extend the principle to a case of that kind; and we think that it must be clear that the main reason from the adopted son's point of view for the restriction of the right of the reversion to the bringing of a single suit within six years and the refusal to grant to any succeeding reversioner a private individual cause of action, must be in order to protect him from continual harassment by one suit after another. The reason for this protection entirely disappears in a case like the present when, as we must assume for the purposes of this appeal, the adopted son as alleged in the plaint has been guilty of fraud. There is, in our opinion, an inherent right of action to any person who can prove that a decree which would otherwise bind him cannot be held to bind him on the ground that it was obtained by fraud.
(3.) WE do not, we think, consider that there is any need to analyse in detail the various rulings to which our attention has been called in the hearing of this appeal. One significant point, however, we must stress at this stage. We have already stated that there were no precise allegations of fraud by any of the parties in the cases which have been dealt with; but there are sporadic references to fraud in more than one of these decisions, and it is quite clear from these references that the decisions to which the various learned Judges have come, would very probably have been modified if the question of fraud had entered into the facts of the case. The first of such references is to be found on pages 403 and 404 of Chiruvolu Ponnamma v. Chiruvolu Perraju, (1906) 29 Mad. 390. There, their Lordships are quoting from a judgment delivered by Sir Barnes Peacock and what he says is this: It is unnecessary for the Court now to determine whether, if in such a case the defendant should succeed in establishing the validity of the adoption, the decree would not be binding upon the persons who might eventually succeed upon the death of the widow in the same manner as a decree against the widow representing the rights of her husband in an estate is binding upon the reversionary heirs. It has been decided by the Privy Council that such a decree is binding upon the reversionary heirs in Ranee Surnomoyee v. Sutteeschunder Roy, (1863) 10 M.I.A. 123. This of course is upon the assumption that the suit is honestly brought and conducted.;

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