Banerji and Aikman, JJ -
(1.) The suit which has given rise to this appeal was brought by the respondent to recover possession of property which originally belonged to one Dhanraj, who died on the 3 of April, 1885. Dhanraj left surviving him two widows, Musammat Lali, the appellant before us, and Musammat Sundar, now deceased, and a son by Musammat Lali, named Nand Lal, who is also dead. The property is now in the possession of Musammat Lali. The plaintiff alleges that he was adopted by Dhanraj in Sambat 1927, corresponding to 1870-71, and was brought up and maintained by him. He also alleges that at the settlement of 1877, Dhanraj made a will, which he caused to be recorded in the village administration paper, to the effect that on his death the plaintiff should be his heir, and that if a son should be born to him (Dhanraj), the son and the plaintiff should hold the property in equal shares. He states that after the death of Dhanraj, the defendant did not allow the plaintiff's name to be entered in the revenue papers and got her own name entered, and two years afterwards she turned him out of the house of Dhanraj. He claims the property on the strength of the adoption alleged by him, and also on the basis of the will referred to above. The defendant denies the adoption set up by the plaintiff, denies that Dhanraj made the will relied upon by the plaintiff, and asserts that the plaintiff, being the sister's son of Dhanraj, could not be legally adopted by him. She further contends that the claim is barred by limitation under Art. 119 of Schedule ii of the Limitation Act. The learned Subordinate Judge has decreed the claim, finding in favour of plaintiff upon all the questions raised in the suit. The parties are Bohra Brahmins, and it is conceded that as the plaintiff is the sister's son of deceased Dhanraj, his adoption is invalid according to Hindu Law, as recently held by their Lordships of the Privy Council in Bhagwan Singh V/s. Bhagwan Singh (1898) I.L.R. 21 All. 412. The plaintiff, however, asserts that by the custom prevailing among Bohra Brahmins, the adoption of a sister's son is valid and legal. As evidence upon that point was not taken in the lower Court by reason of the Full Bench ruling of this Court in Bhagwan Singh V/s. Bhagwan Singh (1895) I.L.R. 17 All. 294 which was binding on the Court below at the time when the case was decided by that Court, but which has since been overruled by the Privy Council, it was necessary to refer an issue to that Court in the question of the custom referred to above. Evidence upon that issue has now been adduced by the parties at great length, and the finding of the Court below is before us. We shall refer to this finding and the evidence in a subsequent part of this judgment.
(2.) The first question which we have to determine in this appeal is whether Article 119 of Schedule ii of the Indian Limitation Act is applicable to the case. There can be no doubt that if that article applies the claim is beyond time, the plaintiff's right as adopted son having, according to his own allegation, been interfered with in 1887, that is, two years after the death of Dhanraj, and the present suit having been brought on the 26 of September, 1896.
(3.) The question as to whether Art. 119 is applicable to a suit of this nature is by no means free from difficulty, and the rulings of the different High Courts as to the applicability of that article and the cognate Art. 118 are conflicting. We have in support of the appellant's contention the ruling of this Court in Inda v. Jehangira Weekly Notes 1890 p. 241 the decision of the Madras High Court in Parvathi Ammal V/s. Saminatha Gurukal (1896) I.L.R. 20 Mad. 40 and the recent Full Bench decision of the Bombay High Court in Shrinivas V/s. Hanmant (1899) I.L.R. 24 Bom. 260. On the other hand, as opposed to the view adopted in those cases, we have the rulings of this Court in Basdeo V/s. Gopal (1886) I.L.R. 8 All. 644 Ganga Sahai V/s. Lekhraj Singh (1886) I.L.R. 9 All. 253 Ghandharap Singh v. Lachman Singh (1888) I.L.R. 10 All. 485, Nathu Singh V/s. Gulab Singh (1895) I.L.R. 17 All. 167 the decisions of the Calcutta High Court, in Lata Parbhu Lal V/s. Mylne (1887) I.L.R. 14 Calc. 401 and Jagannath Prasad Gupta V/s. Runjit Singh (1897) I.L.R. 25 Calc. 354 and the earlier decisions of the Bombay High Court in Padajirav V/s. Ramrav (1888) I.L.R. 13 Bom. 160 Fannyamma V/s. Manjaya Hebbar (1895) I.L.R. 21 Bom. 159 and Harilal Pranlal V/s. Bai Rewa (1895) I.L.R. In all the cases last-mentioned it was held that Articles 118 and 119 can only apply to suits the sole object of which is to declare the validity or invalidity, of an adoption, and that a suit for possession of property will be governed by the rule of limitation prescribed for such a suit, even though the question of the validity of an adoption may arise in it and have to be decided. The Courts that have taken an opposite view have considered themselves bound by certain decisions of the Privy Council. If there were any clear ruling of the Privy Council on the matter, we should, of course, be bound to follow it. But we are unable to find in any of the decisions referred to any clear pronouncement of opinion which, places the matter beyond doubt, and which would justify us in departing from the view of law taken by his Court in all the cases in which the question has been considered, with the exception of one. It is noticeable that one of the Judges who decided the case of Inda V/s. Jehangira Weekly Notes 1890 p. 241 was a party to the earlier case of Basdeo V/s. Gopal (1886) I.L.R. 8 All. 644 in which an opposite view was taken. We shall now refer to the cases decided by the Privy Council, which were relied on by the appellant, and which formed the basis of the decisions of the Madras High Court, and the latest decision of the Bombay High Court. The first is the case of Jagadamba Chaodhrani V/s. Dakhina Mohun Roy Chaodhri (1886) I.L.R. 13 Calc. 308. The Limitation Act applicable to that case was Act No. IX of 1871, the language of Art. 129, Schedule ii of which differs materially from that of Articles 118 and 119 of Schedule ii of Act No. XV of 1877. In that case no doubt their Lordships of the Privy Council held that Art. 129 applied indiscriminately to suits for possession of land, and to suits of a declaratory nature; but they remarked that in the Limitation Act of 1877, which superseded the Act then under discussion, the language is changed, and they go on to observe: "Whether the alteration of language denotes a change of policy or how much change of law it affects As questions not now before their Lordships." It is thus clear that in that case their Lordships expressly refrained from pronouncing an opinion as to the effect of the alteration in the law made by the Act we have to construe. The next case decided by the Privy Council is Mohesh Narain Munshi V/s. Taruck Nath Moitra (1892) I.L.R. 20 Calc. 487 which was a case in which it was held that the law of limitation applicable was the Act of 1871. It is true that Lord Shand, in delivering the judgment of the Judicial Committee, observes with reference to the alteration of language in the Act of 1877: "It seems to be more than doubtful whether, if those were the words of the statute applicable to the case, the plaintiff would thereby take any advantage." That no doubt, as an expression of opinion by the highest tribunal, is entitled to great respect, but it seems to us to stop short of deciding the question now raised and not to afford a sufficient justification for departing from the course of rulings which exist in this Court on the point, more specially as the effect of that observation was considered in Nathu Singh V/s. Gulab Singh (1895) I.L.R. 17 All. 167. The third case decided by their Lordships of the Privy Council is Lachman Lal Chowdhri V/s. Kanhaya Lal Mowar (1894) I.L.R. 22 Calc. 609 In that case the counsel for the appellant argued that the plaintiff's suit was time-barred under Art. 118 of Schedule ii of Act No. XV of 1877. In disposing of that contention Lord Shand observe: "The Appellant's counsel, founding on Section 118 of the schedule to the Limitation Act, argued that the limitation of six years from the date of the alleged adoption of the appellant barred the suit. It was maintained that the suit was one in effect to obtain a declaration that the adoption of the appellant was invalid or had never in fact been made, and that six years Lad elapsed after the alleged adoption had become known to the respondent before the suit was instituted. If the adoption was really made by Bhuina Chaudhrain of a son to herself, and not to her husband, which the High Court has held to be the true construction of the deed of adoption produced, the plea of limitation could have no application in this suit which relates entirely to the husband's estate. But, in the opinion of their Lordships, there is another ground, in respect of which also this defence clearly fails, viz., that it-has not been proved that the alleged adoption did become known to the respondent till the death of Bhuina Chaudhrain, which occurred within two years of the institution of the suit." The Bombay High Court considered that this Was a conclusive decision by their Lordships in favour of the view that Art. 118 applies to a suit for possession. With all deference to the learned Judges of that Court, we are unable to hold that this judgment of the Privy Council conclusively decides the question. As we understand the judgment of the Privy Council, the argument of the counsel was met by setting forth two reasons, either of which, assuming Art. 118 to be applicable, would dispose of the plea. We cannot infer from the mere absence of a distinct statement that article 118 was inapplicable, that the question of its applicability was authoritatively decided. It must be remembered ?hat the period of limitation for a suit relating to adoption was twelve. years under Art. 129, schedule ii of Act No. IX of 1871. Had the Legislature intended to cut down the ordinary period of twelve years limitation fixed for suits for possession of immovable property to a term of six years in suits for possession in which the question of the validity of an adoption arises we should have expected it to give effect to its intention in unmistakable language. Following therefore the decisions of our own Court and of the Calcutta High Court, particularly the case of Jagannath Prasad Gupta V/s. Runjit Singh (1897) I.L.R. 25 Calc. 354 in which the question of the applicability of Art. 119 to a suit like the present was considered, we hold that the respondent's suit is not barred by limitation.;