- (1.) It appears to me that the cause of action accrued at the time of the death of the widow. Although the suit is said to be a suit to recover possession by setting aside the illegal adoption of Iswar Chandra Roy, the suit is in fact a suit by the reversionary heir to recover possession, notwithstanding that adoption, on the ground that the adoption was not valid. The cause of action therefore is the wrongful possession as against the reversionary heir; and the question is whether it is a cause of action which accrued to the reversionary heir on the death of the widow or is a mere continuation of a cause of action which had accrued to the widow as the heir of her husband. If it is a continuation of a cause of action which had accrued to the widow, then the cause of action accrued when the widow's right to commence the action as heir of her husband first accrued. But in this case, no cause of action did accrue to the widow by the entry of the adopted son who claimed under the widow's own adoption and who took possession as the adopted son with her consent. Mr. Justice Kemp says I am of opinion that the possession of an adopted son, or of his heir, with the acquiescence of the adopting mother, is not an adverse possession as against her in the sense in which that term is used with reference to the Statute of Limitations;" and I entirely concur with him in that remark. The case is not like the case of a person claiming to be a son of a deceased husband and obtaining possession adversely to the widow. For instance, if a person claiming to be a legitimate son of a deceased husband should claim possession from the surviving widow, and should take possession from her adversely, when the person claiming to be the son was really not so, his possession would be adverse to the surviving widow, for which she might bring an action; and according to the case of Katama Natchier v. The Rajah of Shivagunga : 9 M.I.A. 539, the reversionary heir would be bound by the decision in any suit brought by the surviving widow to contest the legitimacy of the person claiming to be the son, provided there should be no fraud or collusion between that person and the surviving widow. If, in such a case, the reversionary heir would be bound by a decision against the widow without fraud or collusion, he would also be bound by adverse possession against the widow; and his cause of action on the widow's death would be merely a continuation of the cause of action which accrued when the person claiming to be the son first entered. This appears to me to be consistent with justice, because although a widow does not take an absolute estate by inheritance from her husband, she during her life is the heir, and the complete heir of her husband for the time.
(2.) If in this case the adoption had been an act done by the widow as heir of her husband, the case would have been different; but the adoption by the widow was not in her character as heir to her husband; and the possession taken under her own adoption, and with her permission, was not adverse to herself as heir. It appears to me that on the authority of the Full Bench case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty Case No. 460 of 1867; 29th April 1868 (B.L.R. Sup. 1003) cited by the learned Advocate-General, we ought to hold that the cause of action did not accrue until the widow's death. In coming to this conclusion, I do not mean to say that a reversionary heir might not have a cause of action during the widow's life to set aside an invalid adoption, but that would be in the nature of a declaratory suit.
(3.) The case will go back with this expression of our opinion on the question of limitation to the Division Bench which referred it. Macpherson, J.;