Report No. 89
33.11. 1871 Act criticised.- The alternative starting point of 'death of adoptive' father in the Act of 1871 was criticised by Mr. A.B. Falcon1 thu.-
"With reference to No. 139, Mr. A.B. Falcon, officiating Judge of Rangpur, raises the question whether the time allowed should not be extended to twelve years from the death of the adopting parent; otherwise suits might, he observes, lie to recover possession from an adopted son many years after a suit to set aside the adoption was barred."
1. Letter No. 416, dated 2nd February, 1871, National Archives File, 1871, Paper 5, p. 21.
33.12. The Limitation Bill 1877 reproduced Article 129 of the older Act in corresponding Article 125 of the Bi111. When this Bill was circulated for comments and opinions, Babu Opendro Nath Mitter, Government Pleader, Dacca wrote.-
"The cases of adoption which come before the Court are generally cases of adoption made by a Hindu widow, after the death of her husband. Suits to set aside adoption are therefore generally brought by reversionary heirs, who might or might not be in existence at the date of the adoption or the death of the adopting father. It need hardly 'be said that they must be in existence at the date of the death of the adoptive mother or her daughter.
The clause in column 3 is wholly insufficient to meet the necessities of the case. The suit should be allowed to be brought (during the life of the adoptive mother) at any time within twelve years of the date when the plaintiffs right to sue accrued, or after her death, within twelve years of the time when the plaintiff acquires a vested right in the property left by her husband.
The wording of No. 125 is likely to induce a son illegally adopted by a Hindu widow to believe that after twelve years from the date of his adoption, his title as adopted son of the widow's husband will be unimpeachable. But under No. 138 a Hindu reversionary heir may bring suit for possession at any time within twelve years of the death of the widow or other female heir of the last male owner.
Suit to set aside an adoption should be expressly limited to declaratory suits3. In suits to establish an adoption, the period of limitation should run from the denial of the adoption by the adoptive father, if the adoption took place during his lifetime. In other cases, it should run from the time when the plaintiff's right as adoptive son are interfered with, on the allegation that he has not been legally adopted.
In declaratory suits to set aside an adoption, the period should run from the time when the plaintiff knows of the adoption; while suits for possession by setting aside an adoption, should be allowed to be brought within twelve years of the time when the plaintiffs right to possession accrued."
1. National Archives File, 1877, p. 19.
2. Letter dated 2nd March, 1877, National Archives File, 1877, Paper No. 1, p. 4.
3. Emphasis added.
33.13. Suit for declaration simplicit.-doubted.- Another point of view, expressed in 1877, as summarised by Mr. N. H. Thomson was as follows.-
"There seems to be a doubt whether a suit to set aside an adoption will lie unless consequential relief be asked, ILR 1 Born 248 and see LR 3 Ind App 72 (84)."
1. Note by Mr. N.H. Thomson, National Archives File, 1877, Paper No. 2, p. 3.
33.14. Comments as to adoption.- Adoption offered a fertile ground for litigation and evoked comments from many quarter.-
Mr. 0. Kinealy's note is instructive.
"The period of limitation given for these suits seems intended to meet two cases of adoption, in the lifetime of the adoptive father, and adoption after his death by a widow under a power. The time fixed from which the period of limitation begins to run seems open to objection as giving an option to the plaintiff.
Since, as far as possible, this period should commence at the time the cause of action arises, except in cases of fraud or concealment, and these are provided for by section 19, would it not be better if the third column ran thus: (where the adoption has taken place in the lifetime of the adoptive father) the death of the adoptive father, (where the adoption has not taken place in the lifetime of the adoptive father) the date of the adoption?1
Another comment on this point was as unde.-
"The adoptive mother's death should also be added to the third column. Having reference to Article 138, a reversioner can sue for possession within twelve years from the death of, the widow (adoptive mother) by proving the invalidity of the adoption set up by her."2
Yet another comment was as unde.-
"These sections provide for suits to obtain a declaration that an adoption is valid or that it is invalid. They do not provide, however, for a third class of cases, namely, those where a declaration is sought that an alleged adoption which is set up by the opposite party never in point of fact took place."3
1. Note by J.O. Kinealy, Additional Judge, 24-Parganas, National Archives File, 1877, Paper No. 5, p. 3.
2. Letter dated 22nd May, 1877, from Babu Ramdas Sen for the members of Committee of the Murshidabad Association, National Archives File, 1877, Paper No. 18, p. 2.
3. Letter No. 233 D.A.. dated 14th May, 1877 from Mr. W.H. Rattigan, Officiating Government Advocate, National Archives File, 1877, Paper No. 24, p. 12.
33.15. Draft Article 1908.- The draft article in the Bill1 that led to the Act of 1908 read:
|"To obtain a declaration that an alleged adoption is invalid, or never, in fact, look place.||
|When the alleged adoption becomes known to the plaintiff, or to some person who is a nearer reversionary heir to the person to whom the adoption is alleged to have been made than the plaintiff."|
The necessity of this amendment was brought out in the statement of Objects and Reasons2 annexed to the Bill that led to the Act of 1908, in the following word.-
"The amendment is proposed to remove a conflict of authority, and it adopts the view taken by Bhashyam Ayyanger, J., in Chiruvolu v. Chiruvolu, ILR 29 Mad 396.
In a suit to set aside an adoption where, but for the adoption, the estate would be in a Hindu female, remote reversioner has been held to claim through the presumptive reversioner in the following case.-
Ayyadore v. Solai, ILR 24 Mad 405;
Chiruvolu v. Chiruyolu, ILR 29 Mad 390 FB;
Harnath v. Mandil, ILR 27 Cal 379 (403);
Srinivasa v. Hanmant, ILR 24 Born 260 (266);
Siddeswar v. Sham Chand, 23 WR 285 (decided under Act IX of 1971);
Mrinomovee v. Bhoobun, 23 WR 42 (decided under Act XIV of 1859).
The contrary view has been taken in the following case.-
Abinash v. Harinath, ILR 32 Cal 62 (71);
Bagwanta v. Sukhi, ILR 22 Cal 33 (44, 45).
In the case of Chiruvolu v. Chiruvolu, ILR 29 Mad 390 FB, however, the Court observed that in suits relating to the alienations by a qualified owner (such as a Hindu widow) the presumptive reversioner cannot, on the current of authority, be held to represent remote reversioners (at page 411). The conflict therefore is limited to suits relating to adoption."
1. National Archives File, 1908.
2. National Archives File, 1908, p. 7.
33.16. Comme.-Government Advocate, Nagpur.- On this draft, Sir B.K. Bose, Government Advocate, Nagpur1, made the following comment:
"The High Courts are in disagreement as to the scope of these articles, whether they apply to suits where consequential relief in the shape of possession of property is asked for or to mere suits for declaration without any prayer for possession2. The present opportunity to clear up the matter should not be lost. The legislature waits until the Privy Council happens to settle the existing conflict of opinion."
1. Letter No. 2063/V..-5, dated 19th December, 1907, National Archives File, 1908, Paper No. 2, p. 5.
2. Emphasis added.
33.17. Comme.-Divisional Judge, Nagpur.- Similar arguments were put by Rai Bahadur Sharat Chandra Sanyal, Divisional Judge, Nagpur.-
"The proposed amendment introduces a curious state of affairs and it is, that limitation will run against one, when the knowledge of the alleged adoption is in another.
Declaratory suits are often availed of as a matter of precaution for perpetuating evidence. The nearer reversionary heir may be an old man who may not care to undergo the worry and expenses of a litigation whose fruits he may not live to enjoy. Why should a remote reversioner (who does not claim through the presumptive reversioner) be deprived of his rights because he hears of the alleged adoption later?
Though remote the eventual chance in his favour may be greater by reason of youth. This is after all a kind of suit in which the court has a wide discretion. I would word the amendment thu.-or to some person who is a nearer reversionary heir to the person to whom the adoption is alleged to have been made, then the plaintiff and through whom the plaintiff claims.
I have assumed that Article 117 (present Article 118) applies to declaratory suits only.2. But there are judicial authorities holding that it is available against possessory suits where the displacement of the alleged adoption is the substantial dispute, and that the case of jagadamba Choudharani (ILR 13 Cal 308 PC) is still good law; (see ILR 20 Mad 40: ILR 24 Mad 405: ILR 26 Mad 261: ILR 24 Born 260 FB overruling ILR 21 Born 159 and ILR 25 Cal 354: ILR 27 Cal 242; ILR 24 All 195: ILR 26 All 40).
In a Privy Council case (ILR 25 Born 337) Lord Hobhouse ignored the distinction between a declaratory suit and a suit for possession in which the same issue arises, observing that there was no principle in the 'doctrine of subserviency'. The case came under Article 12(a) of the 2nd Schedule of the present Limitation Act. But the opinion, coming from such an eminent authority might be quoted to support the view adverted to.
It is desirable that the litigant public should know what the law is intended to be on this point by some contrivance in the 'Description of Suit' column whether this article applies purely to declatory suits or extends to possessory suits as well."
1. Letter No. 2063/V..-5, dated 19th December, 1907, National Archives File, 1908, Paper No. 2, p. 7.
2. Emphasis added.
33.18. Comme.-Oudh.- This uncertainty and conflict of opinion was also pointed out by the Judicial Commissioner and Additional Judicial Commissioner of Oudh1:
"Here, again, no one knows what suits will ultimately be held to be governed by this article. Some authorities consider that it applies only to cases in which a declaration is sought by the plaintiff; others held that it applies to a suit for possession of property where the plaintiff became entitled to possession on the death of a Hindu or Muhammadan female. It is needless to elaborate the difficulty, which is well known."
1. Letter No. 2196/VIM, dated 16th December, 1907 from F.M. Desc. Chamier, Judicial Commissioner, Oudh, National Archives File, 1908, Paper No. 7, p. 3.
33.19. Comme.-Vaklis Association, N.W.P.- This argument was supported by Babu Durga Charan Banerji,1 Honorary Secretary Vakils Association, North-Western Provinces:
1. Letter No. 2196-V11-1, dated 16th December, 1907 from F.M. Desc. Chamier, Judicial Commissioner, Oudh, National Archives File, 1908, Paper No. 7, p. 6.
"Article 117 (old Article 118) is another article upon which there is a great deal of conflict of authority. Cases of adoption are generally cases relating to property of large value and affect very large interests. The first point of controversy is whether the article applies only to declaratory suits, or is also applicable to suits for possession of land in which the defendant in possession sets up an adoption which the plaintiffs must show was invalid or never in fact took place. The Calcutta and Allahabad High Courts and the Punjab Chief Court takes one view and the Madras and the Bombay High Courts take another."
33.20. Comme.-District Judge, Tanjore.- Some other aspects of the subject were discussed by Mr. F.D.P. Oldfield,1 Acting District Judge, Tanjore, whose comments, however, are not material for the present purpose.
1. Letter No. 11304, dated 9th December, 1907, National Archives File, 1908, pp. 14-15.
33.20A. Comme.-P.S. Shivaswamy ly.-Adovcate-General, Madras.- The Advocate-General, Madras, Shri P.S. Sivaswamy Aiyar, wrot.-
"It is to be regretted that these articles have not been amended so as to exclude from their scope suits for the possession of property in which a question may be raised as to the validity of an adoption2. It may, on the one hand, be urged that questions affecting the status of persons should be set at rest in as short a period as possible.
On the other hand, the view adopted by some of the High Courts that these articles govern a suit for possession also has led to very serious hardship and in my opinion much greater than the hardship supposed to arise from the opposite view. The object of declaratory suits being merely to preserve evidence, the omission to bring such a suit ought not to be made to affect substantive rights. The subject is exhaustively discussed in the dissenting judgment of Bhashyam Aiyangar, J., in 26 Mad 291 and the hardships and anomalies flowing from the view of the majority in that case are fully pointed out by him."
1. Letter No. 352, dated 30th April, 1908 National Archives File, 1908, Paper No. 27, p. 11.
2. Emphasis added.