Report No. 89
33.21. Comme.-Chief Justice L. Jenkins, Bombay.- Sir Lawrence Jenkins, Chief Justice, Bombay High Court, expressed himself thus1:
"It is most necessary to set at rest the question whether these articles apply where the assertion or denial of an adoption is a necessary step towards relief. It is a question of policy which view should be taken. I am strongly in favour of the article being made applicable, as this will tend to diminish litigation and prevent hardship. I think it most undesirable that questions as to adoption should be raised after a long lapse of time when proofs have disappeared and modes of life formed on the assumption that the adoption is good."
1. Chief Justice L. Jenkins, Bombay High Court, Letter No. 2469, dated 18th December, 1907, National Archives File, 1908, Paper No. 5, p. 13.
33.22. Comme.-Mr. Justice N.G. Chandaverkar.- Mr. Justice N.G. Chandaverkar of the Bombay High Court agreed with the Chief Justice,1 and commented as under2:
"I concur in all the suggestions made by the Chief Justice in his minute.
I too think that the conflict of authority as to the applicability of Articles 118 and 119 of Schedule 2 to the Limitation Act should be set at rest and that the shorter period of limitation (6 years) should be definitely, prescribed by the Legislature for all suits relating to adoption, whether they are for the recovery of the possession of property or not. The necessity for which a clear pronouncement on the part of the legislature will be taken from a few considerations relating to adoption cases and an adoption is made generally of a minor and it is made either by a sonless Hindu or by his widow on his death.
When it is by the former, generally again, in fact in 99 cases of a hundred, he adopts when he is about to die. On his death, if the widow is favourable to the adoption, there are the so-called reversionaries of the deceased who are ready to take advantage of her position and involve her and the boy in litigation. In such cases it is adding to the difficulties of the widow and the minor to prescribe a longer period than 6 years for a suit attacking the adoption either on the ground of its factum or invalidity. It is the same if the widow is not favourable to the adoption or where the widow herself has adopted, a boy.
In advocating the shorter period of limitation I am relying upon what I believe has been the beneficial result of the Full Bench decision of the Bombay High Court in Hanmanth v. Srinivas. Before the decision, litigation relating to adoption had been much more ripe in this residency than it has since been now. The shortness of the period has made it more difficult for the party to fabricate evidence, because genuine evidence is more available to the other side and perjury and forgery can be more easily exposed than was the case formerly."
1. Para. 33.21, supra.
2. Letter No. 2469, dated 18-12-1907, National Archives File, 1908, Paper No. 5, p. 14.
33.23. Comme.-Bar Association, Amroati.- In addition to the opinions above quoted, there were some suggestions regarding the drafting of the article. The Honorary Secretary, Bar Association, Amroati1, gave following suggestion.-
"Articles 118 and 11.-The words 'merely' should be added after the word 'declaration' in both these articles."
1. Letter No. 5/8-V.-5, dated 21st March, 1908, National Archives File, 1908, Paper No. 25, P. 2.
33.24. Comme.-District Judge, Vizagapatnam.- The other drafting suggestion was from Mr. V.A. Brodie, District Judge, Vizagapatnam,1 as follow.-
"It is better to make it clear that this article is applicable only to suits brought for "such declarations without consequential relief for the sake of perpetuation of testimony (vide XVII, All 167, XIV All 156 and XIII Born 160).
In both I would insert the words 'without consequential relief after the word 'declaration'. This would leave it free from doubt that where consequential relief is sought, and the declaration only asked for as an ancillary relief, limitation is governed by the article applicable to the main relief prayed for."
1. Letter No. 264, dated 3rd February, 1908, National Archives File, 1908, Paper No. 27, P. 9.
33.25. Alternatives open to presumptive reversioner.- A presumptive reversioner who seeks to challenge an adoption made by a Hindu female has two courses open to him. In the first place, he can straightaway file a suit for declaration (governed by this article) without claiming any consequential relief, because, as on the date of the suit, his right is merely a spes successionis liable to be defeated by subsequent events taking place till the succession opens upon the death of the Hindu woman. Or in the alternative, he, may wait till the succession opens upon the death of the Hindu female and file a suit within twelve years from the opening of the succession.
Such was the view of the Privy Council1, which relied on illustration (f) to section 42 of the Specific Relief Act, 1877 as being indicative of the fact that the legislature intended a period of six years prescribed under Article 118 of the Limitation Act, 1908 as a reasonable period beyond which a plaintiff seeking a declaratory relief would be deemed to be guilty of laches.
1. Kahjandappa v. Chanbasappa, AIR 1924 PC 137.
33.26. Privy Council case considered by Andhra Pradesh High Court.- This case came up for consideration before a Full Bench of the Andhra Pradesh High Court1 and Subba Rao Chief Justice, (as he was then) had to write a separate concurring judgment to make the point that a presumptive reversioner, in his representative capacity, can file a suit for a declaration that an alienation, either by the widow or by the alleged Adopted son or even by a third party, is invalid and is not binding on the reversioner.
Viswanatha Sastri, J. stressed the fact that a failure to bring a declaratory suit under Article 118 of the Limitation Act, 1908 would not bar the plaintiff from filing a regular title suit under Article 141 of that Act (now Article 65). The dissenting judge Umamaheswaram, J. was however, emphatic that a declaratory suit of the nature does not lie under section 42 of the Specific Relief Act, nor does any alienation effected by a trespasser during the widow's life-term afford a cause of action to the reversioner.
1. N. Janikamma v. Mattareddi, AIR 1956 AP 141.
33.27. Bombay view.- The Bombay High Court drew a distinction between (i) suit for declaration simpliciter, and (ii) a suit to recover possession after the death of the Hindu widow and held that the question whether Article 118 (now Article 57) or Article 141 of the Limitation Act, 1908 (now Article 65) applied, depended upon whether the plaintiff was seeking, in substance, to escape the period of limitation by ignoring the adoption and basing his right on some other act consequential on the adoption.
33.28. Recommendation.- In view of the dissenting opinion expressed in the Andhra Pradesh case,1 and the dichotomy introduced in the judgment of the Bombay High Court2, we are of the view that the matter deserves to be cleared once and for all, because such suits generally involve claims to large properties. The necessity of clarification acquires an added edge when one appreciates that the illustration (f) to the old section 42 of Specific Relief Act, 1877 has now been omitted in the new section 34 of the Specific Relief Act, 1963.
1. Vithoba Bhanji v. Vithal Sakroo, AIR 1958 Born 270.
2. N. Janikumma v. Mattareddi, AIR 1956 AP 141, supra.
33.29. Recommendation.- Consequently, we recommend that Article 57 should be revised as follow.-
|"57. To obtain a declaration that an alleged adoption is is invalid, or never, in fact, took place, where no relief is sought.||
|When the alleged adoption becomes known to the plaintiff."|
33.30. Article 58.- This takes us to Article 58 which reads as unde.-
|"To obtain any other declaration.||
|When the right to sue first accrues."|
The corresponding Articles 93, 119 and 129 of the Act of 1908 were as follow.-
|"93. To declare the forgery of an instrument attempted to be enforced against||
|The date of the attempt.|
|119. To obtain a declaration that an adoption is valid.||
|When the rights of the adopted son, as such and interfered with.|
|129. By a Hindu for a declaration of his right to maintenance.||
|When the rights is denied."|
Articles 93, 128 and 129 of the Act of 1871 where as under:-
|"93. To declare the forgery of an instrument issued, or registered, or attempted to be enforced.||
|The date of the issue, registration or attempt.|
|128. By a Hindu for maintenance.||
|When the maintenance sued for is claimed and refused.|
|129. To establish or set aside an adoption.||
|The date of the adoption, or (at the option of the plaintiff) the date of the death of the adoptive father."|