Norman Macleod, Kt., C.J.
1. One Mallappa Tammappa died in 1916 leaving three widows and no children. The plaintiff, one of the widows, sued her co-widows for partition. They were made defendants Nos. 2 and 3. The first defendant was the son of defendant No. 3 by her first husband. The defendants' answer was that Mallappa had adopted the first defendant in 1905 before he married defendant No. 3. The widows, therefore, were not the heirs of Mallappa. Defendant No. 1 had died after suit leaving a widow. The suit being brought more than six years after the adoption was barred by limitation. The issues in the trial Court were :
(1) Is it proved that the deceased first defendant was adopted by Mallappa ?
(2) Is it proved that this adoption was before the re-marriage of defendant No. 3 to Mallappa ?
(3) If not, is the adoption valid ?
(4) Is the suit in time under Article 118 of the Limitation Act 1 ?
2. The trial Judge decided-
(1) that though Mallappa executed an adoption deed, no adoption took place;
(2) that defendant No. 3 was married to Mallappa in 1903;
(3) that the adoption, if it had taken place in 1905, was invalid;
(4) that as no adoption was proved and the passing of the adoption deed was kept secret, the plaintiff had no knowledge of any claim by the adopted son more than six years before suit.
3. Accordingly a decree for partition was passed
4. In first appeal the learned Judge agreed with the trial Judge that no adoption had taken place. He thought that the issue of limitation was unnecessary, and, if it was, he was prepared to agree with the trial Judge. A second appeal was dismissed under Order XLI, Rule 11, but an appeal under the Letters Patent having been admitted, it came on for agrument before Pratt and Fawcett JJ.
5. Those learned Judges were of opinion that as under Section 2 of the Indian Limitation Act the word 'plaintiff' included any person from or through whom a plaintiff derived his right to sue, and the plaintiff claimed as heir of her husband, she was affected with the knowledge of the alleged adoption.
6. It would follow that if Article 118 of the Indian Limitation Act applied, the suit was barred, because Mallappa had executed an adoption deed which he never intended to be acted upon and of which plaintiff had no knowledge.
7. That such a conclusion would be possible would follow from the Full Bench decision of this Court in Shrinivas v. Hanmant (1899) I.L.R. 24 Bom. 260; 1 Bom. L.R. 799, F.B. and the learned Judges were of opinion that so starting a result necessarily raised in their minds the doubt whether that decision was correct.
8. It would be all the more startling considering the peculiar facts of this case, for it has been found that Mallappa pacified the demands of defendant No. 3 that provision should be made for her son by her first husband by secretly executing a deed purporting to evidence an adoption, which had never taken place, and which he must have known would be invalid if it had been made.
9. The decision in Shrinivas v. Hanmant was to this effect, that where a plaintiff in a suit for possession of property is met by the claim of a defendant setting up a title as an adopted son, the plaintiff's suit is barred unless it is brought within six years of the date when the alleged adoption became known to the plaintiff.
10. The question referred to us is whether in view of the decision of the Privy Council in Thakur Tirbhuwan Bahadur Singh v. Raja, Rameshar Bakhsh Singh (1906) L.R. 33 I.A. 156; 8 Bom. L.R. 722 the decision in Shrinivas v. Hanmant is still good law, and whether suits for possession where the plaintiff cannot succeed except by displacing an alleged adoption are governed by Article 118 of the Indian Limitation Act.
11. It is necessary, therefore, to consider the facts of Tirbhuvan's case since Shrinivas v. Hanmant was not mentioned in the judgment, and it can only be said to have been overruled if at all by implication. Thakur Basant Singh was the last male owner of the Taluqa of Samarpaha. He died in November 1857 leaving his widow as his next heir. Thereafter a Sanad was granted to the widow and she became Taluqdar in her own right. She died intestate in 1893. The estate was claimed by Thakur Sher Bahadur as her son adopted after her husband's death. The plaintiff who attained majority in 1896 filed the suit in 1899 claiming to succeed as the grandson of the widow's eldest brother. Both the lower Courts held in favour of the plaintiff. On appeal to the Privy Council it was argued that in any event there was an apparent adoption sufficient to satisfy the provisions of the Limitation Act of 1871 as interpreted by the Privy Council in Jagadamba Chowdhrani v. Dakhina Mohun (1886) L.R. 13 I.A. 84. It was admitted that if the Act of 1877 applied, the appellant-defendant bad no case but it was argued that as the appellant relied on title acquired before the Act of 1877 was passed, his rights were saved by Section 2 of the Act of 1877.
12. That section is as follows :-
All references to the Indian Limitation Act of 1871 shall be read as if made to this Act; and nothing herein or in that Act contained shall be deemed to affect any title acquired, or to revive any right to sue barred, under that Act or under any enactment thereby repealed.
13. Their Lordships said at p 163:-
Their Lordships are unable to accede to Mr. Cohen's argument. Giving full effect to the Jagadamba case and the other cases which followed it, they do not think that the immunity, such as it is, gained by the lapse of twelve years after the date of an apparent adoption amounts to acquisition of title within the meaning of Section 2 of the Act of 1877.
14. To appreciate the full meaning of the decisive passage of the judgment it will be necessary to follow the history of the case in the lower Courts and the arguments of counsel before the Privy Council.
15. In the trial Court it was argued that the suit was barred by Article 118, Schedule II, of the Limitation Act of 1877 as the adoption of the defendant became known to the plaintiff and his ancestors more than six years before the institution of the suit. After referring to Jagadamba's case and Mohesh Narain Moonshi v. Taruck Nath Moitra (1892) L.R. 20 I.A. 30 the learned Judge said (p. 158) : "The above decisions were given with reference to Article 129 of the old Act of 1871.... It is contended on behalf of the defendant that the principle enunciated in the above rulings is applicable to cases governed by the existing law." Then after referring to Parvathi Ammal v. Saminatha Gurukal (1896) I.L.R. 20 Mad. 40 and Shrinivas v. Hanmant (1899) I.L.R. 24 Bom. 260; 1 Bom. L.R. 799, F.B. which adopted that view, and the numerous decisions to the contrary, he continued (p. 159): "There seems to be a consensus of opinion in most of the High Courts that Article 118 of the present Act does not apply to suits for possession and I do not think we are justified in departing from it without the distinct authority of the Privy Council." The Court of the Judicial Commissioner of Oudh concurred in this view. Before the Privy Council Mr. Cohen argued for the appellant that Act IX of 1871 applied, and as no suit had been filed within the time fixed by Article 129 of the Schedule to that Act the validity of the adoption could not be questioned in the plaintiff's suit, The principle laid down in Jagadamba's case that when a suit to set aside an adoption was barred, so also was any suit which in order to succeed must first get rid of the adoption applied equally to Article 118 of the Schedule II to the Act of 1877. Mr. De Gruyther for the respondent argued that the suit was governed by Article 143 of Schedule II of Act XV of 1877. Article 118 differed in its terms from Article 129 of the earlier Act and did not apply to a suit for possession. There had been no acquisition of title by the appellant in virtue of an apparent adoption within the meaning of Section 2 of the Act of 1877. Nor could it be laid down under Act XV of 1877 that a plaintiff must sue for a declaratory decree before suing for possession, and that his suit for possession was barred if a declaratory action was barred.
16. It will be seen, therefore, that the appellant, though he mainly relied on the contention that he had acquired a title under the Act of 1871, and that title was preserved by Section 2 of the Act of 1877, also contended that the principle laid down in cases under Article 129 of the Act of 1871 applied to cases under Article 118 of the Act of 1877 and that the suit was barred on that ground, Shrinivas v. Hanmant being relied upon in Mr. Cohen's reply. No doubt the suggestion that the immunity gained by the appellant by the lapse of six years, without a declaratory suit being filed, amounted to acquisition of title was too fanciful to demand any attention. It would seem, therefore, obvious to me that their Lordships having before them all the arguments which have boon raised before us in this reference on behalf of the appellant deliberately adopted the contrary view as contended for by the respondents.
17. And as if that had not been made sufficiently clear in the judgment, their Lordships in Umar Khan v. Niaz-ud-din Khan (1911) I.R. 39 I.A. 19; 14 Bom. L.R. 182 referred to Tirbhuwan's case as laying down that the omission to bring within the period prescribed by Article 118 of the Second Schedule of the Indian Limitation Act of 1877 a suit to obtain a declaration that an alleged adoption was invalid or never in fact took place was no bar to a suit for possession of property. A Division Bench of this Court in Shrinivas Sarjerav v. Balwant Venkatesh (1913) I.L.R. 37 Bom. 513; 15 Bom. L.R. 533 came to the conclusion that the decision in Shrinivas v. Hanmant had not been overruled by the Privy Council. The referring judgment of Pratt J, analyses the reason given for that conclusion and points out the fallacies which underlie them. As a matter of fact when the Court was of opinion that the adoption of the defendant was valid the question of limitation became academical. I shall not discuss in detail the reasons given by the learned Judges, for I agree with what has been said by Pratt J. I have already pointed out that their Lordships of the Privy Council, having all the arguments before them which have been from time to time raised in this Court, came to a conclusion absolutely inconsistent with those reasons, and I see no object in referring to various passages in the judgments in other cases as showing that their Lordships could not have meant what they said in Tirbhuwan's case. What their Lordships did mean is clearly enunciated in Umar Khan's case. Whatever the nature of the adoption in that case and whatever its effect might be on the status of the person adopted, it was an adoption within the meaning of the word in Article 118 of Act XV of 1877, and if it was set up as a defence to a suit for possession, the omission to bring a declaratory suit within six years was no bar to the suit for possession. I think the question can also be considered from another point of view. The Limitation Act is an Act for the limitation of suits, prescribing the period within which suits asking for various reliefs can be brought. In a suit for possession on title, the only answer by the defendants which can be successful is a better title than that proved by the plaintiff, and such a title may be obtained by adverse possession. An adoption may be the origin of such a title being acquired, but the defendant may succeed in his title by adverse possession and not by virtue of his adoption. But if his title depends on adoption apart from the question of adverse possession, he may succeed by proving his adoption and the question of the limitation of plaintiff's suit does not arise, provided it is brought within the period prescribed for the particular suit he has brought. For the plaintiff is in the position of a defendant when he is resisting a claim by adoption and there is no bar of limitation to a defence. The mere fact that an adoption alleged to have taken place is not challenged does not set time running in favour of the adopted son, so that he may acquire a title unless he is in possession. Then if he is sued he can either say 'I have been in possession for twelve years' or 'I am an adopted son and I have a better title than the plaintiff.' It is then open to the plaintiff to say 'your adoption as a matter of fact never took place or, if it did, it is invalid.'
18. Lastly, I may refer to the following decisions of the High Courts of Calcutta, Madras and Allahabad : Ram Chandra Mukerjee v. Ranjit Singh (1899) I.L.R. 27 Cal. 242; Natthu Singh v. Gulab Singh (1895) I.L.R. 17 All. 167; Velaga Mangamma v. Bandlamudi Veerayya (1907) I.L.R. 30 Mad. 308, which are opposed to the view taken by this Court in Shrinivas v. Hanmant. The judgment in Velaga Mangamma v. Bandlamudi shows that the learned Judges were clearly of opinion that the Privy Council in Tirbhuwan Bahadur Singh's case overruled the view that a suit for possession where the validity of an adoption has to be determined is governed by Article 118 of the Act of 1877.
19. I would, therefore, answer both parts of the question referred to us in the negative.
20. The question referred to the Full Bench is whether in view of the Privy Council decision in Thakur Tirbhuvan Bahadur Singh's case the decision in Shrinivas v. Hanmant is still good law and whether suits for possession where the plaintiff cannot succeed except by displacing an alleged adoption are governed by Article 118 of the Limitation Act.
21. My answer is that Shrinivas v. Hanmant is not overruled by Tirbhuvan Bahadur Singh's case, that it is still good law in this Presidency, and that Article 118 would apply to suits for possession where there is a title by adoption to be displaced to the extent indicated in Shrinivas v. Hanmant.
22. We are not concerned in this reference with the questions whether on the finding of the lower appellate Court the rule in Shrinivas v. Hanmant is applicable to the present case and whether on those facts the suit would be barred under Article 118. I express no opinion thereon as they are points for the Division Bench to decide.
23. I desire to state briefly my reasons for the answer to the question referred to us.
24. In the first place in Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh (1906) L.R. 33 I.A. 156; 8 Bom. L.R. 722 their Lordships do not in terms purport to overrule Jagadamba Chowdhrani v. Dakhina Mohun (1886) L.R. 13. I.A. 84 and the other cases which followed it, among which the case of Shrinivas v. Hanmant must be included. That case was decided on the ground taken by the counsel for the appellant whether the alleged adoption was or was not an apparent adoption to which the ruling in Jagadamba's case would apply if the Act of 1871 were then in force. Their Lordships hold in that case that giving full effect to Jagadamba's case and the other cases which followed it they do not think that the immunity, such as it is, gained by the lapse of twelve years after the date of an apparent adoption, amounts to acquisition of title within the meaning of Section 2 of the Act of 1877. That is the point which they decided and I am slow to accept the view that if their Lordships meant to overrule Shrinivas v. Hanmant they would have left it to implication as to which there is so much doubt and difficulty. In other words unless the implication is clear, I think that it would not be right to treat the decision in Shrinivas v. Hanmant as overruled.
25. I do not think that the implication is by any means clear. The suggested implication is based upon the consideration that it was conceded in the argument by the counsel for the appellant in that case that the Act of 1877 did not apply, and admitted that he was out of Court if the Act of 1877 applied. The difficulty of inferring from this circumstance that their Lordships meant to overrule Shrinivas v. Hanmant is clear from the judgment in Srinivas Sarjerav v. Balwant Venkatesh (1913) I.L.R. 37 Bom. 513; 15 Bom. L.R. 533 followed in Bharma v. Balaram Sakharam (1918) I.L.R. 43 Bom. 63; 20 Bom. L.R. 836. I do not for the moment say anything as to the correctness of the view accepted in these two decisions as regards the effect of the decision of the Privy Council in Tirbhuvan Bahadur Singh's case. But the implication, such as it is, is by no means so clear as to give rise to no doubt or difficulty. Where that is the Case I do not think that it is right to treat a Full Bench decision or any decision as overruled by implication.
26. Secondly, on the merits I feel by no means clear that their Lordships meant to overrule Shrinivas v. Hanmant, The adoption in that case was not the ordinary adoption which, according to the Hindu law, gives title but it was really a nomination of an heir and an adoption only in the popular sense. It is possible that that circumstance may have influenced the counsel for the appellant in taking up the position with reference to the Act of 1877 that he did. Then the facts in that case were so special that I think it is entirely unsafe to hold that because it was admitted in that case that if the Act of 1877 applied, the defendant was out of Court, their Lordships meant to overrule Shrinivas v. Hanmant, 16 is possible to attribute that admission to other grounds and after giving the point my best attention. I am unable to hold that in view of Tirbhuvan Bahadur Singh's case Shrinivas v. Hanmant should be treated as overruled.
27. I do not think that the observations in Umar Khan v. Niaz-ud-din Khan (1911) L.R. 39 I.A. 19; 14 Bom. L.R. 182, which have been relied upon, have any such effect. Those observations were made in a case in which the parties were Mahomedans and their Lordships distinctly point out that under the general Mahomedan law an adoption cannot be made; an adoption if made in fact by a Mahomedan could carry with it no right of inheritance. The preceding observations relating to Article 118 are applicable to a suit for possession like the one which their Lordships had to deal with in that case in which an alleged adoption carried with it no right of inheritance; at least the observations are capable of being read in that sense and were read in that sense in Shrinivas Sarjerav v. Balwant Venkatesh. It is significant that in Tirbhuvan Bahadur Singh's case their Lordships had to deal with an adoption in the popular sense and not one which would carry with it any title to property, and the reference to that case in Umar Khan's case when looked at in the light of the context is capable of being read in that sense.
28. Thus, on the whole, it is clear to my mind that Shrinivas v. Hanmant cannot be treated as overruled and must be accepted as good law.
29. As regards the second part of the question I admit that it is desirable that there should be uniformity in the decisions on a point of this character as far as possible in different High Courts and it is clear that the other High Courts have not accepted the view taken in Shrinivas v. Hanmant. That, however, is a general consideration of importance but necessarily of limited application. I do not think that it would be right to disturb a rule of limitation affecting titles to property, deliberately laid down so far back as 1899, and consistently followed during all these years in this Presidency on such a general ground, It seems to me that the main purpose of this reference is to settle the question as to whether Shrinivas v. Hanmant is overruled by the decision in Tirbhuvan Bahadur Singh's case and not to invite a reconsideration of the decision of the Full Bench in that case. It seems to me that the final word on this point must come either from the Legislature or from the Privy Council. We are informed that the question as to the correctness of Shrinivas v. Hanmant arises in an appeal from this Court to the Privy Council, which has been admitted, and in which the point is likely to be decided. The present state of the decisions is embarrassing to those whose rights are affected by the application of the rule in Shrinivas v. Hanmant.
30. I do not consider it necessary to re-examine the whole subject with a view to consider whether Shriniwas v. Hanmant has been rightly decided. Under the circumstances I think that the rule in that case should be applied so far as it may be applicable to the facts of any particular case.
31. I agree with the learned Chief Justice that both pares of the question referred to the Full Bench should be answered in the negative. I concur generally in his reasons and will abstain from adding to the great quantity of literature on the point, in which the arguments pro and con are fully stated. In brief, I believe that the Privy Council did intend in Tribhuvan Bahadur Singh's case to decide the point that had been fully argued before them, whether the principle of Jagadamba's case was applicable to cases governed by the Limitation Act of 1877, Article 118. I think, therefore, that we should fall into line with all the other High Courts in India, and cease to give effect to the view taken in Shrinivas v. Hanmant.