Balgobind Prasad and Others vs Lila Kuer and Another

Manohar Lall, J.—In this appeal by the defendants the serious questions for decision are whether the plaintiff is entitled to maintain the suit after she had adopted a son to her deceased husband, and if so whether the suit is barred by limitation. The facts are not in dispute. On 28th February 1922, one Darbari Lal, in execution of a mortgage decree which he obtained against the defendants, purchased the property in suit. The judgment-debtors filed an application for setting aside the sale under Order 21, Rule 90, Civil P.C., but that application was dismissed on 27th June 1922 on which date the sale was confirmed. In September 1922 the sons of the judgment-debtor, Chaudhury Kashinath, instituted a title suit for a declaration that the mortgage transaction of 25th May 1911, which was the basis of the mortgage decree and sale, was not binding upon those plaintiffs as the money was raised for purposes illegal and immoral, and also for a declaration that the sale did not bind the interest of those plaintiffs. Darbari Lal, the auction-purchaser, was made defendant 31 in that suit. During the pendency of that suit, Darbari Lal died, but before his death Darbari Lal had obtained a formal delivery of possession on 14th August 1924. It appears that he never obtained actual possession. The suit instituted by the sons was dismissed on 31st March 1928, and an appeal to this Court was dismissed on 7th May 1936.

In pursuance to a will dated 17th April 1924, left by Darbari Lal, all his properties came into possession of his widow, Srimati Lila Kuer, as the absolute owner. In the will, power was given to Srimati Lila Kuer to adopt a son. She adopted a son in accordance with the power granted to her by the will which was duly admitted to probate, but at the date of the institution of the present suit the adopted boy was a minor.

On 6th May 1939, Lila Kuer instituted a suit giving rise to this appeal for recovery of possession of the properties of which the sale had been confirmed, as stated above, on 27th June 1922. It will be noticed that the suit is beyond twelve years of the date of the sale, and is prima facie barred by limitation. Limitation was sought to be saved by the application of Section 16, Limitation Act, which provides that in computing the period of limitation prescribed for a suit for possession by a purchaser at a sale in execution of a decree, the time during which the proceeding to set aside the sale has been prosecuted, shall be excluded. The plaintiff sought to exclude the entire period between 12th September 1922 up to 7th May 1936. It is conceded that if this period is excluded, the suit is within time. It is to be, however, observed here that in the plaint it was not stated explicitly or by implication that Darbari Lal had obtained possession symbolical or otherwise of the properties in suit.

In the written statement the defendants specifically alleged in para. 3 (e) that after the purchase by Darbari Lal and dismissal of Order 21, Rule 90, Civil P.C., application, Darbari Lal took formal delivery of possession through Court, and, in para. 5, it was pleaded that the predebessor of the plaintiff did not have khas possession over the properties in suit, and that the rights acquired by Darbari Lal in the execution sale had been lost by inaction, and that notwithstanding the institution of the title suit in 1922 Darbari Lal should have been active in obtaining possession and, therefore, the plaintiff cannot be allowed any exemption of the period during which that litigation was pending. Oral evidence was adduced on behalf of the defendants that the plaintiff had obtained delivery of possession. [After considering the evidence his Lordship proceeded.]

Under the provision of Order 41, Rule 27, Civil P.C., an application supported by an affidavit has been filed in this Court in which it is prayed that a certified copy of delivery of possession dated 14th August 1924, should be taken into evidence, and the circumstances in which this certified copy could not be produced in the Court below are stated in the application. The copy produced is a certified copy of a public document, and, in our opinion, it must be admitted in evidence. The defendants have satisfied us why it could not be produced earlier. Accordingly we have admitted this document into evidence and have marked it as exhibit 1. The learned advocate on behalf of the respondent could not seriously object to the admissibility of this document. After this document has been admitted into evidence, there is no difficulty in holding that Darbari Lal did actually obtain a formal delivery of possession in August 1924, and the finding of the learned Subordinate Judge to the contrary must be set aside as erroneous--the learned Subordinate Judge would have probably come to the same conclusion if this document was available at the time of the trial. The learned Advocate. General appearing on behalf of the defendant-appellants argued that when the delivery of possession, even though it was formal, has been effected, the provisions of Section 16, Limitation Act, are no longer available to the plaintiff. He relied upon the case in Brojendra Kumar Roy v. Ashutosh Roy AIR 1921 Cal. 385 where the learned Judges of the Calcutta High Court held that after symbolical possession has been delivered Article 138 has no application and that the proper Article to apply is Article 144, Limitation Act, and when the latter Article applies no deduction of time can be given u/s 16, Limitation Act, or under the general principles of equity. This case is directly in favour of the contention raised by the learned Advocate-General.

Mr. P.R. Das on the other hand relied upon the case in Promotha Nath Roy v. Kishore Lal AIR 1917 Cal. 802. In that case the plaintiff became the auction-purchaser of certain lands in 1893. In 1895, the judgment-debtor instituted a suit for setting aside the decree and the sale and this litigation was decided by the Privy Council in favour of the decree-holder auction-purchaser in 1905. In the year 1909, the plaintiff instituted a suit for possession basing his cause of action in the year 1905 when the Privy Council decided the case in his favour. It was found in that case that the land was in possession of nobody between 1895 up to 1905. In these circumstances the learned Judges held that the suit of the plaintiff was not barred by limitation. They also decided that Section 16, Limitation Act, applied and the plaintiff was entitled to deduction of the time spent in that litigation from 1895 to 1905, and that the word ''proceeding'' is wide enough to include a suit. It was not noticed in any of the judgments of the Letters Patent Bench that the plaintiff had actually obtain, ed formal delivery of possession, although Mullick J., who decided the case originally as a Single Judge, states at p. 306 that the learned Munsif found that the plaintiffs never obtained possession after their auction-purchase of 1893, but the learned Subordinate Judge found that the plaintiff did obtain possession within one year of 1893 and that although after this while litigation was going on they allowed the land to remain waste till 1905, they were in constructive possession during the whole of that period. Now if the plaintiffs were in constructive possession during the whole of the period, obviously their suit instituted in 1909 was within time. But, as I have said above, no argument was addressed to the learned Judges as to the effect of the possession having been taken by the plaintiffs in 1894 on the applicability of Section 16, Limitation Act. In my opinion, this case does not help the contention raised by Mr. Das.

On the other hand, there is a direct authority of this Court decided by a Division Bench in Ram Prasad Ojha v. Bindeshwari Prasad AIR 1932 Pat. 145. The identical question before us was decided there that where a formal delivery of possession has been taken by an auction-purchaser, the Article which applies is Article 144, Limitation Act, and not Article 138 or Article 142. Khaja Muhammad Noor J. examined the matter elaborately and pointed out the confusion Of thought which existed on account of the misunderstanding of the words symbolical and actual possession-- words not used in the Code of Civil Procedure. Says the learned Judge at p. 173 that when once the Court has put the plaintiffs in possession of the property as auction-purchaser and the defendant continues in possession of it in spite of delivery of possession it is then and then only that the possession of the defendant becomes adverse. The plaintiff could not have gone and taken possession of the property either at the sale or even after the confirmation of it unless the Court put him in possession. At page 170 the learned Judge says that it was obvious to him that Article 138 has no application as that Article applies to a suit instituted by an auction-purchaser against a judgment-debtor and, therefore, applies to a case in which there has been no delivery of possession by the executing Court as contemplated by Order 21, Civil P.C., and that the Article to be applied is Article 144 as that regulates a suit for possession of immovable property or any interest therein not otherwise provided for in the Limitation Act. Wort J. at page 168 approved of this view in that he says that it was pointed out in the course of the argument that Article 138 would apply in a case in which the decree-holder having purchased a property had failed to take advantage of the procedure under the CPC for the purpose of obtaining possession when the judgment-debtor was in possession, and in those circumstances he brings an action to obtain possession which he might have obtained under the CPC had he been so minded.

With respect I agree with the correctness of the decision in the Patna case. The words of Section 16, Limitation Act, are quite clear. It says that in computing the period of limitation prescribed for a suit for possession by a purchaser at a sale in execution, of a decree the time during which the proceeding to set aside the sale has been prosecuted shall be excluded. We must, therefore, turn to Schedule I to find out what is the period of limitation prescribed for such a suit. The only Articles which provide for the institution of such a suit are Articles 137 and 138. The former Article says that for a suit by a purchaser at a sale in execution of a decree for possession when the judgment-debtor was out of possession at the date of the sale the period of limitation is twelve years from the time when the judgment-debtor was first entitled to possession. That Article has no application as in the present case the judgment debtor was not out of possession at the date of the sale. Article 138 provides that the period of limitation for a similar suit if the judgment-debtor was in possession at the date of the sale is to be twelve years from the date when the sale became absolute. This is the position here--the judgment-debtor was in possession.

In my opinion, on a plain reading of Section 16 and of Articles 137 and 138, it necessarily follows that Section 16 can only be helpful to a plaintiff where he has not gone to the executing Court to obtain possession, and the time from which the period begins is the time when the sale becomes absolute; but where on the other hand the decree-holder as auction-purchaser has gone to the executing Court and obtained delivery of possession, whether formal or, actual, and he is then dispossessed either momentarily--where the possession is merely formal or later where the possession has been given to him actually,--a suit for recovery of possession by the plaintiff in such a case is not a suit by him as an auction-purchaser, but an ordinary suit for possession by the owner of the property whose title has become complete and effective by the confirmation of the sale and by the delivery of possession. In such a case Article 144, Limitation Act, must apply.

Mr. P.R. Das attempted to distinguish the situation by holding that the decision in Brojendra Kumar Roy v. Ashutosh Roy AIR 1921 Cal. 385 was erroneous and the-attention of the learned Judges was not drawn to the case in Promotha Nath Roy v. Kishore Lal AIR 1917 Cal. 802. Mr. P.R. Das also drew our attention to the oral evidence in the case where it is stated by the defendant''s witness that village Kosi Rukhi was in usufructuary lease of Dr. Abul Husan by a registered bond of the year 1913 and that he was in possession of the village, and also to the evidence of D.W. 3, Barho Singh, where he said that he paid rent of the year in which there was dakhaldehani to Yusuf Mia and after that he did not pay rent to any one. I do not see how these statements of the witnesses are at all relevant in the present case. Here it is found that there was a formal delivery of possession in 1924 and, therefore, the plaintiff must bring a suit within 12 years from the date when the possession of the defendants became adverse. That possession became adverse on the very date of the formal delivery of possession as has been consistently held in a number of cases including the case in 11 Pat. 1653 noticed above. Attention was also drawn by Mr. P.R. Das to the case in Juggobundu Mukerjee v. Ram Chunder (80) 5 Cal. 584 a decision approved by their Lordships of the Judicial Committee in Radha Krishna Chanderji v. Ram Bahadur AIR 1917 P.C. 197.

In the former case it was held that delivery of possession by going through the process prescribed by the CPC was the only way in which the decree of the Court awarding possession to the plaintiff could be enforced; and as, in contemplation of law, both parties must be considered as being present at the time when the delivery is made, such delivery must, as against the defendant, be deemed equivalent to actual possession. As against third parties such symbolical possession is of no avail, because they are not parties to the proceedings. But if the defendant subsequently dispossesses the plaintiff by receiving the rent and profits the plaintiff will have twelve years from such dispossession to bring an-other suit. Mr. P.R. Das argued that as in this case the dispossession, on evidence of the defendants'' witnesses already referred to, was by receiving rents and profits it should be held that the dispossession was not momentary on the date of formal delivery of possession but on some date later on. He, therefore, submitted that the case should be remanded ,to the Court below so that the parties may be allowed to give evidence to determine the exact date upon which the possession of the defendants be-came adverse by receiving rents and profits either from the lessee, Dr. Abul Husan, or from the tenants.

In my opinion this position is not open to Mr. P.R. Das. Here I have found as a fact that there was a formal delivery of possession effected under the provisions of the CPC in favour of Darbari Lal, the auction-purchaser, and that in the eye of law there must have been an immediate dispossession by the judgment-debtor. It is of no consequence that the dispossession was by the judgment-debtor through his lessee Dr. Abul Husan. Further the concluding portion of the judgment delivered by Garth C.J. at page 588 is very pertinent to the present controversy. Says the learned Chief Justice:

One very conclusive test, as it seems to us, that the delivery thus effected u/s 224 does really, in the eye of the law, place the plaintiff in possession as against the defendant, consists in this that if mesne profits are awarded to the plaintiff, he is only entitled to them up to the time when delivery is given. This can only, of course, be explained upon the ground that, at that time, the defendant''s possession is considered at an end, and the transfer to the plaintiff becomes complete.

This is exactly the view which I have taken while discussing the matter in the course of the judgment. As to the suggestion that the suit should now be remanded, the plaintiff cannot be allowed to make out a new case for the first time in appeal based upon some statements elicited from the defendants'' witnesses in cross-examination. The case of the defendants always was that the plaintiff obtained delivery of possession formally through Court. The plaintiff had omitted to state anything about delivery of possession in the plaint and even after the written statement did not apply to have the plaint amended. The case must, therefore, be decided upon the materials as they actually exist upon the record1 and it is not desirable to remand the case for further investigation. It must, therefore, be held that the suit of the plaintiff is barred by limitation, and the decision of the learned Subordinate Judge on this question was erroneous.

The learned Advocate-General also contended that the plaintiff had no right to maintain the suit after she had adopted a son as has been stated in paragraph 3 of the plain. But no plea was taken in the written statement that the plaintiff has no right to maintain the suit. Mr. P.R. Das very rightly contended that if this plea had been taken it would have been easy for the plaintiff to have amended the plaint by including the minor son as a party to the action or by describing the plaintiff as suing both for herself and on behalf of her minor son. The judgment of the learned Sub-ordinate Judge shows that at the time of the argument the guardian ad litem of the minor defendants pointed out that the plaintiff had no right to maintain the suit as the adopted son must inherit the properties and not the plaintiff. The learned Subordinate Judge overruled the contention holding that when Darbari Lal died there was no adopted son, and, therefore, the entire property vested in the plaintiff and by the subsequent adoption she could not be divested. Moreover in his opinion, according to the terms of the will, the plaintiff became the absolute owner of the properties left by Darbari Lal.

The learned Advocate-General raised an elaborate argument in appeal in which he vehemently contested the correctness of the view taken by the learned Subordinate Judge. He argued that now it was well settled by the decisions of their Lordships of the Judicial Committee in Amarendra Mansingh v. Sanatan Singh AIR 1933 P.C. 165 and AIR 1943 196 (Privy Council) that whenever an adoption is made it has the effect of vesting the property in the boy by relating back, to the moment of the death of the father and divesting any person in whom the property has vested since the date of the death of the last owner. In my opinion it is unnecessary to consider this question at any length because we are conclusively bound by the decision of their Lordships pronounced in AIR 1927 139 (Privy Council) . Lord Dunedin in delivering the judgment of their Lordships after pointing out that it was impossible to reconcile all the decisions of the Indian Courts and still less the reasons on which they have been baaed, proceeded to examine the matter on principle. At page 262 occur the following observations:

When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator, and the property is carried away before the adoption takes place.

In my opinion, it is impossible for us to hold that these observations are not of general application when his Lordship expressly says that he is going to consider the question as a matter of principle. As Mr. Das had pointed out the other decisions of their Lordships of the Judicial Committee upon which reliance has been placed by the learned Advocate-General only deal with cases where the heir is divested and not of cases where an alienee is divested. Grave injustice will be done if after a son had been adopted many years after the death of the testator all alienations by the widow, assuming these are for legal necessity, could be ignored by the adopted son.

Similarly, where the adopted son comes into being as the result of a will which gave the widow the power to adopt and the will itself has made a disposition of the property of the testator it will be incongruous to hold that the will is good in one part and bad as to the other part. For these reasons, I am in agreement with the decision of the learned Subordinate Judge on this point. But as the suit of the plaintiff is barred by limitation, I must allow the appeal, set aside the decision of the learned Subordinate Judge and dismiss the suit with regard to the property in appeal.

In the circumstances I would direct each party to bear his own costs of this litigation here and in the Court below.

Das, J.

I agree.