Srinath Gangopadhya And Others vs Mahes Chandra Roy and Others

Sir Barnes Peacock Kt., C.J., Loch, Bayley and Kemp, JJ.—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 Natchiar vs. Srimut Rajah Moottoo Vijaya , 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.

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.

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.

I concur in the proposed answer to the question before us.

On the death of the widow of Sadasib Roy, the plaintiff as his next heir then alive sued to recover possession of certain property which had been inherited by the widow of Sadasib from her husband, asking also that an alleged adoption under which the defendants claimed might be declared invalid.

The defendants in effect pleaded that the adoption referred to by the plaintiff was valid, and that the suit was barred by limitation because it was not instituted within 12 years of the origin of the plaintiff''s cause of action, and because there had been more than twelve years'' adverse possession. The plaintiff''s cause of action did not and could not accrue to him until the widow died, because his right to recover possession depended wholly upon his being in fact the next heir of Sadasib on the death of the widow. The defendants say that the suit is absolutely barred by Act XIV of 1859, because the alleged adopted son was put into possession immediately on the adoption, many years ago, and that possession baa never since been disturbed. But the defendants can derive no benefit from possession through or under, or by the act of, the widow, unless the possession was properly given by the widow. An improper giving away, or other alienation, of her husband''s estate by a childless Hindu widow, is of no operation as against a reversioner. Therefore it being admitted that the property in this case was originally inherited by the widow, until it is ascertained whether she in giving possession to her alleged adopted son acted in a manner warranted by Hindu law, it cannot be ascertained whether that possession was adverse to the reversioner. Whether the widow''s act was warranted by Hindu law, and binding on the reversioner, depends upon whether any adoption was legally made by her. Of course if he was in truth legally adopted, Krishna Chandra (the alleged adopted son) became the son of the widow''s deceased husband Sadasib, and as such would legally inherit his estate, and the plaintiff cannot possibly now be the next heir of Sadasib. But if the adoption was invalid the possession held under the gift or alienation of the widow is no bar to the plaintiff''s suit; for if the gift or other alienation by the widow was not in other respects warranted by law, the fact that she made it in the belief that she had adopted, or saying that she had adopted Krishna Chandra so as to make him the son of Sadasib, when she had not so adopted him, would in no degree add to the validity of the gift or alienation so far as the reversioner was concerned.