by which I understand was an absolute nullity without any show of right. Taking first Gujar Singh v. Puran (1), which was decided by a Division Bench, whereas Muhammad Din v. Sadar Din (*), was the ruling of a single Judge, and Hem Raj v. Sahiba (3), which followed Gujar Singh v. Puran, we see that on the authority of the Privy Council it was laid down that, whether an adoption really took place or not, if plaintiff sues defendant for possession of property and defendant alleges an adoption and shews that plaintiff, more than six years before suit, was aware that defendant claimed to be adopted, the suit is barred under Article 118. Muhammad Din v. Sadar Din (2), which does not refer to the Privy Council authority at all, drew the distinction aforesaid between alleged adoptions and alleged adoptions inherently invalid. In Ganesha Singh v. Nathu (*), where the factum of adoption was admitted, it was held that whenever in any suit the validity or invalidity of an adoption comes into question, that point can only be raised within six years of plaintiff's knowledge. In Dheru v. Sidhu ("), the matter was incidentally discussed on the same lines. In Ram Narain v. Maharj Narain (°), it was laid down that Article 119 applies to every suit filed for whatever purpose in which plaintiff must, in order to succeed, prove the validity of an adoption, and that time begins to run from the date on which the rights of an adopted son are interfered with. (Thus, if in the present case plaintiffs had in 1888 succeeded in ousting defendant, defendant would only have had till 1894 to sue for possession). Sardar Wasawa Singh v. Sardar Arur Singh (7), quoted by Mr. Shah Din, need not be noticed. Besides these Punjab cases he has quoted Shrinivas Murar v. Hanmant Chavdo Deshapande (), Malkarjun v. Narhari (°), Barot Naran v. Barot Jesang (10), Parvathi Ammal v. Samivatha Gurukal (11). In Shrinivas Murar v. Hanmant (8), it was held that Article 118 applied to a suit for declaration of invalidity of defendant's adoption, for possession and for mesne profits, and the reasons given by Candy and Tyabji, JJ., are instructive. The former learned Judge said that, though primarily Article 141 applics, when defendant pleads that he was holding to plaintiffs' (1) 71 P. R., 1901. (*) 20 P. B., 1902, (0) 3 P. R., 1994. (') 33 P. R., 1900. (8) I. L. R., XXIV Bom., 260, F. B. (11) I. E, B., XX ́Mad,, 40.. knowledge, as validly adopted by the widow, Article 118 applies; and the latter expressed the opinion that Article 118 applies to every case where the validity of the adoption is the substantial question, whether it arises on plaint or on defendant's pleas. Malkarjan v. Narhari (1) at page 350 quotes Jagadamba Chaodhrani V. Dakhina Mohun Roy Chaodhri (2), in which Article 118 was applied to a case in which plaintiff sued to recover an estate and said nothing about defendant's adoption. In Parvathi Ammal V. Saminatha Gurukul (3), it was said that, if the adoption was set up by defendant to knowledge of plaintiff more than six years before suit, the claim would be barred. Mr. Beechey, on the other hand, quoted a large number of Punjab, Calcutta, Allahabad and Madras rulings, but as he claimed that Karam Dad v. Nathu (*) nullified all the previous rulings of this Court relied on by defendant, I will first examine that case. In my opinion it is in terms hardly in line with the facts of the present case. There the assertion of the plaintiff, which he successfully established, was that the widow, in order to have any power whatever to adopt an heir to succeed to her late husband's estate, should have had, and as a matter of fact had not, authority from him to adopt. No doubt it is stated that Article 118 applies only when validity of an adoption is in question and not when the adoptor has no inherent power to adopt, a dictum also to be found in Bhagat Ram v. Tulsi Ram (5), and the aforesaid Muhammad Din v. Sadar Din (), but then here there is no question of Mussammat Zainab's having, or not having, authority from her husband to adopt. The dictum in Karam Dad v. Nathu (*) must be taken as applying to the facts of that case or at most to analogous facts, and it is impossible to say that the learned Bench would have expressed itself in the same way had it had in its mind a case like the present. To my mind it is a question whether that dictum taken in a broad and general way is not in conflict with the views of the Privy Council; and I consider that, though we would be bound to follow it in an exactly similar case, in a case not similar we can and should pass it by and conform to the dicta of the Privy Council and to those of this Court expressed in the series of rulings relied : upon by Mr. Shab Din. In short, we should hold that in 55 P. R., 1897. 96 P. R., 1898. 73 P. R., 1894. 14 P. L. R., 1902. I. L. R., XXII Calc., 609. I. L. R., XXV Calc., I. L. R., XXVII 195. I. L. R., XXVI All., 40 (F. B.). But even if we must adopt the distinction drawn in Karam Dad's case and in Bhagat Kam's case and Muhammad Din's case, in connection with which Mr. Beechey has referred us to the rulings quoted in the margin, which rulings I do not propose to discuss except in so far as to state that in my opinion they are either not in point or are opposed to the Privy Council's views expressed in Jagadamba Chaodhrani I. L. R., XXIV AU., v. Dakhina Mohun (2), and Malkarjun v. Narhari (5), and to this Court's views given in Gujar Singh v. Puran (*), Ganesha Singh v. Nathu (5), and Dheru v. Sidhu (°), I am unable to can be said that the adoption in the present see how it case is" inherently invalid". Adoption among Muhammadans is, of course, not a religious act as it is among persons subject to Hindu Law. It amounts simply to nomination of au heir; and what we have to see is not whether according to any theory of the powers of females under custom Mussammat Zainab could or could not validly adopt a son, but whether as a matter of practice women in this tribe have in the past nominated heirs to landed property, which would, but for that nomination, have reverted on their death to 1. L. R.. XXVI Bom., 291 (dissenting judgment of Bhashyam Aiyengar, J.). . the father's collaterals, and whether also, women in the position of Mussammat Zainab have not in the past alienated property received from fathers and husbands at will without consent of collaterals. But before discussing this directly I would like to say that in my opinion the evidence on the record, which is too voluminous for detailed discussion, shews to my satisfaction that these Sheikh Ansaris are not agriculturists in the proper sense of the term, and that there is no presumption that they have adopted agricultural custom; that evidently females and especially daughters are among them a favoured class; and that, where it is not specifically proved by the plaintiffs that the tribe, in matters connected with the status of females, have actually adopted agricultural custom or some similar restrictive custom, Muhammadan Law must be presumed to apply. In connection with this I would only refer to Section 5, Punjab Laws Act, and the Fall Bench ruling in Daya Ram v. Sohel Singh (1). a case The learned counsel for the appellent have prepared certain lists of adoptions and alienations by and succession to females and males in these Jullundur Bastis and for convenience sake I will refer to them. They are compiled from materials on the record. List 3 B. is of adoptions by females. Four instances are given of which the first is the one now in dispute. The second instance is of a tamlik-nama, see page 541, paper-book, and of a judicial decision (page 53) under which property gifted by her father to the lady who executed that deed remained with the donee or legatee or nominated heir. The deed does not speak of " adoption "but it clearly makes the beneficiary an appointed heir; and see page 19, top, page 475, line 27 (adoptee's own statement) and note to khatas 1, 2 and 3, pedigree table of Basti Danishmandan. Entry 3 is a Sayad case of Basti Sheikh Darwesh. The alleged adoptee was an Arain. It is doubtful whether this case can be considered to be directly in point, but it certainly shews an extensive power in females to deal with property inherited from fathers. In my opinion too a Sayad case from one of these Bastis is as such certainly in point, Entry 4 is a curious case of the adoption of two boys or rather the exection of a tamlik-nama in their favour. I think this must really have occurred, though no mention of it (2) 110 P. R., 1906, F. B. is made in the pedigree-table, for see the allusion at pages 498, 139, paper-book. These cases are thus few, as one would naturally expect; but in my opinion the cases of gifts by females, which are numerous, List 1 B., are also in point as shewing that females are not in this tribe tied down as they are in ordinary Punjab tribes. There are 37 instances, of which Mr. Shafi admits that five have been shown of no value. It is impossible here to discuss these instances at length. After considering the criticisms of Lala Badri Das, junior counsel for plaintiffs, I have arrived at the conclusion that the list supports very fairly the contention of defendant as to the powers of females in the tribe, and I approve of the argument of Mr. Shafi that, when we find in such a list some gifts that can be supported both under Muhammadan Law and custom and some that can only be supported under Mahammadan Law, it must be taken that all were made under Muhammadan Law and not some under that law and the rest under custom. There are also lists of sales, etc., by females and succession to females, and of adoptions and gifts and sales, etc., by males, and of succession of females to males. I do not propose to discuss these further than to say that, after considering Mr. Badri Das's strictures on them, I still find a considerable residum of cases which cannot be accounted for under agricultural custom. "adoption " of Finally, then, my view is that the defendant by Mussammat Zainab was not "inherently invalid" and so Article 118 fully applies and the suit is barred. I would also express the opinion that probably the suit is barred by time in other ways also, see (i), (iii) and (iv) at beginning of this judgment. I will not discuss this further than to say that in my opinion the evidence on the whole goes to shew that gifts in lieu of dower, and even ordinary gifts, by males to females in this tribe probably makes the female donees absolute owners as in Muhammadan Law; and further to say that, even if this is not quite so, the intention of the gift by Jahangir to Mussammat Maryam and by Sarfaraz to Mussammat Zainab was to make the ladies full owners as the donors certainly were in the absence of applicability of agricultural custom and so these ladies held adversely to the collaterals. I would, then, if my learned colleague agrees, accept the appeal and dismiss the suit with costs throughout. |