Authored By : Banerjee, Francis Maclean

Banerjee, J.

1. The suit, out of which this appeal arises, was brought bythe plaintiff-respondent to recover possession and mesne profits of certainproperties, seven in number, namely, two revenue-paying estates (in one ofwhich only an 8 annas share is claimed), two dwelling houses, a temple and agarden, and a tank. The material allegations on which the plaintiff bases hissuit are shortly these: That the properties in dispute originally belonged toKumar Ram Chunder, the adopted son of Rajah Udmanta Singh, who was the brotherof Rajah Hanumant Singh; that the plaintiff was the great grandson by adoptionof the said Rajah Hanumant Singh, having been duly adopted on the 24th ofAugust 1866 by the widow of Rajah Kirti Chand, grandson of Rajah HanumantSingh; that Kumar Ram Chunder, having dedicated properties Nos. 1 and 2 of theschedule to the plaint (that is the two revenue-paying estates) to the worshipof a certain idol, and having appointed Rani Annapurna, widow of Rajah UdmantaSingh, to be the shebait, died, leaving him surviving his widow Rani AnandaMoye and the said Rani Annapurna; that Rani Annapurna purported to make a giftof a 2 annas share of property No. 2 in favour of the defendant, who claims tobe her sisters adopted son; that by her last will and testament, dated the 6thJuly 1877, Rani Annapurna purported to dedicate property No. 1, and theremaining six annas of property No. 2, to certain idols, and to appoint RaniAnanda Moye as shebait; that on the death of Rani Annapurna, Rani Ananda Moyeobtained probate of the said will and remained in possession of the propertiesin dispute; that on the death of Rani Ananda Moye in September 1883, thedefendant and the Court of Wards, on behalf of the plaintiff who was then aminor, made separate applications for letters of administration to the estate,and the application of the defendant was granted, while, owing to the neglectof the manager under the Court of Wards to adduce evidence, the application onbehalf of the plaintiff was disallowed; that the defendant has since thengrad(sic)illy taken possession of the properties in dispute, and has beenmisappropriating the profits of the endowed properties; and that according tothe Hindu law of the Benares School, which governs the family, the plaintiff,as the reversionary heir to Kumar Ram Chunder after the death of his widow RaniAnanda Moye, is entitled to the properties in dispute. And the plaintiff seeksto recover possession of the said properties as the heir to Kumar Ram Chunder.And he makes an alternative prayer that if it be held that the properties Nos.1 and 2 were the absolute property of Rani Annapurna, he may be awardedpossession of property No. 1 and of a six annas of property No 2 as heir of thesaid Rani and as shebait of the idols to whom she dedicated those properties.

2. The defendant pleaded limitation and res judicata in barof the suit, denied the adoption of the plaintiff and his title as heir toKumar Ram Chunder and to Rani Annapurna, and alleged that the properties indispute were the stridhana or absolute property of Rani Annapurna, and that thedefendant as her sisters adopted son was entitled as her heir to all of themexcept No. 7, which had been dedicated by her to public use. He also denied thecharge of misappropriation of the profits of the endowed properties. There werecertain other points raised in the defence which are not necessary to beconsidered for the purposes of this appeal.

3. Upon these pleadings several issues were framed in theCourt below; and that Court has held that the suit is not barred by limitationor by the principle of res judicata; that the plaintiff is the validly adoptedson of Rajah Kirti Chand, and the defendant the validly adopted son ofAnnapurnas sister; that the plaintiff is the heir of Kumar Ram Chunder and ofRani Annapurna in preference to the defendant; that the defendant has committedwaste of the income of the endowed property; that the properties Nos. 1, 2 and3 belonged absolutely to Annapurna, who made a gift of 2 annas of No. 2 to thedefendant and dedicated No. 1 and the remaining 6 annas of No. 2 to the idolsLakshminarayan and Radhamohun; that the remaining properties belonged to KumarRam Chunder; and that the plaintiff had no cause of action against thedefendant as regards property No. 7. And in accordance with these findings, thelower Court has given the plaintiff a decree for possession of properties Nos.1 and 3 and a 6 annas share of property No, 2 as shebait of ThakursLakshminarayan and Radhamohun, and for possession of the remaining propertiesin suit except a 2 annas share of property No. 2 in his own right, the claimfor an account having been abandoned.

4. Against this decree the defendant has preferred thisappeal, and the plaintiff has filed a cross appeal.

5. At the hearing, the cross-appeal was not pressed. In theappeal of the defendant, the only grounds pressed are, first, that the Courtbelow should have held that the whole suit was barred by limitation underArticle 119 of Schedule II of the Limitation Act; second, that the Court belowshould have held that the suit, so far as the plaintiff sought to oust thedefendant from the office of, shebait and to recover possession of the endowedproperties as shebait, was barred by limitation under Article 120 of ScheduleII of the Limitation Act; third that the Court below should I we held that thesuit, so far as the plaintiff seeks to recover possession of properties otherthan those of Rani Annapurna, was barred by limitation under Article 144 of thesaid Schedule; fourth, that the Court below should have held that the defendantwas the heir to the stridhana of Rani Annapurna in preference to the plaintiff;fifth, that the Court below should have held that the charge of waste andmisappropriation of the income of the endowed property was not establishedagainst the defendant, and that the plaintiff was not entitled to oust thedefendant from the office of shebait; and, sixth, that the Court below shouldhave held that the defendant had acquired a valid title to property No. 6 underhis purchase at a sale in execution of decree.

6. We shall consider these grounds in the order in whichthey have been stated above. In support of the first ground, the learned Vakilfor the appellant argued that, as the plaintiff could not, in any view of thecase, succeed without establishing the validity of his adoption, and as a suitto obtain a declaration that his adoption was valid was barred under Article119 of schedule II of the Limitation Act by reason of the time allowed by thatarticle having expired, the whole suit must be held to be barred by limitation,and he relied upon the cases of Jagadamba Chaodhrani v. Dakhina Mohan RoyOhaodhri I.L.R. (1886) Cal. 308 Mohesh Narain Munshi v. Taruck Nath MoitraI.L.R. (1892) Cal. 487 and Parvathi v. Saminatha I.L.R. (1896) Mad. 40. On theother hand, it was contended for the respondent that Article 119 applied onlyto a suit to obtain a declaration that an adoption was valid, and that it hadno application to a suit like the present for possession of Immovable property,and in support of this contention the case of Fannyama v. Manjaya I.L.R (1895). 2 Bom. 159 and the cases therein cited were referred to.

7. After giving our best consideration to the point, we cometo the conclusion that the contention of the appellant is not correct.

8. If Article 119 applied to this suit it would be barred,assuming that the rights of the plaintiff, as the adopted son of Rajah KirtiChand, were interfered with by the order of the High Court dated the 11thSeptember 1885, granting the defendants application for letters ofadministration to the estate of Rani Annapurna, and refusing that of theplaintiff, as the present suit was brought more than six years after that date,and more than three years after the plaintiff attained majority. But we do notthink that Article 119 applies to a suit like the present, which is brought forrecovery of possession of Immovable property, though the plaintiff has toestablish the validity of his adoption as the basis of his title. That article,as its language shows, applies only to a suit to obtain a declaration that anadoption is valid. The view contended for by the learned Vakil for theappellant is not only opposed to the plain language of the article in question,but would lead to obvious anomaly and hardship. Thus, while a son claiming theImmovable property of his father from a person who denies his legitimacy hastwelve years within which to bring his suit, an adopted son making a similarclaim against a person who denies the validity of the adoption would in thatview have only six years allowed to him. Again, an adopted son claiming byinheritance the Immovable property of a collateral kinsman by adoption yearsafter his adoption took place, would in that view have only six years from thetime the succession opens within which to bring his suit, whereas if he hadbeen a blood relation of his deceased kinsman, he would have had the ordinaryPeriod of twelve years. We do not think it reasonable to suppose that theLegislature could have intended this.

9. It was argued by the learned Vakil for the appellant thathis view was supported by the cases he cited. Two of these being decisions ofthe Privy Council, if they are in point, we are bound to follow them. But theywere both cases in which the contention was that the suit was barred bylimitation because it was too late for the plaintiff "to set aside"the adoption of the defendant, or, in other words, to displace the title byadoption under which the defendant claimed to hold the Immovable property indispute; whereas the contention in the present case is, that the suit is barredby limitation, because it is too late for the plaintiff to "establash"his adoption, or, in other words, to have it declared that his title byad(sic)ption under which he seeks to recover the Immovable property in dispute,is valid. The provision of law relied upon in the two cases cited was thatportion, of Article 129 of Act IX of 1871, which corresponds to Article 118 ofAct XV of 1877, and not the portion corresponding to Article 119, upon whichthe present appellants contention rests. Though these two articles of thePresent Act into which Article 129 of the former Act has been broken up, relateto cognate matters, and though the two contentions mentioned above are in somerespects analogous, it is by no means clear that precisely the sameconsiderations apply to both. The reasons which led their Lordships of thePrivy Council in Jagadamba Chaodhrani v. Dakhina Mohun Boy (1886) L L. R. 13Cal. 308 to conclude that the expression "suit to set aside anadoption" includes a suit for possession of land after displacing a titleby adoption, as well as a suit for a declaration that an adoption was invalid,do not warrant the con" elusion that the expression suit to establish anadoption" includes also a suit for possession of Immovable property upon atitle by adoption, when the property claimed is, as it is in this case, that ofa collateral relation by adoption.

10. Moreover, both the cases referred to were cases governedby the old law (Act IX of 1871), the language of the corresponding provision ofwhich (Article 129,) was very different. In the earlier of the two cases, JagadambaChaodhrani v. Dakhina Mohun Ron I.L.R. (1886) Cal. 308 which was a suit by areversioner after the death of the widows of the last full owner, to recoverpossession of Immovable property from the defendant who was holding it as hisadopted son, their Lordships observe: "It thus appears that the expressionset aside an adoption is, and has been, for many years applied in theordinary language of Indian lawyers to proceedings which bring the validity ofan alleged adoption under question, and applied quite indiscriminately to suitsfor possession of land and to suits of a declaratory nature. It is worthobserving that in the Limitation Act of 1877, which superseded the Act nowunder discussion, the language is changed. Article 128 "(evidently amisprint for 118) "of Act XV of 1877, which corresponds to Article 129 of1871, so far Daas regards setting aside adoptions, speaks of suits to obtain adeclaration that Pr(sic)an alleged adoption is invalid or never in fact tookplace, and assigns a Indifferent starling point to the time that is to runagainst it. Whether the alteration of language denotes a change of policy, orhow much change of law pLalt affects, are questions not now before theirLordships. Nor do they think that any guidance in the construction of theearlier Act is to be gained from the later one, except that we may fairly inferthat the Legislature considered the expression suit to set aside an adoptionto be one of a loose kind, and that more precision was desirable.

11. "If then the expression is not such as to denotesolely, or even to denote accurately, a suit confined to a declaration that analleged adoption is invalid in law or never took place in face, is thereanything in the scope or structure of the Act to prevent us from giving to itthe ordinary sense in which it is used, though it may be loosely byprofessional men" And this question is answered in the negative. Thisshows that, though their Lordships did not decide what the effect of the changein the law was, they decided that a suit for possession which could succeedonly if a title by an alleged adoption was displaced, was governed by Article129 of the earlier Act, because the loose expression suit to set aside anadoption" used in that article, applied indiscriminately to suits forpossession of land and to suits of a declaratory nature, and did not denotesolely or even accurately a suit of the latter description. Can the same thingbe said of Articles 118 and 119 of the present Act, which taken togethercorrespond to Article 129 of the Act of 1871 Evidently not. The language isaltered and made more precise so as to apply only to suits of a declaratorynature, and the time is reduced from twelve years (which is the periodgenerally allowed in the enactments for suits for possession of Immovableproperty) to six years, a much shorter period. To our minds their Lordshipsobservations quoted above go to support the view taken of Article 119 of thepresent Limitation Act in the argument for the respondent rather than thattaken on the other side.

12. The learned Vakil for the appellant argued that the nextcase cited, Mohesh Narain Munshi v. Taruck Nath Moitra I.L.R. (1892) Cal. 487went clearly to support the View taken by him of the meaning and effect ofArticle 119 of the Act of 1877; and the passage in the judgment most stronglyrelied upon is the one in which their Lordships say: "It was suggestedthat the Act of 1871, having been superseded by the Act of 1877, the questionof limitation should be determined with reference to the provisions of thelater statute, in which the language used is somewhat different, the suit therereferred to as necessary to save the limitation being described as one toobtain a declaration that an alleged adoption is invalid or never in facttookplace. It seems to be more than doubtful whether if these were the words ofthe statute applicable to the case, the plaintiff would thereby take anyadvantage." We do not think that the concluding sentence in the abovepassage, which is only a dictum in guarded language and not a decided opinionof their Lordships, hears out the appellants contention that the change inlanguage adopted in Articles 118 and 119 of Act XV of 1877 has not effected anychange in the law. "What their Lordships considered to be more than doubtfuleven if the language of the old law (Article 129 of Act IX of 1871) were thesame as that of the present law (Article 118 of Act XV of 1877) was not whetherthat would make any change in the law, but whether the plaintiff would take anyadvantage, that is, whether the plaintiff in the case before their Lordshipswould succeed under the circumstances of the case (quoted, in 27 Cal.2-55)." That this is the meaning of the above passage appears to us to beclear, not only from the language used, hut also from the fact that the HighCourt held that the suit was barred by adverse possession, and their Lordshipsin an earlier part of the judgment say that they decide the question upon theconstruction of Article 129 of Act IX of 1871 without expressing any dissentfrom the view of the High Court that the suit was barred by adverse possession.

13. The case of Parvathi v. Saminatha I.L.R. (1896) Mad. 40no doubt is in favour of the appellant. But as against that case there has beena strong current of decisions the other way. See Lala Parbhu Lal v. MylneI.L.R. (1887) Cal. 401 Basdeo v. Gopal I.L.R (1886) . All 644 Ganga Sahai, v.Lakhraj Singh (1886) I. L. B. 9 All. 253 Natthu Singh v. Gulab Singh (1895) I.L. B 17 All 167, Podajiran v. Ramrav I.L.R.(188) 13 Bom. 160 [LQ/BomHC/1888/81] Fannyama v.Manjaya (1895) I. L. B. 21 Bom. 159 and Hari Lal v. Bai Rewa (1895) I. L. B. 21Bom. 376.

For the reasons given above, and upon the authority of thecases we have referred to, we must respectfully dissent from the case ofParvathi v. Saminatha I.L.R (1896) Mad. 40 and hold that Article 119 ofSchedule II of Act XV of 1877 applies only to a suit (sic) a declaratorydecree, and that the present suit, which is one for possessions of Immovableproperty, is not barred under that article.

14. The second ground of appeal, namely, that the suit, sofar as the plaintiff seeks to oust the defendant from the once of shebait andto recover possession of the endowed properties, should have been held asbarred under Article 120 of Schedule II of the Limitation Act, is based uponthe case of Jagannath Daas v. Bir Bhadra Das I.L.R. (1892) Cal. 776. But thatcase is quite distinguishable from the present. Wh(sic) ( was held there wasthat a suit to oust a shebait from his office which is not hereditary, and theappointment to which is made by nomination, is governed b(sic) the six yearsrule of limitation under Article 120. In the present case the la(sic))rishebait Rani Ananda Moye, not having appointed her successor as provided in thewill of the founder, Rani Annapurna (Ex. B), and there being no otherprovisions for the appointment of shebait, the management of the endowment mustrevert to the heirs of the founder, Bee Jai Bansi Kunwar v. Chattardhari Singh(1870) 5 B. L. R. 181; 13 W. R. 396 Gossamee Sree Greedharreeje v. RumanlolljeeGossamee (1889) L. R. 16 I. A. 139; I.L.R. 17 Cal. 3 and the office of shebaithenceforth must be hereditary in the founders family. The limitationapplicable to a suit for possession of such an office is twelve years under Article124, and not six years under Article 120, and the suit being brought withintwelve years from the date when the defendant took up the management of theendowed properties, is well within time.

15. In support of the third ground, namely, that the suit,so far as it is one for possession of properties other than those of RaniAnnapurna, should have been held as barred under Article 144 of Schedule II ofAct XV of 1877, the learned Vakil for the appellant argued that as Kumar RamChunder died in 1859, it was possible for his widow Rani Ananda Moye to havebeen, barred by limitation under Act XIV of 1859, before Act IX of 1871, whichsuperseded that Act and allowed the reversioners to reckon limitation from thedate of the widows death, came into operation, that is, before April 1873; andif the widow was so barred, the reversioner was also barred under the old law(see Nobin Chunder Chuckerbutty v. Gurupersad Dots (1868) B. L. R. Sup. 1008; 9W. R. 505 and his right, being once barred could not be revived by Act IX of1871 or Act XV of 1877 as is expressly provided by Section 2 of the latter Act.The view of the law upon which this argument proceeds is correct, see DrobomoyiGupta v. Davis I.L.R. (1887) Cal. 323 Shamlall Mitra v. Amarendro Nath Base I.L.R.(1896) Cal. 460 but the argument assumes that Rani Ananda Moyes possessionwithin twelve years before April 1873 is not proved-an assumption which isdisproved by the admission of the defendant in paragraph 10 of his writtenstatement. No doubt the admission is qualified; but except as heir to herhusband we fail to see how Rani Ananda Moye could have been in possession ofthese properties which belonged to her husband, and had not been dedicated tothe idols. That being so, the third ground before us must fail.

16. Upon the fourth ground, namely, that the defendant oughtto have been held to be the heir of Rani Annapurnas stridhana in preference tothe plaintiff, the argument on behalf of the appellant is two-fold. In thefirst place, it is argued that if Annapurna had been married in one of thedisapproved forms, the defendant as her sisters son was unquestionably herheir in preference to the plaintiff, her husbands kinsman; and as the burdenof proof lay on the plaintiff, and he had adduced no evidence on the point, hisclaim should be dismissed; and in the second place it is contended that even ifthe marriage of Annapurna be assumed to have (sic)en in an approved form, stillthe defendant, as her sisters adopted son, was her heir in preference to theplaintiff. We shall consider these two branches of the argument separately.

17. Upon the first branch of the argument, it is suggestedthat the marriage of Rani Annapurna took place in the disapproved form calledAsura, allowable for the Vaisya or mercantile caste to which the partiesbelong. But though the parties may belong to the Vaisya caste, as stated by oneof the plaintiffs witnesses, Mohant Krishnanand Ram Goswami, and though someconsider the Asura, form of marriage allowed for that caste, Manu is strong inhis condemnation of it, and he prohibits it altogether: see Manu III, 25 51,IX, 98. As Rajah Udmanta Singh, the husband of Rani Annapurna, belonged to ahighly respectable Hindu family, as is shown by the fact of his having thetitle of Rajah, it is improbable that he should have contracted a marriage inthe Asura form. It would be unreasonable, therefore, to assume, in the absenceof evidence (and it was admitted in the argument that there was no evidence onthe point) that the marriage of Rani Annapurna took place in the Asura or inany other disapproved form. In Thakoor Deyhee v. Rai Baluk Bam (1866) 11 I. A.139 in which a similar question arose, their Lordships of the Privy Council, inthe absence of evidence to the contrary, held that the marriage in dispute wasaccording to one of the four approved forms. And the same view was taken by theBombay High Court in the recent case of Gojabai v. Shahajirao Maloji RayeBhosle I.L.R (1892) . Bom. 114 in which Telang, J., observed: "It must beassumed, as in the absence of all evidence it was rightly assumed by theSubordinate Judge, that Anundbais marriage was in one of the approvedforms."

18. The first branch failing, it becomes necessary toconsider the second branch of the argument upon the fourth ground, namely, thatif Annapurna was married in one of the four approved forms, even then thedefendant was the heir to her stridhana in preference to the plaintiff. Theparties are admittedly governed by the Hindu law of the Benares School; andthere can be no question that the Mitakshara is the highest authority in thatschool; and the Mitakshara in chapter II, Section XI, paragraph 11, says:"Of a woman dying without issue as before stated and who had become a wifeby any of the four modes of marriage denominated brahma, daiva, arsha andprajapatya, the (whole) property as before described belongs in the first placeto her husband. On failure of him it goes to his nearest kinsman (sapinda). Butin the other forms of marriage called asura, gandharva, rakshasa and paisacha,the property of a childless woman goes to her parents, that is to her fatherand mother. The succession devolves first (and the reason has been beforeexplained on the mother who is virtually exhibited (first) in the ellipticalphrase pitrigami, implying that it goes (gachhati) to both parents (pitarau)that is to the mother and to the father. On failure of them, their nearestkinsman takes the succession." This clearly shows that if the marriage ofAnnapurna was, as in the absence of evidence we must assume it was, in one ofthe four approved forms, the plaintiff, who is the nearest kinsman of herhusband now living, and not the defendant who is her fathers kinsman, is herheir.

19. But it is argued by Babu Golap Chunder Sarkar for theappellant that, though the Mitakshara is clear on the point, a doubt arises asto the correctness of the rule Laid down in the passage quoted above, by reasonof that rule being in conflict with a text of Brihaspati quoted in theViramitrodaya (G. C. Sarkars Translation, page 243), a text of a sage which isrecognised as an authority; and there being a doubt thus raised, theViramitrodaya, which is a work of authority in the Benares School, should, asobserved by the Privy Council in Gridhari Lal Boy v. The Government of Bengal(1868) I. B. L. R. P. C. 44: 10 W. R. P. C. 31 be followed, and following theViramitrodaya, the defendant should be held to be the heir of Annapurnasstridhana in preference to the plaintiff. In support of this argument the caseof Thakoor Deyhee v. Rai Baluk Bam (1866) 11 I. A. 139 is cited as furnishingan instance in which a text of the sage, Katyayana, not referred to in theMitakshara, was followed upon a point on which the Mitakshara lays down adifferent rule.

20. We are unable to accept this argument as sound. Whattheir Lordships of the Privy Council said in the case of Gridhari Ball Boy v.The Government of Bengal (1868) 1 B. L. E. P. C. 44: 10 W. R. P. C. 31 wasthat, when the text of the Mitakshara was doubtful upon any point, theViramitrodaya as a work of authority in the Benares School might be referred tofor the purpose of removing the doubt. But their Lordships do not say, andthere is neither reason nor authority for saying, that where the Mitakshara isas it is here, clear on the point, the text of any sage, which is in conflictwith the rule therein Laid down, can be referred to for the purpose of creatinga doubt, as the learned Vakil for the appellant contends. To allow such acourse would be to upset altogether the Hindu Law of the Benares School, andindeed of every other school. The Mitakshara is the guiding authority of theBenares School, and we cannot, in administering the law of that (sic)uool,question the correctness of that authority because of its conflict with thetext of some ancient sage. Nor is the case of Thakoor Deyhee v. Rai Baluk Ram(1866) 11 . I. A. 139 cited for the appellant at all a case in point. ThereKatyayanas well known text was referred to upon the question as to the widowsright to alienate the property inherited by her from her husband, because uponthat question the Mitakshara is silent, or at best doubtful. We should add thatupon the question of succession to the stridhana of a childless woman, theViramitrodaya, following the text of Brihaspati referred to above, places inthe line of heirs certain kinsmen on the fathers side (the sisters son beingone of them) before several near relations of the husband, and thus gives anorder altogether inconsistent with that given in the Mitakshara. The view wetake is in accordance with the opinion of the Bombay High Court in Gojabai v.Shahajirav Malaji Raye Bhosle I.L.R (1892) . 17 Bom. 114.

21. We must in this case follow the Mitakshara, and holdthat the plaintiff is the heir to the property of Rani Annapurna in preferenceto the defendant.

22. Coming now to the fifth ground, namely, that the chargesof waste and misappropriation of the endowed property have not beenestablished, and that the plaintiff is not entitled to oust the defendant fromthe office of shebait, we are of opinion that the first part of it isimmaterial, even if it be well founded, and the second part is altogetheruntenable.

23. Granting that the charges of waste and misappropriationof endowed property are not established against the defendant, that does notmaterially affect the result. The late shebait, who was authorized to appointher successor, having omitted to do so, and there being no other provision onthe point in the deed of dedication, the management, as has been said above,reverts to the heirs of the founder, see Jai Bansi Kunwar v. Chattardhari Singh(1870) 5 B. L. R. 181: 13 W. R. 396 and Gossamee Sree Greedhareejee v.Rumanlolljee Gossamee (1889) L. R. 16 I. A. 137: I.L.R. 17 Cal. 3. Theplaintiff as the next heir to Rani Annapurna is therefore entitled to beappointed shebait.

24. It was contended for the appellant that the grant ofletters of administration to the defendant by the order of the High Court,dated the 11th of September 1885, is a bar to the appointment of the plaintiffas shebait, so long as the grant of administration is not revoked. We do notconsider this contention to be of much force. The order granting letters ofadministration to the defendant is, under Section 41 of the Evidence Act andSection 59 of the Probate and Administration Act, conclusive proof of therepresentative title of the defendant against all debtors of the deceased, RaniAnnapurna, and all persons holding property which belonged to the deceased. Butthe object of the proceedings under the Probate and Administration Act is todetermine only the question of representation of the deceased for the purposeof administering the estate, and not for the purpose of determining anyquestion of inheritance or of the right to be appointed as shebait. A referenceto Sections 2, 3, 4, 6 and 37 of the Probate and Administration Act, whichauthorize the grant of letters of administration to persons who may not be theheirs of the deceased, well bears out the view we take, which also receivessupport from the observations in the judgment of this Court in Arunmoyi Dasi v.Mohendra Nath Wadadar I.L.R. (1893) Cal. 888. The order granting letters ofadministration to the defendant is therefore no bar to this suit, the decree inwhich will surpersede the grant.

25. The sixth ground, namely, that the defendant hasacquired a valid title to property No. 6 by his purchase at a sale in,execution of a decree, need not detain us long. The Court. (sic)w on this pointsays: "Now it has been decided before, and defendant has himself admittedthat Sri Narain Singh was not validly adopted by Rani Anandmoyi, so thepurchase by defendant of his sons right cannot avail him." This view is,we think, quite correct, and no reason has been shown to induce us to dissentfrom it.

26. The grounds urged before us, therefore, all fail, andthe appeal must consequently be dismissed with costs. The cross-appeal notbeing pressed, must also be dismissed with costs.

Francis Maclean, C.J.

27. The above is the joint judgment of Mr. Justice Banerjeeand myself. I only wish to add one word on the second point. I entertain somedoubt whether the defendant can, upon this particular point, successfully setup the Statute of Limitation as against the present plaintiff. The defendantwas never appointed, and never was, shebait, He held the property and managedit as administrator, and as administrator alone, and in fact stood in afiduciary position towards the parson who was legally entitled to be shebait.The plaintiff is that person, and when the plaintiff comes forward and asshebait claims the property, I feel a difficulty in saying that the defendant,holding it as he did, in a fiduciary capacity, can successfully set up theStatute of Limitation as against him. The point was urged before us by Mr.Banerjee for the respondent, and though it is unnecessary to decide it, I referto it, to show that it has not escaped me. In making these observations, I amnot unmindful of the decision in the case of Balwant Rao v. Puran Mal I.L.R(1883) All. 1.

.

Runjit Singh vs.Jagannath Prasad Gupta (22.07.1897 -CALHC)