JUDGMENT

(Delivered by King, J.)

This appeal arises out of a suit brought by the plaintiff in the Court of the learned Subordinate Judge of Tinnevelly with the main purpose of obtaining a declaration that the adoption of the second defendant is untrue in fact and, in any case, invalid. The plaintiff is the son of the sister of one Sundara Ayyar, who died in April 1925. Besides his sister the sixth defendant, Sundaram Ayyar left a widow, the first defendant, and is said to have left a will by the terms of which he authorised his widow to adopt a son. It is the case of the widow, the first defendant, and the alleged adopted son, the second defendant, that the second defendant was, in fact, adopted on the 13th September, 1925 in pursuance of this authority so given. The plaintiff's case is that there was no actual adoption on the 13th September, 1925, or at any other time, and that the will itself is not genuine, and, therefore, there was no such authority conferred by Sundaram Ayyar on his widow. The plaintiff states that he was born on the 16th July, 1920 and, therefore, as he became of age in July 1938 and had brought this suit in June, 1941, he contends that it is not barred by the law of limitation. It must now be stated that the question of the fact and validity of the second defendant's adoption has already been brought in issue in a previous suit. This suit was filed in 1931 by plaintiff's mother, the sixth defendant, and there is now no dispute on the question of the status of the sixth defendant and her right to bring the suit, or upon the fact that the suit was brought within six years of the time at which the sixth defendant became aware of the adoption. That suit was eventually dismissed in 1933 as the result of a compromise between the sixth defendant, who was then the plaintiff in the suit and the present second defendant. By the terms of that compromise, the sixth defendant was given properties worth Rs. 7000. The plaintiff now alleges in his plaint that this compromise was brought about in fraud of his own possible future interests in the property and he asserts that the existence of this fraud in the matter of the compromise provides him with a new cause of action accruing from its date.

Not less than 18 issues were framed in the present suit. The eighth issue was whether the suit is barred by limitation; and as the learned Judge points out, the consideration of this issue was taken up as a preliminary measure by the Court at the instance of the vakils for the contesting defendants. The Court has decided the issue after a consideration of the main point of law whether the sixth defendant in bringing the suit in 1931 can be considered a representative of the reversion as a whole and therefore representative of her son, the present plaintiff. He answers this point in the affirmative, and holds consequently that the plaintiff can have no independent right to bring a fresh suit on the same cause of action. In any case the suit which has been brought by the plaintiff is at a time more than six years after the adoption must have become known to his predecessor in interest and therefore is barred under Art. 118 of the Limitation Act. Except for the two formal issues 9 to 10, the other issues have not been considered and the suit has naturally been dismissed with costs on this finding on this question of limitation. Against that decree the plaintiff has now appealed.

There can be no doubt that the learned Judge is right in holding that this suit is barred, apart from the question of fraud. It is agreed by both sides that the learned Judge has rightly interpreted the law on this question that Art. 118 gives a right, which is strictly limited to a period of six years, to the then representative of the reversion to obtain a declaration that a particular adoption is untrue or invalid. Two things follow. If no suit is filed within the period of six years, then no succeeding reversioner can file any such suit. If a suit has been filed, the decision in that suit must be binding upon the succeeding reversioner. As we say, there is no dispute at all upon this point. The only dispute is as to whether these principles apply to a case in which a specific allegation of fraud is made by a succeeding reversioner. On this point, various authorities, to which reference has been made both by the learned Judge and in the argument before us, afford no direct guidance, because in every one of the cases it is clear that no definite question of fraud arose. It is argued against the appellant that it may well be that the inactivity or negligence of a reversioner within the six years permitted by Art. 118 of the Limitation Act may be due to fraud and that there is, therefore, no logical inconsistency in extending the protection afforded to an adopted son of this kind to the case of a reversioner, who has not failed to file a suit but has negligently or fraudulently allowed a suit to be dismissed. We are not prepared to extend the principle to a case of that kind; and we think that it must be clear that the main reason from the adopted son's point of view for the restriction of the right of the reversion to bringing of a single suit within six years and the refusal to grant to any succeeding reversioner a private individual cause of action, must be in order to protect him from continual harassment by one suit after another. The reason for this protection entirely disappears in a case like the present when, as we must assume for the purposes of this appeal, the adopted son as alleged in the plaint has been guilty of fraud. There is, in our opinion an inherent right of action to any person who can prove that a decree which would otherwise bind him cannot be held to bind him on the ground that it was obtained by fraud.

We do not, we think, consider that there is any need to analyse in detail the various rulings to which our attention has been called in the hearing of this appeal. One significant point, however, we must stress at this stage. We have already stated that there were no precise allegations of fraud by any of the parties in the cases which have been dealt with; but there are sporadic references to fraud in more than one of these decisions, and it is quite clear from these references that the decisions to which the various learned Judges have come, would very probably have been modified if the question of fraud had entered into the facts of the case. The first of such references is to be found on pages 403 and 404 of Chiruvolu Punnamma v. Chiruvolu Perrazu (1). There, their Lordships are quoting from a judgment delivered by Sir Barnes Peacock and what he says is this,

“It is unnecessary for the Court now to determine whether, if in such a case the defendant should succeed in establishing the validity of the adoption, the decree would not be binding upon the persons who might eventually succeed upon the death of the widow in the same manner as a decree against the widow representing the rights of her husband in an estate is binding upon the reversionary heirs. It has been decided by the Privy Council that such a decree is binding upon the reversionary heirs in Ranee Surnomoyee's case (2). This of course is upon the assumption that the suit is honestly brought and conducted.”

In Varamma v. Gopaladasayya (3) in the judgment of Coutts-Trotter, J. towards its conclusion at page 679 the following observations occur:

“It follows in my judgment that if a reversioner who is competent to do so challenges an alienation or an adoption unsuccessfully or fails to challenge it within the period allowed by the law of limitation, the result is binding on his successors in the reversion. The argumentum ab inconvenienti is pressed upon us, that so to decide would open the door to fraudulent and collusive actions between the widow and the nearest reversioner bartering away the rights of subsequent reversioners. I think the answer to be that proof of such fraud and collusion would at once invalidate the result which was sought to be achieved.”

Finally in Kesho Prasad Singh v. Sheo Pargask Ojha (4) we find this paragraph on page 836,

“Their Lordships of course recognise that the principle is less obviously just where it operates to bind the ultimate reversioners by the result of a suit in which a plaintiff had failed whose interest, then merely presumptive, never ultimately matured. The danger of a feigned issue in such a suit is not to be overlooked. But this danger is mainly serious where the failure of the first suit has been brought about by fraud or collusion where, of course, further and different considerations would arise.”

These quotations from the judgments concerned have, of course, no direct bearing upon the facts before the learned Judges, but they are valuable nonetheless and it seems clear they have been stated as axiomatic propositions, which could not be contested. As we have already said, we are of the opinion that nothing deprives the plaintiff of his present right of action based upon the fraud which he asserts between the second defendant and plaintiff's mother, the sixth defendant. The contention put forward on behalf of the second defendant that he cannot be subjected to the ordeal of a second adjudication on this matter is to our minds of no importance, and must fail before the plaintiff's general right. The question of limitation does not enter into this matter at all. It is not contested that the sixth defendant did bring her suit within time, and, subject to the decision of issue 15 in this case, it is not contested that reckoning from the date which the plaintiff himself gives of his own birth, this suit by him, if it be maintainable at all, was brought within time under the provisions of Art. 95. The learned Judge in disposing of the suit appears to us to have lost sight altogether of that part of plaintiff's case which depends upon the alleged fraudulent action of the second defendant and the plaintiff's mother, the sixth defendant, though, as we shall indicate presently, plaintiff himself was probably most to blame for that fact. We hold that the present suit is maintainable and is maintainable upon the facts alleged in the plaint, as originally filed by the plaintiff.

We are of opinion, however, that the plaint nonetheless requires amendment. We notice that in the plaint as originally presented to the Court, the plaintiff in formulating his reliefs in paragraph 22 merely states that the withdrawal of the suit in 1931 by the sixth defendant is not binding on him, and asks as his main relief that he shall have a declaration that the alleged adoption of the second defendant is untrue and invalid. It is no wonder on this manner of formulating his reliefs that the Court has been misled into regarding this suit as primarily and even exclusively one for a declaration against the alleged adoption of the second defendant.

The plaintiff has now filed an application to amend the plaint, the amendment being confined to paragraph 22 and he has now stated that he wishes to ask for the following reliefs:

“(1) That the dismissal of the suit of 1931 be set aside, that the Razinamah entered into in the said suit be declared not binding upon the plaintiff and the revertionary heirs entitled to succeed to the estate of the late Sundaram Ayyar,

(2) that the suit be revived and the trial be permitted to be conducted by the present plaintiff, by substituting him in the place of his mother and

(3) that a declaration be given that the second defendant was never in fact adopted by the first defendant, and at any rate, that any such adoption was invalid.”

A formal objection has been filed on behalf of the defendants to the amendment of this plaint. But, in view of the conclusions at which we have arrived and which have been embodied in this judgment, we must permit the amendment to be made.

The only serious objection, in our opinion, amongst those raised by the respondent is one dependent upon the law of limitation. This objection, in our opinion, has no force, because, although paragraph 22 has now been amended, the facts upon which the reliefs as now formulated in paragraph 22 are claimed, were already part of the plaint when it was first presented. There can be no question, therefore, that it is only at this stage that the plaintiff is putting forward a new case against the defendants. The suit will now be remanded to the learned Subordinate Judge for further disposal according to law. The defendants will of course be permitted to file additional written statements. But in so far as these additional written statements may contain any contention that even after the plaint has been amended the suit is not maintainable, the learned Subordinate Judge will clearly understand that it is now finally decided by this Court that the suit is maintainable upon the amended plaint.

We have already indicated that the blame for the disposal of the suit in the way in which it has been disposed of by the learned Judge rests mainly upon the plaintiff himself, and the manner in which he has drafted his plaint, and in all probability on the manner in which he, like his opponents confined his arguments to the question of limitation. There is nothing to show that he protested against the request of the vakils for the defendants to take the eighth issue as a preliminary issue in the case, and we must conclude that the absence in the judgment of the learned Judge of all reference to any cause of action derivable from the allegations of fraud in the plaint was due to the fact that the matter was never pressed before him.

In these circumstances we see no reason to interfere with the decision of the learned Judge that the costs of the suit be payable by the plaintiff, those costs of course now being confined to the costs incurred upto the time of the learned Judge's judgment. With regard to this appeal, we consider the most appropriate order to be passed is that the respondents be not called upon to pay the appellant's costs, but that costs of both sides be costs in the cause. The court-fee paid on the memorandum of appeal will be refunded to the appellant.

N.R.R