1. This appeal arises out of a suit for joint possession.

2. Bisnath, the common ancestor of the parties, died long ago leaving five sons who, in order of seniority, were Sukhiram, Bhikari, Nainsingh., Bodharam and Janakram. Bhikari and Janakram predeceased Sukhiram and left no personal heirs. Sukhiram died in 1893 A.D leaving a widow Mst. Kalamati and a posthumous daughter Padmavati who predeceased her mother. Mst. Kalamati died on 8-8-1941. At that time the family consisted of Bodharam and Nainsingh, and their sons. Bodharam was the plaintiff, who is dead and is now represented by respondents 1(1) to 1(5). Nainsingh was defendant 2. He is also dead and is represented by respondents 2(a) to 2(e). Appellant Hariharsingh is the eldest son of Nainsingh and was defendant 1 in the original action. Shortly before his demise Sukhiram began to live and mess separately with the intention to sever his connection from the joint family. At the time of his death the family property consisted of sixteen annas share of ‘mouza’ Bade Katekoni and twelve annas share of ‘mouza’ Turkapali, with appurtenant Bhogra and Gauti Raiyati lands. It, however, appears that the share in ‘mouza’ Turkapali was treated as belonging to Bodharam and Nainsingh alone in which Sukhiram had no interest. After the death of Sukhiram, his share in ‘mouza’ Bade Katekoni was mutated in the name of his widow. This was consistent with his separation from the rest of the family.

3. The case of the plaintiff was that after the demise of Sukhiram, his widow reunited with the family and began to live with his two brothers. However, in the family partition which took place in or about the year 1910 A.D she was given one-third share in ‘mouza’ Bade Katekoni and the appurtenant lands and the rest of the property, including the twelve annas share of ‘mouza’ Turkapali and the fields attached to that share, was apportioned half and half between the plaintiff and Nainsingh. According to the plaintiff, Mst. Kalamati was given the share only by way of maintenance. This contention, however, was negatived by the lower Court and has not been raised before us.

4. In the year 1922–1923 A.D Mst. Kalamati applied to the Revenue Authorities for mutation of her share in the name of the appellant Hariharsingh. In her application, Exhibit P-3, she made the following statement:

“I have taken in adoption the eldest son of my eldest ‘devar’ (i.e husband's younger brother) namely Harihar Singh while he was child.”

5. To this averment the plaintiff made the reply noted below:

“Mst. Kalamati had promised that on her desire (?) the share be divided into two shares half of which shall go to her adopted son and half to myself. Hariharsingh were (?) adopted by Mst. Kalamati as her son ten or 12 years ago. We were all joint then and only separated ourselves recently. I have got nothing to urge if she wants to give her whole share to Hariharsingh.” (See Exhibit D-4).

6. On this statement the name of the appellant was mutated in place of Mst. Kalamati in respect of the village share and the lands recorded in her name. Subsequently, in the settlement of 1930–1931 the said property was recorded in the name of the appellant who was described as the adopted son of Sukhiram in the Settlement Parchas and Khewat (Exhibits 1 D-1, 1D-2, and 1 D-5) and he was also appointed ‘lambardar’ of the village, i.e, Bade Katekoni.

7. It is not disputed that from the usufruct of this property, augmented by his own exertion, the appellant acquired the Gauti Raiyati fields mentioned in his second schedule, which were recorded in his name in the village papers. It may, however be noted that ‘khasra’ nos. 324, area 1.38 acres, and 955, area 0.56 acres, appear to be wrongly included in the list inasmuch as these very fields are also included in the first schedule which shows the land allotted to the share of Mst. Kalamati at the family partition and subsequently recorded in the name of the appellant.

8. Plaintiff filed the present suit on 1-8-1944 on the ground that on the demise of Mst. Kalamati, the above-mentioned property devolved on him and his brother Nainsingh in equal shares as reversioners and he was, therefore, entitled to joint possession thereof to the extent of a moiety.

9. As regards the Gauti Raiyati fields acquired by the appellant, his case was that they were an accretion to the main property and partook of its character. He also based his suit on an alleged agreement of Mst. Kalamati that on her demise he would be entitled to a half share in her property. This plea, however, is now immaterial as it was repelled by the lower Court and has not been urged before us.

10. The suit was resisted by the appellant on the following grounds:

(1) That he was adopted as a son by Sukhiram during his life and was, therefore, the rightful heir to his property;

(2) That he was in adverse possession of the property since the year 1922–1923 and thereby acquired a prescriptive title;

(3) That the Gauti Raiyati land acquired from the usufruct of the parent estate was kept separate and became his own property; and.

(4) That the suit was barred by limitation. These points were negatived by the lower Court and are reiterated before us.

11. ADOPTION: Before we deal with this question on its merits, it is advisable to consider the rulings which were referred to at the bar in support of the contention that in the case of an ancient adoption lack of proper evidence will not operate to defeat the claim of the adopted son.

12. In — ‘Chhoty Lal v. Chandra Bhan’, AIR 1923 All 178 (A) the adoption had taken place 48 years ‘ante litem motam’. All the parties immediately concerned were dead. The adoption was, however, recited by the natural father in a formal deed of gift, the adopted son succeeded in due course to the property of his adoptive father and no objection to the adoption was raised at any time by any member of either family.

13. These circumstances had clearly indicated an adoption and it was on this account that it was held that it should be considered as a legal and valid adoption, notwithstanding that there was no evidence available of the usual ceremonies having been performed. In support of this view reliance was placed by their Lordships on — ‘Bal Gangadhar v. Shrinivas’, AIR 1915 PC 7 (B); — ‘Chandra Kunwar v. Chaudhri Narpat Singh’, 29 All 184 (C) and — ‘Har Shankar Partab Singh v. Lal Raghuraj Singh’, 29 All 519 (D).

14. In — ‘Ramakrishna Pillai v. Tirunarayana Pillai’, AIR 1932 Mad 198 (E) it was held that though a person is ‘prima facie’ bound to prove, as a fact, that he is an adopted son, yet if for a long time he acted as such and was treated as an adopted son, the burden resting upon the person who disputes such an adoption is of the highest order.

15. In that case the adoption had taken place before 1884, the last male owner had died in 1899 and the suit was instituted in 1917. A special feature of the case was that the adopted son was treated as such by all the members of the family interested in denying the adoption and this conduct on their part was held to raise a presumption that the adoption was validly performed.

16. Next we come to the case — ‘Roshan Lal v. Samar Nath’, AIR 1937 Lah 626 (F). In that case the adoption had taken place 45 years prior to the institution of the suit and there were circumstances to show that the adoption must have taken place, particularly the statement of the natural father in his will which was signed by his son as the adopted son of his maternal-grand-father.

17. In this connection, their Lordships observed:

“Mr. Achhru Ram, however, strenuously argued that none of the defendant's witnesses had stated that the essential ceremony of ‘giving and taking’ was performed at the time of adoption and in the absence of proof of this ceremony the adoption cannot be regarded as having been, validly made. But, as pointed out already, the adoption took place 45 years ago, and at this distance of time it is not possible to get witnesses who were actually present at the time and could depose to the performance of the ceremony. In such circumstances, in the absence of anything to indicate the contrary, it must be presumed that all the requisite ceremonies were duly performed. As held in — ‘Achal Ram v. Kazim Husain Khan’, 27 All 271 at p. 290 (G); — ‘Kailash Chandra Nag v. Be joy Chandra Nag’, AIR 1923 Cal 18 at p. 21 (H) and — ‘Jagan Nath v. Chandni Bibi’, AIR 1921 Cal 647 at pp. 649, 650 (I), when a person has for nearly naif a century enjoyed the status of an adopted son, and has been treated as such all his life, it must be assumed that all the necessary ceremonies were duty and regularly performed at the time of his adoption. No facts have been brought out, which might displace this presumption.”

18. It will thus be observed that it is only when there are clear indications that the adoption must have taken place, that want of evidence of the essential ceremony of giving and taking would not defeat the adoption, as such a ceremony would, in the peculiar circumstances of the case, be presumed to have been performed.

19. Coming to the instant case, the special feature that is noticed is that until 1922–1923 there was no conduct on the part of any of the parties indicating the appellant's adoption by Sukhiram. It was the widow Mst. Kalamati whose name was mutated in respect of the property after her husband's demise. Even in the family partition of 1910 when the appellant had grown up sufficiently it was the widow that was given a share of the property. This ‘prima facie’ indicates that it was Mst. Kalamati who was treated by the family as representing the estate of her husband.

20. It was in the year 1922–1923 that Mst. Kalamati for the first time spoke about the adoption while initiating proceedings for mutation in appellant's favour. However, the statement was equivocal inasmuch as she alleged that the appellant was taken in adoption by herself. It is true that she also stated that the appellant was taken in adoption while a child, making it possible that he was adopted by Sukhiram himself, it cannot be forgotten that she did not ascribe the adoption to any act of her husband but to her own.

21. The reply of the plaintiff to this statement was, however, categorical. He said that Mst. Kalamati had adopted the appellant about ten or twelve years ago. This statement cannot be treated as an admission of the appellant's adoption by Sukhiram who had died about 30 years before. It is no doubt true that in her subsequent application, Exhibit 1 D-8, Mst. Kalamati made the statement that the appellant was adopted by her husband during his life. However, this document, as admitted by the appellant in the witness-box, was executed by Mst. Kalamati on the direction of the Tahsildar who indicated the kind of deed for execution which could justify mutation being effected in his name.

22. Evidently the document came into existence because it was thought that unless the adoption was stated to have been made by Sukhiram, the appellant could not be accepted as representing his estate. The document coming into existence in such circumstances, when there was apparent motive for executing it in that particular form, cannot carry much evidentiary value. In any case it was not binding on the plaintiff who is not shown to have assented to its contents.

23. However, it was urged that there are indications in the case showing that the appellant must have been adopted by Sukhiram. These may be summarised as below:.

(i) that in the family partition of 1910 ‘jethausi’ (i.e, a larger share which is given to the senior branch of the family) was given to Mst. Kalamati, indicating that her branch was supposed to be represented by a male member;

(ii) that, in the subsequent partition between Nainsingh and his sons, no share was given to the appellant and his next brother Kanhaiyalal was given ‘jethausi’ indicating, that he was transferred to another family;

(iii) that, the appellant had shaved his mustache on the death of Mst. Kalamati, indicating, that he regarded her as his own mother; and

(iv) that, the appellant was described as the adopted son of Sukhiram in the settlement papers of 1930–1931 and was appointed as ‘lambardar’, to which no objection was taken by any member of the family, indicating that they had accepted him as Sukhiram's adopted son, representing the senior-most branch of the family.

24. As regards the ‘jethausi’ alleged to have been given to Mst. Kalamati, there is not any proper evidence on record. There is no doubt that the plaintiff in the witness-box stated that at first good 100 acres of land were given to Mst. Kalamati and the rest of the property was then divided in equal shares between him and Nainsingh. Even if good land was given to Mst. Kalamati by way of ‘jethausi’, it would not indicate that the appellant was accepted as representing the branch, of Sukhiram, for there is nothing on record to indicate that ‘jethausi’ could not be given to a female heir of the senior branch.

25. It is, as such, likely that since Mst. Kalamati was recognised as representing the branch of Sukhiram she was, if at all, given ‘jethausi’ in her own right as his heir. As against this evidence, Jranditram (1 D.W 2) and Nainsingh (1 D.W 4) were examined to prove that ‘jethausi’ was given, to the appellant at the time of the family partition. According to Nainsingh, he was given about 8 acres of land in excess of his share by way of ‘jethausi’. If this was so, the matter could have been better proved by production of the village papers showing the different areas of land allotted to the three branches at the partition. The evidence of these witnesses, namely, Panditram and Nainsingh, to the effect that ‘jethausi’ was given to the appellant cannot also obviously be accepted, because admittedly the share of Sukhiram was given to Mst. Kalamati and not to the appellant at the time of the partition.

26. The evidence on record relating to the partition between Nainsingh and his sons and the ‘jethausi’ alleged to have been given to Kanhaiyalal is equally unreliable and also insufficient.

27. It was admitted by Nainsingh that even after the alleged partition the lands continued to be recorded in his own name. No village papers have been produced showing separate cultivation of any fields by his sons, nor is there any evidence regarding the areas allotted to them. The other witness on the point is Pila (1 D.W 3). He was not sure as to whether six or five shares were made at the partition. Satavadis (1 D.W 6) who was the village Patwari stated that at the time of the ‘girdavali’ he always found the land of Nainsingh being cultivated jointly by him and his sons. His evidence contradicts the story of the alleged partition.

28. In these circumstances, if Nainsingh's sons were at all cultivating any lands separately they must have been doing so only for the sake of convenience and not as a result of any partition. This conclusion is supported by the evidence of Chotelal (P.W 3), who is one of the sons of Nainsingh. He denied that there was any partition between him and his brothers and that he began to live and cultivate lands separately only because of family disputes. As no ‘jethausi’ is proved to have been given to Kanhaiyalal, no inference can be drawn of the appellants adoption.

29. Although the appellant alleged in the witness-box that he snavea his mustacne on the death of Mst. Kalamati this was denied by his brother Chotelal who said that, as he and the appellant had their father living, they did not shave their hair and it was Deoial (P.W 4), his nephew, whose father was dead, that had shaved the mustache and offered ‘pindas’. This is also the version of Panditram. The evidence of Nainsingh on this point was halting and equivocal, and the impression left on the mind of the lower Court was that it was false. He admitted that it was Deoial who performed the obsequies and offered ablution.

30. His explanation that he did so for the appellant after two days as the latter had fallen ill, coming as it does from an interested person, is not reliable. We are not, therefore, inclined to accept that the appellant took any such part in the obsequies of Mst. Kalamati as to indicate that he had done so as the adopted son of Sukhiram.

31. There is no doubt that in the settlement papers of 1930–1931 the appellant was described as the adopted son of Sukhiram. However, we have already adverted to the circumstances under which he was first trotted out as an adopted son by Mst. Kalamati in the year 1922–1923.

32. The story of adoption was obviously set up to enable the revenue authorities to effect the mutation in the appellant's name. Once this allegation became a matter of record, it was evidently accepted by the Settlement Officer as a matter of course. However, as will be discussed below, the entry cannot be read as evidence of adoption.

33. Under Section 63 of the Central Provinces Land Revenue Act (2 of 1917) the Settlement Officer has to ascertain and record the persons who are in possession as proprietors of the land comprised in each estate or mahal. The record thereof, however, is not conclusive under S. 80(1), and sub-s. (2) of S. 66 lays down that no person shall be debarred from establishing his right to such land in a Civil Court. Under S. 68, the Settlement Officer is empowered to ascertain and determine the extent of all land which is held as ‘sir’ land which term includes Bhogra land. This section is also excluded from the operation of sub-s. (1) of S. 80.

34. Finality is attached, so far as the present suit is concerned, to the entry made under S. 89 respecting the land held as ‘khudkasht’ which Term may be held to include Gauti Raiyati land: — ‘Dharamsingh v. Mayaram’, AIR 1951 Nag 361 (J). It may be assumed, as was held in — ‘Gulabsingh v. Ajmersingh’, AIR 1933 Nag 77 (K), that the entry was made after due enquiry and became conclusive against the plaintiff. But what is it that has become final or conclusive? Under S. 69 the enquiry is directed to ascertaining and determining the extent of all land held as ‘khudkasht’. It is, therefore, the record of the land as ‘khudkasht’ that became final; and this leads us nowhere.

35. Under sub-s. (3) of Section 80 of the Central Provinces Land Revenue Act, a presumption of correctness attaches to the entries in the record-of-rights which is defined in S. 45, as including—

(1) ‘khewat’ or statement of persons possessing proprietary rights;

(2) ‘khasra’ or field-book showing the names of persons cultivating or occupying land, the right in which it is held, and the rent, if any, payable; and

(3) ‘jamabandi’ or list of persons cultivating or occupying land the village.

36. So far as other papers are concerned, they are not material for purposes of the instant case. It may, therefore, be taken that the entries, snowing the proprietary interest of the appellant and the land held by him, which were made in the ‘knewat’, ‘khasra’ and ‘jamabandi’ prepared at the time of settlement have a presumptive value. This, however, does not mean that the entry snowing his status as the adopted son of Sukhiram has any presumption of correctness. An innocuous entry of this nature did not affect the rights of the plaintiff and need not have been contested by him, and, therefore, his failure to take any steps to get it corrected cannot amount to any conduct, implying his admission of the appellant's adoption. As regards the appointment of the appellant as ‘iaflibardar’, it is evident that it was ane to his stepping into the shoes of Mst. Kalamati who was formerly appointed to the office as representing the senior most branch of the family. It, therefore, carries no special significance.

37. Coming to the direct evidence on record, the witnesses on the point are Nainsingh, Chandabai (1 D.W 5) and Pilwa (1 D.W 7). The first two are the natural parents of the appellant and the third is his maternal uncle. These persons are doubtless interested in advancing the cause of the appellant and are not readily worthy of reliance. Their testimony might have carried weight, had there been circumstances in the case indicating clearly that adoption must have taken place. However, as discussed above, the circumstances are of a contradictory or equivocal nature, which suggest that the story of adoption was an afterthought.

38. There is also the additional factor, namely the young age of Sukhiram at the time of his death (according to Panditram he was then about 35 years old), when he could not have despaired of having a natural-born issue; nor is it the appellant's case that he was in the grip of any mortal disease which compelled him to think of taking a son in adoption. When there are improbabilities in the story of adoption, which is inconsistent with the conduct of the principal parties concerned, it cannot be urged that the person setting up the adoption has discharged his burden of proof: (— ‘Kishori Lal v. Chunni Lal’, 31 All 116 (PC) (L) and — ‘Lal Kunwar v. Chiranji Lal’, 32 All 104 (PC) (M)).

39. In — ‘Radha Krishen v. Sri Krishen’, AIR 1945 PC 79 (N) their Lordships of the Judicial Committee doubtless held that where in the disputes between the widow and the reversioners no mention was made by either party of the existence of an adopted son, the omission was not conclusive that the adoption was not made by the widow's husband. In the instant case, however, there were no such disputes and no reasonable explanation is offered to account for the omission to mention the adoption until the year 1922–1923. In the case which their Lordships were considering, there was clear evidence pointing to the adoption, particularly the statement of the adoptive father himself in his will. Such convincing evidence does not exist in the case before us. We, therefore, uphold the finding of the lower Court that the appellant's adoption by Sukhiram, which was the sole ground on which he based his title, is not proved.

40. ADVERSE POSSESSION: The facts of the case indicate that it was by the permissive act of Mst. Kalamati that the appellant was inducted into the property in the year 1922–1923. It is no doubt true that she had, in doing so, given him the status which was adverse to her own interest. The reason for her action, however, would not change the permissive nature of the appellant's possession inasmuch as he himself had not entered on the property in assertion of any title as the adopted son of Sukhiram.

41. However, treating the case as one of adverse possession it is apparent that it did not affect the rights of the plaintiff as a reversioner to recover possession after the death of the widow. To such a case Article 141, Schedule I, Limitation Act, 1908, is applicable so far as recovery of immovable property is concerned and Article 120 of the said Act applies to a claim for possession of movable property. (See — ‘Runchordas Vandrawandas v. Parvatibhai’, 26 Ind App 71 (PC) (O); — ‘Jaggo Bai v. Utsava Lal’, AIR 1929 PC 166 (P) and — ‘Badrinarayan v. Narayansingh’, AIR 1943 Nag 193 (Q)). The present suit having been brought within three years of the death of Mst. Kalamati, the appellant's adverse possession during her life did not affect the plaintiff's right to recover the property, either movable or immovable, on her demise.

42. ACCRETION: It is no doubt true that a widow, under the Benares School of Hindu Law by which the parties are governed, has got an absolute right over the income of the estate of her husband and if she acquires any property from the savings of that income she may either keep the property separate or mix it up with her husband's estate.

43. In — ‘Gonda Kooer v. Kooer Oodey Singh’, 14 Beng LR 159 (PC) (R) the widow had acquired certain properties from the income of her husband's estate. The will that she had left in favour of the defendant comprised the property which she had power to dispose of. However, no specific property was mentioned in the will. Treating the subsequent acquisitions as accretions to the husband's property their Lordships of the Privy Council observed as below:

“In the present case their Lordships are of opinion that Khoosal Kooer, who always maintained the validity of her son's adoption as heir to her deceased husband and treated him as entitled to succeed to her husband's property, must be presumed to have intended to make her purchases as accretions to that property; nor do they see any evidence to rebut this presumption. It is true that she made a will in her son's favour, but it contains no specific gift of the property in question, and might well have been intended to apply to any property of her own which may have belonged to her as her ‘stridhan’. That the property in question was understood by Puddum Singh himself to be part of Nem Singh's estate is shown by the pleadings in the original suit, in which he claimed it as the adopted son and heir of Nem Singh. It therefore becomes unnecessary to decide what might have been the effect of a distinct intention on her part, if it had been proved, to appropriate to herself, and to sever from the bulk of the estate such purchases as she had made, with the view of conferring them on her adopted son.”

44. In the above case the widow had always treated the adopted son (the adoption was later negatived by the Judicial Committee in — ‘Chowdhry Padan Singh v. Koer Udayar Singh’, 2 Beng LR 101 (PC) (S) as heir to her deceased husband, and as she had bequeathed to him all her property without making any distinction between the original estate and the subsequent acquisitions, the entire property was held to partake of the same character.

45. The first authoritative decision of the Judicial Committee is reported in — ‘Isri Dutt Koer v. Hansbutti Koerain’, 10 Cal 324 (PC) (T), in which their Lordships observed:

“In this case the properties in question consist of shares of lands, in which the husband was a share-holder to a larger extent. They were purchased within a short time after his death in 1857. No attempt to alienate them was made till 1873. The object of the alienation was not the need or the personal benefit of the widows, but a desire to change the succession, and to give the inheritance to the heirs of one of themselves in preference to their husband's heirs. Neither with respect to this object, nor apparently in any other way, have the widows made any distinction between the original estate and the after purchases. Parts of both are conveyed to Dyaji immediately, and parts of both are retained by the widows for life. These are circumstances which, in their Lordships' opinion, clearly establish accretion to the original estate, and make the after purchases inalienable by the widows for any purpose which would not justify alienation of that original estate.”

46. The distinguishing feature of this case was that the two sets of properties were not distinguished and parts thereof were alienated with the common intention of changing the succession.

47. This case was followed in — ‘Sheolochum Singh v. Saheb Singh’, 14 Cal 387 (PC) (U), in which their Lordships observed:

“Where a widow comes into possession of the property of the husband, and receives the income, and does not spend it, but invests it in the purchase of other property, their Lordships think that, ‘prima facie’, it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would, ‘prima facie’, be intended to be accretions to that estate. There may be, no doubt, circumstances which would show that the widow had no such intention and that she intended to appropriate the savings in another way.”

48. In this case also, the properties were treated alike and were alienated to a so-called adopted son with the view to divert the succession.

49. In — ‘Nirmala Sundari Dassi v. Deva Narayan Das Choudhuri*’, AIR 1927 Cal 868 (V) the property was purchased by the mother not in her own name but the ‘benami’ of another, and it was accordingly held that the onus of proving that such a property was not treated by the mother as her own separate property was on the plaintiff who alleged it to be so.

50. In that case, however, the fact that the property was not acquired in her own name was an indication that it was kept separate from the parent estate. ‘Dulhin Parbati Kuer v. Baijnath Prasad Narain Singh*’, AIR 1936 Pat 200 (W) was also a case where the widow had purchased the property in the name of another, namely her daughter, and this fact was considered as indicative of her intention to keep the property separate.

51. In all these cases there were circumstances showing the intention of the widows. In — ‘Akkanna v. Venkayya’, 25 Mad 351 (X) their Lordships, after stating that the dictum of the Judicial Committee in — ‘Sheolochum Singh v. Saheb Singh (U)’, (supra) applied to the particular facts of the case, observed:

“The acquirer of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one, which though derived from her husband's property, was at her absolute disposal ……. Her absolute power of disposition over the income derived from (her) limited estate being now fully recognized, it is only reasonable shat, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any distinction, along with properties inherited from her husband, can in no way affect this presumption.”

52. It would thus appear that where there are no special circumstances indicating the intention of the widow one way or the other, the presumption would be that she intended to keep the acquisition as separate. This is the view that has been consistently held in this Court. (See — ‘Rupabai v. Nokhesing’, AIR 1940 Nag 236 (Y); — ‘Prabhakar v. Sarubai’, AIR 1943 Nag 253 (Z) and — ‘Lalsingh v. Vithalsingh’, AIR 1950 Nag 62 (Z1).

53. The decisions noted above indicate that the character of the acquisitions is determined by the intention of the widow to whom the income from which the acquisitions are made belongs. If this intention is not clear, the presumption that she intended the acquisitions to be her separate property, would determine their character. The same principle would apply where she does not herself make the acquisitions and allows another to do so.

54. This is not a case of a widow making the acquisition herself and then disposing them of along with her husband's estate by one transaction with the sole intention of changing the line of succession. Had it been a case of that type the dictum of their Lordship of the Privy Council in — ‘14 Beng LR 159 (PC) (R)’ : ‘10 Cal 324 (T) (supra)’ and — ‘14 Cal 337 (U) (supra)’ would have applied and the subsequent acquisitions treated as an accretion to the parent estate.

55. In the instant case, although the intention of Mst. Kalamati in setting up the adoption and letting the appellant into possession of ner husband's estate was doubtless to change the line of succession, the same intention cannot be attributed to her in respect of the subsequent acquisitions which she obviously permitted him to make for his personal benefit. The case is like one where a widow makes a gift of the income of her husband's estate, which she has full power to dispose of. As the income thus given away cannot be claimed by the reversionary body, the acquisitions made therefrom by the donee cannot also be claimed. In such a case it cannot be urged that the widow had permitted the acquisitions to be made only, to change the line of succession and not the character of the property.

56. It is true that the appellant stated in the witness-box that the fields of Sukhiram and the new fields acquired subsequently were treated alike both by him and Mst. Kalamati. The statement, however, should not be taken literally. What he evidently meant was that both the sets of fields stood alike in his name and were cultivated by him with the same stock of husbandry. In fact, it would appear from paragraph 33 of his deposition that he claimed that even while the village share stood in the name of Mst. Kalamati, the fields were entered in his name in the village papers.

57. This indicates that he could not have intended in his earlier statement that neither he nor Mst. Kalamati treated the acquisitions as constituting separate property. In such circumstances, the presumption that in permitting the appellant to acquire the fields Mst. Kalamati intended to create a separate estate for his benefit cannot be deemed to be rebutted. The acquisitions made by the appellant did not, therefore, form part of the reversionary estate.

58. LIMITATION: It was urged in this connection that the suit is, in effect, one in which the validity of the adoption is challenged and as such it is governed by Article 118, Schedule I, Limitation Act, 1908. Reliance is placed in this connection on — ‘Jagmohan Saran v. Deoki Nandan’, AIR 1927 PC 229 (Z2).

59. In that case their Lordships of the Judicial Committee no doubt held that where an action is in truth and substance a suit for a declaration that a particular adoption is invalid, and it is found that the fact that a claim was being made on the basis of the alleged adoption was known to the plaintiff in the suit more than six years before it was instituted, the suit would be barred if brought after the period prescribed in Article 118.

60. The facts of that case, however, are not stated in the report. The principle is no doubt sound, but the instant case is analogous to — ‘Kalyandappa v. Chanbasappa’, AIR 1924 PC 137 (Z3). Where in a suit by a reversioner for possession of immovable property on the death of a widow Article 141, Limitation Act, was held to be applicable even though it was necessary to decide in the suit whether the adoption was or was not valid. In the instant case the challenge to the adoption is only incidental to the determination of the rights of the plaintiff as reversioner and on that account the suit cannot be deemed to be “in truth and substance” a suit for a declaration that the appellant's adoption is invalid. We, therefore, hold that the suit is not barred by limitation. The result is that the claim in respect of the subsequent acquisitions and the profits arising therefrom is liable to be dismissed. The appeal is accordingly partly allowed. The decree of the lower Court is modified by deleting therefrom the words “II. Joint possession to the extent of half over the lands Gauti Rayati as described in Sch. B”, the claim in respect of which is dismissed, and substituting in place of the figures “Rs. 1230”, “Rs. 1800” and “Rs. 2058”, the figures “Rs. 565”, “Rs. 1165” and “Rs. 1730” respectively. Considering the partial success and failure of the suit, it is directed that the parties shall suffer their own costs throughout. Counsel's fee Rs. 400/-.

61. Order accordingly.