Judgement Appeal from a decree of the Court of the Judicial Commissioner, Central Provinces (July 26, 1909), confirming a decree of the District Judge of Wardha (September 1, 1908). The suit out of which the appeal arose was instituted on December 20, 1907, by the present appellants, the four sons of one Kedarnath, in the Wardha Court, claiming possession of certain immovable and movable properties which had come to the share of the respondent Jainarayan (the principal defendant in the suit) upon a partition between him and the father of the appellants on October 24, 1898. The appellants father Kedarnath was joined as a defendant and was the third respondent in the appeal. The second respondent had been made a defendant as an alienee of part of the estate. There had originally been other defendants alleged also to be alienees. Particulars of the property, which was of considerable value, were given in the plaint and in certain lists filed by the appellants. The prayer of the plaint was "that each of the defendants be ordered to deliver to the plaintiffs the possession of whatever property he has with him out of that mentioned in the plaint, that the costs of the suit be awarded to the plaintiffs, and that any other relief deemed fit be also granted to them." It appeared from the pleadings that the property in suit descended from one Harbhajan to his two sons Ramnath and Rambilas, who remained joint until the death of Rambilas in 1881. The appellants alleged that Ramnath died in 1883, having in January, 1877, adopted Kedarnath, the father of the appellants, and that after the death of Rambilas Ramnath gave his consent to the name of Jaidevi, the widow of Rambilas, being entered in the Government records in place of Rambilas. The principal questions of fact in dispute upon the pleadings were as to the validity of the adoption of the first respondent Jainarayan by Jaidevi, which was alleged in the first respondents written statement to have taken place in 1885. The appellants did not admit the date of adoption, but by their plaint stated that Jaidevi from October, 1887, " began to declare him to be her son," and admitted that from March 1, 1889, the properties which had stood in Rambilas name were transferred to the name of Jainarayan as Rambilas adopted son. The appellants did not admit the date of adoption, but by their plaint stated that Jaidevi from October, 1887, " began to declare him to be her son," and admitted that from March 1, 1889, the properties which had stood in Rambilas name were transferred to the name of Jainarayan as Rambilas adopted son. The original validity of this adoption turned mainly upon the customs of the Dhusar tribe to which the parties belonged. There was also a dispute as to the authority of Jaidevi to make the adoption. Among other defences the respondents pleaded the Limitation Act, 1877. Upon this question the dates of birth of the appellants were material. From these dates, as alleged in the plaints, it appeared (1.) that the suit was filed just within the expiration of three years after the first appellant] attained his majority; (2.) that only the first appellant was in existence in 1887, when the first respondent (Jainarayan) was, as admitted by the appellants, accepted as a member of the joint family; and (3.) that all the appellants were minors at the date of the partition in 1898. In addition to the facts admitted on the pleadings, the plaintiffs pleader in his oral statement before the Court on April 4, 1908, made the following admission " The plaintiffs father has actually given possession of the properties in suit to the defendant No. 1 to enjoy it exclusively by himself in 1898. Previously he was living as a joint member and jointly enjoying the property by reason of the plaintiffs fathers inaction and acquiescence in this mode of enjoyment." On July 18, 1908, issues were settled by the District Judge and certain of them were set down for trial without evidence as preliminary issues of law arising on the pleadings and admissions of the parties. Of these the first three were material to the present appeal and were as follows (1.) Whether the plaintiffs can maintain this suit in the present form without suing for partition ; (2.) Are plaintiffs bound by the acquiescence of their father in admitting the defendant No. 1 in the family a id allowing him a share in the property ? (3.) Since defendant No. 1 has been in joint possession of the property with Kedarnath since 1887 and in separate possession of his share since 1898, has he acquired an absolute title to the property in dispute? If plaintiffs fathers claim is time-barred, has their claim become time-barred also ? The District Judge delivered his judgment on September 1, 1908. On the first issue he held in effect that the suit was maintainable in the form presented in the plaint, though from his finding on a later issue it appeared that he thought that the appellants would in any event only be entitled to recover four-fifths of the property in dispute. On the second issue he held that the appellants were bound by their fathers conduct in admitting the first respondent as a joint owner in the family properties and by the partition effected between them; and he was also of opinion that what took place was of the nature of a family arrangement and that the appellants were estopped from disputing the validity of the adoption. On the third issue he held that the first respondents possession of a share in the family properties, though undivided prior to 1898, had been adverse to the appellants and their father since 1887, and that consequently the appellants claim was barred by the Limitation Act, 1877, Sched. II., art. 126. In view of his findings upon the second and third issues he dismissed the suit. The appellants thereupon appealed to the Court of the Judicial Commissioner, Central Provinces. The appeal came on for hearing before the Additional Judicial Commissioner, who by his judgment delivered on July 26, 1909, decided in favour of the defendants (respondents). The learned Commissioner was of opinion that the possession of the first respondent had been adverse to the appellants since 1887, and that the claim of the second, third, and fourth appellants, who were not then born, was barred by the Limitation Act, 1877 ; but that the claim of the first appellant, assuming him to have been born in 1886 and thus prior to the commencement of the adverse possession of the first respondent, was saved by s. 7 of that Act. He was, however, of opinion that the acts of the appellants father in admitting the first respondent to a joint enjoyment of the family property and in coming to a partition with him were binding upon the appellants, whether the respondents adoption was valid or not. He therefore dismissed the appeal. De Gruyther, K.C., and H. Mitra, for the appellants. There was upon the facts pleaded no ground for holding that the appellants father acquiesced in the joint ownership of the first respondent Rewa Prasad Sukal v. Deo Dutt Ram Sukal. (( 1899) L. R. 27 Ind. Ap. 39.) The admission by the plaintiffs pleader was ambiguous. It is capable of being construed as meaning that previously to 1898 the first respondent was living " as if " he were a joint member of the family. But in any event the fathers acquiescence is not necessarily binding upon the sons. The appellants cannot be precluded from raising the question that the partition was unfair to them and not binding. The learned Judicial Commissioner was mistaken in his view that under the decision in Balkishen Das v. Ham Narain Sahu (( 1903) L. R. 30 Ind. Ap. 39.) it is necessary to shew that the partition was to the fathers knowledge unfair and prejudicial. If the adoption was invalid it does not become effective unless by estoppel. The District Judge decided on the basis of estoppel by acquiescence on the ground that the first respondent had severed his connection with his natural family, but this appears from the plaint not to have been so. The view of the learned Judicial Commissioner that the suit was barred by limitation against the three younger sons, who were not born at the date when the joint possession is said to have commenced, is erroneous. The authorities upon which that view was based were founded on the law as then existing that in all cases where the validity of an adoption was in question a suit for a declaratory judgment had to be brought by the next reversioner. A child born more than twelve years after the adoption was held barred by the Limitation Act, 1877, Sched. II., art. 118, and his suit was not saved by s. 7 because the title had vested under s. 2, before his birth. A child born more than twelve years after the adoption was held barred by the Limitation Act, 1877, Sched. II., art. 118, and his suit was not saved by s. 7 because the title had vested under s. 2, before his birth. Those decisions are, however, no longer law since the decision in Muhammad Umar Khan v. Muhammad Niaz-Ud-Din Khan(( 1911) L. R. 39 Ind. Ap. 19.), and the younger sons claim is saved by s. 7 of the Limitation Act, 1877. Further, the eldest appellant is entitled to succeed on behalf of the joint family, and the younger sons are entitled to share in the relief as members of the joint family, whether or not a suit by them would have been barred. Lowndes, for the first and second respondents. The appellants did not, either in the Courts below or by their case in the present appeal, allege that there had not in fact been acquiescence by their father. The point raised was solely as to the effect of the acquiescence. It is now too late for the appellants to put forward that there was no acquiescence. Further, the admission by the plaintiffs pleader was unambiguous and could only mean that previously to 1908 the first respondent was in joint possession of the property and that the appellants father acquiesced in his being so. That the admission meant this is shewn by the issues which were settled after and upon it being made. The fathers acquiescence was binding upon his sons both by estoppel and as an arrangement which he was entitled to make as manager of the joint family property Maynes Hindu Law, 7th ed., p. 755 ; Jagan Nath v. Manna Lal. (( 1894) I. L. R. 16 Allah. 231, at p. 233.) On the limitation point there are two distinct questions (1.) Was the father barred, and if so did that bar the sons ? (2.) Were the sons nevertheless entitled to sue by virtue of the Limitation Act, 1877 ? If the adverse possession began in 1887, the father was barred under Sched. II., art. 126. Though there cannot be adverse possession as between members of a joint family, there is as regards a stranger to whom part of the family property is alienated. (2.) Were the sons nevertheless entitled to sue by virtue of the Limitation Act, 1877 ? If the adverse possession began in 1887, the father was barred under Sched. II., art. 126. Though there cannot be adverse possession as between members of a joint family, there is as regards a stranger to whom part of the family property is alienated. The claim of the appellants must be through their father and is consequently barred Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande. (( 1885) I. L. R. 9 Bomb. 198, at p. 224.) If, however, it should be held that the claim of the eldest appellant is saved by s. 7 of the Limitation Act, 1877, it is not necessary to consider whether the learned Judicial Commissioner was right in holding that s. 7 did not save the younger sons from being barred, since in that event it is conceded on behalf of the respondents that the younger appellants would be entitled to share in the relief granted to the eldest appellant The suit will not lie in the form in which it is brought. The appellants by their plaint claim to recover the whole property, but during their fathers life he represented the family and the sons had no claim to recover. The suit in its present form consequently does not lie. The appellants could only ask for partition. Upon partition it would be open to the first respondent to claim that in any event he was entitled as against the appellants father. De Gruyther, K.C., in reply. The form of the suit is right Madho Pershad v. Mehrban Singh (( 1890) L. R. 17 Ind. Ap. 194.); Radha Proshad Wasti v. Esuf(( 1881) I. L. R. 7 Calc. 414.); Naranbhai Vaghjibhai v. Ranchod Premchand. (( 1901) I. L. R. 26 Bomb. 141.) No authorities were cited to shew that the plaintiffs were bound to claim partition which they do not desire. Suits of the character of the present are so well recognized in India that the Limitation Act, 1877, and the Limitation Act, 1908, make special provision as to them. If the appellants had sued merely to recover their share of the joint family property the suit would have been dismissed upon the authority of Rajaram Tewaree v. Luchmun Pershad. (( 1869) 12 Suth. W. R. 478.) [Sir John Edge. If the appellants had sued merely to recover their share of the joint family property the suit would have been dismissed upon the authority of Rajaram Tewaree v. Luchmun Pershad. (( 1869) 12 Suth. W. R. 478.) [Sir John Edge. The Courts of the Central Provinces are not governed by the decisions of the Bengal, Madras, or Bombay High Court, but they lean to those of the Allahabad High Court.] The appellants took the right course in joining their father as a defendant. It would be competent for the Court upon making a decree in the suit to declare that the first respondent was entitled to stand in the shoes of the appellants father Deendyal Lal v. Jugdeep Narain Singh (( 1877) L. R. 4 Ind. Ap. 247.) ; Baboo Hurdey Narain Sahu v. Bandit Baboo Rooder Perkash Misser. (( 1883) L. R. 11 Ind. Ap. 26.) The real question in the appeal is whether the Board is satisfied that there has been a proper trial of the suit. The respondent Kedarnath was not represented. The judgment of their Lordships was delivered by Sir Samuel Griffith. This was a suit instituted—to use the words of art. 126 of Sched. II. to the Indian Limitation Act of 1877—" by a Hindu governed by the law of the Mitakshara, to set aside his fathers alienation of ancestral property." The plaintiffs, the appellants, are the four sons of the defendant Kedarnath. The defendants were one Jainarayan, Kedarnath, and certain assignees from the former. The case made by the plaint, so far as material to the present appeal, is that the plaintiffs and their father were the owners of a joint undivided ancestral estate subject to the Mitakshara law, and that Kedarnath, in October, 1898, improperly made a disposition of part of it by way of partition to the defendant Jainarayan. The relief formally claimed was that " each of the defendants may be ordered to deliver to them the possession of whatever property he has with him out of that mentioned in paragraph 11," with consequential relief. The suit was instituted on December 20, 1907. The first plaintiff was alleged to have been born on December 20, 1886, the other [plaintiffs] being younger. The suit was instituted on December 20, 1907. The first plaintiff was alleged to have been born on December 20, 1886, the other [plaintiffs] being younger. The plaintiffs alleged that the estate had descended to two brothers, Ramnath and Rambilas, neither of whom had issue; that in 1877 the former adopted the defendant Kedarnath ; that Rambilas died in 1881 and Ramnath in 1883, whereupon Kedarnath became solely entitled ; that about 1886 or 1887 the widow of Rambilas, whose name had previously, with the consent of Ramnath, been entered in the local register as a joint owner in place of Rambilas, adopted Jainarayan as the son of Rambilas, and that his name was thereupon entered as o in her place ; that the adoption of Jainarayan was invalid for various reasons stated; and that in 1898 Kedarnath "gave" a specific part of the estate to Jainarayan, who has since claimed and enjoyed the separate possession of it. Under these circumstances, the plaintiffs claimed restitution of the part so given. Amongst other defences, Jainarayan set up that the plaintiffs are bound by the acquiescence of their father Kedarnath in the admission of Jainarayan to the family, and that the suit is barred by the Limitation Act. In proceedings before the District Judge for the purpose of settling preliminary issues of law, the plaintiffs pleader admitted that “plaintiffs father had actually given possession of the property in suit to defendant No. 1 (Jainarayan) to enjoy it exclusively by himself in 1898. Previously he was living as a joint member and jointly enjoying the property by reason of plaintiffs fathers inaction and acquiescence in this mode of enjoyment." The case was decided in the Courts below upon the allegations in the plaint, together with this admission. The first three issues were finally settled as follows— 1. 1. Whether plaintiffs can maintain the suit in its present form without suing for partition ; 2. 2. Are plaintiffs bound by the acquiescence of their father in admitting defendant No. 1 into the family and allowing him a share in the property ? 3. Since defendant No. 1 has been in joint possession of property with Kedarnath since 1887 and in separate possession of his share since 1897-98, has he acquired an absolute title to the property in dispute ? If plaintiffs fathers claim is time- barred, has their claim become time-barred also ? 3. Since defendant No. 1 has been in joint possession of property with Kedarnath since 1887 and in separate possession of his share since 1897-98, has he acquired an absolute title to the property in dispute ? If plaintiffs fathers claim is time- barred, has their claim become time-barred also ? There was some controversy as to the effect of the admission already stated. But their Lordships think that, as the issues were settled in the presence of the parties, it must be construed in the sense recited in the third issue. The learned judge of first instance answered the first and second issues in the affirmative, and as to the third issue held that the defendant Jainarayan had acquired an absolute title to the property in suit by adverse possession for more than twelve years. On appeal to the Court of the Judicial Commissioner, the learned Additional Commissioner held that as the first plaintiff had instituted the suit within three years of attaining his majority, he was entitled to the benefit of s. 7 of the Limitation Act of 1877, and the suit was not barred as against him, but he held that it was barred as against his younger brothers, who were born after the commencement of what he regarded as the adverse possession of the defendant Jainarayan. It was, how ever, conceded before this Board, and, as their Lordships think, rightly conceded, that if the first plaintiff succeeds in the suit his younger brothers born before a partition of the estate will be entitled to share in the relief. The learned Additional Commissioner also held that the first plaintiff was bound by his father Kedarnaths acquiescence in Jainarayans joint enjoyment of the family property and consent to a partition with him, since in such acquiescence and consent he must be held to have acted in a representative and not in a personal capacity. The basis of the suit is that the adoption of Jainarayan was wholly invalid, in which case he was in the view of the law an absolute stranger. It is not disputed that the validity of an adoption may be contested by persons prejudicially affected by it. The basis of the suit is that the adoption of Jainarayan was wholly invalid, in which case he was in the view of the law an absolute stranger. It is not disputed that the validity of an adoption may be contested by persons prejudicially affected by it. And it seems to their Lordships to be clear that, although a partition made by a Hindu father may under some circumstances bind his minor sons, as was held by this Board in Balkishen Das v. Ram Narain Sahu (L. R. 30 Ind. Ap. 139, at p. 150.), yet if on the partition a share is given cu an absolute stranger the partition may be impeached as a disposition of property made without consideration, unless it can be supported as a bona fide compromise of a disputed claim. There are no materials before the Board to enable them to form a conclusion in favour of the first respondent on this ground, as suggested by the learned Additional Judicial Commissioner, even if such a case had been set up by him. Their Lordships are therefore of opinion that if the adoption of Jainarayan was wholly invalid the plaintiffs would be entitled to succeed in the absence of any other defence. With respect to the form of suit, it was rightly pointed out by the learned counsel for the appellants that to deny any relief except in a suit for partition would be to deny the right of relief altogether, since the basis of their claim is that they are still entitled to the estate as a joint undivided estate, and desire to enjoy it as such. It may well be, however, that, as between Kedarnath and Jainarayan, the latter may be entitled to insist that he stands in the shoes of the former as to the share which would come to Kedarnath upon a partition ; and that the Court, if that position were established, would itself, at Jainarayans instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other. Their Lordships think that on the present pleadings it is open to Jainarayan to set up such a case, but express no opinion as to its validity either in law or fact. Their Lordships think that on the present pleadings it is open to Jainarayan to set up such a case, but express no opinion as to its validity either in law or fact. Under these circumstances, their Lordships, being of opinion that they cannot, on the materials before them, finally determine the rights of the parties, will humbly advise His Majesty to set aside the judgments and decrees appealed from, and remand the suit for trial, with a declaration that it is competent for the Court, in the event of the respondent Jainarayan failing in his other defences, to make the whole or any part of the relief granted to the plaintiffs conditional on their assenting to a partition so far as regards Kedarnaths invest in the estate, so as to give effect to any right to which the respondent may be entitled claiming through Kedarnath. The respondents must pay the costs of the hearing on the preliminary issues in the District Court and the costs of the appeal to the Judicial Commissioner, but there will be no order as to the costs of this appeal.